B-128116, AUG. 21, 1956

B-128116, AUG. 21, 1956

TO MR. LESTER P. MENDOZA:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 6, 1956, WHICH DISALLOWED YOUR CLAIM FOR THE UNEXPENDED BALANCE OF THE INITIAL CLOTHING MONETARY ALLOWANCE CREDIT BELIEVED DUE YOU INCIDENT TO YOUR REENLISTMENT IN THE UNITED STATES AIR FORCE ON AUGUST 16, 1954. THE DISALLOWANCE WAS BASED ON THE GROUND THAT, AS YOU WERE DISCHARGED FOR UNFITNESS (UNDER OTHER THAN HONORABLE CONDITIONS), THERE WAS NO ENTITLEMENT, UNDER THE APPLICABLE REGULATIONS, TO PAYMENT AND THE UNEXPENDED BALANCE OF THE ALLOWANCE WAS PROPERLY CANCELED.

THE RECORDS SHOW THAT YOU WERE GIVEN AN INITIAL CLOTHING MONETARY ALLOWANCE OF $199.15 UPON REENLISTMENT ON AUGUST 16, 1954. A CLOTHING SALE OF $21 WAS MADE ON DECEMBER 14, 1954, LEAVING A CREDIT BALANCE OF $178.15. IN FEBRUARY 1955, AFTER COMPLETION OF SIX CONSECUTIVE MONTHS OF ACTIVE DUTY, YOU BECAME ENTITLED TO RECEIVE IN CASH THE REMAINING BALANCE OF THE INITIAL CLOTHING ALLOWANCE. YOU REQUESTED, HOWEVER, THAT SUCH BALANCE REMAIN TO YOUR CREDIT FOR THE PURCHASE OF CLOTHING AS YOU NEEDED IT AND YOUR REQUEST WAS GRANTED. A SUBSEQUENT SALE OF $12.10 ON MARCH 23, 1955, REDUCED THE BALANCE TO $166.05.

ON JULY 13, 1955, YOU REQUESTED THAT THE BALANCE BE PAID TO YOU IN CASH, BUT YOUR REQUEST WAS DENIED ON THE GROUND THAT THERE WAS DOUBT AS TO YOUR ENTITLEMENT AS YOU AT THAT TIME WERE FACING ACTION UNDER AFR 39-17, WHICH MIGHT RESULT IN OTHER THAN HONORABLE SEPARATION FROM THE SERVICE. YOU WERE DISCHARGED FROM THE UNITED STATES AIR FORCE ON AUGUST 23, 1955, FOR UNFITNESS AND IT IS STATED THAT "THE UNEXPENDED BALANCE" WAS AT THAT TIME CANCELED IN ACCORDANCE WITH INTERIM CHANGE NO. 25, TO AIR FORCE MANUAL 173 -20, DATED JUNE 10, 1955.

SECTION 505 OF THE CAREER COMPENSATION ACT OF OCTOBER 12, 1949, 63 STAT. 828, PROVIDES THAT THE PRESIDENT MAY PRESCRIBE THE QUANTITY AND KIND OF CLOTHING WHICH SHALL BE FURNISHED ANNUALLY TO ENLISTED MEN OF THE AIR FORCE, ETC., AND THAT HE MAY PRESCRIBE THE AMOUNT OF A CASH ALLOWANCE TO BE PAID TO SUCH ENLISTED MEN IN ANY CASE IN WHICH CLOTHING IS NOT SO FURNISHED TO THEM. THE REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED WERE ISSUED PURSUANT TO THAT STATUTORY AUTHORITY. PARAGRAPH 80286 OF INTERIM CHANGE NO. 17 TO AIR FORCE MANUAL 173-20, DATED JUNE 3, 1954, ROVIDED:

"80286. INITIAL CLOTHING MONETARY ALLOWANCE BALANCE.

"C. UPON COMPLETION OF SIX MONTHS OF ACTIVE DUTY. IN THE EVENT THERE IS AN INITIAL CLOTHING MONETARY ALLOWANCE CREDIT REMAINING AT THE END OF THE SIX MONTHS FROM THE DATE OF LAST AUTHORIZATION FOR THE INITIAL ALLOWANCE, THE UNEXPENDED BALANCE REMAINING TO THE CREDIT OF THE AIRMAN WILL BE PAID TO HIM IN CASH. ON THE BASIS OF SALES CHARGES ON FILE IN THE FIELD SERVICE RECORD, A MILITARY PAY ORDER WILL BE ISSUED AUTHORIZING THE BALANCE DUE TO BE PAID IN CASH. * * *.

"D. UPON DISCHARGE OR RELIEF FROM ACTIVE DUTY.

"/2) UNDER CONDITIONS OTHER THAN HONORABLE. AIRMEN WHO ARE DISCHARGED FOR BAD CONDUCT, UNDESIRABILITY, OR OTHERWISE THAN HONORABLY, OR WHO ARE INTERNED OR DISCHARGED AS ALIEN ENEMIES, WILL HAVE ALL OUTER ARTICLES OF UNIFORM CLOTHING IN THEIR POSSESSION TAKEN FROM THEM IN ACCORDANCE WITH SECTION II, AFR 39-44. ANY UNEXPENDED BALANCE OF THE INITIAL CLOTHING MONETARY ALLOWANCE WILL BE CANCELLED * * *. NO CREDIT WILL BE ENTERED NOR PAYMENT MADE FOR THE VALUE OF CLOTHING TAKEN FROM THE AIRMAN OR FOR THE UNEXPENDED INITIAL ALLOWANCE CREDIT.'

PRACTICALLY IDENTICAL PROVISIONS ARE CONTAINED IN THE SUPERSEDING REGULATIONS--- PARAGRAPH 70292, AIR FORCE MANUAL 173-20, AUGUST 20, 1954, AND INTERIM CHANGE NO. 25 TO THAT MANUAL, DATED JUNE 10, 1955.

SINCE THE PERTINENT REGULATIONS, WHICH HAVE THE FORCE AND EFFECT OF LAW, SPECIFICALLY PROVIDE THAT IN CASE AN AIRMAN IS DISCHARGED UNDER CONDITIONS OTHER THAN HONORABLE, NO PAYMENT WILL BE MADE FOR THE UNEXPENDED INITIAL CLOTHING MONETARY ALLOWANCE CREDIT, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF THE AMOUNT CLAIMED. THE FACT THAT YOU REQUESTED PAYMENT PRIOR TO SUCH DISCHARGE DOES NOT PERMIT PAYMENT UNDER THE REGULATIONS.

ACCORDINGLY, OUR SETTLEMENT OF JANUARY 6, 1956, WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.