B-135338, OCT. 31, 1961

B-135338: Oct 31, 1961

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YOUR CLAIM DISALLOWED FOR THE REASON THAT A SEARCH OF THE RECORDS FAILED TO INDICATE THAT THE SERVICES PERFORMED BY YOU WERE PURSUANT TO A VALID APPOINTMENT MADE BY COMPETENT AUTHORITY. WAS NOT THE CONTROLLING REASON FOR OUR DISALLOWANCE OF YOUR CLAIM. YOU WERE LIBERATED FROM A SLAVE LABOR CAMP AT WEIMAR. SINCE YOU WERE UNABLE TO FURNISH ANY EVIDENCE OF AMERICAN CITIZENSHIP. YOU WERE ADVISED THAT YOU COULD NOT BE ENLISTED. AT YOUR SUGGESTION YOU WERE PERMITTED TO REMAIN WITH THAT ORGANIZATION AND ISSUED CLOTHING. IT IS INDICATED THAT YOU PERFORMED SERVICES AS AN INTERPRETER AND AS A COMBAT SOLDIER. THE FOREGOING IS BASED ON A STATEMENT SIGNED BY LT.COL. WHO CONCLUDED BY STATING THAT IT WAS HIS BELIEF YOU SHOULD BE CREDITED WITH COMBAT SERVICE DURING THE PERIOD INVOLVED.

B-135338, OCT. 31, 1961

TO MR. RICHARD BRUNTROP:

YOUR LETTER OF SEPTEMBER 29, 1961, REQUESTS FURTHER REVIEW OF OUR SETTLEMENT OF NOVEMBER 20, 1957, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR SERVICES RENDERED TO THE ARMY DURING THE PERIOD APRIL 15 THROUGH SEPTEMBER 3, 1945. YOUR CLAIM DISALLOWED FOR THE REASON THAT A SEARCH OF THE RECORDS FAILED TO INDICATE THAT THE SERVICES PERFORMED BY YOU WERE PURSUANT TO A VALID APPOINTMENT MADE BY COMPETENT AUTHORITY. THE REFERENCE MADE IN OUR LETTER B-135338, MARCH 4, 1958, TO THE STATUTE OF LIMITATIONS, 31 U.S.C. 71A, WAS NOT THE CONTROLLING REASON FOR OUR DISALLOWANCE OF YOUR CLAIM.

A REVIEW OF THE FACTUAL SITUATION INVOLVED INDICATES THAT ON APRIL 14, 1945, YOU WERE LIBERATED FROM A SLAVE LABOR CAMP AT WEIMAR, GERMANY, BY THE UNITED STATES ARMY'S FIFTH RANGER INFANTRY BATTALION. YOU ATTEMPTED TO ENLIST AT THAT TIME IN THE FIFTH RANGER INFANTRY BATTALION. SINCE YOU WERE UNABLE TO FURNISH ANY EVIDENCE OF AMERICAN CITIZENSHIP, YOU WERE ADVISED THAT YOU COULD NOT BE ENLISTED. HOWEVER, AT YOUR SUGGESTION YOU WERE PERMITTED TO REMAIN WITH THAT ORGANIZATION AND ISSUED CLOTHING, EQUIPMENT AND ARMS. YOU REMAINED WITH THE BATTALION FROM APRIL 15 TO SEPTEMBER 3, 1945. IT IS INDICATED THAT YOU PERFORMED SERVICES AS AN INTERPRETER AND AS A COMBAT SOLDIER. THE FOREGOING IS BASED ON A STATEMENT SIGNED BY LT.COL. RICHARD P. SULLIVAN, DATED OCTOBER 24, 1947, WHO CONCLUDED BY STATING THAT IT WAS HIS BELIEF YOU SHOULD BE CREDITED WITH COMBAT SERVICE DURING THE PERIOD INVOLVED.

YOU NOW SAY THAT YOU WERE FORCED,"INTO AN ARMY STATUS; " HOWEVER, IN AN AFFIDAVIT EXECUTED BY YOU ON SEPTEMBER 4, 1947, YOU SAY THAT COLONEL SULLIVAN DECIDED YOU COULD SERVE WITH HIS ORGANIZATION UNTIL SUCH TIME AS YOU COULD ESTABLISH YOUR CITIZENSHIP. ALSO, THERE IS NOTHING IN COLONEL SULLIVAN'S STATEMENT TO INDICATE THAT YOUR SERVICES WERE OTHER THAN VOLUNTARY. FURTHERMORE, THE RECORDS BEFORE OUR OFFICE FAIL TO SHOW THAT ANY PART OF YOUR SERVICE DURING THE PERIOD COVERED BY YOUR CLAIM WAS PURSUANT TO AN ENLISTMENT IN THE UNITED STATES ARMY OR PURSUANT TO A CIVILIAN APPOINTMENT MADE BY AN OFFICIAL HAVING AUTHORITY TO MAKE SUCH APPOINTMENTS. IN THAT REGARD IT HAS BEEN HELD THAT EVEN THOUGH SERVICES ARE RENDERED ANOTHER UPON REQUEST, NO OBLIGATION TO PAY WILL BE IMPLIED IF THE CIRCUMSTANCES REPEL INFERENCE THAT COMPENSATION WAS INTENDED. SEE CARLSON V. KRANTZ, 214 N.W. 928.

IN VIEW OF THE ABOVE COMMENTS, OUR SETTLEMENT OF NOVEMBER 20, 1957, DISALLOWING YOUR CLAIM, IS SUSTAINED.