A-98875, DECEMBER 9, 1938, 18 COMP. GEN. 532

A-98875: Dec 9, 1938

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AUTHORIZING PAYMENT OF A LUMP SUM TO AVIATION CADETS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE UPON RELEASE FROM A PERIOD OF ACTIVE DUTY IS CLEARLY LIMITED BY THE ACT TO RELEASES "FROM A PERIOD OF ACTIVE DUTY OF FOUR YEARS OR MORE" AND PROPORTIONATE BENEFITS MAY NOT BE PAID TO SUCH CADETS RELEASED FROM A PERIOD OF ACTIVE DUTY OF LESS THAN FOUR YEARS. 1938: THERE WAS RECEIVED IN YOUR BEHALF A LETTER DATED SEPTEMBER 27. WERE RELEASED FROM ACTIVE DUTY ON JANUARY 5. WERE AS FOLLOWS: 1. YOU WILL. WILL PROCEED TO YOUR HOME. YOU WILL CONSIDER YOURSELF AS HONORABLE DISCHARGED FROM THE UNITED STATES NAVAL RESERVE FOR THE REASONS SET FORTH ABOVE. THE CLAIM VOUCHER PRESENTED BY YOU IS STATED AS "CLAIM FOR EQUITY IN THE LUMP SUM PAYMENT OF $1.

A-98875, DECEMBER 9, 1938, 18 COMP. GEN. 532

AVIATION CADETS - NAVAL AND MARINE CORPS RESERVE - LUMP SUM PAYMENTS UPON RELEASE FROM ACTIVE DUTY THE PROVISIONS OF SECTION 6 OF THE ACT OF APRIL 15, 1935, 49 STAT. 157, AUTHORIZING PAYMENT OF A LUMP SUM TO AVIATION CADETS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE UPON RELEASE FROM A PERIOD OF ACTIVE DUTY IS CLEARLY LIMITED BY THE ACT TO RELEASES "FROM A PERIOD OF ACTIVE DUTY OF FOUR YEARS OR MORE" AND PROPORTIONATE BENEFITS MAY NOT BE PAID TO SUCH CADETS RELEASED FROM A PERIOD OF ACTIVE DUTY OF LESS THAN FOUR YEARS.

ACTING COMPTROLLER GENERAL ELLIOTT TO ROBERT YOWELL, DECEMBER 9, 1938:

THERE WAS RECEIVED IN YOUR BEHALF A LETTER DATED SEPTEMBER 27, 1938, FROM MR. RALPH E. FRANKLIN REQUESTING REVIEW OF SO MUCH OF SETTLEMENT NO. 0519146, DATED AUGUST 5, 1938, WHICH DISALLOWED YOUR CLAIM FOR $632, BELIEVED TO BE DUE UNDER THE PROVISIONS OF THE ACT OF APRIL 15, 1935, 49 STAT. 156, 157, UPON YOUR RELEASE FROM ACTIVE DUTY AS AN AVIATION CADET IN THE NAVAL RESERVE.

THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, STATES THAT YOU REPORTED FOR ACTIVE DUTY AS AN AVIATION CADET, UNITED STATES NAVAL RESERVE, ON SEPTEMBER 20, 1935, AND WERE RELEASED FROM ACTIVE DUTY ON JANUARY 5, 1938.

PARAGRAPHS 1 AND 2 OF BUREAU OF NAVIGATION ORDERS, DATED DECEMBER 17, 1937, WERE AS FOLLOWS:

1. BEING CONSIDERED NOT FITTED TO PERFORM YOUR REQUIRED DUTIES IN THE AERONAUTIC ORGANIZATION OF THE NAVY BY REASON OF HABITUAL POOR REACTION, UNRELIABLE JUDGMENT, AND TECHNICAL INAPTITUDE, YOU WILL, WHEN DIRECTED BY THE COMMANDING OFFICER, USS SARATOGA, AND AT THE EARLIEST PRACTICABLE DATE, REGARD YOURSELF DETACHED FROM YOUR PRESENT STATION; WILL PROCEED TO YOUR HOME, AND UPON ARRIVAL CONSIDER YOURSELF RELEASED FROM ALL ACTIVE DUTY.

2. BY DIRECTION OF THE SECRETARY OF THE NAVY, EFFECTIVE 1 FEBRUARY, 1938, YOU WILL CONSIDER YOURSELF AS HONORABLE DISCHARGED FROM THE UNITED STATES NAVAL RESERVE FOR THE REASONS SET FORTH ABOVE.

THE CLAIM VOUCHER PRESENTED BY YOU IS STATED AS "CLAIM FOR EQUITY IN THE LUMP SUM PAYMENT OF $1,500 ($632)" AND IS APPARENTLY COMPUTED ON THE RATIO OF YOUR ACTUAL SERVICE TO THE TIME NORMALLY REQUIRED FOR COMPLETION OF ACTIVE DUTY AS ORIGINALLY CONTEMPLATED BY YOUR ORDERS.

SECTION 1 OF THE ACT OF APRIL 15, 1935, 49 STAT. 156, PROVIDES:

THAT THE GRADE OF AVIATION CADET IS HEREBY CREATED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE. AVIATION CADETS SHALL BE APPOINTED BY THE SECRETARY OF THE NAVY FROM MALE CITIZENS OF THE UNITED STATES UNDERSUCH REGULATIONS AS HE MAY PRESCRIBE: PROVIDED, THAT EACH AVIATION CADET SHALL SIGN AN AGREEMENT, WITH THE CONSENT OF HIS PARENT OR GUARDIAN, IF HE BE A MINOR, TO SERVE FOR A CONTINUOUS PERIOD OF FOUR YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO DISCHARGE AT ANY TIME ANY AVIATION CADET, OR TO RELEASE HIM FROM ACTIVE DUTY. AVIATION CADETS SHALL, IF QUALIFIED, BE ELIGIBLE AFTER COMPLETION OF THEIR PERIOD OF ACTIVE DUTY, FOR COMMISSION IN THE NAVAL RESERVE OR IN THE MARINE CORPS RESERVE, WITH DATE OF PRECEDENCE AS OF DATE OF APPOINTMENT AS AVIATION CADET.

SECTION 2, AMONG OTHER THINGS, PROVIDES THAT THE PAY OF AVIATION CADETS WHILE ON ACTIVE DUTY UNDERGOING TRAINING SHALL BE AT THE RATE OF $75 PER MONTH WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING RISKS AS PROVIDED BY LAW, AND $125 PER MONTH WHILE ON ACTIVE DUTY NOT UNDERGOING TRAINING WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING RISKS AS PROVIDED BY LAW.

SECTION 6 OF THE ACT, ID. 157, PROVIDES:

AVIATION CADETS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE SHALL, UPON RELEASE FROM A PERIOD OF ACTIVE DUTY OF FOUR YEARS OR MORE BE PAID A LUMP SUM OF $1,500, WHICH SUM SHALL BE IN ADDITION TO ANY PAY AND ALLOWANCES WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE.

THE LAW PLAINLY PROVIDES FOR THE PAYMENT OF $1,500 TO AVIATION CADETS "UPON RELEASE FROM A PERIOD OF ACTIVE DUTY OF 4 YEARS OR MORE" AND IS FREE OF ANY AMBIGUITY. THERE IS NOTHING IN THE LANGUAGE OF SECTION 6 TO SUGGEST THAT PROPORTIONATE BENEFITS ARE AUTHORIZED TO BE PAID TO AVIATION CADETS WHO ARE RELEASED FROM A PERIOD OF ACTIVE DUTY OF LESS THAN 4 YEARS. THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT UNDER THE LAW AND UPON REVIEW THE SETTLEMENT OF AUGUST 5, 1938, IS SUSTAINED.