B-144694, FEB 14, 1961

B-144694, FEB 14, 1961

PRECIS-UNAVAILABLE

COLONEL N. O. WAHLSTROM:

ACCOUNTING AND FINANCE OFFICER

THROUGH DIRECTOR OF ACCOUNTING AND FINANCE

DEPARTMENT OF THE AIR FORCE

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1960, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF AIRMAN THIRD CLASS MICHAEL C. WILLIAMSON, AF 1257 4652, UNITED STATES AIR FORCE, IN THE SUM OF $125.05, REPRESENTING RETIRED PAY FOR THE PERIOD OCTOBER 6 THROUGH NOVEMBER 30, 1960.

IT APPEARS FROM THE ENCLOSURES WITH YOUR LETTER THAT AIRMAN WILLIAMSON ENLISTED IN THE REGULAR AIR FORCE ON OCTOBER 24, 1958; THAT ON AUGUST 15, 1960, THE MEDICAL STAFF AT USAF HOSPITAL TRAVIS AIR FORCE BASE, CALIFORNIA, DECLARED THE AIRMAN MENTALLY INCOMPETENT; THAT EFFECTIVE OCTOBER 5, 1960, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO CHAPTER 61, TITLE 10, UNITED STATES CODE; AND THAT THE AIRMAN'S DEGREE OF DISABILITY IS RATED AT 100 PERCENT.

IT IS STATED IN YOUR LETTER THAT THE AIRMAN WAS BORN IN PORTADOWN, IRELAND, AND THAT DOUBT EXISTS AS TO PROPRIETY OF PAYMENT OF RETIRED PAY BECAUSE HE NEVER ACQUIRED UNITED STATES CITIZENSHIP.

SECTION 8253(C), TITLE 10, U.S.C. ACT OF AUGUST 10, 1956, 70A STAT. 503, PROVIDES AS FOLLOWS:

"(C) IN TIME OF PEACE, NO PERSON MAY BE ACCEPTED FOR ORIGINAL ENLISTMENT IN THE AIR FORCE UNLESS HE IS, OR HAS MADE A LEGAL DECLARATION OF INTENTION TO BECOME, A CITIZEN OF THE UNITED STATES."

SINCE NO INFORMATION WAS FURNISHED TO THE CONTRARY, IT IS ASSUMED THAT AIRMAN WILLIAMSON INFORMED THE PROPER OFFICIALS AT THE TIME OF HIS ENLISTMENT AS TO THE PLACE OF HIS BIRTH; THAT HE THEN FURNISHED PROOF THAT HE HAD MADE A "LEGAL DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES" AND THAT SUCH PROOF IS OF RECORD IN YOUR DEPARTMENT.

SECTION 1202, TITLE 10, U.S.C. AS AMENDED, PROVIDES AS FOLLOWS:

"UPON A DETERMINATION BY THE SECRETARY CONCERNED THAT A MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES ENTITLED TO BASIC PAY, OR ANY OTHER MEMBER OF THE ARMED FORCES ENTITLED TO BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING) UNDER SECTION 270(B) OF THIS TITLE FOR A PERIOD OF MORE THAN 30 DAYS, WOULD BE QUALIFIED FOR RETIREMENT UNDER SECTION 1201 OF THIS TITLE BUT FOR THE FACT THAT HIS DISABILITY IS NOT DETERMINED TO BE OF A PERMANENT NATURE, THE SECRETARY SHALL, IF HE ALSO DETERMINES THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT THE DISABILITY MAY BE OF A PERMANENT NATURE, PLACE THE MEMBER'S NAME ON THE TEMPORARY DISABILITY LIST WITH RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE."

THE ENTITLEMENT TO RETIREMENT FOR DISABILITY, AND RETIRED PAY, PURSUANT TO SECTION 1202 IS DEPENDENT UPON THE CONDITIONS THERE SET FORTH, ONE OF WHICH IS THAT THE DISABLED PERSON BE "A MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES ENTITLED TO BASIC PAY."

SINCE IT APPEARS THAT AIRMAN WILLIAMSON FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES, HE WAS A MEMBER OF A REGULAR COMPONENT ENTITLED TO BASIC PAY AND HENCE WAS ELIGIBLE FOR THE BENEFITS OF SECTION 1202 WHEN HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. IN THE ABSENCE OF A PROVISION OF LAW BARRING THE PAYMENT OF RETIRED PAY TO AN ALIEN OR INDICATING THAT LACK OF CITIZENSHIP IS INCONSISTENT WITH WILLIAMSON'S STATUS AS A RETIRED MEMBER OF THE REGULAR AIR FORCE, WE FIND NO BASIS TO QUESTION HIS RIGHT TO SUCH RETIRED PAY BENEFITS. SEE 37 COMP.GEN. 207.

ACCORDINGLY AND IF OTHERWISE CORRECT, PAYMENT ON THE VOUCHER ACCOMPANYING YOUR LETTER IS AUTHORIZED, IF SUPPORTED BY PROOF THAT THE MEMBER MADE A LEGAL DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES.