B-148530, JUN. 6, 1962

B-148530, JUN. 6, 1962

COLONEL LEONARD R. HALL:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 13, 1962, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR LUMP-SUM AIR CORPS RESERVE BONUS IN CONNECTION WITH YOUR SERVICE AS A RESERVE OFFICER IN THE ARMY AIR CORPS DURING THE PERIOD JANUARY 10, 1942, TO JULY 4, 1946.

OUR FILE SHOWS THAT BY PARAGRAPH 72, SPECIAL ORDERS NO. 7, WAR DEPARTMENT, DATED JANUARY 8, 1942, YOU WERE RELIEVED FROM TEMPORARY DUTY AS A FIRST LIEUTENANT AT THE AIR CORPS ADVANCED FLYING SCHOOL, BROOKS FIELD, TEXAS, AND ASSIGNED TO THE 12TH OBSERVATION SQUADRON, GODMAN FIELD, FORT KNOX, KENTUCKY, EFFECTIVE JANUARY 10, 1942. BY PARAGRAPH 33, SPECIAL ORDERS NO. 149, WAR DEPARTMENT, DATED JUNE 6, 1942, YOU WERE TRANSFERRED EFFECTIVE THE SAME DATE TO THE AIR CORPS RESERVE. SUBSEQUENTLY, YOU WERE PROMOTED TO THE GRADE OF CAPTAIN, AIR CORPS, AUS, ON OCTOBER 20, 1942, AND TO THE GRADE OF MAJOR ON JANUARY 18, 1944. ON JULY 5, 1946, YOU WERE APPOINTED A FIRST LIEUTENANT, AIR CORPS, REGULAR ARMY, AND ON JULY 15, 1946, YOU ACCEPTED THAT APPOINTMENT, THEREBY VACATING YOUR RESERVE COMMISSION.

IN LETTER DATED APRIL 21, 1949, YOU PRESENTED A CLAIM TO THIS OFFICE FOR THE AIR CORPS RESERVE BONUS FOR THE PERIOD YOU WERE ON ACTIVE DUTY WITH THE AIR CORPS RESERVE. OUR CLAIMS DIVISION BY SETTLEMENT OF FEBRUARY 6, 1950, DISALLOWED THAT CLAIM FOR THE REASON THAT, SINCE YOU RECEIVED AN APPOINTMENT IN THE REGULAR ARMY, YOU WOULD NOT BE ENTITLED TO THE BONUS, WHICH, UNDER THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, 10 U.S.C. 300A (1946 ED.), WAS PAYABLE ONLY TO AIR CORPS RESERVE OFFICERS WHO HAD NOT BEEN SELECTED FOR A COMMISSION IN THE REGULAR ARMY.

IT APPEARS TO BE YOUR BELIEF THAT YOUR CASE PARALLELS THE CASE OF DOWLING V. UNITED STATES, CT.CL.NO. 174-60, DECIDED FEBRUARY 7, 1962, AND THEREFORE YOU HAVE REQUESTED RECONSIDERATION OF YOUR CLAIM ON THE BASIS OF THE RULING IN THAT CASE. THE UNITED STATES COURT OF CLAIMS HELD IN THE DOWLING CASE THAT AN OFFICER OF THE AIR FORCE RESERVE SERVING ON ACTIVE DUTY AND ALSO HAVING A STATUS AS A TEMPORARY OFFICER IN THE AIR FORCE OF THE UNITED STATES WAS ENTITLED UNDER SECTION 501 (A) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011 (1952 ED.), TO A MUSTERING-OUT PAYMENT IN 1954 WHEN HIS STATUS AS A RESERVE OFFICER WAS TERMINATED UPON APPOINTMENT AS AN OFFICER IN THE REGULAR AIR FORCE. THAT HOLDING WAS BASED, AMONG OTHER THINGS, ON AN INTERPRETATION OF SECTION 502 (B) OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, WHICH, IN PERTINENT PART, READ AS FOLLOWS:

"EACH PERSON ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT UNDER SUBSECTION (A) (1) OF THIS SECTION SHALL RECEIVE ONE-THIRD OF THE STIPULATED AMOUNT AT THE TIME OF FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE, OR AT THE OPTION OF THE PERSON SO ELIGIBLE, AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES; * * *.'

THUS, CAPTAIN DOWLING'S RIGHT TO THE MUSTERING-OUT PAY WAS FOUNDED UPON A STATUTE WHICH SPECIFICALLY AUTHORIZED PAYMENT TO ELIGIBLE RESERVE OFFICERS WHO RECEIVED APPOINTMENTS IN THE REGULAR COMPONENTS OF THE ARMED FORCES. HOWEVER, SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, WHICH PROVIDED FOR THE PAYMENT OF THE AIR CORPS RESERVE BONUS, READ, IN PERTINENT PART, AS FOLLOWS:

"WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAD NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH OFFICER, * * *.'

YOU WILL OBSERVE THAT SECTION 2 OF THE 1936 ACT SPECIFICALLY PRECLUDED THE PAYMENT OF THE AIR CORPS RESERVE BONUS TO AIR CORPS RESERVE OFFICERS WHO WERE COMMISSIONED IN THE REGULAR ARMY, WHEREAS SECTION 502 (B) OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952 SPECIFICALLY AUTHORIZED THE PAYMENT OF THE MUSTERING-OUT PAY TO AN ELIGIBLE COMPONENT. HENCE, IT IS CLEAR THAT THE RULING IN THE DOWLING CASE WHICH CONCERNED THE APPLICATION OF THE MUSTERING-OUT PAYMENT LAW HAS NO APPLICATION TO THE FACTS IN YOUR CASE.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 6, 1950, WAS CORRECT AND IS SUSTAINED.