B-143632, FEB. 2, 1961

B-143632, FEB. 2, 1961

TO MR. JAMES L. HILL, JR.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1960, IN WHICH YOU EXPRESS DISSATISFACTION WITH THE FAILURE OF THE CLAIMS DIVISION OF OUR OFFICE TO TAKE FAVORABLE ACTION ON YOUR CLAIM FOR PAY WHICH YOU BELIEVE TO BE DUE YOU AS OF JUNE 29, 1949, THE DATE OF YOUR DISCHARGE FROM THE UNITED STATES ARMY.

THE RECORDS SHOW THAT YOU HAVE BEEN ADVISED THAT, EXCLUDING PERIODS OF ABSENCE WITHOUT LEAVE, PAY ACCRUED TO YOU FROM FEBRUARY 1, 1947, TO JUNE 29, 1949, IN THE AMOUNT OF $1,090, BUT THAT SINCE THE CHARGES AGAINST YOUR PAY ACCOUNT FOR THE PERIOD INVOLVED TOTALED $1,276.23, THERE RESULTED AN OVERPAYMENT OF $186.23 IN YOUR PAY ACCOUNT FOR SUCH PERIOD. THE VARIOUS CHARGES INCLUDED IN THE TOTAL OF $1,276.23 WERE LISTED IN THE LETTER OF JUNE 24, 1960, WRITTEN BY OUR CLAIMS DIVISION TO YOU. IN YOUR LETTER OF JULY 6, 1960, YOU QUESTION THE CORRECTNESS OF SEVERAL OF THE CHARGES INCLUDED IN SUCH LIST: (1) "TRANSPORTATION CHARGES $166.31 AND $11.47," $177.78; (2) "TRANSPORTATION AND SUBSISTENCE CHARGES," $160.16; AND (3) "GOVERNMENT PROPERTY LOST OR DAMAGED," $190.94. IN CONNECTION WITH THE FIRST TWO OF THESE ITEMS, YOU SAY: "THERE SHOULD BE NO TRANSPORTATION AND SUBSISTENCE CHARGES AS THE UNUSED TRAIN AND MEAL TICKETS WERE TURNED IN TO THE ORDNANCE DEPOT IN ATLANTA, GA.' AS TO THE THIRD ITEM, YOU SAY: "TO MY KNOWLEDGE I CAN BE HELD ACCOUNTABLE FOR NO GOVERNMENT PROPERTY LOST OR DAMAGED.' ALSO, YOU SAY THAT THERE WAS NO WITHHOLDING TAX DEDUCTION WHILE YOU WERE IN THE SERVICE.

AFTER THE RECEIPT OF YOUR LETTER WE OBTAINED A REPORT CONCERNING YOUR CASE FROM OUR DEFENSE ACCOUNTING AND AUDITING DIVISION AND WE ALSO OBTAINED AN ADDITIONAL REPORT FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA. IT IS INDICATED IN THE LATTER REPORT THAT THE TRANSPORTATION AND SUBSISTENCE CHARGES REPRESENT PROPER CHARGES AGAINST YOUR PAY ACCOUNT AS EXPENSES INCURRED IN CONNECTION WITH YOUR RETURN TO MILITARY CONTROL AT VARIOUS TIMES INCLUDING THE COST OF TRANSPORTATION AND MEALS FURNISHED GUARDS SENT TO RETURN YOU FROM ABSENCE WITHOUT LEAVE. TRAIN AND MEAL TICKETS FURNISHED FOR SUCH TRAVEL WERE NOT ACTUALLY USED, IT WOULD APPEAR THAT FUNDS TO PAY THE EXPENSES OF TRAVEL WERE SECURED FROM SOME SOURCE, SUBJECT TO REIMBURSEMENT, SINCE CONSIDERABLE TRAVEL WAS NECESSARY TO ACCOMPLISH YOUR RETURN TO MILITARY CONTROL.

IN THAT REPORT IT IS STATED THAT THE CHARGE OF $190.94 REPRESENTS A CHARGE AGAINST YOUR ACCOUNT FOR GOVERNMENT PROPERTY LOST OR DAMAGED FOR WHICH YOU WERE HELD TO BE PECUNIARILY LIABLE. IT IS ALSO THERE STATED THAT ITEMS LOST OR DAMAGED ARE LISTED EITHER ON A REPORT OF SURVEY OR ON A DD FORM 362 (STATEMENT OF CHARGES FOR GOVERNMENT PROPERTY LOST, DAMAGED, OR DESTROYED) AND THAT REGULATIONS PROVIDE THAT REPORTS OF SURVEY BE DESTROYED AFTER 3 YEARS AND THAT STATEMENTS OF CHARGE FILES BE DESTROYED AFTER 2 YEARS. THE CHARGE OF $190.94 FOR GOVERNMENT PROPERTY LOST OR DAMAGED IS EVIDENCED BY AN ENTRY DATED SEPTEMBER 2, 1948, IN THE "REMARKS FINANCIAL" PORTION OF YOUR SERVICE RECORDS AND THERE IS NO INDICATION THAT THE ENTRY WAS NOT MADE WHILE YOU WERE SERVING ON ACTIVE DUTY IN THE ARMY. ALTHOUGH SUCH CHARGE CANNOT AT THIS TIME BE SUBSTANTIATED BY ANY OTHER DOCUMENTARY EVIDENCE, WE FIND NO REASON FOR DETERMINING THAT IT IS NOT A PROPER CHARGE AGAINST YOUR PAY ACCOUNT. IF YOU HAD NOT DELAYED THE FILING OF YOUR CLAIM, FULL INFORMATION WITH RESPECT TO THIS ITEM COULD HAVE BEEN OBTAINED.

THE CHARGES LISTED IN THE LETTER OF JUNE 24, 1960, INCLUDED FOUR ITEMS ($84, $96.82, $175, AND $45.53, A TOTAL OF $401.35) AS FORFEITURES UNDER VARIOUS COURT-MARTIAL SENTENCES. UNDER PARAGRAPH 1.B, ARMY REGULATIONS 35 -2460, MAY 21, 1942, IN EFFECT DURING THE PERIOD INVOLVED, A FORFEITURE OF PAY UNDER A COURT-MARTIAL SENTENCE WAS CHARGEABLE AGAINST THE MONTHLY PAY OF A MEMBER OF THE ARMED FORCES BEGINNING WITH THE FIRST DAY OF THE MONTH IN WHICH THE COURT-MARTIAL SENTENCE WAS PROMULGATED AND REMAINED A FIXED INDEBTEDNESS TO THE GOVERNMENT UNTIL SATISFIED. A COURT-MARTIAL SENTENCE SUCH AS WAS DIRECTED IN SPECIAL COURT-MARTIAL ORDER NO. 129, AUGUST 30, 1948, EFFECTING A FORFEITURE OF YOUR PAY AT THE RATE OF $35 PER MONTH FOR 4 MONTHS WAS REGARDED AS A FORFEITURE OF $140 TO BE COLLECTED AT THE RATE OF $35 PER MONTH. SEE PARAGRAPH 2 OF SUCH REGULATIONS. WITH RESPECT TO SPECIAL COURT-MARTIAL ORDER NO. 22, MARCH 15, 1948, WHILE WE PREVIOUSLY HAD BEEN ADVISED THAT SUCH ORDER PROVIDED FOR FORFEITURE OF $35 PER MONTH FOR 5 MONTHS, WE ARE NOW INFORMED THAT FORFEITURE WAS AT THE RATE OF $30 PER MONTH. BASED ON SUCH INFORMATION AND, UNDER THE RULES ABOVE STATED, THE COURT-MARTIAL FORFEITURES PROPERLY CHARGEABLE AGAINST YOUR ACCOUNT DURING THE PERIOD INVOLVED SHOULD HAVE BEEN $84, $96.82, $150, AND $140 (A TOTAL OF $470.82), OR $69.47 MORE THAN THE AMOUNT OF $401.35 PREVIOUSLY SHOWN. ACCORDINGLY, THE AMOUNT UNCOLLECTED IN YOUR CASE IS INCREASED FROM $186.23 TO $255.70. ALSO, UPON THE REEXAMINATION OF YOUR PAY ACCOUNT IT HAS BEEN DETERMINED THAT YOUR ACCOUNT SHOULD HAVE BEEN CREDITED WITH THE PAY OF A PRIVATE, FIRST CLASS, FROM JANUARY 27 TO FEBRUARY 12, 1947, AND FROM MARCH 2 TO 31, 1947, AT $80 PER MONTH, INSTEAD OF WITH THE PAY OF A PRIVATE AT $75 PER MONTH, RESULTING IN AN UNDERPAYMENT OF $7.50. THUS, THE AMOUNT UNCOLLECTED IN YOUR CASE IS REDUCED TO $248.20.

CONCERNING THE ITEM OF $196.20 LISTED IN THE LETTER OF JUNE 24, 1960, AS WITHHOLDING TAX, IT APPEARS THAT SUCH ITEM WAS IMPROPERLY INCLUDED SINCE YOUR PAY AS AN ENLISTED MAN AT THAT TIME WAS NOT SUBJECT TO INCOME TAX. HENCE, THE TOTAL AMOUNT DUE YOU AT THE TIME OF YOUR DISCHARGE LACKED $52 (THE DIFFERENCE BETWEEN $248.20 AND $196.20) OF BEING SUFFICIENT TO PAY ALL THE SUMS PROPERLY CHARGEABLE AGAINST YOU INCLUDING ALL COURT-MARTIAL FORFEITURES. HOWEVER, SINCE A COURT-MARTIAL SENTENCE OPERATES ONLY ON THE PAY EARNED UNDER THE CONTRACT OF ENLISTMENT IN WHICH THE SENTENCE WAS IMPOSED, THE AMOUNT OF $52 UNCOLLECTED COURT-MARTIAL FORFEITURES DOES NOT CONSTITUTE AN INDEBTEDNESS TO THE UNITED STATES AND THE DEBT CHARGE RAISED AGAINST YOU IS BEING REMOVED.