B-143050, AUG. 5, 1960

B-143050: Aug 5, 1960

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CUMMINGS: REFERENCE IS MADE TO YOUR LETTER DATED MAY 4. YOU STATED THAT YOU COULD FIND NO SUBSTANTIATING EVIDENCE AMONG YOUR PERSONAL RECORDS AND THAT YOU WERE UNDER THE IMPRESSION THAT YOU WERE IN THE RESERVE FROM THE TIME YOU STARTED PROCESSING FOR A DIRECT COMMISSION IN APRIL 1949. YOU ADVISED THAT YOU WERE FORWARDING THROUGH CHANNELS A CHANGE TO WD AGO FORM 66. WAS ISSUED. SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT AN OVERPAYMENT EXISTED IN YOUR PAY ACCOUNT AS THE RESULT OF THE ERRONEOUS INCLUSION OF MILITARY SERVICE FOR LONGEVITY PAY PURPOSES OF ENLISTED RESERVE SERVICE FOR THE PERIOD APRIL 9. WERE ENTERED IN YOUR MILITARY PAY RECORD OPENED JANUARY 1. IT APPEARS THAT SINCE THAT DATE NO PROCEEDINGS HAVE BEEN TAKEN TO COLLECT THE INVOLVED AMOUNT FROM CURRENT PAY.

B-143050, AUG. 5, 1960

TO CAPTAIN LAWRENCE C. CUMMINGS:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 4, 1960, CONCERNING YOUR INDEBTEDNESS TO THE GOVERNMENT IN THE AMOUNT OF $791.25 ON ACCOUNT OF OVERPAYMENT TO YOU OF PAY DURING THE PERIOD JUNE 16, 1952, TO JUNE 30, 1957.

THE COPIES OF PAPERS AND DOCUMENTS PREVIOUSLY SUBMITTED BY YOU AND OTHER EVIDENCE OF RECORD DISCLOSES THAT ON JULY 17, 1956, THE AIR ADJUTANT GENERAL, HEADQUARTERS, UNITED STATES AIR FORCE, WASHINGTON, D.C., ADVISED YOU THAT A REVIEW OF THE MASTER PERSONNEL RECORDS DID NOT INDICATE THAT YOU HAD UNITED STATES ARMY RESERVE SERVICE FOR THE PERIOD APRIL 9, 1949, TO JANUARY 14, 1951, AND REQUESTED YOU TO FORWARD EVIDENCE SUBSTANTIATING SUCH SERVICE CLAIMED BY YOU. BY LETTER DATED AUGUST 8, 1956, YOU STATED THAT YOU COULD FIND NO SUBSTANTIATING EVIDENCE AMONG YOUR PERSONAL RECORDS AND THAT YOU WERE UNDER THE IMPRESSION THAT YOU WERE IN THE RESERVE FROM THE TIME YOU STARTED PROCESSING FOR A DIRECT COMMISSION IN APRIL 1949, UNTIL JANUARY 14, (19), 1951, WHEN YOU ACCEPTED A COMMISSION IN THE AIR FORCE RESERVE. IN ADDITION, YOU ADVISED THAT YOU WERE FORWARDING THROUGH CHANNELS A CHANGE TO WD AGO FORM 66, NOTING A CHANGE TO ITEM 28, CHRONOLOGICAL RECORD OF MILITARY SERVICE AND SENDING A COPY OF YOUR LETTER TO THE FINANCE OFFICER, TWENTIETH AIR DIVISION, SO THAT YOUR PAY RECORDS COULD BE ADJUSTED, AND YOU REQUESTED THAT YOU BE NOTIFIED OF THE AMOUNT OF THE OVERPAYMENT IN ORDER TO MAKE IMMEDIATE REIMBURSEMENT. IN VIEW OF YOUR LETTER OF AUGUST 8, 1956, DD FORM 13,"STATEMENT OF SERVICE," DATED SEPTEMBER 14, 1956, WAS ISSUED, WHICH SHOWED PERIOD OF ENLISTED SERVICE AS JUNE 30, 1943, TO APRIL 8, 1949, AND COMMISSIONED SERVICE AS COMMENCING JANUARY 19, 1951. ON OCTOBER 3, 1956, YOU EXECUTED AF FORM 1299, "OFFICER'S CERTIFICATE OF STATEMENT OF SERVICE," LISTING RESERVE SERVICE (ACTIVE AND INACTIVE) FOR THE PERIODS JUNE 30, 1943, TO APRIL 9, 1949, AND JANUARY 14, 1951, TO JUNE 15, 1952, AND ACTIVE SERVICE COMMENCING JUNE 15, 1952.

SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT AN OVERPAYMENT EXISTED IN YOUR PAY ACCOUNT AS THE RESULT OF THE ERRONEOUS INCLUSION OF MILITARY SERVICE FOR LONGEVITY PAY PURPOSES OF ENLISTED RESERVE SERVICE FOR THE PERIOD APRIL 9, 1949, TO JANUARY 14, 1951, THE MILITARY PAY DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, UNDER DATE OF FEBRUARY 11, 1957, PREPARED DD FORM 139,"PAY ADJUSTMENT NOTICE," AND THE ITEMS COMPRISING THE OVERPAYMENT, AGGREGATING $791.25, WERE ENTERED IN YOUR MILITARY PAY RECORD OPENED JANUARY 1, 1958. HOWEVER, IT APPEARS THAT SINCE THAT DATE NO PROCEEDINGS HAVE BEEN TAKEN TO COLLECT THE INVOLVED AMOUNT FROM CURRENT PAY.

IT IS FURTHER DISCLOSED THAT DESPITE THE ACTION TAKEN BY YOU AS INDICATED ABOVE YOU LATER QUESTIONED THE ACCURACY OF YOUR PERSONNEL RECORDS, AND THAT FOR THE PURPOSE OF SUBSTANTIATING YOUR CLAIM FOR RESERVE SERVICE FOR THE PERIOD JULY 1, 1949, TO JANUARY 15, 1951, YOU FORWARDED BY LETTER DATED FEBRUARY 28, 1957, A COPY OF LETTER DATED JUNE 30, 1951, FROM HEADQUARTERS, FOURTEENTH AIR FORCE, ROBINS AIR FORCE BASE, GEORGIA, REFLECTING A CREDIT OF 30 POINTS BY REASON OF MEMBERSHIP IN THE ACTIVE RESERVE DURING THE PERIOD JULY 1, 1949, TO JUNE 30, 1951. ALSO, ON JUNE 5, 1957, YOU REQUESTED VERIFICATION OF YOUR RESERVE STATUS. IN REPLY, HEADQUARTERS, UNITED STATES AIR FORCE, INFORMED YOU BY LETTER DATED JUNE 24, 1957, THAT THEY WERE UNABLE TO LOCATE A RECORD FOR ENLISTED RESERVE SERVICE FOR THE PERIOD APRIL 9, 1949, TO JANUARY 18, 1951, AND FURTHER THAT ACCORDING TO YOUR MASTER PERSONNEL RECORD, THE LETTER DATED JUNE 30, 1951, SHOWING THE GRATUITOUS POINTS EARNED BY YOU FOR THE PERIOD IN QUESTION WAS ERRONEOUSLY SUBMITTED. IN LETTER OF SEPTEMBER 7, 1957, YOU INFORMED HEADQUARTERS, UNITED STATES AIR FORCE, THAT YOUR MASTER PERSONNEL RECORDS WERE IN ERROR AND YOU ENCLOSED A CERTIFICATE DATED AUGUST 13, 1957, FROM MR. ALVA A. DUFFIELD, POSTMASTER, BRENTWOOD, TENNESSEE, IN WHICH HE STATED THAT HE DISCUSSED WITH YOU THE MATTER OF ENLISTING IN THE AIR FORCE RESERVE AT THAT TIME, THAT HE DELIVERED TO YOU MAIL FROM SUCH RESERVE, AND THAT HE HAD NO DOUBT THAT YOU WERE IN THE RESERVE IN JULY 1949. UNDER DATE OF OCTOBER 14, 1958, THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS ADVISED YOU THAT SINCE NO PROBABLE ERROR OR INJUSTICE WAS FOUND IN YOUR CASE, NO ACTION WOULD BE TAKEN ON YOUR APPLICATION FOR CORRECTION OF YOUR RECORD.

THE MATTER WAS CONSIDERED BY OUR CLAIMS DIVISION IN RESPONSE TO YOUR REQUEST OF AUGUST 21, 1959, AND YOU WERE INFORMED BY OFFICE LETTER OF FEBRUARY 3, 1960, THAT IN VIEW OF REPORTS FROM THE DEPARTMENT OF THE AIR FORCE SHOWING THAT YOU HAD NO MILITARY STATUS DURING THE PERIOD APRIL 9, 1949, TO JANUARY 18, 1951, SUCH PERIOD MAY NOT BE INCLUDED AS CREDITABLE SERVICE FOR LONGEVITY PAY PURPOSES, AND THAT THERE IS NO AUTHORITY OF LAW TO WAIVE YOUR INDEBTEDNESS.

YOU NOW STATE THAT WE HAVE NOT CLARIFIED THE REASON WHY THE FOURTEENTH AIR FORCE GAVE YOU CREDIT FOR RESERVE SERVICE AND YOU PRESENT SEVERAL QUESTIONS WITH REGARD TO THAT SERVICE CREDIT. ALSO, YOU DESIRE THAT WE INVESTIGATE THE MATTER INASMUCH AS IT IS YOUR BELIEF THAT YOUR PERMANENT RECORDS ON FILE WITH THE AIR FORCE DO NOT REFLECT THE RESERVE CREDIT FOR THE INVOLVED PERIOD. THE QUESTION TO BE RESOLVED IS ONE OF FACT--- WHETHER YOU ACTUALLY WERE A MEMBER OF THE ENLISTED RESERVE DURING THE PERIOD OF OVER 21 MONTHS IMMEDIATELY PRIOR TO THE DATE YOU WERE COMMISSIONED ON JANUARY 19, 1951. THE BEST EVIDENCE OF THAT FACT IS THE OFFICIAL RECORD RELATING TO RESERVE MEMBERSHIP. SINCE YOUR MASTER PERSONNEL RECORD DID NOT REFLECT SERVICE FOR THE INVOLVED PERIOD, THE DEPARTMENT OF THE AIR FORCE AFFORDED YOU AN OPPORTUNITY TO PRODUCE CORROBORATING EVIDENCE OF SUCH CLAIMED SERVICE. THE EVIDENCE SUBMITTED BY YOU CONSISTS SOLELY OF THE LETTER OF JUNE 30, 1951, FROM HEADQUARTERS, FOURTEENTH AIR FORCE, WHICH WAS PREPARED AND MAILED TO YOU SEVERAL MONTHS AFTER YOU RECEIVED YOUR COMMISSION, PLUS THE ABOVE-MENTIONED STATEMENT FROM THE POSTMASTER, BRENTWOOD, TENNESSEE, AND A REPORT OF MEDICAL EXAMINATION OF AUGUST 23, 1950. WE DO NOT KNOW WHY THE LETTER OF JUNE 30, 1951, WAS WRITTEN. OBVIOUSLY, SUCH LETTER FURNISHES NO SUPPORT FOR YOUR CONTENTION THAT YOU HAD A RESERVE STATUS FROM APRIL 9 TO JUNE 30, 1949, AND IN THE ABSENCE OF EVIDENCE FROM AN OFFICIAL SOURCE THAT YOU ENLISTED IN THE RESERVE AT ANY TIME AFTER APRIL 8, 1949, WE MUST ACCEPT THE AIR FORCE EXPLANATION THAT SUCH LETTER WAS WRITTEN AS THE RESULT OF ERROR. CONCERNING THE MATTER OF HOW THE FOURTEENTH AIR FORCE GOT YOUR NAME AND ADDRESS IF YOU HAD NO RESERVE STATUS DURING THE PERIOD INVOLVED, IT APPEARS THAT SUCH INFORMATION COULD HAVE BEEN OBTAINED DURING THE PERIOD YOU STATED YOU "STARTED PROCESSING FOR A COMMISSION" AFTER APRIL 8, 1949. THE EXAMINATION REPORT OF AUGUST 23, 1950, BEARS A STAMPED INDORSEMENT OF HEADQUARTERS, FOURTEENTH AIR FORCE, SHOWING THAT YOU WERE QUALIFIED FOR GENERAL SERVICE. PRESUMABLY, SUCH EXAMINATION WAS A PART OF THE PROCESSING FOR A COMMISSION. ALSO, SINCE YOU STATE THAT YOU WERE ASSIGNED TO THE FOURTEENTH AIR FORCE FOLLOWING ACCEPTANCE OF YOUR COMMISSION IN JANUARY 1951, IT IS CLEAR THAT AS A RESULT OF SUCH ASSIGNMENT THAT ORGANIZATION HAD A RECORD OF YOUR NAME AND ADDRESS WHEN THE LETTER OF JUNE 30, 1951, WAS WRITTEN.

AS TO MR. DUFFIELD'S STATEMENT OF AUGUST 13, 1957, SUCH STATEMENT CONTAINS INFORMATION HAVING LITTLE PROBATIVE VALUE ON THE ISSUE HERE INVOLVED.

SECTION 1552 OF TITLE 10 OF THE U.S.C. PROVIDES, IN MATERIAL PART, AS FOLLOWS:

"/A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.'

THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS CONCLUDED THAT THERE WAS NO BASIS TO CORRECT YOUR RECORD TO SHOW MEMBERSHIP IN THE AIR FORCE RESERVE FROM APRIL 9, 1949, TO JANUARY 18, 1951. WE AGREE WITH THAT CONCLUSION, AND WE ARE WITHOUT AUTHORITY TO VIEW THE MATTER DIFFERENTLY IN ANY EVENT.

UNDER THE CIRCUMSTANCES, UNLESS YOU CAN PRODUCE NEW AND RELEVANT EVIDENCE FOR CONSIDERATION BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS, IN ACCORDANCE WITH PARAGRAPH 25, AIR FORCE REGULATION 31-3, NOVEMBER 3, 1952, YOU SHOULD ARRANGE TO REFUND THE AMOUNT OF THE INDEBTEDNESS TO THE UNITED STATES AIR FORCE.

IN ACCORDANCE WITH YOUR REQUEST, WE ARE RETURNING THE COPIES OF THE PAPERS AND DOCUMENTS SUBMITTED WITH YOUR LETTER OF AUGUST 21, 1959.