B-148148, APR. 2, 1962

B-148148, APR. 2, 1962

TO MR. RAYMOND G. THOMAS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16, 1962, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REFUND OF PAY AND ALLOWANCES FOR THE PERIOD JULY 1 TO 20, 1952, COLLECTED FROM YOU WHILE YOU WERE ON ACTIVE DUTY AS FIRST LIEUTENANT, REGULAR ARMY. YOUR CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED FEBRUARY 8, 1955.

THE RECORD SHOWS THAT BY PARAGRAPH 77, SPECIAL ORDERS NO. 111, DEPARTMENT OF THE ARMY, DATED JUNE 2, 1952, YOU WERE APPOINTED SECOND LIEUTENANT IN THE REGULAR ARMY EFFECTIVE JUNE 15, 1952. THE ORDERS PROVIDED THAT EFFECTIVE UPON ACCEPTANCE OF THE APPOINTMENT, YOU WERE ORDERED TO ACTIVE DUTY, ASSIGNED TO STUDENT DETACHMENT FOR RECORD PURPOSES AND DIRECTED TO REMAIN AT YOUR ADDRESS AT THAT TIME ON LEAVE WITHOUT PAY AND ALLOWANCES STATUS, PENDING FURTHER DEPARTMENT OF THE ARMY ORDERS. BY PARAGRAPH 71, SPECIAL ORDER NO. 120, DEPARTMENT OF THE ARMY, DATED JUNE 13, 1952, THE ORIGINAL ORDERS WERE AMENDED TO DELETE THE PHRASE "ON LEAVE WITHOUT PAY AND ALLOWANCES STATUS.'

THE RECORD INDICATES THAT YOU ACCEPTED YOUR APPOINTMENT ON JULY 1, 1952; THAT YOU REPORTED FOR ACTIVE DUTY JULY 21, 1952; AND THAT YOU WERE PAID PAY AND ALLOWANCES FROM JUNE 15, 1952. YOU WERE SUBSEQUENTLY ADVISED THAT YOU WERE NOT ENTITLED TO ANY PAY AND ALLOWANCES PRIOR TO JULY 21, 1952, AND THE AMOUNT ERRONEOUSLY PAID WAS COLLECTED. BY LETTER OF JANUARY 25, 1955, YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD FROM JULY 1 TO 20, 1952, WAS SUBMITTED HERE FOR CONSIDERATION AND BY SETTLEMENT DATED FEBRUARY 8, 1955, IT WAS DISALLOWED FOR THE REASON THAT IN EFFECT YOU WERE ABSENT WITHOUT LEAVE DURING SUCH PERIOD.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (B), PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE A MEMBER OF THE ARMED FORCES TO BE ABSENT FROM DUTY IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, BUT THE MEMBER IS NOT ENTITLED TO ANY PAY AND ALLOWANCES DURING SUCH ABSENCE UNLESS THE ABSENCE IS ON ACCOUNT OF SICKNESS OR WOUNDS, OR THE MEMBER IS DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY WHILE AWAITING ORDERS PENDING ACTION ON DISABILITY ENTITLEMENT PROCEEDINGS. THE SECTION FURTHER PROVIDES WITH RESPECT TO A PERSON WHO HAS ACCEPTED AN APPOINTMENT AS A COMMISSIONED OFFICER OF THE REGULAR ARMY PURSUANT TO THE ACT OF DECEMBER 28, 1945, 59 STAT. 662, AS AMENDED, THAT HE SHALL BE ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD HE IS AUTHORIZED BY THE SECRETARY OF THE ARMY TO BE ABSENT AWAITING ORDERS TO HIS INITIAL DUTY STATION. SINCE YOUR APPOINTMENT WAS UNDER THE PROVISIONS OF SECTION 506 OF THE ACT OF AUGUST 7, 1947, 61 STAT. 890, AND YOUR ABSENCE WAS NOT FOR OTHER REASONS REFERRED TO ABOVE, YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD PRIOR TO JULY 21, 1952, THE DAY YOU ACTUALLY REPORTED FOR DUTY. PARAGRAPH 71, SPECIAL ORDERS NO. 120, JUNE 13, 1952, WHICH DELETED FROM YOUR ORDERS THE PHRASE "ON LEAVE WITHOUT PAY AND ALLOWANCES" WAS WITHOUT EFFECT TO PLACE YOU IN A PAY STATUS PRIOR TO THE DATE YOU REPORTED FOR ACTIVE DUTY. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

IN YOUR PRESENT LETTER YOU STATE YOU HAVE RECEIVED INFORMATION THAT REPAYMENTS HAVE BEEN MADE IN SIMILAR CASES TO OTHER OFFICERS AND YOU AGAIN REQUEST REIMBURSEMENT OF THE AMOUNT YOU REFUNDED. PRESUMABLY THE REPAYMENTS TO WHICH YOU REFER WERE BASED ON THE PROVISIONS OF THE ACT OF JUNE 4, 1956, 70 STAT. 245, 37 U.S.C. 33 NOTE.

SECTION 1 OF THE ACT OF JUNE 4, 1956, PROVIDES THAT THE COMMISSIONED OFFICERS OF THE REGULAR ARMY OR THE REGULAR AIR FORCE WHO WERE ABSENT FROM DUTY AWAITING ORDERS ASSIGNING THEM TO INITIAL DUTY STATIONS AFTER ACCEPTANCE OF APPOINTMENT SUBSEQUENT TO AUGUST 31, 1946, MAY BE PAID PAY AND ALLOWANCES FOR THE PERIOD WHILE AWAITING ORDERS "IF APPLICATION THEREFOR IS MADE WITHIN TWO YEARS AFTER THE DATE OF ENACTMENT OF THIS ACT AND TO THE EXTENT THEY HAVE NOT ALREADY BEEN PAID THEREFOR * * *.' SECTION 2 OF THE ACT PROVIDES THAT OFFICERS WHO HAVE REPAID THE AMOUNT PAID THEM AS PAY AND ALLOWANCES FOR THE PERIOD WHILE AWAITING ORDERS DESCRIBED IN THE FIRST SECTION ARE ,ENTITLED TO BE PAID THE AMOUNT INVOLVED, IF OTHERWISE PROPER, UNDER THIS ACT.'

IT IS NOT SPECIFICALLY STATED THAT OFFICERS ENTITLED TO REPAYMENT UNDER SECTION 2 OF THE ACT ARE SUBJECT TO THE TWO-YEAR LIMITATION CONTAINED IN SECTION 1 BUT SINCE IT IS PROVIDED THAT PAYMENTS UNDER SECTION 2 ARE AUTHORIZED ONLY "IF OTHERWISE PROPER, UNDER THIS ACT," IT SEEMS CLEAR THAT SECTION 2 MUST BE READ TOGETHER WITH THE FIRST SECTION TO DETERMINE WHETHER A CLAIMANT IS ENTITLED TO PAYMENT. THEREFORE, IN DETERMINING WHETHER PAYMENT IS PROPER UNDER THE ACT, THE TWO-YEAR LIMITATION CONTAINED IN THE FIRST SECTION APPEARS TO BE EQUALLY APPLICABLE TO CLAIMS FILED UNDER SECTION 2. IN THIS CONNECTION IT SHOULD BE OBSERVED THAT, PRIOR TO ENACTMENT OF THE 1956 ACT, NEITHER THE OFFICERS WITHIN THE PURVIEW OF SECTION 1 WHO WERE NOT PAID, NOR THE OFFICERS WITHIN THE PURVIEW OF SECTION 2 WHO RECEIVED ERRONEOUS PAYMENTS AND REPAID THE AMOUNTS, WERE ENTITLED TO SUCH PAYMENTS.

THERE WOULD APPEAR TO BE NO VALID REASON FOR GRANTING ONE CLASS OF OFFICERS PREFERENTIAL TREATMENT OVER THE OTHER CLASS WITH RESPECT TO LIMITATION OF TIME ON FILING CLAIMS AND THE LEGISLATIVE HISTORY OF THE 1956 ACT DOES NOT INDICATE ANY INTENTION ON THE PART OF THE CONGRESS TO GRANT SUCH PREFERENTIAL TREATMENT. THEREFORE, SINCE THE RECORD DOES NOT INDICATE THAT SUBSEQUENT TO THE DATE OF ENACTMENT OF THAT ACT YOU MADE ANY APPLICATION FOR REPAYMENT UNTIL JUNE 16, 1962, SUCH APPLICATION WAS NOT FILED WITHIN THE TWO-YEAR LIMITATION AND YOUR RIGHT TO ANY REPAYMENT IS NOW BARRED.