B-156970, JUL. 22, 1965

B-156970, JUL. 22, 1965

TO MR. ARTHUR GABRIELSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1965, WITH ENCLOSURE, REQUESTING A REVIEW OF OFFICE SETTLEMENT DATED MAY 18, 1965, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES INCIDENT TO THE CORRECTION OF YOUR MILITARY RECORDS TO SHOW YOUR DISCHARGE FROM THE UNITED STATES ARMY ON FEBRUARY 10, 1950, TO HAVE BEEN UNDER HONORABLE CONDITIONS.

OUR FILE SHOWS THAT YOU ENLISTED IN THE UNITED SATES ARMY AT MILWAUKEE, WISCONSIN, ON JANUARY 8, 1949, FOR A PERIOD OF 3 YEARS AND THAT PURSUANT TO THE PROVISIONS OF ARMY REGULATIONS NO. 615-368, DATED OCTOBER 27, 1948, YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS ON FEBRUARY 10, 1950, AT CAMP STONEMAN, CALIFORNIA. SOMETIME AFTER THAT DATE YOU APPLIED TO THE ARMY DISCHARGE REVIEW BOARD FOR A REVIEW OF THE CHARACTER OF YOUR DISCHARGE AND AS A RESULT OF FAVORABLE ACTION BY THAT BOARD, OPERATING UNDER THE AUTHORITY OF 10 U.S.C. 1553, YOU WERE ISSUED A GENERAL DISCHARGE CERTIFICATE SHOWING THAT YOU WERE DISCHARGED ON FEBRUARY 10, 1950, UNDER HONORABLE CONDITIONS. AS A CONSEQUENCE OF THIS ACTION YOU MADE CLAIM FOR PAY AND ALLOWANCES DUE AND UNPAID UPON YOUR SEPARATION FROM THE ARMY. SINCE YOUR PAY RECORDS HAD BEEN DESTROYED BY THE ARMY IN ACCORDANCE WITH LAW, THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, TRANSMITTED YOUR CLAIM TO OUR CLAIMS DIVISION FOR DISPOSITION. SETTLEMENT DATED MAY 18, 1965, THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE DESTRUCTION OF YOUR PAY RECORDS PURSUANT TO LAW GAVE RISE TO A PRESUMPTION THAT PAYMENT OF ANY AMOUNT DUE YOU ON DISCHARGE WAS MADE IN ACCORDANCE WITH APPLICABLE REGULATIONS.

YOU ASSERT IN YOUR LETTER OF MAY 20, 1965, THAT YOU DID NOT RECEIVE THE MUSTERING-OUT PAY AND TRAVEL PAY AT THE TIME YOU WERE DISCHARGED FROM THE ARMY. IN SUPPORT OF THAT ASSERTION YOU HAVE FURNISHED A COPY OF WD FORM 53-59,"ENLISTED RECORD AND REPORT OF SEPARATION--- UNDESIRABLE DISCHARGE," WHICH YOU HAD RECEIVED ON OR ABOUT FEBRUARY 10, 1950, SHOWING IN THE "PAY DATA" DIVISION THAT MUSTERING-OUT PAY AND TRAVEL PAY WERE NOT DUE AND PAYABLE TO YOU. YOU ADD THAT YOU COULD NOT HAVE QUALIFIED FOR THE MUSTERING-OUT PAY UNTIL AFTER THE CHANGE OF THE CHARACTER OF YOUR DISCHARGE.

THE LAW WHICH GOVERNED THE PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO SERVED DURING WORLD WAR II AND WHICH WAS IN EFFECT AT THE TIME OF YOUR DISCHARGE WAS THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691-691G (1952 ED.). SECTION 1 (B) OF THE ACT WAS AMENDED BY SECTION 6 OF THE ACT OF JUNE 28, 1947, 61 STAT. 192, 38 U.S.C. 691A (B) (9) (1952 ED.), TO PROVIDE, AMONG OTHER THINGS, THAT NO MUSTERING-OUT PAYMENT SHOULD BE MADE TO ANY PERSON ENTERING UPON ACTIVE SERVICE, OR ENLISTING, ON OR AFTER JULY 1, 1947. SINCE YOU ENLISTED ON JANUARY 8, 1949, A DATE SUBSEQUENT TO JULY 1, 1947, THE PAYMENT OF THE MUSTERING OUT PAY TO YOU ON OR AFTER THE DATE OF YOUR DISCHARGE WAS NOT AUTHORIZED BY THAT LAW, IRRESPECTIVE OF THE CHARACTER OF SUCH DISCHARGE. ALSO, SINCE YOU WERE DISCHARGED ON FEBRUARY 10, 1950, YOU ARE NOT ELIGIBLE TO THE MUSTERING-OUT PAY PROVIDED BY TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, APPROVED JULY 16, 1952, 66 STAT. 688, 38 U.S.C. 1011-1016 (1952 ED.). THIS STATUTE PROVIDED THAT THE MUSTERING-OUT PAY WAS TO BE PAID TO ELIGIBLE MEMBERS WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950. ACCORDINGLY, THAT PORTION OF THE SETTLEMENT OF MAY 18, 1965, WHICH PERTAINS TO THE MUSTERING-OUT PAYMENT CLAIMED BY YOU IS SUSTAINED.

CONCERNING YOUR ENTITLEMENT TO TRAVEL PAY, PARAGRAPH 48A OF ARMY REGULATION NO. 35-4810, DATED JUNE 1, 1948, IN EFFECT AT THE TIME OF YOUR DISCHARGE FROM THE ARMY, PROVIDED THAT ENLISTED PERSONS DISCHARGED OR RELIEVED FROM ACTIVE DUTY WERE ENTITLED TO A MONEY ALLOWANCE OF 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO HOME, OR PLACE OF ACCEPTANCE FOR ACTIVE DUTY, OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY OR SUCH OTHER PLACE AS MAY BE DETERMINED TO BE MOST APPROPRIATE BY THE SECRETARY OF THE ARMY. PARAGRAPH 48C (1) OF THAT REGULATION, HOWEVER, PROVIDED IN PERTINENT PART AS FOLLOWS:

"DISCHARGE OTHER THAN HONORABLE.--- THAT ANY MEMBER OF THE MILITARY * * * FORCES WHO IS HEREAFTER SEPARATED FROM ACTIVE SERVICE UNDER CONDITIONS OTHER THAN HONORABLE MAY BE FURNISHED TRANSPORTATION IN KIND AT GOVERNMENT EXPENSE FROM THE PLACE OF SEPARATION FROM ACTIVE SERVICE TO THE PLACE AT WHICH HE ENTERED UPON ACTIVE SERVICE OR HOME OF RECORD: * * *.'

SINCE YOU WERE DISCHARGED FROM THE SERVICE UNDER OTHER THAN HONORABLE CONDITIONS, IT WOULD APPEAR THAT UNDER THE ABOVE-QUOTED PROVISION YOU COULD HAVE BEEN FURNISHED TRANSPORTATION IN KIND FROM CAMP STONEMAN TO MILWAUKEE, THE PLACE WHERE YOU ENTERED UPON ACTIVE SERVICE. IN THE ABSENCE OF A SHOWING THAT THE ARMY DID NOT FURNISH YOU TRANSPORTATION IN KIND AT GOVERNMENT EXPENSE TO MILWAUKEE PURSUANT TO THE PERTINENT REGULATION, THE COST TO THE GOVERNMENT OF SUCH TRANSPORTATION MUST BE DEDUCTED FROM THE TRAVEL ALLOWANCE OTHERWISE DUE YOU (5 CENTS PER MILE FOR THE DISTANCE BETWEEN CAMP STONEMAN AND MILWAUKEE, AS SHOWN BY THE OFFICIAL MILEAGE TABLES IN EFFECT AT THE TIME OF YOUR DISCHARGE) UNDER THE ABOVE- MENTIONED PARAGRAPH 48A OF ARMY REGULATION 35-4810.

WE ARE INSTRUCTING OUR CLAIMS DIVISION TO ASCERTAIN THE COST TO THE GOVERNMENT OF THE INVOLVED TRANSPORTATION IN KIND AND ALLOW TO YOU THE DIFFERENCE BETWEEN THAT AMOUNT AND THE TRAVEL ALLOWANCE NOW FOUND DUE.