B-159140, JUN. 30, 1966

B-159140: Jun 30, 1966

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MANN: REFERENCE IS MADE TO YOUR LETTER OF MAY 1. YOU WERE RELIEVED FROM ASSIGNMENT WITH THE 1608TH OPERATIONS SQUADRON. YOUR RESIGNATION WAS ACCEPTED BY THE PRESIDENT. YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS. THE AUTHORITY FOR YOUR SEPARATION FROM THE SERVICE WAS STATED TO BE SEPARATION DESIGNATION NUMBER (SDN) 625. MILEAGE FOR YOUR OWN TRAVEL WAS DENIED SINCE THE PAY RECORDS SHOW THAT YOU WERE TO BE FURNISHED A TRANSPORTATION REQUEST AT TIME OF DISCHARGE FOR USE IN OBTAINING TRANSPORTATION AT GOVERNMENT EXPENSE TO YOUR HOME OF RECORD. REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS WAS DENIED IN THE ABSENCE OF DOCUMENTS SHOWING THE WEIGHT OF THE GOODS AND THE EXPENSES INCURRED.

B-159140, JUN. 30, 1966

TO MR. MALVIN W. MANN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 1, 1966, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 4, 1966, WHICH DISALLOWED YOUR CLAIMS FOR READJUSTMENT PAY, REIMBURSEMENT FOR TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS AND REIMBURSEMENT FOR TRAVEL PERFORMED FROM CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, TO NORTH SIOUX CITY, SOUTH DAKOTA (FORMERLY STEVENS, SOUTH DAKOTA), INCIDENT TO YOUR DISCHARGE AS FIRST LIEUTENANT, UNITED STATES AIR FORCE RESERVE, EFFECTIVE DECEMBER 21, 1956.

BY SPECIAL ORDER NO. 252, HEADQUARTERS CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, DATED DECEMBER 19, 1956, YOU WERE RELIEVED FROM ASSIGNMENT WITH THE 1608TH OPERATIONS SQUADRON; YOUR RESIGNATION WAS ACCEPTED BY THE PRESIDENT, AND YOU WERE DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, EFFECTIVE DECEMBER 21, 1956. THE ORDERS PROVIDED THAT THE TRANSPORTATION OFFICER WOULD FURNISH TRANSPORTATION IN KIND TO YOUR HOME OF RECORD, STEVENS, SOUTH DAKOTA. THE AUTHORITY FOR YOUR SEPARATION FROM THE SERVICE WAS STATED TO BE SEPARATION DESIGNATION NUMBER (SDN) 625, RESIGNATION; PARAGRAPH 7A (1), AIR FORCE REGULATIONS 36-12, AND HEADQUARTERS, UNITED STATES AIR FORCE MESSAGE AFPMP-4BC, 169511, DATED DECEMBER 17, 1956.

BY LETTER TO THE AIR FORCE ACCOUNTING AND FINANCE OFFICE, DENVER, COLORADO, DATED MAY 26, 1965, YOU STATED THAT THE AIR FORCE DISCHARGE REVIEW BOARD HAD RECENTLY ISSUED YOU A DISCHARGE CERTIFICATE "UNDER HONORABLE CONDITIONS," DATED DECEMBER 21, 1956, IN PLACE OF THE DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS. YOU THEREFORE CLAIMED LEAVE PAY, MUSTERING-OUT PAY, TRAVEL ALLOWANCE ON SEPARATION AND REIMBURSEMENT OF EXPENSES IN THE SHIPMENT OF HOUSEHOLD EFFECTS. YOU ALSO CLAIMED ELIGIBILITY TO SEVERANCE PAY. THE RECORD SHOWS THAT INCIDENT TO THE CHANGE IN THE CHARACTER OF YOUR DISCHARGE, THE DEPARTMENT OF THE AIR FORCE HAS ALLOWED YOU PAY AND ALLOWANCES FOR YOUR ACCRUED LEAVE, MUSTERING-OUT PAY, AND TRAVEL ALLOWANCES FOR YOUR WIFE'S TRAVEL TO YOUR HOME OF RECORD. MILEAGE FOR YOUR OWN TRAVEL WAS DENIED SINCE THE PAY RECORDS SHOW THAT YOU WERE TO BE FURNISHED A TRANSPORTATION REQUEST AT TIME OF DISCHARGE FOR USE IN OBTAINING TRANSPORTATION AT GOVERNMENT EXPENSE TO YOUR HOME OF RECORD. REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD EFFECTS WAS DENIED IN THE ABSENCE OF DOCUMENTS SHOWING THE WEIGHT OF THE GOODS AND THE EXPENSES INCURRED. ALSO, READJUSTMENT PAY WAS DENIED FOR THE REASON THAT IT IS AUTHORIZED INCIDENT TO AN INVOLUNTARY SEPARATION FROM THE SERVICE WHEREAS YOU VOLUNTARILY RESIGNED.

IN YOUR LETTER DATED DECEMBER 14, 1956, YOU STATED THAT YOU MOVED THE HOUSEHOLD GOODS YOURSELF AND YOU DO NOT HAVE ANY PAID BILLS OR RECORDS. HOWEVER, YOU CONTRACTED A LOCAL MOVER AND HE PREPARED AN ESTIMATE OF WHAT THE COSTS MIGHT HAVE BEEN, $569.77 BASED ON AN ESTIMATED WEIGHT OF 5,020 POUNDS, WHICH YOU ENCLOSED. YOU STATED FURTHER THAT YOU TRAVELED BY AUTOMOBILE TO YOUR HOME OF RECORD FROM CHARLESTON AIR FORCE BASE AND YOUR WIFE ACCOMPANIED YOU IN ANOTHER CAR AND YOU REQUESTED REIMBURSEMENT FOR YOUR TRAVEL AND THAT OF YOUR WIFE. ALSO, YOU HAVE DENIED THAT YOU VOLUNTARILY RESIGNED, STATING THAT YOUR RESIGNATION WAS DUE TO UNDUE PRESSURE, COERCION AND UNDERHANDED TACTICS.

YOUR CLAIMS WHICH HAD NOT BEEN ADMINISTRATIVELY ALLOWED WERE TRANSMITTED TO OUR OFFICE FOR SETTLEMENT AND BY SETTLEMENT DATED APRIL 4, 1966, THEY WERE DISALLOWED FOR THE REASONS STATED THEREIN.

OTHER THAN SEVERANCE PAY FOR PHYSICAL DISABILITY, SEVERANCE PAY IS AUTHORIZED UNDER THE PROVISIONS OF 10 U.S.C. 8786 TO AN OFFICER OF THE REGULAR AIR FORCE UPON REMOVAL FROM THE ACTIVE LIST BY HONORABLE DISCHARGE AT HIS REQUEST UNDER THE CIRCUMSTANCES THERE PROVIDED. FOR A MEMBER OF A RESERVE COMPONENT, READJUSTMENT PAY WAS AUTHORIZED AT THE TIME OF YOUR DISCHARGE BY SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952 AS ADDED BY THE ACT OF JULY 9, 1956, P.L. 676, 70 STAT. 517, WHICH PROVIDES IN PERTINENT PART IN SUBSECTION (A) THEREOF, THAT SUCH A MEMBER WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER ENACTMENT OF THAT SECTION AND AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN 30 DAYS, AS EITHER AN OFFICER, WARRANT OFFICER OR ENLISTED PERSON, IS ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE- HALF OF ONE MONTH'S BASIC PAY IN THE GRADE IN WHICH HE WAS SERVING AT THE TIME OF RELEASE FROM ACTIVE DUTY, FOR EACH YEAR OF ACTIVE SERVICE COMPUTED AS THERE PROVIDED. ALSO, IT IS PROVIDED THAT ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAD BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW SHALL BE EXCLUDED IN THE COMPUTATION AND THAT THERE SHALL BE DEDUCTED FROM SUCH PAYMENT ANY MUSTERING-OUT PAYMENT RECEIVED BY THE MEMBER. SUBSECTION (B) (1) PROVIDES THAT A PERSON WHO IS RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST IS NOT ENTITLED TO ANY PAYMENT UNDER THAT SECTION. ALSO, SUBPARAGRAPH (B) (3) PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, A PERSON WHO IS RELEASED FROM ACTIVE DUTY BECAUSE OF MORAL OR PROFESSIONAL DERELICTION IS NOT ENTITLED TO ANY PAYMENT. SECTION 102A OF PUBLIC LAW 87-651, 76 STAT. 506, THESE PROVISIONS PERTAINING TO READJUSTMENT PAY WERE ADDED TO TITLE 10 OF THE U.S.C. AS SECTION 687.

IMPLEMENTING AIR FORCE REGULATIONS IN EFFECT AT THE TIME OF YOUR DISCHARGE, WERE CONTAINED IN PARAGRAPH 7A, AIR FORCE REGULATIONS 36 12, DATED JULY 27, 1954, CITED IN YOUR SEPARATION ORDERS, WHICH PROVIDED THAT AN OFFICER WHOSE CONDUCT HAS BEEN SUCH AS TO BRING HIM WITHIN THE PURVIEW OF THAT REGULATION MAY TENDER HIS RESIGNATION FOR THE GOOD OF THE SERVICE. PARAGRAPH 17, AIR FORCE REGULATIONS 36-2, WHICH WAS DATED NOVEMBER 8, 1957, BUT WHICH STATED THE POLICY OF THE DEPARTMENT RELATIVE TO THE ELIMINATION OF OFFICER PERSONNEL OF THE AIR FORCE SERVING ON EXTENDED ACTIVE DUTY, PROVIDES THAT AN OFFICER APPEARING AS A RESPONDENT BEFORE A BOARD OF INQUIRY WILL HAVE THE RIGHT, AMONG OTHERS, TO TENDER HIS RESIGNATION AS PROVIDED FOR IN PARAGRAPH 7, AIR FORCE REGULATIONS 36-12. IT PROVIDES FURTHER AS A NOTATION TO THAT PARAGRAPH, THAT A RESERVE OFFICER WHO TENDERS A RESIGNATION OR REQUESTS RELEASE FROM ACTIVE DUTY DOES SO VOLUNTARILY AND THEREFORE DISQUALIFIES HIMSELF, IF OTHERWISE ELIGIBLE, FOR ENTITLEMENT TO READJUSTMENT PAY UNDER THE ACT OF JULY 9, 1956.

THE RECORD BEFORE US DOES NOT DISCLOSE THE CIRCUMSTANCES WHICH PROMPTED YOUR RESIGNATION FROM THE SERVICE, BUT UNDER THE REGULATION THE CHOICE OF WHETHER TO RESIGN WAS YOURS AND, HENCE, THERE IS NO BASIS FOR US TO CONCLUDE THAT IT WAS NOT, IN FACT, VOLUNTARY. UNDER THE ABOVE REGULATIONS IT IS CONSIDERED THAT A MEMBER WHO TENDERS HIS RESIGNATION FROM THE SERVICE UNDER THE CIRCUMSTANCES THERE PROVIDED MAKES A VOLUNTARY CHOICE AND UPON ACCEPTANCE OF THE RESIGNATION HE IS REGARDED AS HAVING BEEN RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST. THE STATUTE SPECIFICALLY PROVIDES THAT READJUSTMENT PAY IS NOT AUTHORIZED IN THESE CIRCUMSTANCES. THEREFORE, SINCE YOU APPEAR TO HAVE VOLUNTARILY RESIGNED FROM THE SERVICE IN DECEMBER 1956, THE SUBSEQUENT CHANGE IN THE CHARACTER OF YOUR DISCHARGE DOES NOT ENTITLED YOU TO READJUSTMENT PAY.

AS TO YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS, GOVERNING REGULATIONS PROVIDE THAT SUCH CLAIMS ARE SETTLED ON AN ACTUAL REIMBURSEMENT BASIS, NOT TO EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT HAD SHIPMENT BEEN MADE BY AN AIR FORCE TRANSPORTATION OFFICER. INASMUCH AS YOU STATED THAT YOU HAULED YOUR HOUSEHOLD EFFECTS TO YOUR HOME OF RECORD, REIMBURSEMENT WOULD BE LIMITED TO THE ACTUAL COST INCURRED BY YOU FOR SUCH HAULING; INCLUDING COST OF RENTAL OF A TRUCK OR TRAILER OR ANY OTHER VEHICLE USED IN SUCH HAULING, AND THE COST OF GASOLINE, OIL AND OTHER INCIDENTAL EXPENSES INCURRED DURING THE HAUL. IN THE ABSENCE OF RECEIPTS OR OTHER EVIDENCE OF THE COSTS YOU INCURRED, THERE IS NO BASIS UPON WHICH REIMBURSEMENT MAY BE MADE FOR THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS.

WITH RESPECT TO YOUR CLAIM FOR TRAVEL ALLOWANCE DUE ON DISCHARGE, DECEMBER 21, 1956, PARAGRAPH M5300 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THAT TIME, PROVIDED THAT WHEN TRANSPORTATION IS AUTHORIZED TO A MEMBER DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, SUCH TRANSPORTATION WOULD BE LIMITED TO TRANSPORTATION IN KIND FOR TRAVEL WITHIN THE UNITED STATES. PARAGRAPH M4150-1 OF THE REGULATIONS PROVIDED THAT, GENERALLY, ALLOWANCES TO MILITARY PERSONNEL FOR PERMANENT CHANGE OF STATION TRAVEL, WHICH INCLUDES TRAVEL FROM LAST STATION TO HOME, WILL BE ON THE BASIS OF MILEAGE AT THE RATE OF 6 CENTS PER MILE, OR TRANSPORTATION IN KIND OR TRANSPORTATION REQUESTS PLUS A PER DIEM ALLOWANCE. THE ORDERS DATED DECEMBER 19, 1956, DIRECTING YOUR DISCHARGE, PROVIDED THAT THE TRANSPORTATION OFFICE WOULD FURNISH YOU TRANSPORTATION IN KIND TO YOUR HOME OF RECORD AND THE PAY RECORD FOR THE PERIOD JULY 1 TO DECEMBER 21, 1956, CONTAINS A NOTATION THAT A TRANSPORTATION REQUEST WOULD BE FURNISHED YOU FOR TRAVEL FROM CHARLESTON AIR FORCE BASE TO STEVENS, SOUTH DAKOTA. AS YOU HAVE BEEN PREVIOUSLY ADVISED, THE AIR FORCE IS UNABLE TO VERIFY WHETHER A TRANSPORTATION REQUEST WAS ISSUED AND WAS UTILIZED, BECAUSE SUCH RECORDS HAVE BEEN DESTROYED. IN VIEW OF YOUR EXPLANATION, HOWEVER, THAT YOU DID NOT TRAVEL AT GOVERNMENT EXPENSE TO YOUR HOME OF RECORD WHEN DISCHARGED, BUT THAT YOU AND YOUR WIFE EACH DROVE AN AUTOMOBILE TO NORTH SIOUX CITY FROM YOUR LAST DUTY STATION, THE RECORD WILL BE ACCEPTED AS ESTABLISHING THAT YOU DID NOT PERFORM SUCH TRAVEL AT GOVERNMENT EXPENSE. THEREFORE, IN VIEW OF THE CHANGE IN THE CHARACTER OF YOUR DISCHARGE CERTIFICATE, OUR CLAIMS DIVISION WILL ISSUE A SETTLEMENT IN YOUR FAVOR ALLOWING MILEAGE IN THE AMOUNT DUE FOR YOUR TRAVEL.