B-148188, FEB. 3, 1966

B-148188, FEB. 3, 1966

TO COLONEL ERVEN E. BOETTNER, USAR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1965, RELATIVE TO YOUR CLAIM FOR VARIOUS ITEMS OF ADDITIONAL PAY AND ALLOWANCES BELIEVED BY YOU TO BE DUE INCIDENT TO YOUR SERVICE AS A MEMBER OF THE UNITED STATES ARMY RESERVE. YOUR CLAIM WAS PARTIALLY ALLOWED IN THE AMOUNT OF $36.85 ON SETTLEMENT VOUCHER ISSUED BY THE CLAIMS DIVISION OF OUR OFFICE UNDER DATE OF JULY 10, 1964, AND AN ADDITIONAL AMOUNT OF $198 WAS ALLOWED ON VOUCHER ISSUED BY OUR CLAIMS DIVISION UNDER DATE OF SEPTEMBER 17, 1965. YOU STATE THAT OUR LATEST SETTLEMENT "LEAVES UNRESOLVED THE FOLLOWING.

"1. ITEM 1 OF MY CLAIM FOR PARACHUTE PAY FOR 7 DAYS ACTIVE DUTY 8 14 MAY 1961.

2. ITEM 2 OF MY CLAIM FOR PARACHUTE PAY FOR 14 DAYS ACTIVE DUTY 20 AUGUST/2 SEPTEMBER 1961.

3. ITEM 4 OF MY CLAIM FOR PARACHUTE PAY FOR THREE DAYS ACTIVE DUTY 27-29 MAY 1961.

4. ITEM 5 OF MY CLAIM FOR PARACHUTE PAY FOR THREE DAYS ACTIVE DUTY 6-8 MAY 1961.

5.ITEM 10 OF MY CLAIM FOR LUMP SUM PAYMENT FOR 3 DAYS ACCRUED LEAVE FOR SERVING 30 DAYS ACTIVE DUTY DURING 16 JUNE/15 JULY 1962.

6. PARACHUTE PAY FOR 8 ASSEMBLIES DURING NOVEMBER AND DECEMBER 1960 PAID ON VOUCHER 107646 WHICH YOU DISALLOWED IN YOUR LETTER OF SEPT. 14, 1965.

7. PARACHUTE PAY FOR 15 DAYS ACTIVE DUTY DURING JUNE 24-JULY 8, 1961 PAID ON VOUCHER 100039 WHICH YOU DISALLOWED IN YOUR LETTER OF SEPT. 14, 1965.'

YOUR ORIGINAL CLAIM WAS FOR $55 COVERING PARACHUTE PAY FOR THE PERIOD OCTOBER 15 TO 29, 1960. AFTER SEVERAL EXCHANGES OF CORRESPONDENCE YOU SUBMITTED, BY LETTER OF JULY 5, 1963, A CLAIM FOR 11 ADDITIONAL ITEMS OF PAY OR ALLOWANCES WHICH YOU BELIEVED TO BE DUE YOU IN ADDITION TO THE $55 ORIGINALLY CLAIMED. ITEMS 4 AND 5 OF THAT ADDITIONAL CLAIM ARE AS FOLLOWS:

"4. 6-8 APRIL 1962 11.00 3 DAYS PRCHT PAY FOR ACDUTRA

NOT PAID. (SEE 3 ABOVE FOR

ENTITLEMENT)

5. 27-29 APRIL 1962 11.00 3 DAYS PRCHT PAY FOR ACDUTRA

NOT PAID. SEE 3 ABOVE.'

THE OTHER ITEMS QUOTED ABOVE FROM YOUR LETTER OF DECEMBER 6, 1965, COINCIDE WITH THE STATEMENT OF THOSE NUMBERED ITEMS IN YOUR CLAIM LETTER OF JULY 5, 1963. SINCE YOUR LETTER OF DECEMBER 6, 1965, DOES NOT PURPORT TO PRESENT ANY NEW CLAIM IT IS ASSUMED THAT THE MONTH AND YEAR INVOLVED IN ITEMS 4 AND 5 WERE INADVERTENTLY MISSTATED THEREIN.

ITEMS 1, 2, 4 AND 5 OF YOUR CLAIM WERE DISALLOWED IN OUR DECISION TO YOU OF JULY 2, 1964 (SEE PAGE 3 OF THAT DECISION), FOR THE REASON THAT THE PERIODS FOR WHICH YOU CLAIMED PARACHUTE PAY WERE PERIODS OF ACTIVE DUTY FOR TRAINING WHEREAS THE JUMPS UPON WHICH YOU RELIED AS QUALIFYING YOU FOR PARACHUTE PAY WERE PERFORMED WHILE YOU WERE ON INACTIVE DUTY TRAINING.

ITEM 10 WAS DISALLOWED IN OUR DECISION TO YOU OF JULY 2, 1964 (SEE PAGE 4 OF THAT DECISION), FOR THE REASON THAT THE ACTIVE DUTY UPON WHICH YOU BASED YOUR CLAIM COMPRISED TWO SEPARATE AND DISTINCT PERIODS AGGREGATING 30 DAYS RATHER THAN A SINGLE PERIOD OF 30 DAYS OR MORE.

YOUR ALLEGATION THAT YOU QUALIFIED FOR ACTIVE DUTY JUMP PAY BECAUSE YOU MADE "AN ACTIVE DUTY JUMP IN EACH YEAR" IS WITHOUT FOUNDATION. THE LAW AND REGULATIONS PRESCRIBE AS A REQUISITE FOR PAYMENT OF PARACHUTE PAY THE PERFORMANCE OF AT LEAST ONE JUMP DURING EVERY 3 MONTHS OR, WITH THE PROPERLY AUTHORIZED WAIVER, OF AT LEAST 4 JUMPS IN A YEAR. THERE IS NO AUTHORITY FOR PAYMENT OF PARACHUTE PAY ON AN ANNUAL BASIS UPON THE PERFORMANCE OF 1 JUMP PER YEAR.

YOU CITE PARAGRAPH 30173 D OF AR 37-104 AS AUTHORITY FOR PAYMENT OF PARACHUTE PAY FOR THE PERIOD JUNE 24 TO JULY 8, 1961, BASED ON AN INJURY RECEIVED IN A PARACHUTE JUMP ON MAY 24, 1961. PARAGRAPH 30173 OF THE REGULATIONS WAS PROMULGATED FEBRUARY 15, 1965, AND CAN HAVE NO EFFECT ON YOUR ENTITLEMENT OR NONENTITLEMENT TO PARACHUTE PAY FOR A PERIOD IN 1961. HOWEVER, PARAGRAPH 2-12 OF AR 37-104, DATED DECEMBER 2, 1957, WHICH WAS IN EFFECT IN MAY 1961, PROVIDED FOR CONTINUATION OF ENTITLEMENT FOR A PERIOD NOT TO EXCEED 3 MONTHS IN THE CASE OF A MEMBER INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF A PARACHUTE ACCIDENT WHILE PERFORMING PARACHUTE DUTY UNDER COMPETENT ORDERS. WHILE THE REGULATION IN EFFECT THUS AUTHORIZED A CONTINUATION OF THE ENTITLEMENT ALREADY ESTABLISHED, IT DID NOT CREATE A NEW ENTITLEMENT. AS YOU WERE ADVISED IN DECISION OF JULY 2, 1964 (SEE PAGES 2 AND 3), THE JUMP PERFORMED ON MAY 24, 1961, WAS PERFORMED IN AN INACTIVE DUTY STATUS AND FURNISHED NO BASIS FOR PAYMENT TO YOU OF PARACHUTE PAY WHILE ON ACTIVE DUTY FOR TRAINING JUNE 24 TO JULY 8, 1961.

IT WILL BE SEEN THAT ALL ITEMS CLAIMED BY YOU HAVE BEEN DISPOSED OF BY ALLOWANCE OR DISALLOWANCE AS EXPLAINED IN OUR PREVIOUS DECISIONS TO YOU. IN OUR DECISION OF SEPTEMBER 14, 1965, WE REVERSED SOME OF THE CONCLUSIONS REACHED IN OUR PRIOR DECISIONS AND AUTHORIZED PAYMENT TO YOU OF $198 COVERING ITEMS WHICH PREVIOUSLY HAD BEEN DISALLOWED. HOWEVER, IT WILL BE NOTED THAT THE CHANGES IN THAT DECISION FROM DISALLOWANCE TO ALLOWANCE OF CERTAIN ITEMS WERE BASED EXCLUSIVELY ON THE NEW EVIDENCE FURNISHED BY YOU WITH YOUR LETTER OF JULY 6, 1965, WHICH ESTABLISHED AS FACTS CERTAIN STATEMENTS PRESENTED BY YOU PREVIOUSLY BUT NOT ACCEPTED AS A BASIS FOR PAYMENT WITHOUT CORROBORATION. THERE HAS BEEN NO CHANGE IN ANY OF OUR RULINGS AS TO BASIS FOR ENTITLEMENT WITH REGARD TO ANY ITEM CLAIMED BY YOU.

YOU NOW REQUEST THAT WE AGAIN RECONSIDER YOUR CLAIM BUT YOU HAVE FURNISHED NO BASIS FOR SUCH RECONSIDERATION, THAT IS, YOU HAVE FURNISHED NO NEW EVIDENCE OR INFORMATION WHICH COULD PROVIDE AUTHORITY FOR A REVERSAL OF ANY OF OUR RULINGS WHICH YOU NOW CONTEST.

OUR OFFICE HAS BEEN CHARGED WITH RESPONSIBILITY FOR MAKING THE NECESSARY DETERMINATIONS, INCLUDING INTERPRETATION OF LAWS AND REGULATIONS, TO ASSURE THE EXPENDITURE OF PUBLIC MONEYS IN ACCORDANCE WITH LAW AND OUR DECISIONS ARE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. 31 U.S.C. 74. SEE ALSO OUR DECISION TO YOU OF JANUARY 22, 1965. YOUR DISAGREEMENT WITH OUR DECISIONS DOES NOT ALTER THAT FACT. THEREFORE, SINCE ALL ITEMS CLAIMED BY YOU HAVE BEEN DISPOSED OF, IT APPEARS THAT FURTHER CORRESPONDENCE RELATIVE THERETO WOULD SERVE NO USEFUL PURPOSE IN THE ABSENCE OF EVIDENCE NOT HERETOFORE CONSIDERED.