B-134936, MARCH 4, 1958, 37 COMP. GEN. 562

B-134936: Mar 4, 1958

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FOR MUSTERING-OUT PAY PURPOSES IS APPLICABLE TO EITHER A PERMANENT OR A TEMPORARY CHANGE OF PLACE OF DUTY SO THAT AN OFFICER WHO PERFORMS A FLIGHT OVER THE GULF OF MEXICO BEYOND THE THREE- MILE LIMIT INCIDENT TO ORDERED TEMPORARY DUTY AT MIAMI AND RETURN TO HIS PERMANENT STATION IN TEXAS MAY NOT HAVE THE FLIGHT ACCEPTED AS CONSTITUTING SERVICE OUTSIDE THE CONTINENTAL UNITED STATES FOR MUSTERING- OUT PAY ON RELEASE FROM ACTIVE DUTY. PAYMENT OF MUSTERING-OUT PAY IS AUTHORIZED IN THE AMOUNT OF $300 TO PERSONS WHO HAVE PERFORMED ACTIVE SERVICE FOR 60 DAYS OR MORE AND HAVE "SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.'. APPLICABLE REGULATIONS ISSUED TO IMPLEMENT THE ABOVE PROVISIONS OF LAW ARE CONTAINED IN PARAGRAPHS 60501-60530.

B-134936, MARCH 4, 1958, 37 COMP. GEN. 562

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - SERVICE OUTSIDE CONTINENTAL UNITED STATES - FLIGHTS BEYOND THREE-MILE LIMIT A STUDENT NAVIGATION TRAINING FLIGHT FROM A TEXAS BASE OVER THE GULF OF MEXICO TO A POSITION BEYOND THE THREE-MILE LIMIT AND RETURN, WITHOUT A LANDING, CONSTITUTES SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AS DEFINED IN PARAGRAPH 60507, AIR FORCE MANUAL 173-20, TO ENTITLE AN AIR FORCE OFFICER TO AN ADDITIONAL $100 MUSTERING-OUT PAYMENT, UNDER 38 U.S.C. 1012, ON RELEASE FROM ACTIVE DUTY. THE EXCLUSION OF SERVICE OR TRAVEL PERFORMED BEYOND THE THREE-MILE LIMIT OF THE UNITED STATES, INCIDENT TO A CHANGE OF DUTY STATION BETWEEN TWO POINTS IN THE UNITED STATES, FOR MUSTERING-OUT PAY PURPOSES IS APPLICABLE TO EITHER A PERMANENT OR A TEMPORARY CHANGE OF PLACE OF DUTY SO THAT AN OFFICER WHO PERFORMS A FLIGHT OVER THE GULF OF MEXICO BEYOND THE THREE- MILE LIMIT INCIDENT TO ORDERED TEMPORARY DUTY AT MIAMI AND RETURN TO HIS PERMANENT STATION IN TEXAS MAY NOT HAVE THE FLIGHT ACCEPTED AS CONSTITUTING SERVICE OUTSIDE THE CONTINENTAL UNITED STATES FOR MUSTERING- OUT PAY ON RELEASE FROM ACTIVE DUTY.

TO CAPTAIN C. E. MILLER, DEPARTMENT OF THE AIR FORCE, MARCH 4, 1958:

BY LETTER DATED JANUARY 16, 1958, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, U.S. AIR FORCE, FORWARDED YOUR LETTER OF NOVEMBER 7, 1957, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF AN ADDITIONAL $100 MUSTERING-OUT PAY TO FIRST LIEUTENANTS GLEN A. ARENDT, AO 3022225, AND ROY D. SUPER, AO 3020936, FOR SERVICES PERFORMED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IN THE CIRCUMSTANCES SHOWN.

UNDER THE PROVISIONS OF SECTION 502 (A) OF THE ACT OF JULY 16, 1952, 66 STAT. 689, 38 U.S.C. 1012 (A), PAYMENT OF MUSTERING-OUT PAY IS AUTHORIZED IN THE AMOUNT OF $300 TO PERSONS WHO HAVE PERFORMED ACTIVE SERVICE FOR 60 DAYS OR MORE AND HAVE "SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' SECTION 505 (B) OF THAT ACT, 38 U.S.C. 1012 (B), AUTHORIZES THE SECRETARY CONCERNED TO MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THE ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS OF THE ACT AND PROVIDES THAT "DECISIONS" OF THE SECRETARY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL. APPLICABLE REGULATIONS ISSUED TO IMPLEMENT THE ABOVE PROVISIONS OF LAW ARE CONTAINED IN PARAGRAPHS 60501-60530, AIR FORCE MANUAL 173-20.

YOU EXPRESS DOUBT AS TO WHETHER THE DUTY PERFORMED BY THE OFFICERS INVOLVED CONSTITUTES "SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES" AS THAT TERM IS DEFINED IN PARAGRAPH 60507, AIR FORCE MANUAL 173- 20, IN PERTINENT PART AS FOLLOWS:

B. SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES:

(1) SERVICE COUNTED. ANY SERVICE AS DESCRIBED IN (A) OR (B) BELOW, REGARDLESS OF PERIOD OF TIME SERVED, WILL BE COUNTED AS SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES:

(A) SERVICE BEYOND THE 3-MILE LIMIT, EITHER AFLOAT OR IN THE AIR, INCLUDING THAT PERFORMED IN A TEMPORARY DUTY STATUS.

(B) SERVICE PERFORMED IN ALASKA, A UNITED STATES TERRITORY OR IN A FOREIGN COUNTRY INCLUDING CANADA AND MEXICO, AND INCLUDING THAT PERFORMED WHILE IN A TEMPORARY DUTY STATUS.

(2) SERVICE NOT COUNTED. SERVICE OR TRAVEL PERFORMED BEYOND THE 3 MILE LIMIT, OR IN CANADA OR MEXICO INCIDENT TO A CHANGE OF DUTY STATION FROM ONE POINT IN THE UNITED STATES TO ANOTHER POINT IN THE UNITED STATES DOES NOT CONSTITUTE SERVICE OUTSIDE CONTINENTAL LIMITS OF THE UNITED STATES FOR THE PURPOSE OF COMPUTING MUSTERING-OUT PAYMENT.

IN THE CASE OF LIEUTENANT ARENDT, THE RECORD SHOWS THAT BY ORDERS DATED MAY 24, 1957, HEADQUARTERS, 3605TH NAVIGATOR TRAINING WING ( ATC), ELLINGTON AIR FORCE BASE, TEXAS, THE OFFICER WAS ORDERED TO PERFORM " ROUND-ROBIN VIA 25 DEGREES NORTH-90 DEGREES WEST," FOR THE PURPOSE OF STUDENT NAVIGATION TRAINING MISSION AND TO RETURN TO HIS STATION THE SAME DAY. YOU SAY THAT THE OFFICER PERFORMED THE FLIGHT OF LESS THAN 10 HOURS DURATION TO A POSITION 25 DEGREES NORTH-90 DEGREES WEST IN THE GULF OF MEXICO, AND THAT NO LANDING OCCURRED AT ANY POINT WHILE PERFORMING THE FLIGHT. LIEUTENANT ARENDT WAS RELEASED FROM ACTIVE DUTY EFFECTIVE SEPTEMBER 15, 1957.

SINCE LIEUTENANT ARENDT WAS REQUIRED BY COMPETENT ORDERS TO PERFORM A FLIGHT FROM ELLINGTON AIR FORCE BASE, TEXAS, TO A POSITION BEYOND THE 3- MILE LIMIT AND RETURN TO HIS HOME STATION, SUCH DUTY PERFORMED BY HIM MAY BE ACCEPTED AS CONSTITUTING "SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES" WITHIN THE MEANING OF THE LAW AND REGULATIONS. ACCORDINGLY, YOU ARE AUTHORIZED TO PAY LIEUTENANT ARENDT AN ADDITIONAL $100 MUSTERING-OUT PAY.

IN THE CASE OF LIEUTENANT SUPER, THE RECORD SHOWS THAT BY ORDERS DATED OCTOBER 4, 1956, HEADQUARTERS, 3605TH NAVIGATOR TRAINING WING ( ATC), ELLINGTON AIR FORCE BASE, TEXAS, THE OFFICER WAS ORDERED TO PERFORM TEMPORARY DUTY OF APPROXIMATELY 4 DAYS AT MIAMI INTERNATIONAL AIRPORT, FLORIDA, FOR THE PURPOSE OF STUDENT AND INSTRUCTOR NAVIGATIONAL TRAINING MISSION, UPON THE COMPLETION OF WHICH HE WAS TO RETURN TO HIS HOME STATION. IT APPEARS THAT FLIGHT WAS PERFORMED OVER THE GULF OF MEXICO BETWEEN ELLINGTON AIR FORCE BASE, TEXAS, AND MIAMI INTERNATIONAL AIRPORT, FLORIDA, AND THAT HE PERFORMED TEMPORARY DUTY AT THE LATTER AIRPORT AS DIRECTED IN SUCH ORDERS. LIEUTENANT SUPER WAS RELEASED FROM ACTIVE DUTY OCTOBER 13, 1957.

WHILE IT IS NOT SHOWN THAT THE SECRETARY OF THE AIR FORCE, IN THE EXERCISE OF THE AUTHORITY VESTED IN HIM BY SECTION 505 (B) OF THE ACT OF JULY 16, 1952, HAS ISSUED A "DECISION" DESIGNATING TRAVEL UNDER THE CIRCUMSTANCES IN LIEUTENANT SUPER'S CASE AS SERVICE OUTSIDE THE CONTINENTAL UNITED STATES FOR PURPOSES OF ADDITIONAL MUSTERING-OUT PAY, PARAGRAPH 60507B (2) OF THE ABOVE QUOTED REGULATIONS CLEARLY EXCLUDES, FOR THE PURPOSES OF COMPUTING MUSTERING-OUT PAY, SERVICE OR TRAVEL PERFORMED BEYOND THE 3-MILE LIMIT, INCIDENT TO A CHANGE OF DUTY STATION BETWEEN TWO POINTS IN THE UNITED STATES. THE PHRASE "CHANGE OF DUTY STATION" WOULD APPEAR TO INCLUDE EITHER A PERMANENT OR TEMPORARY CHANGE OF PLACE OF DUTY. SINCE LIEUTENANT SUPER WAS ORDERED TO TEMPORARY DUTY AT MIAMI INTERNATIONAL AIRPORT, FLORIDA, AND UPON COMPLETION TO RETURN TO HIS PERMANENT DUTY STATION AT ELLINGTON AIR FORCE BASE, TEXAS, THE SERVICE OR TRAVEL PERFORMED BY HIM BETWEEN THOSE POINTS, EVEN THOUGH BEYOND THE 3- MILE LIMIT, MAY NOT BE ACCEPTED AS CONSTITUTING SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES FOR THE PURPOSE OF COMPUTING MUSTERING-OUT PAY. COMPARE OUR DECISION OF DECEMBER 31, 1948, B-78822, 28 COMP. GEN. 386. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT OF AN ADDITIONAL $100 MUSTERING-OUT PAY TO LIEUTENANT SUPER, AND THE PAPERS SUBMITTED IN HIS CASE WILL BE RETAINED HERE.

THE MILITARY PAY ORDER AND FLIGHT ORDER NO. 144, IN THE CASE OF LIEUTENANT ARENDT, ARE RETURNED HEREWITH.