B-139210, JUN 9, 1959

B-139210: Jun 9, 1959

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USAF: REFERENCE IS MADE TO YOUR LETTER OF MARCH 20. HODGES IS ENTITLED TO PAYMENT ON AN ENCLOSED VOUCHER AND MILITARY PAY ORDER REPRESENTING A LUMP-SUM READJUSTMENT PAYMENT OF $4. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. 411 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE. (B) THE DATE WHEN HIS NAME WAS REMOVED FROM THE RECOMMENDED LIST UNDER SECTION 562 (A) OF THIS TITLE. HE IS ENLISTED IN THE GRADE PRESCRIBED BY THE SECRETARY *** "(D) IF A WARRANT OFFICER WHO ALSO HOLDS A GRADE ABOVE CHIEF WARRANT OFFICER. IS RETIRED OR SEPARATED UNDER SUBSECTION (A). HIS COMMISSION IN THE HIGHER GRADE SHALL BE TERMINATED ON THE DATE WHEN HE IS SO RETIRED OR SEPARATED.". READING IN PERTINENT PART AS FOLLOWS (QUOTING FROM THE UNITED STATES CODE): "A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER THE ENACTMENT OF THIS SECTION AND AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY.

B-139210, JUN 9, 1959

PRECIS-UNAVAILABLE

CAPTAIN GEORGE W. ENGLE, USAF:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1959, REQUESTING DECISION WHETHER MR. CARL F. HODGES IS ENTITLED TO PAYMENT ON AN ENCLOSED VOUCHER AND MILITARY PAY ORDER REPRESENTING A LUMP-SUM READJUSTMENT PAYMENT OF $4,110.60 UNDER 50 U.S.C. 1016. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. 411 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 564 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART THAT:

"(A) UNLESS RETIRED OR SEPARATED UNDER SOME OTHER PROVISION OF LAW, A PERMANENT REGULAR WARRANT OFFICER WHO HAS TWICE FAILED OF SELECTION FOR PROMOTION TO THE NEXT HIGHER PERMANENT REGULAR WARRANT OFFICER GRADE SHALL

"(3) IF HE HAS LESS THAN 18 YEARS OF SUCH ACTIVE SERVICE ON (A) THE DATE WHEN THE SECRETARY CONCERNED APPROVES THE REPORT OF THE BOARD UNDER SECTION 560 (G) OF THIS TITLE, (B) THE DATE WHEN HIS NAME WAS REMOVED FROM THE RECOMMENDED LIST UNDER SECTION 562 (A) OF THIS TITLE, OR (C) THE DATE PRESCRIBED BY THE SECRETARY CONCERNED UNDER SECTION 557 (B) OF THIS TITLE, WHICHEVER APPLIES, BE SEPARATED 60 DAYS AFTER THAT DATE WITH SEVERANCE PAY COMPUTED UNDER SECTION 1167 OF THIS TITLE, UNLESS -

"(A) UPON HIS REQUEST AND IN THE DISCRETION OF THE SECRETARY CONCERNED, HE IS ENLISTED IN THE GRADE PRESCRIBED BY THE SECRETARY ***

"(D) IF A WARRANT OFFICER WHO ALSO HOLDS A GRADE ABOVE CHIEF WARRANT OFFICER, W-4, IS RETIRED OR SEPARATED UNDER SUBSECTION (A), HIS COMMISSION IN THE HIGHER GRADE SHALL BE TERMINATED ON THE DATE WHEN HE IS SO RETIRED OR SEPARATED."

THE ACT OF JULY 9, 1956, 70 STAT. 517, 50 U.S.C. 1016, 1952 EDITION, SUPP. V, ADDED TO THE ARMED FORCES RESERVE ACT OF 1952 A NEW SECTION, 265, READING IN PERTINENT PART AS FOLLOWS (QUOTING FROM THE UNITED STATES CODE):

"A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER THE ENACTMENT OF THIS SECTION AND AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS, AS EITHER AN OFFICER, WARRANT OFFICER, OR ENLISTED PERSON, IS ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE-HALF OF ONE MONTH'S BASIC PAY IN THE GRADE IN WHICH HE IS SERVING AT THE TIME OF RELEASE FROM ACTIVE DUTY FOR EACH YEAR OF ACTIVE SERVICE ENDING AT THE CLOSE OF THE EIGHTEENTH YEAR. FOR THE PURPOSES OF COMPUTING THE AMOUNT OF READJUSTMENT PAYMENT (1) A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED, AND (2) ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW SHALL BE EXCLUDED. ***

"(B) PERSONS NOT ENTITLED TO PAYMENT.

THE FOLLOWING PERSONS ARE NOT ENTITLED TO ANY PAYMENTS UNDER THIS SECTION:

"(5) A PERSON WHO UPON RELEASE FROM ACTIVE DUTY IS IMMEDIATELY ELIGIBLE FOR SEVERANCE PAY BASED ON HIS MILITARY SERVICE UNDER ANY OTHER PROVISION OF LAW. HOWEVER, SUCH A PERSON MAY ELECT TO RECEIVE EITHER READJUSTMENT PAY UNDER THIS SECTION OR SEVERANCE PAY, BUT NOT BOTH."

IT APPEARS THAT ON MAY 9, 1958, THERE WERE ISSUED SPECIAL ORDERS NUMBER C -234, DEPARTMENT OF THE AIR FORCE, WASHINGTON, D. C., READING IN PERTINENT PART AS FOLLOWS:

"2.EACH OF THE FOLLOWING NAMED OFFICERS IS RELIEVED FROM ASSIGNMENT ORGANIZATION INDICATED, EFFECTIVE 19 MAY 58 ON WHICH DATE BY DIRECTION OF THE PRESIDENT HE IS HONORABLY DISCHARGED FROM ALL APPOINTMENTS IN THE USAF WITHOUT ENTITLEMENT TO SEVERANCE PAY UNDER PROVISION OF SECTION 564, TITLE 10, US CODE AND WILL PROCEED HOME OF RECORD SHOWN, OR PLACE OF ACCEPTANCE OF APPOINTMENT AS HE MAY ELECT. SDN 51V. PCS. TDN. 5783500 048-141 P 531 -02, 03 S 99-999; 5783500 048-142 P 511-01 S 99-999:

"GRADE, NAME, AFSN, ORGANIZATION, HOME OF RECORD

"CAPT CARL F HODGES, A0862082 (CWO, W-2), HQ 1608TH AB GP, MATS, CHARLESTON AFB, SC; FARMERSVILLE, ILL"

IN A CERTIFICATE EXECUTED ON OCTOBER 18, 1955, MR. HODGES STATED, IN EFFECT, THAT HE HAD HAD CONTINUOUS ACTIVE "AUS" SERVICE FROM OCTOBER 14, 1941, TO THE ABOVE DATE. ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, AS SUCH, CANNOT BE CREDITED FOR QUALIFICATION FOR A LUMP-SUM PAYMENT UNDER 50 U.S.C. 1016. SEE B-134941, FEBRUARY 7, 1958. HOWEVER, IT IS STATED IN YOUR LETTER THAT:

"THE OFFICER WAS SERVING ON ACTIVE DUTY AS A RESERVE CAPTAIN WHILE HOLDING AN APPOINTMENT AS A REGULAR CHIEF WARRANT OFFICER (W-2). HIS DISCHARGE FROM A COMMISSIONED STATUS WAS MANDATORY ON 19 MAY 1958 UNDER THE PROVISIONS OF 10 U.S.C. 564. HE WOULD HAVE BEEN ENTITLED TO SEVERANCE PAY UNDER 10 U.S.C. 1167, EXCEPT THAT HE ELECTED DISCHARGE WITHOUT SEVERANCE PAY FOR THE PURPOSE OF ENLISTING IN THE REGULAR AIR FORCE."

ACCORDINGLY, THE QUESTION PRESENTED WILL BE ANSWERED ON THE ASSUMPTION THAT MR. HODGES HAD THE REQUISITE RESERVE SERVICE FOR QUALIFICATION FOR A LUMP-SUM PAYMENT UNDER 50 U.S.C. 1016, AND THAT HE HAD CONTINUOUS ACTIVE SERVICE FROM OCTOBER 14, 1941, TO MAY 19, 1958, 16 YEARS, 7 MONTHS, 6 DAYS.

IT IS STATED THAT DOUBT AS TO THE PROPRIETY OF PAYING MR. HODGES A LUMP- SUM READJUSTMENT PAYMENT ARISES BECAUSE HIS SEPARATION FROM ACTIVE DUTY AS A RESERVE OFFICER WAS A RESULT OF HIS MANDATORY DISCHARGE AS A REGULAR WARRANT OFFICER.

WHILE MR. HODGES' SEPARATION FROM ACTIVE DUTY AS A RESERVE OFFICER WAS CONTEMPORANEOUS WITH AND RESULTED FROM THE MANDATORY TERMINATION OF HIS RESERVE STATUS, HE WAS SO SEPARATED AND IT CAN HARDLY BE CONTENDED THAT THE SEPARATION WAS VOLUNTARY ON HIS PART. HIS CASE THEN FALLS WITHIN THE RULE LAID DOWN IN 37 COMP. GEN. 357, WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

"A RESERVE OFFICER WHO, AFTER INVOLUNTARY RELEASE FROM ACTIVE DUTY FOLLOWING AT LEAST FIVE YEARS OF ACTIVE SERVICE, ENLISTS IN A REGULAR COMPONENT OR ENTERS ON ACTIVE DUTY AS A REGULAR OR RESERVE OFFICER IN THE SAME OR ANOTHER MILITARY SERVICE ON THE NEXT DAY OR AT ANY LATER TIME MAY BE REGARDED AS RELEASED FROM ACTIVE DUTY FOR ENTITLEMENT TO THE LUMP-SUM READJUSTMENT PAYMENT PROVIDED IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952."

ACCORDINGLY, PAYMENT ON THE VOUCHER AND MILITARY PAY ORDER, WHICH ARE RETURNED, IS AUTHORIZED, IF OTHERWISE CORRECT.