B-134167, JAN. 31, 1958

B-134167: Jan 31, 1958

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SINCE YOU SAY HIS CLAIM IS BASED UPON SERVICE PERFORMED BY HIM PRIOR TO HIS TRANSFER FROM THE ARMY TO THE AIR FORCE UNDER THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947. THE STATUTORY PROVISIONS IN EFFECT AT THE TIME OF THE CREATION OF THE DEPARTMENT OF THE AIR FORCE PROVIDING FOR PAYMENT OF UNIFORM ALLOWANCES TO OFFICERS OF THE ARMY WERE EXTENDED TO OFFICERS TRANSFERRED TO THE NEWLY CREATED AIR FORCE BY THE SAVINGS PROVISIONS CONTAINED IN SECTION 305 (A) OF THE NATIONAL SECURITY ACT OF 1947. THAT ALL OTHER PERSONNEL IN ANY COMPONENT OF THE ARMY OF THE UNITED STATES AND WHO WERE UNDER THE AUTHORITY OR COMMAND OF THE COMMANDING GENERAL. OR ENLISTED STATUS IN EXISTING COMPONENTS OF THE ARMED FORCES AND SHOULD NOT BE DEEMED TO HAVE BEEN APPOINTED TO A NEW OR DIFFERENT OFFICE OR GRADE.

B-134167, JAN. 31, 1958

TO CAPTAIN J. W. WALKER, FINANCE OFFICER, DEPARTMENT OF THE AIR FORCE:

BY LETTER DATED OCTOBER 21, 1957, THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF AUGUST 13, 1957, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE LEGALITY OF MAKING PAYMENT TO CAPTAIN CHARLES E. JACOBS, UNITED STATES AIR FORCE RESERVE, OF A $50 UNIFORM MAINTENANCE ALLOWANCE UNDER THE PROVISIONS OF SUBSECTION 243 (B), ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 493. YOU EXPRESS DOUBT AS TO THE VALIDITY OF PAYMENT TO CAPTAIN JACOBS, SINCE YOU SAY HIS CLAIM IS BASED UPON SERVICE PERFORMED BY HIM PRIOR TO HIS TRANSFER FROM THE ARMY TO THE AIR FORCE UNDER THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 495, WHICH ESTABLISHED THE AIR FORCE AS A SEPARATE COMPONENT. THE DOUBT IN THIS CASE APPEARS TO ARISE IN VIEW OF OUR HOLDINGS IN 32 COMP. GEN. 502, ANSWER TO QUESTION NO. 10, AND 33 COMP. GEN. 242, ANSWER TO QUESTION NO. 4, IN WHICH WE HELD GENERALLY THAT ONLY SERVICE PERFORMED IN ONE COMPONENT MIGHT BE COUNTED TOWARD COMPLETION OF THE REQUIRED FOUR YEARS OF SATISFACTORY FEDERAL SERVICE REQUIRED BY SECTION 243 (B) OF THE ARMED FORCES RESERVE ACT OF 1952.

THE STATUTORY PROVISIONS IN EFFECT AT THE TIME OF THE CREATION OF THE DEPARTMENT OF THE AIR FORCE PROVIDING FOR PAYMENT OF UNIFORM ALLOWANCES TO OFFICERS OF THE ARMY WERE EXTENDED TO OFFICERS TRANSFERRED TO THE NEWLY CREATED AIR FORCE BY THE SAVINGS PROVISIONS CONTAINED IN SECTION 305 (A) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508. FURTHERMORE, SECTION 208 (C) OF THIS ACT PROVIDED THAT ALL PERSONNEL OF THE AIR CORPS, UNITED STATES ARMY, OR THE ARMY AIR FORCES, SHOULD BE TRANSFERRED IN BRANCH TO THE UNITED STATES AIR FORCE; THAT ALL OTHER PERSONNEL IN ANY COMPONENT OF THE ARMY OF THE UNITED STATES AND WHO WERE UNDER THE AUTHORITY OR COMMAND OF THE COMMANDING GENERAL, ARMY AIR FORCES, SHOULD BE CONTINUED UNDER THE AUTHORITY OR COMMAND OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE, AND UNDER THE JURISDICTION OF THE DEPARTMENT OF THE AIR FORCE, AND THAT PERSONNEL AFFECTED THEREBY SHOULD RETAIN THEIR COMMISSIONS, WARRANTS, OR ENLISTED STATUS IN EXISTING COMPONENTS OF THE ARMED FORCES AND SHOULD NOT BE DEEMED TO HAVE BEEN APPOINTED TO A NEW OR DIFFERENT OFFICE OR GRADE, OR TO HAVE VACATED THEIR PERMANENT OR TEMPORARY APPOINTMENTS IN AN EXISTING COMPONENT OF THE ARMED FORCES, SOLELY BY REASON OF CHANGE IN STATUS RESULTING FROM SUCH TRANSFER. NO SUCH CHANGE IN STATUS WAS TO ALTER OR PREJUDICE THE STATUS OF ANY INDIVIDUAL SO ASSIGNED, SO AS TO DEPRIVE HIM OF ANY RIGHT, BENEFIT, OR PRIVILEGE TO WHICH HE MAY HAVE BEEN ENTITLED UNDER EXISTING LAW.

IN VIEW OF SUCH PROVISIONS THAT OFFICERS WHO WERE TRANSFERRED BY OPERATION OF LAW FROM THE ARMY TO THE AIR FORCE WERE NOT TO BE CONSIDERED AS HAVING VACATED THEIR APPOINTMENTS IN AN EXISTING COMPONENT SOLELY BY REASON OF SUCH TRANSFER, AND THAT NO SUCH CHANGE IN STATUS WAS TO ALTER THE STATUS OF A MEMBER SO TRANSFERRED SO AS TO DEPRIVE HIM OF BENEFITS TO WHICH HE WAS ENTITLED, IT IS CLEAR THAT THE LAW CONTEMPLATED THAT MEMBERS TRANSFERRED SHOULD NOT LOSE THE BENEFIT OF THEIR PRIOR ARMY SERVICE BY REASON OF SUCH TRANSFER. CF. 28 COMP. GEN. 460. HENCE, WHERE A RESERVE OFFICER OF THE ARMY WAS TRANSFERRED UNDER THE 1947 ACT TO A CORRESPONDING RESERVE COMPONENT IN THE AIR FORCE, HIS PRIOR SERVICE AS A RESERVE OFFICER IN THE ARMY MAY BE CONSIDERED AS SERVICE IN THE SAME COMPONENT TO WHICH TRANSFERRED FOR THE PURPOSE OF COMPUTING CREDITABLE TIME FOR PAYMENT OF UNIFORM MAINTENANCE ALLOWANCE UNDER THE PROVISION OF SECTION 243 (B) OF THE 1952 ACT.

IT APPEARS FROM YOUR STATEMENTS THAT CAPTAIN JACOBS CONTINUED TO SERVE AS A RESERVE OFFICER WITH THE SAME UNIT AFTER HIS TRANSFER FROM THE ARMY AIR CORPS TO THE UNITED STATES AIR FORCE AND, THEREFORE, HIS SERVICE PRIOR TO TRANSFER SHOULD BE CONSIDERED AS SERVICE IN THE SAME COMPONENT TO WHICH TRANSFERRED.

ACCORDINGLY, IF IT BE DETERMINED ON THAT BASIS THAT CAPTAIN JACOBS HAS MET THE SERVICE REQUIREMENTS FOR A $50 UNIFORM MAINTENANCE ALLOWANCE AUTHORIZED BY SECTION 243 (B), PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED.