B-150323, FEB. 7, 1963

B-150323, FEB. 7, 1963

TO MAJOR GENERAL JOSEPH D. CALDARA, USAF:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1962, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT OF OCTOBER 29, 1962, WHICH DISALLOWED YOUR CLAIM FOR A LUMP-SUM BONUS FOR ACTIVE MILITARY SERVICE PERFORMED AS AN AIR CORPS RESERVE OFFICER FOR THE PERIOD FROM FEBRUARY 3, 1941, THROUGH JULY 9, 1946.

YOUR CLAIM WAS DISALLOWED ON THE GROUND THAT PAYMENT WAS PRECLUDED BY THE PROVISIONS OF THE ACT OF JUNE 16, 1936, AS AMENDED, 10 U.S.C. 300A, SINCE YOU WERE INTEGRATED INTO THE REGULAR ARMY AS A CAPTAIN, AIR CORPS, ON JULY 10, 1946. YOU SAY THAT YOU KNOW OF RESERVE OFFICERS WHO WERE PAID THE LUMP-SUM BONUS IN 1946 IMMEDIATELY PRIOR TO THEIR RECEIVING A COMMISSION IN THE REGULAR ARMY.

SECTION 2 OF THE ACT OF JUNE 16, 1936, CH. 587, 49 STAT. 1524, AS AMENDED, 10 U.S.C. (1946 ED.) 300A, READ AS FOLLOWS:

"WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS 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, AND IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON HIS OWN REQUEST, OR AS A RESULT OF INEFFICIENT OR UNSATISFACTORY SERVICE AS DETERMINED BY THE SECRETARY OF WAR, SUCH LUMP-SUM PAYMENT SHALL BE PRO-RATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE. THE LUMP-SUM PAYMENTS AUTHORIZED BY THIS SECTION SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE.'

SUCH STATUTORY PROVISIONS, WHICH CLEARLY PROHIBITED THE PAYMENT OF THE LUMP-SUM BONUS TO AIR CORPS RESERVE OFFICERS WHO WERE SELECTED FOR COMMISSION IN THE REGULAR ARMY, MAY NOT BE WAIVED OR MODIFIED BY ANY DEPARTMENT OF OFFICE OF THE GOVERNMENT OR BY ANY GOVERNMENT OFFICIAL. OUR DECISION OF DECEMBER 5, 1944, 24 COMP. GEN. 423, 428, WE POINTED OUT THAT IT WAS THE EXPRESSED INTENT OF THE CONGRESS, AS STATED IN THE LEGISLATIVE REPORTS, THAT THE PAYMENTS AUTHORIZED BY THOSE STATUTORY PROVISIONS WERE TO PROVIDE FOR THE IMMEDIATE NEEDS OF AIR CORPS RESERVE OFFICERS UPON RETURN TO CIVIL LIFE, WHICH NEEDS DID NOT EXIST IN THE CASE OF OFFICERS PERMANENTLY APPOINTED IN THE REGULAR ARMY DURING A TOUR OF ACTIVE DUTY OR UPON THE EXPIRATION OF SUCH A TOUR OF ACTIVE DUTY.

WITH REGARD TO YOUR STATEMENT THAT YOU KNOW OF OTHER RESERVE OFFICERS WHO WERE PAID THE LUMP-SUM BONUS IN 1946 IMMEDIATELY PRIOR TO THEIR RECEIVING A COMMISSION IN THE REGULAR ARMY, IT MAY BE STATED THAT IF SUCH PAYMENTS WERE MADE IN CIRCUMSTANCES IDENTICAL TO YOURS, THEY WERE ERRONEOUS AND COULD AFFORD NO BASIS FOR A LIKE PAYMENT TO YOU.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF OCTOBER 29, 1962, IS SUSTAINED.