B-122979, JUL. 18, 1955

B-122979, JUL. 18, 1955

TO MR. EDWARD P. UNDERLEITER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1955, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 1, 1954, WHICH ALLOWED YOU $8.07 REPRESENTING PAY AND ALLOWANCES STATED TO BE DUE AT DATE OF YOUR DISCHARGE, DECEMBER 1, 1945, AS PRIVATE, ARMY OF THE UNITED STATES.

THE RECORD SHOWS THAT ON OR ABOUT FEBRUARY 23, 1945, WHILE ON LEAVE AT YOUR HOME, ST. PAUL, MINNESOTA, YOU WERE INVOLVED IN AN AUTOMOBILE ACCIDENT RESULTING IN THE DEATH OF A PEDESTRIAN AND THAT ON OR ABOUT APRIL 3, 1945, YOU WERE RETURNED TO YOUR STATION, COLUMBIA ARMY AIR BASE, COLUMBIA, SOUTH CAROLINA, UNDER GUARD. SUBSEQUENTLY YOU TRAVELED TO FORT SNELLING, MINNESOTA, WHERE YOU WERE TRIED BEFORE A GENERAL COURT-MARTIAL AND WERE ACQUITTED ON APRIL 24, 1945. SINCE YOU WERE RETURNED FROM PLACE OF FURLOUGH TO YOUR STATION AS A PRISONER, YOUR PAY WAS WITHHELD TO PAY FOR TRANSPORTATION AND SUBSISTENCE FOR TRAVEL BY YOU AND THE GUARDS. YOUR PRESENT LETTER YOU STATE THAT THE AMOUNT PAYABLE TO YOU UPON DISCHARGE SHOULD BE GREATER THAN THE AMOUNT ALLOWED BY THE SETTLEMENT. APPARENTLY IS YOUR CONTENTION THAT YOU SHOULD NOT BE CHARGED WITH SUCH COSTS OF TRANSPORTATION AND SUBSISTENCE SINCE YOU WERE ACQUITTED IN THE COURT-MARTIAL PROCEEDINGS.

AT THE TIME HERE INVOLVED, PARAGRAPH 23, ARMY REGULATIONS 55-120, CHANGE 10, OCTOBER 19, 1944, AND PARAGRAPH 6F, ARMY REGULATIONS 35 4520, CHANGE 8, NOVEMBER 29, 1944, PROVIDED THAT AN ABSENTEE OR MILITARY PRISONER RETURNED TO HIS STATION UNDER GUARD IS CHARGEABLE WITH THE COST OF TRANSPORTATION AND SUBSISTENCE FOR HIMSELF AND THE GUARD. UNDER APPLICABLE ARMY REGULATIONS THE TERM MILITARY PRISONER INCLUDES MEMBERS LAWFULLY IN THE CUSTODY OF GUARDS PRIOR TO TRIAL OR ANNOUNCEMENT OF SENTENCE AS WELL AS MEMBERS SENTENCED TO CONFINEMENT. SINCE THE PAY RECORDS REFLECT AN ADMINISTRATIVE DETERMINATION THAT THE TRANSPORTATION AND SUBSISTENCE EXPENSES INVOLVED WERE PROPERLY CHARGEABLE AGAINST YOUR ACCOUNT, AND SINCE THE RECORD SHOWS THAT THE TRAVEL UNDER GUARD WAS PERFORMED FOLLOWING THE DEATH OF THE PERSON WHICH RESULTED IN YOUR BEING CHARGED WITH VIOLATION OF THE 93D ARTICLE OF WAR, IT WOULD APPEAR THAT YOU WERE RETURNED AS A MILITARY PRISONER FROM MINNEAPOLIS, MINNESOTA, TO THE ORGANIZATION TO WHICH YOU WERE ATTACHED, LOCATED AT OR IN THE VICINITY OF COLUMBIA, SOUTH CAROLINA. THE NECESSITY FOR A GUARD OR GUARDS TO ACCOMPANY YOU WAS A MATTER FOR ADMINISTRATIVE DETERMINATION. IN THE SETTLEMENT OF CLAIMS OF THIS NATURE WE NECESSARILY MUST ACCEPT AS CORRECT SUCH ITEMS OF INDEBTEDNESS APPEARING ON THE DULY CERTIFIED PAYROLLS, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE ACTION TAKEN IN CHARGING AGAINST YOUR ACCOUNT THE AMOUNT OF THE TRANSPORTATION AND SUBSISTENCE EXPENSES WAS CORRECT.

THE FACT THAT YOU WERE FOUND NOT GUILTY OF VIOLATING THE 93D ARTICLE OF WAR AFFORDS NO LEGAL BASIS FOR RELIEVING YOU OF THE CHARGE AGAINST YOUR ACCOUNT SINCE THE COURT-MARTIAL PROCEEDINGS DID NOT AFFECT THE ADMINISTRATIVE DETERMINATION THAT YOU WERE RETURNED TO YOUR STATION UNDER CIRCUMSTANCES REQUIRING SUCH A CHARGE.

A STATEMENT OF YOUR ACCOUNT FROM OCTOBER 1, 1944, TO DATE OF DISCHARGE, DECEMBER 1, 1945, IS AS FOLLOWS:

CHART

CREDITS

PAY AS PRIVATE, OCTOBER 1 TO 5, 1944

(LONGEVITY; ABSENT WITHOUT LEAVE

2 DAYS) AT $50 PER MONTH $8.33

PAY AS PRIVATE, OVER 3 YEARS' SERVICE,

OCTOBER 6, 1944, AT $52.50 PER MONTH 1.75

ABSENT WITHOUT LEAVE, OCTOBER 7 TO 8,

1944 0.00

PAY AS PRIVATE, OVER 3 YEARS' SERVICE,

OCTOBER 9 TO NOVEMBER 12, 1944, AT $52.50

PER MONTH 59.50

PAY AND FOREIGN SERVICE PAY, AS PRIVATE,

OVER 3 YEARS' SERVICE, NOVEMBER 13, 1944,

TO JANUARY 29, 1945, AT $62.50 PER MONTH 160.42

PAY AS PRIVATE, OVER 3 YEARS' SERVICE,

JANUARY 30 TO DECEMBER 1, 1945,

AT $52.50 PER MONTH 528.50

FURLOUGH RATIONS, MAY 18 TO JUNE 15, 1945 18.85

SEPARATE RATIONS, JANUARY 29 TO FEBRUARY 27,

1945 19.50

SEPARATE RATIONS, SEPTEMBER 1 TO

NOVEMBER 30, 1945 204.75

TRAVEL PAY 66.40

MUSTERING-OUT PAY, FIRST INSTALLMENT 100.00

TOTAL CREDITS $1,168.00

DEBITS

PAYMENTS ON REGULAR AND SUPPLEMENTAL

PAYROLLS; $23.85, $40.49, $31.85,

$19.30, $52.28, $23.95, $40, $140,

$67.50, $69.75, $67.50, $50, $131.98 $758.45

CLASS E ALLOTMENT, OCTOBER 1944 30.00

CLASS F (FAMILY ALLOWANCE) AT $22 PER

MONTH, JUNE TO DECEMBER 1945 154.00

CLASS N ALLOTMENT (INSURANCE) AT $6.65

PER MONTH, OCTOBER 1944 TO NOVEMBER

1945 93.10

TRANSPORTATION FURNISHED, APRIL 1945 108.13

INCREASED SUBSISTENCE, APRIL 1945 26.63

LAUNDRY 1.50

AMOUNT ALLOWED BY SETTLEMENT OF

DECEMBER 1, 1954 8.07

TOTAL DEBITS $1,179.88

AMOUNT OVERPAID11.88

THE PAY RECORDS SHOW THAT DURING THE PERIOD FROM SEPTEMBER 1 TO NOVEMBER 30, 1945, WHILE STATIONED AT HICKSVILLE, NEW YORK, IT WAS DETERMINED TO BE IMPRACTICABLE TO FURNISH YOU RATIONS IN KIND AND YOU WERE PAID A MONETARY ALLOWANCE IN LIEU OF SUBSISTENCE AT THE RATE OF $2.25 A DAY. THE RECORDS ALSO SHOW THAT FOR THE PERIOD NOVEMBER 6 TO 23, 1945, WHILE ON FURLOUGH, YOU WERE PAID A FURLOUGH RATION ALLOWANCE IN THE AMOUNT OF $11.88. THAT TIME THERE WAS IN EFFECT ARMY REGULATION 35-4520, DATED APRIL 19, 1945, PARAGRAPH 10A OF WHICH PROVIDED THAT IN LIEU OF THE AUTHORIZED FURLOUGH ALLOWANCE, ENLISTED PERSONNEL ON FURLOUGH FROM STATIONS WHERE THEY WERE IN RECEIPT OF A MONETARY ALLOWANCE FOR SUBSISTENCE WOULD, WHILE THEIR PERMANENT STATIONS REMAINED UNCHANGED, CONTINUE TO RECEIVE SUCH ALLOWANCE DURING THE PERIOD OF FURLOUGH. IN VIEW OF SUCH PROVISIONS YOU WERE NOT ENTITLED TO A FURLOUGH RATION ALLOWANCE WHILE ALSO RECEIVING A STATION SUBSISTENCE ALLOWANCE. SUCH OVERPAYMENT WAS NOT TAKEN INTO CONSIDERATION IN THE SETTLEMENT OF DECEMBER 1, 1954. HENCE, THE RECORD NOW SHOWS THAT YOU HAVE BEEN OVERPAID IN THE AMOUNT OF $11.88.