B-141587, FEB. 25, 1960

B-141587, FEB. 25, 1960

(THERE IS MISSING MATERIAL AT THIS POINT.)

REFERENCE IS MADE TO FC USA FORM 0-1232, DATED DECEMBER 8, 1959, RECEIVED FROM THE CLAIMS DIVISION, SETTLEMENT OPERATIONS BRANCH, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, FORWARDING TO THE CLAIMS DIVISION OF THIS OFFICE, FOR SETTLEMENT AS A CLAIM, SUPPLEMENTAL VOUCHERS IN FAVOR OF CAPTAIN LEWIS M. BLOOM, ORC, USA, FOR THE DIFFERENCE IN INACTIVE TRAINING DUTY PAY BETWEEN THAT OF A FIRST LIEUTENANT WITH SIX YEARS OF SERVICE AND THAT OF A CAPTAIN WITH SIX YEARS OF SERVICE FOR 36 ASSEMBLIES DURING THE PERIOD NOVEMBER 1, 1949, TO JULY 31, 1950, AND BETWEEN THE PAY OF THOSE GRADES WITH 8 YEARS OF SERVICE FOR 35 ASSEMBLIES DURING THE PERIOD AUGUST 1, 1950, TO MAY 31, 1951, RESULTING FROM THE CORRECTION OF HIS MILITARY RECORDS UNDER AUTHORITY OF 10 U.S.C. 1552. THE CLAIM WAS FORWARDED FOR CONSIDERATION UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WITH RECOMMENDATION FOR A FAVORABLE SETTLEMENT BY OUR OFFICE OF THAT PART OF THE CLAIM NOT EXCLUDED BY SUCH ACT.

IN A CORRECTION OF RECORDS ACTION ANNOUNCED IN LETTER OF JANUARY 22, 1958, THE SECRETARY OF THE ARMY, ON JANUARY 6, 1958, DIRECTED THAT THE DEPARTMENT OF THE ARMY RECORDS OF LEWIS M. BLOOM BE CORRECTED TO SHOW THAT HE WAS PROMOTED TO THE GRADE OF CAPTAIN, ARMY OF THE UNITED STATES, ON FEBRUARY 6, 1946, AND APPOINTED TO THE GRADE OF CAPTAIN, OFFICERS' RESERVE CORPS, ON MARCH 16, 1946. THE CORRECTION OF RECORDS STATUTE (10 U.S.C. 1552) CONTEMPLATES THAT PAYMENT OF AMOUNTS FOUND DUE PURSUANT TO THE CORRECTION OF A MILITARY OR NAVAL RECORD UNDER ITS PROVISIONS WILL BE MADE, GENERALLY, BY THE DEPARTMENT CONCERNED RATHER THAN ON THE BASIS OF SETTLEMENT ISSUED BY THIS OFFICE. CONSEQUENTLY, THE MATTER PRESENTED WILL BE CONSIDERED AS A REQUEST FOR AN ADVANCE DECISION RATHER THAN AS A CLAIM FOR SETTLEMENT HERE. SEE IN THAT CONNECTION B-140056, SEPTEMBER 8, 1959, 39 COMP. GEN. - .

THE ACT OF OCTOBER 9, 1940, PROVIDES THAT CLAIMS AGAINST THE UNITED STATES SHALL BE FOREVER BARRED UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE THEY FIRST ACCRUE. IF, AS A RESULT OF THE CORRECTION OF CAPTAIN BLOOM'S RECORDS UNDER THE PROVISIONS OF 10 U.S.C. 1552, A RIGHT TO ADDITIONAL PAY CLAIMED AROSE, THE RIGHT CLEARLY FIRST ACCRUED AT THE TIME OF SUCH CORRECTION, AND CONSEQUENTLY THE LIMITATION SET FORTH IN THE 1940 ACT PROPERLY WOULD NOT BE EFFECTIVE AS TO RIGHTS OTHERWISE ACCRUING INCIDENT TO THE CORRECTION OF CAPTAIN BLOOM'S RECORDS ON JANUARY 6, 1958, UNTIL TEN FULL YEARS AFTER THAT DATE.

IN VIEW OF THE ACTION TAKEN TO CORRECT CAPTAIN BLOOM'S RECORDS, IT APPEARS THAT HE IS ENTITLED TO THE DIFFERENCE IN PAY BETWEEN THAT OF A FIRST LIEUTENANT, WHICH HE RECEIVED, AND THAT OF A CAPTAIN DURING THE PERIOD IN QUESTION, UNAFFECTED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, PROVIDED, OF COURSE, THAT ENTITLEMENT TO THE PAY OTHERWISE IS ESTABLISHED.

THE ASSEMBLIES FOR WHICH CAPTAIN BLOOM CLAIMS ADDITIONAL PAY WERE ATTENDED BY HIM AS AN ASSIGNED MEMBER OF THE 821ST ORDER OF BATTLE TEAM DURING THE PERIOD NOVEMBER 1, 1949, TO JULY 10, 1950, WHEN HE WAS TRANSFERRED TO THE 818TH ORDER OF BATTLE DETACHMENT UNDER ORDERS DATED JULY 6, 1950. HE WAS PAID FOR ASSEMBLIES DURING THE PERIOD WHILE ASSIGNED TO THE 821ST ORDER OF BATTLE TEAM ON THE BASIS OF CERTIFICATIONS THAT THAT UNIT HAD A TOTAL ASSIGNED STRENGTH OF ONE OFFICER AND TWO ENLISTED MEN. UNDER SECTION VI, GENERAL ORDERS NO. 18 OF HEADQUARTERS, NEW YORK MILITARY DISTRICT, NEW YORK, NEW YORK, DATED JULY 6, 1950, THE 821ST ORDER OF BATTLE TEAM WAS REDESIGNATED AND REORGANIZED UNDER TABLES OF ORGANIZATION AND EQUIPMENT CONTAINED IN ARMY SPECIAL REGULATIONS 650-125-1, OCTOBER 20, 1948, AS THE 821ST ORDER OF BATTLE DETACHMENT WITH AN AUTHORIZED STRENGTH OF ONE OFFICER AND FIVE ENLISTED MEN. IT IS NOT CLEAR IN THOSE ORDERS WHETHER IT WAS INTENDED TO INDICATE THAT THE AUTHORIZED STRENGTH OF THE UNIT PRIOR TO JULY 6, 1950, ALSO WAS ONE OFFICER AND FIVE ENLISTED MEN. CERTIFICATION OF THE INSTRUCTOR OF THE UNIT, APPEARING ON VOUCHER 41378, SEPTEMBER 1950 ACCOUNTS OF COLONEL W. C. STEIGER, FD, THE PAYROLL FOR INACTIVE DUTY TRAINING PAY FOR THE UNIT COVERING THE PERIOD MAY 1, TO JULY 31, 1950, WAS THAT THE AUTHORIZED STRENGTH OF THE UNIT DURING THAT PERIOD WAS ONE OFFICER AND FIVE ENLISTED MEN. SINCE CAPTAIN BLOOM'S RIGHT TO THE PAY CLAIMED FOR ATTENDANCE AT ASSEMBLIES DURING THE PERIOD WHILE ASSIGNED TO THAT UNIT IS DEPENDENT UPON THE ATTENDANCE AT ASSEMBLIES OF QUALIFYING PERCENTAGES OF ITS AUTHORIZED STRENGTH, IT WOULD APPEAR TO BE DESIRABLE AND NECESSARY TO SUPPORT THE PROPOSED PAYMENTS WITH CONCLUSIVE EVIDENCE OF THE UNIT'S ACTUAL AUTHORIZED STRENGTH DURING THAT PERIOD.

SUBJECT TO THE FOREGOING, AND IF OTHERWISE CORRECT, PAYMENT ON THE SUBMITTED VOUCHERS, RETURNED HEREWITH, IS AUTHORIZED.