B-157933, FEB 14, 1966

B-157933: Feb 14, 1966

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USAF: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25. YOU SAY THAT THE MILITARY RECORDS RELATING TO MAJOR PITTARD HAVE BEEN CORRECTED BY THE SECRETARY OF THE AIR FORCE TO SHOW HE WAS APPOINTED A SECOND LIEUTENANT IN THE AIR CORPS. YOU ALSO SAY THAT HE HAS NEVER BEEN PAID THE RESERVE OFFICERS BONUS AND IS CLAIMING PAYMENT FOR THE PERIOD DECEMBER 23. PROVIDES: "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. BE REQUIRED TO SIGN AN AGREEMENT THAT UPON HIS SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AS AN AVIATION CADET HE WILL ACCEPT A COMMISSION AS SECOND LIEUTENANT.

B-157933, FEB 14, 1966

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. J. VANYA, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1965, AND ACCOMPANYING PAPERS, REQUESTING DECISION (ASSIGNED AIR FORCE REQUEST NO. 885 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE) AS TO THE LEGALITY OF PAYMENT OF RESERVE OFFICERS BONUS TO MAJOR JAMES M. PITTARD, JR., FV 92 9557, USAF, RETIRED, UNDER THE CIRCUMSTANCES DESCRIBED.

IN YOUR LETTER OF OCTOBER 25, 1965, YOU SAY THAT THE MILITARY RECORDS RELATING TO MAJOR PITTARD HAVE BEEN CORRECTED BY THE SECRETARY OF THE AIR FORCE TO SHOW HE WAS APPOINTED A SECOND LIEUTENANT IN THE AIR CORPS, OFFICERS RESERVE CORPS, DECEMBER 23, 1944, AND ACCEPTED THE APPOINTMENT THE SAME DAY. YOU ALSO SAY THAT HE HAS NEVER BEEN PAID THE RESERVE OFFICERS BONUS AND IS CLAIMING PAYMENT FOR THE PERIOD DECEMBER 23, 1944, TO JUNE 23, 1948, IN THE AMOUNT OF $1,751.49.

THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, 10 U.S.C. 300A (1952 ED.), PROVIDES:

"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 THE ARMY, SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE. ***"

SECTION 3 OF THE ACT OF JUNE 3, 1941, 55 STAT. 239, PROVIDED:

"UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, MALE CITIZENS OF THE UNITED STATES MAY ENLIST AS AVIATION CADETS, AND ENLISTED MEN IN THE REGULAR ARMY MAY BE APPOINTED BY THE SECRETARY OF WAR AS AVIATION CADETS. EACH AVIATION CADET SHALL, AT THE TIME OF HIS ENLISTMENT OR APPOINTMENT AS SUCH, BE REQUIRED TO SIGN AN AGREEMENT THAT UPON HIS SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AS AN AVIATION CADET HE WILL ACCEPT A COMMISSION AS SECOND LIEUTENANT, AIR FORCE RESERVE ***. UPON THE SUCCESSFUL COMPLETION OF SUCH PRESCRIBED COURSE OF TRAINING AND INSTRUCTION, EACH AVIATION CADET SHALL BE COMMISSIONED AS A SECOND LIEUTENANT, AIR FORCE RESERVE ***."

THE ACT OF JULY 8, 1942, 56 STAT. 649, SUSPENDED THE ABOVE PROVISIONS OF THE 1941 ACT FOR THE DURATION OF WORLD WAR II AND FOR 6 MONTHS THEREAFTER EXCEPT AS TO ANY PERSON WHO HAD ENLISTED OR BEEN APPOINTED AS AN AVIATION CADET PRIOR TO THE DATE OF THAT ACT. IT PROVIDED THAT DURING SUCH PERIOD AND UNDER PRESCRIBED REGULATIONS, MALE CITIZENS COULD ENLIST AS AVIATION CADETS AND THAT ENLISTED MEN IN THE ARMY OF THE UNITED STATES COULD BE APPOINTED AS AVIATION CADETS. UPON SUCCESSFUL COMPLETION OF THE COURSE OF TRAINING AND INSTRUCTION EACH CADET WAS TO BE COMMISSIONED A SECOND LIEUTENANT OR APPOINTED A FLIGHT OFFICER IN THE ARMY OF THE UNITED STATES.

YOU SAY IN YOUR LETTER OF OCTOBER 25, 1965, THAT EVEN THOUGH MAJOR PITTARD WAS APPOINTED A CADET AFTER JULY 8, 1942, HIS SITUATION DIFFERS FROM MEMBERS COVERED BY THE ACT OF THAT DATE SINCE HIS SOURCE OF COMMISSION WAS THE RESERVE OFFICERS' TRAINING CORPS AND THE PROVISIONS OF WAR DEPARTMENT CIRCULAR NO. 262 DATED OCTOBER 21, 1943, BASED ON 10 U.S.C. 354 (1946 ED.). THAT CIRCULAR PROVIDED THAT ADVANCED COURSE ROTC STUDENTS COULD APPLY FOR AND BE TRANSFERRED TO THE ARMY AIR FORCES DETAILED AS AVIATION STUDENTS; THAT THEY WOULD NOT BE APPOINTED AVIATION CADETS; THAT THEIR ROTC STATUS WOULD BE RETAINED WHILE UNDERGOING TRAINING; AND THAT UPON THE SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSES THEY WOULD BE APPOINTED SECOND LIEUTENANTS IN THE AIR CORPS RESERVE. 10 U.S.C. 354 (1946 ED.) PROVIDED:

"THE PRESIDENT ALONE UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, IS AUTHORIZED TO APPOINT AS A RESERVE OFFICER OF THE ARMY OF THE UNITED STATES ANY GRADUATE OF THE SENIOR DIVISION OF THE RESERVE OFFICERS' TRAINING CORPS WHO SHALL HAVE SATISFACTORILY COMPLETED THE FURTHER TRAINING PROVIDED FOR IN SECTION 441 OF THIS TITLE *** AND SHALL HAVE PARTICIPATED IN SUCH PRACTICAL INSTRUCTION SUBSEQUENT TO GRADUATION AS THE SECRETARY OF WAR SHALL PRESCRIBE ***."

IN THE DECISION OF NOVEMBER 20, 1957, B-133628, WHICH YOU SAY THE MILITARY PERSONNEL RECORDS DIVISION CITES AS A BASIS FOR DENIAL OF THE LUMP-SUM BONUS TO MAJOR PITTARD, IT APPEARS THAT THE MEMBER HAD ENLISTED IN THE ARMY OF THE UNITED STATES ON APRIL 1, 1942; THAT HE WAS APPOINTED AN AVIATION CADET JULY 15, 1942; THAT HE WAS HONORABLY DISCHARGED MARCH 24, 1943, TO ACCEPT A COMMISSION; THAT HE WAS APPOINTED SECOND LIEUTENANT, AIR CORPS RESERVE, ON MARCH 25, 1943; AND THAT HE SERVED ON ACTIVE DUTY FROM THAT DATE UNTIL JANUARY 4, 1947, WHEN HE WAS RELEASED FROM ACTIVE DUTY BY REASON OF DEMOBILIZATION. SINCE THAT MEMBER WAS NOT APPOINTED AN AVIATION CADET UNTIL JULY 15, 1942, HE CLEARLY SHOULD NOT HAVE BEEN COMMISSIONED IN THE AIR CORPS RESERVE IN VIEW OF THE PROVISIONS OF THE ACT OF JULY 8, 1942, THAT SUCH A MEMBER WOULD BE COMMISSIONED A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES. WE HELD THAT THE MEMBER WAS PROPERLY DENIED THE LUMP SUM BONUS IN THESE CIRCUMSTANCES.

IN THE CASE OF MAJOR PITTARD, THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS HAS CORRECTED HIS RECORDS TO SHOW THAT HE WAS APPOINTED A SECOND LIEUTENANT IN THE AIR CORPS, OFFICERS RESERVE CORPS, ON DECEMBER 23, 1944. IN A LETTER IN THE FILE, DATED SEPTEMBER 19, 1944, FROM HEADQUARTERS, BLACKLAND ARMY AIR FIELD, IT IS STATED THAT AVIATION CADET PITTARD, WHILE A SENIOR AND IN ADVANCED ROTC, MADE APPLICATION FOR AIRCREW TRAINING AT THE AVIATION CADET EXAMINING BOARD IN ATLANTA, GEORGIA. IT IS SAID THAT HE WAS REFERRED TO THE COMMANDING OFFICER OF HIS ROTC UNIT FOR A RELEASE FROM HIS ROTC STATUS BEFORE HE WOULD BE ALLOWED TO TAKE THE AVIATION CADET EXAMINATIONS; THAT HE OBTAINED THIS RELEASE AND TOOK THE EXAMINATIONS FOR AIRCREW TRAINING ON OR ABOUT MARCH 25, 1943, AND THAT ON APRIL 17, 1943, HE WAS NOTIFIED HE HAD BEEN FOUND QUALIFIED FOR SUCH TRAINING. IT IS FURTHER STATED THAT HE THEN RETURNED TO GEORGIA SCHOOL OF TECHNOLOGY AND UPON GRADUATION RETURNED TO HIS HOME; THAT AFTER 3 WEEKS HE WAS ORDERED TO APPEAR BEFORE DRAFT BOARD NO. 1, JASPER COUNTY, GEORGIA, FROM WHERE HE WAS SENT TO BASIC TRAINING UNIT NO. 4, MIAMI BEACH, FLORIDA. APPARENTLY HE WAS INDUCTED INTO THE ARMY AT THAT TIME SINCE THE RECORD SHOWS THAT HE ENTERED ON ACTIVE DUTY AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES ON JUNE 18, 1943. ON FEBRUARY 9, 1944, HE WAS APPOINTED AN AVIATION CADET AND ON DECEMBER 22, 1944, HE WAS HONORABLY DISCHARGED TO ACCEPT A COMMISSION. THE FOLLOWING DAY HE WAS APPOINTED A SECOND LIEUTENANT, ARMY OF THE UNITED STATES. THE RECORD, AS STATED ABOVE, HAS NOW BEEN CORRECTED UNDER AUTHORITY OF 10 U.S.C. 1552 TO SHOW THAT SUCH APPOINTMENT WAS IN THE AIR CORPS, ORC.

IT WILL BE OBSERVED THAT CIRCULAR NO. 262, DATED OCTOBER 21, 1943, WAS NOT IN EFFECT AT THE TIME PITTARD APPLIED FOR AIRCREW TRAINING AND, OF COURSE, CONSTITUTED NO AUTHORITY TO TRANSFER HIM TO THE ARMY AIR FORCES FOR TRAINING AS AN AVIATION STUDENT AND TO RETAIN HIS ROTC STATUS WHILE RECEIVING SUCH TRAINING. ACCORDING TO THE RECORD HIS ROTC STATUS WAS TERMINATED ON APRIL 20, 1943, AFTER HE TOOK THE AVIATION CADET ENTRANCE EXAMINATIONS IN MARCH 1943. WHILE HE PASSED THE EXAMINATIONS, HE WAS NOT APPOINTED AN AVIATION CADET AT THAT TIME BUT AFTER GRADUATING FROM COLLEGE HE ENTERED ON DUTY AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES. FROM THAT STATUS HE WAS APPOINTED AN AVIATION CADET IN FEBRUARY 1944. HENCE HE APPEARS TO COME SQUARELY WITHIN THE PROVISIONS OF SECTION 2 OF THE 1942 ACT THAT -

"*** MEN HAVING AN ENLISTED STATUS IN THE ARMY OF THE UNITED STATES MAY BE APPOINTED BY THE SECRETARY OF WAR AS AVIATION CADETS. *** UPON SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AND UNDER SUCH REGULATIONS WITH RESPECT TO SELECTION AS THE SECRETARY OF WAR MAY PRESCRIBE, EACH SUCH CADET SHALL BE COMMISSIONED AS A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES ***."

THUS, UPON COMPLETION OF HIS AVIATION CADET TRAINING, THERE APPARENTLY WOULD HAVE BEEN NO AUTHORITY TO HAVE APPOINTED HIM AN OFFICER IN THE AIR CORPS RESERVE AND IF HE HAD BEEN ERRONEOUSLY SO APPOINTED HE WOULD NOT HAVE BEEN ENTITLED TO THE LUMP-SUM BONUS. B 133628, NOVEMBER 20, 1957. CONSEQUENTLY, IT IS OUR VIEW THAT THE RECORD AS CORRECTED GIVES HIM NO GREATER RIGHT TO THE BONUS. SEE 34 COMP. GEN. 7; 38 COMP. GEN. 208; 40 COMP. GEN. 502.

ACCORDINGLY, PAYMENT OF THE RESERVE OFFICERS BONUS TO MAJOR PITTARD IS NOT AUTHORIZED ON THE RECORD PRESENTED. THE PAPERS WHICH ACCOMPANIED YOUR REQUEST FOR DECISION WILL BE RETAINED HERE.