B-133985, NOV. 18, 1957

B-133985: Nov 18, 1957

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YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 24. THERE WAS NO LAW OR AUTHORITY FOR THE PAYMENT OF CLOTHING ALLOWANCE INCIDENT TO ASSIGNMENT TO DUTY WITH THE ACADEMY BAND. THAT MEMBERS OF THE COAST GUARD ACADEMY BAND UPON ADVANCEMENT TO RATING OF CHIEF PETTY OFFICER WERE NOT ENTITLED TO SUCH ALLOWANCE. HE MAY PRESCRIBE THE AMOUNT OF A CASH ALLOWANCE TO BE PAID TO SUCH ENLISTED MEN IN ANY CASE IN WHICH CLOTHING IS NOT SO FURNISHED TO THEM.'. THE PRESIDENT DELEGATED TO THE SECRETARY OF THE TREASURY AUTHORITY TO PRESCRIBE THE QUANTITY AND KIND OF CLOTHING WHICH SHALL BE FURNISHED ANNUALLY TO ENLISTED MEN OF THE COAST GUARD AND THE AMOUNT OF THE CASH ALLOWANCE TO BE PAID TO SUCH ENLISTED MEN IN ANY CASE IN WHICH CLOTHING IS NOT SO FURNISHED TO THEM.

B-133985, NOV. 18, 1957

TO DALE H. NICHOLAS, 200-356, MUC, USCG:

THE UNITED STATES COAST GUARD, WASHINGTON 25, D.C., FORWARDED YOUR LETTER DATED AUGUST 19, 1957, BY WHICH YOU RESUBMITTED YOUR CLAIM FOR CLOTHING ALLOWANCE INCIDENT TO YOUR ASSIGNMENT TO DUTY WITH THE ACADEMY BAND ON OCTOBER 10, 1935, OR INCIDENT TO YOUR ADVANCEMENT TO RATING OF CHIEF MUSICIAN ON SEPTEMBER 16, 1949.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 24, 1953, ON THE BASIS THAT PRIOR TO JUNE 1, 1942, THERE WAS NO LAW OR AUTHORITY FOR THE PAYMENT OF CLOTHING ALLOWANCE INCIDENT TO ASSIGNMENT TO DUTY WITH THE ACADEMY BAND; THAT REGULATIONS IN EFFECT AT THE TIME OF YOUR ADVANCEMENT TO THE RATING OF CHIEF MUSICIAN PROVIDED FOR THE PAYMENT OF $250 CLOTHING ALLOWANCE TO ENLISTED MEN (EXCEPT BAND MEMBERS) UPON ADVANCEMENT IN RATING TO CHIEF PETTY OFFICER, AND THAT MEMBERS OF THE COAST GUARD ACADEMY BAND UPON ADVANCEMENT TO RATING OF CHIEF PETTY OFFICER WERE NOT ENTITLED TO SUCH ALLOWANCE.

THE FIFTH PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, PROVIDED:

"HEREAFTER THE PRESIDENT MAY PRESCRIBE THE QUANTITY AND KIND OF CLOTHING WHICH SHALL BE FURNISHED ANNUALLY TO ENLISTED MEN OF THE * * * COAST GUARD * * *, AND HE MAY PRESCRIBE THE AMOUNT OF A CASH ALLOWANCE TO BE PAID TO SUCH ENLISTED MEN IN ANY CASE IN WHICH CLOTHING IS NOT SO FURNISHED TO THEM.'

BY EXECUTIVE ORDER NO. 10049, DATED APRIL 2, 1949, THE PRESIDENT DELEGATED TO THE SECRETARY OF THE TREASURY AUTHORITY TO PRESCRIBE THE QUANTITY AND KIND OF CLOTHING WHICH SHALL BE FURNISHED ANNUALLY TO ENLISTED MEN OF THE COAST GUARD AND THE AMOUNT OF THE CASH ALLOWANCE TO BE PAID TO SUCH ENLISTED MEN IN ANY CASE IN WHICH CLOTHING IS NOT SO FURNISHED TO THEM. ALSO, IT PROVIDED THAT, AS FAR AS PRACTICABLE, SUCH REGULATIONS WOULD CONFORM WITH THOSE GOVERNING CLOTHING ISSUES AND CASH ALLOWANCES FOR ENLISTED MEN OF THE NAVY, AND THAT EXISTING REGULATIONS WOULD REMAIN IN EFFECT UNTIL MODIFIED, REVOKED, OR SUPERSEDED. AT THE TIME THAT ORDER WAS ISSUED THERE WAS IN EFFECT ARTICLE 242, COAST GUARD PAY AND SUPPLY INSTRUCTIONS, EFFECTIVE FROM AND AFTER JULY 1, 1948, AMENDMENT 128, AUGUST 1948, WHICH PROVIDED IN PARAGRAPH (1) (B) 1 THAT---

"FROM AND AFTER 1 JULY 1948, ENLISTED MEN ON ACTIVE DUTY SHALL BE CREDITED CASH CLOTHING ALLOWANCES UNDER CONDITIONS AND IN AMOUNTS SPECIFIED IN THIS ARTICLE.

"/B) ENLISTED MEN (EXCEPT BAND MEMBERS) UPON ADVANCEMENTS IN RATING TO CHIEF PETTY OFFICER OR STEWARD:

"1. SUBSEQUENT TO 30 DAYS FROM DATE OF ENLISTMENT OR REPORTING FOR ACTIVE DUTY ----------------------------------- $250.00"

ARTICLE 242 (4) OF THOSE REGULATIONS PROVIDED:

"/4) CONDITIONS OF NON-ENTITLEMENT, GENERAL---

"/A) THE ALLOWANCE PRESCRIBED IN SUBPAR. (1) (B) SHALL NOT BE PAYABLE TO:

"3. MEMBERS OF THE COAST GUARD ACADEMY BAND UPON ADVANCEMENT IN RATING TO CHIEF PETTY FICER.'

SUBSEQUENTLY, IN FEBRUARY 1950, THERE WAS ISSUED AMENDMENT 145, STATED TO BE EFFECTIVE FROM AND AFTER JULY 1, 1949, WHICH MADE NO MATERIAL CHANGE IN THE ABOVE-QUOTED PROVISIONS OF ARTICLE 242.

CLEARLY THE REGULATIONS CONTEMPLATED THAT COAST GUARD ACADEMY BAND MEMBERS SHALL NOT RECEIVE CASH CLOTHING ALLOWANCE WHEN ADVANCED TO THE RATING OF CHIEF PETTY OFFICER. SINCE YOUR STATUS ON SEPTEMBER 16, 1949, WHEN YOU WERE ADVANCED TO CHIEF MUSICIAN, DID NOT PLACE YOU IN A CATEGORY WHICH WOULD ENTITLE YOU TO A CASH CLOTHING ALLOWANCE, YOUR CLAIM WAS CORRECTLY DISALLOWED BY OUR SETTLEMENT DATED AUGUST 24, 1953. THAT SETTLEMENT MUST BE SUSTAINED.

AMENDMENT 145, DATED FEBRUARY 1950, TO THE COAST GUARD PAY AND SUPPLY INSTRUCTIONS AUTHORIZED A SPECIAL CASH CLOTHING ALLOWANCE OF $80 FOR DRESS UNIFORM FOR MEMBERS OF THE COAST GUARD ACADEMY BAND WHO HAD NOT PREVIOUSLY, DURING THE THEN CURRENT PERIOD OF CONTINUOUS ACTIVE DUTY, RECEIVED THE CASH CLOTHING ALLOWANCE PRESCRIBED THEREFOR. IT THUS APPEARS THAT THE COAST GUARD CONSIDERED THE SITUATION INVOLVED IN CASES SUCH AS YOURS AND AUTHORIZED A SPECIAL ALLOWANCE FOR THE MEMBERS INVOLVED. THE RECORD SHOWS THAT YOUR ACCOUNT WAS CREDITED WITH THAT SPECIAL ALLOWANCE.

YOUR CONTENTION THAT YOU SHOULD NOW RECEIVE THE ALLOWANCE BECAUSE YOU DID NOT RECEIVE IT WHEN INITIALLY ASSIGNED TO THE BAND IN 1935 IS ANSWERED BY SAYING THAT AT THAT TIME THERE WAS NO AUTHORITY OF LAW FOR THE PAYMENT OF A CASH CLOTHING ALLOWANCE TO YOU. EVEN IF THERE HAD BEEN AUTHORITY FOR PAYMENT OF SUCH CASH CLOTHING ALLOWANCE AT THAT TIME, ANY CLAIM NOW PRESENTED FOR SUCH ALLOWANCE NECESSARILY WOULD BE BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

THERE BEING NO RECORD OF THE RECEIPT IN THIS OFFICE OF ANY CLAIM FROM YOU FOR CASH CLOTHING ALLOWANCE COVERING YOUR SERVICE WITH THE BAND COMMENCING OCTOBER 10, 1935, WITHIN TEN FULL YEARS FROM THAT DATE, ANY SUCH CLAIM WOULD BE BARRED BY THE QUOTED ACT.