B-140056, SEPTEMBER 8, 1959, 39 COMP. GEN. 170

B-140056: Sep 8, 1959

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WHOSE RECORDS HAVE BEEN CORRECTED UNDER 10 U.S.C. 1552. TO PLACE HIM IN AN ACTIVE DUTY STATUS FOR A PERIOD WHEN HE WAS NOT IN THE SERVICE. COULD NOT HAVE BEEN ISSUED CONTEMPORANEOUS ORDERS AUTHORIZING MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE IN KIND FOR THE PERIOD DOES NOT AFFORD A BASIS FOR DENIAL OF SUCH ALLOWANCES. SINCE THE MEMBER COULD NOT HAVE BEEN FURNISHED QUARTERS IN KIND DURING THE PERIOD PAYMENT OF A QUARTERS ALLOWANCE MAY BE MADE AND WHILE HE MAY NOT BE CONSIDERED IN A SEPARATE RATIONS STATUS FOR THE PERIOD WHEN RATIONS IN KIND COULD NOT LEGALLY HAVE BEEN FURNISHED. THE MEMBER IS ENTITLED TO A DAILY SUBSISTENCE ALLOWANCE AT THE RATE PRESCRIBED FOR ENLISTED MEMBERS WHEN RATIONS ARE NOT FURNISHED.

B-140056, SEPTEMBER 8, 1959, 39 COMP. GEN. 170

MILITARY PERSONNEL - RECORD CORRECTION - ENLISTED PERSONNEL - QUARTERS AND SUBSISTENCE ALLOWANCES - ENTITLEMENT WITHOUT ORDERS THE FACT THAT AN ENLISTED MEMBER OF THE UNIFORMED SERVICES, WHOSE RECORDS HAVE BEEN CORRECTED UNDER 10 U.S.C. 1552, TO PLACE HIM IN AN ACTIVE DUTY STATUS FOR A PERIOD WHEN HE WAS NOT IN THE SERVICE, COULD NOT HAVE BEEN ISSUED CONTEMPORANEOUS ORDERS AUTHORIZING MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE IN KIND FOR THE PERIOD DOES NOT AFFORD A BASIS FOR DENIAL OF SUCH ALLOWANCES; THEREFORE, SINCE THE MEMBER COULD NOT HAVE BEEN FURNISHED QUARTERS IN KIND DURING THE PERIOD PAYMENT OF A QUARTERS ALLOWANCE MAY BE MADE AND WHILE HE MAY NOT BE CONSIDERED IN A SEPARATE RATIONS STATUS FOR THE PERIOD WHEN RATIONS IN KIND COULD NOT LEGALLY HAVE BEEN FURNISHED, THE MEMBER IS ENTITLED TO A DAILY SUBSISTENCE ALLOWANCE AT THE RATE PRESCRIBED FOR ENLISTED MEMBERS WHEN RATIONS ARE NOT FURNISHED.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 8, 1959:

REFERENCE IS MADE TO FC USA FORM 10-1232, DATED MAY 25, 1959, RECEIVED FROM THE SETTLEMENTS OPERATIONS BRANCH, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 49, INDIANA, TRANSMITTING TO THE CLAIMS DIVISION OF THIS OFFICE FOR SETTLEMENT AS A CLAIM A VOUCHER WITH SUPPORTING PAPERS STATED IN FAVOR OF LOPE D. LUGO, RA 6 674 783, COMPANY B, USATC CARIBBEAN, FORT BUCHANAN, PUERTO RICO, FOR MONETARY BENEFITS RESULTING FROM THE CORRECTION OF HIS MILITARY RECORDS UNDER AUTHORITY OF 10 U.S.C. 1552. THE CLAIM WAS FORWARDED HERE FOR SETTLEMENT BECAUSE OF DOUBT AS TO THE LEGALITY OF PAYMENT OF QUARTERS AND SUBSISTENCE ALLOWANCES, WHICH IT IS STATED,"ARE NORMALLY ONLY PAYABLE WHEN AUTHORIZED BY COMPETENT ORDERS.'

THE CORRECTION OF RECORDS STATUTE (10 U.S.C. 1552) CONTEMPLATES THAT PAYMENT OF AMOUNTS FOUND DUE PURSUANT TO THE CORRECTION OF A MILITARY OR NAVAL RECORD THEREUNDER WILL BE MADE, GENERALLY, BY THE DEPARTMENT CONCERNED RATHER THAN ON THE BASIS OF SETTLEMENTS ISSUED BY THIS OFFICE. HENCE, AS STATED IN DECISION OF JULY 30, 1952, 32 COMP. GEN. 61, 63,"IN ANY CASE IN WHICH DOUBT EXISTS AS TO THE LEGALITY OF A PROPOSED PAYMENT, IT WOULD APPEAR THAT SUCH CASE SHOULD BE SUBMITTED HERE FOR ADVANCE DECISION RATHER THAN TRANSMITTED FOR SETTLEMENT OF A CLAIM.' COMPARE 34 COMP. GEN. 7. ACCORDINGLY, THE INSTANT MATTER WILL BE CONSIDERED AS A REQUEST FOR AN ADVANCE DECISION.

IT APPEARS THAT LOPE D. LUGO REENLISTED IN THE REGULAR ARMY ON NOVEMBER 23, 1945, FOR A TERM OF THREE YEARS. HE WAS DISCHARGED UNDESIRABLY ON SEPTEMBER 1, 1948. IN 1950, AN HONORABLE DISCHARGE CERTIFICATE EFFECTIVE AS OF SEPTEMBER 1, 1948, WAS ISSUED TO THE SOLDIER PURSUANT TO THE APPROVED FINDINGS AND CONCLUSIONS OF THE ARMY DISCHARGE REVIEW BOARD ESTABLISHED UNDER AUTHORITY OF SECTION 301, ACT OF JUNE 22, 1944, 58 STAT. 286, 38 U.S.C. 693H. THEREAFTER, IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 2100701, DATED JANUARY 21, 1953, THERE WAS CERTIFIED DUE HIM THE SUM OF $513, REPRESENTING "PAY, SUBSISTENCE ALLOWANCE, AND QUARTERS ALLOWANCE, FOR 60 DAYS' LUMP SUM TERMINAL LEAVE DETERMINED TO BE DUE BY THE DEPARTMENT OF THE ARMY, INCIDENT TO SERVICE ENDING SEPTEMBER 1, 1948, AS MASTER SERGEANT, UNITED STATES ARMY, SERVICE NO. RA 6, 674, 783. (CASE M-72698.)"

THE SUBJECT MAN AGAIN ENLISTED IN THE REGULAR ARMY ON JANUARY 16, 1950. ON JANUARY 17, 1956, HE REENLISTED AND IT APPEARS THAT HE IS CURRENTLY SERVING IN THE LATTER ENLISTMENT PERIOD. HIS MILITARY RECORDS WERE CORRECTED IN 1958, UNDER AUTHORITY OF 10 U.S.C. 1552, PURSUANT TO MEMORANDUM SIGNED BY THE ASSISTANT SECRETARY OF THE ARMY WHICH IS, IN PART, AS FOLLOWS:

1. THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF LOPE D. LUGO BE CORRECTED TO SHOW:

A. THAT HIS HONORABLE DISCHARGE ON 1 SEPTEMBER 1948 WAS, AND IS, VOID AND OF NO FORCE OR EFFECT;

B. THAT HE WAS HONORABLY DISCHARGED ON 22 NOVEMBER 1948;

C. THAT HE WAS REENLISTED IN THE GRADE OF MASTER SERGEANT ON 23 NOVEMBER 1948;

D. THAT HE WAS HONORABLY DISCHARGED ON 15 JANUARY 1950.

2. THAT THE DEPARTMENT OF THE ARMY ISSUE TO LOPE D. LUGO, A CERTIFICATE OF HONORABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES, DATED 22 NOVEMBER 1948, IN LIEU OF THE HONORABLE DISCHARGE, DATED 1 SEPTEMBER 1948, NOW HELD BY HIM, AND ALSO A CERTIFICATE OF HONORABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES, DATED 15 JANUARY 1950.

3. THAT THE DEPARTMENT OF THE ARMY PAY TO LOPE D. LUGO, OR OTHER PROPER PERSON OR PERSONS, ALL MONIES FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF RECORD.

THE CORRECTIONS WHICH WERE MADE IN HIS MILITARY RECORDS HAVE THE EFFECT OF PLACING THE SOLDIER IN AN ACTIVE DUTY STATUS DURING THE PERIOD FROM SEPTEMBER 2, 1948, TO JANUARY 15, 1950, INCLUSIVE, AND THE VOUCHER STATED IN HIS FAVOR INCLUDES A MONEY ALLOWANCE FOR QUARTERS AND A SUBSISTENCE ALLOWANCE (SEPARATE RATIONS) FOR THE ENTIRE PERIOD. IT IS STATED THAT PAYMENT OF THE QUARTERS AND SUBSISTENCE (SEPARATE RATIONS) ALLOWANCES IS DEEMED OF DOUBTFUL LEGALITY, SINCE NORMALLY THE PAYMENT OF SUCH ALLOWANCES MUST BE AUTHORIZED IN ORDERS ISSUED CONTEMPORANEOUSLY BY COMPETENT AUTHORITY. SUCH ORDERS ARE, UNDERSTANDABLY, LACKING IN THE CIRCUMSTANCES OF THIS CASE.

SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 37 U.S.C. 110, IN PERTINENT PART PROVIDED---

TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $5 PER DAY.

SECTION 10 FURTHER PROVIDED THAT "* * * RATIONS FOR ENLISTED MEN MAY BE COMMUTED AS NOW AUTHORIZED BY LAW.' SEE, ALSO, SECTIONS 301 AND 302 (RELATING TO BASIC ALLOWANCES FOR SUBSISTENCE AND QUARTERS, RESPECTIVELY), CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 252, WHICH BECAME EFFECTIVE OCTOBER 1, 1949. PARAGRAPH 9, ARMY REGULATIONS 35-4520 ( DECEMBER 3, 1946, AND JANUARY 28, 1949), PROVIDED THAT "ENLISTED PERSONNEL WHO ARE AUTHORIZED BY COMPETENT AUTHORITY TO MESS SEPARATELY ARE ENTITLED TO THE COMMUTATION VALUE OF THE RATION * * *" AND IN PARAGRAPH 7, OF THE SAME REGULATIONS, IT WAS PROVIDED THAT "MONETARY ALLOWANCES FOR QUARTERS OR SUBSISTENCE MAY NOT BE PAID IN THE ABSENCE OF AN AUTHORIZATION FOR SUCH PAYMENT, ISSUED CONTEMPORANEOUSLY, AFTER DETERMINATION THAT MESSING FACILITIES OR QUARTERS ARE NOT AVAILABLE.'

THE REQUIREMENT OF A CONTEMPORANEOUS AUTHORIZATION AS PRESCRIBED IN PARAGRAPH 7, ARMY REGULATIONS 35-4520, REFLECTS THE LONG AND WELL ESTABLISHED RULE STATED IN THE DECISION OF AUGUST 23, 1928, 8 COMP. GEN. 82. THAT RULE IS BASED ON THE VIEW THAT THE LAW "* * * DOES NOT AUTHORIZE PAYMENT OF THE ALLOWANCES WHEN IN FACT SUBSISTENCE AND QUARTERS ARE AVAILABLE AND CAN BE FURNISHED IN KIND.' IT WAS FURTHER STATED IN THE DECISION OF AUGUST 23, 1928, THAT---

THE VERY NATURE OF THE ENLISTED MAN'S STATUS REQUIRES THAT HE BE FED AND QUARTERED, AND IT IS THE UNIVERSAL CUSTOM IN ALL MILITARY FORCES TO PROVIDE FOR THEIR SUBSISTENCE AND SHELTER. THE ENLISTED MAN'S NORMAL SITUATION THEREFORE SECURES FOR HIM FOOD AND SHELTER, AND THE DETERMINATION BY THE MILITARY OR NAVAL AUTHORITIES THAT IN A GIVEN CASE RATIONS OR QUARTERS WERE AVAILABLE IS, AND, FROM THE VERY NATURE OF THE SITUATION NORMALLY MUST BE, FINAL AND CONCLUSIVE. THE FINALITY OF THE FINDING BY THE SERVICE CONCERNED IN SUCH A SITUATION MAKES POSSIBLE THE FORMULATION OF A SIMPLE RULE FOR APPLICATION IN THE SETTLEMENT OF ACCOUNTS OR CLAIMS, WHICH IS, THAT IN NO CASE MAY THE ALLOWANCE FOR SUBSISTENCE OR QUARTERS BE PAID, UNLESS THE PAYMENT IS AUTHORIZED BY THE SERVICE IN ACCORD WITH REGULATIONS AND CONTEMPORANEOUSLY WITH THE PERIOD COVERED.

IN VIEW OF THE CORRECTION MADE IN LUGO'S MILITARY RECORDS UNDER AUTHORITY OF THE PROVISIONS OF 10 U.S.C. 1552, HE IS REQUIRED TO BE CONSIDERED AS HAVING BEEN IN THE ACTIVE MILITARY SERVICE DURING THE PERIOD FROM SEPTEMBER 2, 1948, TO JANUARY 15, 1950, INCLUSIVE, AND, THEREFORE, HE IS ENTITLED TO THE ACTIVE-DUTY PAY AND ALLOWANCES, INCLUDING QUARTERS AND SUBSISTENCE ALLOWANCES, PERTAINING TO THAT STATUS.

IT IS OBVIOUS THAT GOVERNMENT QUARTERS OR MESSING FACILITIES WERE NOT IN FACT FURNISHED OR AVAILABLE TO LUGO DURING THE PERIOD STATED, AND IT SEEMS EQUALLY OBVIOUS THAT, IN THE CIRCUMSTANCES, NO CONTEMPORANEOUS ORDERS WERE ISSUED AUTHORIZING THE PAYMENT TO HIM OF SUCH ALLOWANCES. IN THE SITUATION THUS PRESENTED, DENIAL OF QUARTERS AND SUBSISTENCE ALLOWANCES DUE TO THE LACK OF CONTEMPORANEOUS ORDERS WOULD SEEM TO BE INCONSISTENT WITH THE PURPOSES OF THE CORRECTION OF RECORDS STATUTE--- " TO CORRECT AN ERROR OR REMOVE AN INJUSTICE"--- UNDER WHICH LUGO'S MILITARY RECORD WAS CORRECTED THEREBY PLACING HIM IN AN ACTIVE DUTY STATUS DURING THE PERIOD SEPTEMBER 2, 1948, TO JANUARY 15, 1950, INCLUSIVE. FURTHERMORE, SINCE NEITHER GOVERNMENT QUARTERS NOR MESSING FACILITIES LEGALLY COULD HAVE BEEN FURNISHED IN KIND (EVEN IF LUGO HAD MADE APPLICATION THEREFOR) DURING THE PERIOD INVOLVED, THE RULE STATED IN THE DECISION OF AUGUST 23, 1928, PROPERLY IS NOT FOR APPLICATION. ACCORDINGLY, THE CLAIMANT, LOPE D. LUGO IS ENTITLED TO A QUARTERS ALLOWANCE IN HIS OWN RIGHT. SINCE, AS ABOVE STATED, HE COULD NOT LEGALLY HAVE BEEN FURNISHED WITH ANY RATIONS IN KIND DURING THE PERIOD SEPTEMBER 2, 1948, TO JANUARY 15, 1950, NO PROPER BASIS IS PERCEIVED TO CONSIDER HIM AS IN A "SEPARATE RATIONS" STATUS DURING SUCH PERIOD. HENCE, IT IS OUR VIEW THAT HE IS ENTITLED ALSO TO A DAILY SUBSISTENCE ALLOWANCE AT THE RATE PRESCRIBED BY LAW FOR AN ENLISTED PERSON WHEN RATIONS IN KIND ARE NOT FURNISHED.

THE VOUCHER STATED IN FAVOR OF LOPE D. LUGO INCLUDES A LUMP-SUM LEAVE SETTLEMENT IN THE TOTAL AMOUNT OF $513, COVERING 60 DAYS' ACTIVE DUTY PAY, QUARTERS AND RATIONS AS OF NOVEMBER 22, 1948 (THE "CORRECTED" DATE OF HIS DISCHARGE), PAYABLE PURSUANT TO THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 31-A-39. HOWEVER, AS PREVIOUSLY POINTED OUT, THE AMOUNT OF $513 WAS CERTIFIED DUE THE CLAIMANT IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 2100701, DATED JANUARY 21, 1953, REPRESENTING A LUMP-SUM LEAVE SETTLEMENT THEREIN FOUND DUE HIM AS OF SEPTEMBER 1, 1948. SINCE THE CLAIMANT HAS RECEIVED PAYMENT OF A LUMP-SUM LEAVE SETTLEMENT IN THE TOTAL AMOUNT TO WHICH HE IS ENTITLED, THE CREDIT ITEMS TOTALING $513 FOR LUMP-SUM LEAVE SHOULD BE DELETED FROM THE VOUCHER.

THE CLAIMANT IS CREDITED ON THE VOUCHER WITH PAY AS A MASTER SERGEANT WITH OVER 14 YEARS' SERVICE AT THE RATE OF $242.55 PER MONTH FOR THE PERIOD OCTOBER 1, 1949, TO JANUARY 15, 1950, INCLUSIVE, IN THE TOTAL AMOUNT OF $848.03. THE CORRECT AMOUNT FOR THIS ITEM APPEARS TO BE $848.93. ALSO, THE CLAIMANT IS CREDITED WITH THE SUM OF $225.16, REPRESENTING DIFFERENCE IN THE PAY OF A MASTER SERGEANT WITH OVER 18 YEARS'S SERVICE ($304.20 PER MONTH) AND WITH OVER 22 YEARS' SERVICE ($319.80 PER MONTH) FOR THE PERIOD APRIL 30, 1956, TO JULY 13, 1957, INCLUSIVE. THE CORRECT COMPUTATION FOR THIS ITEM APPEARS TO BE $225.68.

IF THE SUBMITTED VOUCHER, RETURNED HEREWITH WITH SUPPORTING PAPERS, IS AMENDED TO PROVIDE FOR PAYMENT ON THE BASIS INDICATED ABOVE, PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT.