B-148684, JUL. 2, 1962

B-148684, JUL. 2, 1962

TO MAJOR ROBERT P. TOMLINSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1962, RELATIVE TO YOUR CLAIM FOR REFUND OF $300 REPRESENTING MUSTERING-OUT PAY PAID TO YOU IN 1956 AND SUBSEQUENTLY WITHHELD FROM YOU PAY AND ALLOWANCES.

YOU WERE ORDERED TO ACTIVE DUTY AS FIRST LIEUTENANT EFFECTIVE JULY 2, 1950, BY PARAGRAPH 19, SPECIAL ORDERS NO. 106, DATED JUNE 1, 1950. THE ORDERS SPECIFIED THAT THE APPOINTMENT AND COMMISSION WERE IN THE ARMY OF THE UNITED STATES IN THE AUS GRADE INDICATED AND THAT THE APPOINTMENT WOULD REMAIN IN EFFECT DURING THAT TOUR OF ACTIVE DUTY AND WOULD TERMINATE IMMEDIATELY UPON RELIEF THEREFROM. IT ALSO STATED THAT YOU WERE DETAILED TO THE OFFICE OF THE JUDGE ADVOCATE GENERAL FOR ONE YEAR FOR THE PURPOSE OF QUALIFYING FOR A REGULAR ARMY COMMISSION. BY PARAGRAPH 61, SPECIAL ORDERS NO. 189, DATED SEPTEMBER 19, 1951, YOU WERE APPOINTED IN THE REGULAR ARMY AS FIRST LIEUTENANT. THE ORDERS STATED THAT THE ACCEPTANCE OF THE APPOINTMENT WOULD NOT AFFECT A HIGHER GRADE, INCLUDING A MORE SENIOR DATE OF RANK WHEN THE TEMPORARY AND PERMANENT GRADES WHERE THE SAME IN WHICH YOU MIGHT BE SERVING ON EXTENDED ACTIVE DUTY AT THE TIME OF ACCEPTANCE PROVIDED SUCH GRADE WAS HELD IN THE STATUS OF THE AUS WITHOUT COMPONENT. THUS, YOUR ORDERS APPARENTLY PROVIDED FOR CONTINUATION OF YOUR AUS STATUS UPON ACCEPTANCE OF APPOINTMENT IN THE REGULAR ARMY. THE U.S. ARMY REGISTER SHOWS THE APPOINTMENT WAS ACCEPTED OCTOBER 29, 1951. YOU WERE PAID $300 MUSTERING-OUT PAY ON THE BASIS OF YOUR INTEGRATION IN THE REGULAR ARMY. SINCE IT DID NOT APPEAR THAT YOU WERE RELEASED FROM ACTIVE DUTY UNDER YOUR AUS COMMISSION FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR ARMY, WE TOOK EXCEPTION TO THE PAYMENT AND THE AMOUNT WAS COLLECTED FROM YOU BY DEDUCTIONS FROM YOUR PAY IN 1958 AND 1959.

WHILE, AS SUGGESTED BY YOU, YOUR CASE IS NOT IDENTICAL WITH 36 COMP. GEN. 645, CITED BY OUR CLAIMS DIVISION IN LETTER OF APRIL 3, 1962, IT IS SIMILAR TO OTHER CASES IN WHICH COLLECTION WAS MADE IN THAT THERE WAS NO APPARENT BREAK IN SERVICE WHEN THE MEMBER WAS INTEGRATED INTO THE REGULAR ARMY. SEE 37 COMP. GEN. 394. HOWEVER, IN THE CASE OF DOWLING V. UNITED STATES, CT.CL.NO. 174-60, DECIDED FEBRUARY 7, 1962, THE COURT OF CLAIMS TOOK THE POSITION THAT THE CASE SHOULD NOT TURN ON WHETHER THERE WAS A "BREAK" IN THE PLAINTIFF'S MILITARY SERVICE. RATHER, IT SAID ITS ATTENTION SHOULD BE DIRECTED TO DETERMINING THE PROBABLE PURPOSE OF CONGRESS WHEN IT INCLUDED IN SECTION 502 (B) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 689, PROVISIONS AFFORDING PERSONS WHO WOULD BE ELIGIBLE TO RECEIVE MUSTERING OUT PAY UPON FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE, THE OPTION TO RECEIVE SUCH PAY AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES. THE COURT CONCLUDED THAT A MUSTERING OUT PAYMENT IS AUTHORIZED UPON ENLISTMENT, REENLISTMENT OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES EVEN THOUGH THE MEMBER CONCERNED WAS SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT (WITHOUT COMPONENT) BEFORE HIS REGULAR APPOINTMENT AND CONTINUED TO SO SERVE AFTER HIS APPOINTMENT IN THE REGULAR COMPONENT.

BY DECISION B-139107 OF JUNE 21, 1962, COPY ENCLOSED, WE ADVISED THE SECRETARY OF DEFENSE WE WOULD FOLLOW THE DOWLING CASE IN SIMILAR CASES AND IN CASES WHERE THE OFFICER HELD ONLY AN APPOINTMENT IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, AT THE TIME OF APPOINTMENT TO A REGULAR COMPONENT. IN VIEW OF THAT DECISION, IT IS ASSUMED THE DEPARTMENT OF THE ARMY WILL EFFECT REFUND IN YOUR CASE AND ANY FURTHER INQUIRY CONCERNING THE MATTER SHOULD BE DIRECTED TO THAT DEPARTMENT.