B-32728, NOVEMBER 11, 1943, 23 COMP. GEN. 360

B-32728: Nov 11, 1943

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PROVIDING THAT ANY PERSON IN ACTIVE SERVICE WHO IS OFFICIALLY REPORTED AS MISSING. SHALL BE ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE BEGINNING OF THE ABSENCE. AT THE TIME HE WAS TAKEN PRISONER BY THE ENEMY. HAD NOT THERETOFORE ACTUALLY RECEIVED PAYMENT OF OR CREDIT FOR QUARTERS AND SUBSISTENCE ALLOWANCES TO WHICH HE WAS ENTITLED WOULD NOT AFFECT HIS RIGHT TO HAVE SUCH ALLOWANCES PAID OR CREDITED FOR THE PERIOD OF HIS ABSENCE. 1943: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24. THE CIRCUMSTANCES ARE STATED IN YOUR LETTER AS FOLLOWS: IT APPEARS THAT THE ATTACHED CLAIM IS SUBMITTED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF MARCH 7.

B-32728, NOVEMBER 11, 1943, 23 COMP. GEN. 360

QUARTERS AND SUBSISTENCE ALLOWANCES - ARMY ENLISTED MEN - CONTINUANCE WHILE PRISONER OF ENEMY UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, PROVIDING THAT ANY PERSON IN ACTIVE SERVICE WHO IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY, ETC., SHALL BE ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE BEGINNING OF THE ABSENCE, THE FACT THAT AN ENLISTED MAN, AT THE TIME HE WAS TAKEN PRISONER BY THE ENEMY, HAD NOT THERETOFORE ACTUALLY RECEIVED PAYMENT OF OR CREDIT FOR QUARTERS AND SUBSISTENCE ALLOWANCES TO WHICH HE WAS ENTITLED WOULD NOT AFFECT HIS RIGHT TO HAVE SUCH ALLOWANCES PAID OR CREDITED FOR THE PERIOD OF HIS ABSENCE.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. TOM. E. THRASHER, JR., U.S. MARINE CORPS, NOVEMBER 11, 1943:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1943, TRANSMITTING FOR DECISION A VOUCHER STATED IN FAVOR OF TECHNICAL SERGEANT LOREN OSCAR SCHNEIDER, U.S. MARINE CORPS, FOR SUBSISTENCE AND QUARTERS ALLOWANCE FOR THE PERIOD NOVEMBER 28, 1941, TO JUNE 28, 1942, PRIOR TO AND WHILE BEING HELD A PRISONER BY THE JAPANESE MILITARY AUTHORITIES AT SHANGHAI, CHINA. THE CIRCUMSTANCES ARE STATED IN YOUR LETTER AS FOLLOWS:

IT APPEARS THAT THE ATTACHED CLAIM IS SUBMITTED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF MARCH 7, 1942, PUBLIC LAW 490, 77TH CONGRESS, WHICH PROVIDES THAT: " ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS * * * CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER: * * * "

AS INDICATED IN THE ATTACHED PAPERS, TECHNICAL SERGEANT SCHNEIDER (THEN STAFF SERGEANT), TOGETHER WITH ONE OFFICER AND TWO ENLISTED MEN, REMAINED AT SHANGHAI, CHINA, AFTER THE EVACUATION OF THE FOURTH MARINES ON NOVEMBER 28, 1941, FOR THE PURPOSE OF CLOSING OUT THE ACTIVITIES OF THE REGIMENTAL QUARTERMASTER, FOURTH MARINES, AND WAS TAKEN A PRISONER OF WAR BY THE JAPANESE MILITARY AUTHORITIES ON DECEMBER 7, 1941. HE WAS SUBSEQUENTLY RELEASED FROM INTERNMENT BY THE JAPANESE MILITARY AUTHORITIES AND SAILED FROM SHANGHAI, CHINA, ON JUNE 29, 1942, AND ARRIVED IN THE UNITED STATES ON AUGUST 25, 1942. SCHNEIDER'S PAY ACCOUNT WAS TAKEN UP ON THE ROLLS OF THIS OFFICE AND CREDITED PAY FOR THE PERIOD NOVEMBER 1, 1941, TO AUGUST 31, 1942, INCLUSIVE, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE ACT OF MARCH 7, 1942, SUPRA, ON VOUCHER NO. 1500 ( ACCOUNT NO. 132), IN THE ACCOUNT OF THE UNDERSIGNED FOR THE MONTH OF AUGUST 1942. NO CREDIT FOR QUARTERS AND SUBSISTENCE ALLOWANCE WAS MADE DURING THE PERIOD COVERED BY THE ATTACHED VOUCHER, IN VIEW OF THE FACT THAT THIS OFFICE HAD NO KNOWLEDGE THAT A QUARTERS AND SUBSISTENCE ALLOWANCE HAD BEEN AUTHORIZED TO BE PAID TO THESE ENLISTED MEN.

IN VIEW OF THE FOREGOING AND OF THE FACT THAT NO QUARTERS AND SUBSISTENCE ALLOWANCE WAS ACTUALLY BEING CREDITED IN SCHNEIDER'S PAY ACCOUNT AT THE TIME HE WAS TAKEN PRISONER BY THE JAPANESE MILITARY AUTHORITIES DOUBT EXISTS AS TO WHETHER I AM AUTHORIZED TO MAKE PAYMENT ON THE ATTACHED VOUCHER. YOUR DECISION IS THEREFORE REQUESTED IN THE PREMISES.

IN SUPPORT OF THE VOUCHER THERE IS ATTACHED THE CERTIFICATE OF COLONEL S. C. CUMMINGS, U.S. MARINE CORPS, ACTING ADJUTANT AND INSPECTOR, AS FOLLOWS:

I CERTIFY THAT THE RECORDS OF THIS HEADQUARTERS SHOW THAT THE BELOW NAMED ENLISTED MEN REMAINED AT SHANGHAI, CHINA, FOR THE PURPOSE OF CLOSING OUT THE ACTIVITIES OF THE REGIMENTAL QUARTERMASTER, FOURTH MARINES, UPON THE EVACUATION OF THAT ORGANIZATION FROM SHANGHAI, CHINA, ON NOVEMBER 28, 1941:

SUPPLY SERGEANT HENRY KIJAK, U.S.M.C. (225304)

STAFF SERGEANT LOREN OSCAR SCHNEIDER, U.S.M.C. (201144)

SERGEANT NATHAN ALEXANDER SMITH, U.S.M.C. (262053) I FURTHER CERTIFY THAT THE RECORDS SHOW THAT PURSUANT TO A RADIO REQUEST OF THE COMMANDING OFFICER, FOURTH MARINES, DATED NOVEMBER 23, 1941, THE COMMANDANT, U. S. MARINE CORPS, ON NOVEMBER 26, 1941, AUTHORIZED THE PAYMENT OF A QUARTERS AND SUBSISTENCE ALLOWANCE TO THE ABOVE NAMED MEN FOR SUCH DUTY; THAT NO QUARTERS WERE AVAILABLE OR FURNISHED OR RATIONS IN KIND FURNISHED; THAT THESE MEN WERE INTERNED BY THE JAPANESE MILITARY AUTHORITIES ON DECEMBER 7, 1941; THAT THEY WERE RELEASED FROM INTERNMENT ON JUNE 29, 942; THAT THEY EMBARKED ON THE S.S. CONTE VERDE AT SHANGHAI, CHINA, ON JUNE 29, 1942, FOR TRANSPORTATION TO THE UNITED STATES, AND ARRIVED IN THE UNITED STATES ON AUGUST 25, 1942.

IT THUS APPEARS THAT PAYMENT OF AN ALLOWANCE TO SERGEANT SCHNEIDER FOR QUARTERS AND SUBSISTENCE WAS AUTHORIZED UNDER DATE OF NOVEMBER 26, 1941, AND THAT HE WAS ENTITLED TO SUCH ALLOWANCE ON DECEMBER 7, 1941, WHEN HE WAS TAKEN A PRISONER OF WAR BY THE JAPANESE MILITARY AUTHORITIES. FURTHER APPEARS THAT HE WAS RELEASED FROM INTERNMENT BY THE JAPANESE ON JUNE 29, 1942, WHEREUPON HE RETURNED TO THE UNITED STATES, ARRIVING AUGUST 25, 1942.

IT IS STATED THAT SERGEANT SCHNEIDER HAS BEEN CREDITED WITH PAY FOR THE PERIOD WHILE HE WAS A PRISONER OF WAR, BUT THAT NO CREDIT FOR QUARTERS AND SUBSISTENCE ALLOWANCE WAS MADE FOR SUCH PERIOD FOR THE REASON THAT THE AUTHORIZATION OF SUCH ALLOWANCE WAS NOT KNOWN.

YOUR DOUBT IN THE MATTER APPARENTLY IS DUE TO THE FACT THAT NO PART OF SUCH AUTHORIZED ALLOWANCE ACTUALLY HAD BEEN PAID OR CREDITED IN SERGEANT SCHNEIDER'S PAY ACCOUNT AT THE TIME HE WAS TAKEN PRISONER BY THE JAPANESE MILITARY AUTHORITIES; THAT IS, WHILE THE ALLOWANCE HAD BEEN AUTHORIZED, IT HAD NOT BEEN PAID OR CREDITED FOR ANY PERIOD BEFORE HE WAS TAKEN PRISONER, AND HENCE, HE ACTUALLY WAS NOT IN RECEIPT OF SUCH ALLOWANCE AT THE TIME.

SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 143, 144, PROVIDES, IN PERTINENT PART:

SEC. 2. ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER * * *.

THUS THE SAID SECTION, BY EXPRESS LANGUAGE, AUTHORIZES THE PAYMENT OR CREDITING OF THE SAME PAY AND ALLOWANCES TO WHICH THE PERSON "WAS ENTITLED" AT THE TIME OF THE BEGINNING OF THE ABSENCE. THE TEST IS NOT THE PAY AND ALLOWANCES ACTUALLY PAID BUT THE PAY AND ALLOWANCES TO WHICH THE PERSON WAS ENTITLED AT THE BEGINNING OF THE ABSENCE. THE FACT THAT THE PERSON HAD NOT THERETOFORE ACTUALLY RECEIVED PAYMENT OF AN ALLOWANCE TO WHICH HE WAS ENTITLED WOULD NOT AFFECT HIS RIGHT TO HAVE SUCH ALLOWANCE PAID OR CREDITED FOR THE PERIOD OF HIS ABSENCE PURSUANT TO THE EXPRESS PROVISIONS OF THE SAID ACT OF MARCH 7, 1942.

ACCORDINGLY, SINCE THE RECORD ESTABLISHES THAT THE TIME OF THE BEGINNING OF THE ABSENCE OF SERGEANT SCHNEIDER HE WAS ENTITLED TO AN ALLOWANCE FOR SUBSISTENCE AND QUARTERS, PAYMENT ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT. SEE 22 COMP. GEN. 192, AND DECISION OF FEBRUARY 17, 1943, B-28935. CF. DECISION OF SEPTEMBER 20, 1943, B 35985, 23 COMP. GEN. 207. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH.