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PAY AND ALLOWANCES

I. IN GENERAL.

§ 1. Generally.

§ 5. Allotments of Pay.

§ 7. Mentally Incompetent Persons.

§ 9. Deceased Persons.

§ 13. Persons Missing, Interned, Captured, Etc.

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§ 21. Unauthorized Absences; Absences Due to Diseases or Use of Alcohol or Drugs.

§ 27. Dual Compensation.

§ 29. Erroneous Payments, Generally.

II. BASE PAY.

§ 37. Officers.

§ 43. Service Counted in Determining Years of Service. III. ALLOWANCES; SPECIAL AND ADDITIONAL PAY.

A. IN GENERAL.

§ 57. Demolition Duty Pay.

§ 63. Foreign Duty Pay.

§ 67. Combat Duty Pay.

§ 68. Pay for Exercising Command of Higher Grade.

B. RENTAL, QUARTERS, AND SUBSISTENCE ALLOW-
ANCES; FAMILY ALLOWANCES; PER DIEM.

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§ 77. Determination of Dependency, Generally.

§ 79. Who Is a Dependent; Proof.

C. MISCELLANEOUS.

§ 83. In General.

§ 89. Enlistment Allowances; Re-enlistment Bonus.

§ 93. Mustering Out Pay.

IV. STOPPAGES AND DEDUCTIONS.

§ 101. In General.

I. IN GENERAL

§ 1. Generally

§ 1.31. Partial or advanced payments, generally.

Inasmuch as the advance payment of public money, unless authorized by the appropriation concerned or other law, is prohibited, the payment of $20.00 to a newly inducted enlisted man, who is not entitled to that amount of money by virtue of his service, is illegal. However, there would be no objection to making payments of such amounts as may have accrued to the enlisted man at the time of payment. (Citing subpar 2a, AR 35-1320, 25 July 1951; sec 3648,

Revised Statutes, as amended (31 USC 529); JAGA 1950/5257, 3 Oct 1950.) JAGA 1954/5481. 24 June 1951.

§ 5. Allotments of Pay

§ 5.41. Allotments to cover rent of premises occupied by dependents. Subsection 4 of sec 530 of the Soldiers and Sailors Civil Relief Act, 50 USC App 530, which provides that the Secretaries of the Army, Navy, and Treasury are empowered to order allotments from the pay of service members to discharge the rent of premises occupied by their dependents, applies to all members of the service, regardless of whether the service member was inducted after the execution of the lease covering such premises, he voluntarily enlisted after execution of such lease, or such lease was executed after he entered the services. (See Peiffer v. McGarvey, 61 F Supp 570; Nassau Savings and Loan Assn. v. Ormond, 39 NYS2d 92; Erlich v. Landman, 40 NYS2d 516, affd 43 NYS2d 743 (App Div); and Scanlan v. Garrick, 61 NE2d 773 (Ill).) However, there is no authority under the above statute or service regulations for ordering allotments for the payment of back rent. Op CCCG 1953–3. 13 April 1953.

§ 7. Mentally Incompetent Persons

§ 7.41. Comfort money.

Money deposited in a Patients' Trust Fund to the credit of a mental incompetent cannot be used for the purchase of comfort items. Furthermore, accrued pay cannot be paid as comfort money for the benefit of a member of the armed forces who has not been declared mentally incompetent although he may be manifestly incapable of managing his affairs. To the extent that regulations permit such payments (par 13, SR 35-1315-1, 9 March 1951, as changed by Changes No. 2, 17 July 1952) they are not supported by statutory authority. Such payments from accrued pay (not from a Patients' Trust Fund) could, however, be made for the benefit of a member who has been declared mentally incompetent by a board appointed under Army Regulations 40-610, 4 February 1954, unless a legal committee, guardian, or other representative has been duly appointed to act for such member. (Citing sec 2, act of 21 Jun 1950, 64 Stat 249, 37 USC 352; SPJGA 1944/2938, 5 Apr 1944; JAG 123, 3 Feb 1941; JAGA 1952/4876, 17 Jun 1952.) JAGA 1954/5516. 12 July 1954.

§ 9. Deceased Persons

§ 9.31. Effect of return of person declared deceased.

Where a member of the armed forces who has been declared presumptively dead pursuant to the authority contained in the Missing Persons Act returns to military control, it is not necessary to take action to recoup arrears in pay which accrued prior to the presumptive date of death and which were paid to his heirs or legal representative on the basis of the erroneous determination of death since Congress intended that upon the making of a presumptive death finding in the case of a member of the armed forces, the balance due

in his pay and allowance account would be paid to his heir or heirs or legal representative and that there would be no recovery of such payments for any reason, barring fraud on the part of the payee or mistake in computation. However, although the question of the right of the returned service member himself to recover his arrears in pay is not decided, it would seem to follow, as a corollary, that Congress intended the government would get a valid acquittance of its obligation with respect to a member's pay and allowance for the period of his absent casualty status by paying the amount to his heirs or legal representative, provided the payments were strictly in accordance with the terms of the applicable statutory provisions.

Nor is it necessary to take action to recover the six months' gratuity paid on the basis of the erroneous determination of death since the payment when made upon a determination of death is legal and valid, and a later determination that the person is alive may not retroactively effect its legality so as to require recovery from the beneficiary. MS Comp Gen B-120683, 34 Comp Gen 494. 1 April 1955.

§ 13. Persons Missing, Interned, Captured, Etc.

$15.

§ 15.3. Conclusiveness.

Determination of Status

In view of section 9 of the Missing Persons Act of 1942, as amended, 50 USC App 1009, which provides in substance that, for the purposes of the Act, determinations made by the head of the department concerned or his designee shall be conclusive, the Office of the Comptroller General does not have jurisdiction to question any credit of pay and allowances made in the account of a member of the armed forces pursuant to a determination by the Secretary concerned, or his designee, insofar as the credit relates to a period when the member was in an absent casualty status. And the fact that a death finding is made in such a case and is later cancelled as "erroneous" does not make any difference in regard to the matter of jurisdiction. However, neither such provisions nor any other provisions of the Missing Persons Act bar the jurisdiction of the Office of the Comptroller General to decide whether the Government should assert a right to recover arrears of pay and the six months' death gratuity from the persons who received the same on the basis of the erroneous finding of death. (See Moreno v. U. S., 118 Ct Cl 30 and compare Hevenor v. U. S., 121 Ct Cl 77.) MS Comp Gen B-120683, 34 Comp Gen 494. 1 April 1955.

Conclusiveness of departmental determination of entitlement to pay of persons under Missing Persons Act, see MS Comp Gen B-119508, infra § 68.1.

§ 17.1. Generally.

§ 17. Disability Severance Pay

An enlisted man received a court-martial sentence including provisions for confinement and total forfeitures. After part of the sentence had been served, the unexecuted portion was remitted

and the man was restored to duty. Later, it was determined he was physically unfit for service by reason of a disability determined to have had its inception during the period he was in confinement under the sentence and while the forfeiture provisions were still operative. Held: Disability severance pay is not allowable. The disability had its inception while the provisions for total forfeiture were operative and the subsequent mitigation of the sentence did not restore any right to pay already forfeited. Thus, there was no entitlement to basic pay at the time the disability was incurred as is required in order to qualify for disability severance pay. (Citing subsec 402a of the Career Compensation Act of 1949, 63 Stat 816; Vanderslice v. U. S., 19 Ct Cl 480, 489; 1 Comp Gen 291; AD 7348, 4 Jan 1923, 17 MS Comp Gen 63, 73.) MS Comp Gen B-120509, 34 Comp Gen 65. 13 August 1954.

Receipt of severance pay at the time of discharge for physical disability as not precluding appointment in the Army Reserve, see JAGA 1954/8893, RES F § 45.2.

Receipt of severance pay as not precluding appointment in Army Reserve, see JAGA 1954/9904, RES F § 45.2.

Receipt of severance pay for reasons other than disability as not affecting right to retirement pay under Title III, Army and Air Force Vitalization and Retirement Equalization Act of 1948, see JAGA 1954/ 9904, RETIRE § 51.21.

§ 18.1. Generally.

§ 18. Persons Awaiting Trial

An enlisted man's term of service expired on 18 October 1951. On that date he was in a prisoner of war status and he remained in such status until 9 August 1953 at which time he was repatriated. He was placed in confinement on 28 October 1953 awaiting trial by court-martial. Held: The enlisted man was in a pay status from 9 August through 27 October 1953. Unless acquitted he is not entitled to pay subsequent to 27 October 1953 while in confinement beyond expiration of term of service awaiting trial by court-martial. (Citing 30 Comp Gen 449, 1 Dig Ops PAY § 18.1; Comp Gen B-115784, 30 Dec 1953, 3 Dig Ops No. 3 SENT & PUN § 57.9.) JAGA 1954/2351. 5 March 1954.

Remission or suspension of sentence as affecting pay and allowances, see SENT & PUN §§ 55 and 57.

Time spent in confinement after expiration of enlistment awaiting trial as not creditable service though accused was restored to duty, see JAGA 1954/4138, infra § 43.51.

§ 18.21. Reserve personnel retained on active duty.

A reserve officer held on active duty beyond the date on which he would normally have reverted to an inactive status pending the outcome of a trial by court-martial is entitled to pay and allowances until the date he is actually relieved from active duty. (Citing sec

241, Armed Forces Reserve Act of 1952 (66 Stat 492, 50 USC 972); MCM, 1951, subpar 11d; JAGA 1954/1399, 29 Jan 1954.) JAGA 1954/7739. 14 September 1954.

§ 21. Unauthorized Absences; Absences Due to Diseases or Use of Alcohol or Drugs

§ 21.3. Absence without leave, generally.

An enlisted man whose term of service as involuntarily extended and reduced was to expire during the period 1-15 January 1953 absented himself without leave on 6 August 1948 and was returned to military control on 19 December 1952. After submitting an affidavit as to his whereabouts during the period of absence, he was released from military control and returned to his home on 28 January 1953 to await discharge. He was discharged 26 February 1953 by reason of desertion-trial barred by UCMJ, Art 43. Held: The information is insufficient to permit a determination whether the man attained a full duty status at any time during the period 19 December 1952 to 28 January 1953. However, he is entitled to pay and allowances during such period under the provisions of subpar 5a, AR 35-1030, 7 February 1952, which provides that pay and allowances of an absentee who surrenders or is apprehended before the expiration of his enlistment period will accrue from the date of his return to military control. (Citing 9 Comp Gen 323, 3 Comp Dec 676, 30 Comp Gen 449; SPJGA 1944/1890, 14 February 1944; CSJAGA 1949/6816, 18 October 1949; JAGA 1948/6928, 7 October 1948; cf. JAGA 1952/9608, 2 January 1953. But see JAGA 1954/5193, 10 June 1954.) JAGA 1954/9087. 2 December 1954.

§ 27.1. Generally.

§ 27. Dual Compensation

Employment of enlisted personnel by nonappropriated fund activity during off duty hours, see UNIT, ETC FUNDS § 17.35.

§ 29. Erroneous Payments, Generally

§ 29.1. Generally.

Repayment to accused of amounts erroneously deducted from his pay because of improper computation of forfeitures, see JAGA 1954/7435, SENT & PUN § 35.1.

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A first lieutenant, AUS, was promoted to captain, AUS by terminal leave promotion. He was appointed captain, Army Reserve, 18 June 1946 and accepted on 27 June 1946. However, the instrument of the appointment was dated 11 July 1946. He was appointed first lieutenant, Regular Army, 5 July 1946 and accepted 11 July 1946. He was then ordered from his home to his first duty station in the grade of captain. He received pay in that grade. He indicated he

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