B-180750, AUG 29, 1974

B-180750: Aug 29, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHERE RECORDS WHICH MIGHT VERIFY ENTITLEMENT AND NONPAYMENT TO A MEMBER OF THE UNITED STATES ARMY RESERVE FOR ATTENDING INACTIVE DUTY TRAINING DRILLS ARE LOST OR DESTROYED DURING A DELAY IN PRESENTING HIS CLAIM FOR NEARLY FOUR YEARS SUBSEQUENT TO PERFORMANCE OF DUTY. SINCE THE BURDEN OF PROOF AS TO THE EXISTENCE AND NONPAYMENT OF A VALID CLAIM AGAINST THE GOVERNMENT IS ON THE PERSON WHO ASSERTS SUCH CLAIM. JR.: THIS ACTION IS IN RESPONSE TO A LETTER DATED APRIL 30. WHICH DISALLOWED HIS CLAIM FOR THE REASON THAT THERE WAS NOTHING IN THE MEMBER'S RECORD TO SHOW THAT HE WAS AUTHORIZED TO ATTEND THE ASSEMBLIES IN QUESTION IN A PAY STATUS. WHICH WERE SUFFICIENT TO ESTABLISH MR. COCHRANE WAS ASSIGNED TO THE 301ST CIVIL AFFAIRS GROUP.

B-180750, AUG 29, 1974

WHERE RECORDS WHICH MIGHT VERIFY ENTITLEMENT AND NONPAYMENT TO A MEMBER OF THE UNITED STATES ARMY RESERVE FOR ATTENDING INACTIVE DUTY TRAINING DRILLS ARE LOST OR DESTROYED DURING A DELAY IN PRESENTING HIS CLAIM FOR NEARLY FOUR YEARS SUBSEQUENT TO PERFORMANCE OF DUTY, AND INFORMATION SUBMITTED BY THE CLAIMANT PLUS EFFORTS OF THE GENERAL ACCOUNTING OFFICE TO SECURE FURTHER SUBSTANTIATION DO NOT ESTABLISHE SUCH ENTITLEMENT AND NONPAYMENT, THE CLAIM MAY NOT BE CERTIFIED FOR PAYMENT, SINCE THE BURDEN OF PROOF AS TO THE EXISTENCE AND NONPAYMENT OF A VALID CLAIM AGAINST THE GOVERNMENT IS ON THE PERSON WHO ASSERTS SUCH CLAIM.

CLAIM FOR INACTIVE DUTY DRILL PAY - REDMOND C. COCHRANE, JR.:

THIS ACTION IS IN RESPONSE TO A LETTER DATED APRIL 30, 1974, FROM JAMES A. RUNDEL, ESQ., WRITTEN ON BEHALF OF MR. REDMOND C. COCHRANE, JR., CONCERNING HIS ENTITLEMENT TO INACTIVE DUTY DRILL PAY FOR THE PERIOD FEBRUARY 1966 THROUGH NOVEMBER 1967. THAT LETTER REQUESTS RECONSIDERATION BY THIS OFFICE OF THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED APRIL 16, 1974, WHICH DISALLOWED HIS CLAIM FOR THE REASON THAT THERE WAS NOTHING IN THE MEMBER'S RECORD TO SHOW THAT HE WAS AUTHORIZED TO ATTEND THE ASSEMBLIES IN QUESTION IN A PAY STATUS.

MR. COCHRANE'S ATTORNEY CONTENDS THAT THE UNITED STATES ARMY HAD THE BASIC RESPONSIBILITY FOR MAINTAINING THE RECORDS OF THE MEMBER AND THAT THOSE RECORDS, WHICH WERE SUFFICIENT TO ESTABLISH MR. COCHRANE'S ENTITLEMENT TO THE PAY IN QUESTION, HAD BEEN LOST BY THE ARMY. IN SUPPORT OF THE MEMBER'S ENTITLEMENT, MR. RUNDEL REFERS TO THE LETTER FROM THE 301ST CIVIL AFFAIRS GROUP, ADDRESSED TO THE UNITED STATES ARMY FINANCE SUPPORT AGENCY, DATED MARCH 24, 1972, REQUESTING THAT DRILL PAYMENT BE MADE TO MR. COCHRANE, AS SUBSTANTIATING THE MEMBER'S ENTITLEMENT TO RESERVE TRAINING PAY, SINCE THE LETTER MAKES REFERENCE TO THE FACT THAT PAYMENT HAD NOT BEEN MADE AND THAT THE DOCUMENTATION SUBMITTED TO THE FINANCE OFFICE, FORT MACARTHUR, CALIFORNIA, WHICH WOULD SUPPORT ENTITLEMENT HAD BEEN LOST OR DESTROYED.

OUR FILE SHOWS THAT DURING THE PERIOD IN QUESTION, MR. COCHRANE WAS ASSIGNED TO THE 301ST CIVIL AFFAIRS GROUP, LOS ANGELES, CALIFORNIA, AND ATTACHED INTERMITTENTLY TO THE 351ST CIVIL AFFAIRS AREA, MOUNTAIN VIEW, CALIFORNIA, FOR TRAINING. PARAGRAPH 35A OF ARMY REGULATION 140-1, DATED JANUARY 25, 1966, THEN APPLICABLE, PROVIDED THAT THE UNIT COMMANDER IS AUTHORIZED TO GRANT CREDIT FOR CONSTRUCTIVE ATTENDANCE AT RESERVE DUTY TRAINING FOR INDIVIDUALS PARTICIPATING IN EQUIVALENT TRAINING IN LIEU OF ATTENDING SCHEDULED TRAINING ASSEMBLIES OF THEIR ASSIGNED UNIT, WITH ENTITLEMENT TO PAY AND RETIREMENT POINT CREDIT.

RECORDS AT THE U.S. ARMY RESERVE COMPONENTS PERSONNEL AND ADMINISTRATION CENTER, ST. LOUIS, MISSOURI, INDICATE THAT MR. COCHRANE ATTENDED 78 DRILL ASSEMBLIES FROM FEBRUARY 1, 1966, THROUGH NOVEMBER 19, 1967, BUT CONTAIN NO INFORMATION REGARDING THE REASON FOR SUCH ASSIGNMENT/ATTACHMENT STATUS NECESSARY FOR DETERMINING DRILL ATTENDANCE FOR PAYMENT PURPOSES.

THE FILE FURTHER INDICATES THAT THE FIRST WRITTEN EVIDENCE OF AN INQUIRY BY MR. COCHRANE REGARDING NONPAYMENT FOR THIS RESERVE DUTY TRAINING IS A LETTER DATED JUNE 30, 1971, FROM THE FINANCE OFFICER, 351ST CIVIL AFFAIRS AREA, TO MR. COCHRANE. IN THAT LETTER, MR. COCHRANE WAS INFORMED THAT SINCE NEARLY FOUR YEARS HAD ELAPSED AFTER THE PERIOD FOR WHICH DRILL PAY WAS CLAIMED, HIS FINANCIAL RECORDS AND STATEMENTS OF ATTENDANCE HAD BEEN FORWARDED TO HIS PARENT UNIT AND WERE NO LONGER MAINTAINED BY THE 351ST CIVIL AFFAIRS AREA. THIS LETTER FURTHER EXPLAINED THAT HAD THE MATTER BEEN PRESENTED WITHIN A REASONABLE TIME HIS FINANCIAL RECORDS AND COPIES OF DEPARTMENT OF ARMY FORM 1380 (RECORD OF INDIVIDUAL PERFORMANCE OF RESERVE DUTY TRAINING), PREVIOUSLY FORWARDED TO HIS UNIT OF ASSIGNMENT WOULD BE AVAILABLE.

THE NEXT WRITTEN REQUEST CONCERNING PAYMENT IS A LETTER DATED MARCH 24, 1972, FROM WARRANT OFFICER P.A. JOHNSON, ASSISTANT ADJUTANT, 301ST CIVIL AFFAIRS GROUP, ADDRESSED TO THE UNITED STATES ARMY FINANCE SUPPORT AGENCY, FORT BENJAMIN HARRISON, INDIANA. THIS LETTER ENCLOSED A RECAPITULATION OF THE DATES MR. COCHRANE ATTENDED INACTIVE TRAINING ASSEMBLIES FOR THE PERIOD FEBRUARY 1, 1966, THROUGH NOVEMBER 19, 1967, AS EXTRACTED FROM THE RECORDS OF THE U.S. ARMY RESERVE COMPONENTS AND PERSONNEL CENTER, ST. LOUIS, MISSOURI, BUT DID NOT INDICATE WHETHER SUCH ATTENDANCE WAS IN A PAY STATUS OR FOR RETIREMENT POINT CREDIT. THE LETTER, HOWEVER, INDICATES THAT A REQUEST FOR PAYMENT WAS SUBMITTED TO THE FINANCE OFFICER AT FORT MACARTHUR, WAS LOST OR DESTROYED. FURTHER, THAT LETTER INDICATES THAT NEITHER OF THE UNITS TO WHICH THE MEMBER WAS ASSIGNED/ATTACHED IS ABLE TO RECONSTRUCT THE NECESSARY DOCUMENTS DUE TO LAPSE OF TIME SINCE THE MEMBER'S RECORDS ARE NO LONGER BEING LONGER BEING MAINTAINED AT EITHER HEADQUARTERS.

THE INFORMATION CONTAINED IN THE ABOVE-MENTIONED LETTER WAS CONSIDERED IN OUR ORIGINAL DETERMINATION. WHILE STATEMENTS OF ATTENDANCE AT INACTIVE DUTY TRAINING ASSEMBLIES WERE INCLUDED THEREIN, NO EVIDENCE OF AUTHORIZATION FOR DRILL PAY WAS SUBMITTED.

WHILE THE BURDEN OF PROOF AS TO THE EXISTENCE AND NONPAYMENT OF A VALID CLAIM AGAINST THE GOVERNMENT IS ON THE PERSON WHO ASSERTS SUCH CLAIM, IN MANY INSTANCES FACTUAL VERIFICATION OF BOTH ENTITLEMENT AND NONPAYMENT OF A CLAIM CAN BE FOUND IN GOVERNMENT RECORDS. IN THIS REGARD AND SINCE THIS OFFICE DOES NOT MAINTAIN MILITARY RECORDS, AN ATTEMPT WAS MADE TO SECURE INFORMATION FROM THE APPROPRIATE MILITARY ACTIVITY IN ORDER TO MAKE A DETERMINATION OF MR. COCHRANE'S ENTITLEMENT. IN RESPONSE TO SUCH EFFORTS, THE U.S. ARMY RESERVE COMPONENTS PERSONNEL AND ADMINISTRATION CENTER ADVISED THIS OFFICE BY LETTER DATED MARCH 29, 1974, THAT THEY RECHECKED THE UNIT TRAINING RECORDS OF BOTH THE 301ST AND 351ST CIVIL AFFAIRS UNITS AND WERE ABLE TO PROVIDE THE FOLLOWING FACTUAL INFORMATION:

"*** MR. COCHRANE ATTENDED 78 ASSEMBLIES FROM 1 FEBRUARY 1966 THRU 19 NOVEMBER 1967. THE TRAINING RECORDS INDICATE THAT ALL DRILLS ATTENDED SUBSEQUENT TO 20 SEPTEMBER 1966 WERE FOR THE AWARD OF RETIREMENT POINTS ONLY. HOWEVER, ARMY REGULATIONS PROVIDE THAT RESERVISTS MAY ATTEND PERIODS OF TRAINING IN AN ATTACHED STATUS WITH OTHER THAN THEIR ASSIGNED UNIT, WHEN TRAINING IS IN THE RESERVIST'S MILITARY OCCUPATIONAL SPECIALTY AND IS BENEFICIAL TO THE RESERVIST AND THE ARMY. ORDERS FOR ATTACHMENTS IN EXCESS OF 90 DAYS STATE THAT THE ATTACHMENT IS FOR THE PURPOSE OF ADMINISTRATION AND TRAINING. THE MEMBER'S NAME IS DELETED FROM THE STRENGTH OF THE ASSIGNED UNIT AND ADDED TO THE STRENGTH ACCOUNTABILITY OF THE UNIT OF ATTACHMENT. ***"

IN THE CIRCUMSTANCES, IT APPEARS REASONABLE TO CONCLUDE THAT APPROPRIATE ORDERS WERE ISSUED ATTACHING THE MEMBER TO THE 351ST CIVIL AFFAIRS AREA, EVEN THOUGH SUCH ORDERS CANNOT BE LOCATED. HOWEVER, SUCH A CONCLUSION DOES NOT CREATE AN INFERENCE THAT SUCH ORDERS AUTHORIZED THE MEMBER TO ATTEND SUCH ASSEMBLIES IN A DRILL PAY STATUS. SINCE AVAILABLE UNIT TRAINING RECORDS INDICATE THAT THE DRILLS ATTENDED BY MR. COCHRANE SUBSEQUENT TO SEPTEMBER 20, 1966, WERE FOR THE AWARD OF RETIREMENT POINTS ONLY, WE MUST PRESUME THE ACCURACY OF THOSE RECORDS FOR THE PURPOSE OF ESTABLISHING MR. COCHRANE'S STATUS, AND MUST CONCLUDE THAT IN THE ABSENCE OF CLEAR AND COGENT EVIDENCE TO THE CONTRARY, MR. COCHRANE WAS NOT AN AUTHORIZED DIRLL PAY STATUS AT THE TIME.

FURTHER, EVEN IF MR. COCHRANE CAN CONCLUSIVELY ESTABLISH THAT HE WAS IN A DRILL PAY STATUS RATHER THATN A RETIREMENT POINT ONLY STATUS AT THE TIME, WE CANNOT ASSUME THAT HE WOULD CURRENTLY BE ENTITLED TO PAYMENT.

RECORDS SUFFICIENT TO SHOW EITHER ENTITLEMENT OR PAYMENT FOR ATTENDANCE AT THE RESERVE DRILLS HAVE BECOME UNAVAILABLE DUE TO LAPSE OF TIME. SINCE PAYMENTS OF THIS TYPE ARE ORDINARILY MADE AS A MATTER OF COURSE, THE PRESUMPTION IS THAT, IF PAYMENT WAS DUE IT WAS MADE TO HIM SHORTLY AFTER THE DUTY WAS PERFORMED. WE NOTE PARTICULARLY IN THAT CONNECTION THE DELAY BETWEEN THE PERIOD FOR WHICH PAYMENT WOULD HAVE OTHERWISE BECOME DUE AND MR. COCHRANE'S INITIAL INQUIRY REGARDING THE MATTER.

MR. COCHRANE FAILED TO FURNISH EVIDENCE CLEARLY AND SATISFACTORILY ESTABLISHING THE EXISTENCE OF AN ENTITLEMENT AND THE NONPAYMENT OF THE AMOUNT WHICH MAY HAVE BEEN DUE HIM. THEREFORE, THE RECORD, AS SUPPLEMENTED THROUGH ADDITIONAL INQUIRY, DOES NOT ESTABLISH THE LEGAL LIABILITY OF THE UNITED STATES AND IN THE ABSENCE OF SUCH EVIDENCE THIS OFFICE HAS NO AUTHORITY TO CERTIFY SUCH A CLAIM FOR PAYMENT.

FOR THE FOREGOING REASONS, THE ACTON OF THE TRASOPORTATION AND CLAIMS DIVISION IN DENYING THE CLAIM OF MR. COCHRANE TO PAYMENT FOR ATTENDING INACTIVE DUTY TRAINING DRILLS DURING THE PERIOD FEBRUARY 1, 1966, THROUGH NOVEMBER 19, 1967, IS SUSTAINED.