B-133845, DECEMBER 6, 1957, 37 COMP. GEN. 394

B-133845: Dec 6, 1957

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MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - ACCEPTANCE OF REGULAR ARMY COMMISSION PRECEDING ARMY OF UNITED STATES COMMISSION THE ACCEPTANCE OF A REGULAR ARMY COMMISSION AS FIRST LIEUTENANT BY AN OFFICER WHO IS SERVING ON ACTIVE DUTY UNDER A COMMISSION AS FIRST LIEUTENANT. WAS AUTOMATICALLY TERMINATED. THE OFFICER WAS NOT DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE FOR ENTITLEMENT TO MUSTERING-OUT PAY. THE OFFICER WAS APPOINTED A SECOND LIEUTENANT. THAT HE WAS APPOINTED FIRST LIEUTENANT. THAT HE WAS APPOINTED A FIRST LIEUTENANT IN THE REGULAR ARMY ON JULY 5. THAT HE WAS APPOINTED A CAPTAIN IN THE REGULAR ARMY ON JULY 15. HE WAS APPOINTED CAPTAIN.

B-133845, DECEMBER 6, 1957, 37 COMP. GEN. 394

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - ACCEPTANCE OF REGULAR ARMY COMMISSION PRECEDING ARMY OF UNITED STATES COMMISSION THE ACCEPTANCE OF A REGULAR ARMY COMMISSION AS FIRST LIEUTENANT BY AN OFFICER WHO IS SERVING ON ACTIVE DUTY UNDER A COMMISSION AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT, DOES NOT TERMINATE THE EXISTING COMMISSION, AND NEITHER THE FACT THAT THE DATE OF RANK IN THE REGULAR ARMY PRECEDES THE DATE OF RANK IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, NOR THAT THE ORDERS PROVIDED THAT AN APPOINTMENT IN THE REGULAR ARMY IN THE SAME GRADE WOULD TAKE PRECEDENCE OVER THE ARMY OF THE UNITED STATES COMMISSION FORMS A BASIS TO CONCLUDE THAT THE EXISTING STATUS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, WAS AUTOMATICALLY TERMINATED, AND, ACCORDINGLY, THE OFFICER WAS NOT DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE FOR ENTITLEMENT TO MUSTERING-OUT PAY.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, DECEMBER 6, 1957:

BY SECOND ENDORSEMENT DATED SEPTEMBER 19, 1957, THE CHIEF OF FINANCE DEPARTMENT OF THE ARMY, FORWARDED YOUR FIRST ENDORSEMENT (UNDATED), PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL EDWARD W. QUINLAN, JR., O 33 359, FOR MUSTERING-OUT PAY IN THE AMOUNT OF $200, UNDER THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 38 U.S.C. 691A, INCIDENT TO HIS INTEGRATION INTO THE REGULAR ARMY ON JULY 15, 1946.

IT APPEARS FROM THE RECORD AND THE INFORMATION FURNISHED THAT ON AUGUST 5, 1943, THE OFFICER WAS APPOINTED A SECOND LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT; THAT HE WAS APPOINTED FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT, ON OCTOBER 24, 1944, WITH DATE OF RANK FROM THAT DATE; THAT HE WAS APPOINTED A FIRST LIEUTENANT IN THE REGULAR ARMY ON JULY 5, 1946, ACCEPTED JULY 15, 1946, WITH DATE OF RANK FROM MARCH 8, 1944; AND THAT HE WAS APPOINTED A CAPTAIN IN THE REGULAR ARMY ON JULY 15, 1948, AND ON AUGUST 8, 1948, HE WAS APPOINTED CAPTAIN, ARMY OF THE UNITED STATES WITHOUT COMPONENT.

YOU REQUEST THAT A DETERMINATION BE MADE AS TO THE PROPRIETY OF PAYING THE VOUCHER IN THE LIGHT OF OUR DECISIONS OF OCTOBER 5, 1956, B 129089, 36 COMP. GEN. 283; MARCH 13, 1957, B-130306, 36 COMP. GEN. 645; AND AUGUST 8, 1957, B-132365, 37 COMP. GEN. 94. YOU SAY THAT THE OFFICER'S ORIGINAL CLAIM FOR MUSTERING-OUT PAY WAS DENIED--- APPARENTLY BY THE DEPARTMENT OF THE ARMY--- UNDER THE PRINCIPLES STATED IN OUR DECISION OF MARCH 13, 1957, B-130306, 36 COMP. GEN. 645, ON THE BASIS THAT THE OFFICER CONTINUED TO HOLD HIS ARMY OF THE UNITED STATES STATUS AT THE TIME OF INTEGRATION INTO THE REGULAR ARMY AS REPORTED BY THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY. YOU POINT OUT THAT THE CLAIMANT'S DATE OF RANK AS FIRST LIEUTENANT, REGULAR ARMY, PRECEDES HIS DATE OF RANK AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT AND YOU ASK WHETHER THE FACT THAT A MEMBER WAS APPOINTED AND SERVED IN A HIGHER GRADE IN THE REGULAR ARMY WOULD HAVE ANY EFFECT ON A COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, IN A LOWER GRADE.

THE OFFICER EXPRESSES THE OPINION THAT SINCE HIS DATE OF RANK AS A FIRST LIEUTENANT IN THE REGULAR ARMY PRECEDED HIS DATE OF RANK AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND SINCE HE CONTINUED TO SERVE IN HIS REGULAR ARMY STATUS HE WAS CONSTRUCTIVELY SEPARATED FROM HIS COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. THE OFFICER BASES HIS CLAIM ON THE LANGUAGE CONTAINED IN PARAGRAPH 2 OF SPECIAL ORDERS NO. 148, WAR DEPARTMENT, WASHINGTON, D.C., DATED JULY 5, 1946--- ANNOUNCING HIS APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR ARMY--- IN PERTINENT PART, AS FOLLOWS:

ACCEPTANCE OF THIS COMMISSION IN THE RA WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS WITHOUT COMPONENT WITH THE EXCEPTION THAT THOSE COMMISSIONS NOW HELD AS A RESULT OF PROMOTIONS UNDER THE PROVISIONS EMBODIED IN CIR 10 OR CIR 140 WD 1946 ARE ADMINISTRATIVELY VACATED AND APMT IN THE AUS IS HEREBY EFFECTED IN THE GRADE HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM ACTIVE DUTY. IN THOSE CASES WHERE APMT IN THE RA EFFECTED BY THIS ORDER IS IN THE SAME GRADE AS FORMERLY OR PRESENTLY HELD THE RA GRADE WILL GOVERN. ( ITALICS SUPPLIED.)

SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED BY SECTION 7 (B) OF THE ACT OF OCTOBER 6, 1945, 38 U.S.C. 691C, PROVIDED THAT MUSTERING-OUT PAY AUTHORIZED BY THAT ACT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL 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 THE REGULAR MILITARY OR NAVAL ESTABLISHMENT.

IN THE CASE CONSIDERED IN OUR DECISION OF OCTOBER 5, 1956, B-129089, 36 COMP. GEN. 283, THE OFFICER INVOLVED WAS SERVING AS A RESERVE OFFICER IN THE ARMY OF THE UNITED STATES (COMMISSIONED OFFICER OF A RESERVE COMPONENT) AND WHILE SO SERVING WAS OFFERED AND ACCEPTED A COMMISSION IN THE REGULAR ARMY. WE HELD IN THAT CASE THAT THE OFFICER WAS ENTITLED TO MUSTERING-OUT PAY SINCE ACCEPTANCE OF A REGULAR ARMY APPOINTMENT HAD THE EFFECT OF VACATING HIS RESERVE COMMISSION AND WAS TANTAMOUNT TO A DISCHARGE OR RELEASE FROM ACTIVE DUTY WITHIN THE MEANING OF THE STATUTE. IN OUR DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, IN ANSWER TO QUESTION A, WE SAID THAT THE ACCEPTANCE OF A REGULAR ARMY COMMISSION DOES NOT TERMINATE AN EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES. SEE DIGEST OF OPINIONS, JUDGE ADVOCATES GENERAL OF THE ARMED FORCES (1953- 1954) VOL. 3, OFFICERS, SEC. 141, PAGE 595. WE CONCLUDED THAT SINCE THE MEMBER DESCRIBED IN QUESTION A COULD HAVE CONTINUED TO HOLD HIS COMMISSION IN THE ARMY OR AIR FORCE OF THE UNITED STATES AFTER HIS APPOINTMENT IN THE REGULAR SERVICE, IT WAS OUR VIEW THAT UNLESS SUCH APPOINTMENT OR SOME OTHER OFFICIAL ORDER EXPRESSLY PROVIDED FOR TERMINATION OF THE COMMISSION IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT, AT THE TIME OF THE MEMBER'S ACCEPTANCE OF AN APPOINTMENT IN THE REGULAR SERVICE, THE MEMBER COULD NOT BE CONSIDERED AS HAVING BEEN DISCHARGED OR RELEASED WITHIN THE MEANING OF THE STATUTE SO AS TO BE ENTITLED TO MUSTERING-OUT PAY.

IN THE CASE CONSIDERED IN OUR DECISION OF AUGUST 8, 1957, B-132365, 37 COMP. GEN. 94, IT WAS POINTED OUT THAT AT THE TIME OF THE OFFICER'S APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR ARMY HE WAS SERVING UNDER AN APPOINTMENT AS CAPTAIN IN THE ARMY OF THE UNITED STATES WITH COMPONENT, AND SUCH APPOINTMENT--- IN THE ARMY OF THE UNITED STATES--- WAS NOT ONE WHICH WAS MADE UNDER THE PROVISIONS OF CIRCULAR 10 AND CIRCULAR 140, WAR DEPARTMENT, 1946, CITED IN HIS ORDERS. CIRCULARS 10 AND 140 AUTHORIZED PROMOTIONS IN THE ARMY OF THE UNITED STATES COINCIDENT WITH PROCESSING FOR SEPARATION FROM ACTIVE DUTY. WE CONCLUDED IN THAT CASE THAT THE OFFICER'S APPOINTMENT IN THE REGULAR ARMY WAS SUBJECT TO THE EXPRESS PROVISION IN THE APPOINTING ORDERS STATING THAT " ACCEPTANCE OF THIS APMT WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS W/O COMPONENT," AND, THEREFORE, HIS COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WAS NOT TERMINATED AT THE TIME OF HIS APPOINTMENT IN THE REGULAR ARMY, IT BEING UNDERSTOOD THAT THE OFFICER CONTINUED TO SERVE UNDER THE HIGHER GRADE IN THE ARMY OF THE UNITED STATES.

THE LANGUAGE USED IN COLONEL QUINLAN'S ORDERS AS SET FORTH IN PARAGRAPH 2 OF SPECIAL ORDERS NO. 148, DATED JULY 5, 1946, IS SIMILAR TO THAT CONTAINED IN PARAGRAPH 23B OF SPECIAL ORDERS NO. 121, DATED JUNE 19, 1947, CONSIDERED IN B-132365, AUGUST 8, 1957, 37 COMP. GEN. 94, EXCEPT THAT THE ORDERS OF JULY 5, 1946, CONTAIN THE ADDITIONAL PROVISION THAT " IN THOSE CASES WHERE APMT IN THE RA EFFECTED BY THIS ORDER IS IN THE SAME GRADE AS FORMERLY OR PRESENTLY HELD THE RA GRADE WILL VERN.' AT THE TIME COLONEL QUINLAN WAS APPOINTED AS A FIRST LIEUTENANT IN THE REGULAR ARMY ON JULY 5, 1946, HE WAS SERVING UNDER AN APPOINTMENT AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT. WE ARE AWARE OF NO AUTHORITY WHICH WOULD TERMINATE THE OFFICER'S STATUS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT SIMPLY BECAUSE HIS DATE OF RANK AS FIRST LIEUTENANT IN THE REGULAR ARMY PRECEDED HIS DATE OF RANK AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT. WHILE THE ABOVE ORDERS OF JULY 5, 1946, PROVIDED THAT WHERE AN APPOINTMENT IN THE REGULAR ARMY IS IN THE SAME GRADE AS FORMERLY OR PRESENTLY HELD THE REGULAR ARMY GRADE WILL GOVERN, WE FIND NO BASIS TO CONCLUDE THAT SUCH A PROVISION HAD THE EFFECT OF AUTOMATICALLY TERMINATING AN EXISTING STATUS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT PARTICULARLY IN VIEW OF THE EXPRESS PROVISION IN THE SAME PARAGRAPH THAT " ACCEPTANCE OF THIS COMMISSION IN THE RA WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS WITHOUT COMPONENT.' RATHER, SUCH PROVISIONS OF THE OFFICER'S ORDERS APPARENTLY CONTEMPLATED THAT HIS REGULAR ARMY STATUS WOULD TAKE PRECEDENCE OVER HIS STATUS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, BUT THAT HIS STATUS IN THE ARMY OF THE UNITED STATES WOULD CONTINUE IN EFFECT, THE ORDERS HAVING SPECIFICALLY PROVIDED THAT THE REGULAR ARMY APPOINTMENT WOULD NOT AFFECT HIS ARMY OF THE UNITED STATES COMMISSION AND HAVING CONTAINED NO PROVISION FOR RELEASING HIM FROM ACTIVE DUTY UNDER SUCH COMMISSION. THAT VIEW OF THE EFFECT OF THE ORDERS APPARENTLY IS IN ACCORD WITH THE DETERMINATION REPORTED TO HAVE BEEN MADE BY THE ADJUTANT GENERAL THAT THE OFFICER'S COMMISSIONED STATUS IN THE ARMY OF THE UNITED STATES CONTINUED IN EFFECT AT THE TIME HE WAS INTEGRATED INTO THE REGULAR ARMY. ACCORDINGLY, IT MAY NOT BE CONCLUDED THAT THE CLAIMANT WAS DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE WITHIN THE MEANING OF THE STATUTE SO AS TO BE ENTITLED TO MUSTERING-OUT PAY.

PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH IS BEING RETAINED HERE AUTHORIZED.