B-151521, AUG. 21, 1963

B-151521, AUG. 21, 1963

TO LIEUTENANT COLONEL SEYMOUR BERMAN, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1963, CONCERNING YOUR CLAIM FOR AIR CORPS RESERVE LUMP-SUM BONUS FOR THE PERIOD SEPTEMBER 10, 1947, TO JUNE 24, 1948, WHICH WAS THE SUBJECT OF OUR DECISION TO YOU OF JUNE 19, 1963, B-151521.

IN THAT DECISION YOU WERE ADVISED THAT WHILE SERVING ON ACTIVE DUTY AS A SECOND LIEUTENANT IN THE AIR CORPS RESERVE, YOU ACCEPTED A TEMPORARY APPOINTMENT TO FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES ON NOVEMBER 11, 1942 (WITH SUBSEQUENT TEMPORARY PROMOTION TO CAPTAIN, AUS) AND THEREAFTER SERVED IN A DUAL STATUS AS A RESERVE OFFICER AND AS AN OFFICER OF THE ARMY OF THE UNITED STATES UNTIL SEPTEMBER 10, 1947, WHEN YOUR ACTIVE DUTY STATUS AS A RESERVE OFFICER WAS TERMINATED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 73, ARMY REGULATIONS NO. 140-5, JUNE 17, 1941, BY REASON OF YOUR ACCEPTANCE OF A COMMISSION AS MAJOR IN THE AIR RESERVE. SUCH APPOINTMENT PROVIDED THAT YOU WOULD PERFORM NO DUTIES THEREUNDER UNTIL DIRECTED BY COMPETENT ORDERS AND NO ORDERS WERE ISSUED DIRECTING YOU TO PERFORM DUTIES UNDER THAT APPOINTMENT PRIOR TO JUNE 24, 1948, THE DATE OF THE ACT TERMINATING SERVICE CREDIT FOR THE LUMP-SUM PAYMENTS.

YOU STATE THAT YOU CANNOT ACCEPT THE HOLDING IN THE DECISION THAT YOUR ACTIVE DUTY STATUS AS A RESERVE OFFICER TERMINATED ON SEPTEMBER 10, 1947, AND REASSERT THE CONTENTION MADE IN YOUR LETTER OF MAY 3, 1963, THAT SUCH ACTIVE DUTY STATUS CONTINUED THROUGHOUT THE PERIOD OF YOUR CLAIM. YOU FURTHER ASSERT THAT THE ACT OF FEBRUARY 16, 1942, 56 STAT. 94, 10 U.S.C. 292A-1 NOTE (1946 ED.), PROVIDES FOR THE RETENTION OF YOUR RESERVE STATUS AND THAT PARAGRAPH 73 OF ARMY REGULATIONS NO. 140 5, SUPRA, HAS NO BASIS IN LAW.

AS STATED IN OUR DECISION OF JUNE 19, 1963, THE ACT OF FEBRUARY 16, 1942, PROVIDED IN PERTINENT PART THAT DURING ANY WAR IN WHICH THE UNITED STATES WAS THEN ENGAGED, ANY OFFICER OF THE AIR CORPS RESERVE OR ANY OTHER SECTION OF THE OFFICERS' RESERVE CORPS ASSIGNED TO ACTIVE DUTY COULD BE APPOINTED TO HIGHER TEMPORARY GRADES, NOT ABOVE THAT OF COLONEL, IN THE ARMY OF THE UNITED STATES WITHOUT VACATING HIS EXISTING COMMISSION IN THE OFFICERS' RESERVE CORPS. THE ACT FURTHER PROVIDED THAT SUCH TEMPORARY PROMOTIONS WOULD NOT PREVENT AN OFFICER'S SUBSEQUENT PERMANENT PROMOTION. WHILE SUCH PROVISIONS PERMITTED OFFICERS TO ACCEPT HIGHER TEMPORARY COMMISSIONS IN THE ARMY OF THE UNITED STATES WITHOUT VACATING THEIR COMMISSIONS IN THE OFFICERS' RESERVE CORPS, THEY CLEARLY DID NOT PRECLUDE THE VACATING OF AN OFFICER'S RESERVE COMMISSION IN ACCORDANCE WITH APPLICABLE REGULATIONS FOR OTHER REASONS NOT LIKEWISE SPECIFICALLY EXEMPTED THEREIN, SUCH AS HIS ACCEPTANCE OF A PERMANENT COMMISSION IN THE REGULAR ARMY OR IN A DIFFERENT GRADE IN THE OFFICERS' RESERVE CORPS AS SET FORTH IN PARAGRAPH 73 OF ARMY REGULATIONS NO. 140-5.

ALTHOUGH YOU ASSERT THAT THE REGULATORY PROVISION HAS NO BASIS IN LAW, 10 U.S.C. 38 (1940 ED.) IN EFFECT AT THE TIME THE REGULATION WAS ISSUED SPECIFICALLY PROVIDED FOR THE PREPARATION OF IMPLEMENTING POLICIES AND REGULATIONS AFFECTING THE ORGANIZATION, DISTRIBUTION, TRAINING, APPOINTMENT, ASSIGNMENT, PROMOTION, AND DISCHARGE OF MEMBERS OF THE OFFICERS' RESERVE CORPS BY APPROPRIATE COMMITTEES IN THE WAR DEPARTMENT AND PROVIDED FURTHER "THAT THE CHIEF OF STAFF SHALL TRANSMIT TO THE SECRETARY OF WAR THE POLICIES AND REGULATIONS PREPARED AS HEREINBEFORE PRESCRIBED IN THIS SECTION AND ADVISE HIM IN REGARD THERETO. AFTER ACTION BY THE SECRETARY OF WAR THEREON THE CHIEF OF STAFF SHALL ACT AS THE AGENT OF THE SECRETARY OF WAR IN CARRYING THE SAME INTO ECT.' THAT AUTHORITY FOR THE ISSUANCE OF REGULATIONS CONCERNING MEMBERS OF THE OFFICERS' RESERVE CORPS WAS ALSO EMBODIED BY THE SAME TITLE AND SECTION NUMBERS IN THE 1946 EDITION OF THE UNITED STATES CODE WHICH WAS IN EFFECT AT THE TIME OF THE VACATION OF YOUR APPOINTMENT AS SECOND LIEUTENANT IN THE AIR CORPS RESERVE. THUS, IT MAY BE SEEN THAT THERE WAS AMPLE STATUTORY AUTHORITY TO PROMULGATE AND EFFECTUATE ARMY REGULATIONS NO. 140-5 DATED JUNE 17, 1941, WHICH WAS PLACED INTO EFFECT BY THE CHIEF OF STAFF ON JULY 1, 1941, BY ORDER OF THE SECRETARY OF WAR AND, IN VIEW OF THE PROVISIONS CONTAINED IN PARAGRAPH 73 THEREOF, WE PERCEIVE NO LEGAL BASIS UPON WHICH YOU COULD HAVE CONTINUED ON ACTIVE DUTY AS A RESERVE OFFICER AFTER ACCEPTING THE PERMANENT COMMISSION OF MAJOR IN THE AIR RESERVE UNTIL YOU RECEIVED FURTHER ORDERS FOR ACTIVE DUTY UNDER THAT COMMISSION.

IN REGARD TO YOUR CONTENTION THAT YOUR SITUATION IS ANALOGOUS TO THAT CONSIDERED IN OUR DECISION, B-47363, JULY 7, 1945, WE POINTED OUT IN THAT DECISION THAT OFFICERS SERVING UNDER PERMANENT COMMISSIONS IN THE AIR CORPS RESERVE WERE ALSO OFFICERS IN THE ARMY OF THE UNITED STATES AND THEIR PERMANENT RESERVE COMMISSIONS WERE NOT AFFECTED BY TEMPORARY APPOINTMENTS TO HIGHER GRADES IN THE ARMY OF THE UNITED STATES. FURTHER, THAT PERMANENT RESERVE COMMISSIONS WERE NOT VACATED BY OPERATION OF THE PROVISIONS OF CHANGES NO. 1, JULY 24, 1944, ARMY REGULATIONS NO. 605-12, "CONVERTING" HIGHER TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STATES (AIR CORPS) MADE UNDER THE ACT OF FEBRUARY 16, 1942, SUPRA, TO CORRESPONDING TEMPORARY GRADES IN THE ARMY OF THE UNITED STATES, IT BEING NOTED THAT IT WAS NEITHER THE INTENT OF THE CONGRESS NOR THE VIEW OF THE WAR DEPARTMENT WHICH ISSUED THE REGULATION THAT AN OFFICER'S PERMANENT COMMISSION WOULD BE VACATED BY SUCH TEMPORARY APPOINTMENTS OR PROMOTIONS. THAT DECISION DOES NOT SERVE AS AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM, BECAUSE, AS EXPLAINED IN OUR PREVIOUS DECISION TO YOU,NEITHER YOUR RESERVE COMMISSION OF SECOND LIEUTENANT NOR YOUR ACTIVE DUTY STATUS AS A RESERVE OFFICER WERE TERMINATED BY REASON OF YOUR TEMPORARY PROMOTIONS IN THE ARMY OF THE UNITED STATES, BUT OCCURRED ONLY BY REASON OF YOUR ACCEPTANCE OF THE HIGHER PERMANENT RESERVE COMMISSION OF MAJOR WHICH SPECIFICALLY REQUIRED FURTHER ORDERS TO AGAIN PLACE YOU ON ACTIVE DUTY IN YOUR STATUS AS A RESERVE OFFICER.

WITH REFERENCE TO YOUR ASSERTION THAT IT WAS MANDATORY THAT YOU ACCEPT THE INACTIVE RESERVE COMMISSION OF MAJOR IN ORDER TO CONTINUE ON ACTIVE DUTY, IT SHOULD BE NOTED THAT ALTHOUGH YOU HELD THE GRADE OF SECOND LIEUTENANT IN THE AIR CORPS RESERVE AT THAT TIME, BASICALLY YOU WERE THEN SERVING AND PERFORMING DUTIES IN THE GRADE OF CAPTAIN UNDER YOUR TEMPORARY COMMISSION IN THE ARMY OF THE UNITED STATES. BY ACCEPTING THE COMMISSION OF MAJOR IN THE AIR RESERVE CORPS WHILE SERVING ON ACTIVE DUTY, WHICH STATUS YOU PRESUMABLY DESIRED TO CONTINUE INDEFINITELY, YOU WERE PLACED ON A PARITY WITH RESPECT TO DATE OF PRECEDENCE, RANK AND GRADE, PROMOTION, ETC., WITH OTHER OFFICERS WHO WERE THEN BEING RELEASED FROM ACTIVE DUTY AND PROMOTED OR APPOINTED IN THE OFFICERS' RESERVE CORPS. SEE 26 COMP. GEN. 245. SUCH PURPOSE WAS NOT PERTINENT TO THE BASIC DUTY ASSIGNMENTS WHICH YOU WERE THEN PERFORMING AS A CAPTAIN IN THE ARMY OF THE UNITED STATES AND WE HAVE NOT BEEN INFORMED OF ANY MANDATORY PROVISIONS WHICH REQUIRED YOU TO ACCEPT THE HIGHER INACTIVE RESERVE ..END :