B-156689, SEP. 14, 1965

B-156689: Sep 14, 1965

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VITO MICHAEL MECCA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. REPRESENTING PAY AND ALLOWANCES FOR 47 DAYS OF UNUSED ACCRUED LEAVE WHILE YOU WERE SERVING IN THE ARMY. WE HAVE RECEIVED YOUR LETTERS OF JULY 22. YOUR CLAIM WAS DENIED BECAUSE IT APPEARS THAT YOU HAVE BEEN OVERPAID. YOU WERE ADVISED THAT AN INDEBTEDNESS OF $176.33 THERE SHOWN WAS MADE UP OF THE FIVE ITEMS OF $9.75. YOU WERE FURNISHED INFORMATION CONCERNING EACH OF THE FIVE ITEMS. THAT YOU WANT PROOF THAT YOU WERE OVERPAID IN THE AMOUNT OF $176.33. THAT YOU WANT COPIES OF ANY PAPERS SIGNED BY YOU WHICH WOULD PROVE THAT YOU WERE OVERPAID. THE FAMILY ALLOWANCE WAS APPROVED FOR HER. THAT MONTHLY PAYMENTS OF $50 (CONSISTING OF THE GOVERNMENT'S CONTRIBUTION OF $28 AND A DEDUCTION OF $22 FROM YOUR PAY) WERE MADE TO HER BEGINNING WITH OCTOBER 1945.

B-156689, SEP. 14, 1965

TO MR. VITO MICHAEL MECCA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1965, IN WHICH YOU REQUEST RECONSIDERATION OF THE DENIAL OF YOUR CLAIM FOR $156.28, REPRESENTING PAY AND ALLOWANCES FOR 47 DAYS OF UNUSED ACCRUED LEAVE WHILE YOU WERE SERVING IN THE ARMY. ALSO, WE HAVE RECEIVED YOUR LETTERS OF JULY 22, AND AUGUST 20, 1965, CONCERNING THE SAME MATTER.

YOUR CLAIM WAS DENIED BECAUSE IT APPEARS THAT YOU HAVE BEEN OVERPAID. LETTER OF APRIL 7, 1965, COPY ENCLOSED, YOU WERE ADVISED THAT AN INDEBTEDNESS OF $176.33 THERE SHOWN WAS MADE UP OF THE FIVE ITEMS OF $9.75, $3.70, $12.88, $100, AND $50, AND YOU WERE FURNISHED INFORMATION CONCERNING EACH OF THE FIVE ITEMS. YOU SAY, HOWEVER, THAT YOU WANT PROOF THAT YOU WERE OVERPAID IN THE AMOUNT OF $176.33; THAT YOU WANT COPIES OF ANY PAPERS SIGNED BY YOU WHICH WOULD PROVE THAT YOU WERE OVERPAID. YOU ALSO SAY THAT THE ARMY PAID YOUR WIFE MONTHLY PAYMENTS OF $50 (CONSISTING OF THE GOVERNMENT'S CONTRIBUTION OF $28 AND A DEDUCTION OF $22 FROM YOUR PAY) AND THAT YOU WANT THE AMOUNTS SO DEDUCTED FROM YOUR PAY REFUNDED TO YOU.

THE DEPARTMENT OF THE ARMY HAS REPORTED THAT, BASED ON AN APPLICATION RECEIVED ON OCTOBER 24, 1945, FROM YOUR WIFE, MRS. VIRGINIA RUTH MECCA (AS AUTHORIZED BY SECTION 104 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, CH. 443, 56 STAT. 381), THE FAMILY ALLOWANCE WAS APPROVED FOR HER, EFFECTIVE OCTOBER 1, 1945, AND THAT MONTHLY PAYMENTS OF $50 (CONSISTING OF THE GOVERNMENT'S CONTRIBUTION OF $28 AND A DEDUCTION OF $22 FROM YOUR PAY) WERE MADE TO HER BEGINNING WITH OCTOBER 1945. SINCE THERE IS NO EVIDENCE OF RECORD UPON WHICH TO BASE A CONCLUSION THAT THE FAMILY ALLOWANCE WAS NOT PROPERLY PAID TO YOUR WIFE FOR THE PERIOD OCTOBER 1, 1945, THROUGH JUNE 1946, THE MONTH IN WHICH YOU WERE DISCHARGED, WE CONSIDER THAT YOUR PAY ACCOUNT WAS PROPERLY CHARGED WITH THE MONTHLY DEDUCTIONS OF $22 FOR THAT PERIOD AND THAT YOU ARE NOT ENTITLED TO REFUND OF THE AMOUNTS SO DEDUCTED. NO FAMILY ALLOWANCE DEDUCTIONS WERE MADE FROM YOUR PAY DURING YOUR SUBSEQUENT SERVICE FROM OCTOBER 2, 1946, TO APRIL 22, 1948.

THERE IS ENCLOSED A PHOTOCOPY OF VOUCHER NO. 104108, JUNE 1946 ACCOUNTS OF J. HARRIS, WHICH COVERS YOUR MILITARY PAY ACCOUNT FOR THE PERIOD JUNE 1 TO 7, 1946. THAT VOUCHER, WHICH BEARS YOUR SIGNATURE, SHOWS A "CLASS F" DEDUCTION OF $22 AS YOUR PART OF THE FAMILY ALLOWANCE PAYMENT TO YOUR WIFE FOR THE MONTH OF JUNE, AND, ALSO, THAT YOUR PAY (AS A PRIVATE WITH OVER 3 YEARS OF SERVICE) FOR THE 7-DAY PERIOD INVOLVED ACCRUED IN THE AMOUNT OF $12.25. THUS, THE "CLASS F" DEDUCTION OF $22 EXCEEDED THE AMOUNT OF $12.25 DUE YOU AS PAY BY $9.75, WHICH IS DESIGNATED ON THE VOUCHER AS "UNSATISFIED CLASS F.' THERE IS NOTHING ON THAT VOUCHER WHICH WOULD INDICATE THAT YOU THEN QUESTIONED THE PAYMENT OF THE FAMILY ALLOWANCE TO YOUR WIFE. YOU WERE PAID ON THAT VOUCHER A TRAVEL ALLOWANCE OF $3.95 AND A MUSTERING-OUT PAYMENT OF $100. THE RULE IS WELL ESTABLISHED THAT, ON THE BASIS OF LAW AND PUBLIC POLICY, AN AMOUNT DUE A SOLDIER FOR TRAVEL ALLOWANCE IS NOT AVAILABLE FOR SETOFF AGAINST ANY INDEBTEDNESS OF SUCH SOLDIER TO THE UNITED STATES. ALSO, SINCE IT WAS SPECIFICALLY PROVIDED IN SECTION 5 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9 58 STAT. 10, THAT MUSTERING-OUT PAYMENTS TO BECOME DUE UNDER THE ACT SHOULD BE EXEMPT FROM THE CLAIMS OF CREDITORS, INCLUDING ANY CLAIM OF THE UNITED STATES, THE MUSTERING-OUT PAYMENT OF $100 WAS NOT AVAILABLE FOR SETOFF AGAINST ANY INDEBTEDNESS TO THE UNITED STATES.

A PHOTOCOPY OF VOUCHER NO. 9827, APRIL 1948 ACCOUNTS OF J. MANO, IS ALSO ENCLOSED. THAT VOUCHER, WHICH BEARS YOUR SIGNATURE, COVERS YOUR MILITARY PAY ACCOUNT FOR THE PERIOD MARCH 1 TO APRIL 22, 1948. YOUR BASE AND LONGEVITY PAY FOR SUCH PERIOD, TOGETHER WITH FOREIGN SERVICE PAY FOR THE PERIOD MARCH 1 THROUGH APRIL 10, AMOUNTED TO $156.50. THE CHARGES AGAINST YOUR ACCOUNT FOR THAT PERIOD TOTALED $160.20 AND INCLUDED (1) A PARTIAL PAYMENT OF $10, (2) SOLDIERS' HOME DEDUCTIONS OF $0.20, AND (3) A MONTHLY CLASS E ALLOTMENT OF $75 FOR MARCH AND APRIL, $150. SINCE THE CHARGES ($160.20) EXCEEDED THE AMOUNT DUE ($156.50) BY $3.70, NO AMOUNT WAS PAID YOU ON VOUCHER NO. 9827. THE VOUCHER BEARS THE NOTATION "DUE U S UNSATISFIED INDEBTEDNESS CL E $3.70.'

THE VETERANS ADMINISTRATION, ON DECEMBER 23, 1952, REPORTED TO OUR OFFICE YOUR INDEBTEDNESS OF $12.88, COVERING AN ERRONEOUS PAYMENT OF COMPENSATION TO YOU FOR THE PERIOD OCTOBER 1 TO 31, 1946, AFTER YOU HAD RE-ENLISTED IN THE ARMY. THAT AGENCY, ON THE SAME DATE, REPORTED YOUR INDEBTEDNESS OF $100, RESULTING FROM CONCURRENT PAYMENTS OF SUBSISTENCE ALLOWANCE AND READJUSTMENT ALLOWANCE FOR THE WEEKS ENDING "10.3.48--- 10.31.48.' IT WAS INDICATED IN THE REPORTS THAT YOU HAD BEEN NOTIFIED OF THE ERRONEOUS PAYMENTS BUT THAT NO REFUND HAD BEEN MADE BY YOU. PHOTOCOPIES OF THE TWO REPORTS ARE ENCLOSED.

THE RECORDS SHOW THAT, ON JUNE 4, 1947, YOU WERE SENTENCED BY A SUMMARY COURT-MARTIAL TO BE RESTRICTED TO TROOP AREA FOR 30 DAYS AND TO FORFEIT $60. OF SUCH AMOUNT, THE AMOUNT OF $5 WAS WITHHELD FROM YOUR PAY FOR JUNE AND JULY 1947 AND THE AMOUNT OF $5 WAS WITHHELD FROM YOUR PAY FOR AUGUST 1947, LEAVING A BALANCE OF $50 DUE THE UNITED STATES. SINCE YOU HAVE QUESTIONED THE CORRECTNESS OF OUR STATEMENT THAT THE ACTION OF THE DEPARTMENT OF THE ARMY IN CHANGING THE TYPE OF YOUR DISCHARGE HAD NO EFFECT ON YOUR COURT-MARTIAL FORFEITURE, IT MAY BE STATED THAT UNDER THE PROVISIONS OF SECTION 1553, TITLE 10, U.S. CODE, THE ARMY DISCHARGE REVIEW BOARD IS AUTHORIZED TO REVIEW THE TYPE AND NATURE OF THE DISCHARGE OF A FORMER ENLISTED MAN OF THE ARMY (EXCEPT A DISCHARGE BY REASON OF THE SENTENCE OF A GENERAL COURT MARTIAL) AND TO CHANGE, CORRECT OR MODIFY ANY SUCH DISCHARGE AND TO ISSUE A NEW DISCHARGE IN ACCORDANCE WITH THE FACTS PRESENTED TO IT. HOWEVER, A FORMER ENLISTED MAN OF THE ARMY WHOSE DISCHARGE HAS BEEN CHANGED UNDER SUCH PROVISIONS OF LAW, BECOMES ENTITLED TO RECEIVE ONLY THE BENEFITS HE WOULD HAVE BEEN ENTITLED TO RECEIVE ON DISCHARGE HAD HE ORIGINALLY RECEIVED THE TYPE OF DISCHARGE WHICH THE ARMY DISCHARGE BOARD FINDS HE SHOULD HAVE RECEIVED. IF YOU HAD RECEIVED A DISCHARGE UNDER HONORABLE CONDITIONS WHEN YOU WERE SEPARATED FROM THE SERVICE ON APRIL 22, 1948, YOUR COURT-MARTIAL FORFEITURE WOULD NOT HAVE BEEN AFFECTED IN ANY WAY. LIKEWISE, THE CHANGE OF YOUR DISCHARGE BY THE ARMY DISCHARGE REVIEW BOARD TO A DISCHARGE UNDER HONORABLE CONDITIONS DOES NOT AFFECT SUCH COURT-MARTIAL FORFEITURE. THE AMOUNT OF $50, THEREFORE, IS A PROPER CHARGE AGAINST YOUR PAY ACCOUNT.

WE DO NOT FIND ANYTHING IN YOUR LETTERS MENTIONED ABOVE OR IN THE OTHER PAPERS CONTAINED IN OUR FILE RELATING TO YOUR CASE WHICH WOULD WARRANT ANY CHANGE OF OUR PRIOR ACTION ON THE CASE.

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