B-125286, JAN. 3, 1956

B-125286, JAN. 3, 1956

TO DAVID G. NAGY, CWO, USAF, 950976E:

REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1955, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 3, 1955, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FROM AUGUST 29, 1946, TO FEBRUARY 9, 1947, AS AN ENLISTED MAN IN THE UNITED STATES ARMY.

IT APPEARS THAT YOU WERE FORMERLY A LIEUTENANT COLONEL, AIR CORPS, ARMY OF THE UNITED STATES, AND WERE HONORABLY DISCHARGED, BY REASON OF PHYSICAL DISABILITY, ON AUGUST 17, 1946. YOU SAY THAT ALTHOUGH YOU CONTACTED THE UNITED STATES ARMY RECRUITING SERVICE AT SAN FRANCISCO, CALIFORNIA, IN JUNE OR JULY 1946 REGARDING REENLISTMENT, IT WAS NOT UNTIL AUGUST 29, 1946, WHEN YOU REPORTED FOR REENLISTMENT AS A MASTER SERGEANT, THAT YOU WERE INFORMED THAT A WAIVER ON YOUR PHYSICAL DISABILITY DISCHARGE AS A LIEUTENANT COLONEL WAS NECESSARY FOR REENLISTMENT. ALSO, YOU SAY THAT ALTHOUGH YOU WERE FOUND PHYSICALLY QUALIFIED FOR REENLISTMENT AND A REQUEST FOR WAIVER SHOULD HAVE BEEN SUBMITTED AT THAT TIME, THE RECRUITING SERVICE MISPLACED THE RECORDS IN YOUR CASE AND THE REQUEST WAS NOT SUBMITTED UNTIL OCTOBER 18, 1946; THAT ALTHOUGH YOU HAD BEEN FOUND PHYSICALLY QUALIFIED FOR REENLISTMENT, THE SURGEON GENERAL ERRONEOUSLY REFUSED TO RECOMMEND A WAIVER, WHICH ACTION WAS NOT RESCINDED UNTIL JANUARY 27, 1947; AND THAT BECAUSE OF SUCH DELAYS YOU WERE NOT ABLE TO REENLIST UNTIL FEBRUARY 10, 1947. IT APPEARS THAT DURING THE PERIOD INVOLVED YOU PERFORMED NO MILITARY DUTIES. YOU SAY, FURTHER, THAT SOME TIME LATER YOUR REQUEST TO HAVE YOUR ENLISTMENT ANTEDATED TO AUGUST 29, 1946, WAS APPROVED, EVIDENTLY IN RECOGNITION OF ADMINISTRATIVE OVERSIGHT WITHIN THE DEPARTMENT OF THE ARMY OR IN JUSTIFICATION OF YOUR PARTICULAR CASE. ON SUCH BASIS YOU URGE THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES FROM AUGUST 29, 1946, TO FEBRUARY 10, 1947, EXCEPTING ONLY A "REASONABLE TIME" FOR ACTION BY THE DEPARTMENT OF THE ARMY.

WHILE THE DELAY IN YOUR CASE WAS UNFORTUNATE, YOU ARE ADVISED THAT IT LONG HAS BEEN HELD--- EVEN THOUGH AN ENLISTMENT IS ANTEDATED--- THAT THE DATE FROM WHICH AN ENLISTED MAN OF THE ARMED FORCES IS ENTITLED TO BE PAID IS THE DATE UPON WHICH HE TAKES THE OATH OF ALLEGIANCE, EXCEPT IN THOSE RARE CASES WHERE IT IS AFFIRMATIVELY SHOWN THAT THE ENLISTMENT CONTRACT WAS COMPLETED AND THE MAN'S STATUS CHANGED FROM THAT OF A CIVILIAN TO A SOLDIER BY SOME ACT OTHER THAN TAKING AN OATH, SUCH AS ACTUAL ENTRY UPON DUTY WITH THE KNOWLEDGE AND CONSENT OF THE PROPER AUTHORITIES, IN WHICH CASES PAYMENT HAS BEEN ALLOWED FROM THE DATE OF SUCH ACT. SEE 19 COMP. DEC. 367 AND, ALSO, 6 COMP. GEN. 500 AND THE CASES THERE CITED. THEREFORE, SINCE YOU DID NOT REENLIST UNTIL FEBRUARY 10, 1947, THERE IS NO LEGAL BASIS TO ALLOW YOU PAY FOR THE PERIOD CLAIMED.