B-141076, MAR. 12, 1962

B-141076: Mar 12, 1962

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USAF: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15. YOU HELD A COMMISSION AS FIRST LIEUTENANT AIR FORCE RESERVE AND WERE SERVING ON ACTIVE DUTY AS A TEMPORARY FIRST LIEUTENANT. YOU WERE PAID $300 MUSTERING-OUT PAY INCIDENT TO YOUR APPOINTMENT IN THE REGULAR AIR FORCE AND THE TERMINATION OF YOUR RESERVE COMMISSIONED STATUS. WE ADVISED CONGRESSMAN GRIFFIN THAT YOU WERE NOT ENTITLED TO MUSTERING-OUT PAY AND THAT THE CHARGE OF INDEBTEDNESS AGAINST YOU WAS PROPER. IN SUBSTANCE YOU URGE THAT THE DOWLING DECISION ESTABLISHES THAT YOU WERE ENTITLED TO THE MUSTERING-OUT PAYMENT WHICH YOU RECEIVED AND SHOULD BE APPLIED BY US IN SIMILAR CASES SUCH AS YOURS. AS YOU CONTEND THE COURT'S DECISION IN THE DOWLING CASE IS CONTRARY TO THE POSITION TAKEN BY US IN OUR DECISION OF MARCH 13.

B-141076, MAR. 12, 1962

TO CAPTAIN MAURICE ROZNER, USAF:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1962, CONCERNING YOUR ENTITLEMENT TO MUSTERING-OUT PAY INCIDENT TO YOUR APPOINTMENT AS AN OFFICER IN THE REGULAR AIR FORCE.

ON FEBRUARY 17, 1954, THE DATE OF YOUR ACCEPTANCE OF APPOINTMENT AS FIRST LIEUTENANT, REGULAR AIR FORCE, YOU HELD A COMMISSION AS FIRST LIEUTENANT AIR FORCE RESERVE AND WERE SERVING ON ACTIVE DUTY AS A TEMPORARY FIRST LIEUTENANT, UNITED STATES AIR FORCE. IN MARCH 1954, YOU WERE PAID $300 MUSTERING-OUT PAY INCIDENT TO YOUR APPOINTMENT IN THE REGULAR AIR FORCE AND THE TERMINATION OF YOUR RESERVE COMMISSIONED STATUS. THEREAFTER, ON THE BASIS OF OUR DECISION OF MARCH 13, 1957, B 130306, 36 COMP. GEN. 645, THE AIR FORCE INITIATED COLLECTION ACTION AGAINST YOU BECAUSE OF THE ERRONEOUS PAYMENT. BY LETTER B-141076 DATED NOVEMBER 10, 1959, WE ADVISED CONGRESSMAN GRIFFIN THAT YOU WERE NOT ENTITLED TO MUSTERING-OUT PAY AND THAT THE CHARGE OF INDEBTEDNESS AGAINST YOU WAS PROPER.

WITH YOUR PRESENT LETTER YOU ENCLOSE A COPY OF THE OPINION RENDERED BY THE COURT OF CLAIMS IN THE CASE OF DOWLING V. UNITED STATES, CT.CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, AND ASK THAT THE DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, BE REVERSED IN VIEW OF THE COURT'S DECISION IN THE DOWLING CASE. IN SUBSTANCE YOU URGE THAT THE DOWLING DECISION ESTABLISHES THAT YOU WERE ENTITLED TO THE MUSTERING-OUT PAYMENT WHICH YOU RECEIVED AND SHOULD BE APPLIED BY US IN SIMILAR CASES SUCH AS YOURS.

AS YOU CONTEND THE COURT'S DECISION IN THE DOWLING CASE IS CONTRARY TO THE POSITION TAKEN BY US IN OUR DECISION OF MARCH 13, 1957, AND UNDER THE PRINCIPLE OF THE DOWLING DECISION YOU WERE ENTITLED TO MUSTERING-OUT PAY INCIDENT TO YOUR APPOINTMENT AS AN OFFICER IN THE REGULAR AIR FORCE. THE JUDICIAL PROCEEDINGS IN THAT CASE, HOWEVER, ARE NOT YET FINAL AND UNTIL THE CASE IS FINALLY DISPOSED OF THE DOWLING DECISION MAY NOT BE ACCEPTED BY US AS A PRECEDENT IN THE SETTLEMENT OF CLAIMS AND THE AUDIT OF ACCOUNTS IN ANY EVENT.

MOREOVER, WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN RELATION TO SIMILAR MATTERS COMING BEFORE THIS OFFICE, SUCH DECISIONS ARE NOT BINDING UPON THIS OFFICE IN CONNECTION WITH THE SETTLEMENT OF CLAIMS NOT INVOLVED IN THE COURT ACTION 14 COMP. GEN. 648; 31 ID. 73. IN THE EVENT THE DOWLING DECISION BECOMES FINAL IN ITS PRESENT FORM AND THIS OFFICE DECIDES TO FOLLOW IT, THE MILITARY DEPARTMENTS UNDOUBTEDLY WILL BE AWARE OF OUR DECISION AND ANY CLAIM WHICH YOU MAY WISH TO PRESENT AT THAT TIME FOR AN AMOUNT COLLECTED FROM YOU BY REASON OF ERRONEOUS PAYMENT OF MUSTERING-OUT PAY SHOULD BE PRESENTED THROUGH CHANNELS.