B-139107, SEP. 25, 1959

B-139107, SEP. 25, 1959

TO CAPTAIN ROBERT C. DOWLING, USAF, 25875A:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1959, PROTESTING THE CONCLUSION REACHED IN OUR LETTER DATED APRIL 8, 1959, B-139107, TO THE HONORABLE LISTER HILL, UNITED STATES SENATE, THAT YOU PROPERLY ARE INDEBTED TO THE UNITED STATES ON ACCOUNT OF MUSTERING-OUT PAY PAID TO YOU AT THE TIME YOU WERE APPOINTED AN OFFICER IN THE REGULAR AIR FORCE. YOU CONTEND THAT UNDER THE LAW AND THE WORDING OF YOUR APPOINTMENT ORDERS YOU ARE ENTITLED TO THE $300 MUSTERING-OUT PAYMENT.

IN THE ABOVE LETTER OF APRIL 8, 1959, WE QUOTED, IN PART, A REPORT FROM THE ADMINISTRATIVE OFFICE CONCERNING YOUR CASE THAT YOU WERE "SERVING AS A TEMPORARY FIRST LIEUTENANT, UNITED STATES AIR FORCE, ON 11 FEBRUARY 1954, THE DATE HE (YOU) ACCEPTED AN APPOINTMENT AS FIRST LIEUTENANT IN THE REGULAR AIR FORCE. THIS APPOINTMENT IN THE UNITED STATES AIR FORCE, WITHOUT COMPONENT, DID NOT TERMINATE * * *.' WE REFERRED TO OUR DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645--- UNDER WHICH THE ADMINISTRATIVE OFFICE DETERMINED THAT YOU WERE NOT ENTITLED TO THE $300 MUSTERING-OUT PAYMENT--- AND POINTED OUT THAT UNLESS ACTION WAS TAKEN TO TERMINATE YOUR TEMPORARY APPOINTMENT AS FIRST LIEUTENANT IN THE UNITED STATES AIR FORCE AT THE TIME OF THE ACCEPTANCE OF YOUR APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR AIR FORCE, YOU COULD NOT BE CONSIDERED AS HAVING BEEN DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES WITHIN THE MEANING OF SECTION 502 OF THE ACT OF JULY 16, 1952, 66 STAT. 689, SO AS TO BE ENTITLED TO MUSTERING OUT PAY.

YOU ADMIT THAT YOUR APPOINTMENT ORDERS OF FEBRUARY 8, 1954, DID NOT EXPRESSLY TERMINATE YOUR TEMPORARY APPOINTMENT AS FIRST LIEUTENANT, UNITED STATES AIR FORCE. YOU URGE, HOWEVER, THAT THE WORDING OF SUCH ORDERS SHOULD BE VIEWED AS HAVING THAT RESULT AND AS EFFECTING YOUR REAPPOINTMENT TO YOUR TEMPORARY GRADE.

WE FIND NOTHING IN THOSE ORDERS WHICH WOULD INDICATE BY IMPLICATION OR OTHERWISE THAT THE TEMPORARY APPOINTMENT, UNDER WHICH YOU WERE SERVING AT THE TIME OF YOUR INTEGRATION INTO THE REGULAR AIR FORCE, WAS ACTUALLY TERMINATED. NOR DO WE FIND IN THOSE ORDERS, AS YOU SEEM TO BELIEVE, THAT YOU WERE REAPPOINTED IN THE UNITED STATES AIR FORCE WITHOUT COMPONENT (TEMPORARY). IN SUPPORT OF THE VIEW THAT YOUR TEMPORARY APPOINTMENT IN THE UNITED STATES AIR FORCE WAS NOT TERMINATED BY THE ORDERS, AN EXAMINATION OF YOUR MILITARY HISTORY FURNISHED US BY THE DIRECTORATE OF ADMINISTRATIVE SERVICES, DEPARTMENT OF THE AIR FORCE, SHOWS, AMONG OTHER THINGS, THAT YOU WERE PROMOTED TO CAPTAIN (TEMPORARY), UNITED STATES AIR FORCE, ON DECEMBER 23, 1955. IT WAS NOT UNTIL SEPTEMBER 30, 1957, THAT YOU WERE PROMOTED TO CAPTAIN, REGULAR AIR FORCE. THE MERE FACT THAT THE ORDERS ASSIGNED YOU A REGULAR AIR FORCE SERIAL NUMBER AND ORDERED YOU TO ACTIVE DUTY WITH THE SAME ORGANIZATION AND STATION, DID NOT, IN ITSELF, ALTER OR CHANGE YOUR STATUS INSOFAR AS YOUR EXISTING COMMISSION AS A FIRST LIEUTENANT (TEMPORARY), UNITED STATES AIR FORCE, WAS CONCERNED. THERE ARE ENCLOSED FOR YOUR INFORMATION COPIES OF OUR DECISIONS DATED AUGUST 8, 1957, B-132365, 37 COMP. GEN. 94, AND DECEMBER 6, 1957, B-133845, 37 COMP. GEN. 394, INVOLVING PROVISIONS OF CERTAIN REGULAR ARMY APPOINTMENT ORDERS AND THE RIGHT OF THOSE OFFICERS TO RECEIVE MUSTERING-OUT PAY UNDER THOSE ORDERS.

IT FOLLOWS THAT UNDER THE DECISIONS THE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE WAS PROPER. ACCORDINGLY, WE MAY NOT REQUEST THAT DEPARTMENT TO CEASE DEDUCTING MONTHLY INSTALLMENTS FROM YOUR PAY TO LIQUIDATE THE INDEBTEDNESS, OR AUTHORIZE PAYMENT TO YOU OF THE AMOUNT OF SUCH DEDUCTIONS.