B-157060, JUL. 23, 1965, 45 COMP. GEN. 47

B-157060: Jul 23, 1965

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WHICH IS DUE THE FORMER WIFE OF THE MEMBER AND THEIR CHILDREN MAY BE MADE TO THE WIFE IF PRIOR TO PAYMENT SHE EXECUTES A CERTIFICATE OF ACCEPTANCE FOR THE FULL ALLOTMENT PORTION OF THE CLAIM THEREBY GIVING THE GOVERNMENT A GOOD ACQUITTANCE. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 14. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED JUNE 17. PURSUANT TO BOARD ACTION THE MEMBER WAS ISSUED AN UNDESIRABLE DISCHARGE ON JUNE 27. IS VOID AND OF NO FORCE OR EFFECT. THAT THE UNDESIRABLE DISCHARGE ISSUED HIM ON 27 JUNE 1961 IS VOID AND OF NO FORCE OR FFECT. THAT HE WAS HONORABLY DISCHARGED IN THE GRADE OF SERGEANT (E-5) ON 4 JUNE 1962. THAT HE WAS RE-ENLISTED IN THE REGULAR ARMY IN THE GRADE OF SERGEANT E -5) ON 5 JUNE 1962. 2.

B-157060, JUL. 23, 1965, 45 COMP. GEN. 47

DISCHARGES AND DISMISSALS - MILITARY PERSONNEL - OTHER THAN HONORABLE - CHANGES, REVOCATIONS, ETC. - PAYMENT BASIS ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES UPON THE CORRECTION OF HIS MILITARY RECORDS PURSUANT TO 10 U.S.C. 1552, WHICH VOIDED HIS DISHONORABLE DISCHARGE, DID NOT CLAIM THE ARREARS OF PAY AND ALLOWANCES DUE HIM FOR THE PERIOD COVERED BY THE RECORD CORRECTION THAT EFFECTED HIS RETENTION IN AN ACTIVE DUTY STATUS UNTIL THE ISSUANCE OF A CERTIFICATE OF HONORABLE DISCHARGE, PAYMENT OF THE AUTOMATICALLY REINSTATED CLASS Q ALLOTMENT THAT HAD BEEN DISCONTINUED UPON THE DISHONORABLE DISCHARGE OF THE MEMBER FROM THE SERVICE, AND WHICH IS DUE THE FORMER WIFE OF THE MEMBER AND THEIR CHILDREN MAY BE MADE TO THE WIFE IF PRIOR TO PAYMENT SHE EXECUTES A CERTIFICATE OF ACCEPTANCE FOR THE FULL ALLOTMENT PORTION OF THE CLAIM THEREBY GIVING THE GOVERNMENT A GOOD ACQUITTANCE.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, JULY 23, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 14, 1965, REQUESTING AN ADVANCE DECISION CONCERNING PAYMENT OF A VOUCHER IN THE AMOUNT OF $1,088.51 STATED IN FAVOR OF MRS. DOROTHY L. WISMAN, WIFE OF SERGEANT RICHARD L. WISMAN, 15 214 055, FOR BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD JUNE 28, 1961 TO JUNE 4, 1962, AT $96.90 A MONTH. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED JUNE 17, 1965, OF THE OFFICE, CHIEF OF FINANCE, UNDER D.O. NUMBER A 853 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PURSUANT TO BOARD ACTION THE MEMBER WAS ISSUED AN UNDESIRABLE DISCHARGE ON JUNE 27, 1961, UNDER THE AUTHORITY OF AR 635-208. HE THEREAFTER SUBMITTED APPLICATION TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS AND BY MEMORANDUM FOR THE ADJUTANT GENERAL DATED JULY 11, 1963, THE UNDER SECRETARY OF THE ARMY DIRECTED:

1. THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF RICHARD L. WISMAN BE CORRECTED TO SHOW:

A. THAT ON 21 JUNE 1961, THE CONVENING AUTHORITY DISAPPROVED THE FINDINGS AND RECOMMENDATIONS OF THE BOARD OF OFFICERS CONVENED UNDER THE PROVISIONS OF ARMY REGULATIONS 615-368;

B. THAT HIS REDUCTION FROM THE GRADE OF SERGEANT (E-5) TO PRIVATE (E 1), DATED 22 JUNE 1961, IS VOID AND OF NO FORCE OR EFFECT;

C. THAT THE UNDESIRABLE DISCHARGE ISSUED HIM ON 27 JUNE 1961 IS VOID AND OF NO FORCE OR FFECT;

D. THAT HE WAS HONORABLY DISCHARGED IN THE GRADE OF SERGEANT (E-5) ON 4 JUNE 1962, BY REASON OF EXPIRATION OF TERM OF SERVICE; AND

E. THAT HE WAS RE-ENLISTED IN THE REGULAR ARMY IN THE GRADE OF SERGEANT E -5) ON 5 JUNE 1962.

2. THAT THE DEPARTMENT OF THE ARMY ISSUE TO RICHARD L. WISMAN A CERTIFICATE OF HONORABLE DISCHARGE DATED 4 JUNE 1962.

YOU SAY THAT SERGEANT WISMAN WAS ASSIGNED GOVERNMENT QUARTERS ON OCTOBER 8, 1959. HOWEVER, CLASS Q ALLOTMENT CHECKS IN THE AMOUNT OF $156.90 WERE ISSUED TO HIS WIFE THROUGH JUNE 1961 IN BEHALF OF HERSELF AND THREE CHILDREN AND SHE IS CLAIMING THE CLASS Q ALLOTMENT FOR THE PERIOD JULY 1961 THROUGH MAY 1962 ON THE BASIS OF THE CORRECTION OF THE MEMBER'S RECORDS.

SERGEANT WISMAN APPARENTLY DESERTED HIS FAMILY ON OR ABOUT FEBRUARY 4, 1963, AND THE MARRIAGE WAS TERMINATED BY A FINAL DIVORCE DECREE OF JANUARY 30, 1965. HIS PRESENT WHEREABOUTS IS UNKNOWN. ALTHOUGH HE WAS DIRECTED TO REPORT TO FORT POLK, LOUISIANA, FOR ASSIGNMENT INCIDENT TO THE REENLISTMENT AS OF JUNE 5, 1962, HE HAS NOT RETURNED TO ACTIVE DUTY NOR CLAIMED ANY AMOUNTS PAYABLE TO HIM AS A RESULT OF THE CORRECTION OF HIS RECORDS. YOU ASK THE FOLLOWING QUESTIONS CONCERNING MRS. WISMAN'S ENTITLEMENT TO ANY PORTION OF SUCH AMOUNTS:

A. MAY THE CLAIM BE DIVIDED INTO TWO PARTS? ONE FOR THE ARREARS OF PAY AND ALLOWANCES THAT MAY BE DUE RICHARD L. WISMAN, BASED ON THE CORRECTION OF HIS MILITARY RECORDS, AND THE OTHER FOR THE CLASS Q ALLOTMENT THAT MAY BE DUE HIS FORMER WIFE AND DEPENDENT CHILDREN?

B. IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE, DOES THE FORMER WIFE HAVE THE AUTHORITY, IN HER OWN BEHALF TO SIGN A CERTIFICATE OF ACCEPTANCE THAT WOULD GIVE THE GOVERNMENT A GOOD ACQUITTANCE AS TO THE BAQ PORTION OF THE CLAIM? AS TO THE FULL ALLOTMENT PORTION OF THE CLAIM? AS TO NO PORTION OF THE CLAIM?

C. IF THE ANSWER TO (A) IS IN THE NEGATIVE, DOES THE FORMER WIFE HAVE THE AUTHORITY UNDER THE POWER OF ATTORNEY EXECUTED BY THE FORMER MEMBER ON 10 SEPTEMBER 1954, TO SIGN A CERTIFICATE OF ACCEPTANCE THAT WOULD GIVE THE GOVERNMENT A GOOD ACQUITTANCE AS TO THE BAQ PORTION OF THE CLAIM? AS TO THE FULL ALLOTMENT PORTION OF THE CLAIM? AS TO NO PORTION OF THE CLAIM?

D. IN VIEW OF THE FACT THAT THE FORMER MEMBER'S CLASS Q ALLOTMENT WAS DISCONTINUED UPON HIS ORIGINAL DISCHARGE FROM THE SERVICE ON 27 JUNE 1961, AND HE HAS NOT REINSTATED IT, WOULD THE CORRECTION OF RECORDS AUTOMATICALLY REINSTATE THE CLASS Q ALLOTMENT, OR WOULD IT BE NECESSARY FOR THE SECRETARY OF THE ARMY TO INITIATE THE ALLOTMENT UNDER SECTION 6 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2206, FOR THE OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2206, FOR THE PERIOD 28 JUNE 1961 THROUGH 31 MAY 1962?

E. WOULD THE ALLOTMENT BE IN THE AMOUNT OF BAQ ONLY, OR WOULD IT BE IN THE FULL AMOUNT?

F. IF ANY AMOUNT OF THE CLAIM IS FOUND BY YOU TO BE DUE MRS. WISMAN, SHOULD A CERTIFICATE OF ACCEPTANCE BE SECURED FROM HER PRIOR TO PAYMENT WHICH WOULD INCLUDE A CLAUSE RELEASING THE UNITED STATES FROM FURTHER CLAIM FOR THE ALLOTMENT BY REASON OF CORRECTION OF RECORDS, AND FURTHER THAT SHE HAS NOT BEEN COMPENSATED BY CONGRESS, OR IN ANY OTHER MANNER, OTHER THAN WELFARE PAYMENTS?

IT IS WELL ESTABLISHED THAT UPON CORRECTION OF THE RECORDS PURSUANT TO 10 U.S.C. 1552 A SERVICEMAN'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY AND ALLOWANCES DUE UPON APPLICATION OF THE PAY STATUTES IN EFFECT DURING THE PERIOD INVOLVED TO THE FACTS IN HIS CASE AS THEY APPEAR FROM THE CORRECTED RECORD. SEE 32 COMP. GEN. 242; ID. 372; 34 ID. 7. THE CORRECTION OF THE RECORD HERE HAD THE EFFECT OF RETAINING SERGEANT WISMAN IN AN ACTIVE DUTY STATUS UNTIL THE ISSUANCE OF A CERTIFICATE OF HONORABLE DISCHARGE DATED JUNE 4, 1962. HE WAS NOT RELEASED FROM ACTIVE DUTY UNTIL THAT DATE HE IS ENTITLED TO PAY AND ALLOWANCES THROUGH JUNE 4, 1962. SINCE THE UNDESIRABLE DISCHARGE ISSUED HIM ON JUNE 27, 1961, IS VOID AND OF NO FORCE AND EFFECT HIS VOLUNTARY CLASS Q ALLOTMENT REMAINED IN EFFECT UNTIL HIS RELEASE FROM ACTIVE DUTY.

A CLASS Q ALLOTMENT LIKE OTHER ALLOTMENTS IS AN AUTHORIZATION BY A MEMBER IN THE MILITARY SERVICE TO PAY A SPECIFIED AMOUNT OF HIS PAY AND ALLOWANCES TO HIS DESIGNATED ALLOTTEE. SUCH AUTHORIZATION HAVING REMAINED IN EFFECT, MRS. WISMAN IS ENTITLED TO PAYMENT OF THE CLASS Q ALLOTMENTS DUE AND PAYABLE AS A RESULT OF THE CORRECTION OF THE MEMBER'S RECORD WHICH WERE NOT PAID TO HER UNDER HIS VALID AUTHORIZATION EVEN THOUGH CLAIM FOR ARREARS OF PAY AND ALLOWANCES HAS NOT BEEN RECEIVED FROM THE MEMBER. QUESTIONS A, D AND E ARE ANSWERED ACCORDINGLY.

IN VIEW OF THE ANSWER TO QUESTION A, QUESTION B IS ANSWERED BY SAYING THAT MRS. WISMAN MAY SIGN A CERTIFICATE OF ACCEPTANCE AS TO THE FULL ALLOTMENT PORTION OF THE CLAIM AND QUESTION C REQUIRES NO ANSWER.

MRS. WISMAN IS THE DESIGNATED ALLOTTEE OF A PORTION OF THE AMOUNT DUE THE PRINCIPAL CLAIMANT AND HER ACCEPTANCE OF THE ALLOTTED AMOUNTS WILL SATISFY HER CLAIM. IT IS UNDERSTOOD THAT ADMINISTRATIVE PROCEDURES APPLICABLE GENERALLY TO RECORD CORRECTION CASES REQUIRE THE SECURING OF CERTIFICATE OF ACCEPTANCE PRIOR TO PAYMENT AND SUCH COURSE OF ACTION MAY BE FOLLOWED IN THIS CASE. QUESTION F IS ANSWERED ACCORDINGLY.

THEREFORE, THE AMOUNT DUE SHOULD BE RECOMPUTED ON THE BASIS OF THE CLASS Q ALLOTMENT IN THE AMOUNT OF $156.90 A MONTH FOR THE PERIOD JULY 1961 THROUGH MAY 1962 AND UPON ADJUSTMENT OF THE AMOUNT DUE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.