B-141566, APR 1, 1960

B-141566: Apr 1, 1960

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KEMP: REFERENCE IS MADE TO LETTER DATED NOVEMBER 10. THE RECORD SHOWS THAT YOU WERE APPOINTED AN OFFICER IN THE VIRGINIA NATIONAL GUARD PURSUANT TO PARAGRAPH 6. GEORGE WALLACE KEMP IS APPOINTED SECOND LIEUTENANT. IT IS REPORTED THAT ON MAY 24. YOU WERE PAID AN INITIAL UNIFORM ALLOWANCE IN THE AMOUNT OF $200. IT IS ALSO REPORTED THAT YOU WERE PAID PAY AND ALLOWANCES FOR FIELD TRAINING DUTY DURING THE PERIOD JUNE 8 TO 22. IT APPEARS FROM THE RECORD THAT THERE WAS A DELAY IN DETERMINING YOUR PHYSICAL QUALIFICATIONS AND THAT ON AUGUST 12. IT APPEARS THAT IT WAS DETERMINED THAT YOU WERE NOT PHYSICALLY QUALIFIED. YOU WERE REQUESTED TO REFUND (1) THE UNIFORM ALLOWANCE PAID TO YOU. BECAUSE YOU WERE NOT APPOINTED A RESERVE OFFICER IN THE ARMY.

B-141566, APR 1, 1960

TO MR. GEORGE W. KEMP:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 10, 1959, WRITTEN ON YOUR BEHALF BY YOUR ATTORNEY, MR. HORACE E. RICHTER, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $368.27 AS AN OFFICER IN THE VIRGINIA NATIONAL GUARD.

THE RECORD SHOWS THAT YOU WERE APPOINTED AN OFFICER IN THE VIRGINIA NATIONAL GUARD PURSUANT TO PARAGRAPH 6, SPECIAL ORDERS NO. 261, DATED DECEMBER 17, 1956, COMMONWEALTH OF VIRGINIA, THE ADJUTANT GENERAL'S OFFICE, RICHMOND, WHICH READS AS FOLLOWS:

"6. GEORGE WALLACE KEMP IS APPOINTED SECOND LIEUTENANT, ARTILLERY, VIRGINIA NATIONAL GUARD, EFFECTIVE 10 DECEMBER 1956 (TEMPORARY FEDERAL RECOGNITION EXTENDED AS OF 10 DECEMBER 1956), UNDER THE PROVISIONS OF PARAGRAPH 9 B (3), NGR 20-2, DATED 15 MAY 1956, AND ASSIGNED TO BTRY C 560TH FIELD ARTILLERY BATTALION, (155 MM HOWITZERS), VIRGINIA NATIONAL GUARD, AS BATTERY EXECUTIVE OFFICER, (MOS 1193), TO FILL ORIGINAL VACANCY.'

IT IS REPORTED THAT ON MAY 24, 1957, YOU WERE PAID AN INITIAL UNIFORM ALLOWANCE IN THE AMOUNT OF $200. IT IS ALSO REPORTED THAT YOU WERE PAID PAY AND ALLOWANCES FOR FIELD TRAINING DUTY DURING THE PERIOD JUNE 8 TO 22, 1957, AND FOR DRILLS ATTENDED ON JUNE 24 AND 26, 1957. IT APPEARS FROM THE RECORD THAT THERE WAS A DELAY IN DETERMINING YOUR PHYSICAL QUALIFICATIONS AND THAT ON AUGUST 12, 1956, THE NATIONAL GUARD BUREAU (MGB FORM 145) TERMINATED YOUR TEMPORARY FEDERAL RECOGNITION AS OF JUNE 9, 1957, SIX MONTHS FOLLOWING THE DATE (DECEMBER 10, 1956) OF YOUR TEMPORARY RECOGNITION. IT APPEARS THAT IT WAS DETERMINED THAT YOU WERE NOT PHYSICALLY QUALIFIED. SINCE YOUR FEDERAL RECOGNITION TERMINATED ON JUNE 9, 1957, YOU WERE REQUESTED TO REFUND (1) THE UNIFORM ALLOWANCE PAID TO YOU, BECAUSE YOU WERE NOT APPOINTED A RESERVE OFFICER IN THE ARMY, AND (2) THE PAY AND ALLOWANCES PAID TO YOU SUBSEQUENT TO JUNE 9, 1957.

THE LAW AUTHORIZING TEMPORARY FEDERAL RECOGNITION AS AN OFFICER OF THE ARMY NATIONAL GUARD IS CONTAINED IN 32 U.S.C. 308, WHICH PROVIDES AS FOLLOWS:

"308. FEDERAL RECOGNITION OF OFFICERS: TEMPORARY RECOGNITION.

"/2) THE SECRETARY OF THE ARMY MAY AUTHORIZE THE EXTENSION OF TEMPORARY FEDERAL RECOGNITION AS AN OFFICER OF THE ARMY NATIONAL GUARD TO ANY PERSON WHO HAS PASSED THE EXAMINATION PRESCRIBED IN SECTION 307 (B) OF THIS TITLE, PENDING HIS APPOINTMENT AS A RESERVE OFFICER OF THE ARMY. * * * TEMPORARY RECOGNITION SO EXTENDED MAY BE WITHDRAWN AT ANY TIME. IF NOT SOONER WITHDRAWN OR REPLACED BY PERMANENT RECOGNITION UPON APPOINTMENT AS A RESERVE OFFICER IN THE SAME GRADE, IT TERMINATES SIX MONTHS AFTER ITS EFFECTIVE DATE.

"/B) TO BE ELIGIBLE FOR TEMPORARY FEDERAL RECOGNITION UNDER SUBSECTION (A), A PERSON MUST TAKE AN OATH THAT DURING THE PERIOD OF TEMPORARY RECOGNITION HE WILL PERFORM HIS FEDERAL DUTIES AS IF HE HAD BEEN APPOINTED AS A RESERVE OFFICER OF THE ARMY OR THE AIR FORCE, AS THE CASE MAY BE.'

UNDER THE PROVISIONS OF PARAGRAPH 9B (3), NATIONAL GUARD REGULATIONS 20- 2, MAY 15, 1956, CITED IN YOUR ORDERS QUOTED ABOVE, WARRANT OFFICERS AND ENLISTED MEN OTHERWISE QUALIFIED ARE ELIGIBLE FOR FEDERAL RECOGNITION AS OFFICERS OF THE NATIONAL GUARD. PARAGRAPH 4 OF THOSE REGULATIONS PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"4. TEMPORARY FEDERAL RECOGNITION. TEMPORARY FEDERAL RECOGNITION MAY BE EXTENDED TO AN OFFICER PENDING FINAL DETERMINATION OF HIS ELIGIBILITY FOR, AND HIS APPOINTMENT AS, A RESERVE COMMISSIONED OFFICER OF THE ARMY. TEMPORARY FEDERAL RECOGNITION MAY BE WITHDRAWN AT ANY TIME AND IF NOT SOONER WITHDRAWN OR REPLACED BY PERMANENT RECOGNITION, IT SHALL AUTOMATICALLY TERMINATE 6 MONTHS AFTER ITS EFFECTIVE DATE.'

PARAGRAPH 6, NATIONAL GUARD REGULATIONS NO. 59, NOVEMBER 15, 1955, PROVIDES:

"6. TEMPORARY FEDERAL RECOGNITION OF OFFICERS. TEMPORARY FEDERAL RECOGNITION GRANTED IN ACCORDANCE WITH NGR 20-2 WILL QUALIFY AN OFFICER TO RECEIVE PAY FOR ALL TRAINING PERFORMED FROM THE EFFECTIVE DATE OF RECOGNITION UNTIL WITHDRAWAL OF RECOGNITION BY THE CHIEF, NATIONAL GUARD BUREAU, DUE TO ULTIMATE FAILURE TO QUALIFY FOR PERMANENT FEDERAL RECOGNITION, OR BY ENDING OF THE SIX (6) MONTHS PERIOD OF TEMPORARY FEDERAL RECOGNITION PERMITTED BY LAW, WHICHEVER DATE IS EARLIER.'

UNDER THE PROVISIONS OF SECTION 243 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, RE-ENACTED AND ADDED AS SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949 BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, NOW COVERED IN 37 U.S.C. 255 (A),"AN OFFICER OF A RESERVE COMPONENT" IS ENTITLED TO AN INITIAL SUM NOT TO EXCEED $200 AS REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS AND EQUIPMENT UPON MEETING CONDITIONS THERE STATED. CLEARLY UNDER THAT STATUTE A RIGHT TO A UNIFORM ALLOWANCE IS CONTINGENT UPON THE INDIVIDUAL BECOMING AN OFFICER OF A RESERVE COMPONENT. SINCE YOU FAILED TO QUALIFY FOR PERMANENT FEDERAL RECOGNITION DURING THE SIX MONTHS PERIOD AS PROVIDED BY LAW, YOU WERE NOT ELIGIBLE FOR AN APPOINTMENT AS A RESERVE OFFICER OF THE ARMY. SEE PARAGRAPH 7, NATIONAL GUARD REGULATIONS 20-2, MAY 15, 1956. CONSEQUENTLY, SINCE YOU DID NOT ACQUIRE A STATUS AS "AN OFFICER OF A RESERVE COMPONENT" WITHIN THE MEANING OF 37 U.S.C. 255 (A), THERE WAS NO AUTHORITY FOR THE PAYMENT OF THE $200 UNIFORM ALLOWANCE.

SINCE YOUR TEMPORARY FEDERAL RECOGNITION TERMINATED BY OPERATION OF LAW ON JUNE 9, 1957, AND SINCE UNDER THE PROVISIONS OF PARAGRAPH 6, NATIONAL GUARD REGULATIONS NO. 59, ABOVE QUOTED, AN OFFICER, AS IN YOUR CASE, IS ENTITLED TO RECEIVE PAY FOR TRAINING PERFORMED FROM THE EFFECTIVE DATE OF RECOGNITION UNTIL WITHDRAWAL OF RECOGNITION BY THE CHIEF, NATIONAL GUARD BUREAU, OR UNTIL THE EXPIRATION OF THE SIX-MONTH PERIOD OF TEMPORARY FEDERAL RECOGNITION, WHICHEVER DATE IS EARLIER, THERE WAS NO AUTHORITY FOR PAYING YOU PAY AND ALLOWANCES SUBSEQUENT TO THE DATE YOUR TEMPORARY FEDERAL RECOGNITION TERMINATED. THE MERE FACT THAT YOU CONTINUED ON TRAINING DUTY AFTER THE TERMINATION OF YOUR TEMPORARY APPOINTMENT UNTIL JUNE 22, 1957, DID NOT OPERATE TO EXTEND YOUR TEMPORARY STATUS. FURTHER, SINCE YOU DID NOT ACQUIRE A RESERVE STATUS, YOUR CASE MAY NOT BE CONSIDERED AS COMING WITHIN THE PROVISIONS OF 10 U.S.C. 683 (B) SO AS TO ENTITLE YOU TO CONTINUE TO RECEIVE ACTIVE DUTY PAY AFTER THE EXPIRATION OF YOUR TEMPORARY APPOINTMENT.

ACCORDINGLY, YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $368.27. IN THE EVENT YOU ARE UNABLE TO REFUND THE FULL AMOUNT AT THIS TIME, YOU SHOULD SUBMIT HERE A DEFINITE PLAN FOR MAKING REGULAR MONTHLY PAYMENTS IN AMOUNTS THAT WILL RESULT IN LIQUIDATION OF THE INDEBTEDNESS WITHIN A REASONABLE PERIOD OF TIME. IT IS REQUESTED THAT REMITTANCE BE MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND MAILED TO US AT POST OFFICE BOX 2610, WASHINGTON 13, D.C. ..END :