B-139107, APRIL 11, 1963, 42 COMP. GEN. 573

B-139107, APRIL 11, 1963, 42 COMP. GEN. 573

GRATUITIES - MUSTERING-OUT PAY - RESERVISTS IN "WITHOUT COMPONENT" SERVICE AFTER REGULAR WARRANT OFFICER APPOINTMENT. GRATUITIES - MUSTERING -OUT PAY - RESERVISTS IN "WITHOUT COMPONENT" SERVICE AFTER REGULAR WARRANT OFFICER APPOINTMENT. GRATUITIES - MUSTERING-OUT PAY - RESERVISTS IN "WITHOUT COMPONENT" SERVICE AFTER REGULAR WARRANT OFFICER APPOINTMENT. GRATUITIES - MUSTERING-OUT PAY - MORE THAN ONE PAYMENT THE ACCEPTANCE OF REGULAR ARMY WARRANT OFFICER APPOINTMENTS BY OFFICERS WHO CONTINUE TO SERVE IN THEIR ARMY OF THE UNITED STATES OR RESERVE STATUS WILL BE CONSIDERED FOR MUSTERING-OUT PAYMENT ENTITLEMENT IN THE SAME MANNER AS THE ACCEPTANCE OF REGULAR COMMISSIONED OFFICER APPOINTMENTS UNDER THE DOWLING CASE, CT.CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, WHICH BASED ENTITLEMENT TO MUSTERING-OUT PAY ON THE APPOINTMENT TO A REGULAR COMPONENT RATHER THAN TERMINATION OF THE PRIOR STATUS; THEREFORE, COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES OR A RESERVE COMPONENT WHO ACCEPT REGULAR ARMY WARRANT OFFICER APPOINTMENTS BUT CONTINUE TO SERVE ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES IN A RESERVE STATUS ARE REGARDED AS BEING INTEGRATED INTO THE REGULAR ARMY FOR ENTITLEMENT TO MUSTERING-OUT PAYMENTS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, AND TITLE V OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952. NOTICE TO A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES OR A RESERVE COMPONENT THAT HE IS QUALIFIED FOR A REGULAR ARMY WARRANT OFFICER APPOINTMENT MAY NOT BE CONSIDERED AS AN APPOINTMENT AS AN OFFICER IN THE REGULAR ARMY FOR ENTITLEMENT TO MUSTERING-OUT PAY UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944 OR TITLE V OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952. COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES OR A RESERVE COMPONENT WHO ACCEPT REGULAR ARMY WARRANT OFFICER APPOINTMENTS AND EXECUTE THE OATH OF OFFICE BUT CONTINUE ON ACTIVE DUTY IN AN ARMY OF THE UNITED STATES OR IN A RESERVE STATUS ARE CONSIDERED AS APPOINTED IN THE REGULAR ARMY AND ARE ENTITLED TO MUSTERING-OUT PAYMENT INCIDENT TO THEIR APPOINTMENT IN A REGULAR COMPONENT. COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES OR A RESERVE COMPONENT WHO ACCEPTED REGULAR ARMY WARRANT OFFICER APPOINTMENTS PURSUANT TO ARMY ELIGIBILITY LISTS IN 1948 AND AGAIN IN 1954 UNDER THE WARRANT OFFICER ACT OF 1954, BUT WHO CONTINUED WITHOUT A BREAK ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES OR RESERVE STATUS AFTER THE REGULAR WARRANT OFFICER APPOINTMENTS MAY NOT HAVE THE CONTINUOUS SERVICE REGARDED AS TWO SEPARATE PERIODS OF ACTIVE DUTY FOR TWO MUSTERING-OUT PAYMENTS UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, AND TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 AND, THEREFORE, THE MEMBERS ARE ENTITLED TO PAYMENT UNDER ONLY ONE ACT, AS APPROPRIATE.

TO THE SECRETARY OF DEFENSE, APRIL 11, 1963:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 14, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION AS TO WHETHER THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF ROBERT CHARLES DOWLING V. UNITED STATES, CT.CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, MAY BE CONSIDERED AS AUTHORIZING, IN OTHERWISE PROPER CASES, THE PAYMENT OF MUSTERING-OUT PAY TO COMMISSIONED OFFICERS OF THE ARMY WHO:

(1) QUALIFY FOR REGULAR ARMY WARRANT OFFICER APPOINTMENTS BUT WHO CONTINUE TO SERVE AS COMMISSIONED OFFICERS,

(2) EXECUTE THE OATH OF OFFICE AS REGULAR ARMY WARRANT OFFICER BUT CONTINUE TO SERVE ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES AND/OR RESERVE COMMISSIONS.

THE REQUEST WAS ASSIGNED COMMITTEE ACTION NO. 314 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN THE DOWLING CASE THE COURT HELD THAT UNDER THE PROVISIONS OF TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011-1016 (AUTHORIZING A MUSTERING-OUT PAYMENT TO CERTAIN MEMBERS OF THE ARMED FORCES AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE DUTY FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT) RESERVISTS SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER (WITHOUT COMPONENT) STATUS ARE ENTITLED TO A MUSTERING-OUT PAY INCIDENT TO AN APPOINTMENT IN A REGULAR COMPONENT. THE 1952 ACT WAS REPEALED BY THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1273, AND SIMILAR PROVISIONS ARE NOW CONTAINED IN CHAPTER 43, TITLE 38, U.S.C.

BY DECISION OF JUNE 21, 1962, B-139107, 41 COMP. GEN. 812, WE ADVISED YOU THAT WE WOULD ACCEPT AND FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE DOWLING CASE IN THE AUDIT OF ACCOUNTS AND THE SETTLEMENT OF CLAIMS INVOLVING MUSTERING-OUT PAYMENTS. WE POINTED OUT THAT THE COURT DID NOT CONSIDER THE CASE OF AN OFFICER WHO HELD ONLY AN APPOINTMENT IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, AT THE TIME OF APPOINTMENT TO A REGULAR COMPONENT. WE SAID, HOWEVER, THAT IN VIEW OF THE BROAD LANGUAGE OF THE DOWLING DECISION, PAYMENT OF MUSTERING-OUT PAY IS AUTHORIZED IN THOSE CASES ALSO, IF OTHERWISE PROPER. DEPARTMENT OF THE ARMY CIRCULAR 35-5, DATED JULY 20, 1962, WAS ISSUED PURSUANT TO THE DECISION OF JUNE 21, 1962.

THE PRESENT PROBLEM IS DISCUSSED IN THE COMMITTEE ACTION IN WHICH IT IS MENTIONED THAT PARAGRAPH 6B, ARMY REGULATIONS 610-10, CHANGE 2, DATED JULY 25, 1947, PROVIDES THAT IF A SUCCESSFUL APPLICANT IS SERVING ON ACTIVE DUTY AS A COMMISSIONED OFFICER OR CHIEF WARRANT OFFICER IN THE ARMY OF THE UNITED STATES AND IS AGE 45 AT THE TIME HIS NAME IS REACHED ON THE ELIGIBLE LIST FOR APPOINTMENT AS A WARRANT OFFICER, JUNIOR GRADE, TO FILL AN EXISTING VACANCY, SUCH APPLICANT, IF FOUND PHYSICALLY QUALIFIED AT THAT TIME WILL BE TENDERED A SELECTION LETTER ADVISING HIM OF HIS SELECTION FOR APPOINTMENT UPON HONORABLE TERMINATION OF ACTIVE DUTY. IT FURTHER PROVIDES THAT THE RECIPIENT OF A SELECTION LETTER WHOSE ACTIVE SERVICE AS A COMMISSIONED OFFICER OR CHIEF WARRANT OFFICER TERMINATES HONORABLY AND WHO APPLIES FOR SUCH APPOINTMENT WITHIN 6 MONTHS AFTER THE TERMINATION OF HIS ACTIVE SERVICE WILL, IRRESPECTIVE OF PHYSICAL DISQUALIFICATION INCURRED OR HAVING ITS INCEPTION WHILE ON ACTIVE DUTY IN LINE OF DUTY, BE GIVEN SUCH APPOINTMENT IF A VACANCY WITHIN THE AUTHORIZED ALLOTMENT OF WARRANT OFFICERS, JUNIOR GRADE, REGULAR ARMY, EXISTS AT THE TIME HE APPLIES FOR SUCH APPOINTMENT. SIMILAR PROVISIONS ARE CONTAINED IN DEPARTMENT OF THE ARMY CIRCULAR 38, DATED FEBRUARY 12, 1948, WHICH ANNOUNCED THAT A NEW ELIGIBILITY LIST FOR APPOINTMENT OF WARRANT OFFICERS TO THE REGULAR ARMY AND THE UNITED STATES AIR FORCE WOULD BE PREPARED BASED ON APPLICATIONS RECEIVED PRIOR TO MAY 31, 1948. THE COMMITTEE STATES THAT ALTHOUGH SOME CLAIMS OF WARRANT OFFICERS HAVE BEEN CERTIFIED FOR PAYMENT BY THIS OFFICE SUBSEQUENT TO THE DECISION OF JUNE 21, 1962, SOME DOUBT EXISTS FOR THE REASON THAT (1) THE DOWLING DECISION CONCERNED A COMMISSIONED OFFICER RATHER THAN A WARRANT OFFICER; (2) THE LETTER OF SELECTION FOR APPOINTMENT TO WARRANT OFFICER (JUNIOR GRADE), REGULAR ARMY, WAS NOT OPERATIVE UNTIL TERMINATION OF THE ACTIVE COMMISSIONED STATUS; (3) THE OFFICERS WERE NOT REQUESTED TO EXECUTE AN OATH OF OFFICE OR INDICATE IN ANY MANNER AN ACCEPTANCE OF THE TENDERED APPOINTMENT BUT HAD UNTIL 6 FULL MONTHS FOLLOWING RELIEF FROM ACTIVE SERVICE TO APPLY FOR THE APPOINTMENT, AND (4) ABSOLUTELY NO SERVICE WAS PERFORMED AS A WARRANT OFFICER UNDER THESE "SO CALLED" APPOINTMENTS.

IN OUR DECISION OF JUNE 21, 1962, WE MENTIONED THAT IMMEDIATELY PRIOR TO HIS APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR AIR FORCE IN 1954, DOWLING HELD THE RANK OF FIRST LIEUTENANT IN THE AIR FORCE RESERVE; THAT HE WAS ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS FIRST LIEUTENANT IN THE UNITED STATES AIR FORCE, AND THAT HE CONTINUED TO SERVE UNDER SUCH TEMPORARY APPOINTMENT AFTER HIS APPOINTMENT IN THE REGULAR AIR FORCE. THUS, SO FAR AS THE COURT'S DECISION IS CONCERNED DOWLING DID NOT SERVE AS AN OFFICER UNDER HIS APPOINTMENT IN THE REGULAR AIR FORCE, BUT RATHER HE CONTINUED TO SERVE IN HIS AUS STATUS. HOWEVER, THE COURT FOUND THAT HE WAS ENTITLED TO A MUSTERING-OUT PAYMENT INCIDENT TO HIS APPOINTMENT IN THE REGULAR AIR FORCE. THE COMMITTEE ACTION POINTS OUT THAT PARAGRAPH 3D DEPARTMENT OF THE ARMY CIRCULAR 80, DATED JULY 16, 1954, PROVIDES THAT "THE ACCEPTANCE OF A REGULAR ARMY WARRANT OFFICER APPOINTMENT WILL NOT TERMINATE THE COMMISSIONED STATUS OF INDIVIDUALS CONCERNED OR THEIR CURRENT TOURS OF ACTIVE DUTY AS COMMISSIONED OFFICERS.' SUCH PROVISION, HOWEVER, DOES NOT APPEAR DETERMINATIVE OF MUSTERING-OUT PAY SINCE UNDER THE COURT'S DECISION ENTITLEMENT TO MUSTERING-OUT PAY WAS BASED ON THE APPOINTMENT IN A REGULAR COMPONENT RATHER THAN THE TERMINATION OF THE OFFICER'S PRIOR STATUS.

WHILE DOWLING WAS APPOINTED A "COMMISSIONED OFFICER" IN THE REGULAR AIR FORCE, WE FIND NOTHING IN THE COURT'S DECISION THAT A DIFFERENT CONCLUSION WOULD HAVE BEEN REACHED HAD HE BEEN APPOINTED A "WARRANT OFFICER.' IN THE LIGHT OF THE COURT'S DECISION, IT IS OUR VIEW THAT A COMMISSIONED OFFICER IN THE AUS OR A RESERVE COMPONENT WHO ACTUALLY ACCEPTS A REGULAR ARMY WARRANT OFFICER APPOINTMENT MAY BE CONSIDERED AS BEING INTEGRATED INTO THE REGULAR ARMY FOR MUSTERING-OUT PAY PURPOSES, WITHIN THE MEANING OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 691-691G (1952 ED.), AND TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, AS AMENDED, CHAPTER 43, TITLE 38, U.S. CODE, EVEN THOUGH HE CONTINUES TO SERVE ON ACTIVE DUTY IN HIS AUS OR RESERVE STATUS.

REFERRING TO QUESTION 1, SINCE THE OFFICERS THERE INVOLVED WERE MERELY ADVISED THAT THEY QUALIFIED FOR REGULAR ARMY WARRANT OFFICER APPOINTMENT BUT WERE NOT ACTUALLY APPOINTED (SEE SECTION 17 (B) OF THE WARRANT OFFICER ACT OF 1954, 10 U.S.C. 600O (B) (1952 ED., SUPP. III) (, THEY MAY NOT BE CONSIDERED AS HAVING BEEN APPOINTED AS AN OFFICER IN THE REGULAR ARMY WITHIN THE MEANING OF THE ABOVE-MENTIONED 1944 AND 1952 ACTS FOR MUSTERING -OUT PAY PURPOSES. THUS, QUESTION IS ANSWERED IN THE NEGATIVE.

SINCE IT APPEARS THE OFFICERS REFERRED TO IN QUESTION 2 ACCEPTED AN APPOINTMENT AND EXECUTED AN OATH OF OFFICE AS REGULAR ARMY WARRANT OFFICERS, THEY WERE IN FACT APPOINTED IN THE REGULAR ARMY. THEREFORE, NOTWITHSTANDING THAT THEY CONTINUED TO SERVE ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES AND/OR RESERVE COMMISSIONS, THEY BECAME ENTITLED TO A MUSTERING-OUT PAYMENT INCIDENT TO THEIR APPOINTMENT. ACCORDINGLY QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE. OUR RECORDS SHOW THAT AT LEAST IN TWO CASES EXAMINED BY US THE CLAIMS OF WARRANT OFFICERS CERTIFIED FOR PAYMENT BY OUR CLAIMS DIVISION SUBSEQUENT TO THE DECISION OF JUNE 21, 1962, FALL INTO THIS CATEGORY.

QUESTION IS ALSO ASKED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, AS FOLLOWS:

3. MAY PAYMENT BE MADE UNDER BOTH THE 1944 AND 1952 MUSTERING-OUT PAY STATUTES IF A COMMISSIONED OFFICER QUALIFIED UNDER THE CONDITIONS SET FORTH IN QUESTIONS 1 AND 2?

IT IS POINTED OUT IN THE COMMITTEE ACTION THAT THE ABOVE QUESTION IS PRESENTED BECAUSE MANY OF THE CLAIMANTS RECEIVED LETTERS OF SELECTION FOR APPOINTMENT AS A REGULAR ARMY WARRANT OFFICER IN 1948 AND AGAIN WERE SELECTED FOR APPOINTMENT IN 1954. THE PAY COMMITTEE STATES THAT IT IS NOT CLEAR WHETHER APPOINTMENTS UNDER THE WARRANT OFFICER ACT OF 1954 WERE NEW APPOINTMENTS OR THAT THE ACT MERELY CONFIRMED PRIOR APPOINTMENTS FOR THOSE INDIVIDUALS WHO DESIRED TO CONTINUE THEIR SO-CALLED WARRANT OFFICERS STATUS AS ESTABLISHED BY LETTERS OF SELECTION FOR APPOINTMENT WHICH WERE ISSUED PRIOR TO NOVEMBER 1, 1954.

ASSUMING THAT APPOINTMENTS WERE MADE AND ACCEPTED AS A CONSEQUENCE OF BOTH OF THE MENTIONED SELECTIONS, IT IS OUR VIEW THAT PAYMENT OF MUSTERING -OUT PAY MAY NOT BE MADE UNDER BOTH THE 1944 AND 1952 MUSTERING-OUT PAY STATUTES. THE COURT'S DECISION IN THE DOWLING CASE DID NOT CONSIDER THIS SITUATION AND AFFORDS NO BASIS FOR CONCLUDING THAT THE INDIVIDUALS CONCERNED WOULD BE ENTITLED TO TWO MUSTERING-OUT PAYMENTS UNDER THE CIRCUMSTANCES DESCRIBED. WHILE THE LAW (38 U.S.C. 2101 (B) (7) (, RECOGNIZES ENTITLEMENT TO MUSTERING-OUT PAY UNDER BOTH THE 1944 AND 1952 ACTS FOR TWO SEPARATE PERIOD OF ACTIVE SERVICE (SEE PAGE 12 OF S.REPT. NO. 1824 TO ACCOMPANY H.R. 7656 WHICH BECAME THE ACT OF JULY 16, 1952), IT LIMITS SUCH BENEFITS TO ONE PAYMENT UNDER THE STATUTES WHERE THE SAME PERIOD OF SERVICE IS INVOLVED, AND WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY WHICH EVEN INDICATES THAT CONGRESS CONTEMPLATED DUAL PAYMENTS IN THE CASES COVERED BY QUESTION 3 WHERE THE OFFICER'S SERVICE HAS BEEN CONTINUOUS AND WITHOUT A BREAK IN SERVICE. IN THIS REGARD IT MAY BE NOTED THAT THE DOWLING CASE TURNED ON THE POINT OF MAKING A CAREER OF MILITARY SERVICE AND THE FIRST REGULAR ARMY APPOINTMENT WOULD APPEAR TO BE DETERMINATIVE OF THIS ISSUE. ACCORDINGLY, WE MUST CONCLUDE THAT IN THE CIRCUMSTANCES DESCRIBED THE SERVICE PERFORMED BY THE INDIVIDUALS CONCERNED MAY NOT BE CONSIDERED AS TWO SEPARATE PERIODS OF ACTIVE SERVICE FOR MUSTERING OUT PAY PURPOSES, WITHIN THE MEANING OF THE STATUTE, AND HENCE PAYMENT OF MUSTERING-OUT PAY MAY BE MADE UNDER EITHER THE 1944 ACT OR THE 1952 ACT AS APPROPRIATE BUT NOT UNDER BOTH PROVISIONS OF LAW. QUESTION 3 IS ANSWERED ACCORDINGLY.