B-74656, JUL. 13, 1960

B-74656, JUL. 13, 1960

TO MR. ROBERT G. LYBECK:

REFERENCE IS MADE TO LETTER DATED JUNE 8, 1960, WRITTEN IN YOUR BEHALF BY MR. A. H. PFUSCH, SERVICE OFFICER, BARNES COUNTY VETERANS' SERVICE OFFICE, VALLEY CITY, NORTH DAKOTA, CONCERNING THE ACTION TAKEN IN OUR LETTER TO YOU DATED MAY 17, 1960, B-74656, ON YOUR CLAIM FOR PAY BELIEVED TO BE DUE YOU FOR THE MONTHS OF SEPTEMBER AND OCTOBER 1943 INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE UNITED STATES NAVY.

IN THE LETTER OF MAY 17, 1960, WE FURNISHED A CONSOLIDATED STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD AUGUST 1 TO OCTOBER 31, 1943, SHOWING THAT YOU WERE PROPERLY CREDITED AND PAID ALL AMOUNTS DUE YOU FOR THE PERIOD IN QUESTION.

IN HIS LETTER OF JUNE 8, 1960, MR. PFUSCH AGREES THAT THE INFORMATION WE FURNISHED YOU WITH RESPECT TO YOUR PAY FOR THE PERIOD IN QUESTION IS CORRECT. HE SAYS, HOWEVER, THAT WHEN YOU WERE DIRECTED TO REPORT TO THE LANSING SECTION ORDNANCE SCHOOL, OLDS HOTEL, LANSING, MICHIGAN, YOU WERE ALSO DIRECTED TO PAY TO THE ARMY THE SUM OF $52 FOR RATIONS AND QUARTERS WITH THE UNDERSTANDING THAT YOU WOULD RECEIVE REIMBURSEMENT ON THE NEXT PAY DATE, OR AT YOUR SAN FRANCISCO STATION. HE FURTHER STATES THAT YOU HAVE IN YOUR POSSESSION A RECEIPT NO. 16, DATED SEPTEMBER 6, 1943, SIGNED BY CORPORAL W. GILLESPIE OF THE ARMY SHOWING THAT YOU PAID FOR RATIONS AND QUARTERS FOR THE PERIOD SEPTEMBER 6 TO 24, 1943. HE STATES THAT YOU WERE NOT REIMBURSED AND THAT SEVERAL OTHER MEN WHO FILED CLAIMS WITH THEIR UNIT COMMANDER WERE NOT PAID. MR. PFUSCH ASKED US TO CHECK INTO THE MATTER AND REPORT TO YOU.

AS POINTED OUT IN OUR LETTER OF MAY 17, 1960, THE RECORDS SHOW THAT ON SEPTEMBER 1, 1943, YOU WERE TRANSFERRED TO THE LANSING SECTION ORDNANCE SCHOOL, OLDS HOTEL, LANSING, MICHIGAN, FOR A COURSE OF INSTRUCTION IN THE CLASS CONVENING ON SEPTEMBER 4, 1943, AND FOR FURTHER TRANSFER, UPON COMPLETION OF SUCH COURSE, TO THE RECEIVING STATION, SAN FRANCISCO, CALIFORNIA. YOU WERE RECEIVED AT THE RECEIVING STATION, SAN FRANCISCO, CALIFORNIA, ON SEPTEMBER 29, 1943.

SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AND EXECUTIVE ORDER NO. 9206, DATED JULY 27, 1942, ISSUED PURSUANT TO THAT AUTHORITY, IN EFFECT DURING THE PERIOD HERE INVOLVED, AUTHORIZED THE PAYMENT OF SUBSISTENCE AND QUARTERS ALLOWANCE TO ENLISTED MEN IN A NONTRAVEL OR TRAVEL STATUS UNDER CERTAIN CONDITIONS AND AT RATES THERE PRESCRIBED WHEN NOT FURNISHED SUBSISTENCE AND QUARTERS IN KIND. NEITHER THE STATUTE NOR THE EXECUTIVE ORDER WERE SELF-EXECUTING, AND IT LONG HAS BEEN ESTABLISHED THAT THE PAYMENT OF THOSE ALLOWANCES UNDER SUCH AUTHORITY WAS CONTINGENT UPON THE ALLOWANCES BEING CONTEMPORANEOUSLY AUTHORIZED BY THE PROPER MILITARY OR NAVAL AUTHORITIES WHO WERE COGNIZANT OF THE ACTUAL CONDITIONS AND FACTS INVOLVED. 8 COMP. GEN. 82. WE ARE NOT AWARE OF ANY REGULATION IN EFFECT DURING THE PERIOD HERE INVOLVED, NOR HAS ANY BEEN BROUGHT TO OUR ATTENTION, WHICH WOULD REQUIRE A NAVY ENLISTED MAN TO PAY OVER TO AN ARMY NONCOMMISSIONED OFFICER A CERTAIN SUM FOR QUARTERS AND RATIONS FURNISHED IN KIND BY THE ARMY. THE GOVERNMENT IS LIABLE FOR THE PAYMENT OF SUBSISTENCE AND QUARTERS ALLOWANCE ONLY WHEN SUBSISTENCE AND QUARTERS ARE NOT FURNISHED IN KIND. HENCE, EVEN IF THE ALLEGED RECEIPT (WHICH IS STATED TO BE DATED SEPTEMBER 6, 1943) SHOULD NOW BE SUBMITTED AS EVIDENCE IN SUPPORT OF YOUR CLAIM, WE COULD NOT ACCEPT IT AS ESTABLISHING YOUR RIGHT TO PAYMENT OF THE AMOUNT CLAIMED.

SINCE MR. PFUSCH INDICATES IN HIS LETTER THAT THE COMMANDING OFFICER OF THE UNIT TO WHICH YOU WERE ATTACHED DID NOT AUTHORIZE THE PAYMENT OF SUCH ALLOWANCES TO OTHER MEMBERS OF THE SAME UNIT, AND SINCE THE TRANSACTION AROSE APPROXIMATELY 17 YEARS AGO AND APPARENTLY CANNOT NOW BE VERIFIED, IT MUST BE ASSUMED THAT THE NAVAL AUTHORITIES DETERMINED AT THAT TIME THAT SUBSISTENCE AND QUARTERS IN KIND WERE AVAILABLE TO YOU WHILE ATTENDING THE LANSING SECTION ORDNANCE SCHOOL, THUS PRECLUDING ANY FURTHER OBLIGATION ON THE PART OF THE GOVERNMENT.

ACCORDINGLY, ON THE PRESENT RECORD, WE FIND NO BASIS FOR THE PAYMENT OF SUBSISTENCE AND QUARTERS ALLOWANCES WHILE YOU WERE ATTENDING THE LANSING SECTION ORDNANCE SCHOOL DURING THE PERIOD SEPTEMBER 6 TO SEPTEMBER 24, 1943.