B-146568, DEC. 5, 1961

B-146568, DEC. 5, 1961

TO CAPTAIN S. NORTON, FC, FINANCE AND ACCOUNTING OFFICE:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 3, 1961, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING MILITARY PAY VOUCHER IN FAVOR OF CONDIE I. LEWIS, MASTER SERGEANT RA6 227 363, FOR REFUND OF $110, REPRESENTING THE DIFFERENCE BETWEEN REENLISTMENT ALLOWANCE OF $200 AND REENLISTMENT BONUS OF $90, FOR ENLISTMENT OF NOVEMBER 17, 1953, COLLECTED ON THE MEMBER'S JUNE 1960 MILITARY PAY VOUCHER. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O.NO. A-593 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN YOUR LETTER THAT MASTER SERGEANT LEWIS ENTERED THE SERVICE ON JANUARY 12, 1933, AS A REGULAR ARMY ENLISTED MAN AND REMAINED ON ACTIVE DUTY IN THAT STATUS UNTIL DECEMBER 28, 1944, WHEN HE ACCEPTED APPOINTMENT AS A SECOND LIEUTENANT, AUS. HE WAS SEPARATED FROM ACTIVE DUTY AS AN OFFICER ON FEBRUARY 16, 1946; REENLISTED IN THE REGULAR ARMY MARCH 1, 1946, FOR 3 YEARS; REENLISTED MARCH 1, 1949, FOR SIX YEARS; RECALLED TO ACTIVE DUTY AS AN OFFICER DECEMBER 12, 1951; SEPARATED FROM ACTIVE DUTY AS AN OFFICER NOVEMBER 7, 1953; REENLISTED AS A MASTER SERGEANT NOVEMBER 17, 1953; REENLISTED NOVEMBER 17, 1956, FOR 3 YEARS; REENLISTED NOVEMBER 17, 1959, FOR 3 YEARS; AND WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1960.

IT IS FURTHER STATED THAT UPON SEPARATION FROM ACTIVE DUTY AS AN OFFICER ON NOVEMBER 7, 1953, AND REENLISTMENT IN THE REGULAR ARMY ON NOVEMBER 17, 1953, THE RETIRED MEMBER RECEIVED AN ENLISTMENT ALLOWANCE OF $200 UNDER SECTION 207 (D) OF THE CAREER COMPENSATION ACT OF 1949. THE ARMY AUDIT BRANCH OF THE GENERAL ACCOUNTING OFFICE ISSUED A NOTICE OF OVERPAYMENT IN THE AMOUNT OF $110 STATING THAT THE SERVICE MEMBER SHOULD HAVE BEEN PAID A REENLISTMENT BONUS AUTHORIZED UNDER SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949 RATHER THAN THE REENLISTMENT ALLOWANCE UNDER SECTION 207 (D) ON THE BASIS THAT, SINCE THE MEMBER'S ACTIVE SERVICE AS AN OFFICER SUBSEQUENT TO OCTOBER 12, 1949, WAS ORDERED AND PERFORMED UNDER AN APPOINTMENT IN THE ARMY OF THE UNITED STATES GIVEN SUBSEQUENT TO THAT DATE, HE WAS NOT ENTITLED TO ENLISTMENT ALLOWANCE UNDER SECTION 207 (D) OF THE ACT, BUT SHOULD HAVE BEEN PAID REENLISTMENT BONUS OF $90 AS AUTHORIZED BY SECTION 207 (A). THE AMOUNT OF $110 WAS ENTERED FOR COLLECTION ON THE MEMBER'S JUNE 1960 MILITARY PAY VOUCHER.

THE QUESTION AS SUMMARIZED IN YOUR LETTER IS WHETHER THE MEMBER REENLISTED WITHIN THREE MONTHS AFTER BEING RELIEVED FROM ACTIVE DUTY AS AN OFFICER UNDER APPOINTMENT MADE PRIOR TO OCTOBER 12, 1949. IF THE RECALL TO ACTIVE DUTY AS AN OFFICER, ARMY OF THE UNITED STATES, CONSTITUTED A NEW APPOINTMENT--- AN AUS APPOINTMENT IS EFFECTIVE WITH THE DATE OF ENTRY ON ACTIVE DUTY--- HE WAS NOT ENTITLED TO AN ENLISTMENT ALLOWANCE UNDER SECTION 207 (D) OF THE CAREER COMPENSATION ACT OF 1949, SINCE HIS SERVICE AS AN OFFICER WAS ORDERED AND PERFORMED UNDER APPOINTMENT IN THE AUS SUBSEQUENT TO OCTOBER 12, 1949, DATE OF THE ACT. HOWEVER, IF IT IS CONSIDERED THAT HIS APPOINTMENT AS AN OFFICER WAS JANUARY 13, 1946, AND THAT THIS STATUS WAS CONTINUOUS UNTIL HIS TRANSFER TO THE RETIRED RESERVE ON APRIL 20, 1956, HE WOULD BE ENTITLED TO THE REENLISTMENT ALLOWANCE AUTHORIZED UNDER SECTION 207 (D).

THE MEMBER'S COMMISSION DATED OCTOBER 7, 1946, EVIDENCING HIS APPOINTMENT AS SECOND LIEUTENANT, ADJUTANT GENERAL'S DEPARTMENT IN THE ARMY OF THE UNITED STATES, COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER, RECITES THAT THE COMMISSION WAS ISSUED "UNDER THE PROVISIONS OF SECTION 37 NATIONAL DEFENSE ACT AS AMENDED AND IS TO REMAIN IN FORCE FOR A PERIOD OF FIVE YEARS FROM THE DATE ABOVE SPECIFIED (JANUARY 13, 1946) AND DURING THE PLEASURE OF THE PRESIDENT OF THE UNITED STATES FOR THE TIME BEING.'

SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, PROVIDED IN PERTINENT PART AS FOLLOWS:

"SEC. 37. OFFICERS' RESERVE CORPS.

* * * ALL PERSONS APPOINTED IN THE OFFICERS' RESERVE CORPS ARE RESERVE OFFICERS AND SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES. SUCH APPOINTMENTS IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT ALONE * * *. APPOINTMENTS IN EVERY CASE IN THE OFFICERS' RESERVE CORPS SHALL BE FOR A PERIOD OF FIVE YEARS * * *.'

HENCE, IT APPEARS THAT THE MEMBER'S APPOINTMENT WAS AS A SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORPS. THE OFFICERS' RESERVE CORPS, WITH OTHER RESERVE UNITS, WAS LATER GROUPED INTO A RESERVE COMPONENT KNOWN AS THE ORGANIZED RESERVE CORPS, AND THE ORGANIZED RESERVE CORPS, WHICH WAS CONTINUED BY SECTION 301 OF THE ACT OF JUNE 28, 1950, WAS REDESIGNATED THE ARMY RESERVE BY THE ACT OF JULY 9, 1952.

SPECIAL REGULATIONS 140-115-1, DATED MAY 5, 1950, U.S. ARMY, PROVIDED FOR THE CONTINUED VALIDITY OF THEIR CURRENT APPOINTMENTS IN THE ORGANIZED RESERVE CORPS AFTER THE FIFTH ANNIVERSARY OF THEIR EFFECTIVE DATE FOR THE PERIOD ENDING 6 MONTHS AFTER THE OFFICIAL TERMINATION OF THE WAR. PROVISION WAS MADE FOR THE REAPPOINTMENT OF MEMBERS HOLDING RESERVE COMMISSIONS FOR INDEFINITE PERIODS. WHILE THE MEMBER'S COMMISSION WOULD HAVE TERMINATED AFTER APRIL 27, 1952, BY REASON OF THE END OF THE WORLD WAR II (PRESIDENTIAL PROCLAMATION NO. 2974, APRIL 28, 1952, THE PRESIDENT WAS AUTHORIZED BY SECTION 1 (C) OF JOINT RESOLUTION OF JULY 3, 1952, 66 STAT. 333, TO CONTINUE AND BY EXECUTIVE ORDER 10397, SEPTEMBER 25, 1952, THE PRESIDENT DID EXTEND THE OFFICER APPOINTMENTS MADE PURSUANT TO SECTION 37 OF THE NATIONAL DEFENSE ACT TO APRIL 1, 1953.

SECTION 224 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 487, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"SEC. 224. AFTER THE DATE OF ENACTMENT OF THIS ACT, ALL APPOINTMENTS OF RESERVE OFFICERS SHALL BE FOR AN INDEFINITE TERM. ALL OFFICERS IN * * * THE OFFICERS' RESERVE CORPS * * * SHALL BE CONSIDERED TO HOLD SUCH APPOINTMENTS AS RESERVE OFFICERS * * * IN THE ARMY * * * AND IN THE CASE OF COMMISSIONED OFFICERS TO HOLD COMMISSIONS AS PROVIDED IN SECTION 222 (B) OF THIS ACT. EACH SUCH OFFICER NOT HOLDING AN APPOINTMENT FOR AN INDEFINITE TERM ON THE DATE OF ENACTMENT OF THIS ACT SHALL BE GIVEN AN APPOINTMENT FOR AN INDEFINITE TERM IN LIEU OF HIS CURRENT APPOINTMENT IF SUCH OFFICER * * * SHALL AGREE IN WRITING TO HAVE HIS CURRENT APPOINTMENT CONTINUED FOR AN INDEFINITE TERM. * * *"

IT FURTHER APPEARS THAT ON JANUARY 6, 1953, THE MEMBER WAS APPOINTED FIRST LIEUTENANT IN THE UNITED STATES ARMY RESERVE, AND SUCH ACTION CONTINUED HIS APPOINTMENT INDEFINITELY.

IT THUS APPEARS THAT THE MEMBER HELD A RESERVE COMMISSION AT THE TIME OF HIS RECALL TO ACTIVE DUTY, AND IN FURTHER SUPPORT OF SUCH CONCLUSION, LETTER ORDER 1275, DATED NOVEMBER 2, 1951, SPECIFICALLY RECITES THAT THE MEMBER "BY DIRECTION OF THE PRESIDENT, UNDER THE PROVISIONS OF SUB-SECTION 515 (D), OFFICER PERSONNEL ACT OF 1947 * * * WITH HIS CONSENT, IS ORDERED TO EXTENDED ACTIVE DUTY IN GRADE, CURRENTLY HELD IN THE ORC OR NGUS.' THE SAID SUBSECTION 515 (D) RELATES TO THE CALLING TO ACTIVE DUTY AND RELEASE THEREFROM OF RESERVE OFFICERS.

SUBSECTIONS 217 (A) AND (D) OF THE CAREER COMPENSATION ACT OF 1949, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"SEC. 207 (A). MEMBERS OF THE UNIFORMED SERVICES WHO ENLIST UNDER THE CONDITIONS SET FORTH IN SUBSECTION (B) OF THIS SECTION WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION, OR WITHIN SUCH LESSER PERIOD OF TIME AS THE SECRETARY CONCERNED MAY DETERMINE FROM TIME TO TIME, SHALL BE PAID A LUMP SUM REENLISTMENT BONUS OF * * * $90 * * * UPON ENLISTMENT FOR A PERIOD OF * * * THREE * * * YEARS * * *.

"/D) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THE SECTION, A MEMBER OF THE UNIFORMED SERVICES * * * WHO REENLISTS WITHIN THREE MONTHS AFTER BEING RELIEVED FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER * * * UNDER APPOINTMENT MADE PRIOR TO THE DATE OF ENACTMENT OF THIS ACT (OCTOBER 12, 1949) IF SUCH COMMISSIONED * * * SERVICE IMMEDIATELY FOLLOWED ENLISTED SERVICE, SHALL BE ENTITLED TO RECEIVE EITHER (1) ENLISTMENT ALLOWANCE IN THE AMOUNT AND UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR (2) REENLISTMENT BONUS IN THE AMOUNT AND UNDER THE PROVISIONS OF THIS SECTION, WHICHEVER IS THE GREATER AMOUNT

SINCE IT APPEARS THAT THE MEMBER'S ACTIVE SERVICE AS AN OFFICER SUBSEQUENT TO OCTOBER 12, 1949, DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, WAS PERFORMED UNDER AN APPOINTMENT MADE PRIOR TO THAT DATE, UPON HIS REENLISTMENT AS A MASTER SERGEANT ON NOVEMBER 17, 1953, HE BECAME ENTITLED TO THE REENLISTMENT ALLOWANCE OF $200 AUTHORIZED UNDER SAID SECTION 207 (D).

ACCORDINGLY, THE MILITARY PAY AND ALLOWANCE CLAIMS VOUCHER ACCOMPANYING YOUR LETTER IS RETURNED HEREWITH AND PAYMENT THEREON IS AUTHORIZED. COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER.