B-120407, OCT 19, 1954

B-120407: Oct 19, 1954

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ANDERTEN: REFERENCE IS MADE TO YOUR LETTER OF MAY 30. THAT YOU HAVE NEVER RECEIVED ALL OF THE PAY DUE YOU FOR THE PERIOD INVOLVED AND THAT YOU ARE ENTITLED TO MUSTERING -OUT PAY INCIDENT TO YOUR RELIEF FROM ACTIVE DUTY ON JUNE 29. THE RECORDS SHOW THAT IN OCTOBER 1952 YOU WERE TRIED BY GENERAL COURT- MARTIAL CONVENED BY THE COMMANDER. WERE FOUND GUILTY OF BEING ABSENT WITHOUT LEAVE FROM JUNE 9. DEFERRED APPLICATION OF THE FORFEITURES UNTIL THE SENTENCE WAS ORDERED INTO EXECUTION. THE BOARD ACTION WAS PUBLISHED ON APRIL 27. YOU PETITIONED THE UNITED STATES COURT OF MILITARY APPEALS FOR A REVIEW AND THE DECISION OF THE BOARD OF REVIEW WAS AFFIRMED BY THAT COURT ON MAY 28. CONFINEMENT AT HARD LABOR FOR EIGHT MONTHS WAS ORDERED INTO EXECUTION BY THE SECRETARY OF THE AIR FORCE ON JUNE 16.

B-120407, OCT 19, 1954

PRECIS-UNAVAILABLE

ERWIN W. ANDERTEN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 30, 1954, WITH ENCLOSURES, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MAY 14, 1954, WHICH DISALLOWED YOUR CLAIM FOR AMOUNTS BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE AS AN OFFICER IN THE UNITED STATES AIR FORCE, INCLUDING PAY AND ALLOWANCES FOR THE MONTHS OF JUNE, JULY AND AUGUST 1952, AND FEBRUARY 1954, AND MUSTERING-OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY ON JUNE 29, 1947. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED JUNE 3, 1954, FROM HONORABLE WILLIAM LANGER, UNITED STATES SENATE, ENCLOSING A FILE OF CORRESPONDENCE CONCERNING THE SAME MATTER, AND YOUR LETTER OF JUNE 20, 1954, TRANSMITTING STANDARD FORM NO. 1012, AS A CLAIM IN CONNECTION WITH THE TRAVEL OF YOURSELF AND YOUR DEPENDENTS IN MAY AND JULY 1953.

YOU ALLEGE, AMONG OTHER THINGS, THAT YOU HAVE NEVER RECEIVED ALL OF THE PAY DUE YOU FOR THE PERIOD INVOLVED AND THAT YOU ARE ENTITLED TO MUSTERING -OUT PAY INCIDENT TO YOUR RELIEF FROM ACTIVE DUTY ON JUNE 29, 1947.

THE RECORDS SHOW THAT IN OCTOBER 1952 YOU WERE TRIED BY GENERAL COURT- MARTIAL CONVENED BY THE COMMANDER, TWENTIETH AIR FORCE, AND WERE FOUND GUILTY OF BEING ABSENT WITHOUT LEAVE FROM JUNE 9, 1952, UNTIL JUNE 21, 1952, AND GUILTY OF SEVERAL SPECIFICATIONS ALLEGING VIOLATIONS OF OTHER ARTICLES OF THE UNIFORM CODE OF MILITARY JUSTICE. THE COURT SENTENCED YOU TO DISMISSAL, TOTAL FORFEITURES, AND CONFINEMENT AT HARD LABOR FOR THREE YEARS. THE CONVENING AUTHORITY APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR DISMISSAL, TOTAL FORFEITURES, AND CONFINEMENT AT HARD LABOR FOR ONE YEAR, DEFERRED APPLICATION OF THE FORFEITURES UNTIL THE SENTENCE WAS ORDERED INTO EXECUTION, AND FORWARDED THE RECORD OF TRIAL FOR REVIEW BY A BOARD OF REVIEW. THE BOARD OF REVIEW AFFIRMED CERTAIN OF THE APPROVED FINDINGS OF GUILTY, INCLUDING THE FINDINGS AS TO ABSENCE WITHOUT LEAVE, AND REDUCED THE SENTENCE TO DISMISSAL, TOTAL FORFEITURES, AND CONFINEMENT AT HARD LABOR FOR EIGHT MONTHS. THE BOARD ACTION WAS PUBLISHED ON APRIL 27, 1953, AND CONCURRED IN BY THE JUDGE ADVOCATE GENERAL ON APRIL 28, 1953. SUBSEQUENTLY, YOU PETITIONED THE UNITED STATES COURT OF MILITARY APPEALS FOR A REVIEW AND THE DECISION OF THE BOARD OF REVIEW WAS AFFIRMED BY THAT COURT ON MAY 28, 1954. THE SENTENCE TO DISHONORABLE DISCHARGE, TOTAL FORFEITURE, AND CONFINEMENT AT HARD LABOR FOR EIGHT MONTHS WAS ORDERED INTO EXECUTION BY THE SECRETARY OF THE AIR FORCE ON JUNE 16, 1954. THE RECORDS FURTHER SHOW THAT YOU WERE IN CONFINEMENT UNDER THE SENTENCE FROM OCTOBER 20, 1952, UNTIL MAY 8, 1953, AND THAT ON FEBRUARY 1, 1954, WHILE ASSIGNED TO HEADQUARTERS, FOURTEENTH AIR FORCE, ROBINS AIR FORCE BASE, GEORGIA, YOU ABSENTED YOURSELF FROM YOUR ORGANIZATION AND STATION WITHOUT PROPER AUTHORITY UNTIL MARCH 2, 1954.

WITH REFERENCE TO YOUR CLAIM FOR MUSTERING-OUT PAY, THE RECORDS SHOW THAT YOU WERE APPOINTED FIRST LIEUTENANT, AIR CORPS, REGULAR ARMY, JUNE 19, 1947, AND ACCEPTED JULY 5, 1947, AT WHICH TIME YOU WERE ON ACTIVE DUTY AS A CAPTAIN, ARMY OF THE UNITED STATES, HAVING BEEN ON CONTINUOUS ACTIVE DUTY AS A COMMISSIONED OFFICER SINCE MAY 1, 1943. SECTION 5(B) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 10, IS AS FOLLOWS:

"THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THIS ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS THEREOF, AND THE DECISIONS OF THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL."

PARAGRAPH 11G.1 OF ARMY REGULATIONS NO. 35-2490, FEBRUARY 20, 1946, AS ADDED BY SECTION I OF WAR DEPARTMENT CIRCULAR NO. 129, MAY 21, 1947, IS AS FOLLOWS:

"OFFICERS WHO ARE ON ACTIVE DUTY UNDER ARMY OF THE UNITED STATES COMMISSIONS AT THE TIME OF APPOINTMENT AND ACCEPTANCE OF COMMISSIONS IN THE REGULAR ARMY AFTER 1 JUNE 1945 WITHOUT HAVING BEEN RELIEVED FROM ACTIVE DUTY UNDER ARMY OF THE UNITED STATES COMMISSIONS ARE NOT ENTITLED TO MUSTERING-OUT PAYMENT."

WHILE THE COPY OF CERTIFICATE OF SERVICE, WD AGO FORM 53-98, WHICH YOU HAVE FURNISHED BEARS THE NOTATION "'SEPARATION' 29 JUNE 1947," IT ALSO STATES THAT YOU WERE CONTINUING ON ACTIVE DUTY, AND IT APPEARS FROM YOUR OWN STATEMENTS THAT SUCH SEPARATION WAS FOR THE PURPOSE OF APPOINTING YOU A FIRST LIEUTENANT IN THE REGULAR ARMY, AND THAT FOLLOWING SUCH APPOINTMENT YOU WERE AGAIN APPOINTED A CAPTAIN IN THE ARMY OF THE UNITED STATES. THEREFORE, SINCE YOU CONTINUED TO SERVE UNDER A COMMISSION IN THE ARMY OF THE UNITED STATES AFTER YOUR APPOINTMENT IN THE REGULAR ARMY, THE DETERMINATION THAT YOU ARE NOT ENTITLED TO MUSTERING-OUT PAY INCIDENT TO YOUR "SEPARATION" ON JUNE 29, 1947, APPEARS PROPER.

SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 746, SPECIFICALLY PROVIDES THAT WHEN MEMBERS OF THE ARMED FORCES ARE ABSENT WITHOUT LEAVE OR ARE ABSENT OVER LEAVE THEY SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE. SINCE THE DEPARTMENT OF THE AIR FORCE HAS REPORTED THAT YOU WERE ABSENT OVER LEAVE OR ABSENT WITHOUT LEAVE FROM JUNE 9, 1952, TO JUNE 20, 1952, INCLUSIVE, AND FROM FEBRUARY 1, 1954, TO MARCH 1, 1954, INCLUSIVE, YOUR PAY AND ALLOWANCES FOR SUCH PERIODS WERE FORFEITED. IT APPEARS TO BE YOUR CONTENTION THAT DECISION OF JANUARY 9, 1950, 29 COMP. GEN. 294, AND DECISION OF JUNE 4, 1952, 31 COMP. GEN. 645, HOLD THAT AN OFFICER'S PAY MAY NOT BE WITHHELD ON ACCOUNT OF ABSENCE WITHOUT LEAVE. IN THOSE DECISIONS, RELATING TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, IT WAS HELD THAT THE PROVISIONS OF THE SAID SECTION 4 OF THE 1946 LEAVE ACT, AS AMENDED, CONTEMPLATE THAT MEMBERS OF THE ARMED FORCES, DURING PERIODS OF ABSENCE WITHOUT LEAVE OR ABSENCE OVER LEAVE, SHALL CONTINUE IN A NOMINAL PAY STATUS AND, HENCE, SUCH MEMBERS WHO DIE WHILE IN THAT STATUS HAVE A RATE OF PAY AT DATE OF DEATH FOR THE PURPOSE OF COMPUTING THE SIX MONTHS' DEATH GRATUITY. HOWEVER, UNDER THE PLAIN PROVISIONS OF THE SAID SECTION THE PAY AND ALLOWANCES ACCRUING TO A MEMBER OF THE ARMED FORCES DURING A PERIOD OF ABSENCE WITHOUT LEAVE ARE FORFEITED UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. THE FORFEITURE PROVISIONS OF THE SAID SECTION 4 ARE SUBSTANTIALLY IDENTICAL TO THE PROVISIONS OF SECTION 1265, REVISED STATUTES, 10 U.S.C. 841, APPLICABLE TO OFFICERS, WHICH WAS REPEALED BY THE ACT OF AUGUST 4, 1947. UNDER THAT LAW IT CONSISTENTLY WAS HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT NOTHING MORE THAN AN ADMINISTRATIVE FINDING OF UNAUTHORIZED ABSENCE WAS NECESSARY TO EFFECT FORFEITURE OF AN OFFICER'S PAY.

REGARDING YOUR CONTENTION THAT YOUR ALLOTMENTS WERE ERRONEOUSLY DISCONTINUED YOU ARE ADVISED THAT MEMBERS OF THE AIR FORCE ARE PERMITTED TO MAKE ALLOTMENTS OF THEIR PAY UNDER SUCH REGULATIONS AS THE DEPARTMENT MAY PRESCRIBE. SEE U.S. CODE, 1952 EDITION, TITLE 10, SECTION 894. SINCE THE PERTINENT REGULATIONS PROVIDE FOR DISCONTINUANCE OF ALLOTMENTS WHEN A SERVICE MEMBER IS ABSENT WITHOUT LEAVE FOR A PERIOD OF 10 CONSECUTIVE DAYS, IT APPEARS THAT THE DISCONTINUANCE OF YOUR ALLOTMENTS WAS IN ACCORDANCE WITH APPLICABLE REGULATIONS AND THAT SUCH ACTION WAS TAKEN DUE TO YOUR OWN FAULT.

THE DEPARTMENT OF THE AIR FORCE HAS REPORTED THAT MEALS VALUED AT $69.60 WERE FURNISHED YOU WHILE YOU WERE IN CONFINEMENT AT THE UNITED STATES DISCIPLINARY BARRACKS, CAMP GORDON, GEORGIA, FROM MARCH 12, 1953, TO MAY 9, 1953. SECTION 301(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, PROVIDES THAT OFFICERS SHALL, AT ALL TIMES, BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS. HOWEVER, WHERE SUBSISTENCE ACTUALLY IS FURNISHED BY THE GOVERNMENT TO AN OFFICER, CHARGE FOR THE VALUE THEREOF IS ALWAYS MADE AGAINST THE OFFICER. ACCORDINGLY, THE VALUE OF THE MEALS FURNISHED YOU IS A PROPER CHARGE AGAINST YOUR ACCOUNT. 30 COMP. GEN. 246, 248.

A CONDENSED STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD FROM JANUARY 1, 1952, TO JUNE 15, 1954, IS AS FOLLOWS:

CREDITS

BASIC PAY AS A MAJOR WITH OVER

12 YEARS OF SERVICE, JANUARY 1

TO APRIL 30, 1952, AT $427.50

PER MONTH $1,710.00

BASIC ALLOWANCE FOR QUARTERS,

JANUARY 1 TO APRIL 30, 1952, AT

$105 PER MONTH 420.00

BASIC ALLOWANCE FOR SUBSISTENCE,

JANUARY 1 TO APRIL 30, 1952, AT

$42 PER MONTH 168.00

BASIC PAY AS A MAJOR WITH OVER 12

YEARS OF SERVICE, MAY 1 TO AUGUST

16, 1952, AT $444.60 PER MONTH 1,570.92

BASIC PAY AS A MAJOR WITH OVER 14

YEARS OF SERVICE, AUGUST 17, 1952,

TO JUNE 15, 1954, AT $459.42 PER

MONTH 10,091.93

BASIC ALLOWANCE FOR QUARTERS, MAY 1,

1952, TO JUNE 15, 1954, AT $119.70

PER MONTH 3,052.35

BASIC ALLOWANCE FOR SUBSISTENCE,

MAY 1, 1952, TO JUNE 15, 1954, AT

$47.88 PER MONTH 1,220.94

TRAVEL ALLOWANCE FROM ROBINS AIR

FORCE BASE, GEORGIA, TO MIAMI,

FLORIDA, AND RETURN, UNDER ORDERS

DATED JUNE 16, 1953 (1,292 MILES

AT $0.05 PER MILE) 64.60 $18,298.74

DEBITS

AMOUNT OVERPAID DECEMBER 31, 1951 $ 7.20

CLASS N ALLOTMENT, JANUARY 1,

1952, TO JANUARY 31, 1954,

AT $8 PER MONTH 200.00

CLASS E ALLOTMENT FOR JANUARY

AND FEBRUARY 1952, AT $100

PER MONTH 200.00

CLASS E ALLOTMENT, JANUARY 1

TO JULY 31, 1952, AT $50

PER MONTH 350.00

CLASS E ALLOTMENT, JANUARY 1

TO JULY 31, 1952, AT $201

PER MONTH 1,407.00

CLASS E ALLOTMENT, AUGUST 1,

1952, TO JANUARY 31, 1954,

AT $276 PER MONTH 4,968.00

WITHHOLDING TAX 964.60

FORFEITURES ON ACCOUNT OF ABSENCE

WITHOUT LEAVE FROM JUNE 9 TO

JUNE 20, 1952, INCLUSIVE:

PAY $177.84

ALLOWANCE FOR QUARTERS 47.88

ALLOWANCE FOR SUBSISTENCE 19.15 244.87

SUBSISTENCE FOR PERIOD OF CONFINEMENT

AT CAMP GORDON,

GEORGIA, MARCH 12 TO MAY 9,

1953:

58 MEALS AT $0.30 17.40

116 MEALS AT $0.45 52.20 69.60

GOVERNMENT PROPERTY LOST OR DAMAGED 5.99

TRANSPORTATION CHARGE IN CONNECTION

WITH YOUR TRANSFER TO ROBINS AIR

FORCE BASE UNDER ORDERS DATED

MAY 8, 1953 7.60

FORFEITURES ON ACCOUNT OF ABSENCE

WITHOUT LEAVE FROM FEBRUARY 1 TO

MARCH 1, 1954, INCLUSIVE

PAY 474.73

ALLOWANCE FOR QUARTERS 123.69

ALLOWANCE FOR SUBSISTENCE 49.48 $ 647.90

PAYMENTS FOR THE PERIOD FROM

JANUARY 1 TO JUNE 30, 1952 1,652.00

PAYMENTS FOR THE PERIOD FROM

JULY 1 TO DECEMBER 31, 1952 1,140.00

PAYMENTS FOR THE PERIOD FROM

JANUARY 1 TO JUNE 30, 1953 1,629.00

PAYMENTS FOR THE PERIOD FROM

JULY 1 TO DECEMBER 31, 1953 2,036.60

PAYMENTS FOR THE PERIOD FROM

JANUARY 1 TO JUNE 15, 1954 2,712.53 $18,242.89

BALANCE DUE CLAIMANT $ 55.85

THE BALANCE DUE OF $55.85 WILL BE CONSIDERED BY THE CLAIMS DIVISION OF THIS OFFICE IN CONNECTION WITH THE SETTLEMENT OF THE TRAVEL CLAIM RECEIVED WITH YOUR LETTER OF JUNE 20, 1954, AND YOU WILL BE NOTIFIED IN DUE COURSE OF THE ACTION TAKEN. THE ENCLOSURES NUMBERED 1, 2 AND 3, RECEIVED WITH YOUR LETTER OF MAY 30, 1954, ARE RETURNED HEREWITH AS REQUESTED BY YOU.