B-147982, AUGUST 25, 1966, 46 COMP. GEN. 167

B-147982, AUGUST 25, 1966, 46 COMP. GEN. 167

UNIFORMS - MILITARY PERSONNEL - OFFICERS - ADDITIONAL ALLOWANCE - ENTITLEMENT TO INITIAL ALLOWANCE. A RESERVE CAPTAIN, A DISTINGUISHED MILITARY GRADUATE OF THE AIR FORCE RESERVE OFFICERS' TRAINING CORPS, ORDERED TO EXTENDED ACTIVE DUTY AND PAID AN INITIAL $200 UNIFORM ALLOWANCE, RECOVERED FROM HIM UPON HIS APPOINTMENT AS A SECOND LIEUTENANT IN THE REGULAR AIR FORCE PRIOR TO COMPLETION OF THE 90 DAYS' SERVICE PRESCRIBED FOR ENTITLEMENT TO THE ALLOWANCE, AND REPAID TO HIM PURSUANT TO PUBLIC LAW 88-618, DATED OCTOBER 3, 1964, VALIDATING UNIFORM ALLOWANCE PAYMENTS TO DISTINGUISHED MILITARY GRADUATES, ON THE BASIS OF A RECORD CORRECTION TO SHOW 90 DAYS' SERVICE AS A RESERVIST MAY NOT BE ALLOWED THE ADDITIONAL $100 UNIFORM ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 255/C) UPON EACH ENTRY OR REENTRY ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 90 DAYS, THE RECORD CORRECTION DELAYING THE EFFECTIVE DATE OF THE OFFICER'S ACCEPTANCE OF A REGULAR COMMISSION NOT ESTABLISHING HIS RIGHT TO THE INITIAL UNIFORM ALLOWANCE, REPAYMENT OF WHICH WOULD NOT HAVE BEEN MADE WITHOUT THE BENEFIT OF THE 1964 ACT, THERE IS NO BASIS FOR THE PAYMENT OF THE ADDITIONAL UNIFORM ALLOWANCE TO THE OFFICER.

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, AUGUST 25, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1966, WITH ENCLOSURES, FILE REFERENCE CF, IN WHICH YOU REQUEST OUR DECISION CONCERNING THE PROPRIETY OF PAYMENT OF THE ADDITIONAL UNIFORM ALLOWANCE OF $100 TO CAPTAIN ROBERT D. NEAL, FR 59641, ON THE BASIS OF HIS CORRECTED MILITARY RECORDS. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF-911 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON JUNE 4, 1960, CAPTAIN NEAL, A DISTINGUISHED MILITARY GRADUATE OF THE AIR FORCE RESERVE OFFICERS' TRAINING CORPS, WAS APPOINTED A RESERVE OFFICER OF THE AIR FORCE. BY SPECIAL ORDERS NO. A-3811, DATED JUNE 22, 1960, OF HEADQUARTERS, AIR RESERVE RECORDS CENTER (CONAC), DENVER, COLORADO, HE WAS ORDERED TO EXTEND ACTIVE DUTY FOR A PERIOD OF 36 MONTHS, UNLESS SOONER RELIEVED, AND ASSIGNED TO THE INSTITUTE OF TECHNOLOGY, AIR UNIVERSITY, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, FOR AN 18-MONTH COURSE IN GRADUATE ELECTRICAL ENGINEERING, COMMENCING SEPTEMBER 6, 1960. THOSE ORDERS DIRECTED CAPTAIN NEAL TO REPORT TO THE INSTITUTE IN CLASS "A" UNIFORM ON AUGUST 22, 1960, AND SPECIFIED THE EFFECTIVE DATE OF DUTY AS AUGUST 17,1960. BY SPECIAL ORDERS NO. A 4767, DATED JULY 15, 1960, OF THE SAME COMMAND, THE ORDERS OF JUNE 22, 1960, WERE AMENDED TO SHOW, AMONG OTHER THINGS, THE EFFECTIVE DATE OF DUTY AS AUGUST 14, 1960. ON AUGUST 22, 1960, THE DEPARTMENT OF THE AIR FORCE, WASHINGTON, D. C., PUBLISHED SPECIAL ORDERS NO. A-1613, APPOINTING HIM A SECOND LIEUTENANT, REGULAR AIR FORCE, WITH DATE OF RANK AS AUGUST 14, 1960. THE OATH FOR SUCH COMMISSION WAS EXECUTED ON AUGUST 31, 1960.

PURSUANT TO THE ORDERS OF JUNE 22, 1960, AND UNDER THE AUTHORITY OF 37 U.S.C. 255/A) (1958 ED.), WHICH PROVIDED FOR AN INITIAL UNIFORM ALLOWANCE NOT TO EXCEED $200 TO AN OFFICER OF A RESERVE COMPONENT UPON FIRST REPORTING FOR ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD IN EXCESS OF 90 DAYS, OR UPON COMPLETION, AS A MEMBER OF A RESERVE COMPONENT, OF NOT LESS THAN 14 DAYS' ACTIVE DUTY, CAPTAIN NEAL RECEIVED AN INITIAL UNIFORM ALLOWANCE OF $200. THAT AMOUNT, HOWEVER, WAS RECOVERED FROM HIM IN LINE WITH OUR DECISION OF MARCH 22, 1961, 40 COMP. GEN. 539. IN THAT DECISION, WHICH COVERED A SIMILAR SITUATION CONCERNING A DISTINGUISHED MILITARY GRADUATE OF THE AFROTC, IT WAS HELD, QUOTING THE SYLLABUS:

ORDERS ISSUED BY THE AIR FORCE RESERVE WHICH DIRECTED AN AIR FORCE RESERVE OFFICER TO ACTIVE DUTY FOR 36 MONTHS UNDER THE AIR FORCE INSTITUTE OF TECHNOLOGY PROGRAM, WHEREBY AFROTC DISTINGUISHED GRADUATES ARE OFFERED REGULAR COMMISSIONS FOR GRADUATE EDUCATION AND ORDERS, DATED 3 DAYS AFTER THE MEMBER ENTERED ON ACTIVE DUTY AT THE SCHOOL, WHICH APPOINTED THE MEMBER TO A REGULAR AIR FORCE COMMISSION MUST BE CONSIDERED TOGETHER TO GIVE EFFECT TO THE INTENT OF THE AIR FORCE EDUCATION PROGRAM SO THAT THE ORDERS TO EXTENDED ACTIVE DUTY IN THE RESERVE WHEN THE MEMBER ANTICIPATED RECEIPT OF THE REGULAR COMMISSION MAY NOT BE REGARDED AS COMING WITHIN THE UNIFORM ALLOWANCE PROVISIONS OF SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 255, TO ENTITLE THE MEMBER TO A UNIFORM ALLOWANCE FOR ACTIVE DUTY AS RESERVE OFFICER IN EXCESS OF 90 DAYS.

THE PRINCIPLES OF THAT DECISION WERE ALSO APPLIED IN DECISION OF FEBRUARY 19, 1962, 41 COMP. GEN. 547, TO DENY THE INITIAL UNIFORM ALLOWANCE IN THE CASE OF AN AIR FORCE OFFICER WHOSE SITUATION WAS SIMILAR TO THAT IN 40 COMP. GEN. 539 EXCEPT THAT HE SERVED ON ACTIVE DUTY IN A RESERVE STATUS IN EXCESS OF 14 DAYS AFTER ENTRY ON ACTIVE DUTY BEFORE EXECUTING THE OATH FOR HIS REGULAR COMMISSION, IT BEING HELD THAT EVEN THOUGH THE DELAY IN EFFECTING THE APPOINTMENT IN THE REGULAR SERVICE RESULTED IN THE PERFORMANCE OF ACTIVE DUTY IN A RESERVE CAPACITY FOR MORE THAN 14 DAYS THE INTENT OF BOTH THE OFFICER AND THE AIR FORCE UPON HIS ENTRANCE ON ACTIVE DUTY WAS THAT HE WOULD SERVE IN A RESERVE STATUS FOR BUT A SHORT PROCESSING PERIOD BEFORE ENTERING HIS REGULAR AIR FORCE STATUS.

SUBSEQUENTLY THERE WAS ENACTED PUBLIC LAW 88-618, 78 STAT. 994, DATED OCTOBER 3, 1964, WHICH VALIDATED ALL PAYMENTS OF UNIFORM ALLOWANCES MADE PRIOR TO THE DATE OF ENACTMENT THEREOF UNDER SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 255 (1958 ED.), TO DISTINGUISHED MILITARY GRADUATES OF THE ROTC OR AFROTC WHO WERE ORDERED TO ACTIVE DUTY AS COMMISSIONED OFFICERS OF A RESERVE COMPONENT OF THE ARMY OR AIR FORCE WHILE BEING CONSIDERED FOR APPOINTMENT IN THE REGULAR ARMY OR REGULAR AIR FORCE AND AUTHORIZED REFUND OF ANY AMOUNTS REPAID BY SUCH OFFICERS ON ACOUNT OF UNIFORM ALLOWANCES PREVIOUSLY RECEIVED BY THEM. PURSUANT TO THAT LAW, THE AMOUNT OF $200 WAS REPAID TO CAPTAIN NEAL.

ON OCTOBER 19, 1965, CAPTAIN NEAL EXECUTED AN APPLICATION FOR THE CORRECTION OF HIS MILITARY RECORDS, AND ON FEBRUARY 4, 1966, THE UNDER SECRETARY OF THE AIR FORCE UNDER THE AUTHORITY OF 10 U.S.C. 1552 DIRECTED THAT THE PERTINENT RECORDS OF THE DEPARTMENT OF THE AIR FORCE RELATING TO THE OFFICER BE CORRECTED TO SHOW THAT ON AUGUST 22, 1960, HE WAS TENDERED APPOINTMENT IN THE REGULAR AIR FORCE IN THE GRADE OF SECOND LIEUTENANT AND THAT HE ACCEPTED THE APPOINTMENT ON NOVEMBER 14, 1960. IN A LETTER DATED APRIL 8, 1966, CAPTAIN NEAL PRESENTED A CLAIM FOR THE ADDITIONAL UNIFORM ALLOWANCE OF $100, AUTHORIZED UNDER 37 U.S.C. 255/C) IN ADDITION TO THE INITIAL $200 ALLOWANCE TO A RESERVEOFFICER UPON EACH ENTRY OR REENTRY ON ACTIVE DUTY OF MORE THAN 90 DAYS' DURATION, ON THE BASIS THAT HIS CORRECTED MILITARY RECORDS NOW SHOW THAT HIS APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE WAS EFFECTIVE NOVEMBER 14, 1960, AND THAT HE THEREFORE SERVED ON ACTIVE DUTY AS A RESERVE MEMBER FOR A PERIOD OF MORE THAN 90 DAYS.

YOU ADVISE THAT PAYMENT OF THE INITIAL UNIFORM ALLOWANCE TO CAPTAIN NEAL, AS VALIDATED BY PUBLIC LAW 88-618, SUPRA, IS NOT FOR CONSIDERATION IN THIS CASE, BUT THAT THE ADDITIONAL UNIFORM ALLOWANCE CLAIMED BY HIM WOULD BE PAYABLE ONLY IF THE INITIAL UNIFORM ALLOWANCE IS ALSO VALID WITHOUT REFERENCE TO THAT LAW. YOU ADD THAT SIMILAR CLAIMS FOR BOTH THE INITIAL AND ADDITIONAL UNIFORM ALLOWANCES NOT INVOLVING PUBLIC LAW 88-618 ARE PENDING IN YOUR OFFICE.

PRIOR TO THEIR CORRECTION, THE RECORDS IN CAPTAIN NEAL'S CASE SHOWED THAT FOLLOWING HIS COMMISSIONING IN THE AIR FORCE RESERVE ON JUNE 4, 1960, HE WAS ORDERED TO ACTIVE DUTY EFFECTIVE AUGUST 14, 1960, AND ON AUGUST 22, 1960, HE WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR AIR FORCE TO RANK FROM AUGUST 14, 1960, WHICH APPOINTMENT HE ACCEPTED ON AUGUST 31, 1960---CIRCUMSTANCES UNDER WHICH IT SEEMS APPARENT NO AUTHORITY WOULD EXIST FOR THE PAYMENT OF EITHER THE INITIAL $200 UNIFORM ALLOWANCE OR THE ADDITIONAL $100 ALLOWANCE NOW CLAIMED. AFTER THEIR CORRECTION, CAPTAIN NEAL'S RECORDS SHOW THAT FOLLOWING HIS COMMISSIONING IN THE AIR FORCE RESERVE ON JUNE 4, 1960, HE WAS ORDERED TO ACTIVE DUTY EFFECTIVE AUGUST 14, 1960, AND ON AUGUST 22, 1960, HE WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR AIR FORCE TO RANK FROM AUGUST 14, 1960, WHICH APPOINTMENT HE ACCEPTED ON NOVEMBER 14, 1960. THUS, THE ONLY FACTUAL CHANGE IN THE RECORDS IS THE DATE OF ACCEPTANCE OF THE COMMISSION AND WE FAIL TO SEE HOW THE DATE UPON WHICH A COMMISSION IS ACCEPTED HAS ANY BEARING UPON THE INTENT OF THE DEPARTMENT CONCERNED AS REFLECTED BY THE DATE ON WHICH THE APPOINTMENT WAS TENDERED, OR DATE OF RANK FIXED IN THE APPOINTMENT. HENCE, IN OUR OPINION, THE FACT THAT CAPTAIN NEAL MAY HAVE DELAYED FOR MORE THAN 90 DAYS IN ACCEPTING THE COMMISSION AFFORDS NO MORE BASIS FOR A CONCLUSION THAT AT ANY TIME PRIOR TO OR AFTER THE PROCESSING OF HIS REGULAR AIR FORCE COMMISSION IT WAS CONTEMPLATED BY THE UNITED STATES AIR FORCE THAT HE WOULD BE REQUIRED TO SERVE AS A RESERVE OFFICER ON ACTIVE DUTY FOR A PERIOD IN EXCESS OF 90 DAYS THAN WAS AFFORDED FOR SUCH CONCLUSION BY THE SIMILAR DELAY OF MORE THAN 14 DAYS IN THE CASE CONSIDERED IN 41 COMP. GEN. 547.

SINCE ON THE BASIS OF THE CORRECTED RECORD CAPTAIN NEAL DID NOT SERVE ON ACTIVE DUTY PRIOR TO AUGUST 14, 1960, AND, AS IN THE CASE OF THE RECORD PRIOR TO ITS CORRECTION, HE COULD REASONABLY HAVE ANTICIPATED RECEIVING HIS REGULAR APPOINTMENT WITHIN A FEW DAYS AFTER HIS ENTRANCE ON ACTIVE DUTY AND DID IN FACT SO RECEIVE IT, HIS DELAY IN ACCEPTING THAT APPOINTMENT MAY NOT BE VIEWED AS ESTABLISHING HIS RIGHT TO THE $200 ALLOWANCE CLAIMED AS FOR ENTRANCE UPON DUTY IN CIRCUMSTANCES ANTICIPATING THE PERFORMANCE OF ACTIVE DUTY OF MORE THAN 90 DAYS' DURATION IN HIS RESERVE STATUS UNDER THE CITED PROVISIONS IN 37 U.S.C.255/A).

SINCE, IN OUR OPINION THE CORRECTED RECORD AFFORDS NO BASIS FOR A CONCLUSION THAT CAPTAIN NEAL WOULD HAVE BEEN ENTITLED TO RECEIVE THE $200 INITIAL UNIFORM ALLOWANCE WITHOUT THE BENEFIT OF PUBLIC LAW 88 618, HE IS NOT ENTITLED TO THE ADDITIONAL UNIFORM ALLOWANCE OF $100 AND PAYMENT ON THE VOUCHER RECEIVED WITH YOUR REQUEST IS NOT AUTHORIZED. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.