B-155353, NOV. 24, 1964

B-155353: Nov 24, 1964

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PICKETT: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24. YOU WERE INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER HAVING COMPLETED A TOTAL OF 5 YEARS. IT FURTHER APPEARS THAT YOU HAVE BEEN PAID THE AMOUNT OF READJUSTMENT PAY DUE YOU UNDER THE ACT OF JULY 9. PROVIDED THAT MEMBERS OF RESERVE COMPONENTS WHO WERE INVOLUNTARILY RELEASED FROM ACTIVE DUTY. SUCH PAYMENT WAS AUTHORIZED TO BE COMPUTED ON THE BASIS OF 1/2 OF 1 MONTH'S BASIC PAY IN THE GRADE IN WHICH THE MEMBER WAS SERVING AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. THE COURT WAS CONCERNED WITH WHETHER OR NOT THE LANGUAGE OF THE ACT OF JULY 9. ON THE BASIS OF THE COURT'S DECISION THAT HE WAS ENTITLED TO COMBINE SUCH CONTINUOUS SERVICE.

B-155353, NOV. 24, 1964

TO STAFF SERGEANT CHARLES N. PICKETT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL READJUSTMENT PAY UNDER THE PROVISIONS OF SECTION 265/A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, AND AMENDED BY SUBSECTION 1/1) OF THE ACT OF JUNE 28, 1962, PUB.L. 87-509, 76 STAT. 120.

THE RECORDS SHOW THAT YOU ENLISTED IN THE REGULAR AIR FORCE ON AUGUST 11, 1952, AND THAT YOU SERVED AS AN ENLISTED MAN UNTIL MARCH 23, 1954, WHEN YOU ACCEPTED A COMMISSION IN THE AIR FORCE RESERVE. YOU ENTERED ON EXTENDED ACTIVE DUTY AS A RESERVE OFFICER ON MARCH 24, 1954. ON JANUARY 31, 1958, YOU WERE INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER HAVING COMPLETED A TOTAL OF 5 YEARS, 5 MONTHS AND 20 DAYS OF CONTINUOUS ACTIVE SERVICE. IT FURTHER APPEARS THAT YOU HAVE BEEN PAID THE AMOUNT OF READJUSTMENT PAY DUE YOU UNDER THE ACT OF JULY 9, 1956. YOU REQUEST THAT YOUR CLAIM FOR ADDITIONAL READJUSTMENT PAY UNDER PUB.L. 87-509 BE REVIEWED IN THE LIGHT OF OUR DECISION DATED SEPTEMBER 10, 1963, B-128741, 43 COMP. GEN. 240.

SECTION 265/A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, PROVIDED THAT MEMBERS OF RESERVE COMPONENTS WHO WERE INVOLUNTARILY RELEASED FROM ACTIVE DUTY, AFTER HAVING COMPLETED 5 YEARS OF CONTINUOUS ACTIVE DUTY, SHALL BE ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT. SUCH PAYMENT WAS AUTHORIZED TO BE COMPUTED ON THE BASIS OF 1/2 OF 1 MONTH'S BASIC PAY IN THE GRADE IN WHICH THE MEMBER WAS SERVING AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, FOR EACH YEAR OF ACTIVE SERVICE.

IN THE CASE OF WASHBURN V. UNITED STATES, CT.CL. NO. 11-62, DECIDED MARCH 6, 1963, THE COURT WAS CONCERNED WITH WHETHER OR NOT THE LANGUAGE OF THE ACT OF JULY 9, 1956, INTENDED THAT A MEMBER OF A RESERVE COMPONENT SHOULD BE PERMITTED TO COMBINE HIS ACTIVE SERVICE IN A REGULAR COMPONENT WITH HIS ACTIVE SERVICE IN A RESERVE COMPONENT TO ESTABLISH HIS ELIGIBILITY FOR READJUSTMENT PAY UNDER THE 1956 LAW. WASHBURN SERVED AS AN ENLISTED MAN IN THE REGULAR AIR FORCE PRIOR TO JANUARY 26, 1954, WHEN HE ACCEPTED A COMMISSION IN THE AIR FORCE RESERVE. HE SERVED AS A RESERVE OFFICER UNTIL JANUARY 31, 1958. ON THE BASIS OF THE COURT'S DECISION THAT HE WAS ENTITLED TO COMBINE SUCH CONTINUOUS SERVICE, FOR READJUSTMENT PAY PURPOSES, HE WAS PAID READJUSTMENT PAY. THE PAYMENT WAS COMPUTED ON THE BASIS OF 1/2 OF 1 MONTH'S BASIC PAY OF THE GRADE IN WHICH HE WAS SERVING AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY ON JANUARY 31, 1958, FOR EACH YEAR OF ACTIVE SERVICE, AS PROVIDED BY THE ACT OF JULY 9, 1956. IN OUR DECISION OF SEPTEMBER 10, 1963, B-128741, WE STATED THAT WE WOULD FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE WASHBURN CASE IN THE SETTLEMENT OF SIMILAR CLAIMS. THE QUESTION OF WHETHER MEMBERS IN YOUR CATEGORY ARE ENTITLED TO ADDITIONAL READJUSTMENT PAY UNDER PUB.L. 87-509 WAS NOT CONSIDERED IN OUR DECISION OF SEPTEMBER 10, 1963, AND, CONTRARY TO YOUR BELIEF, THAT DECISION CONTAINS NO STATEMENT DIRECTING THAT OTHER PERSONS SIMILARLY SITUATED SHOULD "SUBMIT THEIR CLAIMS UNDER PUBLIC LAW 87-509 AS AMENDED 28 JUNE 1962.' IT IS CLEAR THAT YOU ARE NOT ENTITLED TO ANY ADDITIONAL READJUSTMENT PAY UNDER THE DECISION OF THE COURT OF CLAIMS IN THE WASHBURN CASE.

FOR AN INDIVIDUAL TO BE ENTITLED TO COMPUTE HIS READJUSTMENT PAY UNDER SUBSECTION 1/1) OF PUB.L. 87-509, APPROVED JUNE 28, 1962, HE MUST HAVE BEEN "RELEASED FROM ACTIVE DUTY AFTER THE DATE OF ENACTMENT OF THIS AMENDED SUBSECTION.' THE CIRCUMSTANCE THAT IT WAS NOT DETERMINED THAT YOU WERE ENTITLED TO PAYMENT OF READJUSTMENT PAY--- UNDER THE PROVISIONS OF THE ACT OF JULY 9, 1956--- UNTIL SEPTEMBER 10, 1963, DID NOT CHANGE THE FACT THAT YOU WERE RELEASED FROM ACTIVE DUTY ON JANUARY 31, 1958. SINCE YOU WERE NOT RELEASED FROM ACTIVE DUTY AFTER THE DATE OF ENACTMENT OF PUB.L. 87-509, YOU ARE NOT ENTITLED TO HAVE YOUR READJUSTMENT PAY RECOMPUTED UNDER THE PROVISIONS OF THAT ACT.

ACCORDINGLY THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.