B-134941, FEB. 7, 1958

B-134941: Feb 7, 1958

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TO THE SECRETARY OF DEFENSE: REFERENCE IS MADE TO LETTER OF JANUARY 17. ARE AS FOLLOWS: "1. IS THAT OF A COMMISSIONED OR WARRANT OFFICER OF THE ARMY OF THE UNITED STATES WITHOUT SPECIFICATION OF COMPONENT BE PAID READJUSTMENT PAY UNDER THE PROVISIONS OF SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952. IS AN INDIVIDUAL WHO HOLDS A COMMISSION IN THE U.S. ARMY RESERVE BUT WHO IS SERVING ON ACTIVE DUTY AS AN AUS WARRANT OFFICER ELIGIBLE FOR READJUSTMENT PAY UPON HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY IF HIS TOTAL ACTIVE FEDERAL SERVICE. IS IN EXCESS OF FIVE YEARS? "3. IS A FORMER AUS WARRANT OFFICER WHO IS CURRENTLY SERVING ON ACTIVE DUTY AS A COMMISSIONED OR WARRANT OFFICER OF THE U.S.

B-134941, FEB. 7, 1958

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF JANUARY 17, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING DECISION ON THREE QUESTIONS RELATING TO PAYMENT OF READJUSTMENT PAY UNDER SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, 70 STAT, 517. SUCH QUESTIONS, SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 202 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, ARE AS FOLLOWS:

"1. MAY AN INDIVIDUAL WHOSE SOLE MILITARY STATUS, AT THE TIME OF HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY, IS THAT OF A COMMISSIONED OR WARRANT OFFICER OF THE ARMY OF THE UNITED STATES WITHOUT SPECIFICATION OF COMPONENT BE PAID READJUSTMENT PAY UNDER THE PROVISIONS OF SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF 9 JULY 1956 (70 STAT. 517; 50 U.S.C. 1016), IF ON THE DATE OF SUCH RELEASE HE HAS IN EXCESS OF FIVE YEARS' ACTIVE FEDERAL SERVICE IN THAT STATUS?

"2. IS AN INDIVIDUAL WHO HOLDS A COMMISSION IN THE U.S. ARMY RESERVE BUT WHO IS SERVING ON ACTIVE DUTY AS AN AUS WARRANT OFFICER ELIGIBLE FOR READJUSTMENT PAY UPON HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY IF HIS TOTAL ACTIVE FEDERAL SERVICE, INCLUDING TIME SERVED AS A COMMISSIONED OFFICER PLUS THE TIME SERVED AS AN AUS WARRANT OFFICER, IS IN EXCESS OF FIVE YEARS?

"3. IS A FORMER AUS WARRANT OFFICER WHO IS CURRENTLY SERVING ON ACTIVE DUTY AS A COMMISSIONED OR WARRANT OFFICER OF THE U.S. ARMY RESERVE ELIGIBLE FOR READJUSTMENT PAY UPON HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY IF HE HAS LESS THAN FIVE YEARS' ACTIVE SERVICE AS A RESERVE OFFICER BUT IN EXCESS OF FIVE YEARS OF COMBINES RESERVE AND AUS WARRANT SERVICE?

THE READJUSTMENT PAY AUTHORIZED UNDER THE CONDITIONS PRESCRIBED IN THE ABOVE CITED PROVISIONS OF LAW IS PAYABLE TO A "MEMBER OF A RESERVE COMPONENT" WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY. THAT TERM IS NOT OTHERWISE DEFINED IN THE 1956 AMENDATORY ACT. SECTION 101 (F) OF THE 1952 ACT, 66 STAT. 482, DEFINES A "MEMBER OF A RESERVE COMPONENT" AS A PERSON APPOINTED OR ENLISTED AS A RESERVE OF AN ARMED FORCE OF THE UNITED STATES OR A PERSON WHO ACQUIRES SUCH STATUS BY TRANSFER PURSUANT TO LAW TO ANY OF THE RESERVE COMPONENTS SPECIFIED IN SECTION 202 OF THE ACT. STATUS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT IS NOT MENTIONED IN SECTION 202. SUCH PROVISIONS OF LAW DO NOT APPEAR TO CONTEMPLATE THE PAYMENT OF READJUSTMENT PAY TO A MEMBER WHO IS NOT SERVING ON ACTIVE DUTY AS A MEMBER OF A RESERVE COMPONENT BUT IS RELEASED FROM ACTIVE DUTY WHILE SERVING AS A MEMBER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT.

WHILE OFFICERS AND WARRANT OFFICERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WERE COVERED BY H.R. 6725 AND S. 2258, 84TH CONGRESS, SUCH COVERAGE WAS OMITTED FROM H.R. 9952, WHICH REPLACED THOSE BILLS AND WHICH LATER WAS ENACTED INTO LAW AS THE ACT OF JULY 9, 1956. SINCE THE CONGRESS IN GRANTING SOME BENEFITS UNDER THE ARMED FORCES RESERVE ACT OF 1952 TO PERSONS WHO ARE MEMBERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT--- SECTION 243 (A) OF THAT ACT AUTHORIZES PAYMENT OF AN INITIAL UNIFORM ALLOWANCE TO "OFFICERS OF A RESERVE COMPONENT OR OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT OR THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT"--- APPARENTLY FELT THAT LANGUAGE SPECIFICALLY COVERING "WITHOUT COMPONENT" GROUPS WAS NECESSARY TO CONFER ON SUCH GROUPS A RIGHT TO THE INTENDED BENEFITS, THE APPARENT DELIBERATE OMISSION OF SIMILAR SPECIFIC LANGUAGE FROM THE 1956 AMENDATORY ACT EVIDENCES AN INTENT TO RESTRICT THE BENEFITS OF THE ACT TO OTHERWISE ELIGIBLE PERSONS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY WHILE SERVING ON ACTIVE DUTY AS A MEMBER OF A RESERVE COMPONENT.

THE PROVISIONS OF 10 U.S.C. 3491--- APPARENTLY DERIVED FROM SECTION 515 (H) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 908--- GRANT TO A COMMISSIONED OFFICER OF THE ARMY ON ACTIVE DUTY (OTHER THAN THE REGULAR ARMY) INCLUDING THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, WHO IS ,ON ACTIVE DUTY," THE RIGHTS, BENEFITS AND PRIVILEGES PROVIDED BY LAW FOR A COMMISSIONED OFFICER OF THE ARMY RESERVE WHO IS "ON ACTIVE DUTY.' HOWEVER, IT APPEARS DOUBTFUL THAT SUCH PROVISIONS OF LAW AUTHORIZE THE PAYMENT OF READJUSTMENT PAY TO AN OFFICER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY, SINCE SUCH PAY DOES NOT ACCRUE WHILE A MEMBER IS ON ACTIVE DUTY, BUT IS INCIDENT TO A RELEASE FROM ACTIVE DUTY. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE AND SINCE THE HOLDING OF AN INACTIVE RESERVE STATUS BY THE PERSON MENTIONED IN QUESTION 2 WOULD NOT ADD TO HIS RIGHTS IN THE PREMISES, THAT QUESTION IS ALSO ANSWERED IN THE NEGATIVE.

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 SIMILAR CONCLUSION ..END :