B-146425, DEC. 7, 1961

B-146425: Dec 7, 1961

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HARRIS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 14. WE ALSO HAVE YOUR LETTER OF JULY 29. IS RELATED TO THE ELIGIBILITY OF THE MEMBER FOR THE TRANSPORTATION OF DEPENDENTS UNDER HIS CURRENT PAY GRADE. DECISIONS ON SUCH QUESTIONS WERE RENDERED TO THE SECRETARY OF DEFENSE ON NOVEMBER 7. WE HAVE CONSIDERED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE AND ADDITIONAL PAY IN THE LIGHT OF THOSE DECISIONS. YOU WERE SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE. SO MUCH OF THE SENTENCE AS PERTAINED TO FORFEITURE IN EXCESS OF $50 PER MONTH FOR FOUR MONTHS WAS REMITTED. THAT PORTION OF YOUR SENTENCE IMPOSING A BAD-CONDUCT DISCHARGE WAS REMITTED. WERE PAID AT THE RATE OF AIRMAN BASIC.

B-146425, DEC. 7, 1961

TO MR. RICHARD L. HARRIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1961, CONCERNING YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE COMPUTED AT THE RATE OF $18 PER DAY INSTEAD OF $12 PER DAY ALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT OF MAY 24, 1961, FOR THE PERIOD AUGUST 5 TO SEPTEMBER 1, 1960. WE ALSO HAVE YOUR LETTER OF JULY 29, 1961, TO THE ATTORNEY GENERAL IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JUNE 22, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCE OF A TECHNICAL SERGEANT AND AIRMAN BASIC FOR THE PERIOD DECEMBER 19, 1958, TO SEPTEMBER 7, 1960. JUNE 22, 1961, WE ADVISED THE HONORABLE HOWARD W. CANNON OF THE ACTION TAKEN ON THIS CLAIM.

IN LETTER OF JULY 28, 1961, WE ADVISED YOU THAT THE MATTER OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE AFTER A MEMBER HAS BEEN REDUCED IN GRADE UNDER PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, IS RELATED TO THE ELIGIBILITY OF THE MEMBER FOR THE TRANSPORTATION OF DEPENDENTS UNDER HIS CURRENT PAY GRADE. WE FURTHER ADVISED YOU THAT, IN CONNECTION WITH OTHER CASES SUCH AS YOURS, VARIOUS QUESTIONS HAD ARISEN IN THE ADMINISTRATIVE OFFICES CONCERNING THE EFFECT ON A MEMBER'S PAY AND ALLOWANCES OF THE U.S. COURT OF MILITARY APPEALS DECISION IN THE CASE OF UNITED STATES V. SIMPSON, 10 U.S.C.M.A. 229, 27 C.M.R. 303, AND THE COURT OF CLAIMS DECISION IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL.NO. 234- 59, AND THAT SUCH QUESTIONS WOULD BE SUBMITTED HERE FOR DECISION BY THE DEPARTMENT OF DEFENSE. DECISIONS ON SUCH QUESTIONS WERE RENDERED TO THE SECRETARY OF DEFENSE ON NOVEMBER 7, 1961, B-146604 AND B-146614, AND WE HAVE CONSIDERED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE AND ADDITIONAL PAY IN THE LIGHT OF THOSE DECISIONS.

IT APPEARS FROM THE RECORD BEFORE US THAT BY GENERAL COURT-MARTIAL ORDER NO. 5, DATED DECEMBER 19, 1958, YOU WERE SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR SIX MONTHS. IN APPROVING THE SENTENCE, THE CONVENING AUTHORITY CHANGED THE DISHONORABLE DISCHARGE TO A BAD-CONDUCT DISCHARGE. ON FEBRUARY 20, 1959, BY GENERAL COURT-MARTIAL ORDER NO. 3, SO MUCH OF THE SENTENCE AS PERTAINED TO CONFINEMENT AT HARD LABOR IN EXCESS OF FOUR MONTHS, AND SO MUCH OF THE SENTENCE AS PERTAINED TO FORFEITURE IN EXCESS OF $50 PER MONTH FOR FOUR MONTHS WAS REMITTED. THEREAFTER, BY GENERAL COURT MARTIAL ORDER NO. 9, DATED APRIL 14, 1959, THAT PORTION OF YOUR SENTENCE IMPOSING A BAD-CONDUCT DISCHARGE WAS REMITTED. IT APPEARS FROM THE RECORD THAT AFTER YOUR RETURN TO DUTY, PURSUANT TO A MESSAGE DATED MARCH 11, 1959, FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE AIR FORCE, YOU RETAINED YOUR RATING OF TECHNICAL SERGEANT, BUT WERE PAID AT THE RATE OF AIRMAN BASIC, PENDING DECISION BY OUR OFFICE AS TO THE EFFECT OF THE SIMPSON DECISION ON PAY AND ALLOWANCES. BY ORDERS DATED SEPTEMBER 28, 1959, ADDRESSED TO YOU AS TECHNICAL SERGEANT RICHARD L. HARRIS, YOU WERE ASSIGNED TO OVERSEAS DUTY IN JAPAN AND THEREAFTER BY ORDERS DATED DECEMBER 16, 1959, YOUR DEPENDENTS (WIFE AND TWO STEPCHILDREN) WERE AUTHORIZED TO TRAVEL FROM MASSACHUSETTS TO YOUR OVERSEAS STATION. YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD AUGUST 5 TO SEPTEMBER 1, 1960, WHILE YOU AND YOUR DEPENDENTS WERE IN JAPAN AND DURING WHICH PERIOD QUARTERS WERE NOT AVAILABLE, WAS ALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT OF MAY 24, 1961, AT THE RATE OF $12 A DAY, TOTALING $336 (LESS $26.40 REPRESENTING CREDIT FOR BASIC ALLOWANCE FOR SUBSISTENCE). SUCH AMOUNT WAS REDUCED BY A REPORTED INDEBTEDNESS OF $272.63, RESULTING IN A NET PAYMENT OF $36.97 TO YOU. YOUR REQUEST FOR REVIEW IS BASED ON YOUR BELIEF THAT YOU SHOULD HAVE BEEN PAID TEMPORARY LODGING ALLOWANCE AT THE RATE OF $18 PER DAY DURING THE PERIOD INVOLVED RATHER THAN THE $12 WHICH WAS ALLOWED YOU.

AT THE TIME OF YOUR COURT-MARTIAL, PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951 (EXECUTIVE ORDER NO. 10652, JANUARY 10, 1956), PROVIDED FOR AUTOMATIC REDUCTION TO THE LOWEST PAY GRADE WHEN THE SENTENCE OF THE COURT-MARTIAL INCLUDED (1) DISHONORABLE OR BAD CONDUCT DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT.

BY DECISION OF AUGUST 19, 1959, B-139988, WE ADVISED THE SECRETARY OF DEFENSE THAT WE BELIEVED THE AUTOMATIC REDUCTION PROVISION OF SECTION 126E TO BE ADMINISTRATIVE RATHER THAN JUDICIAL IN CHARACTER AND THAT MEMBERS SHOULD BE PAID AT THE REDUCED RATE PENDING DECISION BY THE COURT OF CLAIMS IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL. NO. 234-59, FILED MAY 28, 1959. IN THAT CASE THE PLAINTIFF WAS CLAIMING THE PAY AND ALLOWANCES OF THE NONCOMMISSIONED RANK FROM WHICH HE WAS REDUCED BY VIRTUE OF THE AUTOMATIC REDUCTION PROVISION IN PARAGRAPH 126E. ON JULY 15, 1960, THE COURT OF CLAIMS DISMISSED JOHNSON'S PETITION (280 F.2D 856) HOLDING THAT THERE WAS AMPLE ADMINISTRATIVE AUTHORITY FOR THE REDUCTION AS PROVIDED IN PARAGRAPH 126E OF THE MANUAL. THAT DECISION AGREES WITH THE VIEWS OF THIS OFFICE. THE DEPARTMENT OF THE AIR FORCE COMPLIED WITH THE PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, AND PROVIDED FOR AUTOMATIC REDUCTION IN GRADE BY REGULATION AFM 173-20, PARAGRAPH 40309, DATED OCTOBER 17, 1958, SUPERSEDED BY REGULATION AFM 177-105, PARAGRAPH 31009, DATED JULY 1, 1960, BOTH OF WHICH PROVIDE AS FOLLOWS:

"REDUCTION TO THE LOWEST ENLISTED GRADE IS EFFECTIVE BY OPERATION OF LAW IN ANY CASE IN WHICH THE SENTENCE OF AN AIRMAN, AS APPROVED BY THE CONVENING AUTHORITY, INCLUDES DISHONORABLE OR BAD CONDUCT DISCHARGE, WHETHER OR NOT SUSPENDED, CONFINEMENT OR HARD LABOR WITHOUT CONFINEMENT. THE RATE OF PAY OF THE PERSON SO REDUCED, SHALL BE TO THAT PAY BRACKET COMMENSURATE WITH HIS YEARS OF SERVICE AND THE REDUCTION IN PAY SHALL BE EFFECTIVE ON AND AFTER THE DATE OF THE CONVENING AUTHORITY'S ACTION.'

PURSUANT TO THE EXECUTIVE ORDER AND THE REGULATIONS, IT APPEARS FROM THE RECORD THAT IN ACCORDANCE WITH YOUR COURT-MARTIAL SENTENCE OF DECEMBER 19, 1958, YOU WERE AUTOMATICALLY REDUCED TO THE GRADE OF AIRMAN BASIC AND HENCE YOU WERE ENTITLED ONLY TO THE PAY OF THAT GRADE UNTIL YOU WERE SUBSEQUENTLY PROMOTED TO A HIGHER GRADE. WHILE THE JUDGE ADVOCATE GENERAL'S MESSAGE OF MARCH 11, 1959, MENTIONED ABOVE, WHICH YOU RELY ON IN SUPPORT OF YOUR CLAIM, PURPORTED TO REVOKE YOUR AUTOMATIC REDUCTION IN GRADE TO AIRMAN BASIC, THAT MESSAGE DID NOT CONFER ANY RIGHT TO PAY AND ALLOWANCES OF THE HIGHER GRADE. ON THE CONTRARY, THE MESSAGE EXPRESSLY PROVIDED THAT THE EFFECT OF THE SIMPSON DECISION ON ENTITLEMENT TO PAY AND ALLOWANCES WAS BEING SUBMITTED TO THE COMPTROLLER GENERAL.

IN OUR DECISION OF NOVEMBER 7, 1961, B-146614, 41 COMP. GEN. - , TO THE SECRETARY OF DEFENSE, WE POINTED OUT THAT OUR DECISION OF AUGUST 19, 1959, B-139988, MENTIONED ABOVE, EXPRESSLY STATED THAT MEMBERS CONCERNED "SHOULD BE PAID AT THE RATE APPLICABLE TO THE REDUCED GRADE PENDING A DECISION BY THE COURT OF CLAIMS" IN THE JOHNSON CASE. IN THE DECISION OF NOVEMBER 7, 1961, WE HELD, IN SUBSTANCE, THAT THE SIMPSON DECISION MAY BE VIEWED AS COLOR OF AUTHORITY FOR RETENTION OF PAY AND ALLOWANCES IN THE HIGHER GRADE ON THE BASIS OF A DE FACTO STATUS, BUT THAT THERE WAS NO COLOR OF AUTHORITY FOR SUCH PAYMENTS AFTER SEPTEMBER 30, 1959. WE POINTED OUT THAT THERE WAS NO AUTHORITY, HOWEVER, TO PAY ANY MEMBER THE PAY AND ALLOWANCES OF A HIGHER GRADE AFTER HIS REDUCTION HAD BEEN ADMINISTRATIVELY EFFECTED UNLESS AND UNTIL HE WAS ADVANCED TO SUCH HIGHER GRADE BY THE PROPER AUTHORITY. SINCE IT DOES NOT APPEAR FROM THE PRESENT RECORD THAT YOU WERE ACTUALLY ADVANCED AFTER YOUR REDUCTION HAD BEEN ADMINISTRATIVELY EFFECTED, THERE IS NO AUTHORITY TO PAY YOU THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A TECHNICAL SERGEANT AND AIRMAN BASIC, NOTWITHSTANDING THE INSTRUCTIONS CONTAINED IN THE MESSAGE OF MARCH 11, 1959. ACCORDINGLY, THAT PART OF THE SETTLEMENT OF JUNE 22, 1961, DENYING YOUR CLAIM FOR THE DIFFERENCE IN PAY IS SUSTAINED.

WITH RESPECT TO YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE, PARAGRAPH 4303 OF THIS JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (B), PROVIDES THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING THE MEMBER FOR MORE THAN NORMAL EXPENSES INCURRED AT HOTEL AND HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS. IN CONSONANCE WITH THIS PROVISION, AND REGARDING YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCES AS A MEMBER WITH DEPENDENTS, THE TERM "A MEMBER WITH DEPENDENTS," IS DEFINED IN PARAGRAPH 4300-1 OF THE JOINT TRAVEL REGULATIONS AS ONE WHOSE DEPENDENTS RESIDE IN THE VICINITY OF HIS DUTY STATION OUTSIDE THE UNITED STATES AND WHO "IS IN PAY GRADE E-4 WITH MORE THAN 4 YEARS OF SERVICE, IS IN GRADE E- 5 OR HIGHER GRADE, OR IS ENTITLED TO DEPENDENT TRANSPORTATION UNDER PAR. 7009-4, AND IS AUTHORIZED TO HAVE HIS DEPENDENTS PRESENT IN THE AREA IN A MILITARY DEPENDENT STATUS.' ON THE BASIS OF OUR DECISIONS OF AUGUST 19, 1959, B-139988, AND NOVEMBER 7, 1961, B-146614, 41 COMP. GEN. - , IT MUST BE CONSIDERED THAT, AS A RESULT OF YOUR COURT-MARTIAL SENTENCE AND ON THE BASIS OF THE RECORD BEFORE US, DURING THE PERIOD OF YOUR CLAIM YOU WERE IN AN INELIGIBLE GRADE FOR THE TRANSPORTATION OF YOUR DEPENDENTS INASMUCH AS TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED FOR ENLISTED MEMBERS IN PAY GRADES E-4 WITH FOUR YEARS OF SERVICE OR LESS, E-3, E-2 AND E-1. SEE PARAGRAPH 7000-1, JOINT TRAVEL REGULATIONS. THEREFORE, ANY RIGHT THAT YOU MIGHT HAVE HAD TO TEMPORARY LODGING ALLOWANCE DURING THE PERIOD INVOLVED SHOULD HAVE BEEN COMPUTED UNDER PARAGRAPH 4303-3 OF THE JOINT TRAVEL REGULATIONS ON THE BASIS OF 50 PERCENT OF THE TRAVEL PER DIEM RATE APPLICABLE FOR A MEMBER ONLY, WITH DEPENDENTS. BASED ON THE CONTROLLING REGULATIONS AND SINCE THE PER DIEM RATE WAS $12 PER DAY IN THE AREA OF JOHNSON AIR FORCE BASE, JAPAN, TO WHICH YOU WERE ASSIGNED, YOU WERE ENTITLED ONLY TO 50 PERCENT OF THAT AMOUNT, OR $6 PER DAY TOTALING $168, AS TEMPORARY LODGING ALLOWANCE DURING THE PERIOD AUGUST 5 TO SEPTEMBER 1, 1960. OUR SETTLEMENT OF MAY 24, 1961, WHICH ALLOWED YOU $336, LESS DEDUCTIONS OF $299.03, OR A NET PAYMENT TO YOU OF $36.97, WAS COMPUTED ON THE BASIS THAT YOU WERE ENTITLED TO 100 PERCENT RATHER THAN 50 PERCENT OF THE PER DIEM RATE OF $12. SINCE YOU ARE ENTITLED ONLY TO 50 PERCENT OF THE PER DIEM RATE OR $168, THE SETTLEMENT ALLOWED $168 MORE THAN THE AMOUNT PROPERLY DUE (DIFFERENCE BETWEEN $336 AND $168). WHILE WE REGRET THE ERROR, WE HAVE NO CHOICE BUT TO REQUEST REPAYMENT OF THE OVERALLOWANCE OF $168.

ACCORDINGLY, YOU ARE REQUESTED TO REFUND THE $168 BY CHECK OR MONEY ORDER, MADE PAYABLE TO THE ,U.S. GENERAL ACCOUNTING OFFICE," SUCH REMITTANCE SHOULD BE ADDRESSED TO THIS OFFICE AT POST OFFICE BOX 2610, WASHINGTON 13, D.C.

A COPY OF THIS DECISION IS BEING FORWARDED TO SENATOR CANNON FOR HIS INFORMATION.