B-151062, APR. 22, 1963

B-151062, APR. 22, 1963

TO WILLIAM E. HRICINAK, CWO, U.S. ARMY, RETIRED:

YOUR LETTER OF FEBRUARY 28, 1963, REQUESTS REVIEW OF SETTLEMENT DATED FEBRUARY 26, 1963, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE ON JANUARY 31, 1951. YOU POINT OUT THAT YOUR CLAIM FOR MUSTERING-OUT PAY IS BASED ON YOUR RELEASE FROM ACTIVE DUTY AS WARRANT OFFICER ON MAY 31, 1959.

YOU SAY THAT YOU SERVED CONTINUOUSLY IN THE U.S. ARMY FROM APRIL 13, 1937, TO JULY 31, 1959; THAT WHILE SERVING AS CHIEF WARRANT OFFICER, W-3, YOU WERE ADVISED BY LETTER OF NOVEMBER 12, 1958, THAT YOU WOULD BE RELEASED FROM ACTIVE DUTY FOR MAXIMUM SERVICE MAY 31, 1959; THAT YOU REQUESTED ADJUSTMENT OF RELEASE DATE, SINCE YOU WOULD BE ELIGIBLE FOR PROMOTION TO THE GRADE OF W-4 ON JULY 1, 1959; THAT THIS REQUEST WAS NOT FAVORABLY CONSIDERED; AND THAT YOU WERE ADVISED BY THE ADJUTANT GENERAL THAT YOU COULD BE RELIEVED FROM ACTIVE DUTY AND, AFTER PROMOTION IN THE ARMY RESERVE, YOU THEN COULD SUBMIT A REQUEST FOR RETIREMENT.

BY SPECIAL ORDERS NO. 80, DATED MAY 22, 1959, YOU WERE RELIEVED FROM ASSIGNMENT TO HEADQUARTERS, UNITED STATES CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, AND REASSIGNED TO TRANSFER POINT 2124 FOR RELIEF FROM ACTIVE DUTY, EFFECTIVE MAY 26, 1959. SPECIAL ORDERS NO. 90, DATED MAY 8, 1959, RELIEVED YOU FROM ASSIGNMENT TO TRANSFER POINT 2124 AND FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY, UNDER AUTHORITY OF SECTION V, AR 135-173, AND YOU REVERTED TO INACTIVE STATUS, EFFECTIVE MAY 31, 1959. IT IS FOR THIS SEPARATION THAT YOU BELIEVE YOU ARE ENTITLED TO MUSTERING- OUT PAY RATHER THAN YOUR DISCHARGE ON JANUARY 31, 1951, ON WHICH SETTLEMENT OF FEBRUARY 26, 1963, WAS BASED.

YOUR CLAIM HAS BEEN DISALLOWED BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT, SINCE YOU WERE RELIEVED FROM ACTIVE DUTY ON MAY 31, 1959, WITH MAXIMUM SERVICE, AND WERE THEN ELIGIBLE FOR RETIREMENT AND IT THUS APPEARED THAT YOUR ENLISTMENT ON JUNE 1, 1959, WAS FOR THE SOLE PURPOSE OF RETIREMENT ON JULY 31, 1959, IN THE GRADE TO WHICH YOU WERE PROMOTED IN THE RESERVES, YOU ARE NOT ENTITLED TO MUSTERING-OUT PAY UNDER THE PROVISIONS OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952.

IN YOUR LETTER DATED NOVEMBER 16, 1962, YOU SAY THAT AT THE TIME OF NOTIFICATION OF YOUR IMPENDING RELEASE, YOUR INITIAL INTENTION WAS TO RETIRE, AS YOUR WIFE DESIRED TO SETTLE IN ONE PLACE AND NOT BE REQUIRED TO TRAVEL AROUND BY REMAINING IN THE ARMY; THAT YOUR WIFE BECAME ILL ON JANUARY 13, 1959, AND DIED ON APRIL 15, 1959; THAT THEREAFTER YOU DECIDED TO ACCEPT RELIEF FROM ACTIVE DUTY AS A WARRANT OFFICER, REENLIST IN YOUR PERMANENT GRADE OF MASTER SERGEANT, E-7, AND REMAIN IN THE ARMY; THAT YOU WERE ENTITLED TO MUSTERING-OUT PAY WHEN YOU WERE RELEASED ON MAY 31, 1959, BUT YOU DID NOT THINK OF IT AT THE TIME BECAUSE OF PERSONNEL PROBLEMS DUE TO YOUR WIFE'S RECENT DEATH; AND THAT LATER, AFTER ANALYZING YOUR FINANCIAL STATUS, YOU DECIDED TO APPLY FOR RETIREMENT. THUS YOU URGE THAT THE CONCLUSION THAT YOUR ENLISTMENT WAS FOR THE SOLE PURPOSE OF ENLISTING TO BE RETIRED ON JULY 31, 1959, IS NOT SUBSTANTIATED.

YOUR CLAIM IS FOR CONSIDERATION UNDER THE TERMS OF 38 U.S.C. 2104, WHICH PROVIDES IN PART AS FOLLOWS:

"* * * NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAY UNDER THIS CHAPTER MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.'

THE PRIMARY PURPOSE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, APPROVED FEBRUARY 3, 1944, CH. 9, 58 STAT. 8, WAS TO AID MEMBERS OF THE ARMED FORCES IN THEIR READJUSTMENT TO CIVILIAN LIFE UPON THEIR DISCHARGE OR RELEASE FROM ACTIVE MILITARY SERVICE. THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 538, SECTION 7 (B) OF WHICH IS THE SOURCE OF THE PHRASE, "OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES" HAD AS ITS GENERAL PURPOSE THE STIMULATION OF VOLUNTARY ENLISTMENTS IN THE REGULAR MILITARY AND NAVAL ESTABLISHMENTS OF THE UNITED STATES. THE LEGISLATIVE HISTORY OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, APPROVED JULY 16, 1952, CH. 875, 66 STAT. 663, DISCLOSES THAT THE CONGRESS CONSIDERED THE MUSTERING- OUT PAY PROVISIONS OF THE ACT (TITLE V, 66 STAT. 688) TO BE COMPARABLE IN INTENT AND PURPOSE TO THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED.

PRIOR TO THE 1945 AMENDMENT, MUSTERING-OUT PAYMENTS COULD BE RECEIVED BY ELIGIBLE PERSONNEL ONLY UPON PERMANENT SEPARATION FROM THE SERVICE OR UPON ULTIMATE RELIEF FROM ACTIVE DUTY IN THE ARMED FORCES, THAT IS, UPON THEIR RETURN TO CIVILIAN LIFE. THE 1945 AMENDMENT PERMITTED PAYMENT TO BE RECEIVED BY ELIGIBLE PERSONS IF THEY SO ELECTED WHEN THEY ENLISTED, REENLISTED, OR WERE APPOINTED IN THE REGULAR COMPONENTS OF THE ARMED FORCES AND SO PAYMENT OF MUSTERING-OUT PAY WAS ACCELERATED AND PERMITTED TO BE MADE WHERE THERE WAS AN ACTUAL SEPARATION FROM THE SERVICE AND A CONTINUATION OF SERVICE UNDER A NEW ENLISTMENT, REENLISTMENT, OR APPOINTMENT. THE ASPECT OF READJUSTMENT TO CIVILIAN LIFE WAS TO THAT EXTENT REMOVED AND, AS AN INDUCEMENT FOR RESERVISTS AND REGULARS TO MAKE THE MILITARY SERVICE A CAREER, MUSTERING-OUT PAYMENTS WERE ALLOWED EVEN THOUGH THE MEMBERS CONTINUED WITHOUT BREAK IN THEIR ACTIVE MILITARY SERVICE SO LONG AS THERE WAS AN ACTUAL SEPARATION OR MUSTERING-OUT OF THE SERVICE IN WHICH THEY HAD BEEN SERVING.

HOWEVER, IT WAS PROVIDED IN SECTION 501 (B) (2) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 (NOW CODIFIED IN 38 U.S.C. 2101 (B) (2) ( 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; EXCEPT THAT THIS PROHIBITION SHALL NOT APPLY UPON RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY.

AT THE TIME OF YOUR SEPARATION FOR MAXIMUM SERVICE ON MAY 31, 1959, YOU WERE ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1293 IN THE GRADE OF W-3, IN WHICH YOU HAVE BEEN SERVING. HOWEVER, YOU STATE THAT YOU WERE DUE FOR PROMOTION TO THE GRADE OF W-4 ON JULY 1, 1959, AND BY DELAYING YOUR APPLICATION FOR RETIREMENT UNTIL YOUR PROMOTION IN THE RESERVES BECAME EFFECTIVE, YOU WOULD THEN HAVE BEEN ENTITLED TO RETIRED IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE HELD BY YOU ON THE DAY BEFORE THE DATE OF YOUR RETIREMENT (CHIEF WARRANT OFFICER, W-4).

THE FACTS IN THIS CASE CLEARLY DISCLOSE THAT YOUR RETIREMENT WAS APPLIED FOR AND BECAME EFFECTIVE AS SOON AS POSSIBLE UNDER THE LAW AFTER YOUR PROMOTION IN THE RESERVES TO THE GRADE OF W-4 AND YOU WERE DISCHARGED FROM THE REGULAR SERVICE AS MASTER SERGEANT IN ORDER THAT YOU COULD RECEIVE RETIRED PAY. YOUR ENLISTMENT OF JUNE 1, 1959, IN THE REGULAR SERVICE AS MASTER SERGEANT, E-7, UPON YOUR RELEASE FROM ACTIVE DUTY FOR MAXIMUM SERVICE IN THE GRADE OF W-3 ON MAY 31, 1959, AND YOUR SUBSEQUENT RETIREMENT ACCOMPLISHED YOUR PREVIOUSLY EXPRESSED DESIRE TO RETIRE WITHOUT BREAK IN ACTIVE SERVICE AS SOON AS POSSIBLE AFTER YOUR PROMOTION TO W-4 IN THE RESERVES BECAME EFFECTIVE. SUCH ENLISTMENT HAS THE APPEARANCE OF BEING RETIRED IN THE HIGHER GRADE TO WHICH YOU WERE PROMOTED AND NOT AN ENLISTMENT FOR THE PURPOSE OF CONTINUING A MILITARY CAREER. IN THE CIRCUMSTANCES, YOUR SELF-SERVING EXPRESSION OF INTENTION TO THE CONTRARY, MADE OVER TWO YEARS AFTER THE EVENTS INVOLVED, DOES NOT FURNISH SUFFICIENT BASIS FOR AN OPPOSITE POINT OF VIEW. ACCORDINGLY, IT IS CONCLUDED THAT PAYMENT OF MUSTERING-OUT PAY IS PRECLUDED IN YOUR CASE UNDER THE INTENT AND PURPOSE OF 38 U.S.C. 2101 (B) (2) AND NO AMOUNT IS FOUND DUE FROM THE UNITED STATES AS MUSTERING-OUT PAY.