B-141715, OCT. 6, 1961

B-141715: Oct 6, 1961

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THE RECORD SHOWS THAT YOU WERE APPOINTED A SECOND LIEUTENANT IN THE INFANTRY RESERVE. WHEN YOU WERE ORDERED TO EXTENDED ACTIVE DUTY UNDER YOUR OFFICERS' RESERVE CORPS COMMISSION AS FIRST LIEUTENANT. YOU WERE APPOINTED A CAPTAIN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT ON AUGUST 19. WHEN YOU WERE RELEASED FROM ACTIVE DUTY UNDER THE PROVISIONS OF SECTION II. WHICH PROVIDED FOR RELEASE OF OFFICERS WHO WERE SURPLUS TO THE NEEDS OF THE ARMY ON THE BASIS OF THEIR THEN PRESENT QUALIFICATIONS. THE RECORD FURTHER DISCLOSES THAT YOU WERE APPOINTED A CAPTAIN IN THE AIR FORCE RESERVE ON NOVEMBER 6. THAT YOU WERE TRANSFERRED TO THE RETIRED RESERVE EFFECTIVE JULY 1. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE NOT SERVING AS AN AIR CORPS RESERVE OFFICER DURING THE PERIOD OF YOUR EXTENDED ACTIVE DUTY AND NO LUMP-SUM PAYMENT UNDER THE ACT OF JUNE 16.

B-141715, OCT. 6, 1961

TO MAJOR EDMUND T. COPPINGER, USAF, RETIRED:

YOUR LETTER DATED SEPTEMBER 5, 1961, REQUESTS REVIEW OF SETTLEMENT DATED NOVEMBER 7, 1960, WHICH DISALLOWED YOUR CLAIM FOR A LUMP-SUM PAYMENT UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, UPON YOUR RELEASE FROM ACTIVE DUTY ON NOVEMBER 11, 1946.

THE RECORD SHOWS THAT YOU WERE APPOINTED A SECOND LIEUTENANT IN THE INFANTRY RESERVE, OFFICERS' RESERVE CORPS, JANUARY 15, 1929, AND YOU ACCEPTED JANUARY 23, 1929. THEREAFTER, YOU SERVED SEVERAL SHORT TOURS OF ACTIVE DUTY UNDER SUCCESSIVE APPOINTMENTS UNTIL APRIL 6, 1941, WHEN YOU WERE ORDERED TO EXTENDED ACTIVE DUTY UNDER YOUR OFFICERS' RESERVE CORPS COMMISSION AS FIRST LIEUTENANT, INFANTRY RESERVE. YOU WERE APPOINTED A CAPTAIN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT ON AUGUST 19, 1944, AND YOU CONTINUED TO SERVE IN THAT CAPACITY UNTIL NOVEMBER 11, 1946, WHEN YOU WERE RELEASED FROM ACTIVE DUTY UNDER THE PROVISIONS OF SECTION II, WAR DEPARTMENT CIRCULAR 290, 1945, WHICH PROVIDED FOR RELEASE OF OFFICERS WHO WERE SURPLUS TO THE NEEDS OF THE ARMY ON THE BASIS OF THEIR THEN PRESENT QUALIFICATIONS. THE RECORD FURTHER DISCLOSES THAT YOU WERE APPOINTED A CAPTAIN IN THE AIR FORCE RESERVE ON NOVEMBER 6, 1952, AND A MAJOR, AIR FORCE RESERVE, JANUARY 1, 1956, AND THAT YOU WERE TRANSFERRED TO THE RETIRED RESERVE EFFECTIVE JULY 1, 1960.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE NOT SERVING AS AN AIR CORPS RESERVE OFFICER DURING THE PERIOD OF YOUR EXTENDED ACTIVE DUTY AND NO LUMP-SUM PAYMENT UNDER THE ACT OF JUNE 16, 1936, AS AMENDED, ACCRUED IN YOUR FAVOR UPON YOUR RELEASE FROM ACTIVE DUTY ON NOVEMBER 11, 1946. YOU REQUEST RECONSIDERATION OF YOUR CLAIM ON THE BASIS THAT YOU WERE ASSIGNED TO THE AIR CORPS FOR PAY PURPOSES, CARRIED AS A MEMBER OF THE AIR CORPS ON THE MORNING REPORTS AND ALL STRENGTH REPORTS AND ALL ORDERS ISSUED PERTAINING TO YOU INDICATED THAT YOU WERE IN THE AIR CORPS. YOU APPARENTLY BELIEVE THAT SUCH FACTS AND CIRCUMSTANCES ENTITLE YOU TO THE AMOUNT CLAIMED.

SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED BY SECTION 6 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, 55 STAT. 240, PROVIDED THAT WHENEVER ANY "AIR CORPS RESERVE OFFICER" WHO HAD NOT BEEN SELECTED FOR A COMMISSION IN THE REGULAR ARMY WAS RELEASED FROM ACTIVE DUTY THAT HAD BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHOULD BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE "AS SUCH OFFICER.' UNDER SUCH PROVISIONS OF LAW, MEMBERSHIP IN, OR THE PERFORMANCE OF DUTY WITH, THE ARMY AIR CORPS ALONE, DID NOT ENTITLE AN OFFICER TO THE LUMP-SUM PAYMENT THERE PROVIDED.

IT HAS BEEN HELD THAT THE PAYMENTS PROVIDED BY THE CITED ACT WERE SPECIALLY AUTHORIZED ONLY FOR AIR CORPS RESERVE OFFICERS UNDER CERTAIN SPECIFIED CONDITIONS AND THAT MEMBERS OF THE OFFICERS' RESERVE CORPS--- BELONGING TO SECTIONS OTHER THAN THE AIR CORPS RESERVE SECTION OF THAT ORGANIZATION--- ALTHOUGH ASSIGNED OR DETAILED TO DUTY IN THE AIR CORPS, DID NOT THEREBY BECOME AIR CORPS RESERVE OFFICERS ENTITLED TO THE ADDITIONAL LUMP-SUM PAYMENTS. SEE 24 COMP. GEN. 423, 25 COMP. GEN. 512, 31 COMP. GEN. 188, AND 33 COMP. GEN. 101. THE UNITED STATES COURT OF CLAIMS REACHED THE SAME CONCLUSION IN THE CASE OF JOHNSTON V. UNITED STATES, 131 CT.CL. 711. YOU WERE A MEMBER OF THE INFANTRY RESERVE, OFFICERS' RESERVE CORPS WHEN APPOINTED A CAPTAIN IN THE ARMY OF THE UNITED STATES AND EVEN THOUGH YOU WERE DETAILED TO DUTY WITH THE AIR CORPS AND WERE REFERRED TO IN OFFICIAL PAPERS AS A MEMBER OF THAT BRANCH DURING THE PERIOD OF YOUR CLAIM, SUCH ACTION DID NOT EFFECT YOUR TRANSFER TO THE AIR CORPS RESERVE SECTION OF THE OFFICERS' RESERVE CORPS. YOU WERE NOT APPOINTED A CAPTAIN IN THE AIR FORCE RESERVE UNTIL NOVEMBER 6, 1952. SINCE THERE IS NO EVIDENCE THAT YOU WERE AN AIR CORPS RESERVE OFFICER ON NOVEMBER 11, 1946, DATE OF YOUR RELEASE FROM ACTIVE DUTY, YOU ARE NOT ENTITLED TO THE LUMP-SUM PAYMENT CLAIMED.