B-160761, MAR. 2, 1967

B-160761: Mar 2, 1967

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MCCLAMMA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13. THE RECORDS SHOW THAT YOU WERE INDUCTED INTO THE ARMY OF THE UNITED STATES ON JANUARY 10. WERE HONORABLY DISCHARGED ON AUGUST 24. YOU WERE ELIGIBLE FOR AWARD OF THE COMBAT INFANTRYMAN BADGE. THE CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 30. FOR THE REASON THAT YOU WERE AWARDED THE COMBAT INFANTRYMAN BADGE AFTER THE REPEAL OF THE LAW WHICH PROVIDED FOR ADDITIONAL PAY ON ACCOUNT OF SUCH AWARD. YOU SAY THAT YOU MADE CLAIM FOR THE COMBAT INFANTRYMAN BADGE PAY IN 1944 AND THAT YOU INQUIRED ABOUT IT CONTINUALLY BUT NO PAYMENT WAS MADE TO YOU. WAS. SUCH REGULATIONS WERE CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 408.

B-160761, MAR. 2, 1967

TO MR. WILLIS I. MCCLAMMA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1967, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR COMBAT INFANTRYMAN BADGE PAY INCIDENT TO YOUR SERVICE IN THE ARMY OF THE UNITED STATES DURING WORLD WAR II.

THE RECORDS SHOW THAT YOU WERE INDUCTED INTO THE ARMY OF THE UNITED STATES ON JANUARY 10, 1942, AND WERE HONORABLY DISCHARGED ON AUGUST 24, 1945. IN A LETTER DATED AUGUST 18, 1966, THE DEPARTMENT OF THE ARMY, OFFICE OF THE ADJUTANT GENERAL, WASHINGTON, D.C., ADVISED YOU, AMONG OTHER THINGS, THAT UNDER THE PROVISIONS OF PARAGRAPH 83C, ARMY REGULATIONS NO. 672-5-1, YOU WERE ELIGIBLE FOR AWARD OF THE COMBAT INFANTRYMAN BADGE. ALSO, THE DEPARTMENT OF THE ARMY FURNISHED YOU WITH A COPY OF AN AUTHORIZATION FOR THE ISSUANCE OF THE BADGE AND OTHER AWARDS TO YOU.

BY LETTER DATED SEPTEMBER 30, 1966, YOU PRESENTED A CLAIM TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FOR ANY ADDITIONAL PAY WHICH MAY BE DUE YOU ON ACCOUNT OF THE AWARD OF THE COMBAT INFANTRYMAN BADGE. THE CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 30, 1966, FOR THE REASON THAT YOU WERE AWARDED THE COMBAT INFANTRYMAN BADGE AFTER THE REPEAL OF THE LAW WHICH PROVIDED FOR ADDITIONAL PAY ON ACCOUNT OF SUCH AWARD.

IN YOUR LETTER OF JANUARY 13, 1967, YOU SAY THAT YOU MADE CLAIM FOR THE COMBAT INFANTRYMAN BADGE PAY IN 1944 AND THAT YOU INQUIRED ABOUT IT CONTINUALLY BUT NO PAYMENT WAS MADE TO YOU. YOU URGE THAT IN SUCH CIRCUMSTANCES YOUR CLAIM SHOULD BE ALLOWED.

PAYMENT OF THE COMBAT INFANTRYMAN BADGE PAY PROVIDED BY THE ACT OF JUNE 30, 1944, CH. 335, 58 STAT. 648, WAS, BY THE TERMS OF THAT ACT, RESTRICTED TO PERSONS ENTITLED TO WEAR THE COMBAT INFANTRYMAN BADGE UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR. SUCH REGULATIONS WERE CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 408, DATED OCTOBER 17, 1944 (LATER SUPERSEDED BY ARMY REGULATIONS NO. 35-1510, DATED OCTOBER 10, 1946). PARAGRAPHS 4 AND 12D OF THAT CIRCULAR PROVIDED THAT THE EFFECTIVE DATE OF A COMBAT INFANTRYMAN BADGE AWARD WOULD BE THE DATE OF THE ORDER ANNOUNCING THE AWARD UNLESS AN EARLIER SPECIFIC EFFECTIVE DATE IS STATED IN THE ORDER AND THAT THE EFFECTIVE DATE FOR THE ADDITIONAL PAY WOULD BE THE DATE OF THE ORDER, OR AN EARLIER DATE IF SPECIFICALLY STATED THEREIN, BUT THAT IN NO CASE WOULD ADDITIONAL PAY ACCRUE FOR ANY PERIOD BEFORE JANUARY 1, 1944, THE EFFECTIVE DATE OF THE ACT AUTHORIZING SUCH PAY.

THE ACT OF JUNE 30, 1944, SUPRA, WAS TREATED, UNDER THE ABOVE-CITED IMPLEMENTING REGULATIONS, AS PERMITTING THE EXERCISE OF A DISCRETIONARY AUTHORITY FOR THE DEPARTMENT OF THE ARMY TO STATE A RETROACTIVE EFFECTIVE DATE FOR PAY PURPOSES. HOWEVER, THE ACT WAS EXPRESSLY REPEALED EFFECTIVE OCTOBER 1, 1949, BY SECTION 531 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 838, 839, PRIOR TO THE DATE YOU WERE AWARDED THE BADGE. AFTER THE REPEAL OF THE ACT OF JUNE 30, 1944, IT WAS TOO LATE FOR THE DEPARTMENT OF THE ARMY TO GRANT ANY PAY BENEFIT AND THERE WAS NO LONGER ANY AUTHORITY TO FIX AN EFFECTIVE DATE FOR PAY PURPOSES. HENCE, THE AWARD OF THE COMBAT INFANTRYMAN BADGE TO YOU ON AUGUST 18, 1966, CONFERS NO RIGHT TO PAY UNDER THE REPEALED STATUTE AND LEGALLY IT MAY NOT BE GIVEN EFFECT FOR PAY PURPOSES.

WHILE, AS YOU SAY, YOU MAY HAVE MADE INQUIRIES ABOUT THE PAYMENT TO YOU OF COMBAT INFANTRYMAN BADGE PAY BEGINNING IN 1944, PAYMENT COULD NOT BE MADE TO YOU UNTIL YOU BECAME ENTITLED TO WEAR THE BADGE AND PRIOR TO THE REPEAL OF THE LAW, EFFECTIVE OCTOBER 1, 1949, NO ORDER HAD BEEN ISSUED AWARDING YOU THE COMBAT INFANTRYMAN BADGE AND ENTITLING YOU TO RECEIVE THE ADDITIONAL PAY.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 30, 1966, IS CORRECT AND MUST BE SUSTAINED.