B-133541, OCT. 25, 1957

B-133541, OCT. 25, 1957

TO MR. JOSEPH B. REMMER:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1957, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 10, 1957, WHICH DISALLOWED YOUR CLAIM FOR DIFFERENCE IN PAY BETWEEN THAT OF A STAFF SERGEANT AND THAT OF A TECHNICAL SERGEANT FOR THE 89-DAY PERIOD FROM SEPTEMBER 1 TO NOVEMBER 28, 1945, AND YOUR CLAIM FOR SEPARATE RATIONS FOR A PERIOD OF 29 DAYS IN AUGUST AND SEPTEMBER 1948, WHILE YOU WERE SERVING AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES.

IN THE SETTLEMENT OF APRIL 10, 1957, YOU WERE ALSO ADVISED THAT IN THE RECOMPUTATION OF YOUR PAY ACCOUNT IT WAS DISCOVERED THAT YOU WERE OVERPAID FOR THE PERIOD FROM NOVEMBER 1, 1945, THROUGH JANUARY 6, 1946, IN THE AMOUNT OF $48.96, WHICH AMOUNT, TOGETHER WITH THE UNLIQUIDATED BALANCE OF THE CLASS Q ALLOTMENT ERRONEOUSLY PAID FOR DECEMBER 1951, IN THE AMOUNT OF $95.72, INCREASED YOUR INDEBTEDNESS TO THE UNITED STATES TO $144.68.

YOU SAY THAT ON SEPTEMBER 1, 1945, YOU WERE REDUCED FROM TECHNICAL SERGEANT UNDER THE PROVISIONS OF PARAGRAPH 13F, CHANGES NO. 4, ARMY REGULATIONS NO. 615-5, AND THAT SINCE YOU HAVE BEEN INFORMED THAT PARAGRAPH 13F OF THOSE REGULATIONS WAS RESCINDED EARLY IN 1945, YOU BELIEVE THAT YOUR REDUCTION WAS ILLEGAL AND THAT YOU SHOULD HAVE RECEIVED THE PAY OF A TECHNICAL SERGEANT FROM SEPTEMBER 1 TO NOVEMBER 29, 1945, THE DATE ON WHICH YOU WERE AGAIN PROMOTED TO TECHNICAL SERGEANT. YOU ALSO SAY THAT YOU REPORTED AT KELLY AIR FORCE BASE ON AUGUST 25, 1948; THAT YOU APPLIED FOR SEPARATE RATIONS THE FOLLOWING DAY; AND THAT WHILE MOST OF THE MEN WHO REPORTED AT THE SAME TIME YOU DID RECEIVED THEIR SEPARATE RATIONS ORDERS PROMPTLY, YOUR ORDERS WERE NOT PUBLISHED UNTIL OCTOBER 1, 1948, WITH AN EFFECTIVE DATE OF SEPTEMBER 23, 1948, WHICH LEFT A GAP FROM AUGUST 26 THROUGH SEPTEMBER 22, 1948. YOU BELIEVE YOU SHOULD RECEIVE PAYMENT FOR SEPARATE RATIONS FOR SUCH PERIOD. YOU HAVE FURNISHED EVIDENCE SHOWING THAT UPON A SECOND RECOMPUTATION OF YOUR PAY ACCOUNT IT WAS DETERMINED THAT THE AMOUNT OF THE OVERPAYMENT FOR THE PERIOD FROM NOVEMBER 1, 1945, THROUGH JANUARY 6, 1946, ON VOUCHER NO. 56411, JANUARY 1946 ACCOUNTS OF J. J. MAHER, JR., WAS $21.84, INSTEAD OF $48.96, YOU HAVING BEEN REAPPOINTEDA TECHNICAL SERGEANT ON NOVEMBER 29, 1945, AND THAT THE AMOUNT OF $21.84 WAS REFUNDED BY YOU.

THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE REDUCED IN GRADE FROM TECHNICAL SERGEANT TO PRIVATE ON SEPTEMBER 1, 1945, AND THAT YOU WERE PROMOTED TO STAFF SERGEANT ON THE SAME DAY. SUCH REPORT DOES NOT SHOW THE BASIS OF YOUR REDUCTION. YOU HAVE FURNISHED, HOWEVER, A COPY OF ORDERS DATED NOVEMBER 29, 1945, APPOINTING YOU TECHNICAL SERGEANT UNDER THE PROVISIONS OF WAR DEPARTMENT CIRCULAR NO. 185, DATED JUNE 21, 1945. THAT CIRCULAR IT WAS PROVIDED THAT ANY ENLISTED MAN WHO WAS REDUCED WITHOUT PREJUDICE SUBSEQUENT TO NOVEMBER 2, 1944, UNDER THE PROVISIONS OF PARAGRAPH 13F, ARMY REGULATIONS NO. 615-5, AS THEN EFFECTIVE, WOULD BE RESTORED TO THE GRADE HELD BY HIM AT THE TIME OF HIS REDUCTION PROVIDED HIS SERVICES SINCE NOVEMBER 2, 1944, HAD BEEN SATISFACTORY AND HE WOULD NOT HAVE OTHERWISE BEEN REDUCED FOR CAUSE. SINCE, HOWEVER, PARAGRAPH 13F HAD BEEN RESCINDED BY WAR DEPARTMENT CIRCULAR NO. 123, DATED APRIL 24, 1945, REDUCTIONS UNDER THAT PARAGRAPH WERE NOT AUTHORIZED AFTER THAT DATE AND, AS IT DOES NOT APPEAR THAT YOU WERE OTHERWISE REDUCED FOR CAUSE, YOUR REDUCTION TO THE GRADE OF PRIVATE ON SEPTEMBER 1, 1945, WAS WITHOUT FORCE AND EFFECT FOR PAY PURPOSES. ACCORDINGLY, YOU SHOULD HAVE RECEIVED THE BASE, LONGEVITY AND FOREIGN SERVICE PAY OF A TECHNICAL SERGEANT WITH OVER SIX YEARS OF SERVICE, AT THE RATE OF $148.20 A MONTH, FROM SEPTEMBER 1 TO OCTOBER 31, 1945, INSTEAD OF THE PAY OF A STAFF SERGEANT, AT THE RATE OF $124.80 A MONTH, RESULTING IN AN UNDERPAYMENT OF $46.80 FOR THAT 2-MONTH PERIOD. IT APPEARS THAT YOU WERE CORRECTLY PAID AS A TECHNICAL SERGEANT FOR THE PERIOD FROM NOVEMBER 1, 1945, TO JANUARY 6, 1946, ON VOUCHER NO. 56411, JANUARY 1946 ACCOUNTS OF J. J. MAHER, JR. ACCORDINGLY, YOU ARE ENTITLED TO AN AGGREGATE CREDIT OF $68.64, CONSISTING OF (1) THE UNDERPAYMENT OF $46.80 FOR THE PERIOD FROM SEPTEMBER 1 TO OCTOBER 31, 1945, AND (2) THE AMOUNT OF $21.84 REFUNDED BY YOU AS OVERPAYMENT ON VOUCHER NO. 56411.

SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, CONTAINED THE FOLLOWING PROVISION FOR PAYMENT OF A SUBSISTENCE ALLOWANCE TO ENLISTED MEN WHO WERE NOT FURNISHED SUBSISTENCE IN KIND:

"TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED * *

THE PERTINENT REGULATIONS ARE CONTAINED IN PARAGRAPH 7B OF ARMY REGULATIONS NO. 35-4520, DATED DECEMBER 3, 1946, AS FOLLOWS:

"MONETARY ALLOWANCES FOR QUARTERS OR SUBSISTENCE MAY NOT BE PAID IN THE ABSENCE OF AN AUTHORIZATION FOR SUCH PAYMENT, ISSUED CONTEMPORANEOUSLY, AFTER DETERMINATION THAT MESSING FACILITIES OR QUARTERS ARE NOT AVAILABLE. SUCH ALLOWANCES ARE PAYABLE ONLY WHEN THE DUTY ASSIGNMENT OF THE PERSON MAKES IMPRACTICABLE THE FURNISHING OF THE RATIONS AND QUARTERS NORMALLY AND USUALLY FURNISHED, AND THE DETERMINATION BY THE COMMANDING OFFICER CONCERNED THAT RATIONS OR QUARTERS ARE AVAILABLE, IS CONCLUSIVE OF THE RIGHTS OF THE PERSON. * * *"

THE DEPARTMENT OF THE ARMY HAS REPORTED THAT SEPARATE RATIONS WERE AUTHORIZED IN YOUR CASE EFFECTIVE SEPTEMBER 23, 1948, BY ORDERS DATED OCTOBER 1, 1948, AND THAT SEPARATE RATIONS WERE PAID FROM SEPTEMBER 23, 1948, TO MAY 31, 1949. ACCORDINGLY, THERE IS NO BASIS UNDER THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM FOR PAYMENT OF SEPARATE RATIONS FOR THE PERIOD PRIOR TO SEPTEMBER 23, 1948.

ON THE BASIS OF THE FOREGOING, YOUR INDEBTEDNESS IS REDUCED BY $68.64 FROM $95.72 TO $27.08. THAT AMOUNT SHOULD BE REMITTED TO U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., BY CHECK, DRAFT OR MONEY ORDER MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE.'