B-177290, MAY 15, 1973

B-177290: May 15, 1973

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YOU WERE HONORABLY DISCHARGED ON MARCH 21. YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS UNDER THE PROVISIONS OF AIR FORCE REGULATION NO. 39- 17 AS AN AIRMAN BASIC AT KELLY AIR FORCE BASE. YOU WERE ISSUED A GENERAL DISCHARGE CERTIFICATE SHOWING THAT YOU WERE DISCHARGED ON AUGUST 25. TRAVEL PAY BACK TO POINT OF ENLISTMENT WHICH WAS RHEIN/MAIN. YOU STATED THAT YOU WERE UNABLE TO LOCATE ANY RECORDS PERTAINING TO LEAVE. IN THE TRANSMITTAL LETTER IT WAS REPORTED. THAT THE RECORDS FOR THE PERIOD OF YOUR CLAIM HAVE BEEN DESTROYED. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SINCE THE RECORDS NECESSARY TO JUSTIFY OR REFUTE THE CLAIM HAVE BEEN DESTROYED PURSUANT TO LAW OR HAVE OTHERWISE BECOME UNAVAILABLE.

B-177290, MAY 15, 1973

DECISION ALLOWING A PORTION OF CLAIM OF BILLY D. MCCORD FOR PAY AND ALLOWANCES DUE TO CHANGE OF AIR FORCE DISCHARGE TO HONORABLE CONDITIONS.

TO MR. BILLY D. MCCORD:

WE AGAIN REFER TO YOUR LETTER DATED SEPTEMBER 5, 1972, WITH ENCLOSURES, REQUESTING A REVIEW OF OFFICE SETTLEMENT DATED NOVEMBER 20, 1968, WHICH DISALLOWED YOUR CLAIM FOR PAY, TRAVEL, AND TRANSPORTATION ALLOWANCES BELIEVED TO BE DUE YOU INCIDENT TO THE CHANGE OF YOUR DISCHARGE FROM THE AIR FORCE ON AUGUST 25, 1952, TO ONE UNDER HONORABLE CONDITIONS.

OUR FILE SHOWS THAT FOLLOWING YOUR HONORABLE DISCHARGE FROM THE UNITED STATES COAST GUARD ON FEBRUARY 25, 1948, YOU ENLISTED IN THE AIR FORCE ON JUNE 5, 1948, FOR A PERIOD OF 3 YEARS. YOU WERE HONORABLY DISCHARGED ON MARCH 21, 1950, PRIOR TO THE TERMINATION OF YOUR ENLISTMENT, AND ON THE FOLLOWING DAY AND PURSUANT TO THE PROVISIONS OF PARAGRAPH 31B(2), AIR FORCE REGULATION NO. 39-9, DATED APRIL 15, 1949, YOU REENLISTED FOR YOUR OWN VACANCY. ON AUGUST 25, 1952, YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS UNDER THE PROVISIONS OF AIR FORCE REGULATION NO. 39- 17 AS AN AIRMAN BASIC AT KELLY AIR FORCE BASE, TEXAS, LOCATED SEVERAL MILES FROM SAN ANTONIO, TEXAS.

SOMETIME AFTER YOUR DISCHARGE YOU APPLIED TO THE AIR FORCE DISCHARGE REVIEW BOARD FOR A REVIEW OF THE CHARACTER OF YOUR DISCHARGE AND IN NOVEMBER 1967, AS A RESULT OF FAVORABLE ACTION 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 ON AUGUST 25, 1952, UNDER HONORABLE CONDITIONS. BASED ON THIS CHANGE OF THE CHARACTER OF YOUR DISCHARGE, YOU PRESENTED A CLAIM TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, IN A LETTER DATED JANUARY 23, 1968. YOU ENCLOSED A COPY OF NEWLY-ISSUED FORM DD-214 "ARMED FORCES OF THE UNITED STATES - REPORT OF TRANSFER OR DISCHARGE" AND IN STATING THAT YOU HAD 36 DAYS OF ACCRUED LEAVE, YOU CLAIMED PAYMENT THEREFOR AS WELL AS FOR THE "KOREAN BONUS, AND TRAVEL PAY BACK TO POINT OF ENLISTMENT WHICH WAS RHEIN/MAIN, GERMANY."

IN A SUBSEQUENT LETTER DATED JULY 15, 1968, YOU STATED THAT YOU WERE UNABLE TO LOCATE ANY RECORDS PERTAINING TO LEAVE, TRAVEL PAY AND TRANSPORTATION REQUESTS AND YOU CLAIMED, ADDITIONALLY, SIX PERCENT INTEREST ON THE MONEYS BELIEVED TO BE DUE AND REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR WIFE FROM FRANKFURT, GERMANY, TO THE UNITED STATES.

THE AIR FORCE ACCOUNTING AND FINANCE CENTER TRANSMITTED YOUR CLAIM TO OUR CLAIMS DIVISION (NOW TRANSPORTATION AND CLAIMS DIVISION) ON SEPTEMBER 3, 1968, FOR SETTLEMENT. IN THE TRANSMITTAL LETTER IT WAS REPORTED, AMONG OTHER THINGS, THAT THE RECORDS FOR THE PERIOD OF YOUR CLAIM HAVE BEEN DESTROYED. BY SETTLEMENT DATED NOVEMBER 20, 1968, YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SINCE THE RECORDS NECESSARY TO JUSTIFY OR REFUTE THE CLAIM HAVE BEEN DESTROYED PURSUANT TO LAW OR HAVE OTHERWISE BECOME UNAVAILABLE, A DETERMINATION CANNOT BE MADE AS TO WHETHER ANY PAY AND ALLOWANCES ARE DUE YOU AS A RESULT OF THE CORRECTION OF YOUR DISCHARGE CERTIFICATE.

IN YOUR LETTER OF SEPTEMBER 5, 1972, YOU REFER TO THE SETTLEMENT OF NOVEMBER 20, 1968, AND YOU FURNISHED A COPY OF THE FORM DD-214 "REPORT OF SEPARATION FROM THE ARMED FORCES OF THE UNITED STATES," WHICH WAS ISSUED TO YOU AT THE TIME OF DISCHARGE, TO SHOW THAT YOU RECEIVED THE SUM OF $47.47 AS FINAL PAY AND AS PROOF THAT YOU HAD 36 DAYS OF ACCRUED LEAVE AND HAD RECEIVED NO TRAVEL PAY.

WHILE THE COPY OF THE ORIGINAL FORM DD-214 SHOWS THAT YOU HAD 36 DAYS OF ACCRUED LEAVE ON DATE OF DISCHARGE, THAT INFORMATION MAY NOT BE ACCEPTED AS EVIDENCE OF THE FACT THAT PAYMENT THEREFOR WAS NOT MADE TO YOU. THIS CONNECTION, THE RECORD OF YOUR FURLOUGHS AND LEAVE FOR THE PERIOD JULY 1, 1949, TO AUGUST 25, 1952, COPY ENCLOSED, CONTAINS A NOTATION DATED AUGUST 25, 1952, THAT A CASH SETTLEMENT FOR THE 36 DAYS UNUSED LEAVE WAS PAID TO YOU ON DISCHARGE. IN THE ABSENCE OF OFFICIAL DOCUMENTARY EVIDENCE SHOWING THAT YOU WERE NOT IN FACT PAID FOR SUCH LEAVE, NO AUTHORITY NOW EXISTS FOR PAYMENT TO YOU ON ACCOUNT OF THAT LEAVE ACCRUAL. PRESUMABLY, THE AMOUNT OF $47.47 SHOWN ON THE FORM DD 214 AS "TOTAL PAYMENT UPON SEPARATION" REPRESENTS THE NET AMOUNT FOUND DUE YOU AFTER APPLYING DEBIT ITEMS AGAINST CREDIT ITEMS IN YOUR PAY ACCOUNT. PAID VOUCHER NO. 14703 WHICH WAS MENTIONED IN YOUR LETTER OF JULY 15, 1968, AND WHICH COVERED THE FINAL PAYMENT OF $47.47 TO YOU IS NO LONGER AVAILABLE AS IT WAS DESTROYED IN ACCORDANCE WITH LAW.

TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, APPROVED JULY 16, 1952, 66 STAT. 688, 38 U.S.C. 1011-1016 (1952 ED.), PROVIDED THAT MUSTERING-OUT PAY WAS TO BE PAID TO ELIGIBLE MEMBERS WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950, AND WHO WERE DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS. SINCE YOU WERE DISCHARGED ON AUGUST 25, 1952, UNDER OTHER THAN HONORABLE CONDITIONS, YOU WERE NOT ENTITLED TO SUCH PAY UPON DISCHARGE NOTWITHSTANDING THAT YOU HAD SERVED ON ACTIVE DUTY ON AND AFTER JUNE 27, 1950. HOWEVER, INASMUCH AS THE CHARACTER OF YOUR DISCHARGE WAS CHANGED TO ONE UNDER HONORABLE CONDITIONS, AND THE RECORD SHOWS THAT YOU HAD ACTIVE SERVICE FOR MORE THAN 60 DAYS AND HAD SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, YOU ARE ENTITLED TO A MUSTERING-OUT PAYMENT OF $300 UNDER 38 U.S.C. 1012(A)(1)(1952 ED).

CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES FOR PERSONAL TRAVEL FROM PLACE OF DISCHARGE, KELLY AIR FORCE BASE, TEXAS, TO PLACE OF REENLISTMENT, RHEIN/MAIN AIR BASE, GERMANY, THERE IS FOR APPLICATION THE PROVISIONS OF PARAGRAPH M4153, CASE 19 (CHANGE 2, DATED AUGUST 1, 1952) OF THE JOINT TRAVEL REGULATIONS, WHICH READS AS FOLLOWS:

CASE 19. DISCHARGE TO CONTINUE IN THE SERVICE

A MEMBER WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING IN THE SERVICE (OTHER THAN EXPIRATION OF ENLISTMENT) IN THE SAME OR IN ANOTHER STATUS IS NOT ENTITLED TO MILEAGE ON SUCH DISCHARGE. UPON ULTIMATE SEPARATION FROM THE SERVICE OR RELIEF FROM ACTIVE DUTY, HE IS ENTITLED TO MILEAGE, IF OTHERWISE PAYABLE, FROM THE PLACE OF SEPARATION FROM THE SERVICE OR RELIEF FROM ACTIVE DUTY TO THE PLACE OF ENTRY INTO THE SERVICE, TO THE PLACE OF INDUCTION, TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, OR TO THE HOME OF RECORD, AS HE MAY ELECT (SEE CASE 9.).

CASE 9 MENTIONED ABOVE PROVIDES THAT A MEMBER WHO IS SEPARATED FROM THE SERVICE UNDER HONORABLE CONDITIONS IS ENTITLED TO MILEAGE FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD OR TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, COMMISSION, OR APPOINTMENT, AS HE MAY ELECT.

AS STATED ABOVE, YOU ENLISTED IN THE AIR FORCE ON JUNE 5, 1948, FOR A PERIOD OF 3 YEARS. ON YOUR ENLISTMENT APPLICATION YOU SHOWED THE PLACE OF ENLISTMENT AS SAN ANTONIO, TEXAS, AND YOUR HOME ADDRESS AS ROUTE 1, BOX 181, STOCKDALE, TEXAS. PRIOR TO THE EXPIRATION OF THAT ENLISTMENT, THAT IS, ON MARCH 22, 1950, YOU REENLISTED AT RHEIN/MAIN AIR BASE, GERMANY. VIEW OF THE ABOVE REGULATIONS, YOU ARE NOT ENTITLED TO MILEAGE FROM KELLY AIR FORCE BASE TO RHEIN/MAIN AIR BASE SINCE YOU WERE ULTIMATELY DISCHARGED AT SAN ANTONIO AND NOT RHEIN/MAIN AIR BASE. HOWEVER, SINCE THOSE REGULATIONS PERMIT AN ELECTION OF MILEAGE FROM PLACE OF DISCHARGE TO HOME OF RECORD AND SINCE IT IS PRESUMED THAT YOU WOULD HAVE ELECTED TO ACCEPT MILEAGE FROM PLACE OF DISCHARGE TO YOUR HOME OF RECORD AT THE TIME OF DISCHARGE YOU ARE ENTITLED TO MILEAGE FOR THE OFFICIAL DISTANCE BETWEEN SAN ANTONIO AND STOCKDALE.

CONCERNING THAT PORTION OF YOUR CLAIM RELATING TO THE TRANSPORTATION OF YOUR DEPENDENT WIFE FROM FRANKFURT, GERMANY, TO THE UNITED STATES, THE ORIGINAL FORM DD-214 (ITEM 45) INDICATES YOUR MARITAL STATUS AS SINGLE ON DATE OF DISCHARGE (AUGUST 25, 1952). IT MAY BE POINTED OUT, HOWEVER, THAT IN THE EVENT YOU WERE MARRIED PRIOR TO YOUR RETURN TO THE UNITED STATES THEN ANY RIGHT FOR THE TRANSPORTATION OF YOUR WIFE TO THE UNITED STATES ACCRUED AT THE TIME YOU RECEIVED ORDERS WHICH TRANSFERRED YOU FROM RHEIN/MAIN AIR BASE TO A PERMANENT STATION IN THE UNITED STATES. SINCE THE RECORD SHOWS THAT YOU DEPARTED FROM RHEIN/MAIN AIR BASE ON SEPTEMBER 13, 1951, WE HAVE NO ALTERNATIVE BUT TO APPLY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH BARS FROM CONSIDERATION ANY CLAIM COGNIZABLE BY THIS OFFICE (GENERAL ACCOUNTING OFFICE) IF NOT RECEIVED THEREIN WITHIN 10 YEARS AFTER THE CLAIM FIRST ACCRUED. YOUR CLAIM ON ACCOUNT OF HER TRANSPORTATION TO THE UNITED STATES WAS NOT RECEIVED HERE UNTIL SEPTEMBER 5, 1968, OR A PERIOD OF MORE THAN 10 YEARS AFTER YOUR DISCHARGE AND AFTER THE RIGHT TO REIMBURSEMENT OF THE EXPENSES THEREOF ACCRUED, AND HENCE, WE ARE PRECLUDED BY THE ABOVE ACT FROM CONSIDERING YOUR ENTITLEMENTS IN THIS REGARD.

INASMUCH AS YOU WERE DISCHARGED AT A STATION IN THE CONTINENTAL UNITED STATES, THE CHANGE OF THE CHARACTER OF YOUR DISCHARGE WOULD AFFECT YOUR ENTITLEMENT TO THE TRANSPORTATION OF YOUR WIFE AT GOVERNMENT EXPENSE ONLY FROM THE PLACE WHERE YOU WERE DISCHARGED TO THE PLACE WHERE YOU HAD OR WOULD HAVE ELECTED TO RECEIVE MILEAGE ON ACCOUNT OF YOUR OWN TRAVEL. THE REGULATION THEN IN EFFECT, PARAGRAPH M7000, ITEM 1 (CHANGE 2, DATED AUGUST 1, 1952), OF THE JOINT TRAVEL REGULATIONS PRECLUDES TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF ENLISTED MEMBERS OF THE PAY GRADES E-4 WITH LESS THAN 7 YEARS OF SERVICE, E-3, E-2, AND E-1.

YOU WERE AN AIRMAN BASIC (E-1) AT THE TIME YOU WERE DISCHARGED. ACCORDINGLY NO AMOUNT IS PAYABLE TO YOU ON ACCOUNT OF ANY TRAVEL THAT MAY HAVE BEEN PERFORMED BY YOUR WIFE FROM KELLY AIR FORCE BASE AFTER YOUR DISCHARGE FROM THE AIR FORCE.

WE ARE INSTRUCTING OUR TRANSPORTATION AND CLAIMS DIVISION TODAY TO ALLOW YOUR CLAIM ON THE BASIS AS INDICATED ABOVE. NO INTEREST WILL BE COMPUTED ON THE AMOUNT DETERMINED TO BE ALLOWABLE INASMUCH AS THERE IS NO STATUTORY OR CONTRACT PROVISION WHICH OBLIGATES THE UNITED STATES TO PAY INTEREST ON CLAIMS SUCH AS IN YOUR CASE.

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