B-161607, JUN. 21, 1967

B-161607: Jun 21, 1967

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MEYER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5. YOU WERE INFORMED IN CLAIMS DIVISION LETTER OF MAY 2. WAS IN FAVOR OF THE UNITED STATES "AND IN NOWISE STATED THAT ANY AMOUNTS WERE DUE YOU.'. THE GOVERNMENT WAS SEEKING TO RECOVER OVERPAYMENTS OF LONGEVITY PAY THAT YOU RECEIVED WHILE SERVING ON ACTIVE DUTY IN THE AIR FORCE DURING THE PERIOD OCTOBER 1. PLUS THE UNEARNED PORTION OF THE SIX-YEAR REENLISTMENT BONUS THAT WAS PAID TO YOU UPON YOUR REENLISTMENT IN THE AIR FORCE OCTOBER 2. SINCE THE AMOUNT OF $616.59 WAS COLLECTED FROM YOU BY DEDUCTIONS MADE IN YOUR MILITARY PAY RECORDS THROUGH JULY 27. YOU HAVE PRESENTED A CLAIM FOR THE DIFFERENCE. THE LATTER FINDING APPARENTLY WAS BASED.

B-161607, JUN. 21, 1967

TO MR. RICHARD V. MEYER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1967, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE ON YOUR CLAIM FOR AMOUNTS BELIEVED TO BE DUE YOU INCIDENT TO YOUR ENLISTED SERVICE IN THE UNITED STATES AIR FORCE AS A CONSEQUENCE OF THE JUDGMENT ENTERED DECEMBER 22, 1965, BY THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA, CENTRAL DIVISION, IN CIVIL ACTION NO. 64-1398-S, ENTITLED UNITED STATES OF AMERICA V. RICHARD V. MEYER. YOU WERE INFORMED IN CLAIMS DIVISION LETTER OF MAY 2, 1967, THAT THE JUDGMENT OF DECEMBER 22, 1965, WAS IN FAVOR OF THE UNITED STATES "AND IN NOWISE STATED THAT ANY AMOUNTS WERE DUE YOU.'

IN THE CIVIL ACTION ABOVE REFERRED TO, THE GOVERNMENT WAS SEEKING TO RECOVER OVERPAYMENTS OF LONGEVITY PAY THAT YOU RECEIVED WHILE SERVING ON ACTIVE DUTY IN THE AIR FORCE DURING THE PERIOD OCTOBER 1, 1952, TO JULY 27, 1960 (DATE OF YOUR FINAL SEPARATION FROM THE SERVICE), PLUS THE UNEARNED PORTION OF THE SIX-YEAR REENLISTMENT BONUS THAT WAS PAID TO YOU UPON YOUR REENLISTMENT IN THE AIR FORCE OCTOBER 2, 1956. INCORPORATING THE FINDINGS OF FACT IN ITS CONCLUSIONS OF LAW IN THE CASE, THE DISTRICT COURT RENDERED JUDGMENT ON DECEMBER 22, 1965, FINDING YOU INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $379.37, LESS ANY AMOUNT COLLECTED FROM YOU PRIOR TO YOUR DISCHARGE FROM THE SERVICE ON JULY 27, 1960. SINCE THE AMOUNT OF $616.59 WAS COLLECTED FROM YOU BY DEDUCTIONS MADE IN YOUR MILITARY PAY RECORDS THROUGH JULY 27, 1960, THE DATE OF YOUR FINAL SEPARATION FROM THE AIR FORCE, YOU HAVE PRESENTED A CLAIM FOR THE DIFFERENCE, $237.22 ($616.59 LESS $379.37), BELIEVED TO BE DUE YOU AS A RESULT OF THE JUDGMENT OF DECEMBER 22, 1965.

IN FINDING OF FACT NO. 3 THE COURT FOUND THAT YOU "ENLISTED IN THE ILLINOIS NATIONAL GUARD ON MARCH 12, 1931, AND SERVED THEREIN UNTIL JANUARY 7, 1935.' IN FINDING OF FACT NO. 15 THE COURT FOUND THAT PRIOR TO YOUR ENLISTMENT IN THE UNITED STATES AIR FORCE ON OCTOBER 2, 1952, YOU "HAD SERVED 31 MONTHS AND SIX DAYS IN THE ARMED FORCES OF THE UNITED STATES.' THE LATTER FINDING APPARENTLY WAS BASED, IN PART, ON AN OFFICIAL STATEMENT OF SERVICE FURNISHED BY THE MILITARY AND NAVAL DEPARTMENT OF THE STATE OF ILLINOIS UNDER DATE OF OCTOBER 16, 1962 (COPY HEREWITH), SHOWING THAT YOU SERVED IN THE ILLINOIS NATIONAL GUARD ONLY FROM SEPTEMBER 17, 1934, TO FEBRUARY 13, 1935, AND FROM MAY 20 TO SEPTEMBER 13, 1935.

IN FINDING OF FACT NO. 18 THE COURT STATED THAT:

"IT IS NOT TRUE THAT DEFENDANT WAS PAID WHILE IN THE ARMED SERVICES AT A RATE OF SENIORITY OTHER THAN THE RATE AT WHICH HE WAS ENTITLED TO BE PAID. PLAINTIFF UNITED STATES OF AMERICA HAS NOT MET ITS BURDEN OF PROOF AND HAS NOT SUFFICIENTLY PROVED TO THIS COURT THAT DEFENDANT WAS PAID AT A RATE OF SENIORITY OTHER THAN THE RATE TO WHICH HE WAS ENTITLED.'

THE CONCLUSION REACHED BY THE COURT THAT YOU WERE ENTITLED TO COUNT THE PERIOD MARCH 12, 1931, TO JANUARY 7, 1935 (45 MONTHS AND 26 DAYS) IN YOUR LONGEVITY RATE OF ACTIVE DUTY PAY IS IN DIRECT CONFLICT WITH FINDING OF FACT NO. 15 WHEREIN THE COURT FOUND THAT PRIOR TO YOUR ENTRANCE ON ACTIVE DUTY IN THE AIR FORCE IN OCTOBER 1952 YOU HAD SERVED A TOTAL OF 31 MONTHS AND 6 DAYS IN THE ARMED FORCES OF THE UNITED STATES. THE LATTER PERIOD RESULTS IN A PAY ENTRY BASE DATE OF FEBRUARY 25, 1950, AND THAT IS THE EXACT DATE WHICH FORMED THE BASIS FOR THE STATEMENT OF OVERPAYMENT OF LONGEVITY PAY SET FORTH IN THE CERTIFICATE OF INDEBTEDNESS ISSUED BY THE CLAIMS DIVISION OF THIS OFFICE ON NOVEMBER 13, 1963. ON THE BASIS OF FINDING OF FACT NO. 15, THE JUDGMENT OF DECEMBER 22, 1965, APPEARS TO BE IN ERROR WITH RESPECT TO YOUR LONGEVITY PAY STATUS. IN SUCH CIRCUMSTANCES, AND SINCE YOU DID NOT SEEK AND THE COURT DID NOT ENTER JUDGMENT IN YOUR FAVOR BY WAY OF COUNTERCLAIM, WE MUST RELY ON THE STATEMENT FURNISHED BY THE STATE OF ILLINOIS WITH RESPECT TO YOUR SERVICE IN THE ILLINOIS NATIONAL GUARD SINCE THIS IS THE ONLY PRIMARY EVIDENCE FURNISHED THIS OFFICE AS TO THIS MATTER WHICH IS BASED ON THE ORIGINAL SOURCE OF INFORMATION CONTAINED IN THE RECORDS OF THE STATE OF ILLINOIS.

THE DISTRICT COURT OF THE UNITED STATES FOUND IN FAVOR OF THE GOVERNMENT IN THE AMOUNT OF $379.37 ON THE REENLISTMENT BONUS ISSUE AND ALLOWED YOU A CREDIT AGAINST THAT INDEBTEDNESS OF THE AMOUNTS WHICH HAD BEEN COLLECTED FROM YOU. SINCE THE RECORD SHOWS THAT MORE THAN $379.37 HAD BEEN COLLECTED FROM YOU YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF OVERPAID REENLISTMENT BONUS HAS BEEN FULLY EXTINGUISHED. FOR THE REASONS STATED ABOVE, HOWEVER, WE DO NOT VIEW THE JUDGMENT OF DECEMBER 22, 1965, AS FURNISHING A PROPER BASIS TO AUTHORIZE THE PAYMENT TO YOU OF THE DIFFERENCE BETWEEN THE AMOUNT OF $616.59 THAT WAS COLLECTED FROM YOU PRIOR TO YOUR DISCHARGE FROM THE AIR FORCE AND THE AMOUNT OF $379.37 WHICH THE COURT FOUND YOU OWED TO THE UNITED STATES BY REASON OF THE OVERPAID REENLISTMENT BONUS. YOUR CLAIM FOR SUCH AMOUNT IS DENIED.

A FURTHER CLAIM IS PRESENTED BY YOU FOR PAYMENT OF AN UNSPECIFIED AMOUNT ON ACCOUNT OF CIVILIAN CLOTHING IN LIEU OF THE ARTICLES OF UNIFORM CLOTHING WHICH YOU STATE WERE TAKEN FROM YOU AT THE TIME OF YOUR DISCHARGE. THERE IS NOTHING IN THE RECORD BEFORE THIS OFFICE CONCERNING THIS MATTER OTHER THAN YOU CLAIM. THE APPLICABLE REGULATIONS IN FORCE AT THE TIME OF YOUR DISCHARGE IN JULY 1960 MERELY PROVIDED FOR FURNISHING ITEMS OF CIVILIAN OUTER CLOTHING, IF NEEDED, SUBJECT TO A SPECIFIC DOLLAR LIMITATION. THOSE REGULATIONS MADE NO PROVISION FOR ANY CASH PAYMENT IN LIEU OF SUCH CIVILIAN OUTER CLOTHING. YOUR CLAIM FOR THIS ITEM ALSO IS DENIED.

THE COPY OF THE PRE-TRIAL CONFERENCE ORDER RECEIVED WITH YOUR LETTER OF MAY 5, 1967, IS RETURNED HEREWITH AS REQUESTED BY YOU.