B-134560, DEC. 27, 1957

B-134560: Dec 27, 1957

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OBER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18. RESUBMITTING YOUR CLAIM FOR THE SUM OF $56.16 WHICH WAS PAID YOU ON VOUCHER NO. 26228 IN THE APRIL 1956 ACCOUNTS OF MAJOR L. WITH YOUR LETTER THERE WAS ENCLOSED A CERTIFICATE SIGNED BY LIEUTENANT COLONEL JOHN W. WHEREIN REFERENCE WAS MADE TO SPECIAL ORDERS NO. 42. BY WHICH YOU AND OTHER NAMED OFFICERS WERE RELIEVED FROM ASSIGNMENT TO THE 2131ST USAR. YOU WERE ASSIGNED TO THE ALTOONA USAR SCHOOL EFFECTIVE FEBRUARY 1. WAS 87.5 PERCENT FOR THE QUARTER. ENTITLED YOU TO PAYMENT FOR THE MONTH OF FEBRUARY 1956 DURING WHICH IT APPEARS YOU WERE IN ASSIGNED STATUS. THE UNDERSIGNED WAS ASSIGNED TO PAY STATUS PER PARAGRAPH 60. PAYMENT WAS MADE FOR ATTENDING TRAINING ASSEMBLIES ON 6.

B-134560, DEC. 27, 1957

TO LIEUTENANT COLONEL PETER S. OBER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18, 1957, RESUBMITTING YOUR CLAIM FOR THE SUM OF $56.16 WHICH WAS PAID YOU ON VOUCHER NO. 26228 IN THE APRIL 1956 ACCOUNTS OF MAJOR L. R. GRAVES, F.C., AS INACTIVE DUTY TRAINING PAY FOR ATTENDING ASSEMBLIES ON FEBRUARY 6, 20, AND 27, 1956, AND THEREAFTER DEDUCTED ON VOUCHER NO. 25142 IN THE APRIL 1957 ACCOUNTS OF MAJOR GRAVES.

WITH YOUR LETTER THERE WAS ENCLOSED A CERTIFICATE SIGNED BY LIEUTENANT COLONEL JOHN W. BLACKBURN, INF-USAR, BRANCH CHIEF, 2073D-3 ARASU ALTOONA USAR SCHOOL, WHEREIN REFERENCE WAS MADE TO SPECIAL ORDERS NO. 42, DATED MARCH 1, 1956, HEADQUARTERS, PENNSYLVANIA MILITARY DISTRICT, INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA, BY WHICH YOU AND OTHER NAMED OFFICERS WERE RELIEVED FROM ASSIGNMENT TO THE 2131ST USAR, CONTROL GROUP (REINF) PENNSYLVANIA, AT INDIANTOWN CAP MILITARY RESERVATION, AND ASSIGNED AS INDICATED THEREIN. YOU WERE ASSIGNED TO THE ALTOONA USAR SCHOOL EFFECTIVE FEBRUARY 1, 1956. IN CONNECTION WITH SUCH ASSIGNMENT, COLONEL BLACKBURN CERTIFIED THAT YOU ATTENDED UNIT TRAINING ASSEMBLIES ON DECEMBER 5, 12, AND 19, 1955; JANUARY 9, 23, AND 30, AND FEBRUARY 6, 20, AND 27, 1956; THAT AS AN ASSIGNED STUDENT YOU ATTENDED 100 PERCENT OF THE BRANCH TRAINING ASSEMBLIES IN FEBRUARY 1956; AND THAT YOUR OVERALL ATTENDANCE, BOTH AS AN ASSIGNED STUDENT AND ON AN ATTACHED STATUS, WAS 87.5 PERCENT FOR THE QUARTER.

YOUR CLAIM FOR REFUND IN THIS CASE APPEARS TO BE BASED UPON THE BELIEF THAT YOUR ATTENDANCE AT THE TRAINING ASSEMBLIES DURING THE MONTHS OF DECEMBER 1955, AND JANUARY AND FEBRUARY 1956, CERTIFIED BY COLONEL BLACKBURN AS 87.5 PERCENT FOR THE QUARTER, ENTITLED YOU TO PAYMENT FOR THE MONTH OF FEBRUARY 1956 DURING WHICH IT APPEARS YOU WERE IN ASSIGNED STATUS. IN YOUR LETTER OF JUNE 10, 1957, YOU MADE CERTAIN STATEMENTS OF FACT WHICH APPEAR TO BE FOR CONSIDERATION IN THE DISPOSITION OF YOUR CLAIM. AMONG OTHER THINGS, YOU STATED THAT:

"3. THE UNDERSIGNED WAS ASSIGNED TO PAY STATUS PER PARAGRAPH 60, S.O. 42, HEADQUARTERS, PENNSYLVANIA MILITARY DISTRICT, INDIANTOWN GAP MILITARY RESERVATION, PENNSYLVANIA, DATED 1 MARCH 1956, AFTER BEING INFORMALLY ENROLLED PRIOR TO THAT PERIOD.

"4. DEDUCTION IN THE AMOUNT OF $56.16 COVERED AMOUNT OF PAY RECEIVED FOR QUARTERLY PAYROLL OF DECEMBER 1955, JANUARY AND FEBRUARY 1956. PAYMENT WAS MADE FOR ATTENDING TRAINING ASSEMBLIES ON 6, 20 AND 27 FEBRUARY 1956, WHICH WERE THE ONLY PAID ASSEMBLY PERIODS OCCURRING AFTER SPECIAL ORDERS ISSUED ASSIGNING THE UNDERSIGNED TO PAY STATUS.'

HEADQUARTERS, PENNSYLVANIA MILITARY DISTRICT, GAVE CONSIDERATION TO YOUR CLAIM AND RECOMMENDED AGAINST ALLOWANCE THEREOF ON THE GROUND THAT EXISTING REGULATIONS PROVIDED FOR PAYMENT FOR ATTENDING ASSEMBLIES IN AN ASSIGNED STUDENT CAPACITY ONLY TO THOSE STUDENTS WHO ATTENDED 75 PERCENT OF THE REGULARLY SCHEDULED ASSEMBLIES HELD IN THE PAYROLL QUARTER. THE PAYROLL QUARTER INVOLVED IN THIS CASE WAS DECEMBER 1955, AND JANUARY AND FEBRUARY 1956.

PARAGRAPH 6B (4), CHANGE 3, AR 140-250, DATED DECEMBER 8, 1954, PROVIDES, IN PART, AS FOLLOWS:

"REINFORCEMENTS ASSIGNED AS USAR SCHOOL STUDENTS MAY RECEIVE, SUBJECT TO THE AVAILABILITY OF FUNDS, INACTIVE DUTY TRAINING PAY FOR THAT PARTICIPATION WHEN THEIR ATTENDANCE AT REGULARLY SCHEDULED ASSEMBLIES DURING ANY QUARTER EQUALS OR EXCEEDS 75 PERCENT OF THE REGULARLY SCHEDULED ASSEMBLIES FOR THAT QUARTER. * * *"

THE QUOTED REGULATIONS ARE APPLICABLE TO ASSIGNED STUDENTS AND THE WORDS "THEIR ATTENDANCE" OBVIOUSLY HAVE REFERENCE TO ATTENDANCE AS STUDENTS AT ASSEMBLIES IN AN ASSIGNED CAPACITY. YOU WERE NOT ASSIGNED TO THE SCHOOL AT ALTOONA AS A STUDENT DURING DECEMBER 1955, AND JANUARY 1956, AND YOUR PRESENCE AT THE SCHOOL'S TRAINING ACTIVITIES DURING THOSE MONTHS IN AN INFORMAL NON-PAY STATUS WHILE ASSIGNED TO A CONTROL GROUP AT ANOTHER PLACE, DOES NOT CONSTITUTE ATTENDANCE WHICH MAY BE INCLUDED IN THE ATTENDANCE REQUIRED IN ORDER TO BE ENTITLED TO PAYMENT OF INACTIVE DUTY TRAINING PAY. IN OTHER WORDS, ONLY ATTENDANCE PURSUANT TO PROPER ORDERS MAY BE CONSIDERED AS ATTENDANCE WITHIN THE LANGUAGE AND INTENT OF THE REGULATIONS.

ACCORDINGLY, THE ACTION TAKEN IN OUR CLAIMS DIVISION SETTLEMENT OF OCTOBER 29, 1957, DENYING YOUR CLAIM, IS SUSTAINED.