B-148644, APR. 30, 1962

B-148644, APR. 30, 1962

TO MR. RUFUS K. WILLIAMS:

REFERENCE IS MADE TO YOUR REQUEST FOR RECONSIDERATION CONTAINED IN FIRST INDORSEMENT DATED APRIL 6, 1962, ON A COPY OF OUR SETTLEMENT CERTIFICATE DATED FEBRUARY 5, 1962, WHICH SETTLEMENT DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAYMENT IN CONNECTION WITH YOUR RELEASE FROM ACTIVE DUTY ON JANUARY 29, 1953, AS CHIEF WARRANT OFFICER, ARMY OF THE UNITED STATES.

PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY IN WORLD WAR II WAS AUTHORIZED TO BE MADE, UNDER THE CONDITIONS SPECIFIED, BY THE STATUTORY PROVISIONS CONTAINED IN THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, 38 U.S.C. 691-691G. PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950, WAS AUTHORIZED TO BE MADE, UNDER THE CONDITIONS SPECIFIED, BY THE STATUTORY PROVISIONS CONTAINED IN TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011-1016. THESE STATUTORY PROVISIONS WERE REPEALED BY SUBSECTIONS 86 AND 101, RESPECTIVELY, OF SECTION 14 OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1272 AND 1273, AND REENACTED AS 38 U.S.C. 2101-2105. SECTION 2101 PROVIDES THAT, EXCEPT AS PROVIDED IN SUBSECTION (B) OF THAT SECTION, EACH MEMBER OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY DURING THE KOREAN CONFLICT (ON OR AFTER JUNE 27, 1950, AND BEFORE FEBRUARY 1, 1955) AND WHO IS DISCHARGED OR RELEASED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, SHALL BE ELIGIBLE FOR MUSTERING-OUT PAYMENT. SECTION 2101 (B) (2) PROVIDES THAT NO MUSTERING-OUT PAYMENT SHALL BE MADE TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE DUTY,"IS ENTITLED TO SEVERANCE PAY, OR IS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, OR TO A STATUS IN WHICH HE RECEIVES SUCH PAY," UNLESS RETIREMENT OR SEPARATION IS FOR PHYSICAL DISABILITY PURSUANT TO CHAPTER 61, TITLE 10, U.S.C. SUBSTANTIALLY IDENTICAL PROVISIONS WERE CONTAINED IN THE MUSTERING- OUT PAYMENT ACT OF 1944 AND IN TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952.

THE RECORDS SHOW THAT YOU SERVED ON ACTIVE DUTY AS AN ENLISTED MAN IN THE REGULAR ARMY FROM AUGUST 14, 1920, TO JULY 31, 1942, WHEN YOU WERE HONORABLY SEPARATED FROM THE SERVICE TO ACCEPT AN APPOINTMENT AS WARRANT OFFICER, JUNIOR GRADE, ARMY OF THE UNITED STATES; THAT YOU ACCEPTED SUCH APPOINTMENT ON AUGUST 1, 1942; THAT YOU ACCEPTED AN APPOINTMENT AS CHIEF WARRANT OFFICER, ARMY OF THE UNITED STATES, ON SEPTEMBER 1, 1942; AND THAT YOU SERVED ON ACTIVE DUTY UNDER SUCH APPOINTMENT UNTIL JANUARY 29, 1953, WHEN YOU WERE RELEASED FOR THE EXPRESS PURPOSE OF REENLISTING FOR RETIREMENT AS AN ENLISTED MAN. THE RECORDS FURTHER SHOW THAT YOU REENLISTED IMMEDIATELY, ON JANUARY 30, 1953, WITHOUT A BREAK IN SERVICE, AND THAT, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 U.S.C. 1217, 10 U.S.C. 947 (1952 EDITION), YOU VOLUNTARILY RETIRED AS AN ENLISTED MAN, BY REASON OF LENGTH OF SERVICE, EFFECTIVE THE FOLLOWING DAY, JANUARY 31, 1953.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY AS CHIEF WARRANT OFFICER, ARMY OF THE UNITED STATES, YOU WERE TRANSFERRED TO THE RETIRED LIST WITH RETIRED PAY WITHIN THE MEANING OF THE PROVISIONS OF SUBSECTION (B) (2) OF SECTION 2101, TITLE 38, U.S. CODE, AND OF THE CORRESPONDING PROVISIONS OF THE PRIOR STATUTES. ACCORDINGLY, YOU ARE NOT ENTITLED TO THE MUSTERING OUT PAYMENT CLAIMED, AND THE SETTLEMENT OF FEBRUARY 5, 1962, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.