B-151732, AUG. 30, 1963

B-151732: Aug 30, 1963

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INFANTRY: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21. IN EFFECT REQUESTING CANCELLATION OF NOTICE OF EXCEPTION TO THE VOUCHER ON WHICH $300 WAS PAID YOU FOR MUSTERING-OUT PAY INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY. WHEN YOU WERE DISCHARGED TO ACCEPT AN APPOINTMENT THE NEXT DAY AS A SECOND LIEUTENANT IN A RESERVE COMPONENT. TO ACCEPT A COMMISSION IN A RESERVE COMPONENT WAS NOT ONE ENTITLING YOU TO MUSTERING-OUT PAY. WAS A BAR TO PAYMENT OF MUSTERING-OUT PAY UPON A LATER DISCHARGE OR RELIEF FROM ACTIVE DUTY. YOU SAY THAT YOUR APPEAL TO THE REQUIREMENT FOR THE REPAYMENT OF THE MUSTERING -OUT PAY IS BASED ON THE DECISION OF THE COMPTROLLER GENERAL IN THE CASE OF DOWLING V. EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE ON OR AFTER JUNE 27.

B-151732, AUG. 30, 1963

TO CAPTAIN JAMES W. BRAMLET, INFANTRY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1963, IN EFFECT REQUESTING CANCELLATION OF NOTICE OF EXCEPTION TO THE VOUCHER ON WHICH $300 WAS PAID YOU FOR MUSTERING-OUT PAY INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY, AND TO YOUR INQUIRY OF AUGUST 19, 1963, CONCERNING THE MATTER.

THE RECORD SHOWS THAT YOU SERVED AS AN ENLISTED MAN IN THE REGULAR ARMY FROM OCTOBER 6, 1954, TO MAY 28, 1956, WHEN YOU WERE DISCHARGED TO ACCEPT AN APPOINTMENT THE NEXT DAY AS A SECOND LIEUTENANT IN A RESERVE COMPONENT. ON JANUARY 27, 1958, YOU ACCEPTED AN APPOINTMENT AS A SECOND LIEUTENANT IN THE REGULAR ARMY WITH DATE OF RANK FROM MAY 29, 1956. OUR OFFICE TOOK EXCEPTION TO THE PAYMENT OF $300 TO YOU IN OCTOBER 1962 FOR MUSTERING-OUT PAY FOR THE REASONS THAT YOUR DISCHARGE FROM AN ENLISTED STATUS ON MAY 28, 1956, TO ACCEPT A COMMISSION IN A RESERVE COMPONENT WAS NOT ONE ENTITLING YOU TO MUSTERING-OUT PAY, AND YOUR ACCEPTANCE OF THE RESERVE COMMISSION SUBSEQUENT TO JANUARY 31, 1955, WAS A BAR TO PAYMENT OF MUSTERING-OUT PAY UPON A LATER DISCHARGE OR RELIEF FROM ACTIVE DUTY. YOU SAY THAT YOUR APPEAL TO THE REQUIREMENT FOR THE REPAYMENT OF THE MUSTERING -OUT PAY IS BASED ON THE DECISION OF THE COMPTROLLER GENERAL IN THE CASE OF DOWLING V. UNITED STATES, CT.CL. NO. 174-60, DECIDED FEBRUARY 7, 1962.

SECTION 501 (A) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011 (A) (1952 ED.), PROVIDES THAT, EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE ON OR AFTER JUNE 27, 1950, AND PRIOR TO SUCH DATE AS SHALL BE DETERMINED BY PRESIDENTIAL PROCLAMATION OR CONCURRENT RESOLUTION OF THE CONGRESS, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT. SECTION 502 OF THE ACT (38 U.S.C. 1012) AUTHORIZES PAYMENT OF THE MUSTERING-OUT PAYMENTS TO THOSE ELIGIBLE UNDER SECTION 501 INCIDENT TO FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE, OR AT THE OPTION OF THE PERSON SO ELIGIBLE, 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 OF CLAIMS HELD IN THE DOWLING CASE THAT UNDER THE PROVISIONS OF THIS ACT RESERVISTS SERVING ON ACTIVE DUTY IN A TEMPORARY OFFICER (WITHOUT COMPONENT) STATUS ARE ENTITLED TO A MUSTERING-OUT PAYMENT INCIDENT TO AN APPOINTMENT IN A REGULAR COMPONENT. BY DECISION OF JUNE 21, 1962, B- 139107, 41 COMP. GEN. 812, WE ADVISED THE SECRETARY OF DEFENSE THAT WE WOULD ACCEPT AND FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE DOWLING CASE IN THE AUDIT OF ACCOUNTS AND THE SETTLEMENT OF CLAIMS INVOLVING MUSTERING-OUT PAYMENTS.

THE PRESIDENT, BY PROCLAMATION NO. 3080, DATED JANUARY 1, 1955, DETERMINED THAT MEMBERS ENGAGED IN ACTIVE SERVICE ON OR AFTER JUNE 27, 1950, MUST HAVE SO SERVED PRIOR TO FEBRUARY 1, 1955, IN ORDER TO BE ELIGIBLE FOR MUSTERING-OUT PAY UNDER THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952. IN YOUR CASE, WHEN YOU ACCEPTED THE APPOINTMENT AS AN OFFICER IN THE REGULAR ARMY YOU TERMINATED YOUR ACTIVE DUTY AS A RESERVE OFFICER ON WHICH YOU HAD ENTERED MAY 29, 1956. THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 AND THE PRESIDENT'S PROCLAMATION REQUIRE THAT A MEMBER MUST HAVE SERVED IN THE RESERVE STATUS PRIOR TO FEBRUARY 1, 1955, IN ORDER TO BE ENTITLED TO MUSTERING-OUT PAY AND THE DOWLING DECISION HAD NO BEARING ON THIS REQUIREMENT. ALSO, YOUR DISCHARGE FROM AN ENLISTED STATUS ON MAY 28, 1956, TO ACCEPT AN APPOINTMENT AS A RESERVE OFFICER TERMINATED ANY RIGHT TO MUSTERING-OUT PAY YOU MIGHT HAVE DERIVED FROM SUCH STATUS.

ACCORDINGLY, SINCE YOU DID NOT SERVE IN YOUR RESERVE STATUS PRIOR TO FEBRUARY 1, 1955, AND SINCE YOUR DISCHARGE ON MAY 28, 1956, TO ACCEPT A RESERVE COMMISSION DID NOT ENTITLE YOU TO MUSTERING-OUT PAY, THE AUDIT EXCEPTION TO THE MUSTERING-OUT PAYMENT APPEARS TO HAVE BEEN PROPERLY TAKEN AND MAY NOT BE CANCELED.

INASMUCH AS COLLECTION OF YOUR INDEBTEDNESS IS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE ARMY, PAYMENT SHOULD BE MADE TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA.