B-126671, APR. 13, 1956

B-126671: Apr 13, 1956

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. IT APPEARS THAT COLONEL ADAMS WAS PLACED ON THE RETIRED LIST EFFECTIVE MAY 31. THE ADDITIONAL PAY CLAIMED APPARENTLY IS ON THE BASIS OF ALLEGED SERVICE. TWO TO THE EFFECT THAT THE AFFIANTS HAVE PERSONAL KNOWLEDGE THAT WILEY J. ADVISING HIM THAT DUE TO A FIRE AND OTHER ACCIDENTS THE RECORDS WERE INCOMPLETE. WE ARE LISTING BELOW THE STEPS THAT HAVE BEEN TAKEN BY THIS DEPARTMENT IN OUR ATTEMPTS TO VERIFY THE SERVICE HE CLAIMS FROM 1913 TO 1916. DID NOT HAVE AN INDIVIDUAL FILE (KENTUCKY NATIONAL GUARD) FOR ANYONE OF THAT NAME. HE WAS DISCHARGED ON JULY 3.

B-126671, APR. 13, 1956

TO LIEUTENANT COLONEL M. L. JOHNSON, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1955, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, ENCLOSED WITH YOUR LETTER, IN FAVOR OF COLONEL WILEY J. ADAMS, RETIRED, FOR ADDITIONAL RETIRED PAY AT THE RATE OF $9.54 PER MONTH FOR THE PERIOD JUNE 1 TO DECEMBER 31, 1955.

IT APPEARS THAT COLONEL ADAMS WAS PLACED ON THE RETIRED LIST EFFECTIVE MAY 31, 1955, PURSUANT TO THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087; AND THAT HE HAS BEEN PAID RETIREMENT PAY ON THE BASIS OF SERVICE BEGINNING MAY 14, 1917, ACTIVE, 9 YEARS, 2 MONTHS, 13 DAYS, AND INACTIVE, 26 YEARS, 3 MONTHS. THE ADDITIONAL PAY CLAIMED APPARENTLY IS ON THE BASIS OF ALLEGED SERVICE, NOT CREDITED IN THE COMPUTATION OF HIS PRESENT PAY, IN THE KENTUCKY NATIONAL GUARD FROM JANUARY 23, 1913, TO JANUARY 22, 1916, INCLUDING ACTIVE DUTY OF 23 DAYS DURING THAT PERIOD.

COLONEL ADAMS HAS SUBMITTED PHOTOSTATIC COPIES OF AFFIDAVITS EXECUTED BY FOUR OTHER INDIVIDUALS IN FEBRUARY 1943, TWO TO THE EFFECT THAT THE AFFIANTS SERVED WITH WILEY J. ADAMS IN COMPANY D, 2D KENTUCKY INFANTRY, KENTUCKY NATIONAL GUARD, FROM JANUARY 1913 TO JANUARY 1916, TWO TO THE EFFECT THAT THE AFFIANTS HAVE PERSONAL KNOWLEDGE THAT WILEY J. ADAMS SERVED A FULL THREE-YEAR ENLISTMENT IN COMPANY D, 2D KENTUCKY INFANTRY, DURING THE PERIOD 1913 TO 1916, AND ALL FOUR TO THE EFFECT THAT WILEY J. ADAMS ATTENDED DRILLS, SUMMER CAMPS, AND OTHER ACTIVITIES OF COMPANY D DURING THE PERIOD 1913 TO 1916. ALSO, COLONEL ADAMS HAS SUBMITTED A PHOTOSTATIC COPY OF AN AFFIDAVIT EXECUTED BY HIM ON FEBRUARY 11, 1955, TO THE EFFECT THAT HE SERVED HONORABLY AS AN ENLISTED MAN IN COMPANY D, 2D KENTUCKY INFANTRY, KENTUCKY NATIONAL GUARD, FROM JANUARY 23, 1913, TO JANUARY 22, 1916, AND THAT HE ATTENDED ACTIVITIES INCLUDING DRILLS AND THREE SUMMER ENCAMPMENTS, CONSISTING OF 45 DAYS' ACTIVE DUTY, FOR WHICH HE RECEIVED PAY. ALSO, THERE HAS BEEN SUBMITTED A PHOTOSTATIC COPY OF A LETTER DATED NOVEMBER 15, 1954, FROM THE OFFICE OF THE ADJUSTANT GENERAL, COMMONWEALTH OF KENTUCKY, TO COLONEL ADAMS, ADVISING HIM THAT DUE TO A FIRE AND OTHER ACCIDENTS THE RECORDS WERE INCOMPLETE, AND THAT NO RECORD COULD BE FOUND OF HIS SERVICE IN THE KENTUCKY NATIONAL GUARD FROM 1913 TO 1916; AND THERE HAS BEEN SUBMITTED A PHOTOSTATIC COPY OF A LETTER DATED JANUARY 3, 1955, FROM THE SAME OFFICER TO COLONEL ADAMS TO THE EFFECT THAT IT HAD NO RECORD SHOWING THAT HE SERVED IN THE KENTUCKY NATIONAL GUARD PRIOR TO AN ENLISTMENT THEREIN BY HIM ON MAY 14, 1917. ALSO, THERE HAS BEEN SUBMITTED A PHOTOSTATIC COPY OF A MEMORANDUM DATED MARCH 24, 1955, FROM THE OFFICE OF THE ADJUSTANT GENERAL, COMMONWEALTH OF KENTUCKY, TO THE GOVERNOR OF KENTUCKY, AS OLLOWS:

"IN COMPLIANCE WITH YOUR RECENT MEMO IN WHICH YOU REQUESTED INFORMATION REGARDING THE KENTUCKY NATIONAL GUARD SERVICE OF WILEY J. ADAMS, WE ARE LISTING BELOW THE STEPS THAT HAVE BEEN TAKEN BY THIS DEPARTMENT IN OUR ATTEMPTS TO VERIFY THE SERVICE HE CLAIMS FROM 1913 TO 1916.

"THIS OFFICE FIRST RECEIVED A REQUEST FOR THE KENTUCKY NATIONAL GUARD STATEMENT OF SERVICE FOR THE PERIOD 1913 TO 1916 FOR WILEY J. ADAMS FROM THE ADJUSTANT GENERAL IN WASHINGTON ON APRIL 13, 1954. WE SEARCHED OUR FILES, BUT DID NOT HAVE AN INDIVIDUAL FILE (KENTUCKY NATIONAL GUARD) FOR ANYONE OF THAT NAME. WE THEN WENT TO THE WORLD WAR I FILES AND FOUND THAT HE HAD ENLISTED IN WORLD WAR I WITH THE KENTUCKY NATIONAL GUARD AT WHITESBURG, KENTUCKY ON MAY 14, 1917. HE WAS DISCHARGED ON JULY 3, 1917 TO ACCEPT A COMMISSION. AFTER SERVING AS AN OFFICER AGAIN DISCHARGED ON JUNE 16, 1919.

"WE THEN WENT TO OUR OLD MUSTER ROLLS. WE DO NOT HAVE MUSTER ROLLS FOR THE PERIOD 1913 TO 1915. HIS NAME APPEARS ON THE MUSTER ROLL FOR THE PERIOD JUNE 1917 TO AUGUST 1917 WITH THE FOLLOWING INFORMATION:

"WILEY J. ADAMS, SECOND LIEUTENANT. DATE OF ENLISTMENT: JULY 3, 1917. IN THE "REMARKS" OPPOSITE HIS NAME IS THE FOLLOWING INFORMATION, "PROMOTED TO 2D LT FROM SGT PER SO 136 HQ CEN DEPT JULY 3, 1917. ASSUMED DUTIES AS 2D LT. JULY 17, 1917.' AT THE END OF THIS MUSTER ROLL UNDER THE HEADING "DISCHARGED" IS THE FOLLOWING REMARK, "DISCHARGED PER S.O. 136 7-3-17 TO ACCEPT A COMMISSION IN CO. D, SECOND INFANTRY KENTUCKY.

"WE HAVE TODAY RECEIVED FROM THE OFFICE OF THE ADJUTANT GENERAL IN WASHINGTON PHOTOSTATIC COPIES OF STATEMENTS BY OFFICERS OF COMPANY D, SECOND INFANTRY THAT THEY SERVED WITH WILEY J. ADAMS DURING THE PERIOD 1913 TO 1916. SINCE THEY STATE THAT HE WAS DISCHARGED AT THE END OF A THREE YEAR PERIOD OF SERVICE SUPPOSED TO HAVE ENDED IN JANUARY OF 1916, WE WENT TO OUR SPECIAL ORDERS FOR 1916 AND READ EACH ONE AND WHILE THERE WERE SEVERAL LISTS OF MEN DISCHARGED FROM CO. D. SECOND INFANTRY IN JANUARY OF 1916, WILEY J. ADAMS DID NOT APPEAR ON ANY OF THEM.

"ON OUR WORLD WAR I MUSTER ROLLS OF 1916 AND 1917 THERE APPEARS THE FOLLOWING NAMES: TOUNSEL C. ADAMS, MOSES M. ADAMS, JESSE ADAMS AND RANDOLPH ADAMS. THESE MEN WERE ALL IN CO. D. SECOND INFANTRY, KENTUCKY NATIONAL GUARD AND WE DO HAVE AN INDIVIDUAL FILE FOR EACH OF THESE MEN.

"THIS DEPARTMENT HAS EXHAUSTED ALL SOURCES OF INFORMATION AT OUR DISPOSAL AND WE HAVE FOUND NO RECORDS THAT INDICATE THAT DR. WILEY J. ADAMS WAS IN THE KENTUCKY NATIONAL GUARD DURING THE PERIOD 1913 TO 1916.'

ON JUNE 27, 1955, OUR RESEARCH AND SERVICE UNIT ADVISED THE ADJUTANT GENERAL OF THE ARMY AS FOLLOWS:

"REFERENCE IS MADE TO OUR LIST INDORSEMENT DATED JUNE 13, 1955 IN THE CASE OF WILEY JOHN ADAMS, O-123410, REQUESTING A STATEMENT SHOWING DATES FOR WHICH FEDERAL PAY WAS RECEIVED FOR ACTIVE DUTY FROM JANUARY 23, 1913 TO JANUARY 22, 1916 AS A MEMBER OF COMPANY D, 2ND KENTUCKY INFANTRY, KENTUCKY NATIONAL GUARD.

"EXAMINATION OF THE PERTINENT RECORDS ON FILE IN THIS OFFICE SHOWS SUBJECT MAN PAID FROM FEDERAL FUNDS FOR ACTIVE DUTY AS FOLLOWS:

TABLE PERIOD COVERED NUMBER REMARKS FROM TO OF DAYS 7/14/13 - 7/23/13 - NO RECORD FOUND OF MEMBER HAVING

ATTENDED THE 1913 ENCAMPMENT OF

CO.'D" , 2ND INF., KY. N.G. 6/30/14 - 7/11/14 12 PAID. CO.'D" , 2ND INF. REGT.,

KY. N.G. ENLISTED 2/9/14 FOR 3

YEARS. NAME SHOWN ON PAYROLL AS

WILEY ADAMS. 7/14/15 - 7/24/15 11 PAID. ORGANIZATION AS ABOVE.

NAME SHOWN ON PAYROLL AS WILEY

ADAMS. 6/19/16 - 6/30/16 - MEMBER NOT BORNE ON MUSTER-IN

PAYROLL, MEXICAN BORDER SERVICE,

CO.'D" , 2ND INF. REGT., KY.

N.G.'

THE AFFIDAVITS OF COLONEL ADAMS AND THE OTHER AFFIANTS EXECUTED 30 TO 40 YEARS AFTER THE EVENTS IN QUESTION AND BASED SOLELY ON THE AFFIANTS' MEMORY MAY NOT BE ACCEPTED AS ESTABLISHING THE FACTS THEREIN SET FORTH, THE AFFIDAVITS APPARENTLY BEING UNSUPPORTED, AS TO DETAILS, BY ANY CONTEMPORANEOUS RECORD AVAILABLE TO AFFIANTS. SEE A-31680, JUNE 20, 1930; 23 COMP. GEN. 334, 337. THE VALIDITY OF THE RULE LAID DOWN IN THOSE DECISIONS IS ILLUSTRATED IN THE PRESENT CASE. ALL FIVE AFFIANTS STATE THAT COLONEL ADAMS ENLISTED IN 1913; THE PAY RECORDS SHOW AN ENLISTMENT BY WILEY ADAMS, APPARENTLY THE SAME MAN, ON FEBRUARY 9, 1941. COLONEL ADAMS' AFFIDAVIT STATES THAT HE ATTENDED THREE SUMMER ENCAMPMENTS AND WAS PAID FOR 45 DAYS; THE PAY RECORDS SHOW THAT HE WAS PAID FOR 12 DAYS IN 1914 AND FOR 11 DAYS IN 1915.

VERY RECENTLY WE HAVE RECEIVED A LETTER DATED APRIL 6, 1956, FROM THE ADJUTANT GENERAL OF THE ARMY, FORWARDING A CERTIFICATE AS FOLLOWS:

CHART

"COMMONWEALTH OF KENTUCKY

MILITARY DEPARTMENT

OFFICE OF THE ADJUSTANT GENERAL

FRANKFORT

21 MARCH 1956

C E R T I F I C A T E O F S E R V I C E

"PURSUANT TO A CONCURRENT RESOLUTION OF THE GENERAL ASSEMBLY OF KENTUCKY, HOUSE RESOLUTION NO. 3, PASSED BY THE KENTUCKY HOUSE OF REPRESENTATIVES, 31 JANUARY 1956, RECEIVED BY THE KENTUCKY SENTATE 1 FEBRUARY 1956, AND ADOPTED ON 3 FEBRUARY 1956, BEING DIRECTED BY SAID CONCURRENT RESOLUTION TO CERTIFY TO THE SERVICE HERETOFORE IN QUESTION OF WILEY JOHN ADAMS ON THE BASIS OF AFFIDAVITS NOW MADE OF OFFICIAL RECORD, I HEREBY DO CERTIFY THAT, ACCORDING TO SUCH OFFICIAL AFFIDAVITS NOW OF RECORD IN THE DEPARTMENT OF MILITARY AFFAIRS, WILEY JOHN ADAMS DID SERVE IN COMPANY D, SECOND KENTUCKY INFANTRY, FOR THREE YEARS FROM JANUARY 1913 TO JANUARY 1916.

(S) J. J. B. WILLIAMS

J. J. B. WILLIAMS

MAJOR GENERAL, KY NG

THE ADJUSTANT GENERAL"

SUCH CERTIFICATE IS MADE "ON THE BASIS OF AFFIDAVITS NOW MADE OF OFFICIAL RECORD.' IN OTHER WORDS, IT APPARENTLY WAS EXECUTED ON THE BASIS OF THE AFFIDAVITS DISCUSSED ABOVE. AS HERETOFORE POINTED OUT, THOSE AFFIDAVITS MAY NOT BE ACCEPTED AS ESTABLISHING THE SERVICE CLAIMED. NOR MAY A CERTIFICATE, BASED ON SUCH AFFIDAVITS, HAVE ANY ADDITIONAL FORCE OR EFFECT. COMPARE OUR DECISION OF JUNE 20, 1930, A 31680, IN WHICH IT WAS SAID THAT "THE AFFIDAVITS, BEING RECORDED IN THE ADJUSTANT GENERAL'S OFFICE, GIVE THE CERTIFICATE BASED THEREON NO GRATER PROBATIVE VALUE THAN THE AFFIDAVITS.'

MOREOVER, WE MAY NOT ACCEPT THE PREMISE THAT THE STATE OF KENTUCKY CAN CORRECT COLONEL ADAMS' RECORDS SO AS TO ENTITLE HIM TO ADDITIONAL PAY FROM FEDERAL FUNDS. SUCH POWER, WITH RESPECT TO FEDERAL MILITARY RECORDS, IS VESTED IN THE SECRETARY OF THE ARMY UNDER THE AUTHORITY OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655.

ALSO, EVEN IF IT WERE PROPER TO ACCEPT THE CERTIFICATE OF THE ADJUSTANT GENERAL OF KENTUCKY AS ESTABLISHING COLONEL ADAMS' RIGHT TO CREDIT FOR THE SERVICE DESCRIBED THEREIN, IN THE COMPUTATION OF HIS FEDERAL RETIRED PAY, THERE IS NO SHOWING IN SUCH CERTIFICATE AS TO THE EXACT DATES OF ALLEGED TOTAL SERVICE OR AS TO ANY ACTIVE SERVICE. HENCE, AN ACCURATE COMPUTATION OF SERVICE CREDIT COULD NOT BE MADE ON THE BASIS OF SUCH CERTIFICATE.

AS TO THE MATTER OF EVIDENCE INDEPENDENT OF THE AFFIDAVITS, RESEARCH BY OUR OFFICE REASONABLY ESTABLISHES THAT COLONEL ADAMS ENLISTED IN THE KENTUCKY NATIONAL GUARD ON FEBRUARY 9, 1914; THAT HE ATTENDED SUMMER CAMPS IN 1914 AND 1915 FOR A TOTAL OF 23 DAYS; AND THAT HE STILL WAS AN ENLISTED MAN OF THE KENTUCKY NATIONAL GUARD ON JULY 24, 1915. THE RECORD BEFORE US FURNISHES NO BASIS FOR CREDITING HIM WITH ANY SERVICE PRIOR TO MAY 14, 1917, EXCEPT FOR MEMBERSHIP IN THE NATIONAL GUARD FROM FEBRUARY 9, 1914, TO JULY 24, 1915, WITH ACTIVE DUTY FROM JUNE 30 TO JULY 11, 1914, AND FROM JULY 14 TO JULY 24, 1915. WHILE THE CREDIT TO HIM OF THE TOTAL ADDITIONAL SERVICE CLAIMED WOULD RESULT IN THE NET INCREASE OF HIS MONTHLY RETIRED PAY BY ONLY A SMALL SUM (THE DIFFERENCE BETWEEN THE $9.54 CLAIMED AND THE ADDITIONAL AMOUNT ALLOWABLE FOR THE ADDITIONAL SERVICE HEREIN RECOGNIZED), WE NEVERTHELESS CAN PERCEIVE NO AUTHORITY OF LAW FOR THE CREDIT OF SUCH TOTAL ADDITIONAL SERVICE.

THE VOUCHER, WHICH IS RETURNED HEREWITH, IS NOT AUTHORIZED TO BE PAID IN ITS PRESENT FORM, BUT PAYMENT ON THE VOUCHER IS AUTHORIZED IF IT BE MODIFIED TO CONFORM WITH THE CONCLUSIONS REACHED ABOVE.