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B-143325, OCT. 19, 1960

B-143325 Oct 19, 1960
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COUNSELOR AT LAW: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27. THE DATE HE WAS RELEASED FROM ALL MILITARY CUSTODY PURSUANT TO A WRIT OF HABEAS CORPUS. A VOUCHER STATED IN FAVOR OF THOMAS DELUCA PROPOSING PAYMENT OF ACTIVE DUTY MILITARY PAY AND ALLOWANCES WAS FORWARDED HERE (IN ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. 74) BY THE OFFICE. FOR AN ADVANCE DECISION AS TO WHETHER PAYMENT WAS AUTHORIZED. HOLDING THAT SUCH PAYMENT WAS NOT PROPER AND COULD NOT BE AUTHORIZED WAS FORWARDED TO YOU BY THE DEPARTMENT OF THE ARMY. YOU REQUEST RECONSIDERATION OF THE CONCLUSION REACHED IN THAT DECISION ON THE GROUNDS THAT DURING THE PERIOD IN QUESTION THOMAS DELUCA WAS IMPRESSED INTO MILITARY SERVICE AND ALSO IMPRISONED BY THE MILITARY AUTHORITIES AGAINST HIS WILL.

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B-143325, OCT. 19, 1960

TO MR. MICHAEL F. DENNIS, COUNSELOR AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1960, AND ENCLOSURE, SUBMITTED ON BEHALF OF MR. THOMAS DELUCA, WHO CLAIMS ACTIVE DUTY MILITARY PAY AND ALLOWANCES ALLEGED TO BE DUE AND UNPAID HIM AS OF FEBRUARY 1, 1960, THE DATE HE WAS RELEASED FROM ALL MILITARY CUSTODY PURSUANT TO A WRIT OF HABEAS CORPUS.

A VOUCHER STATED IN FAVOR OF THOMAS DELUCA PROPOSING PAYMENT OF ACTIVE DUTY MILITARY PAY AND ALLOWANCES WAS FORWARDED HERE (IN ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. 74) BY THE OFFICE, CHIEF OF FINANCE, FIELD DIVISION, INDIANAPOLIS 49, INDIANA, FOR AN ADVANCE DECISION AS TO WHETHER PAYMENT WAS AUTHORIZED. THE RECORD INDICATED THAT A COPY OF OUR DECISION IN THE MATTER, DATED JULY 26, 1960, B 143325, HOLDING THAT SUCH PAYMENT WAS NOT PROPER AND COULD NOT BE AUTHORIZED WAS FORWARDED TO YOU BY THE DEPARTMENT OF THE ARMY. YOU REQUEST RECONSIDERATION OF THE CONCLUSION REACHED IN THAT DECISION ON THE GROUNDS THAT DURING THE PERIOD IN QUESTION THOMAS DELUCA WAS IMPRESSED INTO MILITARY SERVICE AND ALSO IMPRISONED BY THE MILITARY AUTHORITIES AGAINST HIS WILL.

SECTION 232 (D), TITLE 37, U.S. CODE, IN PERTINENT PART PROVIDES, "ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST, WHEN ON ACTIVE DUTY * * * SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED * * * IN ACCORDANCE WITH CUMULATIVE YEARS OF SERVICE * * "

THE CONCLUSION REACHED IN OUR DECISION OF JULY 26, 1960, IS BASED ON THE WRIT OF HABEAS CORPUS GRANTED BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH ACTION JUDICIALLY ESTABLISHES THAT MR. DELUCA WAS NOT LAWFULLY A MEMBER OF THE UNIFORMED SERVICES DURING ANY PART OF THE PERIOD INVOLVED IN HIS CLAIM. IN SUCH CIRCUMSTANCES THIS OFFICE IS WITHOUT AUTHORITY OF LAW TO AUTHORIZE THE PAYMENT TO HIM OF ANY ACTIVE DUTY MILITARY PAY AND ALLOWANCES.

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