B-128203, AUG. 27, 1956

B-128203: Aug 27, 1956

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WAS NOT INCLUDED IN THE SETTLEMENT OF DECEMBER 29. SINCE A SIMILAR CLAIM FILED BY YOU WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 14. OR THIRD GRADES ARE AUTHORIZED BY THIS TITLE. IS RECEIVING. RECEIVE OR CONTINUE TO RECEIVE SUCH MONETARY ALLOWANCE OR ELECT NOT TO RECEIVE SUCH MONETARY ALLOWANCE AND TO HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE FAMILY ALLOWANCES: PROVIDED. FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. * * *" IT WILL BE SEEN THAT EFFECTIVE NOVEMBER 1. ONE OF THE CONDITIONS PRECEDENT TO THE LAWFUL PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS IS THAT ENLISTED MEN MUST HAVE IN EFFECT AN ALLOTMENT OF PAY IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCES FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED.

B-128203, AUG. 27, 1956

TO MR. ADRIANO C. GABRIEL:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 8, 1956, CONCERNING THE ACTION TAKEN IN SETTLEMENT DATED DECEMBER 29, 1955, WHICH ALLOWED YOU THE NET AMOUNT OF $471.98, REPRESENTING MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR A DEPENDENT (WIFE) FOR THE PERIOD AUGUST 1, 1942, TO OCTOBER 31, 1943, BUT DISALLOWED THAT PORTION OF YOUR CLAIM FOR SUCH AN ALLOWANCE COVERING THE PERIOD NOVEMBER 1, 1943, TO APRIL 30, 1945. ALSO, YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A MASTER SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD FEBRUARY 11, 1945, TO OCTOBER 31, 1945, WAS NOT INCLUDED IN THE SETTLEMENT OF DECEMBER 29, 1955, SINCE A SIMILAR CLAIM FILED BY YOU WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 14, 1949.

SECTION 8 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, EFFECTIVE NOVEMBER 1, 1943, AMENDED SECTION 108 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"/B) EXCEPT AS OTHERWISE HEREIN PROVIDED, MONETARY ALLOWANCES IN LIEU OF QUARTERS FOR DEPENDENTS AS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SHALL NOT BE PAYABLE FOR THE PERIOD DURING WHICH FAMILY ALLOWANCES TO DEPENDENTS OF ENLISTED MEN OF THE FIRST, SECOND, OR THIRD GRADES ARE AUTHORIZED BY THIS TITLE. AN ENLISTED MAN WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS RECEIVING, OR, BEING ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, HAS APPLIED THEREFOR, MAY , AT HIS OPTION, RECEIVE OR CONTINUE TO RECEIVE SUCH MONETARY ALLOWANCE OR ELECT NOT TO RECEIVE SUCH MONETARY ALLOWANCE AND TO HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE FAMILY ALLOWANCES: PROVIDED, THAT PAYMENT OF SUCH MONETARY ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIODS, FROM THE EFFECTIVE DATE OF THIS ACT, AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. * * *"

IT WILL BE SEEN THAT EFFECTIVE NOVEMBER 1, 1943, ONE OF THE CONDITIONS PRECEDENT TO THE LAWFUL PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS IS THAT ENLISTED MEN MUST HAVE IN EFFECT AN ALLOTMENT OF PAY IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCES FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. THE PURPOSE OF SUCH CONDITION, AS DISCLOSED BY THE LEGISLATIVE HISTORY OF THE ACT WAS TO REQUIRE THAT THE ENLISTED MAN CONTRIBUTE CURRENTLY TO THE SUPPORT OF SUCH DEPENDENTS. SINCE YOUR DEPENDENT (WIFE) LIVED IN THE PHILIPPINE ISLANDS, A COUNTRY OCCUPIED BY THE ENEMY DURING THE PERIOD INVOLVED, ALLOTMENT PAYMENTS TO HER COULD NOT BE EFFECTED AND, HENCE, YOU WERE NOT PERMITTED TO HAVE AN ALLOTMENT IN HER FAVOR. THEREFORE, PAYMENT OF THE MONETARY ALLOWANCE FOR THE PERIOD NOVEMBER 1, 1943, TO APRIL 30, 1945--- A PERIOD WHEN PAYMENT OF SUCH ALLOWANCE WAS DEPENDENT UPON HAVING IN EFFECT AN ALLOTMENT TO THE DEPENDENT AT LEAST EQUAL TO THE SAID ALLOWANCE--- WOULD BE CONTRARY TO THE EXPRESS PROVISIONS OF THE STATUTE. WHILE IT IS UNFORTUNATE THAT YOU WERE IN A CASUALTY STATUS ON NOVEMBER 1, 1943, THE EFFECTIVE DATE OF THE ACT, AND HENCE UNABLE TO MAKE AN ALLOTMENT IN FAVOR OF YOUR DEPENDENT, SUCH CIRCUMSTANCES AFFORD NO PROPER BASIS TO AUTHORIZE PAYMENT OF THE ALLOWANCE CONTRARY TO THE EXPRESS PROVISIONS OF THE LAW. HENCE, THE ACTION TAKEN IN SETTLEMENT DATED DECEMBER 29, 1955, IN DISALLOWING THAT PORTION OF YOUR CLAIM FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR THE PERIOD NOVEMBER 1, 1943, TO APRIL 30, 1945, WAS CORRECT AND IS SUSTAINED.

YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF MASTER SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD FEBRUARY 11, 1945, TO OCTOBER 31, 1945, APPEARS TO BE BASED ON A "REDETERMINATION OF GRADES" HELD BY YOU WHICH WAS MADE ON AUGUST 25, 1947, AT HEADQUARTERS, PHILIPPINES RYUKYUS COMMAND, OFFICE OF THE COMMANDING GENERAL, FOR THE PERIOD COVERED BY THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, AS FOLLOWS:

TABLE

GRADES FROM TO

PFC SPEC 5TH CL 1 DEC 41 24 JAN 42

PFC 25 JUN 42 31 JUL 42

M SGT 1 AUG 42 10 FEB 45

THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE IN A CASUALTY STATUS WITHIN THE MEANING OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C., APP., 1001, DURING THE PERIOD AUGUST 1, 1942, TO FEBRUARY 10, 1945, AND THAT YOU WERE RETURNED TO MILITARY CONTROL ON FEBRUARY 11, 1945. YOU SAID IN YOUR LETTER OF MAY 8, 1956, THAT UPON YOUR RETURN TO MILITARY CONTROL ON FEBRUARY 11, 1945, YOU ENLISTED IN THE ARMY AS A CORPORAL AND THAT YOU WERE DISCHARGED ON OCTOBER 31, 1945, FOR THE PURPOSE OF ENLISTING IN THE REGULAR ARMY WHICH YOU DID ON NOVEMBER 1, 1945, IN THE SAME GRADE OF CORPORAL.

THE ABOVE REDETERMINATION OF GRADES HELD BY YOU DURING THE PERIOD COVERED BY THE MISSING PERSONS ACT IN A PRIOR ENLISTMENT CANNOT BE CONSIDERED AS AFFECTING YOUR PAY GRADE OR STATUS IN YOUR ENLISTMENT ENTERED INTO ON FEBRUARY 11, 1945, BUT MUST BE LIMITED TO THE PERIOD YOU WERE IN A CASUALTY STATUS UNDER THE MISSING PERSONS ACT DURING THE ENLISTMENT PERIOD IN WHICH YOU WERE SERVING PRIOR TO FEBRUARY 11, 1945. YOUR ENLISTMENT ON FEBRUARY 11, 1945, IN THE GRADE AS CORPORAL, AS YOU ALLEGE, UNQUESTIONABLY WAS A VOLUNTARY CONTRACT ENTERED INTO BETWEEN YOU AND THE UNITED STATES BY WHICH YOU WERE TO BE PAID THEREAFTER THE PAY AND ALLOWANCE OF THE GRADE IN WHICH YOU ENLISTED UNLESS AND UNTIL SUBSEQUENTLY PROMOTED OR REDUCED TO A DIFFERENT GRADE. RECORDS FURNISHED BY THE DEPARTMENT OF THE ARMY SHOW THAT YOU WERE PAID AS A PRIVATE, FIRST CLASS, FROM FEBRUARY 11 TO 24, 1945, AND AS A CORPORAL FROM FEBRUARY 25 TO OCTOBER 31, 1945. SINCE, AS YOU STATE, YOU HELD THE GRADE OF CORPORAL AT LEAST DURING THE PERIOD FEBRUARY 25, 1945, TO OCTOBER 31, 1945, YOU WERE ENTITLED ONLY TO THE PAY OF A CORPORAL FOR THAT PERIOD. SEE 31 COMP. GEN. 118. ACCORDINGLY, THE SETTLEMENT OF APRIL 14, 1949, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A MASTER SERGEANT AND THAT OF A CORPORAL FOR THE PERIOD FEBRUARY 11, 1945, TO OCTOBER 31, 1947, ON VOUCHER NO. 20481, SEPTEMBER 1947 ACCOUNTS OF C. W. CONKLIN, APPROPRIATE AUDIT ACTION WILL BE TAKEN TO ASCERTAIN WHETHER YOU WERE CORRECTLY PAID ON THAT VOUCHER IN ACCORDANCE WITH THE GRADE ACTUALLY HELD BY YOU AT THAT TIME.

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