B-147987, JAN. 31, 1962

B-147987: Jan 31, 1962

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RUIZ: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4. THE CLAIM WAS DISALLOWED FOR THE STATED REASON THAT AN ENLISTED MAN WHO VIOLATES HIS ENLISTMENT CONTRACT BY DESERTION FORFEITS ALL PAY AND ALLOWANCES DUE AT THE DATE OF DESERTION. FOR A PERIOD OF 3 YEARS AND THAT YOU WERE DISCHARGED ON JULY 2. YOU SAY THAT YOU ARE NOT CLAIMING MONEY DUE YOU AT THE TIME OF DESERTION. THAT YOU ARE CLAIMING MONEY THAT WAS ALREADY EARNED BY YOU EVEN BEFORE YOU HAD ANY INTENTIONS OF DESERTING AND WHICH SHOULD HAVE BEEN RECEIVED BY YOUR FAMILY LONG BEFORE YOU DESERTED. ALSO HAS BEEN HELD THAT THAT PORTION OF THE ENLISTED MAN'S PAY WHICH WAS DEDUCTED AS AN ALLOTMENT. CONSTITUTES PAY AND IS FORFEITED UPON DESERTION.

B-147987, JAN. 31, 1962

TO MR. JOE A. RUIZ:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1962, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 11, 1961, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF AMOUNTS DEDUCTED FROM YOUR ARMY PAY FOR A CLASS E ALLOTMENT, BUT NOT PAID TO YOUR ALLOTTEE, PRIOR TO YOUR DISCHARGE ON JULY 2, 1948, BY REASON OF DESERTION AND PHYSICAL UNFITNESS. THE CLAIM WAS DISALLOWED FOR THE STATED REASON THAT AN ENLISTED MAN WHO VIOLATES HIS ENLISTMENT CONTRACT BY DESERTION FORFEITS ALL PAY AND ALLOWANCES DUE AT THE DATE OF DESERTION.

THE RECORD DISCLOSES THAT YOU ENLISTED IN THE REGULAR ARMY ON APRIL 9, 1946, FOR A PERIOD OF 3 YEARS AND THAT YOU WERE DISCHARGED ON JULY 2, 1948, BY REASON OF DESERTION AND PHYSICAL UNFITNESS, UNDER SECTION II OF ARMY REGULATIONS NO. 615-366, DATED MAY 14, 1947. YOU SAY THAT YOU ARE NOT CLAIMING MONEY DUE YOU AT THE TIME OF DESERTION, BUT THAT YOU ARE CLAIMING MONEY THAT WAS ALREADY EARNED BY YOU EVEN BEFORE YOU HAD ANY INTENTIONS OF DESERTING AND WHICH SHOULD HAVE BEEN RECEIVED BY YOUR FAMILY LONG BEFORE YOU DESERTED.

IT UNIFORMLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN ACCORDANCE WITH A DECISION OF THE UNITED STATES SUPREME COURT THAT AN ENLISTED MAN, UPON DESERTION, FORFEITS ALL PAY AND ALLOWANCES DUE AND UNPAID AT THE TIME OF HIS DESERTION, PROVIDED SUCH PAY AND ALLOWANCES ACCRUED UNDER THE ENLISTMENT THEN CURRENT. UNITED STATES V. LANDERS, 92 U.S. 77. 8 COMP. GEN. 549; 23 COMP. GEN. 44; AND 34 COMP. GEN. 28. ALSO HAS BEEN HELD THAT THAT PORTION OF THE ENLISTED MAN'S PAY WHICH WAS DEDUCTED AS AN ALLOTMENT, BUT NOT PAID TO THE ALLOTTEE, CONSTITUTES PAY AND IS FORFEITED UPON DESERTION. SEE 22 COMP. DEC. 340. CONSEQUENTLY, THE AMOUNTS FORFEITED AT THE TIME OF YOUR DESERTION COVERED ALL PAY AND ALLOWANCES TO WHICH YOU MIGHT OTHERWISE HAVE BEEN ENTITLED AND WHICH ACCRUED UNDER THE ENLISTMENT IN QUESTION, INCLUDING AMOUNTS PREVIOUSLY DEDUCTED FROM YOUR PAY FOR A CLASS E ALLOTMENT AND NOT DELIVERED TO THE ALLOTTEE.

THE SETTLEMENT OF DECEMBER 11, 1961, WAS CORRECT AND, UPON REVIEW, IS SUSTAINED.