B-145199, APR. 14, 1961

B-145199, APR. 14, 1961

TO MAJOR KENNETH E. GIRARD, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1961, REQUESTING REVIEW OF SETTLEMENT OF FEBRUARY 2, 1961, WHICH DISALLOWED YOUR CLAIM FOR $300 MUSTERING-OUT PAY INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY IN THE AIR FORCE ON SEPTEMBER 30, 1960.

THE RECORD SHOWS THAT ON MARCH 1, 1951, YOU WERE HONORABLE DISCHARGED FROM YOUR ENLISTMENT IN THE UNITED STATES AIR FORCE FOR THE PURPOSE OF BEING RECALLED TO ACTIVE DUTY AS A COMMISSIONED OFFICER. ON MARCH 2, 1951, YOU REPORTED FOR ACTIVE DUTY AND ACCEPTED AN APPOINTMENT AS A CAPTAIN, AIR FORCE OF THE UNITED STATES. YOU SERVED CONTINUOUSLY UNTIL SEPTEMBER 30, 1960, WHEN YOU WERE RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 8911 IN THE GRADE OF MAJOR, AIR FORCE RESERVE, IN WHICH YOU WERE THEN SERVING.

YOUR CLAIM IS BASED ON THE PREMISE THAT YOU BECAME ENTITLED TO THE $300 MUSTERING-OUT PAY UPON DISCHARGE FROM YOUR ENLISTED STATUS ON MARCH 1, 1951, AND THAT ONLY THE PAYMENT THEREOF WAS DEFERRED UNTIL YOUR EVENTUAL SEPARATION FROM ACTIVE SERVICE.

PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950, WAS AUTHORIZED UNDER THE CONDITIONS SPECIFIED IN TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688. THESE PROVISIONS WERE REENACTED IN PUBLIC LAW 85-857, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1105, 1222, WHICH REVISED, CODIFIED AND ENACTED AS TITLE 38, U.S. CODE, THE VARIOUS LAWS RELATING TO VETERANS' BENEFITS. SUBSECTIONS (A) AND (B) (1), (2) OF SECTION 2101 IN CHAPTER 43 OF TITLE 38 PROVIDE AS FOLLOWS:

"/A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, EACH MEMBER OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY DURING THE KOREAN CONFLICT AND WHO IS DISCHARGED OR RELEASED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, SHALL BE ELIGIBLE FOR MUSTERING-OUT PAYMENT.

"/B) NO MUSTERING-OUT PAYMENT SHALL BE MADE---

"/1) TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE IS IN A PAY GRADE HIGHER THAN 0-3, OR IF HE IS A COMMISSIONED OFFICER, UNLESS HE WAS DISCHARGED OR RELEASED BEFORE JANUARY 31, 1958;

"/2) TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE IS ENTITLED TO SEVERANCE PAY, OR IS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, OR TO A STATUS IN WHICH HE RECEIVES SUCH PAY; EXCEPT THAT THIS PARAGRAPH SHALL NOT APPLY UPON RETIREMENT OR SEPARATION PURSUANT TO CHAPTER 61 OF TITLE 10; "

SECTION 2104 OF TITLE 38, U.S. CODE, PROVIDES, IN PART, AS FOLLOWS:

"* * * NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS CHAPTER (43) MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.'

PARAGRAPHS 21421, 21422D, 21423A, B AND G, AIR FORCE MANUAL 177-105, ARE TO THE SAME EFFECT.

UNDER THE FOREGOING PROVISIONS OF LAW AND REGULATIONS, A RIGHT TO MUSTERING-OUT PAY TO A PERSON WHO SERVED IN THE KOREAN CONFLICT AND WHO WAS DISCHARGED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN OTHER THAN A REGULAR COMPONENT OF THE ARMED FORCES, DID NOT ACCRUE UNTIL HIS PERMANENT SEPARATION FROM THE SERVICE OR ULTIMATE RELIEF FROM ACTIVE DUTY. HE WOULD NOT BE ENTITLED TO SUCH PAY AT THAT TIME IF HE WAS DISCHARGED OR RELEASED FROM ACTIVE DUTY AFTER JANUARY 30, 1958, OR IF HE WAS IN A PAY GRADE ABOVE 0-3 OR WAS ENTITLED TO RETIRED PAY FOR REASONS OTHER THAN PHYSICAL DISABILITY.

SINCE YOU WERE RELEASED FROM ACTIVE DUTY AFTER JANUARY 30, 1958, AS A COMMISSIONED OFFICER IN PAY GRADE 0-4 WITH IMMEDIATE ENTITLEMENT TO NON- DISABILITY RETIRED PAY, IT IS CLEAR THAT NO RIGHT TO MUSTERING-OUT PAY ACCRUED TO YOU. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION CONCERNING A FURTHER APPEAL, YOU ARE ADVISED THAT DECISIONS OF THIS OFFICE ARE BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 71, 74. HOWEVER, THE UNITED STATES COURT OF CLAIMS HAS JURISDICTION TO CONSIDER CLAIMS AGAINST THE GOVERNMENT IF ACTION IS FILED IN THAT COURT WITHIN SIX YEARS FOLLOWING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.