B-112660, FEB 4, 1953

B-112660: Feb 4, 1953

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THERE WAS ENCLOSED WITH YOUR LETTER AN APPLICATION FOR MUSTERING OUT PAYMENT EXECUTED BY THE SAID GEORGE A. WHICH INDICATED THAT HE WAS APPOINTED LIEUTENANT COLONEL. THAT HE WAS ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE USAF FROM FEBRUARY 17. WHEN HE WAS DISCHARGED TO ENABLE HIM TO BE CALLED TO ACTIVE DUTY. THAT HE WAS CALLED TO ACTIVE DUTY AS A LIEUTENANT COLONEL. YOUR REQUEST FOR DECISION APPEARS TO BE BASED ON LIEUTENANT COLONEL LABREEQUE'S CONTENTION THAT HE WAS DISCHARGED FOR THE PURPOSE OF ENTERING ON EXTENDED ACTIVE DUTY AS AN OFFICER IN THE AIR FORCE OF THE UNITED STATES. THAT HE IS NOT PRECLUDED FROM RECEIVING MUSTERING OUT PAY UNDER THE PROVISIONS OF THE STATUTE AUTHORIZING SUCH PAYMENTS.

B-112660, FEB 4, 1953

PRECIS-UNAVAILABLE

CAPTAIN J. T. HOOD, USAF:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 29, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO THE RIGHT OF LIEUTENANT COLONEL GEORGE A. LABREEQUE, AFUS, SERIAL NO. AO 430, 559, TO BE PAID MUSTERING OUT PAY PURSUANT TO TITLE V, PUBLIC LAW 550, APPROVED JULY 16, 1952, 66 STAT. 688, INCIDENT TO HIS DISCHARGE ON JANUARY 31, 1951, AS A MASTER SERGEANT, USAF, SERIAL NO. 6, 137,602.

THERE WAS ENCLOSED WITH YOUR LETTER AN APPLICATION FOR MUSTERING OUT PAYMENT EXECUTED BY THE SAID GEORGE A. LABREEQUE, ACCOMPANIED BY A DD FORM 214, WHICH INDICATED THAT HE WAS APPOINTED LIEUTENANT COLONEL, USAFR, ON MARCH 27, 1947; THAT HE WAS ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE USAF FROM FEBRUARY 17, 1950, TO JANUARY 31, 1951, WHEN HE WAS DISCHARGED TO ENABLE HIM TO BE CALLED TO ACTIVE DUTY, AND THAT HE WAS CALLED TO ACTIVE DUTY AS A LIEUTENANT COLONEL, AFUS, WITHOUT A BREAK IN SERVICE, PURSUANT TO PARAGRAPH 6, SPECIAL ORDERS NO. 18, HEADQUARTERS, FIRST AIR FORCE, DATED JANUARY 25, 1951.

YOUR REQUEST FOR DECISION APPEARS TO BE BASED ON LIEUTENANT COLONEL LABREEQUE'S CONTENTION THAT HE WAS DISCHARGED FOR THE PURPOSE OF ENTERING ON EXTENDED ACTIVE DUTY AS AN OFFICER IN THE AIR FORCE OF THE UNITED STATES, AND THAT HE IS NOT PRECLUDED FROM RECEIVING MUSTERING OUT PAY UNDER THE PROVISIONS OF THE STATUTE AUTHORIZING SUCH PAYMENTS.

SECTION 503 OF THE ABOVE-CITED ACT, 66 STAT. 690, PROVIDES IN PERTINENT PART AS FOLLOWS:

"*** NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS TITLE MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES."

SINCE IT DOES NOT APPEAR THAT AN ENLISTED MEMBER OF THE ARMED FORCES DISCHARGED FOR THE PURPOSE OF BEING CALLED TO EXTENDED ACTIVE DUTY AS A COMMISSIONED OFFICER IN A RESERVE COMPONENT WOULD QUALIFY UNDER ANY OF THE CATEGORIES UNDER WHICH THE RIGHT TO PAYMENT OF MUSTERING-OUT PAY MAY ACCRUE PURSUANT TO THE ABOVE-QUOTED STATUTORY PROVISIONS, THERE WOULD BE NO AUTHORITY OF LAW FOR THE PAYMENT OF THIS CLAIM.

THE PAPERS SUBMITTED ARE RETAINED IN THIS OFFICE.