B-127641, JUL. 18, 1956

B-127641: Jul 18, 1956

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THOMAS: REFERENCE IS MADE TO A LETTER DATED MARCH 29. YOUR CLAIM WAS ALLOWED IN THE AMOUNT OF $300 ON THE BASIS THAT YOU WERE DISCHARGED AS A MASTER SERGEANT ON APRIL 18. IT ERRONEOUSLY BEING CONSIDERED THAT SUCH APPOINTMENT WAS IN THE REGULAR AIR FORCE. YOU WERE ADVISED THAT A REEXAMINATION OF YOUR CLAIM INDICATED THAT YOU WERE NOT ENTITLED TO THE MUSTERING-OUT PAYMENT AUTHORIZED BY US BECAUSE YOU ACCEPTED AN APPOINTMENT IN A RESERVE COMPONENT. YOU WERE REQUESTED TO REFUND THE AMOUNT ALLOWED. ARE PHOTOSTATIC COPIES OF AN EXTRACT FROM SPECIAL ORDERS NO. 73. ANNOUNCEMENT WAS MADE IN THE ORDERS OF APRIL 15. YOUR APPOINTMENT WAS NOT IN THE AIR FORCE RESERVE NOR IN THE REGULAR AIR FORCE. WAS A TEMPORARY APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES.

B-127641, JUL. 18, 1956

TO CHIEF WARRANT OFFICER HUGH B. THOMAS:

REFERENCE IS MADE TO A LETTER DATED MARCH 29, 1956, AND ENCLOSURES, WRITTEN ON YOUR BEHALF BY FIRST LIEUTENANT R. O. STOVER, USAF, PERSONNEL OFFICER, 1092ND AVIATION DEPOT GROUP, MEDINA BASE, SAN ANTONIO, TEXAS, CONCERNING OUR DEMAND FOR REFUND OF THE AMOUNT OF MUSTERING-OUT PAY ALLOWED YOU BY SETTLEMENT RELEASED ON AUGUST 25, 1955.

YOUR CLAIM WAS ALLOWED IN THE AMOUNT OF $300 ON THE BASIS THAT YOU WERE DISCHARGED AS A MASTER SERGEANT ON APRIL 18, 1952, TO ACCEPT AN APPOINTMENT AS A WARRANT OFFICER (JG) (W-1) IN THE UNITED STATES AIR FORCE, IT ERRONEOUSLY BEING CONSIDERED THAT SUCH APPOINTMENT WAS IN THE REGULAR AIR FORCE. BY LETTER DATED FEBRUARY 16, 1956, YOU WERE ADVISED THAT A REEXAMINATION OF YOUR CLAIM INDICATED THAT YOU WERE NOT ENTITLED TO THE MUSTERING-OUT PAYMENT AUTHORIZED BY US BECAUSE YOU ACCEPTED AN APPOINTMENT IN A RESERVE COMPONENT. YOU WERE REQUESTED TO REFUND THE AMOUNT ALLOWED.

IT APPEARS THAT YOU FEEL THAT YOU SHOULD BE PERMITTED TO RETAIN THE MUSTERING-OUT PAYMENT BECAUSE YOU DID NOT ACCEPT AN APPOINTMENT AS A WARRANT OFFICER IN A RESERVE COMPONENT FOLLOWING YOUR DISCHARGE AS STATED IN OUR LETTER OF FEBRUARY 16, 1956, BUT THAT YOU ACCEPTED A TEMPORARY APPOINTMENT AS A WARRANT OFFICER (JG) (W-1) IN THE UNITED STATES AIR FORCE.

AMONG THE ENCLOSURES WITH THE LETTER OF MARCH 29, 1956, ARE PHOTOSTATIC COPIES OF AN EXTRACT FROM SPECIAL ORDERS NO. 73, HEADQUARTERS COMMAND, UNITED STATES AIR FORCE, BOLLING AIR FORCE BASE, WASHINGTON 25, D.C., DATED APRIL 15, 1952, AN AF FORM 133 (OATH OF OFFICE) EXECUTED APRIL 19, 1952, AND A TENDER OF APPOINTMENT AS A WARRANT OFFICER (JG), AIR FORCE RESERVE WITH DATE OF GRADE AS OF JULY 31, 1953. ANNOUNCEMENT WAS MADE IN THE ORDERS OF APRIL 15, 1952, OF YOUR TEMPORARY APPOINTMENT AS "WOJG, USAF (W-1)," UNDER AUTHORITY OF AIR FORCE LETTER NO. 37-9, DATED JULY 18, 1951, AND HEADQUARTERS, U.S. AIR FORCE LETTER OF MARCH 19, 1952. THESE LETTERS AUTHORIZED THE DISCHARGE OF A LIMITED NUMBER OF MASTER SERGEANTS AND THEIR APPOINTMENT AS TEMPORARY WARRANT OFFICERS, JUNIOR GRADE, IN THE AIR FORCE OF THE UNITED STATES UNDER SECTION 3 OF THE ACT OF AUGUST 21, 1941, AS AMENDED, 10 U.S.C. 591A. YOUR OATH OF OFFICE, EXECUTED APRIL 19, 1952, SHOWS APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES (TEMPORARY). THE LETTER OF MARCH 19, 1952, DIRECTED THAT IN THE ORDERS ANNOUNCING SUCH APPOINTMENTS THE ABBREVIATION "USAF" BE USED IN LIEU OF "AFUS.' HENCE, YOUR APPOINTMENT WAS NOT IN THE AIR FORCE RESERVE NOR IN THE REGULAR AIR FORCE, BUT WAS A TEMPORARY APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES.

PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950, IS AUTHORIZED, UNDER THE CONDITIONS SPECIFIED, BY TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688. SECTION 501 OF THE ACT EXTENDS ELIGIBILITY FOR MUSTERING-OUT PAYMENTS, WHICH ARE IN LIEU OF UNEMPLOYMENT COMPENSATION OR READJUSTMENT BENEFITS, TO EACH MEMBER OF THE ARMED FORCES MEETING CERTAIN SPECIFIC CONDITIONS EXCEPT THOSE MEMBERS WHO ARE DISCHARGED AFTER PARTICULAR TYPES OF SERVICE. HOWEVER, THESE PROVISIONS ARE TO BE READ IN CONJUNCTION WITH THE PROVISIONS OF SECTION 503, WHICH PROVIDES THAT SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT 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.' HENCE, THE RIGHT TO PAYMENT IS DETERMINED UNDER SECTION 503 "AS OF THE TIME OF DISCHARGE.' THAT IS, UNLESS THERE WAS A DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR ULTIMATE RELIEF FROM THE SERVICE, THERE IS NO STATUTORY RIGHT TO PAYMENT, EXCEPT IN THE CASE OF MEMBERS WHO ARE DISCHARGED TO ENLIST OR ACCEPT APPOINTMENTS IN A REGULAR COMPONENT OF THE ARMED FORCES.

SECTION 505 (B) OF THE ACT PROVIDES THAT THE SECRETARIES OF THE RESPECTIVE SERVICES SHALL ISSUE SUCH REGULATIONS, NOT INCONSISTENT WITH THE ACT, AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT ITS PROVISIONS, AND THEIR DECISIONS SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL. IN THAT CONNECTION THE ADMINISTRATIVE REPORT WITH WHICH YOUR CLAIM WAS FORWARDED TO US FOR SETTLEMENT RECOMMENDED THAT IT BE DENIED. AS STATED ABOVE, YOU WERE NOT TENDERED AND DID NOT ACCEPT AN APPOINTMENT AS A WARRANT OFFICER (JG) (W-1) IN THE REGULAR AIR FORCE, AND INASMUCH AS YOUR DISCHARGE DID NOT EFFECT A PERMANENT SEPARATION FROM THE SERVICE, BUT RESULTED IN AN EXTENSION OF ACTIVE DUTY AS A WARRANT OFFICER OF THE AIR FORCE OF THE UNITED STATES (TEMPORARY), THE SETTLEMENT OF AUGUST 23, 1955, WAS ERRONEOUS. ACCORDINGLY, THE MUSTERING-OUT PAYMENT MADE TO YOU PURSUANT TO THAT SETTLEMENT SHOULD BE REFUNDED AS REQUESTED IN THE CLAIMS DIVISION LETTER OF FEBRUARY 16, 1956.