B-144820, MARCH 22, 1961, 40 COMP. GEN. 539

B-144820, MARCH 22, 1961, 40 COMP. GEN. 539

MILITARY PERSONNEL - UNIFORM ALLOWANCE - RESERVE OFFICER'S ASSIGNMENT TO ACTIVE DUTY FOR ACCEPTANCE OF REGULAR COMMISSION ORDERS ISSUED BY THE AIR FORCE RESERVE WHICH DIRECTED AN AIR FORCE RESERVE OFFICER TO ACTIVE DUTY FOR 36 MONTHS UNDER THE AIR FORCE INSTITUTE OF TECHNOLOGY PROGRAM, WHEREBY AFROTC DISTINGUISHED GRADUATES ARE OFFERED REGULAR COMMISSIONS FOR GRADUATE EDUCATION AND ORDERS, DATED 3 DAYS AFTER THE MEMBER ENTERED ON ACTIVE DUTY AT THE SCHOOL, WHICH APPOINTED THE MEMBER TO A REGULAR AIR FORCE COMMISSION MUST BE CONSIDERED TOGETHER TO GIVE EFFECT TO THE INTENT OF THE AIR FORCE EDUCATION PROGRAM SO THAT THE ORDERS TO EXTENDED ACTIVE DUTY IN THE RESERVE WHEN THE MEMBER ANTICIPATED RECEIPT OF THE REGULAR COMMISSION MAY NOT BE REGARDED AS COMING WITHIN THE UNIFORM ALLOWANCE PROVISIONS OF SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 255, TO ENTITLE THE MEMBER TO A UNIFORM ALLOWANCE FOR ACTIVE DUTY AS RESERVE OFFICER IN EXCESS OF 90 DAYS.

TO LIEUTENANT COLONEL J. W. BALLENTINE, DEPARTMENT OF THE AIR FORCE, MARCH 22, 1961:

BY LETTER OF JANUARY 10, 1961, THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF DECEMBER 2, 1960, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF THE INITIAL AND ADDITIONAL UNIFORM ALLOWANCES TO SECOND LIEUTENANT RICHARD F. FELTON, AO 310 6976. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO- AF-552 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE SUBMITTED FILE SHOWS THAT LIEUTENANT FELTON, AN AIR FORCE RESERVE OFFICER, APPLIED FOR A REGULAR AIR FORCE COMMISSION UNDER A NEW PROGRAM OF THE AIR FORCE INSTITUTE OF TECHNOLOGY WHEREBY A LIMITED NUMBER OF HIGHLY SELECTED AIR FORCE ROTC DISTINGUISHED GRADUATES ARE OFFERED COMMISSIONS IN THE REGULAR AIR FORCE AND UPON ACCEPTANCE BECOME ELIGIBLE FOR GRADATE EDUCATION AT THE INSTITUTE UNIVERSITIES. ON MAY 27, 1960, LIEUTENANT FELTON WAS SELECTED TO ATTEND AN 18 MONTHS' COURSE IN GRADUATE NUCLEAR ENGINEERING AT THE INSTITUTE OF TECHNOLOGY, AIR UNIVERSITY, WRIGHT- PATTERSON AIR FORCE BASE, OHIO, COMMENCING SEPTEMBER 6, 1960.

IN ACCORDANCE WITH THE PROCEDURAL DIRECTIVES ESTABLISHED IN CONNECTION WITH THE PROGRAM, THE HEADQUARTERS, AIR RESERVE RECORDS CENTER (1CONAC), DENVER, COLORADO, ISSUED SPECIAL ORDERS NO. A-3766 OF JUNE 22, 1960, DIRECTING HIM TO SERVE ON EXTENDED ACTIVE DUTY IN THE GRADE OF SECOND LIEUTENANT FOR A PERIOD OF 36 MONTHS UNLESS SOONER RELIEVED, RELIEVING HIM FROM RESERVE ASSIGNMENT WITH HEADQUARTERS CONAC ( IRS) EFFECTIVE AUGUST 20, 1960, AND ASSIGNING HIM TO THE ABOVE UNIVERSITY ON AUGUST 22, 1960, FOR THE 18 MONTHS' COURSE COMMENCING SEPTEMBER 6, 1960. THE ORDERS STATED THAT THE EFFECTIVE DATE OF DUTY WOULD BE AUGUST 21, 1960, BUT DIRECTED LIEUTENANT FELTON TO REPORT IN CLASS "A" UNIFORM AT A SPECIFIED DESTINATION NO EARLIER THAN 10745 HOURS AND NOT LATER THAN 1200 HOURS AUGUST 22, 1960. BY SPECIAL ORDERS NO. A-1629 OF AUGUST 24, 1960, OF THE DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C; LIEUTENANT FELTON WAS APPOINTED A SECOND LIEUTENANT, REGULAR AIR FORCE, WITH DATE OF RANK AUGUST 21, 1960. WE HAVE BEEN INFORMALLY ADVISED BY THE UNITED STATES AIR FORCE, WASHINGTON, D.C; THAT HE EXECUTED THE OATH FOR HIS REGULAR COMMISSION ON AUGUST 30, 1960. THE MILITARY PAY ORDERS SIGNED BY LIEUTENANT FELTON ON AUGUST 23, 1960, SHOW THAT HE REPORTED FOR ACTIVE DUTY ON AUGUST 22, 1960.

IN YOUR LETTER OF DECEMBER 2, 1960, YOU STATE:

THE ATTACHED FILE INDICATES IT IS USAF INTENT THAT ORDERS TO ACTIVE DUTY FOR GRADUATE EDUCATION UNDER THE INSTITUTE OF TECHNOLOGY PROGRAM BE ISSUED ONLY TO DISTINGUISHED AIR FORCE ROTC GRADUATES WHO HAVE APPLIED AND BEEN ACCEPTED FOR APPOINTMENT IN THE REGULAR AIR FORCE. THE REASON FOR HAVING THE AIR RESERVE RECORDS CENTER ISSUE THE ORDER APPARENTLY IS TO ASSIGN THE INDIVIDUAL TO HQ, INSTITUTE OF TECHNOLOGY WITH DUTY AT THE APPROPRIATE UNIVERSITY, PENDING COMPLETION OF THE PROCESSING FOR APPOINTMENT IN THE REGULAR AIR FORCE. THE FILE FURTHER INDICATES THAT THE OFFICERS APPOINTMENT BRANCH (1AFPTR-P-3), HQ. USAF, IS TO FORWARD A TENDER OF APPOINTMENT IN THE REGULAR AIR FORCE WITHIN 72 HOURS OF RECEIPT OF NOTIFICATION OF GRADUATE'S ENTRY ON ACTIVE DUTY. THE INDIVIDUAL DID RECEIVE APPOINTMENT IN THE REGULAR AIR FORCE ON 24 AUGUST 1960. THE ORDERS AS WRITTEN DO NOT REFLECT THE APPARENT INTENT OF USAF AND ARE INDISTINGUISHABLE FROM ORDERS CALLING OTHER ROTC GRADUATES (THOSE WHO HAVE NOT APPLIED FOR A REGULAR APPOINTMENT) TO ACHIEVE DUTY FOR A SPECIFIED PERIOD OF TIME, EXCEPT FOR THE ASSIGNMENT TO A GRADUATE COURSE OF INSTRUCTION.

SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, 37 U.S.C. 255 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(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, EITHER---

(1) UPON FIRST REPORTING FOR ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD IN EXCESS OF 90 DAYS; OR

(C) AN OFFICER OF A RESERVE COMPONENT ENTERING ON ACTIVE DUTY IS ENTITLED, FOR EACH TIME OF SUCH ENTRY OR REENTRY ON ACTIVE DUTY OF MORE THAN NINETY DAYS' DURATION TO A FURTHER SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY:

UNDER THE APPLICABLE DIRECTIVES LIEUTENANT FELTON WAS SELECTED AND PROCESSED FOR APPOINTMENT AS A SECOND LIEUTENANT IN THE REGULAR AIR FORCE AND IN ACCORDANCE WITH THOSE DIRECTIVES HE WAS APPOINTED AS A SECOND LIEUTENANT, REGULAR AIR FORCE, BY ORDERS OF AUGUST 24, 1960, A DATE WITHIN THREE DAYS AFTER RECEIPT OF NOTIFICATION BY THE OFFICERS APPOINTMENT BRANCH, UNITED STATES AIR FORCE, OF HIS ENTRY ON ACTIVE DUTY AS A RESERVE OFFICER. HENCE, IT IS EVIDENCE, UNDER THESE CIRCUMSTANCES, THAT AT NO TIME PRIOR TO OR AFTER THE PROCESSING OF HIS APPOINTMENT AS A SECOND LIEUTENANT IN THE REGULAR AIR FORCE WAS IT CONTEMPLATED BY THE UNITED STATES AIR FORCE THAT HE WOULD BE REQUIRED TO SERVE AS A RESERVE OFFICER ON ACTIVE DUTY FOR A PERIOD IN EXCESS OF 90 DAYS. ALSO, SINCE LIEUTENANT FELTON DID NOT SERVE ON ACTIVE DUTY PRIOR TO THE DATE HE REPORTED TO THE UNIVERSITY AND INASMUCH AS HE COULD REASONABLY HAVE ANTICIPATED RECEIVING APPOINTMENT IN THE REGULAR AIR FORCE WITHIN THREE DAYS AFTER ENTRY ON ACTIVE DUTY, IT CANNOT BE SAID THAT THE UNIFORMS WERE PURCHASED BY HIM FOR USE IN CONNECTION WITH ACTIVE DUTY AS A RESERVE OFFICER FOR A PERIOD IN EXCESS OF 90 DAYS, BUT RATHER AS A REGULAR OFFICER OF THE AIR FORCE.

IT IS ALSO OUR VIEW THAT BOTH THE ORDERS OF JUNE 22 AND AUGUST 24, 1960, MUST BE CONSIDERED TOGETHER SO AS TO GIVE EFFECT TO THE MANIFEST INTENTION OF THE UNITED STATES AIR FORCE UNDER THE PROGRAM. IN VIEW OF THE FACT THAT LIEUTENANT FELTON SERVED ONLY FROM AUGUST 22 TO 29, 1960, AS A RESERVE OFFICER AND FROM AUGUST 30, 1960, TO, PRESUMABLY, THE PRESENT DATE AS A REGULAR OFFICER, WE MUST HOLD, UNDER THE CIRCUMSTANCES IN THIS CASE AND IN CONSIDERATION OF THE ORDERS OF AUGUST 24, THAT HIS ORDERS OF JUNE 22 DID NOT CONTEMPLATE A PERIOD OF ACTIVE DUTY AS A RESERVE OFFICER IN EXCESS OF 90 DAYS WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTORY PROVISIONS, AND HENCE, HE IS NOT ENTITLED TO THE INITIAL AND ADDITIONAL UNIFORM ALLOWANCES.

ACCORDINGLY, THERE BEING NO LEGAL BASIS FOR PAYMENT OF THE MILITARY PAY ORDERS, THEY ARE BEING RETAINED IN THIS OFFICE.