B-169541, DEC. 22, 1970

B-169541, DEC. 22, 1970

READJUSTMENT PAY - INVOLUNTARY TERMINATION OF SERVICE DENIAL OF CLAIM OF OFFICER OF THE NAVAL RESERVE FOR READJUSTMENT PAY UNDER 10 U.S.C. 687(A) ON THE GROUNDS THAT HE WAS NOT INVOLUNTARILY RELEASED FROM ACTIVE DUTY WITHIN THE MEANING OF THE LAW. WHERE AN OFFICER IN THE NAVAL RESERVE FAILED TO ACCEPT AN OFFER TO REMAIN ON ACTIVE DUTY AND AS A CONSEQUENCE WAS INVOLUNTARILY RELEASED FROM THE SERVICE PRIOR TO THE COMPLETION OF HIS OBLIGATED SERVICE THEN THE OFFICER DOES NOT QUALIFY FOR READJUSTMENT PAY BECAUSE SUCH PAY WAS INTENDED SOLELY FOR OFFICERS WHO INTENDED TO MAKE A CAREER OF ACTIVE MILITARY SERVICE AND, WHO AFTER THIS INTENTION WAS ESTABLISHED, WERE FORCED TO LEAVE THE SERVICE.

TO LIEUTENANT MORRIS E. MANSELL:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 8 AND 24, 1970, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR READJUSTMENT PAY INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS AN OFFICER OF THE NAVAL RESERVE ON DECEMBER 2, 1969.

YOU ARE ENTITLED TO READJUSTMENT PAY UNDER THE PROVISIONS OF 10 U.S.C. 687(A) ONLY IF YOU WERE "RELEASED FROM ACTIVE DUTY INVOLUNTARILY" AFTER COMPLETING AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY. AS YOU WERE ADVISED IN OUR DECISION TO YOU DATED OCTOBER 29, 1970, B-169541, THE LEGISLATIVE HISTORY OF THAT STATUTORY ENACTMENT CLEARLY SHOWS THAT THE PURPOSE OF THE CONGRESS IN ENACTING SUCH LEGISLATION WAS TO ENCOURAGE RESERVISTS TO MAKE A CAREER OF ACTIVE MILITARY SERVICE BY PROVIDING READJUSTMENT PAY TO CUSHION THE ADVERSE FINANCIAL EFFECT OF AN INVOLUNTARY RETURN TO CIVILIAN LIFE IN THE EVENT SUCH CAREER IS TERMINATED WITHOUT THEIR CONSENT.

A CAREER, AS SUCH, CANNOT BE TERMINATED PRIOR TO ITS BEGINNING OR PRIOR TO THE TIME THE PERSON CONCERNED DECIDES HE WANTS TO PURSUE SUCH CAREER. UNTIL HE TAKES ACTION INDICATING THAT HE INTENDS TO MAKE A CAREER OF ACTIVE MILITARY SERVICE, OR AT LEAST FORMS SUCH INTENTION IN HIS OWN MIND, THE SITUATION CONTEMPLATED BY THE STATUTE AS THE BASIS FOR PAYMENT OF READJUSTMENT PAY HAS NOT COME INTO EXISTENCE AND THERE IS, OF COURSE, NO BASIS FOR PAYING HIM READJUSTMENT PAY IF THE ACTIVE MILITARY SERVICE THEN BEING PERFORMED BY HIM IS TERMINATED WITHOUT HIS CONSENT. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE FACT THAT UNDER THE ACTIVE- DUTY AGREEMENT SIGNED BY YOU ON FEBRUARY 26, 1965, YOU AGREED THAT YOU COULD BE RELEASED FROM ACTIVE DUTY "AT ANY TIME, IN THE OPINION OF THE CHIEF OF NAVAL PERSONNEL, THE BEST INTEREST OF THE NAVAL SERVICE REQUIRES SUCH ACTION."

NOT ONLY WAS THERE NOTHING IN THE ACTIVE-DUTY AGREEMENT DATED FEBRUARY 26, 1965, WHICH INDICATED AN INTENTION ON YOUR PART TO MAKE A CAREER OF ACTIVE SERVICE IN THE NAVY--YOUR ACTIVE SERVICE UNDER THAT AGREEMENT WAS NOT TO EXTEND BEYOND JULY 1970--YOU HAVE INDICATED THAT AT THE TIME THE SEPARATION ORDERS OF OCTOBER 16, 1969, WERE ISSUED, YOU HAD NOT YET DECIDED WHETHER YOU SHOULD PURSUE A CAREER AS A NAVAL RESERVE OFFICER ON ACTIVE DUTY. WHILE YOU TAKE THE POSITION THAT YOU WERE TREATED UNFAIRLY IN BEING REQUIRED TO MAKE A DECISION CONCERNING A CAREER PRIOR TO THE TIME YOUR OBLIGATED SERVICE EXPIRED IN JULY 1970, THE LAW DOES NOT CONTEMPLATE THE PAYMENT OF READJUSTMENT PAY TO A RESERVE OFFICER WHOSE ACTIVE DUTY IS TERMINATED AS A RESULT OF ACTION TAKEN BY HIM PRIOR TO THE TIME HE MAKES SUCH CAREER DECISION. WHEN YOU WERE OFFERED THE OPPORTUNITY TO VOLUNTARILY EXTEND YOUR OBLIGATED SERVICE FOR ONLY 1 YEAR, YOU REJECTED THAT OFFER.

INSOFAR AS THE READJUSTMENT PAY LAW IS CONCERNED, WE PERCEIVE NO MATERIAL DIFFERENCE BETWEEN THE SITUATION WHERE THE RESERVE OFFICER VOLUNTEERS TO EXTEND HIS ACTIVE DUTY BY REQUESTING AN EXTENSION OF HIS ACTIVE-DUTY COMMITMENT AND THE SITUATION WHERE THE NAVY OFFERS THE RESERVE OFFICER AN OPPORTUNITY TO REMAIN ON ACTIVE DUTY BY EXTENDING HIS ACTIVE-DUTY COMMITMENT THROUGH ORDERS DIRECTING SUCH ADDITIONAL ACTIVE DUTY, IF THE RESERVE OFFICER IS FREE TO DECLINE SUCH ORDERS. IN EACH SUCH SITUATION THE ACT OF ACCEPTING OR REJECTING THE ADDITIONAL ACTIVE DUTY OBLIGATION IS THE FREE CHOICE OF THE RESERVE OFFICER, THAT IS, IT IS A VOLUNTARY DECISION FREELY MADE BY HIM.

WHILE YOU SAY THAT YOU DID NOT WANT TO BE RELEASED EARLY FROM YOUR ACTIVE DUTY LATE IN 1969 AS PROVIDED IN THE ORDERS OF OCTOBER 16, 1969, AND THAT YOU DESIRED TO COMPLETE YOUR TOUR OF OBLIGATED ACTIVE DUTY SERVICE WITH SCHEDULED RELEASE DATE OF JULY 31, 1970, IT IS CLEAR THAT THE NAVY OFFERED YOU AN OPPORTUNITY TO REMAIN ON ACTIVE DUTY UNTIL THE COMPLETION OF YOUR OBLIGATED SERVICE AND AN ADDITIONAL YEAR THEREAFTER. IN SUCH CIRCUMSTANCES YOUR FAILURE TO ACCEPT THE OFFER OF THE NAVY AND TO THUS REMAIN ON ACTIVE DUTY WAS A VOLUNTARY ACT ON YOUR PART AND YOUR RETURN TO CIVILIAN LIFE UPON RELEASE FROM ACTIVE DUTY EFFECTIVE DECEMBER 2, 1969, MUST BE VIEWED AS THE DIRECT RESULT OF YOUR DECISION.

YOUR CASE HAS BEEN THOROUGHLY RECONSIDERED IN THE LIGHT OF THE READJUSTMENT PAY LAW AND ITS LEGISLATIVE HISTORY AND, CONSIDERING ALL THE FACTS AND CIRCUMSTANCES IN YOUR CASE, WE HAVE CONCLUDED THAT YOUR RELEASE FROM ACTIVE DUTY PURSUANT TO THE ORDERS OF OCTOBER 16, 1969, EFFECTIVE DECEMBER 2, 1969, WAS NOT INVOLUNTARY WITHIN THE MEANING OF THE READJUSTMENT PAY LAW, 10 U.S.C. 687, EVEN THOUGH YOU WERE RELEASED FROM ACTIVE DUTY PRIOR TO THE COMPLETION OF YOUR OBLIGATED SERVICE AGAINST YOUR PERSONAL WISHES.

ACCORDINGLY, THE DENIAL OF YOUR CLAIM MUST BE AND IS SUSTAINED.