B-123802, AUG. 3, 1955

B-123802: Aug 3, 1955

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WYKERT: REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. THE STATUTORY AUTHORITY UNDER WHICH YOUR CLAIM IS ADVANCED. THE DUTY UPON WHICH YOUR CLAIM IS BASED CONSISTS OF A NUMBER OF PERIODS OF ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING EXTENDING FROM JUNE 28. THE LONGEST OF WHICH WAS A PERIOD OF ACTIVE DUTY CONTINUING FROM JANUARY 1 TO FEBRUARY 26. IT APPEARS TO BE YOUR BELIEF THAT YOU ARE ENTITLED TO THE CLAIMED ALLOWANCE UNDER THE QUOTED STATUTORY PROVISIONS BECAUSE THE AGGREGATE OF THOSE PERIODS IS MORE THAN 90 DAYS. IRRESPECTIVE OF THE FACT THE DUTY WAS NOT PERFORMED DURING A PERIOD OF 90 CONSECUTIVE DAYS. THE STATUTORY AUTHORIZATION INVOLVED IS FOR THE PAYMENT OF THE $100 ALLOWANCE. WHETHER A PARTICULAR ENTRY ON DUTY IS ONE WITHIN THE MEANING OF THE STATUTE DEPENDS UPON THE ORDERS UNDER WHICH THE ENTRY IS MADE AND THE CIRCUMSTANCES SURROUNDING EACH ENTRY DETERMINE WHETHER A UNIFORM ALLOWANCE IS PAYABLE.

B-123802, AUG. 3, 1955

TO MR. LELAND F. WYKERT:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1955, FORWARDED HERE FROM HEADQUARTERS UNITED STATES AIR FORCE, AND YOUR LETTER OF JULY 9, 1955, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 7, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL UNIFORM ALLOWANCE OF $100 INCIDENT TO PERIODS OF ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING PERFORMED BY YOU AS A COMMISSIONED OFFICER OF THE UNITED STATES AIR FORCE RESERVE.

SECTION 243 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 493, THE STATUTORY AUTHORITY UNDER WHICH YOUR CLAIM IS ADVANCED, PROVIDES AS FOLLOWS:

"AN OFFICER OF A RESERVE COMPONENT OR OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT OR OF THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT ENTERING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING ON OR AFTER JUNE 25, 1950, SHALL BE ENTITLED, FOR EACH TIME OF SUCH ENTRY OR REENTRY ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN NINETY DAYS' DURATION TO A FURTHER SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY: PROVIDED, THAT THE REIMBURSEMENT PROVIDED BY THIS SUBSECTION SHALL NOT BE PAYABLE TO ANY OFFICER WHO, UNDER ANY PROVISION OF LAW, HAS RECEIVED AN INITIAL UNIFORM REIMBURSEMENT OR ALLOWANCE IN EXCESS OF $200 DURING HIS CURRENT TOUR OF ACTIVE DUTY OR WITHIN A PERIOD OF TWO YEARS PRIOR TO ENTERING ON HIS CURRENT TOUR OF ACTIVE DUTY: PROVIDED FURTHER, THAT THE REIMBURSEMENT PROVIDED IN THIS SUBSECTION SHALL NOT BE PAYABLE TO ANY OFFICER ENTERING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WITHIN TWO YEARS AFTER COMPLETING A PREVIOUS PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN NINETY DAYS' DURATION.'

THE DUTY UPON WHICH YOUR CLAIM IS BASED CONSISTS OF A NUMBER OF PERIODS OF ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING EXTENDING FROM JUNE 28, 1950, TO FEBRUARY 20, 1953, THE LONGEST OF WHICH WAS A PERIOD OF ACTIVE DUTY CONTINUING FROM JANUARY 1 TO FEBRUARY 26, 1951. IT APPEARS TO BE YOUR BELIEF THAT YOU ARE ENTITLED TO THE CLAIMED ALLOWANCE UNDER THE QUOTED STATUTORY PROVISIONS BECAUSE THE AGGREGATE OF THOSE PERIODS IS MORE THAN 90 DAYS, IRRESPECTIVE OF THE FACT THE DUTY WAS NOT PERFORMED DURING A PERIOD OF 90 CONSECUTIVE DAYS.

THE STATUTORY AUTHORIZATION INVOLVED IS FOR THE PAYMENT OF THE $100 ALLOWANCE, WITH CERTAIN LIMITATIONS NOT HERE MATERIAL, FOR EACH TIME OF ENTRY OR REENTRY ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN 90 DAYS' DURATION. IT DOES NOT PROVIDE FOR PAYMENT ON THE BASIS OF MORE THAN 90 DAYS OF DUTY. 32 COMP. GEN. 502, ANSWER TO QUESTION 9. THE PROVISION FOR AN ENTRY ON ACTIVE DUTY OF SPECIFIED DURATION DOES NOT APPEAR TO BE SUBJECT TO THE INTERPRETATION YOU ADVANCE. WHETHER A PARTICULAR ENTRY ON DUTY IS ONE WITHIN THE MEANING OF THE STATUTE DEPENDS UPON THE ORDERS UNDER WHICH THE ENTRY IS MADE AND THE CIRCUMSTANCES SURROUNDING EACH ENTRY DETERMINE WHETHER A UNIFORM ALLOWANCE IS PAYABLE, WITHOUT REFERENCE TO ANY COMBINATION OF PERIODS OF ACTIVE DUTY. IF THE ENTRY ON DUTY IS UNDER ORDERS REQUIRING DUTY OF MORE THAN 90 DAYS' DURATION, THE STATUTORY REQUIREMENT AS TO THE DURATION OF DUTY IS MET. THE ORDERS DO NOT REQUIRE DUTY OF MORE THAN 90 DAYS' DURATION, AN ENTRY ON DUTY UNDER THOSE ORDERS IS NOT ONE WHICH GIVES AN INDIVIDUAL A RIGHT TO A UNIFORM ALLOWANCE. IT WILL BE NOTED THAT THE LAST SENTENCE OF THE ABOVE- QUOTED STATUTORY PROVISION REFERS TO THE DUTY INVOLVED AS A "PERIOD" OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN 90 DAYS' DURATION, INDICATING CLEARLY THAT A DEFINITE, MEASURABLE, AND CONTINUING INTERVAL OF TIME OF MORE THAN 90 CONSECUTIVE DAYS WAS CONTEMPLATED. INTERMITTENT PERIODS, ALTHOUGH TOTALING 90 OR MORE DAYS, DO NOT MEET THE STATUTORY REQUIREMENTS. IT IS CONCLUDED THEREFORE, THAT YOU ARE NOT ENTITLED TO THE $100 ALLOWANCE CLAIMED.