B-164858, NOV. 18, 1968

B-164858, NOV. 18, 1968

TO CAPTAIN JOHN ROBIN STRATON, JR.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 18, 1968, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR MUSTERING- OUT PAY BELIEVED TO BE DUE INCIDENT TO YOUR "DISCHARGE" (RELEASE FROM ACTIVE DUTY) AS A MEMBER OF THE KENTUCKY AIR NATIONAL GUARD ON SEPTEMBER 24, 1953. YOU WERE DISCHARGED ON FEBRUARY 8, 1955.

THIS MATTER WAS THE SUBJECT OF OUR DECISION, B-164858, DATED SEPTEMBER 12, 1968, WHICH SUSTAINED AN EARLIER DISALLOWANCE OF YOUR CLAIM, BASED ON THE FACT THAT SINCE PAY RECORDS FOR THE PERIOD IN QUESTION WERE DESTROYED PURSUANT TO LAW, THERE WAS NO EVIDENCE OF RECORD TO ESTABLISH THAT MUSTERING-OUT PAY WAS NOT PAID TO YOU FOR YOUR ENLISTED SERVICE DURING THAT PERIOD.

YOU HAVE NOW SUBMITTED ADDITIONAL MATERIAL WHICH YOU BELIEVE PROVES NONPAYMENT OF MUSTERING-OUT PAY AND YOU CONTEND THAT UPON ENTERING ON EXTENDED ACTIVE DUTY ON FEBRUARY 14, 1956, THE PRIOR ACTIVE DUTY PERFORMED BY YOU DURING THE KOREAN CONFLICT BECAME CREDITABLE TO YOU FOR MUSTERING- OUT PAYMENT PURPOSES AND CREATED AN ELIGIBILITY FOR SUCH PAY AT THAT TIME. YOU ASSERT THAT THE NOTATIONS IN YOUR SERVICE RECORDS AFTER THAT DATE, INDICATING NONELIGIBILITY FOR MOP, WERE THE RESULT OF ADMINISTRATIVE ERROR.

WHILE DD FORMS 214 ISSUED IN CONNECTION WITH YOUR DISCHARGES FROM THE SERVICE ON FEBRUARY 13, 1961, AND DECEMBER 19, 1963, STATE "NOT ELIGIBLE MOP," SUCH NOTATIONS DO NOT INDICATE OR ESTABLISH IN ANY WAY THAT, IF YOU WERE ENTITLED TO MUSTERING-OUT PAY AT ANY TIME IN CONNECTION WITH YOUR AIR FORCE SERVICE, SUCH PAY WAS NOT PAID TO YOU WHEN A RIGHT THERETO ACCRUED.

SECTION 501 OF THE ACT OF JULY 16, 1952, CH. 875, 66 STAT. 688, AUTHORIZED THE PAYMENT OF MUSTERING-OUT PAY TO EACH MEMBER OF THE ARMED FORCES "WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE ON OR AFTER JUNE 27, 1950, AND PRIOR TO SUCH DATE AS SHALL BE DETERMINED * * * AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS.' THE TERMINATION DATE FOR QUALIFYING FOR MUSTERING-OUT PAY IS STATED IN PARAGRAPH 40131, AFM 110-4C, DECEMBER 1, 1965, AS ,1 FEB 1955.' IF YOU WERE ENTITLED TO SUCH PAY IN CONNECTION WITH YOUR RELEASE FROM ACTIVE DUTY WITH THE KENTUCKY AIR NATIONAL GUARD ON EITHER NOVEMBER 28, 1952, OR SEPTEMBER 24, 1953, NO REASON IS PERCEIVED WHY THAT PAY SHOULD NOT HAVE BEEN PAID TO YOU AT THAT TIME. HOWEVER, YOU HAVE FURNISHED NO INFORMATION WHICH SHOWS THAT YOU WERE ENTITLED TO SUCH PAY AT ANY TIME.

YOU APPEAR TO CONCEDE THAT YOUR NATIONAL GUARD ACTIVE SERVICE DURING THE PERIODS SEPTEMBER 3 TO NOVEMBER 28, 1952, AND MARCH 1 TO SEPTEMBER 24, 1953, DID NOT ENTITLE YOU TO MUSTERING-OUT PAY SINCE YOU ARGUE THAT SUCH DUTY BECAME CREDITABLE FOR MUSTERING-OUT PAYMENT PURPOSES WHEN YOU ENTERED ON EXTENDED ACTIVE DUTY UPON ENLISTMENT IN THE REGULAR AIR FORCE ON FEBRUARY 9, 1956. WE KNOW OF NO PROVISION OF LAW WHICH PERMITS PAYMENT OF MUSTERING-OUT PAY TO AN INELIGIBLE FORMER MEMBER OF THE AIR NATIONAL GUARD, MERELY BECAUSE HE THEREAFTER ENLISTS IN THE REGULAR AIR FORCE.

IN THE CIRCUMSTANCES SHOWN, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM.