B-163743, MAY 10, 1968

B-163743, MAY 10, 1968

TO MR. MICHAEL G. MEALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 24, 1968, REQUESTING RECONSIDERATION OF SETTLEMENT DATED NOVEMBER 20, 1967, WHICH DISALLOWED YOUR CLAIM FOR INCREASED ALLOWANCES AS AN OFFICER WITH A DEPENDENT (LAWFUL MINOR CHILD) FOR THE PERIOD JULY 1, 1944, TO MARCH 31, 1945. WE HAVE ALSO RECEIVED YOUR LETTERS OF FEBRUARY 13 AND MARCH 29, 1968.

THE RECORD CONTAINS THE ORIGINAL OF VOUCHER, WAR DEPARTMENT FORM 336, DATED APRIL 13, 1948, AND SUPPORTING CERTIFICATE, ON WHICH YOU CERTIFIED THAT YOU WERE DIVORCED FROM YOUR WIFE BY A FINAL DECREE OF DIVORCE ISSUED BY THE DISTRICT COURT OF THE STATE OF TEXAS ON OCTOBER 15, 1943; THAT THE CUSTODY OF YOUR SON, MICHAEL G. MEALL, JR., WAS AWARDED TO HIS MOTHER AND THAT YOU WERE REQUIRED BY THE DECREE TO CONTRIBUTE TOWARDS THE MAINTENANCE AND SUPPORT OF THE CHILD. FURTHER, YOU CERTIFIED THAT YOU ACTUALLY DID CONTRIBUTE THE SUM OF $42 EACH MONTH FOR HIS SUPPORT.

THE VOUCHER CONTAINS THE FOLLOWING STATEMENT:

"I CERTIFY THAT FOR THE PERIOD 1 JULY 1944 TO 31 MARCH 1945, I DID NOT RECEIVE RENTAL ALLOWANCE IN MY OWN RIGHT AS AN OFFICER WITHOUT DEPENDENTS.'

A TRANSCRIPT OF YOUR PAY RECORD SHOWS THAT FOR THE PERIOD JULY 1944 TO FEBRUARY 1945 YOU WERE PAID BASIC ALLOWANCE FOR SUBSISTENCE AS AN OFFICER WITHOUT DEPENDENTS BUT THAT NO PAYMENT OF RENTAL ALLOWANCE WAS CREDITED TO YOUR ACCOUNT. APPARENTLY, THIS WAS BECAUSE YOU WERE ASSIGNED AND OCCUPIED GOVERNMENT QUARTERS AT YOUR DUTY STATION, AND IT HAD NOT BEEN ESTABLISHED THAT YOU WERE ENTITLED TO A RENTAL ALLOWANCE ON ACCOUNT OF YOUR SON AS A LAWFUL DEPENDENT. NO RENTAL ALLOWANCE WAS PAYABLE TO AN OFFICER WITHOUT DEPENDENTS WHO WAS ASSIGNED AND OCCUPIED GOVERNMENT QUARTERS. 21 COMP. GEN. 995, 997 AND 46 COMP. GEN. 869, 872. FURTHERMORE A CLAIM FOR RENTAL ALLOWANCE AS AN OFFICER WITHOUT DEPENDENTS ON THE BASIS THAT GOVERNMENT QUARTERS WERE NOT ASSIGNED AT YOUR STATION MUST BE SUPPORTED BY A CERTIFICATE TO THAT EFFECT ISSUED BY THE COMMANDING OFFICER AT THE TIME YOU REPORTED FOR DUTY AT THE STATION. YOUR CLAIM IS NOT SUPPORTED BY THE REQUIRED CERTIFICATE AND THEREFORE NO RIGHT TO RENTAL ALLOWANCE ON THAT BASIS HAS BEEN ESTABLISHED.

THE RECORD SHOWS THAT FOR THE MONTH OF MARCH 1945 YOU WERE CREDITED WITH SUBSISTENCE ALLOWANCE AND RENTAL ALLOWANCE AS FOR AN OFFICER WITH A DEPENDENT. PRESUMABLY, IT WAS ADMINISTRATIVELY DETERMINED THAT THE EVIDENCE THEN OF RECORD ESTABLISHED THAT YOU WERE CONTRIBUTING TO THE SUPPORT OF YOUR SON. HOWEVER, SUCH EVIDENCE IS NOT IN THE RECORD BEFORE US AND IN AN ADMINISTRATIVE REPORT FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, DATED NOVEMBER 13, 1967, IT IS STATED IN PERTINENT PART:

"SINCE THIS HEADQUARTERS IS UNABLE TO GET DOCUMENTS TO SUBSTANTIATE THE CLAIM AND THE ONLY EVIDENCE OF DEPENDENCY IS THE OFFICER'S STATEMENT, PAYMENT IS NOT RECOMMENDED.'

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, 37 U.S.C. 104 (1946 ED.) IN EFFECT AT THE TIME, DEFINES THE TERM "DEPENDENT" INSOFAR AS HERE MATERIAL, AS FOLLOWS:

"THE TERM -DEPENDENT- SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES * * * UNMARRIED CHILDRED UNDER TWENTY-ONE YEARS OF AGE. * * *"

IT WAS HELD IN 23 COMP. GEN. 71 THAT UNDER SECTION 4 OF THE 1942 ACT WHERE CUSTODY OF A CHILD IS GIVEN TO THE MOTHER, AND THE DECREE PROVIDES FOR HIS SUPPORT BY HIS FATHER, THIS OFFICE WILL NOT IN CASES OF DIVORCED OFFICERS, QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE. SEE 23 COMP. GEN. 625; 24 COMP. GEN. 233 AND 38 COMP. GEN. 89, 90.

HOWEVER, WHERE AN OFFICER HAS BEEN DIVORCED, AND THE CUSTODY OF THE CHILD OF THE MARRIAGE IS GIVEN TO THE FORMER WIFE WITHOUT ALIMONY OR MAINTENANCE PAYMENTS FOR THE CHILD, THE OFFICER IS NOT ENTITLED TO RENTAL OR SUBSISTENCE ALLOWANCE AS AN OFFICER WITH DEPENDENTS BECAUSE OF SUCH CHILD.

IN YOUR LETTER OF MARCH 29, 1968, IT APPEARS TO BE YOUR VIEW THAT SINCE YOU SUPPORTED YOUR WIFE AND CHILD WITH FAMILY ALLOWANCE PAYMENTS WHILE YOU WERE SERVING AS AN AVIATION CADET, SUCH PAYMENTS SHOW THAT AN ADMINISTRATIVE DETERMINATION OF YOUR SON'S DEPENDENCY ON YOU HAD BEEN MADE AND THIS SHOULD BE SUFFICIENT TO SUBSTANTIATE YOUR CLAIM. WITH RESPECT TO THIS, THE RECORD BEFORE US SHOWS THAT DEDUCTIONS FROM YOUR PAY TO SUPPORT SUCH PAYMENTS WERE DISCONTINUED AFTER OCTOBER 1943 FOLLOWING YOUR DIVORCE ON OCTOBER 15, 1943. THEREFORE, THEY DO NOT PROVIDE A LEGAL BASIS TO ALLOW YOUR CLAIM FOR INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT CHILD FOR THE PERIOD JULY 1, 1944, TO MARCH 31,1945.

AS STATED ABOVE, THE PRESENT RECORD DOES NOT CONTAIN SUFFICIENT INFORMATION FOR US TO DETERMINE WHETHER YOU WERE REQUIRED TO SUPPORT YOUR SON PRIOR TO MARCH 1945. THEREFORE, ON THE BASIS OF THE PRESENT RECORD WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM FOR INCREASED ALLOWNACES ON ACCOUNT OF A DEPENDENT CHILD. HOWEVER, FURTHER CONSIDERATION WILL BE GIVEN TO YOUR CLAIM UPON SUBMISSION OF A CERTIFIED COPY OF THE DECREE OF DIVORCE ISSUED BY THE DISTRICT COURT OF THE STATE OF TEXAS, SHOWING WHETHER OR NOT YOU WERE REQUIRED TO SUPPORT YOUR SON.

IT APPEARS FROM YOUR LETTER OF FEBRUARY 13, 1968, WHICH WAS FORWARDED HERE BY THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, THAT YOU BELIEVE YOU ARE ENTITLED TO PAYMENT OF THE AIR CORPS RESERVE LUMP SUM BONUS FOR SERVICE IN WORLD WAR II AND THE KOREAN CONFLICT ON THE BASIS THAT YOU WERE AN AVIATION CADET WHO WAS APPOINTED AS AN AIR CORPS RESERVE OFFICER.

THE RECORD CONTAINS DD FORM 13 STATEMENT OF SERVICE, DATED OCTOBER 20, 1955. THIS SHOWS THAT YOU ENLISTED IN THE ENLISTED RESERVE CORPS ON DECEMBER 14, 1942, WHICH STATUS WAS TERMINATED ON JUNE 26, 1944, BY YOUR HONORABLE DISCHARGE TO ACCEPT APPOINTMENT ON JUNE 27, 1944, AS SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES. ON JANUARY 12, 1946, YOU WERE PROMOTED TO FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES, AND ON MAY 29, 1947, YOU WERE APPOINTED AS FIRST LIEUTENANT, AIR CORPS RESERVE, WHICH YOU ACCEPTED ON JUNE 2, 1947. ON AUGUST 29, 1950, YOU WERE APPOINTED A CAPTAIN, AIR FORCE RESERVE, BUT THE RECORD DOES NOT SHOW ACCEPTANCE OF THIS APPOINTMENT. ON JANUARY 16, 1951, YOU WERE APPOINTED A CAPTAIN, AIR FORCE OF THE UNITED STATES, AND ON JANUARY 9, 1953, YOU WERE APPOINTED CAPTAIN, AIR FORCE RESERVE, WHICH YOU ACCEPTED ON JANUARY 13, 1953.

SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, BY SECTION 6 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, 55 STAT. 240, PROVIDED THAT WHEN AN AIR CORPS RESERVE OFFICER, WHO HAS NOT BEEN SELECTED FOR A COMMISSION IN THE REGULAR ARMY, IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH OFFICER AND, IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON HIS OWN REQUEST, OR AS A RESULT OF INEFFICIENT OR UNSATISFACTORY SERVICE AS DETERMINED BY THE SECRETARY OF WAR, SUCH LUMP SUM SHALL BE PRORATED FOR FRACTIONAL PARTS OF THE YEAR. THUS, THE BONUS SO AUTHORIZED WAS FOR ACTIVE SERVICE AS AN AIR CORPS RESERVE OFFICER.

SECTION 3 OF THE ARMY AVIATION CADET ACT, WHICH AUTHORIZED THE APPOINTMENT OF AVIATION CADETS AS AIR CORPS RESERVE OFFICERS, WAS SUSPENDED FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER BY SECTION 2 OF THE FLIGHT OFFICER ACT OF JULY 8, 1942, 56 STAT. 649, EXCEPT AS TO ANY PERSON WHO ENLISTED OR WAS APPOINTED AN AVIATION CADET PRIOR TO THE DATE OF ENACTMENT OF THAT ACT.

IT HAS BEEN HELD THAT THE MERE HOLDING OF A COMMISSION IN THE AIR CORPS RESERVE, WITH NO ACTIVE SERVICE UNDER SUCH RESERVE COMMISSION, GAVE NO RIGHT TO A LUMP-SUM PAYMENT. ALSO, IT HAS BEEN HELD THAT ACTIVE SERVICE, WHETHER OR NOT IT INVOLVED FLYING, IN ANY OTHER COMPONENT OF THE ARMY CREATED NO RIGHT TO SUCH PAYMENT. SEE DECISION OF DECEMBER 5, 1944, 24 COMP. GEN. 423, COPY HEREWITH. FURTHER, FOR THE PURPOSE OF COMPUTING THE LUMP SUM, CREDIT OF ACTIVE DUTY SUBSEQUENT TO JUNE 24, 1948, WAS NOT AUTHORIZED. SEE SECTION 13C OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 623, AND THE ACT OF APRIL 28, 1950, CH. 120, 64 STAT. 90.

SECTION 3 OF THE FLIGHT OFFICER ACT OF JULY 8, 1942, CITED ABOVE, PROVIDED THAT EACH AVIATION CADET THEREAFTER APPOINTED SHALL BE COMMISSIONED A SECOND LIEUTENANT OR APPOINTED A FLIGHT OFFICER IN THE ARMY OF THE UNITED STATES. SECTION 4 OF THAT ACT PROVIDED THAT FLIGHT OFFICERS MIGHT BE APPOINTED TO THE GRADE OF SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES.

SINCE YOU WERE NOT AN AVIATION CADET PRIOR TO JULY 8, 1942, YOU WERE NOT ELIGIBLE FOR APPOINTMENT AS AN AIR CORPS RESERVE OFFICER UNDER THE SAVINGS PROVISIONS OF SECTION 2 OF THE ACT OF THAT DATE. ALSO, YOU WERE PROPERLY COMMISSIONED SECOND LIEUTENANT ON JUNE 27, 1944, IN THE ARMY OF THE UNITED STATES. THEREAFTER, LIKE MANY OFFICERS SIMILARLY SITUATED, ON MAY 29, 1947, WHILE YOU WERE ON ACTIVE DUTY AS A FIRST LIEUTENANT OF THE ARMY OF THE UNITED STATES, YOU WERE TENDERED A COMMISSION AS FIRST LIEUTENANT, AIR CORPS RESERVE, WHICH YOU ACCEPTED ON JUNE 2, 1947. APPARENTLY, AS IN CASES OF OTHER OFFICERS SIMILARLY SITUATED, YOUR APPOINTMENT WAS QUALIFIED TO THE EXTENT THAT YOU WERE NOT TO PERFORM THE DUTY OF AN OFFICER UNDER SUCH APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS.

IN VIEW OF THE FOREGOING AND SINCE THERE IS NOTHING IN THE RECORD BEFORE US WHICH SHOWS THAT PRIOR TO JUNE 24, 1948, YOU PERFORMED ACTIVE SERVICE AS AN AIR CORPS RESERVE OFFICER, THERE IS NO BASIS TO ALLOW YOUR CLAIM FOR THE LUMP-SUM PAYMENT AUTHORIZED BY THE ACT OF JUNE 16, 1936, AS AMENDED.