B-135213, MAR. 17, 1958

B-135213: Mar 17, 1958

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TO MASTER SERGEANT NARCISO FRIGILLANA: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 23. YOUR CLAIM WAS FORWARDED BY THE OFFICE OF THE CHIEF OF FINANCE. SINCE THE CLAIM WAS CONSIDERED NOT PAYABLE UNDER ANY ACT OR APPROPRIATION AVAILABLE TO THE DEPARTMENT OF THE ARMY. YOU WERE PLACED IN THE CATEGORY OF "VOLUNTEER INDEFINITE" WARRANT OFFICER. YOU STATE FURTHER THAT TWO OF THE UNIFORMS (ARMY GREENS AND BLUES) WERE NEVER WORN BECAUSE OF THE SUMMER SEASON. THAT YOUR ARMY WHITES WERE WORN ONLY TWICE. BECAUSE YOU WERE RELEASED FROM ACTIVE DUTY BEFORE YOU WERE ABLE TO PUT THE UNIFORMS TO USE. WHILE THE ACTUAL DATE OF YOUR RELEASE FROM ACTIVE DUTY IS NOT SHOWN. YOU STATE THAT YOU WERE NOTIFIED OF SUCH RELEASE ON AUGUST 26.

B-135213, MAR. 17, 1958

TO MASTER SERGEANT NARCISO FRIGILLANA:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 23, 1957, AND JANUARY 15, 1958, FORWARDED HERE THROUGH CHANNELS, CONCERNING YOUR CLAIM IN THE AMOUNT OF $308.38, REPRESENTING THE AMOUNT EXPENDED FOR UNIFORMS, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

YOUR CLAIM WAS FORWARDED BY THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, SINCE THE CLAIM WAS CONSIDERED NOT PAYABLE UNDER ANY ACT OR APPROPRIATION AVAILABLE TO THE DEPARTMENT OF THE ARMY. CLAIMS UNDER THE ACT OF MAY 29, 1945, 49 STAT. 225, AND TORT CLAIMS OF ARMY PERSONNEL AGAINST THE DEPARTMENT OF THE ARMY UNDER 28 U.S.C. 2672, MUST BE CONSIDERED AND SETTLED BY THE SECRETARY OF THE ARMY OR HIS DESIGNEE.

YOU STATE THAT IN DECEMBER 1955, YOU WERE PLACED IN THE CATEGORY OF "VOLUNTEER INDEFINITE" WARRANT OFFICER--- APPARENTLY AS A MEMBER OF THE ARMY RESERVE--- THAT THEREAFTER THE DEPARTMENT OF THE ARMY ENJOINED ALL OFFICERS, EXCEPT THOSE WHO HAD LESS THAN A YEAR TO SERVE IN THEIR CATEGORIES OTHER THAN "VOLUNTEER INDEFINITE," TO CHANGE OVER TO NEW UNIFORMS ON OCTOBER 1, 1957 (LATER EXTENDED TO AN INDEFINITE DATE), AND THAT IN ORDER TO COMPLY WITH THE REGULATIONS, YOU PURCHASED NEW UNIFORMS IN MARCH 1957. YOU STATE FURTHER THAT TWO OF THE UNIFORMS (ARMY GREENS AND BLUES) WERE NEVER WORN BECAUSE OF THE SUMMER SEASON, AND THAT YOUR ARMY WHITES WERE WORN ONLY TWICE, BECAUSE YOU WERE RELEASED FROM ACTIVE DUTY BEFORE YOU WERE ABLE TO PUT THE UNIFORMS TO USE, AND HENCE THE AMOUNT PAID FOR THE UNIFORMS BECAME A TOTAL LOSS. WHILE THE ACTUAL DATE OF YOUR RELEASE FROM ACTIVE DUTY IS NOT SHOWN, YOU STATE THAT YOU WERE NOTIFIED OF SUCH RELEASE ON AUGUST 26, 1957.

THE ACT OF APRIL 10, 1928, PROVIDES:

"THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

THE ONLY CLAIMS CONSIDERED PROPER FOR THE SUBMISSION TO THE CONGRESS UNDER THIS STATUTE ARE THOSE THAT CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY ON WHICH THE GENERAL ACCOUNTING OFFICE WOULD TAKE ACTION AND ALLOW BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THEIR ADJUSTMENT.

THERE APPEAR NO ELEMENTS OF LEGAL OR EQUITABLE LIABILITY ON THE PART OF THE GOVERNMENT, IN YOUR CASE, THAT WOULD WARRANT OUR REPORTING THE MATTER TO THE CONGRESS. THE ARMY REGULATIONS TO WHICH YOU REFER (AR 670-5) RELATING TO THE CHANGEOVER TO THE NEW UNIFORMS--- PARAGRAPH 116 OF SUCH REGULATIONS INDICATES THAT WHITE UNIFORMS ARE NOT REQUIRED OF OFFICERS STATIONED IN THE UNITED STATES--- ARE SO DESIGNED AS TO PERMIT REPLACEMENT OF THE OLIVE DRAB UNIFORMS AS THEY BECOME UNSERVICEABLE. THE EARLIEST DATE ANY OF SUCH UNIFORMS WERE REQUIRED WAS OCTOBER 1, 1957. YOU PURCHASED YOUR NEW UNIFORMS IN MARCH 1957 BEFORE YOU HAD ANY NEED FOR THEM, IT APPEARING THAT YOU WORE ONLY ONE OF THEM TWICE. APPARENTLY, YOUR OLD UNIFORMS WERE STILL IN A SERVICEABLE CONDITION AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY.

PROVISION IS MADE IN SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492, FOR THE PAYMENT OF APPROPRIATE ALLOWANCES FOR THE INITIAL PURCHASE OF UNIFORMS AND THEIR MAINTENANCE. TO THE EXTENT THAT SUCH ALLOWANCES DO NOT COVER THE ACTUAL COST OF UNIFORMS, INCLUDING THOSE PURCHASED BY A RESERVE OFFICER ON EXTENDED ACTIVE DUTY, SHORTLY BEFORE HE IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY, THE OFFICER CONCERNED MUST BEAR THE ADDITIONAL COST INVOLVED. WHILE THE CONGRESS HAS ENACTED LEGISLATION TO ENCOURAGE MEMBERS OF RESERVE COMPONENTS TO MAKE A CAREER OF ACTIVE MILITARY SERVICE, THE ONLY ALLOWANCE WHICH IS PAYABLE TO CAREER RESERVISTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY IS THE READJUSTMENT PAY PROVIDED IN THE ACT OF JULY 9, 1956, 70 STAT. 517. FOLLOWS THAT YOUR CLAIM IS NOT SUCH AS WOULD WARRANT OUR REPORTING IT TO THE CONGRESS UNDER THE 1928 ACT.