B-141686, APR. 1, 1960

B-141686: Apr 1, 1960

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 14. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY THE ENCLOSED VOUCHER IN FAVOR OF MAJOR ROYAL R. THE SUBMISSION WAS ALLOTTED D.O. IT APPEARS THAT MAJOR WILLIAMS WAS RETIRED IN THE GRADE OF MASTER SERGEANT ON FEBRUARY 28. THAT HE WAS ORDERED TO ACTIVE DUTY IN HIS GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES ON NOVEMBER 5. THAT HE WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 8. IT IS REPORTED THAT THE AMOUNT OF PAY AND ALLOWANCES RECEIVED FOR THE ACTIVE DUTY LATER WAS ADMINISTRATIVELY DETERMINED TO HAVE BEEN AN ERRONEOUS PAYMENT AND THAT AMOUNT. WAS REPAID FROM HIS RETIRED PAY. SUCH DETERMINATION IS STATED TO HAVE BEEN BASED ON THE PROVISIONS OF THE MILITARY FUNCTIONS APPROPRIATION ACT.

B-141686, APR. 1, 1960

TO LIEUTENANT COLONEL R. H. MACPHERSON, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 14, 1959, FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE ON JANUARY 11, 1960, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY THE ENCLOSED VOUCHER IN FAVOR OF MAJOR ROYAL R. WILLIAMS, RETIRED, COVERING ADDITIONAL MONETARY BENEFITS ALLEGED TO BE DUE HIM INCIDENT TO THE CORRECTION OF HIS MILITARY RECORDS. THE SUBMISSION WAS ALLOTTED D.O. NO. 471 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT MAJOR WILLIAMS WAS RETIRED IN THE GRADE OF MASTER SERGEANT ON FEBRUARY 28, 1948, UNDER SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 539; THAT HE WAS ORDERED TO ACTIVE DUTY IN HIS GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES ON NOVEMBER 5, 1948; AND THAT HE WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 8, 1948. IT IS REPORTED THAT THE AMOUNT OF PAY AND ALLOWANCES RECEIVED FOR THE ACTIVE DUTY LATER WAS ADMINISTRATIVELY DETERMINED TO HAVE BEEN AN ERRONEOUS PAYMENT AND THAT AMOUNT, LESS RETIRED PAY FOR THE SAME PERIOD, WAS REPAID FROM HIS RETIRED PAY. SUCH DETERMINATION IS STATED TO HAVE BEEN BASED ON THE PROVISIONS OF THE MILITARY FUNCTIONS APPROPRIATION ACT, 1949, 62 STAT. 647, 663.

MAJOR WILLIAMS' RECORDS WERE CORRECTED UNDER THE PROVISIONS OF 10 U.S.C. 1552, AS FOLLOWS:

"1.THAT ALL THE DEPARTMENT OF THE ARMY RECORDS OF ROYAL R. WILLIAMS BE CORRECTED TO SHOW THAT FOR PURPOSES OF ENTITLEMENT TO PAY AND ALLOWANCES HE IS HELD AND CONSIDERED NOT TO HAVE BEEN INA RETIRED STATUS DURING THE PERIOD FROM 5 NOVEMBER 1948 THROUGH 8 DECEMBER 1948 WHEN, IN FACT, HE SERVED ON ACTIVE DUTY AS A MAJOR IN THE ARMY OF THE UNITED STATES.

"2. THAT THE DEPARTMENT OF THE ARMY PAY TO ROYAL R. WILLIAMS, OR OTHER PROPER PERSON OR PERSONS, ALL MONEY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF RECORDS.'

THE ENCLOSED VOUCHER, IN THE AMOUNT OF $572.35, REPRESENTS ACTIVE DUTY PAY AND ALLOWANCES CLAIMED TO BE DUE HIM FOR THE PERIOD OF ACTIVE DUTY FROM NOVEMBER 5, 1948, THROUGH DECEMBER 8, 1948, LESS THE AMOUNT HE WAS PERMITTED TO RETAIN AS RETIRED PAY FOR THAT PERIOD.

YOUR LETTER INDICATES THAT YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT ON THE VOUCHER RELATES TO THE MATTER OF WHETHER THE CORRECTION OF RECORDS PLACED THE MEMBER IN A STATUS WHICH WOULD ENTITLE HIM TO PAY FOR THE PERIOD NOVEMBER 5, 1948, THROUGH DECEMBER 8, 1948,"I.E., THAT IT HAS THE EFFECT OF ACTUALLY REMOVING HIM FROM A RETIRED STATUS.' IN THE EVENT IT IS HELD THAT THE CORRECTION DID REMOVE HIM FROM A RETIRED STATUS, YOU EXPRESS DOUBT AS TO WHETHER UNDER THE CORRECTION OF RECORDS HE WAS RESTORED TO THE RETIRED LIST WITH ENTITLEMENT TO CONTINUED RETIRED PAY SUBSEQUENT TO DECEMBER 8, 1948. WHILE IT APPEARS THAT UNDER THE 1949 ACT THE PAYMENTS IN QUESTION WERE ERRONEOUS WHEN MADE, SECTION 2 OF THE ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067, PROVIDED, IN EFFECT, THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, RETIRED MEMBERS OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES WHO WERE CALLED TO ACTIVE DUTY, HAD THE OPTION OF RECEIVING EITHER ACTIVE DUTY PAY AND ALLOWANCES OR RETIRED PAY, FOR THE PERIOD OF THEIR ACTIVE DUTY. SECTION 3 OF THE 1950 ACT PROVIDED THAT SUCH PROVISIONS OF LAW WOULD BE EFFECTIVE FROM JULY 1, 1947. FOR THE LEGISLATIVE PURPOSE AND HISTORY OF THE ACT OF SEPTEMBER 27, 1950, SEE U.S.C. CONGRESSIONAL SERVICE, 1950, AT PAGE 3929. IT IS THERE STATED THAT "SECTION 3 WOULD LEGALIZE PAYMENTS TO PERSONNEL WHO HAVE HERETOFORE WAIVED OR SURRENDERED THEIR * * * RETIRED PAY AND ACTUALLY RECEIVED ACTIVE DUTY * * * PAY IN LIEU THEREOF FOR PERIODS OF DUTY PERFORMED ON OR SUBSEQUENT TO JULY 1, 1947.' WHILE THE 1950 ACT PROVIDES THAT THE MEMBERS CONCERNED MUST ,SPECIFICALLY WAIVE OR RELINQUISH" RETIRED PAY ETC., IN ORDER TO RECEIVE ACTIVE DUTY PAY, IT IS BELIEVED THAT PERSONS WHO RECEIVED SUCH ACTIVE DUTY PAY INSTEAD OF RETIRED PAY PRIOR TO ENACTMENT OF THAT ACT ACTUALLY WAIVED OR RELINQUISHED THEIR RETIRED PAY WITHIN THE MEANING OF THAT ACT.

SINCE THE APPARENT INTENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS WAS TO TAKE SUCH ACTION AS WOULD RESULT IN PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD INVOLVED, WITHOUT AFFECTING THE MEMBER'S RETIRED PAY STATUS AFTER DECEMBER 8, 1948, THE CORRECTION ACTION TAKEN IN THIS CASE WILL BE REGARDED AS AFFIRMING THAT HE PROPERLY WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 5, 1948, AND THAT, HE REVERTED TO INACTIVE DUTY ON THE RETIRED LIST ON DECEMBER 9, 1948, FOR RETIRED PAY PURPOSES.

ACCORDINGLY, NO OBJECTION WILL BE INTERPOSED TO PAYMENT ON THE VOUCHER WHICH IS RETURNED HEREWITH IF OTHERWISE CORRECT.