B-128520, SEP. 4, 1956

B-128520: Sep 4, 1956

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BRAEUNIG: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED MAY 31. THAT THE CLAIM WAS DENIED AND RETURNED TO YOU ON THE BASIS THAT LEAVE USED UPON RELEASE AS A PRISONER OF WAR REDUCED YOUR ACCRUED LEAVE TO BELOW 60 DAYS. A COPY OF THE APPLICATION WAS REQUIRED TO BE PREPARED FOR THE APPLICANT'S FILES. THESE INSTRUCTIONS WERE SUPERSEDED BY SPECIAL REGULATIONS NO. 35-3910-5. AS FOLLOWS: "* * * OFFICERS WHO WERE ON ACTIVE DUTY ON 1 SEPTEMBER 1946 AND ARE NOW ON ACTIVE DUTY. WHO HAVE NOT MADE APPLICATION FOR AND RECEIVED SETTLEMENT UNDER THE ARMED FORCES LEAVE ACT OF 1946. YOU STATE THAT YOUR ORIGINAL "CLAIM" WAS PRESENTED TO THE PERSONNEL SECTION OF YOUR UNIT.

B-128520, SEP. 4, 1956

TO MAJOR EWALD C. BRAEUNIG:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1956, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL COMPENSATION BELIEVED TO BE DUE BY REASON OF EXCESS ACCRUED LEAVE AS OF AUGUST 31, 1946, UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 31A. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED MAY 31, 1956, FOR THE REASON THAT THE RECORDS FAIL TO SHOW THAT YOU PRESENTED A FORMAL CLAIM TO THE SECRETARY OF WAR NOT LATER THAN THE TERMINAL DATE, JUNE 30, 1951, SET FORTH IN THE STATUTE.

YOU CONTEND THAT IN THE LATTER PART OF AUGUST 1946 YOU PRESENTED A CLAIM TO YOUR LOCAL HEADQUARTERS--- AIR DIVISION, NANKING HEADQUARTERS COMMAND, NANKING, CHINA--- FOR PAYMENT FOR LEAVE IN EXCESS OF 60 DAYS AS PROVIDED IN THE ARMED FORCES LEAVE ACT OF 1946, BUT THAT THE CLAIM WAS DENIED AND RETURNED TO YOU ON THE BASIS THAT LEAVE USED UPON RELEASE AS A PRISONER OF WAR REDUCED YOUR ACCRUED LEAVE TO BELOW 60 DAYS, AND CONSEQUENTLY, YOU HAD NO EXCESS UNUSED LEAVE.

THE ORIGINAL REGULATIONS ISSUED BY THE WAR DEPARTMENT, CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 251, DATED AUGUST 20, 1946, RELATIVE TO CLAIMS BY COMMISSIONED OFFICERS FOR PAYMENT FOR EXCESS LEAVE PROVIDED THAT APPLICATION THEREFOR WOULD BE FILED AS SOON AS POSSIBLE AFTER AUGUST 31, 1946, WITH THE DISBURSING OFFICER PAYING THE OFFICER FOR AUGUST 1946, AND THAT THE DISBURSING OFFICER WOULD MAKE THE NECESSARY COMPUTATIONS, COMPLETE THE APPLICATION, PREPARE THE APPROPRIATE VOUCHERS, AND FORWARD THE PAPERS TO THE ARMY FINANCE CENTER IN ST. LOUIS, MISSOURI. A COPY OF THE APPLICATION WAS REQUIRED TO BE PREPARED FOR THE APPLICANT'S FILES. THESE INSTRUCTIONS WERE SUPERSEDED BY SPECIAL REGULATIONS NO. 35-3910-5, DATED JULY 10, 1950 (AFR 173-114, 11 JULY 1950), WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"* * * OFFICERS WHO WERE ON ACTIVE DUTY ON 1 SEPTEMBER 1946 AND ARE NOW ON ACTIVE DUTY, AND WHO HAVE NOT MADE APPLICATION FOR AND RECEIVED SETTLEMENT UNDER THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, SHOULD MAKE APPLICATION THEREFOR DIRECT TO THE FINANCE OFFICER, ST. LOUIS FINANCE OFFICE, U.S. ARMY, ARMY FINANCE CENTER, BUILDING 205, ST. LOUIS 20, MISSOURI.'

IN YOUR LETTER OF APRIL 13, 1955, TO THE AIR FORCE FINANCE CENTER, SETTLEMENTS DIVISION, YOU STATE THAT YOUR ORIGINAL "CLAIM" WAS PRESENTED TO THE PERSONNEL SECTION OF YOUR UNIT, WHILE STATIONED IN NANKING, CHINA, AND THAT IT WAS THIS PERSONNEL SECTION THAT DISALLOWED YOUR CLAIM. THE ADMINISTRATIVE RECORDS FAIL TO DISCLOSE THE RECEIPT OF SUCH CLAIM OR OFFICIAL CORRESPONDENCE RELATING TO ITS DISALLOWANCE. SUCH A CLAIM AS MAY HAVE BEEN PRESENTED BY YOU AT THAT TIME TO THE PERSONNEL SECTION MAY NOT BE CONSIDERED ONE CONTEMPLATED BY THE REGULATIONS WHICH SPECIFICALLY REQUIRED THAT THE CLAIM BE PRESENTED IN A PARTICULAR MANNER AS SET OUT ABOVE.

ACCORDINGLY, IN VIEW OF THE RECORD AS IT APPEARS HERE, IT CANNOT BE CONSIDERED THAT YOU MADE A TIMELY CLAIM FOR PAYMENT OF EXCESS ACCRUED LEAVE AS OF AUGUST 31, 1946, IN A MANNER CONTEMPLATED BY REGULATIONS AND THE SETTLEMENT OF MAY 31, 1956, UPON REVIEW, IS SUSTAINED.