B-157639, SEP. 30, 1965

B-157639, SEP. 30, 1965

TO LIEUTENANT COLONEL DONALD G. BUCHHOLZ, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 24, 1965, CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY.

THE RECORD DISCLOSES THAT YOU SERVED IN THE ARMY AS AN ENLISTED MAN FROM DECEMBER 2, 1942, TO SEPTEMBER 30, 1944; THAT EFFECTIVE SEPTEMBER 30, 1944, YOU WERE GIVEN A TEMPORARY APPOINTMENT (AUS) AS SECOND LIEUTENANT AND YOU SERVED CONTINUOUSLY ON ACTIVE DUTY IN VARIOUS COMMISSIONED GRADES UNTIL, ON MARCH 11, 1958, YOU WERE INTEGRATED INTO THE REGULAR AIR FORCE IN THE GRADE OF CAPTAIN UNDER THE PROVISIONS OF THE ARMED FORCES REGULAR OFFICER AUGMENTATION ACT OF 1956, APPROVED JULY 20, 1956, CH. 646, 70 STAT. 582, PURSUANT TO SPECIAL ORDERS NO. A 87, DATED JANUARY 31, 1958.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR RESERVE STATUS WAS TERMINATED UPON YOUR ACCEPTANCE OF AN APPOINTMENT IN THE REGULAR AIR FORCE ON MARCH 11, 1958, AND THE PROVISIONS OF LAW CURRENTLY APPLICABLE (38 U.S.C. 2101 (B) (1) ( PROVIDE THAT NO MUSTERING-OUT PAYMENT SHALL BE MADE TO ANY MEMBER OF THE ARMED FORCES IF HE IS A COMMISSIONED OFFICER UNLESS HE IS DISCHARGED OR RELEASED BEFORE JANUARY 31, 1958.

THE BASIS ON WHICH YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM UNDER OUR DECISION B-139107 OF JUNE 21, 1962, 41 COMP. GEN. 812, IS AS FOLLOWS:

"I WAS DISCHARGED ON 30 SEPTEMBER 1944 FOR THE PURPOSE OF ACCEPTING AN AUS COMMISSION, AND DID NOT RECEIVE MUSTERING OUT PAY. I HAVE BEEN ON EXTENDED ACTIVE DUTY AS AN OFFICER IN THE AUS, RESERVE AND REGULAR COMPONENT SINCE THAT TIME.'

THUS IT APPEARS THAT YOU BELIEVE YOU ARE ENTITLED TO MUSTERING-OUT PAY UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944, CH. 9, 58 STAT. 10, SECTION 3 OF WHICH (AS AMENDED BY SECTION 7 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 540, EFFECTIVE JUNE 1, 1945, AS TO MILITARY PERSONNEL), 38 U.S.C. 6910 (1952 ED.), PROVIDED IN PART AS FOLLOWS:

"* * * NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT 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 THE REGULAR MILITARY OR NAVAL ESTABLISHMENT.'

SINCE YOU WERE NOT PERMANENTLY SEPARATED FROM THE SERVICE ON SEPTEMBER 30, 1944, NO RIGHT TO MUSTERING-OUT PAY ACCRUED TO YOU AT THAT TIME. EVEN IF YOU HAD THEN ACCEPTED A PERMANENT APPOINTMENT IN THE REGULAR ARMY, RATHER THAN A TEMPORARY ONE IN THE ARMY OF THE UNITED STATES, YOUR RIGHTS WOULD HAVE BEEN NO GREATER SINCE THE LANGUAGE RELATING TO APPOINTMENTS IN THE REGULAR MILITARY ESTABLISHMENT WAS MADE APPLICABLE ONLY TO APPOINTMENTS "ON OR AFTER JUNE 1, 1945.' SEE SECTION 7/C) OF THE 1945 ACT. THERE BEING NO PROVISION OF LAW UNDER WHICH YOU ARE ENTITLED TO MUSTERING-OUT PAY, DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.