B-123045, JUN. 8, 1955

B-123045, JUN. 8, 1955

TO MR. GUINID TUGUINAY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 21, 1955, REQUESTING REVIEW OF SETTLEMENT DATED SEPTEMBER 15, 1954, WHICH DISALLOWED YOUR CLAIM FOR COMBAT INFANTRYMAN BADGE PAY INCIDENT TO YOUR SERVICE WITH THE 14TH INFANTRY (PA).

THE DISALLOWANCE WAS ON THE GROUND THAT THE ACT OF JUNE 30, 1944, 58 STAT. 648, ESTABLISHING THE COMBAT INFANTRYMAN BADGE, LIMITS THE PAYMENT OF ADDITIONAL COMPENSATION FOR THE AWARD OF SUCH BADGE TO ENLISTED MEMBERS OF THE COMBAT GROUND FORCES OF THE ARMY OF THE UNITED STATES, AND THAT THE DEPARTMENT OF THE ARMY HAD DETERMINED THAT YOU WERE NOT A MEMBER OF THE ARMY OF THE UNITED STATES DURING THE PERIOD INVOLVED. YOUR LETTER CONTAINS WHAT YOU REFER TO AS "THE CORRECT INFORMATION REGARDING MY SERVICES WITH THE VARIOUS MILITARY ORGANIZATIONS DURING WORLD WAR II.' YOU SAY THAT ON AUGUST 28, 1941, YOU WERE CALLED TO ACTIVE DUTY WITH THE U.S. ARMED FORCES OF THE FAR EAST; THAT ON JANUARY 5, 1942, YOU JOINED THE 14TH INFANTRY, USAFFE, AND THAT ON JULY 14, 1942, THAT ORGANIZATION WAS FEDERALIZED, BEING CALLED THE 14TH INFANTRY, AUS. ALSO, YOU SAY THAT ON FEBRUARY 25, 1943, YOU WERE CAPTURED BY THE ENEMY AND WERE RELEASED ON JULY 21, 1943.

THE OFFICIAL RECORDS AS REPORTED HERE SHOW THAT YOU WERE IN A MISSING-IN- ACTION STATUS FROM SEPTEMBER 1, 1944, TO APRIL 1, 1946. THE RECORDS ALSO SHOW THAT YOU WERE RETURNED TO MILITARY CONTROL APRIL 2, 1946, AND THAT YOU WERE DISCHARGED JULY 13, 1946. BY LETTER ORDER DATED JUNE 9, 1946, FROM THE ADJUTANT GENERAL'S OFFICE, YOU WERE AWARDED THE COMBAT INFANTRYMAN BADGE FOR SATISFACTORY PERFORMANCE OF DUTY IN GROUND COMBAT AGAINST THE ENEMY WHILE ATTACHED OR ASSIGNED TO THE 14TH INFANTRY, SUCH LETTER ORDER STATING THE EFFECTIVE DATE FOR PAY AS OF JANUARY 1, 1944. THE LETTER ORDER OF JUNE 9, 1949, WAS "WITHDRAWN" BY LETTER ORDERS DATED SEPTEMBER 28, 1951, AND A NEW AWARD WAS ISSUED ON THAT DATE PURPORTING TO BE EFFECTIVE FOR PAY AS OF SEPTEMBER 1, 1944.

THE ACT OF JUNE 30, 1944, 58 STAT. 648, EFFECTIVE JANUARY 1, 1944, AUTHORIZED THE PAYMENT OF ADDITIONAL PAY AT THE RATE OF $10 PER MONTH FOR ENTITLED TO WEAR THE COMBAT INFANTRYMAN BADGE. SUCH ACT WAS REPEALED ENTITLED TO WEAR THE COMBAT INFANTRYMAN BADGE. SUCH ACT WAS REPEALED BY SECTION 531 (B) (36) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 839, EFFECTIVE OCTOBER 1, 1949. THEREFORE, THE AWARD OF SEPTEMBER 28, 1951, WAS WITHOUT EFFECT TO ENTITLE YOU TO COMBAT INFANTRYMAN BADGE PAY, SINCE SUBSEQUENT TO THE REPEAL OF THE ACT OF JUNE 30, 1944, IT WAS TOO LATE TO GRANT ANY BENEFITS UNDER THE ACT AND THERE WAS NO AUTHORITY FOR CHANGING OR AMENDING YOUR ORDERS OF JUNE 9, 1949, FOR THE PURPOSE OF CHANGING THE EFFECTIVE DATE FOR PAY PURPOSES. HENCE, ANY DETERMINATION THAT YOU ARE ENTITLED TO THE PAY IN QUESTION WOULD BE ON THE BASIS OF THE ORDER OF JUNE 9, 1949.

DURING THE PERIOD SEPTEMBER 1, 1944, TO APRIL 1, 1946, YOU WERE IN A CASUALTY STATUS WITHIN THE CONTEMPLATION OF THE MISSING PERSONS ACT OF 1942, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1003. UNDER THAT LAW, THE DEPARTMENT OF THE ARMY IS AUTHORIZED TO MAKE DETERMINATIONS AS TO YOUR MILITARY STATUS AND YOUR RIGHT TO PAY AND ALLOWANCES DURING SUCH PERIOD AND THE DETERMINATIONS ARE FINAL AND CONCLUSIVE.

IN MAY 1952 THE DEPARTMENT OF THE ARMY DECIDED TO REVIEW THE RECORDS OF ALL INDIVIDUALS ASSIGNED OR ATTACHED TO THE 14TH INFANTRY (PA) WHO HAD PREVIOUSLY BEEN GIVEN ARMY OF THE UNITED STATES STATUS. UPON RECEIPT OF YOUR CLAIM FROM THE DEPARTMENT OF THE ARMY WE REQUESTED THE ADJUTANT GENERAL OF THE ARMY TO FURNISH US YOUR COMPLETE MILITARY HISTORY, INCLUDING, IN THE EVENT YOUR STATUS WAS UNDER REVIEW, THE OUTCOME OF SUCH REDETERMINATION. BY LETTER DATED JANUARY 22, 1954, THE OFFICE OF THE ADJUTANT GENERAL REPORTED, IN PART, THAT "THE ARMY OF THE UNITED STATES STATUS OF THIS INDIVIDUAL ITUGUINAY, GUINID, SERVICE NUMBER 10 626 057) HAS BEEN REVOKED; ACCORDINGLY, PAY FOR THE COMBAT INFANTRYMAN BADGE IS NOT APPLICABLE.' SUCH ACTION PRESUMABLY WAS TAKEN ON THE BASIS THAT YOU HAD NEVER PROPERLY ACQUIRED AN ARMY OF THE UNITED STATES STATUS AND THAT ANY ACTION PURPORTING TO RECOGNIZE THAT YOU HAD ACQUIRED SUCH A STATUS WAS ERRONEOUS.

AS INDICATED ABOVE, SUCH DETERMINATION BY THE DEPARTMENT OF THE ARMY IS FINAL AND CONCLUSIVE WITH RESPECT TO THAT PART OF YOUR CLAIM COVERING THE PERIOD YOU WERE IN A CASUALTY STATUS WITHIN THE SCOPE OF THE MISSING PERSONS ACT, I.E., FROM SEPTEMBER 1, 1944, TO APRIL 1, 1946. SEE MORENO V. UNITED STATES, 118 C.CLS. 30. FURTHERMORE, SINCE THERE IS NO RECORD THAT YOU WERE ENLISTED IN THE ARMY OF THE UNITED STATES PRIOR TO SEPTEMBER 1, 1944, OR SUBSEQUENT TO APRIL 1, 1946, THERE IS NO BASIS UPON WHICH WE MAY GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM FOR COMBAT PAY FOR THE PERIOD JANUARY 1, 1944, TO AUGUST 31, 1944, OR FOR THE PERIOD APRIL 2, 1946, TO JULY 13, 1946.