B-144007, NOV. 14, 1960

B-144007, NOV. 14, 1960

TO LIEUTENANT COLONEL LAWRENCE A. HERRON, USAR:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1960, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 31, 1960, WHICH DISALLOWED YOUR CLAIM FOR A $200 INITIAL UNIFORM ALLOWANCE INCIDENT TO ACTIVE DUTY PERFORMED BY YOU AFTER DECEMBER 31, 1952, AS AN OFFICER OF THE UNITED STATES ARMY RESERVE. YOU WERE ADVISED IN THAT SETTLEMENT THAT, SINCE YOU HAD BEEN PAID AN INITIAL CLOTHING ALLOWANCE UNDER PRIOR LAWS, YOU WERE, UNDER THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS, PROHIBITED FROM RECEIVING THE ALLOWANCE CLAIMED.

YOU SAY THAT IN 1941 AND 1942 YOU RECEIVED UNIFORM ALLOWANCE PAYMENTS TOTALING $150 UNDER THE ACT OF MAY 14, 1940, 54 STAT. 212, AS AMENDED BY SECTION 1 OF THE ACT OF MARCH 9, 1942, 56 STAT. 148, AND THAT, UNDER PARAGRAPH 6-2 OF ARMY REGULATIONS NO. 37-104, SUCH PAYMENTS DO NOT CONSTITUTE A BAR TO ENTITLEMENT TO THE INITIAL UNIFORM ALLOWANCE OF $200 UNDER SECTION II OF CHAPTER 6 OF ARMY REGULATIONS NO. 37-104.

THE OFFICIAL RECORDS SHOW THAT, ON VOUCHER NO. 847, FEBRUARY 1941 ACCOUNTS OF MAJOR JOHN F. CONNELL, YOU WERE PAID A UNIFORM ALLOWANCE OF $50 UNDER THE ACT OF MAY 14, 1940, 54 STAT. 212. YOU WERE PAID, ON VOUCHER NO. 3633, JULY 1942 ACCOUNTS OF COLONEL JOHN L. SCOTT, A UNIFORM ALLOWANCE OF $100 UNDER THE ACT OF MARCH 9, 1942, 56 STAT. 148. YOU WERE PAID A UNIFORM ALLOWANCE OF $100 ON VOUCHER NO. 202857, MAY 1943 ACCOUNTS OF COLONEL JOHN L. SCOTT AND IT IS THERE SHOWN THAT, SINCE YOU HAD RECEIVED THE PAYMENTS OF $50 AND $100 UNDER PRIOR ACTS, SUCH PAYMENT OF $100 REPRESENTED THE REMAINING PART OF THE INITIAL UNIFORM ALLOWANCE OF $250 AUTHORIZED BY THE ACT OF DECEMBER 4, 1942, 56 STAT. 1039.

SECTION 2 OF THE ACT OF DECEMBER 4, 1942, AUTHORIZED A UNIFORM ALLOWANCE OF $250 FOR ANY PERSON ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES ON APRIL 3, 1939, OR THEREAFTER ACCEPTED FOR ACTIVE DUTY, IN THE GRADE OF SECOND LIEUTENANT, FIRST LIEUTENANT, OR CAPTAIN, AND ENTITLED TO THE PAY OF THE FIRST, SECOND, OR THIRD PAY PERIODS ON APRIL 3, 1939, OR AT THE TIME OF SUCH ACCEPTANCE FOR ACTIVE DUTY. SECTION 3 (B) OF THAT ACT PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"ANY UNIFORM ALLOWANCE HERETOFORE PAID UNDER THE PROVISIONS OF THE ACT OF MAY 14, 1940 (54 STAT. 212), THE ACT OF MARCH 9, 1942 (PUBLIC LAW 492, SEVENTY-SEVENTH CONGRESS), SECTION 4 OF THE ACT OF JUNE 3, 1941 (PUBLIC LAW 97, SEVENTY-SEVENTH CONGRESS), OR SECTION 6 OF THE ACT OF JULY 8, 1942 (PUBLIC LAW 658, SEVENTY-SEVENTH CONGRESS), TO ANY PERSON ENTITLED TO A UNIFORM ALLOWANCE UNDER THIS ACT, SHALL BE DEDUCTED FROM THE ALLOWANCE PAYABLE UNDER SECTION 2 HEREOF AND ONLY THE DIFFERENCE PAID TO THE PERSON ENTITLED THERETO.'

SECTION 243 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492, PROVIDED FOR THE PAYMENT, UNDER SPECIFIED CONDITIONS, OF AN INITIAL UNIFORM ALLOWANCE OF NOT MORE THAN $200 TO AN OFFICER OF A RESERVE COMPONENT OR OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. IT WAS THERE EXPRESSLY PROVIDED, HOWEVER, THAT ANY INITIAL UNIFORM ALLOWANCE "HERETOFORE OR HEREAFTER" RECEIVED AS AN OFFICER UNDER THE PROVISIONS OF ANY OTHER LAW SHOULD BE A BAR TO THE ENTITLEMENT FOR ANY INITIAL SUM AUTHORIZED UNDER THAT SECTION OF THE ARMED FORCES RESERVE ACT OF 1952. SECTION 243 (A) WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 682, BUT THE STATUTORY PROVISIONS WHICH HAD BEEN CONTAINED IN SECTION 243 (A) WERE, INSOFAR AS HERE PERTINENT, REENACTED IN SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, AND ARE NOW CODIFIED IN 37 U.S.C. 255. THE IMPLEMENTING REGULATIONS ARE CONTAINED IN CHAPTER 6 OF ARMY REGULATIONS NO. 37-104. PARAGRAPH 6-21 OF THOSE REGULATIONS PROVIDES THAT ANY INITIAL UNIFORM ALLOWANCE "HERETOFORE OR HEREAFTER" RECEIVED AS AN OFFICER UNDER THE PROVISIONS OF ANY OTHER LAW WILL BE A BAR TO THE ENTITLEMENT FOR ANY INITIAL SUM AUTHORIZED UNDER THE PROVISIONS OF THOSE REGULATIONS. PARAGRAPH 6-2 PROVIDES THAT THE WORDS "INITIAL UNIFORM ALLOWANCE" WILL BE CONSTRUED TO INCLUDE THE $250 UNIFORM ALLOWANCE AUTHORIZED BY THE ACT OF DECEMBER 4, 1942, 56 STAT. 1039.

IN VIEW OF SUCH APPLICABLE STATUTORY PROVISIONS AND REGULATIONS, IT MUST BE CONCLUDED THAT THE PAYMENTS MADE TO YOU CONSTITUTED A PAYMENT OF THE $250 INITIAL UNIFORM ALLOWANCE AUTHORIZED BY THE ACT OF DECEMBER 4, 1942, AND THAT THE SETTLEMENT OF AUGUST 31, 1960, CORRECTLY DISALLOWED YOUR CLAIM.