B-130065, JAN. 31, 1957

B-130065: Jan 31, 1957

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STEVE CIGAN: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. REGARDING YOUR INDEBTEDNESS TO THE UNITED STATES AND YOUR CLAIM FOR PER DIEM WHILE YOU WERE SERVING ON TEMPORARY DUTY AT YUMA TEST STATION. BONDS WERE ISSUED PURSUANT TO THIS AUTHORIZATION THROUGH JULY 1953. NO ALLOTMENT DEDUCTIONS WERE MADE FROM YOUR PAY. 20 BONDS WERE ISSUED WITHOUT ANY CORRESPONDING DEDUCTION FROM YOUR PAY. YOU SAID THAT YOU DID NOT HAVE THE BONDS AND THAT YOUR WIFE SAID SHE HAD CASHED SOME BONDS WHICH SHE HAD RECEIVED. WHICH OFFER WAS ACCEPTED. SINCE YOU WERE DISCHARGED IN FEBRUARY 1953 YOUR INDEBTEDNESS HAS BEEN ADJUSTED TO REMOVE ANY CHARGE AGAINST YOU FOR FIVE OF THESE BONDS WHICH WERE ISSUED FOR THE MONTHS OF MARCH THROUGH JULY 1953 AFTER YOUR DISCHARGE.

B-130065, JAN. 31, 1957

TO MR. STEVE CIGAN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1956, REGARDING YOUR INDEBTEDNESS TO THE UNITED STATES AND YOUR CLAIM FOR PER DIEM WHILE YOU WERE SERVING ON TEMPORARY DUTY AT YUMA TEST STATION, YUMA, ARIZONA, INCIDENT TO YOUR MILITARY SERVICE. ALSO, HONORABLE THOMAS H. KUCHEL, UNITED STATES, HAS FORWARDED TO US FOR CONSIDERATION YOUR LETTER OF NOVEMBER 17, 1956, WITH ENCLOSURES, REGARDING THESE MATTERS.

YOU SAY IN YOUR LETTER OF NOVEMBER 15, 1956, THAT YOU INTEND TO TAKE EARLY ACTION TO SETTLE YOUR INDEBTEDNESS. THE RECORD, HOWEVER, INDICATES SOME DOUBT ON YOUR PART AS TO THE PROPRIETY OF THE CHARGE AGAINST YOU. ALSO, YOU QUESTION THE DENIAL OF PER DIEM FOR THE TEMPORARY DUTY PERFORMED AT YUMA TEST STATION DURING THE PERIOD JUNE 15 TO NOVEMBER 24, 1951, SUCH CLAIM HAVING BEEN DISALLOWED BY SETTLEMENT DATED JULY 1, 1953, OF OUR CLAIMS DIVISION.

REGARDING THE INDEBTEDNESS MATTER, IN 1951, WHILE SERVING AS A WARRANT OFFICER, JUNIOR GRADE, WITH THE 412 ENGINEER CONSTRUCTION BATTALION, UNITED STATES ARMY, YOU AUTHORIZED AN ALLOTMENT OF PAY OF $75 PER MONTH, EFFECTIVE WITH THE MONTH OF AUGUST 1951, FOR THE MONTHLY PURCHASE OF A $100 MATURITY VALUE SAVINGS BOND PAYABLE TO YOU, OR TO YOUR WIFE, MRS. BETTY J. CIGAN. THIS AUTHORIZATION DIRECTED THAT THE BONDS BE HELD IN SAFEKEEPING BY THE TREASURY DEPARTMENT AND THAT A RECEIPT BE MAILED TO YOU AT THE YUMA TEST STATION, YUMA, ARIZONA. BONDS WERE ISSUED PURSUANT TO THIS AUTHORIZATION THROUGH JULY 1953. NO ALLOTMENT DEDUCTIONS WERE MADE FROM YOUR PAY, HOWEVER, FOR THE BONDS ISSUED AFTER NOVEMBER 1951 AND, THUS, 20 BONDS WERE ISSUED WITHOUT ANY CORRESPONDING DEDUCTION FROM YOUR PAY. IN 1952 (APPARENTLY IN NOVEMBER) YOU CHANGED YOUR CUSTODY RECEIPT MAILING ADDRESS TO P.O. BOX 749, SEASIDE, CALIFORNIA, AND IN 1953 YOU CHANGED THIS ADDRESS TO APT. 2-E, 4200 STOCKTON, RICHMOND, CALIFORNIA.

WHEN THIS ERRONEOUS BOND ISSUE SITUATION CAME TO LIGHT EARLY IN 1954, THE ARMY FINANCE AUTHORITIES ASKED THE FEDERAL RESERVE BANK OF CHICAGO, THE CUSTODIAN OF YOUR BONDS, TO SEND THE 20 BONDS TO THE REDEMPTION DIVISION FOR RECOVERY OF THE PURCHASE PRICE. IN REPLY THE BANK ADVISED THAT THE BONDS HAD BEEN RELEASED AND FORWARDED IN ACCORDANCE WITH YOUR INSTRUCTIONS, THE LATEST RELEASE HAVING BEEN MADE ON OCTOBER 15, 1953.

IN APRIL 1954, THE ARMY FINANCE AUTHORITIES INFORMED YOU OF THE ISSUANCE OF THESE BONDS WITHOUT ANY ALLOTMENT DEDUCTIONS FROM YOUR PAY AND REQUESTED THEIR RETURN OR, IF YOU NO LONGER HAD THE BONDS, THAT $1,500 BE REMITTED TO COVER THE PURCHASE PRICE. IN A LETTER OF MAY 9, 1954, YOU SAID THAT YOU DID NOT HAVE THE BONDS AND THAT YOUR WIFE SAID SHE HAD CASHED SOME BONDS WHICH SHE HAD RECEIVED. YOU OFFERED TO PAY FOR THE BONDS IN MONTHLY INSTALLMENTS, WHICH OFFER WAS ACCEPTED.

SINCE YOU WERE DISCHARGED IN FEBRUARY 1953 YOUR INDEBTEDNESS HAS BEEN ADJUSTED TO REMOVE ANY CHARGE AGAINST YOU FOR FIVE OF THESE BONDS WHICH WERE ISSUED FOR THE MONTHS OF MARCH THROUGH JULY 1953 AFTER YOUR DISCHARGE. A CHARGE OF $381 (5 X $75, PLUS INTEREST OF $6) FOR THESE BONDS WAS RAISED AGAINST MRS. CIGAN, WHO CASHED THE BONDS.

APPARENTLY THE ARMY FINANCE AUTHORITIES ERRED, EITHER IN ISSUING THE BONDS, OR IN PERMITTING DISCONTINUANCE OF PROPER ALLOTMENT DEDUCTIONS. SUCH FACT, HOWEVER, DOES NOT RELIEVE YOU OF LIABILITY FOR THE OVERPAYMENT RESULTING FROM THE ALLOTMENT NONDEDUCTION FOR THOSE BONDS ISSUED PRIOR TO YOUR DISCHARGE, SUCH BONDS HAVING BEEN ISSUED PURSUANT TO YOUR AUTHORIZATION AND RELEASED BY THE DESIGNATED CUSTODIAN PURSUANT TO YOUR INSTRUCTIONS. SEE UNITED STATES V. BENTLEY, 107 F.2D 382; AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24, AND IN 63 A.L.R. 1346.

YOU HAVE PAID $75 ON YOUR INDEBTEDNESS OF $1,125 LEAVING A BALANCE DUE OF $1,050. MRS. CIGAN HAS PAID $250 ON HER INDEBTEDNESS OF $381 ($375 BOND PURCHASE PRICE PLUS $6 INTEREST RECEIVED ON BONDS CASHED) LEAVING A BALANCE DUE OF $131. WE HAVE NO AUTHORITY TO WAIVE OR REMIT THESE ITEMS OF INDEBTEDNESS.

AS TO YOUR PER DIEM CLAIM, UNDER ORDERS DATED JUNE 15, 1951, ISSUED BY 412 ENGINEER CONSTRUCTION BATTALION, CAMP CARSON, COLORADO, YOU AND CERTAIN OTHER MEMBERS OF THAT BATTALION, DESIGNATED AS AN ADVANCE PARTY FOR THE MOVEMENT OF THE BATTALION TO YUMA, ARIZONA, WERE DIRECTED TO PROCEED ON OR ABOUT JUNE 15, 1951, ON TEMPORARY DUTY FOR APPROXIMATELY FOUR MONTHS TO THE YUMA TEST STATION, YUMA, ARIZONA. THE BATTALION HAD BEEN ORDERED TO TEMPORARY DUTY AT YUMA BY ORDERS OF JUNE 14, 1951, PRESUMABLY TO ACCOMPLISH A CONSTRUCTION PROJECT. BY ORDER OF HEADQUARTERS SIXTH ARMY, DATED NOVEMBER 7, 1951, AS AMENDED, YOU WERE ORDERED TO ACTIVE DUTY AT FORT ORD, CALIFORNIA, IN YOUR STATUS AS CAPTAIN, UNITED STATES ARMY RESERVE, EFFECTIVE NOVEMBER 24, 1951, AND CONTINUED ON DETACHED SERVICE WITH THE BATTALION AT YUMA FOR A PERIOD OF 30 DAYS. YOU PROCEEDED FROM CAMP CARSON ON JUNE 15, 1951, AND DEPARTED FROM YUMA FOR FORT ORD ON DECEMBER 23, 1951. GOVERNMENT QUARTERS AND MESSING FACILITIES APPEAR TO HAVE BEEN AVAILABLE FOR YOU AT YUMA.

DURING THE PERIOD OF YOUR DUTY AT YUMA, REGULATIONS GOVERNING THE PAYMENT OF PER DIEM TO MILITARY PERSONNEL WERE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4201 OF THOSE REGULATIONS SETS FORTH VARIOUS CONDITIONS AND CIRCUMSTANCES UNDER WHICH TEMPORARY DUTY PER DIEM ALLOWANCES ARE NOT PAYABLE. SUBPARAGRAPH 4201-7 PROHIBITS THE PAYMENT OF THE ALLOWANCE---

"FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, TRAINING ENCAMPMENTS FOR CIVILIAN COMPONENTS, AND DUTY AS OBSERVER, UMPIRE, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.'

DUTY OF THE TYPE PERFORMED BY YOU AT YUMA IS REGARDED AS FIELD DUTY, AN ACTIVITY COVERED BY SUCH PROVISIONS. WHILE, INITIALLY, SOME PER DIEM ALLOWANCES MAY HAVE BEEN PAID FOR CONSTRUCTION ACTIVITY DUTY, THE PAYMENTS WERE NOT AUTHORIZED BY THE REGULATIONS. IN SUCH CONNECTION, ARMY SPECIAL REGULATIONS NO. 35-3080-5, DATED AUGUST 26, 1952, ISSUED FOR USE AS GUIDANCE IN THE PROPER INTERPRETATION OF THE INTENT AND MEANING OF THE QUOTED PROVISION, SPECIFICALLY INCLUDED IN THE TYPE OF DUTY WITHIN ITS CONTEMPLATION (PARAGRAPH 2B),"ANY PERIOD OF TRAVEL AND TEMPORARY DUTY AS A MEMBER OF A UNIT PERFORMING DUTY IN CONNECTION WITH CONSTRUCTION ACTIVITIES, CARGO LOADING AND UNLOADING, TRANSPORTING AMMUNITION, ETC.' SINCE THE GOVERNING REGULATIONS PROHIBITED THE PAYMENT OF PER DIEM FOR THE DUTY PERFORMED BY YOU AT YUMA WE PROPERLY MAY NOT ALLOW YOU A PER DIEM FOR SUCH DUTY. HENCE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.