B-131224, FEB. 26, 1958

B-131224: Feb 26, 1958

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YOU REQUEST THAT WE RECONSIDER YOUR CLAIM FOR A READJUSTMENT PAYMENT WHICH WAS DENIED BY OUR SETTLEMENT OF FEBRUARY 19. EACH CASE IS ENTITLED TO INDIVIDUAL EXAMINATION TO DETERMINE IF THE GENERAL RULE APPLIES.'. THE ADDITIONAL FACTS ARE SUBMITTED FOR THE PURPOSE OF SHOWING WHY. WAS DIRECTED TO THE SECRETARY OF DEFENSE IN ANSWER TO SIX SPECIFIC QUESTIONS. OUR ANSWER TO THIS QUESTION WAS AS FOLLOWS: "ACCORDINGLY. QUESTION 3A IS ANSWERED IN THE NEGATIVE * * *.'. IT WAS HELD THAT THE CONGRESS INTENDED THAT THE FIVE YEARS OF CONTINUOUS ACTIVE DUTY NECESSARY TO QUALIFY FOR PAYMENT OF READJUSTMENT PAY. IS ENCLOSED. IT IS THE VIEW OF THIS OFFICE THAT ANYTHING LESS THAN FIVE YEARS OF CONTINUOUS ACTIVE DUTY IS A RESERVE COMPONENT IMMEDIATELY PRIOR TO INVOLUNTARY RELEASE IS INSUFFICIENT TO QUALIFY A RESERVIST FOR READJUSTMENT PAYMENT UNDER SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952.

B-131224, FEB. 26, 1958

TO MR. JOHN L. KEITH:

IN YOUR LETTER OF JANUARY 28, 1958, YOU REQUEST THAT WE RECONSIDER YOUR CLAIM FOR A READJUSTMENT PAYMENT WHICH WAS DENIED BY OUR SETTLEMENT OF FEBRUARY 19, 1957, AND BY OUR DECISION OF MAY 20, 1957, B-131224.

AFTER REFERRING TO OUR DECISION, B-128741, AUGUST 17, 1956, 36 COMP. GEN. 219, YOU STATE THAT ,EACH CASE IS ENTITLED TO INDIVIDUAL EXAMINATION TO DETERMINE IF THE GENERAL RULE APPLIES.' FURTHER, YOU SET FORTH VARIOUS FACTS WHICH YOU BELIEVE ENTITLE YOU TO THE READJUSTMENT PAYMENT. GENERALLY, THE ADDITIONAL FACTS ARE SUBMITTED FOR THE PURPOSE OF SHOWING WHY, IN YOUR OPINION, YOU DO NOT FALL WITHIN THE RULE STATED IN B-128741, ABOVE.

OUR DECISION OF AUGUST 17, 1956, WAS DIRECTED TO THE SECRETARY OF DEFENSE IN ANSWER TO SIX SPECIFIC QUESTIONS. QUESTION 3A INQUIRED WHETHER SERVICE IN A REGULAR COMPONENT MAY BE COMBINED WITH SERVICE IN A RESERVE COMPONENT TO DETERMINE ELIGIBILITY TO READJUSTMENT PAY WITH RESPECT TO COMPLETING FIVE YEARS OF CONTINUOUS ACTIVE DUTY IMMEDIATELY PRIOR TO A RESERVIST'S INVOLUNTARY RELEASE. OUR ANSWER TO THIS QUESTION WAS AS FOLLOWS: "ACCORDINGLY, QUESTION 3A IS ANSWERED IN THE NEGATIVE * * *.' THAT DECISION HAS BEEN AFFIRMED ON SEVERAL OCCASIONS, THE LATEST IN ANOTHER DECISION, DATED FEBRUARY 7, 1958, TO THE SECRETARY OF DEFENSE, IN WHICH WE SAID:

"IN OUR DECISION OF AUGUST 17, 1956, B-128741, 36 COMP. GEN. 129, ANSWER TO QUESTION 3 (A), IT WAS HELD THAT THE CONGRESS INTENDED THAT THE FIVE YEARS OF CONTINUOUS ACTIVE DUTY NECESSARY TO QUALIFY FOR PAYMENT OF READJUSTMENT PAY, MUST BE FIVE YEARS OF ACTIVE SERVICE AS A MEMBER OF A RESERVE COMPONENT AND, HENCE, THAT LESS THAN FIVE YEARS OF SUCH SERVICE COULD NOT BE COMBINED WITH SERVICE IN A REGULAR COMPONENT TO ENTITLE A MEMBER TO READJUSTMENT PAY.'

A COPY OF THAT DECISION, B-134941, IS ENCLOSED. AS YOU CAN SEE, IT IS THE VIEW OF THIS OFFICE THAT ANYTHING LESS THAN FIVE YEARS OF CONTINUOUS ACTIVE DUTY IS A RESERVE COMPONENT IMMEDIATELY PRIOR TO INVOLUNTARY RELEASE IS INSUFFICIENT TO QUALIFY A RESERVIST FOR READJUSTMENT PAYMENT UNDER SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956.

IN OUR DECISION TO YOU ON MAY 20, 1957, IT WAS NOTED THAT YOUR ACTIVE DUTY AS A RESERVIST IMMEDIATELY PRIOR TO YOUR RELEASE WAS LESS THAN FIVE YEARS. NO ADDITIONAL INFORMATION HAS COME TO OUR ATTENTION WHICH INDICATES THAT YOU SERVED FIVE YEARS OR MORE IN A RESERVE COMPONENT IMMEDIATELY PRIOR TO YOUR RELEASE. ACCORDINGLY, THE CONCLUSION REACHED IN THE DECISION OF MAY 21, 1957, IS SUSTAINED.