B-160696, JAN. 30, 1967

B-160696, JAN. 30, 1967

TO MR. ROBERT L. WHITFIELD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1967, CONCERNING YOUR CLAIM FOR READJUSTMENT PAY INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS A RESERVE OFFICER, U.S. ARMY, ON SEPTEMBER 10, 1957, WHICH CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON OCTOBER 17, 1960.

IN REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU REFER TO ARMY REGULATION 37-104, FEBRUARY 15, 1965, AND YOU SAY THAT YOU ARE NOW ENTITLED TO SUCH READJUSTMENT PAY COMPUTED ON THE BASIS OF "TWO (2) MONTHS' PAY FOR EIGHT YEARS CONTINUOUS SERVICE AS A FIRST LIEUTENANT (O-2E) WITH OVER TEN YEARS' SERVICE.'

IT IS REPORTED THAT YOU SERVED ON ACTIVE DUTY AS AN ENLISTED MAN IN THE AIR FORCE FROM AUGUST 29, 1946, TO AUGUST 8, 1949--- SINCE THE DEPARTMENT OF THE AIR FORCE WAS NOT ESTABLISHED UNTIL JULY 26, 1947, SEE THE ACT OF JULY 26, 1947, CH. 343, 61 STAT. 495, 502, PRESUMABLY PART OF THIS SERVICE WAS WITH THE ARMY AIR CORPS--- THAT YOU SERVED AS AN ENLISTED MAN IN THE REGULAR ARMY FROM OCTOBER 22, 1949, TO JANUARY 8, 1953, AND THAT YOU HAD ACTIVE SERVICE AS A RESERVE OFFICER IN THE ARMY FROM JANUARY 9, 1953, TO SEPTEMBER 10, 1957, WHEN YOU WERE INVOLUNTARILY RELEASED FROM ACTIVE DUTY AS A FIRST LIEUTENANT.

SECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, PROVIDED THAT MEMBERS OF RESERVE COMPONENTS WHO WERE INVOLUNTARILY RELEASED FROM ACTIVE DUTY, AFTER HAVING COMPLETED FIVE YEARS OF CONTINUOUS ACTIVE DUTY, SHALL BE ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT. SUCH PAYMENT WAS AUTHORIZED TO BE COMPUTED ON THE BASIS OF ONE-HALF OF ONE MONTH'S BASIC PAY IN THE GRADE IN WHICH THE MEMBER WAS SERVING AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, FOR EACH YEAR OF ACTIVE SERVICE.

YOUR CLAIM FOR READJUSTMENT PAY WAS DENIED BY OUR CLAIMS DIVISION ON THE BASIS OF OUR INTERPRETATION AT THAT TIME THAT THE APPLICABLE PROVISIONS OF LAW DID NOT PERMIT REGULAR AND RESERVE SERVICE TO BE COMBINED IN COMPUTING THE FIVE YEARS OF CONTINUOUS ACTIVE DUTY FOR THE PURPOSE OF QUALIFYING FOR READJUSTMENT PAY. SEE THE ANSWER TO QUESTION 3 (A) IN OUR DECISION OF AUGUST 17, 1956, 36 COMP. GEN. 129, 132. SUBSEQUENT TO THAT DECISION, HOWEVER, THE COURT OF CLAIMS IN THE CASE OF WASHBURN V. UNITED STATES, 161 CT.CL. 46, DECIDED MARCH 6, 1963, HELD THAT A MEMBER OF A RESERVE COMPONENT, INVOLUNTARILY RELEASED FROM ACTIVE DUTY, WAS ENTITLED TO COMBINE SERVICE IN A REGULAR COMPONENT WITH SERVICE IN A RESERVE COMPONENT, IN DETERMINING ELIGIBILITY FOR READJUSTMENT PAY. WE ARE FOLLOWING THAT DECISION. SEE 43 COMP. GEN. 240.

COUNTING ALL YOUR ENLISTED SERVICE AND YOUR RESERVE OFFICER'S SERVICE, YOU HAD 10 YEARS, 9 MONTHS AND 29 DAYS' ACTIVE SERVICE, OR A TOTAL OF 11 YEARS' ACTIVE SERVICE FOR PURPOSES OF COMPUTING THE AMOUNT OF READJUSTMENT PAY (UNDER SECTION 265 (A) A PART OF A YEAR THAT IS 6 MONTHS OR MORE IS COUNTED AS A WHOLE YEAR). CONTRARY TO YOUR APPARENT BELIEF, HOWEVER, SINCE YOU WERE RELEASED FROM ACTIVE DUTY ON SEPTEMBER 10, 1957, YOU ARE ENTITLED TO HAVE YOUR READJUSTMENT PAY COMPUTED ONLY ON THE BASIS OF THE LAW THEN IN EFFECT, NAMELY, ONE-HALF OF ONE MONTH'S BASIC PAY OF THE GRADE IN WHICH YOU WERE SERVING AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY FOR EACH YEAR OF ACTIVE SERVICE.

WHILE THE ACT OF JUNE 28, 1962, PUB.L. 87-509, 76 STAT. 120, 50 U.S.C. 1016 (A) (1964 ED.), AMENDED SECTION 265 (A) BY CHANGING THE COMPUTATION OF READJUSTMENT PAY FROM ONE-HALF OF ONE MONTH'S BASIC PAY TO TWO MONTHS' BASIC PAY IN DETERMINING THE FIGURE TO BE MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE, THE 1962 AMENDMENT WAS MADE APPLICABLE TO A MEMBER OF A RESERVE COMPONENT WHO WAS INVOLUNTARILY "RELEASED FROM ACTIVE DUTY AFTER THE DATE OF ENACTMENT OF THIS AMENDED SUBSECTION.' SINCE YOU WERE RELEASED FROM ACTIVE DUTY PRIOR TO JUNE 28, 1962, YOU ARE NOT ENTITLED TO HAVE YOUR READJUSTMENT PAY COMPUTED UNDER THE BASIS OF THE 1962 AMENDMENT.

ACCORDINGLY, A SETTLEMENT WILL BE STATED IN YOUR FAVOR AT THE EARLIEST POSSIBLE DATE FOR READJUSTMENT PAY COMPUTED ON THE BASIS OF 5 1/2 MONTHS' BASIC PAY OF THE GRADE OF A FIRST LIEUTENANT WITH OVER 10 YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES, LESS ANY MUSTERING-OUT PAY YOU MAY HAVE RECEIVED IN CONNECTION WITH YOUR MILITARY SERVICE AS REQUIRED BY THE LAST SENTENCE OF SECTION 265 (A), AS AMENDED.