B-125388, FEB. 7, 1956

B-125388, FEB. 7, 1956

TO MR. WOODWARD B. RICH:

YOUR LETTER OF AUGUST 17, 1955, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR $50 UNIFORM MAINTENANCE ALLOWANCE, WHICH WAS DISALLOWED BY A SETTLEMENT DATED MAY 27, 1955, OF OUR CLAIMS DIVISION.

IT APPEARS FROM THE RECORD THAT YOU ENTERED UPON ACTIVE DUTY AS A LIEUTENANT (JG), USCGR, ON JULY 18, 1942; THAT YOU WERE RELEASED FROM ACTIVE DUTY ON APRIL 13, 1946, HAVING ATTAINED THE RANK OF LIEUTENANT COMMANDER, USCGR, AND THAT YOUR COMMISSION IN THE COAST GUARD RESERVE WAS RENEWED ON MARCH 17, 1949, AND AGAIN ON FEBRUARY 25, 1952. ALSO, IT APPEARS THAT ON DECEMBER 22, 1952, YOU WERE ASSIGNED TO THE ORGANIZED RESERVE TRAINING UNIT, PORT SECURITY NO. 05-139, BALTIMORE, MARYLAND; THAT ON JANUARY 13, 1953, YOU EXECUTED AN OATH OF OFFICE AS LIEUTENANT COMMANDER, USCGR, FOR AN INDEFINITE PERIOD; THAT ON JANUARY 18 AND 19, 1954, YOU WERE ON ACTIVE DUTY FOR TRAINING WITH PAY AND ALLOWANCES; AND THAT FOR THE PERIODS MARCH 24 THROUGH APRIL 6, 1954, AND JULY 11 THROUGH JULY 24, 1954, YOU WERE AGAIN ENGAGED IN ACTIVE DUTY FOR TRAINING. HEADQUARTERS, UNITED STATES COAST GUARD, HAS REPORTED THAT YOU WERE ENTITLED TO AND PAID AN INITIAL UNIFORM ALLOWANCE UPON FIRST REPORTING FOR ACTIVE DUTY AS AN OFFICER IN THE COAST GUARD RESERVE ON JULY 18, 1942. IS ALSO REPORTED THAT DURING THE PERIOD JULY 9, 1952, TO JUNE 30, 1953, YOU EARNED 13 POINTS IN THE VOLUNTARY TRAINING UNIT, WHERE THE WEARING OF A UNIFORM WAS NOT REQUIRED, AND 26 POINTS IN THE ORGANIZED RESERVE TRAINING UNIT, WHERE THE WEARING OF A UNIFORM WAS REQUIRED; AND THAT FOR THE PERIOD JULY 1, 1953, TO JUNE 30, 1954, YOU EARNED 40 POINTS BY ORGANIZED RESERVE TRAINING UNIT DRILLS AND 16 POINTS BY ACTIVE DUTY TRAINING.

SECTION 210 OF THE ACT OF FEBRUARY 19, 1941, 55 STAT. 12, AS AMENDED, WAS REWRITTEN AND CODIFIED BY SECTION 1 OF THE ACT OF AUGUST 4, 1949, 63 STAT. 553, 14 U.S.C. 759, AND PROVIDES IN MATERIAL PART AS FOLLOWS:

"/A) UPON FIRST REPORTING FOR ACTIVE DUTY OR TRAINING DUTY AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, A COMMISSIONED OR WARRANT OFFICER OF THE RESERVE MAY BE PAID A SUM, NOT TO EXCEED $100, AS REIMBURSEMENT FOR THE PURCHASE OF THE REQUIRED UNIFORMS, AND THEREAFTER SUCH OFFICER MAY BE PAID AN ADDITIONAL SUM OF $50 FOR THE SAME PURPOSE UPON THE COMPLETION OF EACH PERIOD OF NOT LESS THAN FOUR YEARS IN THE RESERVE. THIS LATTER AMOUNT OF $50 SHALL NOT BECOME DUE ANY OFFICER UNTIL CALLED TO ACTIVE OR TRAINING DUTY AFTER THE EXPIRATION OF THE PREVIOUS FOUR-YEAR PERIOD. TIMES OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS MAY BE PAID TO OFFICERS OF THE RESERVE UPON FIRST REPORTING FOR ACTIVE DUTY. * * *"

THIS STATUTORY PROVISION WAS REPEALED BY SECTION 803 OF THE ACT OF JULY 9, 1952, 66 STAT. 505, EFFECTIVE JANUARY 1, 1953.

THE ADDITIONAL ALLOWANCE OF $50 AUTHORIZED BY THE ABOVE-QUOTED STATUTORY PROVISION WAS PAYABLE FOUR YEARS AFTER QUALIFICATION FOR THE INITIAL ALLOWANCE IF THE REQUIREMENTS WERE OTHERWISE MET. YOU RECEIVED THE INITIAL ALLOWANCE INCIDENT TO YOUR APPOINTMENT AND FIRST REPORTING FOR ACTIVE DUTY AS A RESERVE OFFICER, ON JULY 18, 1942, AND THAT PAYMENT MUST BE USED IN DETERMINING THE BEGINNING OF THE FOUR YEAR PERIOD WHICH WAS REQUIRED TO ELAPSE BEFORE ENTITLEMENT TO THE ADDITIONAL ALLOWANCE OF $50 COULD ACCRUE. THE RECORDS INDICATE THAT ALTHOUGH THE FOUR-YEAR PERIOD HAD ELAPSED, YOU WERE NOT CALLED TO "ACTIVE OR TRAINING DUTY" AS AN OFFICER OF THE COAST GUARD RESERVE AFTER YOUR RELEASE ON APRIL 13, 1946, AND PRIOR TO THE EFFECTIVE DATE OF THE REPEAL OF THE 1949 STATUTE SO AS TO ENTITLE YOU TO THE ADDITIONAL UNIFORM ALLOWANCE UNDER THAT ACT. YOUR RIGHT TO AN ADDITIONAL ALLOWANCE NECESSARILY MUST NOW REST UPON THE PROVISIONS OF SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492.

THE PERTINENT PROVISIONS OF SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, SUPRA, ARE AS FOLLOWS:

"SEC. 243. (A) * * *

"/3) * * * PROVIDED, THAT ONLY DUTY REQUIRING THE WEARING OF THE UNIFORM SHALL BE COUNTED FOR THE PURPOSE OF THIS SECTION: * * *

"/B) AN OFFICER OF A RESERVE COMPONENT SHALL BE ENTITLED TO AN ADDITIONAL SUM OF NOT TO EXCEED $50 FOR REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS AND EQUIPMENT, UPON COMPLETION OF EACH PERIOD AFTER THE DATE OF ENACTMENT OF THIS ACT OF FOUR YEARS OF SATISFACTORY FEDERAL SERVICE AS PRESCRIBED IN TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED, PERFORMED IN AN ACTIVE STATUS IN A RESERVE COMPONENT AND WHICH SHALL INCLUDE AT LEAST TWENTY- EIGHT DAYS OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING: PROVIDED, THAT ANY PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING FOR A PERIOD IN EXCESS OF NINETY DAYS SHALL BE EXCLUDED IN DETERMINING THE PERIOD OF FOUR YEARS REQUIRED FOR ELIGIBILITY UNDER THIS SUBSECTION: PROVIDED FURTHER, THAT A PERSON WHO RECEIVES OR HAS HERETOFORE RECEIVED A UNIFORM REIMBURSEMENT OR ALLOWANCE AS AN OFFICER SHALL NOT BE ENTITLED TO THE REIMBURSEMENT PROVIDED IN THIS SUBSECTION UNTIL THE EXPIRATION OF NOT LESS THAN FOUR YEARS FROM THE DATE OF ENTITLEMENT TO THE LAST REIMBURSEMENT OR ALLOWANCE:

SECTION 302 (C) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1088, AS AMENDED BY SECTION 2 OF THE ACT OF SEPTEMBER 7, 1949, 63 STAT. 693, PROVIDES THAT EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, SHALL BE DEEMED TO BE A YEAR OF SATISFACTORY FEDERAL SERVICE FOR THE PURPOSES OF THAT SECTION. GIVING EFFECT TO THAT PROVISION AND THE FIRST PROVISO OF SECTION 243 (A) (3) OF THE ARMED FORCES RESERVE ACT OF 1952, ANY YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, DURING WHICH SOME DUTY REQUIRING THE WEARING OF THE UNIFORM WAS PERFORMED (EXCLUDING PERIODS OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING IN EXCESS OF NINETY DAYS) MAY BE COUNTED AS A YEAR OF SATISFACTORY FEDERAL SERVICE. 32 COMP. GEN. 502, 514. CONVERSELY ANY YEAR OF SERVICE PRIOR TO JULY 1, 1949, DURING WHICH NO DUTY REQUIRING THE WEARING OF THE UNIFORM WAS PERFORMED MAY NOT BE COUNTED FOR THIS PURPOSE. HENCE, YOUR TIME IN THE RESERVES PRIOR TO JULY 1, 1949, MAY NOT BE COUNTED AS A PART OF THE REQUIRED FOUR- YEAR PERIOD.

UNDER SECTION 243 (B), QUOTED ABOVE, YOUR ENTITLEMENT TO THE MAINTENANCE ALLOWANCE OF NOT TO EXCEED $50 SUBSEQUENT TO JULY 1, 1949, IS DEPENDENT UPON YOUR COMPLETING FOUR YEARS OF ,SATISFACTORY FEDERAL SERVICE" AS PRESCRIBED IN SECTION 302 (B) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT, WHICH PROVIDES THAT A YEAR OF "SATISFACTORY FEDERAL SERVICE" SHALL CONSIST OF ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF 50 POINTS WHICH ARE CREDITED ON THE FOLLOWING BASIS:

"/1) ONE POINT FOR EACH DAY OF ACTIVE FEDERAL SERVICE;

"/2) ONE POINT FOR EACH DRILL OR PERIOD OF EQUIVALENT INSTRUCTION, SUCH DRILLS AND PERIODS OF EQUIVALENT INSTRUCTION TO BE RESTRICTED TO THOSE PRESCRIBED AND AUTHORIZED BY THE SECRETARY OF THE RESPECTIVE SERVICE FOR THE YEAR CONCERNED, AND TO CONFORM TO THE REQUIREMENTS PRESCRIBED BY OTHER PROVISIONS OF LAW;

"/3) FIFTEEN POINTS FOR MEMBERSHIP IN A RESERVE COMPONENT FOR EACH YEAR OF FEDERAL SERVICE OTHER THAN ACTIVE FEDERAL SERVICE.'

IT APPEARS FROM THE RECORD THAT YOU PERFORMED NO DUTY REQUIRING THE WEARING OF A UNIFORM FOR THE PERIODS JULY 1, 1949, TO JUNE 30, 1950; JULY 1, 1950, TO JUNE 30, 1951; AND JULY 1, 1951, TO JUNE 30, 1952, AND HENCE, YOU EARNED BUT 15 POINTS FOR EACH OF THOSE YEARS, AN INSUFFICIENT NUMBER TO PERMIT THESE YEARS TO BE COUNTED IN COMPUTING THE REQUIRED FOUR-YEAR PERIOD. DURING THE PERIOD JULY 1, 1952, TO JUNE 30, 1953, YOU EARNED BUT 26 POINTS WHERE THE WEARING OF A UNIFORM WAS REQUIRED, WHICH WITH THE 15 POINTS CREDITABLE FOR MEMBERSHIP IN A RESERVE COMPONENT, TOTAL BUT 41 POINTS, WHICH IS ALSO INSUFFICIENT TO BE CONSIDERED AS A YEAR OF "SATISFACTORY FEDERAL SERVICE.' FOR THE PERIOD JULY 1, 1953, TO JUNE 30, 1954, HOWEVER, YOU EARNED IN EXCESS OF 50 POINTS AND THAT CONSTITUTES THE FIRST YEAR OF THE FOUR-YEAR PERIOD OF SERVICE REQUIRED FOR THE ADDITIONAL UNIFORM ALLOWANCE.

FOR THE REASONS INDICATED, THE DISALLOWANCE OF YOUR CLAIM BY OUR SETTLEMENT OF MAY 27, 1955, IS SUSTAINED.