B-134634, JAN. 31, 1958

B-134634: Jan 31, 1958

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FOR REVIEW OF NOTICE OF EXCEPTION TAKEN AGAINST THE PAYMENT OF A VOUCHER (ON WHICH HE IS PAYEE) IN THE AMOUNT OF $300. YOU HAVE SUCCEEDED THE DISBURSING OFFICER WHO MADE PAYMENT ON THE VOUCHER AND TO WHOM THE ERRONEOUS PAYMENT IS CHARGED. A REVIEW OF THE NOTICE OF EXCEPTION WILL BE MADE ON THAT BASIS. THERE WAS CITED OUR DECISION OF MARCH 13. THE OFFICER WAS APPOINTED A SECOND LIEUTENANT. HE WAS PROMOTED TO CAPTAIN. HE WAS TENDERED AN APPOINTMENT AS CAPTAIN IN THE OFFICERS' RESERVE CORPS WHICH WAS ACCEPTED ON JUNE 26. THE OFFICER WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR ARMY ON OCTOBER 3. THE RECORD FURTHER SHOWS THAT HE WAS PROMOTED TO FIRST LIEUTENANT. THAT HE WAS PROMOTED TO CAPTAIN.

B-134634, JAN. 31, 1958

TO LIEUTENANT COLONEL N. P. HANNA, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY FIFTH INDORSEMENT DATED DECEMBER 9, 1957, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR FOURTH INDORSEMENT DATED NOVEMBER 25, 1957, SUBMITTING FOR ADVANCE DECISION A REQUEST BY MAJOR MELVIN E. RICHMOND, FC, U.S. ARMY, FOR REVIEW OF NOTICE OF EXCEPTION TAKEN AGAINST THE PAYMENT OF A VOUCHER (ON WHICH HE IS PAYEE) IN THE AMOUNT OF $300, REPRESENTING MUSTERING-OUT PAY INCIDENT TO HIS INTEGRATION INTO THE REGULAR ARMY ON NOVEMBER 14, 1949. SINCE, AS YOU STATE, YOU HAVE SUCCEEDED THE DISBURSING OFFICER WHO MADE PAYMENT ON THE VOUCHER AND TO WHOM THE ERRONEOUS PAYMENT IS CHARGED, A REVIEW OF THE NOTICE OF EXCEPTION WILL BE MADE ON THAT BASIS.

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION TOOK EXCEPTION TO THE PAYMENT OF MUSTERING-OUT PAY IN THE AMOUNT OF $300 PAID TO MAJOR RICHMOND ON VOUCHER NO. 73123, JANUARY 1957 ACCOUNTS OF M. L. JOHNSON, FOR THE REASON THAT THE OFFICER, FOLLOWING HIS APPOINTMENT IN THE REGULAR ARMY ON NOVEMBER 14, 1949, CONTINUED TO SERVE AS A CAPTAIN, ARMY OF THE UNITED STATES. THERE WAS CITED OUR DECISION OF MARCH 13, 1957, B-130306.

IT APPEARS FROM THE RECORD THAT ON JULY 28, 1943, THE OFFICER WAS APPOINTED A SECOND LIEUTENANT, ARMY OF THE UNITED STATES, AND THAT ON JANUARY 3, 1946, HE WAS PROMOTED TO CAPTAIN, ARMY OF THE UNITED STATES. ON JUNE 25, 1947, HE WAS TENDERED AN APPOINTMENT AS CAPTAIN IN THE OFFICERS' RESERVE CORPS WHICH WAS ACCEPTED ON JUNE 26, 1947. THEREAFTER, THE OFFICER WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR ARMY ON OCTOBER 3, 1949, WHICH HE ACCEPTED NOVEMBER 14, 1949. THE RECORD FURTHER SHOWS THAT HE WAS PROMOTED TO FIRST LIEUTENANT, REGULAR ARMY, ON JANUARY 1, 1951; PROMOTED TO MAJOR, ARMY OF THE UNITED STATES, ON JULY 25, 1951; AND THAT HE WAS PROMOTED TO CAPTAIN, REGULAR ARMY, ON OCTOBER 29, 1954.

THE OFFICER IS OF THE OPINION THAT AT THE TIME HE WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR ARMY HE WAS SERVING IN THE CAPACITY OF CAPTAIN, UNITED STATES ARMY RESERVE. HE BASES HIS CLAIM ON PARAGRAPH 2B OF LETTER DATED JUNE 25, 1947, HEADQUARTERS EIGHTH ARMY, UNITED STATES ARMY, OFFICE OF THE COMMANDING GENERAL, APO 343, DIRECTING THAT- - IN THE EVENT THE OFFICER ACCEPTS THE APPOINTMENT AS CAPTAIN IN THE OFFICERS' RESERVE CORPS- -- "ITEM 4 "COMPONENT" WD AGO FORM 66-1 (OFFICERS AND WARRANT OFFICERS' QUALIFICATION CARD), WILL BE LINED OUT AND THE NEW COMPONENT,"RES" WILL BE ENTERED IF APPLICABLE.' YOU REQUEST THAT A DETERMINATION BE MADE AS TO WHETHER THE QUOTED PROVISIONS ARE ACCEPTABLE AS EVIDENCE OF EXPRESS TERMINATION OF THE OFFICER'S COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. YOU STATE THAT IF IT IS HELD HIS AUS COMMISSION WAS TERMINATED BY SUCH ACTION ON JUNE 25, 1947, THE OFFICER THEN WAS SERVING UNDER HIS RESERVE COMMISSION ONLY AND WOULD BE ENTITLED TO MUSTERING-OUT PAY UPON ACCEPTANCE OF THE REGULAR ARMY APPOINTMENT UNDER THE PRINCIPLES OUTLINED IN OUR DECISION OF OCTOBER 5, 1956, B 129089, 36 COMP. GEN. 283.

IN OUR DECISION OF OCTOBER 5, 1956, 36 COMP. GEN. 283, WE HELD THAT THE OFFICER--- WHO WAS CURRENTLY SERVING AS A RESERVE OFFICER (COMMISSIONED OFFICER OF A RESERVE COMPONENT/--- 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 1A, WE CONCLUDED THAT UNLESS SUCH AN APPOINTMENT IN THE REGULAR SERVICE OR SOME OTHER OFFICIAL ORDER EXPRESSLY PROVIDED FOR TERMINATION OF AN EXISTING COMMISSION IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF THE MEMBER'S ACCEPTANCE OF THE 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.

ACCOMPANYING THE COPY OF THE ABOVE LETTER OF JUNE 25, 1947, HEADQUARTERS EIGHTH ARMY, WAS A COPY OF THE LETTER OF APPOINTMENT OF THE SAME DATE (JUNE 25, 1947), TENDERING TO CAPTAIN RICHMOND (AUS) AN APPOINTMENT AS CAPTAIN IN THE OFFICERS' RESERVE CORPS. PARAGRAPH 4 OF THAT LETTER EXPRESSLY PROVIDES THAT "THIS DOES NOT AFFECT YOUR CURRENT ACTIVE DUTY STATUS AND YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS.' IN THE ABSENCE OF COMPETENT ORDERS DIRECTING THAT THE OFFICER PERFORM DUTIES AS AN OFFICER IN THE OFFICERS' RESERVE CORPS ON AND AFTER JUNE 26, 1947, WE FIND NO BASIS TO CONCLUDE THAT THE OFFICER'S ACTIVE DUTY STATUS AS A CAPTAIN, ARMY OF THE UNITED STATES, WAS AUTOMATICALLY TERMINATED AND THAT HE NO LONGER CONTINUED ON ACTIVE DUTY IN THAT STATUS SIMPLY BECAUSE A CHANGE WAS DIRECTED TO BE MADE ON THE OFFICER'S QUALIFICATION CARD TO SHOW HIS COMPONENT AS "RES.' ALSO, THE MERE FACT THAT ITEM 5 OF THE OFFICER'S MILITARY RECORD AND REPORT OF SEPARATION (WD AGO FORM 53-98) SHOWED THAT AT THE TIME OF HIS SEPARATION ON NOVEMBER 13, 1949, HIS COMPONENT WAS "ORC" DID NOT, IN ITSELF, ALTER OR CHANGE HIS STATUS INSOFAR AS HIS EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WAS CONCERNED. COMPARE DECISION TO YOU DATED AUGUST 8, 1957, B-132365, 37 COMP. GEN. 94. IN SUPPORT OF THE VIEW THAT THE OFFICER'S ARMY OF THE UNITED STATES STATUS WAS NOT TERMINATED ON JUNE 26, 1947--- AT THE TIME HE ACCEPTED THE APPOINTMENT IN THE OFFICERS' RESERVE CORPS--- AND THAT HE CONTINUED TO SERVE IN HIS ARMY OF THE UNITED STATES STATUS IMMEDIATELY PRIOR AND SUBSEQUENT TO HIS INTEGRATION INTO THE REGULAR ARMY ON NOVEMBER 14, 1949. THE ADJUTANT GENERAL, IN SUBMITTING A STATEMENT OF SERVICE IN MAJOR RICHMOND'S CASE, DATED OCTOBER 3, 1957, STATED:

"AUS STATUS REMAINED IN EFFECT UPON INTEGRATION IN THE REGULAR ARMY. OFFICER ENTERED ON ACTIVE DUTY UNDER AUS COMMISSION.'

IN THAT CONNECTION, SEE OUR DECISION TO YOU DATED DECEMBER 6, 1957, B- 133845, 37 COMP. GEN. - .

ACCORDINGLY, MAJOR RICHMOND WAS NOT ENTITLED TO MUSTERING-OUT PAY INCIDENT TO HIS INTEGRATION INTO THE REGULAR ARMY ON NOVEMBER 14, 1949, AND THE NOTICE OF EXCEPTION MUST BE AND IS SUSTAINED.