B-150147, NOV. 9, 1962

B-150147: Nov 9, 1962

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DUNN: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1. ON THE LATTER DATE YOU WERE RETIRED FROM THE ARMY. IT IS YOUR VIEW THAT WHILE YOU WERE NOT ENTITLED TO MUSTERING-OUT PAY UPON RETIREMENT. YOU WERE ENTITLED TO SUCH PAYMENT BASED "ON SERVICE IN 1951.'. THE COURT OF CLAIMS TOOK THE POSITION THAT THE CASE SHOULD NOT TURN ON THE QUESTION OF WHETHER THERE WAS A "BREAK" IN THE PLAINTIFF'S MILITARY SERVICE. THE COURT CONCLUDED THAT A MUSTERING-OUT PAYMENT IS AUTHORIZED UPON ENLISTMENT. 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 A REGULAR COMPONENT.

B-150147, NOV. 9, 1962

TO MR. CHARLES C. DUNN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1962, REQUESTING REVIEW OF SETTLEMENT OF APRIL 30, 1957, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING- OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE ARMY ON MARCH 13, 1951, FOR THE PURPOSE OF ENTERING ON EXTENDED ACTIVE DUTY AS A RESERVE OFFICER.

IT APPEARS THAT YOU SERVED CONTINUOUSLY AS A COMMISSIONED OFFICER FROM MARCH 14, 1951, UNTIL SEPTEMBER 30, 1962. ON THE LATTER DATE YOU WERE RETIRED FROM THE ARMY, UNDER THE PROVISIONS OF 10 U.S.C. 3911, AFTER MORE THAN 20 YEARS OF ACTIVE FEDERAL SERVICE, PURSUANT TO DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 210, DATED AUGUST 30, 1962. IT IS YOUR VIEW THAT WHILE YOU WERE NOT ENTITLED TO MUSTERING-OUT PAY UPON RETIREMENT, YOU WERE ENTITLED TO SUCH PAYMENT BASED "ON SERVICE IN 1951.' YOU REFER TO DEPARTMENT OF THE ARMY CIRCULAR NO. 35-5, DATED JULY 20, 1962, IN SUPPORT OF YOUR CLAIM.

IN THE CASE OF DOWLING V. UNITED STATES, CT.CL. NO. 174-60, DECIDED FEBRUARY 7, 1962, A CASE INVOLVING A QUESTION OF ENTITLEMENT TO MUSTERING- OUT PAY, THE COURT OF CLAIMS TOOK THE POSITION THAT THE CASE SHOULD NOT TURN ON THE QUESTION OF WHETHER THERE WAS A "BREAK" IN THE PLAINTIFF'S MILITARY SERVICE. IT SAID IN ITS DECISION THAT 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 A REGULAR COMPONENT. BY DECISION B-139107 OF JUNE 21, 1962, WE ADVISED THE SECRETARY OF DEFENSE THAT 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. DEPARTMENT OF THE ARMY CIRCULAR NO. 35-5 CONTAINED INSTRUCTIONS RELATING TO THE PAYMENT OF CLAIMS OF MEMBERS ENTITLED TO MUSTERING-OUT PAY UNDER OUR DECISION OF JUNE 21, 1962. SINCE YOU WERE NOT DISCHARGED OR RELEASED FROM ACTIVE DUTY FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES, OUR DECISION OF JUNE 21, 1962, FURNISHES NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950, WAS AUTHORIZED UNDER THE CONDITIONS SPECIFIED IN TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, CH. 875, 66 STAT. 688. THE PROVISIONS OF SECTION 502 (B) OF THAT ACT WHICH GOVERN YOUR RIGHTS IN THE PREMISES AUTHORIZED PAYMENT OF SUCH PAY TO THE PERSON CONCERNED "AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.' WHILE YOU HAVE EXPRESSED THE BELIEF THAT YOU WERE PENALIZED FOR GETTING A PROMOTION TO LIEUTENANT IN 1951 AND STATE THAT IF YOU HAD WAITED UNTIL YOUR TERM OF ENLISTMENT EXPIRED IN JANUARY 1952 AND THEN REENLISTED, YOU WOULD HAVE RECEIVED MUSTERING-OUT PAY, THE FACT REMAINS THAT YOU WERE DISCHARGED FROM THE ARMY ON MARCH 13, 1951, NOT FOR THE PURPOSE OF CONTINUING YOUR MILITARY CAREER IN A REGULAR COMPONENT, BUT TO ENTER ON EXTENDED ACTIVE DUTY AS A RESERVE OFFICER. NO PROVISION OF LAW HAS BEEN ENACTED WHICH DIRECTED THE PAYMENT OF MUSTERING-OUT PAY IN SUCH CIRCUMSTANCES AND SINCE YOU HAVE NOT MET THE TERMS OF THE STATUTE WHICH AUTHORIZED THE PAYMENT OF SUCH PAY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE DISALLOWANCE OF SUCH CLAIM IS SUSTAINED.