B-156990, JUL. 26, 1965

B-156990, JUL. 26, 1965

TO MR. CLEO QUINN, 58752:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 28 AND JUNE 12, 1965, PERTAINING TO YOUR CLAIM FOR $48,519 BELIEVED TO BE DUE YOU INCIDENT TO THE CORRECTION OF YOUR MILITARY RECORDS TO SHOW YOUR DISCHARGE FROM THE UNITED STATES ARMY ON JULY 19, 1948, UNDER HONORABLE CONDITIONS. ALSO THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 3, 1965.

OUR FILE SHOWS THAT ON JANUARY 17, 1946, YOU REENLISTED IN THE UNITED STATES ARMY AT CHICAGO, ILLINOIS, FOR A TERM OF 3 YEARS AND THAT YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS ON JULY 19, 1948, AT CAMP HOOD, TEXAS. SOMETIME AFTER THAT DATE YOU APPLIED TO THE ARMY DISCHARGE REVIEW BOARD FOR A REVIEW OF THE CHARACTER OF YOUR DISCHARGE AND AS A RESULT OF FAVORABLE ACTION TAKEN BY THAT BOARD, OPERATING UNDER THE AUTHORITY OF 10 U.S.C. 1553, YOU WERE ISSUED A GENERAL DISCHARGE CERTIFICATE SHOWING THAT YOU WERE DISCHARGED UNDER HONORABLE CONDITIONS. BY REASON OF SUCH ACTION YOU BECAME ENTITLED TO THE PAY AND ALLOWANCE WHICH WERE NOT PAID TO YOU ON JULY 19, 1948, BUT WHICH YOU WOULD HAVE RECEIVED HAD YOUR DISCHARGE ON THAT DATE BEEN UNDER HONORABLE CONDITIONS. YOU PRESENTED A CLAIM FOR SUCH PAY AND ALLOWANCES, INCLUDING TRAVEL PAY FROM CAMP HOOD TO CHICAGO.

ON THE BASIS THAT YOUR CLAIM WAS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, OUR CLAIMS DIVISION RETURNED SUCH CLAIM TOGETHER WITH A COPY OF THAT ACT. SUBSEQUENTLY, HOWEVER, IT WAS CONCLUDED THAT YOUR CLAIM WAS NOT BARRED AND YOU WERE ALLOWED TRAVEL PAY BY SETTLEMENT DATED MAY 21, 1965, IN THE AMOUNT OF $56.75 (5 CENTS PER MILE FOR 1,135 MILES, THE DISTANCE FROM CAMP HOOD TO CHICAGO). ON JANUARY 6, 1965, THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, INFORMED YOU THAT THE PORTION OF YOUR CLAIM PERTAINING TO ACCRUED LEAVE PAY AND ALLOWANCES WOULD BE SETTLED BY THAT OFFICE AND IT IS ASSUMED THAT ANY AMOUNT DETERMINED TO BE DUE ON THAT ACCOUNT HAS BEEN PAID TO YOU.

BY LETTER OF APRIL 26, 1965, YOU SUBMITTED A FILE OF CORRESPONDENCE RELATING TO THE CLAIMS PRESENTED BY YOU INCIDENT TO THE CHANGE OF THE CHARACTER OF YOUR DISCHARGE FROM THE ARMY AND, AMONG OTHER THINGS, CLAIMED "REIMBURSEMENT FOR ALL THE TIME BETWEEN 19 JULY 1948 AND THE PRESENT DATE.' AMONG THE SUBMITTED CORRESPONDENCE WAS A COPY OF A LETTER DATED JUNE 10, 1964, ADDRESSED TO THE ATTORNEY GENERAL OF THE UNITED STATES, IN WHICH YOU ITEMIZED THE ADDITIONAL SUMS OF MONEY CLAIMED TO BE DUE FROM THE UNITED STATES ON ACCOUNT OF YOUR DISCHARGE FROM THE ARMY AS FOLLOWS:

TABLE

PAY AT THE RATE OF $97.50 PER MONTH FROM JULY 19,

1948, TO DATE OF NORMAL EXPIRATION OF ENLISTMENT $ 1,755

PER DIEM AT THE RATE OF $5.40 PER DAY FROM

JULY 19, 1948, TO DATE OF NORMAL EXPIRATION

OF ENLISTMENT 2,916

RETIRED PAY AT THE RATE OF $90 PER MONTH FOR

14 1/2 YEARS 15,660

PER DIEM AT THE RATE OF $5.40 PER DAY FOR

14 1/2 YEARS 28,188

$48,519

OUR CLAIMS DIVISION IN A LETTER OF MAY 21, 1965, RETURNED YOUR FILE OF CORRESPONDENCE AND ADVISED YOU THAT THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF PER DIEM OR PAY AND ALLOWANCES FOR ANY PERIOD SUBSEQUENT TO YOUR DISCHARGE. IN YOUR LETTER OF MAY 28, 1965, YOU STATE THAT YOU HAVE TURNED OVER YOUR LETTERS AND RECORDS IN THIS CASE TO A FIRM OF ATTORNEYS IN WASHINGTON, D.C., AND YOU AGAIN REQUEST THAT THE "BULK SUM" OF YOUR CLAIM BE PAID.

AS INDICATED ABOVE, THE ACTION OF THE ARMY DISCHARGE REVIEW BOARD IN CHANGING THE CHARACTER OF YOUR DISCHARGE DID NO MORE THAN ENTITLE YOU TO THE PAY AND ALLOWANCES THAT WOULD HAVE BEEN DUE AND PAYABLE TO YOU ON JULY 19, 1948, HAD YOU BEEN DISCHARGED UNDER HONORABLE CONDITIONS ON THAT DATE. THE RECORD NOW INDICATES THAT YOU HAVE BEEN PAID SUCH PAY AND ALLOWANCES (TRAVEL PAY AND ACCRUED LEAVE PAY). HOWEVER, THE CHANGE OF THE CHARACTER OF YOUR DISCHARGE DID NOT AND COULD NOT ENTITLE YOU TO ANY PAY AND ALLOWANCES FOR ANY PERIOD AFTER JULY 19, 1948, SINCE IT DID NOT ALTER THE FACT THAT YOU WERE SEPARATED FROM THE SERVICE ON THAT DATE. DETERMINATION WAS MADE THAT YOUR SEPARATION WAS IMPROPER. YOUR GENERAL DISCHARGE CERTIFICATE (ISSUED UNDER HONORABLE CONDITIONS) BEARS THE SAME DATE AS THAT APPEARING ON THE UNDESIRABLE DISCHARGE CERTIFICATE PREVIOUSLY FURNISHED TO YOU, JULY 19, 1948, AND, HENCE, IT PROVIDES NO LEGAL BASIS FOR ALLOWING PAY AND ALLOWANCES BEYOND THAT DATE. IN THIS CONNECTION, SEE THE CASE OF GOLDSTEIN V. UNITED STATES, 131 CT.CL. 228 (1955), CERTIORARI DENIED, 350 U.S. 888, IN WHICH THE COURT SAID, ON PAGE 233, AS FOLLOWS:

"NOR CAN IT BE HELD THAT THE ISSUANCE OF THE HONORABLE DISCHARGE IN 1952, IN LIEU OF THE DISHONORABLE DISCHARGE PREVIOUSLY ISSUED, HAD THE EFFECT OF ERASING PLAINTIFF'S 1945 SEPARATION AND ENTITLING HIM TO ARMY PAY BEYOND THAT DATE. THE HONORABLE DISCHARGE WAS DATED JULY 9, 1945, AND PLAINTIFF'S RECORDS AS CORRECTED SHOW THIS TO BE HIS DATE OF DISCHARGE. BOTH IN FACT AND OF RECORD, PLAINTIFF WAS SEPARATED FROM THE ARMY ON JULY 9, 1945.'

SEE, ALSO, UNGER V. UNITED STATES, CT.CL. NO. 466-61, DECIDED JANUARY 24, 1964, 326 F.2D 996; UNITED STATES V. SMITH, 67 FED. 2D 412 (1933) AFFIRMED 292 U.S. 337; 21 COMP. GEN. 927; AND 38 COMP. GEN. 523. ACCORDINGLY AND SINCE YOU DID NOT RENDER ANY MILITARY SERVICE AFTER JULY 19, 1948, AS A MEMBER OF THE ARMY, THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF ANY ADDITIONAL PAY AND ALLOWANCES TO YOU.

PER DIEM IS PAYABLE TO MILITARY MEMBERS ONLY WHILE THEY ARE ACTUALLY IN A "TRAVEL STATUS.' SUCH MEMBERS ARE DEEMED TO BE IN A "TRAVEL STATUS" WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH M3050.1 OF THE JOINT TRAVEL REGULATIONS. SINCE YOU WERE EFFECTIVELY SEPARATED FROM THE ARMY ON JULY 19, 1948, YOU COULD NOT BE IN SUCH A "TRAVEL STATUS" PURSUANT TO ORDERS OF COMPETENT AUTHORITY AFTER THAT DATE SO AS TO BE ENTITLED TO A PER DIEM ALLOWANCE.

SINCE YOU HAVE BEEN PAID ALL THE PAY AND ALLOWANCES DUE YOU INCIDENT TO YOUR SERVICE IN THE ARMY, NOTHING MORE IS DUE ON YOUR CLAIM AND WE MAY NOT GIVE IT FAVORABLE CONSIDERATION.