B-124012, NOV. 8, 1955

B-124012, NOV. 8, 1955

TO MR. CASIMIRO LEGASPI:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 4, 1955, CONCERNING THE ACTION TAKEN IN SETTLEMENT DATED OCTOBER 4, 1949, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL AMOUNTS BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS AND THE ARMY OF THE UNITED STATES DURING THE PERIOD APRIL 6, 1942, TO SEPTEMBER 19, 1946. YOU CLAIM TO BE ENTITLED TO PAY AS A MASTER SERGEANT INSTEAD OF PAY AS A SERGEANT WHICH YOU HAVE RECEIVED.

IT APPEARS FROM GENERAL ORDERS NO. 48, HEADQUARTERS CAMP RIZAL, PHILIPPINES-RYUKYUS COMMAND, DATED NOVEMBER 20, 1947 (ANNOUNCING YOUR RETIREMENT), THAT DURING THE PERIOD JUNE 6, 1940, TO MARCH 29, 1945, YOU SERVED AS A SERGEANT IN THE PHILIPPINE SCOUTS. IT FURTHER APPEARS FROM THE RECORD THAT ON MARCH 30, 1945, YOU ENLISTED IN THE ARMY OF THE UNITED STATES AS A PRIVATE FIRST CLASS; THAT YOU WERE PROMOTED TO SERGEANT ON THE SAME DAY, AND THAT YOU WERE HONORABLY DISCHARGED AS A SERGEANT ON SEPTEMBER 19, 1946. PARAGRAPH 2 OF ORDERS NO. 1, HEADQUARTERS PHILIPPINES -RYUKYUS COMMAND, OFFICE OF THE COMMANDING GENERAL, DATED JANUARY 11, 1947, PURPORTED TO PROMOTE YOU FROM SERGEANT TO MASTER SERGEANT. THAT ORDER IS STATED TO CONFIRM VERBAL ORDERS OF APRIL 6, 1942, MAKING SUCH PROMOTION. IN LETTER DATED APRIL 30, 1947, ISSUED BY THE SAME COMMAND WHICH ISSUED THE ABOVE ORDERS OF JANUARY 11, 1947, SUBJECT: "REDETERMINATION OF GRADES OF CASIMIRO LEGASPI," IT WAS STATED IN PERTINENT PART AS FOLLOWS:

"2. REDETERMINATION OF THE GRADES HELD BY THIS INDIVIDUAL AND HIS STATUS FROM 30 NOVEMBER 1941 (DATE OF LAST PAYMENT IN FULL) UNTIL 27 MAR 1945 (DATE OF RETURN TO MILITARY CONTROL) IS AS FOLLOWS:

CHART

A. GRADE FROM TO

PFC 1 DEC 41 22 DEC 41

SGT 23 DEC 41 5 APR 42

M/SGT 6 APR 42 26 MAR 45

B. STATUS FROM TO

DUTY 1 DEC 41 7 DEC 41

BELEAGUERED 8 DEC 41 8 APR 42

MIA 9 APR 42 18 JUL 42

"3. THIS INDIVIDUAL IS NOT A CASUALTY STATUS WITHIN THE MEANING OF SECTION 2 OF THE MISSING PERSONS ACT, AS PROVIDED FORIN SECTION IV, PARAGRAPH 1E, WAR DEPARTMENT PLAN FOR CASUALTY ADMINISTRATION UPON REOCCUPATION OF THE PHILIPPINES, FOR THE FOLLOWING PERIODS:

FROM TO 19 JUL 42 26 MAR 45"

UNDER THE ABOVE REDETERMINATION YOU WERE IN A CASUALTY STATUS DURING THE PERIOD DECEMBER 8, 1941, TO JULY 18, 1942, AND HENCE THAT PERIOD OF YOUR CLAIM FROM APRIL 6 TO JULY 18, 1942, IS COVERED BY THE PROVISIONS OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C., APP., 1001. UNDER SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, THE AUTHORITY TO MAKE DETERMINATIONS OF THE ENTITLEMENT OF PERSONS IN AN ABSENT CASUALTY STATUS TO PAY AND ALLOWANCES IS VESTED EXCLUSIVELY IN THE DEPARTMENT OF THE ARMY INSOFAR AS MEMBERS OF THE ARMY ARE CONCERNED. NEITHER OUR OFFICE NOR THE COURTS HAVE ANY JURISDICTION IN THAT RESPECT. SEE MORENO V. UNITED STATES, 118 C.CLS. 30, CERTIORARI DENIED, 342 U.S. 814. THE DEPARTMENT OF THE ARMY HAS MADE NO SPECIFIC DETERMINATION IN YOUR CASE CONCERNING YOUR ENTITLEMENT TO PAY AND ALLOWANCES DURING THE PERIOD APRIL 6 TO JULY 18, 1942, AND IN THE ABSENCE OF SUCH A DETERMINATION, THERE IS NO BASIS FOR THE ALLOWANCE OF THAT PART OF YOUR CLAIM.

THE DEPARTMENT OF THE ARMY HAS DETERMINED, HOWEVER, THAT YOU WERE NOT IN A CASUALTY STATUS WITHIN THE MEANING OF SECTION 2 OF THE MISSING PERSONS ACT DURING THE PERIOD JULY 19, 1942, TO MARCH 26, 1945. HENCE, THAT PART OF YOUR CLAIM FOR THE PERIOD COMMENCING JULY 19, 1942, MAY BE CONSIDERED BY OUR OFFICE. IN VIEW OF THE CIRCUMSTANCES AND THE TIME REQUIRED FOLLOWING THE LIBERATION OF THE PHILIPPINES (1945) TO VERIFY THE ISSUANCE OF VERBAL ORDERS, THE VERBAL ORDERS OF APRIL 6, 1942, CONFIRMED IN WRITING ON JANUARY 11, 1947, MAY BE CONSIDERED AS HAVING BEEN CONFIRMED WITHIN A REASONABLE TIME. ON THAT BASIS, YOU ARE ENTITLED TO PAY AND ALLOWANCES AS A MASTER SERGEANT DURING THE PERIOD JULY 19, 1942, TO MARCH 29, 1945, AND A SETTLEMENT WILL ISSUE IN YOUR FAVOR FOR THE AMOUNT FOUND TO BE DUE FOR THAT PERIOD.

REGARDING THAT PART OF YOUR CLAIM FROM MARCH 30, 1945, TO SEPTEMBER 19, 1946, NO ADDITIONAL PAY MAY BE ALLOWED. YOUR ENLISTMENT ON MARCH 30, 1945, UNQUESTIONABLY WAS A VOLUNTARY CONTRACT ENTERED INTO BETWEEN YOU AND THE UNITED STATES BY WHICH YOU WERE TO BE PAID THEREAFTER THE PAY AND ALLOWANCES OF THE GRADE IN WHICH YOU ENLISTED (PRIVATE FIRST CLASS PROMOTED TO SERGEANT ON DAY OF ENLISTMENT) UNLESS AND UNTIL SUBSEQUENTLY PROMOTED OR REDUCED TO A DIFFERENT GRADE. SINCE IT APPEARS FROM THE RECORD THAT YOU HELD THE GRADE OF SERGEANT DURING THE PERIOD MARCH 30, 1945, TO SEPTEMBER 19, 1946, YOU WERE ENTITLED ONLY TO THE PAY OF A SERGEANT FOR THAT PERIOD. SEE 31 COMP. GEN. 118.