B-129319, JUN. 14, 1957

B-129319, JUN. 14, 1957

TO MR. ROBERT EANS:

FURTHER REFERENCE IS MADE TO YOUR LETTER POSTMARKED FEBRUARY 5, 1957, AND TO PRIOR CORRESPONDENCE, CONCERNING YOUR CLAIM FOR ADDITIONAL PAY AND ALLOWANCES BELIEVED DUE YOU INCIDENT TO YOUR ARMY SERVICE FOR THE PERIOD ENDING APRIL 20, 1950. IT APPEARS TO BE YOUR CONTENTION THAT ADDITIONAL AMOUNTS ARE DUE YOU FOR THE PERIODS FROM NOVEMBER 1, 1948, TO MARCH 31, 1949, AND FROM APRIL 1, 1949, TO APRIL 20, 1950; THAT NO INCOME TAX DEDUCTION SHOULD HAVE BEEN MADE FROM THE ADDITIONAL AMOUNT ALLOWED PURSUANT TO OUR SETTLEMENT DATED MARCH 21, 1956; AND THAT YOU SHOULD HAVE RECEIVED INTEREST ON THE AMOUNT ALLOWED PURSUANT TO THAT SETTLEMENT.

IN VIEW OF THE REPRESENTATIONS IN YOUR LETTERS, ALL OF THE PAPERS IN YOUR CASE HAVE BEEN CAREFULLY REEXAMINED AND A TRANSCRIPT HAS BEEN OBTAINED OF ALL PAYMENTS, INCLUDING PARTIAL PAYMENTS, MADE TO YOU DURING THE PERIOD OF YOUR ARMY SERVICE. ALSO, ADDITIONAL REPORTS CONCERNING YOUR CASE HAVE BEEN OBTAINED FROM THE DEPARTMENT OF THE ARMY AND A REPORT HAS BEEN OBTAINED FROM THE DEPARTMENT OF THE NAVY CONCERNING THE LENGTH OF YOUR PERIOD OF SERVICE IN THE NAVY.

THE DEPARTMENT OF THE ARMY RECORDS SHOW THAT YOU ENLISTED IN THE REGULAR ARMY ON JULY 8, 1948, AS PRIVATE, FIRST CLASS. THAT TITLE WAS CHANGED TO PRIVATE AS OF AUGUST 1, 1948, BY DEPARTMENT OF THE ARMY CIRCULAR NO. 202, JULY 7, 1948. YOUR SUBSEQUENT PROMOTIONS AND REDUCTIONS, WITH EFFECTIVE DATES, WERE AS FOLLOWS: RECRUIT, JANUARY 4, 1949; PRIVATE, SEPTEMBER 23, 1949; PRIVATE, FIRST CLASS, SEPTEMBER 27, 1949; CORPORAL, NOVEMBER 8, 1949; RECRUIT, MARCH 10, 1950; PRIVATE, MARCH 24, 1950; RECRUIT, APRIL 12, 1950; AND PRIVATE, APRIL 13, 1950. YOU WERE DISCHARGED ON APRIL 20, 1950. THE DEPARTMENT OF THE NAVY RECORDS SHOW THAT YOU HAD ACTIVE DUTY IN THE U.S. NAVAL RESERVE FROM JANUARY 22, 1945, TO JUNE 27, 1946, A PERIOD OF 1 YEAR, 5 MONTHS AND 6 DAYS. AS YOU WERE ABSENT WITHOUT LEAVE FROM NOVEMBER 27 TO DECEMBER 10, 1948, INCLUSIVE, A PERIOD OF 14 DAYS, YOU DID NOT COMPLETE 2 YEARS OF SERVICE UNTIL FEBRUARY 15, 1949. YOU HAD FOREIGN SERVICE FROM FEBRUARY 23 TO JULY 10, 1949.

YOUR COURT-MARTIAL FORFEITURES WERE AS FOLLOWS: JANUARY 4, 1949, $35; MARCH 10, 1950, $25; AND APRIL 12, 1950, $30. YOU HAD IN EFFECT A CLASS N ALLOTMENT OF $7.96 A MONTH, TO COVER PREMIUMS ON YOUR NATIONAL SERVICE LIFE INSURANCE, AND THAT ALLOTMENT WAS PAID FROM JULY 1948 THROUGH NOVEMBER 1948. FAMILY ALLOWANCE PAYMENTS WERE MADE FROM AUGUST 1948 THROUGH APRIL 1950. CLASS B ALLOTMENT DEDUCTIONS TOTALING $116.25 WERE MADE FROM YOUR PAY DURING THE PERIOD INVOLVED FOR THE PURCHASE OF SAVINGS BONDS AND THE DEPARTMENT OF THE ARMY HAS REPORTED THAT BONDS HAVING A PURCHASE PRICE OF $116.25 WERE ISSUED IN YOUR CASE.

IT APPEARS THAT ON SEPTEMBER 30, 1949, YOU WERE SERVING AS PRIVATE, FIRST CLASS; THAT YOU WERE ENTITLED TO THE PAY OF THAT GRADE, WITH LESS THAN 3 YEARS OF SERVICE, OR $90 A MONTH; AND THAT YOU HAD IN EFFECT A CLASS A FAMILY ALLOWANCE TO WHICH THE GOVERNMENT CONTRIBUTED $58 A MONTH. THUS, ON SEPTEMBER 30, 1949, YOUR "TOTAL COMPENSATION" WAS $148 A MONTH, CONSISTING OF $90 PAY AND $58 WHICH REPRESENTED THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE. ON OCTOBER 1, 1949, YOU WERE ENTITLED UNDER THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, TO BE PLACED IN PAY GRADE E-3, WITH OVER 2 YEARS OF SERVICE, WITH BASIC PAY AT THE RATE OF $102.90 A MONTH AND, UPON PROMOTION TO CORPORAL ON NOVEMBER 8, 1949, YOU WERE ENTITLED TO BE PLACED IN PAY GRADE E-4, WITH OVER 2 YEARS OF SERVICE, WITH BASIC PAY UNDER THE NEW ACT AT THE RATE OF $124.95 A MONTH, WHICH IS LESS THAN THE "TOTAL COMPENSATION" THAT YOU WERE ENTITLED TO RECEIVE AS A PRIVATE, FIRST CLASS, ON SEPTEMBER 30, 1949, UNDER THE PRIOR LAW. ACCORDINGLY, FOR THE PERIOD FROM OCTOBER 1, 1949, TO MARCH 9, 1950, UNDER THE SAVINGS CLAUSE OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, YOU WERE ENTITLED TO CONTINUE TO RECEIVE THE "TOTAL COMPENSATION" WHICH YOU WERE ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949. 29 COMP. GEN. 238.

IN OUR DECISION OF SEPTEMBER 26, 1950, 30 COMP. GEN. 119, IT WAS CONCLUDED THAT A MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, WHO WAS REDUCED IN GRADE OR RATING BY ADMINISTRATIVE ACTION OR BY SENTENCE OF COURT-MARTIAL, MIGHT CONTINUE TO RECEIVE SAVED TOTAL COMPENSATION COMPUTED ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO THE REDUCED GRADE OR RATING UNDER THE LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE 1949 ACT, BUT THAT A SUBSEQUENT PROMOTION WOULD NOT ENTITLE SUCH A MEMBER TO INCREASED SAVED TOTAL COMPENSATION OF THE HIGHER GRADE OR RATING. YOU WERE REDUCED TO RECRUIT ON MARCH 10, 1950. THUS, EFFECTIVE MARCH 10, 1950, YOUR ,TOTAL COMPENSATION" COMPUTED ON THE BASIS OF THE PAY AND ALLOWANCES APPLICABLE TO THE REDUCED GRADE UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, WAS $136.75 A MONTH, CONSISTING OF $78.75, THE PAY OF A RECRUIT WITH OVER 3 YEARS OF SERVICE, AND $58 WHICH REPRESENTED THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE, WHICH AMOUNT IS MORE THAN $87.50, THE AMOUNT PROVIDED BY THE CAREER COMPENSATION ACT OF 1949 FOR A RECRUIT WITH OVER 2 YEARS BUT LESS THAN 4 YEARS OF SERVICE. ACCORDINGLY, YOU SHOULD HAVE RECEIVED PAY AT THE RATE OF $78.75 A MONTH FROM MARCH 10 TO APRIL 20, 1950, DURING WHICH PERIOD YOUR DEPENDENTS CONTINUED TO RECEIVE THE FAMILY ALLOWANCE, AND PAYMENT FOR YOUR ACCRUED LEAVE SHOULD HAVE BEEN MADE AT THE RATE OF $78.75 A MONTH.

A CONSOLIDATED STATEMENT OF YOUR PAY ACCOUNT, SHOWING ALL AMOUNTS ACCRUING TO YOU FOR THE PERIOD FROM AUGUST 1, 1948, TO APRIL 20, 1950, AND ALL AMOUNTS PROPERLY CHARGEABLE AGAINST YOUR PAY FOR THAT PERIOD, IS AS FOLLOWS:

TABLE

CREDITS BASE PAY AS A PRIVATE, AUGUST 1, 1948, TO JANUARY 3,

1949, EXCLUSIVE OF PERIOD OF ABSENCE WITHOUT LEAVE

FROM NOVEMBER 27 TO DECEMBER 10, 1948, AT $80 A MONTH $370.66 BASE PAY AS A RECRUIT, JANUARY 4 TO FEBRUARY 22, 1949,

AT $75 A MONTH 122.50 BASE AND FOREIGN SERVICE PAY AS A RECRUIT, FEBRUARY 23

TO JULY 10, 1949, AT $90 A MONTH 414.00 BASE PAY AS A RECRUIT, JULY 11 TO SEPTEMBER 22, 1949,

AT $75 A MONTH 180.00 BASE PAY AS A PRIVATE, SEPTEMBER 23 TO 26, 1949,

AT $80 A MONTH 10.67 BASE PAY AS A PRIVATE, FIRST CLASS, SEPTEMBER 27 TO

30, 1949, AT $90 A MONTH 12.00 BASE PAY AS A PRIVATE, FIRST CLASS, OCTOBER 1, 1949,

TO MARCH 9, 1950, AT $90 A MONTH 477.00 BASE AND LONGEVITY PAY AS A RECRUIT WITH OVER 3 YEARS

OF SERVICE, MARCH 10 TO APRIL 20, 1950, AT $78.75

A MONTH 107.63 PAY FOR 20 DAYS OF UNUSED LEAVE, AT $78.75 A MONTH 52.50 SUBSISTENCE ALLOWANCE FOR 20 DAYS OF UNUSED LEAVE,

AT $0.70 A DAY 14.00 LEAVE RATIONS, JULY 18 TO AUGUST 20, 1949, AT $1.05

A DAY 35.70 GOVERNMENT CONTRIBUTION TO FAMILY ALLOWANCE, OCTOBER

1, 1949, THROUGH APRIL 1950, AT $58 A MONTH 406.00 CLOTHING ALLOWANCE

7.80 TRAVEL ALLOWANCE AT DISCHARGE 86.40

-------$2,296.86

CHARGES CLASS N ALLOTMENT, AUGUST THROUGH NOVEMBER 1948,

AT $7.96 A MONTH 31.84 CLASS B ALLOTMENT DEDUCTIONS

116.25 DEDUCTIONS AS YOUR CONTRIBUTION TO THE FAMILY

ALLOWANCE, AUGUST 1, 1948, TO SEPTEMBER 30, 1949, AT

$22 A MONTH 308.00 FAMILY ALLOWANCE PAYMENTS, OCTOBER 1, 1949, THROUGH

APRIL 1950, AT $80 A MONTH 560.00 COURT-MARTIAL FORFEITURES

90.00 WITHHOLDING TAX 17.32 DEDUCTION FOR MEALS AND TRANSPORTATION IN MAY 19493.20 COST OF TRANSPORTATION AND SUBSISTENCE FROM CHARLESTON,

WEST VIRGINIA, TO FORT BLISS, TEXAS, IN AUGUST 1949 54.58 LAUNDRY AND DRY CLEANING

14.60 SOLDIERS' HOME DEDUCTIONS 2.10 TOTAL OF REGULAR AND PARTIAL PAYMENTS INCLUDING THE

AMOUNT ALLOWED IN SETTLEMENT OF MARCH 21, 1956 1,134.01 GOVERNMENT PROPERTY LOST OR DAMAGES (REPORT OF

SURVEY DATED MARCH 8, 1950) 9.98 2,341.88 OVERPAYMENT TO YOU

$ 45.02

THE WITHHOLDING, IN OUR SETTLEMENT DATED MARCH 21, 1956, OF THE SUM OF $17.32 AS INCOME TAX WAS PROPERLY MADE UNDER THE PROVISIONS OF THE APPLICABLE LAWS AND REGULATIONS IN EFFECT AT THE TIME THE SETTLEMENT WAS MADE. AS TO THE PAYMENT OF INTEREST ON THE AMOUNT ALLOWED IN THAT SETTLEMENT, IT IS THE ESTABLISHED RULE THAT INTEREST ON CLAIMS AGAINST THE UNITED STATES CANNOT BE RECOVERED IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY IN THE RELEVANT STATUTE OR CONTRACT. UNITED STATES V. TILLAMOOKS, 341 U.S. 48.

ACCORDINGLY, SINCE THE RECORDS SHOW THAT YOU HAVE BEEN OVERPAID THE SUM OF $45.02, THAT AMOUNT SHOULD BE REFUNDED BY CHECK OR MONEY ORDER PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE.