B-24693, JUL. 13, 1959

B-24693: Jul 13, 1959

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THE RECORD INDICATES THAT YOU WERE SERVING AS A MASTER SERGEANT STATIONED AT FORT MONMOUTH. PAY RECORDS AVAILABLE TO THIS OFFICE INDICATE THAT YOU WERE PAID A BASE PAY OF $198 PER MONTH AS A MASTER SERGEANT WITH OVER 12 YEARS' SERVICE AND $1.25 PER DAY AS QUARTERS ALLOWANCE FOR YOUR DEPENDENT MOTHER WAS PAID TO HER. WHICH IS AS FOLLOWS: "SEC. 515. SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE: PROVIDED. THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE.

B-24693, JUL. 13, 1959

TO MASTER SERGEANT CORNELIUS J. MURPHY:

YOUR LETTER OF MAY 7, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF SEPTEMBER 29, 1954, DISALLOWING YOUR CLAIM FOR BASIC ALLOWANCE IN LIEU OF QUARTERS FOR YOUR DEPENDENT MOTHER DURING THE PERIOD OF OCTOBER 1, 1949, THROUGH JUNE 16, 1950, AND SUPPLIES ADDITIONAL INFORMATION REQUESTED IN LETTER DATED APRIL 5, 1955, B-24693.

THE RECORD INDICATES THAT YOU WERE SERVING AS A MASTER SERGEANT STATIONED AT FORT MONMOUTH, NEW JERSEY, DURING THE PERIOD OF YOUR CLAIM AND THAT YOUR MOTHER, MRS. MARGARET MURPHY, RESIDED AT 41-21 54TH STREET, WOODSIDE, LONG ISLAND, NEW YORK. PAY RECORDS AVAILABLE TO THIS OFFICE INDICATE THAT YOU WERE PAID A BASE PAY OF $198 PER MONTH AS A MASTER SERGEANT WITH OVER 12 YEARS' SERVICE AND $1.25 PER DAY AS QUARTERS ALLOWANCE FOR YOUR DEPENDENT MOTHER WAS PAID TO HER, DURING THE PERIOD OF OCTOBER 1, 1949, THROUGH JANUARY 30, 1950, UNDER THE SAVED PAY PROVISION OF SECTION 515 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, 37 U.S.C. 315, WHICH IS AS FOLLOWS:

"SEC. 515. (A) NO MEMBER SERVING ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS ACT SHALL, PRIOR TO JULY 1, 1952, AND WHILE SERVING ON CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS FROM THE DATE OF LAST DISCHARGE, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE: PROVIDED, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE; AND (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR * * *.'

THE OFFICIAL PAY RECORDS DO NOT INDICATE THAT ANY COLLECTION OR CHECK AGE OF PREVIOUSLY PAID ALLOWANCE WAS MADE IN YOUR PAY ACCOUNT DURING THE PERIOD OF OCTOBER 1, 1949, THROUGH DECEMBER 31, 1950. AN EXAMINATION OF THE ACCOUNTS OF MAJOR H. C. EICHEN, FORT MONMOUTH, NEW JERSEY, FOR THE MONTHS OF JANUARY, FEBRUARY AND MARCH 1950 BY OUR ARMY AUDIT BRANCH DOES NOT REVEAL A COLLECTION OF $202.50 FROM YOU AS YOU CONTEND. IT THEREFORE APPEARS THAT YOU WERE PAID THE ALLOWANCE CLAIMED FOR THE PERIOD OF OCTOBER 1, 1949, THROUGH JANUARY 30, 1950, AND IT DOES NOT APPEAR THAT YOU HAVE SUBSEQUENTLY REFUNDED THE SUMS PAID AS ALLEGED. IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT YOU REPAID THAT AMOUNT TO THE GOVERNMENT, NO ACTION MAY BE TAKEN TO REFUND IT TO YOU.

WHILE YOU HAD BEEN PAID UNDER THE SAVED PAY PROVISIONS OF SECTION 515 (A) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, PRIOR TO FEBRUARY 1, 1950, IT APPEARS FROM THE OFFICIAL PAY RECORDS THAT YOUR ENTITLEMENT TO THE BENEFITS OF THAT PROVISION WERE ERRONEOUSLY TERMINATED AFTER THAT DATE. IT APPARENTLY WAS ADMINISTRATIVELY DETERMINED THAT, SINCE YOUR SAVED PAY TOTALED $233 FOR THE MONTH OF FEBRUARY ($198 AS PAY OF A MASTER SERGEANT WITH OVER 12 YEARS' SERVICE PLUS $35 ALLOWANCE IN LIEU OF QUARTERS FOR YOUR DEPENDENT MOTHER AT THE RATE OF $1.25 PER DAY FOR 28 DAYS) AND THE PAY OTHERWISE PROVIDED BY THE CAREER COMPENSATION ACT OF 1949, TOTALED $235.20 FOR THAT MONTH, YOU WERE NO LONGER ENTITLED TO "SAVED PAY.' THIS DETERMINATION APPEARS INCORRECT IN THAT IT SEEMS UNLIKELY THAT THE CONGRESS INTENDED TO TERMINATE THE BENEFITS OF THE SAVED PAY PROVISION OF SECTION 515 (A) SIMPLY BECAUSE AN ALLOWANCE FOR QUARTERS WAS REDUCED BELOW THE USUAL AMOUNT IN THE SHORT MONTH OF FEBRUARY. CONSEQUENTLY IT APPEARS THAT YOU WERE ENTITLED TO THE BENEFITS OF THE "SAVED PAY" PROVISIONS OF SECTION 515 (A) OF THE CAREER COMPENSATION ACT OF 1949, FOR THE PERIOD OF FEBRUARY 1, 1950, THROUGH JUNE 16, 1950, AS CLAIMED.

HOWEVER, THE EFFECT OF SECTION 515 (A) IS TO PRESERVE THE RIGHT TO RECEIVE THE LARGER OF THE SUMS WHICH RESULT FROM COMPUTATION OF PAY UNDER SAVED PAY PROVISIONS AND PAY OTHERWISE PROVIDED BY THE CAREER COMPENSATION ACT. YOU ARE THEREFORE ENTITLED TO THE DIFFERENCE BETWEEN THAT WHICH YOU RECEIVED AND THAT WHICH SHOULD HAVE BEEN PAID TO YOU. THE PAY RECORDS SHOW THAT YOU WERE PAID $235.20 PER MONTH FOR THE SUBJECT PERIOD AS SHOWN BELOW AND IT APPEARS THAT YOU SHOULD HAVE BEEN PAID SAVED PAY IN THE MANNER AND AMOUNTS INDICATED BELOW.

TABLE

SAVED PAY AT $198 PER MONTH FEBRUARY 1--- JUNE 16, 1950

$ 897.60

QUARTERS ALLOWANCE FOR DEPENDENT MOTHER AT $1.25 PER DAY

FEBRUARY 1--- JUNE 16, 1950

170.00

1,067.60

LESS PAY RECEIVED AT $235.20 PER MONTH FEBRUARY 1--- JUNE

16, 1950 $ 1,066.24

------------- BALANCE DUE

$ 1.36

ACCORDINGLY, SETTLEMENT WILL ISSUE IN THE AMOUNT OF $1.36.

THERE IS NO AUTHORITY OF LAW FOR THE ALLOWANCE OF A QUARTERS ALLOWANCE FOR YOUR MOTHER IN ADDITION TO BASIC PAY AT THE RATE OF $235.20 FOR THE PERIOD FEBRUARY 1 TO JUNE 16, 1950, SINCE IT DOES NOT APPEAR THAT YOUR MOTHER RESIDED IN YOUR HOUSEHOLD WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT, 63 STAT. 804, 37 U.S.C. 231 (G), WHICH PROVIDED IN PART AS OLLOWS:

"/G) THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, EXCEPT AS HEREINAFTER LIMITED IN THIS SUBSECTION. SUCH TERM SHALL INCLUDE THE FATHER OR MOTHER OF SUCH MEMBER, PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH MEMBER FOR OVER HALF OF HIS OR HER SUPPORT AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER. * * *"

THIS PROVISION DEFINING THE WORD "DEPENDENT" AS USED IN THE ACT, WAS CONSIDERED IN OUR DECISION 29 COMP. GEN. 280 WHEREIN IT WAS STATED THAT A MEMBER IS NOT ENTITLED TO QUARTERS ALLOWANCE ON ACCOUNT OF AN OTHERWISE DEPENDENT PARENT WHO, FOR ANY REASON, RESIDES ELSEWHERE THAN IN QUARTERS MAINTAINED BY THE MEMBER AS A RESIDENCE AT HIS PERMANENT DUTY STATION.

WHILE YOU INDICATE THAT YOU CONSIDERED THE QUARTERS MAINTAINED BY YOU FOR YOUR MOTHER AT WOODSIDE AS YOUR HOUSEHOLD, YOU IN FACT DID NOT RESIDE AT THAT PLACE BUT OCCUPIED QUARTERS IN BARRACKS AT FORT MONMOUTH. OUR DECISION, 29 COMP. GEN. 280, ALSO STATED THAT THE QUARTERS ALLOWANCE PROVIDED BY SECTION 203 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, WAS NOT ON THE BASIS OF DEPENDENCY BUT RATHER TO PROVIDE ADEQUATE QUARTERS FOR THE MEMBER AT, OR CONVENIENT TO, HIS PERMANENT STATION. CONSEQUENTLY, YOU DID NOT QUALIFY UNDER THE CAREER COMPENSATION ACT OF 1949 FOR A BASIC ALLOWANCE FOR QUARTERS AND NO ALLOWANCE FOR YOUR DEPENDENT MOTHER CAN BE CONSIDERED PAYABLE FOR THE PERIOD OF FEBRUARY 1, 1950, THROUGH JUNE 16, 1950, UNDER THAT ACT. ALSO, YOU MAY NOT RECEIVE PAY AT THE RATE OF $235.20 A MONTH FOR THAT PERIOD UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT IN ADDITION TO A QUARTERS ALLOWANCE UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359. THERE IS NO AUTHORITY OF LAW TO ALLOW YOU PAY UNDER THE 1949 ACT AND A QUARTERS ALLOWANCE UNDER THE 1942 ACT.