B-124505, OCT. 3, 1955

B-124505, OCT. 3, 1955

TO DR. MARTIN O. STAUCH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1955, REQUESTING REVIEW OF SETTLEMENT DATED SEPTEMBER 17, 1953, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PAY OF $100 A MONTH COVERING THE PERIOD FROM SEPTEMBER 1, 1947, THROUGH FEBRUARY 2, 1948, INCIDENT TO ACTIVE DUTY PERFORMED BY YOU AS AN OFFICER OF THE MEDICAL CORPS, ARMY OF THE UNITED STATES.

SECTION 1A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ACT OF AUGUST 5, 1947, 61 STAT. 776, THE STATUTORY AUTHORITY FOR THE PAYMENT OF THE ADDITIONAL PAY ITEM CLAIMED BY YOU, PROVIDED THAT OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE OFFICERS' RESERVE COPRS, THE NAVAL RESERVE, THE NATIONAL GUARD, THE ARMY OF THE UNITED STATES, AND MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE WHO MIGHT, DURING THE FIVE-YEAR PERIOD COMMENCING SEPTEMBER 1, 1947,"VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER" WOULD BE ENTITLED, IN ADDITION TO ANY PAY, ALLOWANCES, AND EMOLUMENTS THAT THEY WERE OTHERWISE ENTITLED TO RECEIVE, TO PAY AT THE RATE OF $100 A MONTH FOR EACH MONTH OF ACTIVE VOLUNTEER SERVICE SUBSEQUENT TO SEPTEMBER 1, 1947. BENEFITS UNDER SUCH PROVISIONS HAVE BEEN CONSIDERED TO ACCRUE ONLY TO OFFICERS NOT OTHERWISE OBLIGATED TO SERVE WHO, SUBSEQUENT TO SEPTEMBER 1, 1947, AFFIRMATIVELY VOLUNTEERED FOR ACTIVE DUTY FOR A PERIOD OF ONE YEAR OR MORE AND WHOSE OFFER WAS ACCEPTED BY PROPER ADMINISTRATIVE AUTHORITY. THE MERE PERFORMANCE OF ACTIVE DUTY OF A VOLUNTARY NATURE, EVEN THOUGH CONTINUING FOR A FULL YEAR OR MORE, DID NOT GIVE RISE TO A RIGHT TO THE BENEFITS IN THE ABSENCE OF SUCH OFFER, NOR DID THE RIGHT ARISE AS A RESULT OF AN OFFICER VOLUNTEERING TO PERFORM ACTIVE DUTY IF THE OFFER WAS NOT AFFIRMATIVELY ACCEPTED BY PROPER ADMINISTRATIVE AUTHORITY. B-107255, APRIL 15, 1952. YOUR CLAIM WAS DISALLOWED BECAUSE THE AVAILABLE RECORD FAILED TO SHOW THAT YOU HAD AFFIRMATIVELY VOLUNTEERED YOUR SERVICES WITHIN THE CONTEMPLATION OF THE STATUTE AT ANY TIME AFTER SEPTEMBER 1, 1947, AND PRIOR TO FEBRUARY 3, 1948.

IN YOUR LETTER OF MAY 5, 1955, YOU SAY THAT WHILE YOU WERE AT FORT MACARTHUR, CALIFORNIA, FOR PROCESSING AND POSSIBLE DISCHARGE IN NOVEMBER 1945, YOU WERE ASKED IF YOU WOULD LIKE TO REMAIN ON DUTY AND THAT YOU ACCEPTED THE PROPOSAL, THUS VOLUNTEERING FOR FURTHER DUTY. ALSO, YOU SAY THAT IT WAS AGAIN NECESSARY TO VOLUNTEER IN 1948 (PRESUMABLY YOU REFER TO YOUR ACT OF VOLUNTEERING FOR ACTIVE DUTY ON FEBRUARY 3, 1948, FROM WHICH DATE YOU WERE CREDITED WITH THE ADDITIONAL $100 A MONTH AUTHORIZED BY THE ACT OF AUGUST 5, 1947). YOU DO NOT SUGGEST THAT THERE WAS ANY ACT OF VOLUNTEERING ON YOUR PART DURING THE PERIOD FROM NOVEMBER 1945 UNTIL FEBRUARY 3, 1948, IT APPARENTLY BEING YOUR BELIEF THAT YOUR DECISION TO REMAIN ON ACTIVE DUTY IN 1945 WAS SUFFICIENT TO ENTITLE YOU TO THE BENEFITS CLAIMED.

WHILE YOUR DUTY DURING THE PERIOD COVERED BY YOUR CLAIM MAY HAVE BEEN A VOLUNTARY NATURE AS YOU SUGGEST, THERE IS NO AUTHORITY, AS INDICATED ABOVE, FOR THE PAYMENT OF THE ADDITIONAL PAY CLAIMED ON THE BASIS OF THAT DUTY. SINCE YOU DID NOT VOLUNTEER AS CONTEMPLATED BY THE STATUTE AFTER SEPTEMBER 1, 1947, UNTIL FEBRUARY 3, 1948, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 17, 1953, IS SUSTAINED.