B-165432, FEBRUARY 12, 1969, 48 COMP. GEN. 529

B-165432: Feb 12, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1964 IN HIS STATUS AS A RESERVE OFFICER IS NOT PAID THE UNIFORM ALLOWANCE PRESCRIBED BY THE ACT OF AUGUST 10. IS ENTITLED TO THE INITIAL AND ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE PROVIDED BY THE AMENDATORY ACT OF OCTOBER 13. THE EFFECTIVE DATE OF THE OFFICER'S APPOINTMENT TO THE REGULAR AIR FORCE WAS THE DATE OF ACCEPTANCE. AFTER THE NEW LAW WAS IN EFFECT. 1969: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23. IS ENTITLED TO PAYMENT OF $300 REPRESENTING INITIAL AND ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE. FURTHER QUESTION IS ASKED AS TO THE EFFECTIVE DATE OF THE OFFICER'S APPOINTMENT IN THE REGULAR AIR FORCE. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE ASSISTANT COMPTROLLER OF THE AIR FORCE UNDER DATE OF OCTOBER 11.

B-165432, FEBRUARY 12, 1969, 48 COMP. GEN. 529

UNIFORMS - MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - RESERVE DUTY PRIOR TO REGULAR APPOINTMENT A DISTINGUISHED MILITARY GRADUATE OF THE AIR FORCE RESERVE OFFICERS' TRAINING CORPS WHO INCIDENT TO REPORTING FOR ACTIVE DUTY ON JUNE 1, 1964 IN HIS STATUS AS A RESERVE OFFICER IS NOT PAID THE UNIFORM ALLOWANCE PRESCRIBED BY THE ACT OF AUGUST 10, 1956, UPON APPOINTMENT ON OCTOBER 9, 1964 AS A SECOND LIEUTENANT IN THE REGULAR AIR FORCE, WITH DATE OF RANK JUNE 1, 1964, PURSUANT TO 10 U.S.C. 8284, IS ENTITLED TO THE INITIAL AND ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE PROVIDED BY THE AMENDATORY ACT OF OCTOBER 13, 1964, WHICH EXTENDED UNIFORM ALLOWANCE BENEFITS TO ROTC GRADUATES APPOINTED UNDER 10 U.S.C. 2106 OR 2107, AND COMMISSIONED AFTER OCTOBER 13, 1964. ABSENT A STATUTE PROVIDING OVERWISE, THE EFFECTIVE DATE OF THE OFFICER'S APPOINTMENT TO THE REGULAR AIR FORCE WAS THE DATE OF ACCEPTANCE, OCTOBER 27, 1964, AFTER THE NEW LAW WAS IN EFFECT.

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, FEBRUARY 12, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1968 (CP), REQUESTING AN ADVANCE DECISION WHETHER, UNDER THE CIRCUMSTANCES DISCLOSED, CAPTAIN CHARLES L. MEYER, USAF, FR79237, IS ENTITLED TO PAYMENT OF $300 REPRESENTING INITIAL AND ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE. FURTHER QUESTION IS ASKED AS TO THE EFFECTIVE DATE OF THE OFFICER'S APPOINTMENT IN THE REGULAR AIR FORCE. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE ASSISTANT COMPTROLLER OF THE AIR FORCE UNDER DATE OF OCTOBER 11, 1968, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1022 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT BY SPECIAL ORDER A-1225, DATED MARCH 25, 1964, LIEUTENANT MEYER WAS ORDERED TO EXTENDED ACTIVE DUTY EFFECTIVE JUNE 1, 1964, AS A RESERVE OFFICER FOR THE PURPOSE OF ATTENDING AN UNDERGRADUATE PILOT TRAINING COURSE IN EXCESS OF 20 WEEKS DURATION AT VANCE AIR FORCE BASE, OKLAHOMA. THOSE ORDERS SHOW HIS INITIAL APPOINTMENT--- PRESUMABLY AS A RESERVE OFFICER--- AS JANUARY 31, 1964. THE OFFICER REPORTED FOR ACTIVE DUTY ON JUNE 1, 1964, IN HIS STATUS AS A RESERVE OFFICER.

BY SPECIAL ORDER AA-2186 DATED OCTOBER 9, 1964, DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C., LIEUTENANT MEYER, A DISTINGUISHED MILITARY GRADUATE OF THE AIR FORCE RESERVE OFFICER'S TRAINING CORPS, WAS APPOINTED A SECOND LIEUTENANT, REGULAR AIR FORCE, WITH DATE OF RANK JUNE 1, 1964, PURSUANT TO 10 U.S.C. 8284--- WHICH PROVIDES FOR THE APPOINTMENTS IN COMMISSIONED GRADES IN THE REGULAR AIR FORCE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE OFFICER STATES THAT THE APPOINTMENT WAS ACCEPTED OCTOBER 27, 1964. THE ORDERS FURTHER PROVIDED THAT ACCEPTANCE OF THE REGULAR APPOINTMENT WOULD NOT AFFECT DATE OF RANK HELD AND THAT AN AIR FORCE RESERVE COMMISSION WOULD BE VACATED ON THE DAY PRIOR TO DATE OF REGULAR OATH OF OFFICE. IN SUBMITTING THE CLAIM, THE OFFICER CERTIFIES THAT SINCE HIS ENTRY ON ACTIVE DUTY ON JUNE 1, 1964, HE HAS RECEIVED NO UNIFORM ALLOWANCE AUTHORIZED IN CHAPTER 6, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL OR ANY OTHER DIRECTIVE.

IN EXPRESSING DOUBT IN THE MATTER, YOU SAY THAT THE QUESTION ARISES AS TO THE LEGALITY OF PAYING UNIFORM ALLOWANCE UNDER A PROCEDURE CONTEMPLATING DELAYING THE TENDER OF REGULAR APPOINTMENTS TO DISTINGUISHED MILITARY GRADUATES FOR AT LEAST 91 DAYS AFTER ENTERING ON EXTENDED ACTIVE DUTY. FURTHER QUESTION IS RAISED BY YOU AS TO THE EFFECTIVE DATE OF THE OFFICER'S REGULAR APPOINTMENT, THAT IS, WHETHER IT IS THE DATE OF THE APPOINTMENT ORDER (OCTOBER 9, 1964) OR THE DATE OF ACCEPTANCE (OCTOBER 27, 1964) FOR UNIFORM ALLOWANCE PURPOSES.

AT THE TIME (JUNE 1, 1964) LIEUTENANT MEYER REPORTED FOR ACTIVE DUTY IN HIS STATUS AS A RESERVE OFFICER, AN OFFICER OF A RESERVE COMPONENT WAS ENTITLED TO AN INITIAL AND ADDITIONAL UNIFORM ALLOWANCE AS PROVIDED IN SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, 37 U.S.C. 415 AND 416 (1958 ED., SUPP. V), IN PERTINENT PART, AS FOLLOWS:

SEC. 415. UNIFORM ALLOWANCE: OFFICERS; INITIAL ALLOWANCE.

(A) SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, A RESERVE OFFICER OF AN ARMED FORCE OR AN OFFICER OF THE ARMY, OR THE AIR FORCE, WITHOUT SPECIFICATION OF COMPONENT, IS ENTITLED TO AN INITIAL ALLOWANCE OF NOT MORE THAN $200 AS REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS AND EQUIPMENT---

(1) UPON FIRST REPORTING FOR ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD OF MORE THAN 90 DAYS;

SEC. 416 (B) IN ADDITION TO THE ALLOWANCE PROVIDED BY SECTION 415 (A/-/C) OF THIS TITLE AND SUBSECTION (A) OF THIS SECTION, A RESERVE OFFICER OF AN ARMED FORCE, OR AN OFFICER OF THE ARMY, OR THE AIR FORCE WITHOUT SPECIFICATION OF COMPONENT, IS ENTITLED TO NOT MORE THAN $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON THAT DUTY, FOR EACH TIME THAT HE ENTERS ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 90 DAYS.

THE ABOVE-QUOTED SECTIONS OF TITLE 37 WERE AMENDED BY SECTION 202 (3) OF THE ACT OF OCTOBER 13, 1964, 78 STAT. 1063, 1070, BY EXTENDING THE UNIFORM ALLOWANCE BENEFITS TO INCLUDE A "REGULAR OFFICER OF AN ARMED FORCE APPOINTED UNDER SECTION 2106 OR 2107 OF TITLE 10, UNITED STATES CODE.' SEE 37 U.S.C. 415 (A) AND 416 (B) (1964 ED.). SECTIONS 2106 AND 2107 OF TITLE 10 AUTHORIZE THE APPOINTMENT OF SELECTED ROTC MEMBERS AS REGULAR OR RESERVE OFFICERS IN THE APPROPRIATE ARMED FORCE. IN LINE WITH THE AMENDMENT OF OCTOBER 13, 1964, PARAGRAPHS 30602C (3) AND 30603B (3), CHAPTER 6, OF THE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PRECLUDED PAYMENT OF AN INITIAL AND ADDITIONAL UNIFORM ALLOWANCE TO ROTC GRADUATES COMMISSIONED IN A REGULAR COMPONENT BEFORE OCTOBER 13, 1964.

THE LEGALITY OF PAYMENT OF UNIFORM ALLOWANCES TO ROTC DISTINGUISHED MILITARY GRADUATES ORDERED TO EXTENDED ACTIVE DUTY IN THEIR STATUS OF RESERVE OFFICERS HAS BEEN THE SUBJECT OF SEVERAL OF OUR DECISIONS INVOLVING DIFFERENT FACTUAL SITUATIONS. SEE, FOR EXAMPLE, 40 COMP. GEN. 539; 41 ID. 547; 46 ID. 167; AND B-147685, JANUARY 15, 1962. THESE DECISIONS INVOLVE SITUATIONS PRIOR TO OCTOBER 13, 1964, WHERE EITHER BEFORE OR SHORTLY AFTER THE MEMBER REPORTED FOR EXTENDED ACTIVE DUTY AS A RESERVE OFFICER, HE WAS APPOINTED A REGULAR OFFICER.

IN SUCH CASES IT WAS NOTED THAT, WHILE THE MEMBER WAS ORDERED TO ACTIVE DUTY IN HIS RESERVE OFFICER STATUS, IT WAS EVIDENT THAT THE MEMBER ANTICIPATED AN APPOINTMENT AS A REGULAR OFFICER AND WAS SO APPOINTED SHORTLY AFTER REPORTING FOR DUTY. IT WAS CONCLUDED THAT SUCH ACTIVE DUTY ORDERS MAY NOT BE REGARDED AS COMING WITHIN THE UNIFORM ALLOWANCE PROVISIONS OF 37 U.S.C. 255 (NOW 37 U.S.C. 415, 416) SO AS TO ENTITLE A RESERVE OFFICER. 40 COMP. GEN. 539.

PRIOR TO THE ABOVE-MENTIONED ACT OF OCTOBER 13, 1964, WHICH AMENDED THE UNIFORM ALLOWANCE PROVISIONS OF SECTION 415 (A) AND 416 (B) OF MEMBER TO A UNIFORM ALLOWANCE FOR ACTIVE DUTY IN EXCESS OF 90 DAYS AS A TITLE 37 (FORMERLY 37 U.S.C. 255), ROTC GRADUATES COMMISSIONED AS REGULAR OFFICERS WERE NOT ENTITLED TO A UNIFORM ALLOWANCE. CONGRESS WAS AWARE OF THIS SITUATION AS NOTED ON PAGE 23 OF H.REP. NO. 925, TO ACCOMPANY H.R. 9124 WHICH BECAME THE ACT OF OCTOBER 13, 1964, WHERE IT IS STATED THAT---

THE BILL WOULD PROVIDE THAT ROTC GRADUATES WHETHER COMMISSIONED AS REGULAR OFFICERS OR RESERVE OFFICERS, WOULD BE AUTHORIZED TO DRAW THE SAME UNIFORM ALLOWANCE AS IS PRESENTLY PROVIDED FOR ROTC STUDENTS WHO ARE AWARDED RESERVE COMMISSIONS UPON GRADUATION. EXCEPT AS OTHERWISE PROVIDED, PUBLIC LAW 88-647 BECAME EFFECTIVE OCTOBER 13, 1964, AND ITS BENEFITS WERE APPLICABLE ON AND AFTER THAT DATE TO ROTC GRADUATES APPOINTED AS REGULAR OFFICERS.

GENERALLY, IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE, AN APPOINTMENT AS A COMMISSIONED OFFICER IN AN ARMED FORCE IS NOT EFFECTIVE UNLESS THE TENDER OF APPOINTMENT IS ACCEPTED. SEE, GENERALLY, AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE REPORTED AT 1 DIG OPS OFFICERS, SECTION 15.5, CITING VARIOUS AUTHORITIES. ALSO, SEE 27 COMP. GEN. 176.

UNDER THE ORDERS OF OCTOBER 9, 1964, APPOINTING MEYER A SECOND LIEUTENANT IN THE REGULAR AIR FORCE, THE OFFICER WAS CONSIDERED AS BEING ORDERED TO ACTIVE DUTY IN HIS USAF COMMISSIONED GRADE ,ON DATE OF ACCEPTANCE OF REGAF APPOINTMENT.' SINCE THE OFFICER'S APPOINTMENT IN THE REGULAR AIR FORCE WAS TENDERED TO HIM UNDER THE OLD LAW BEFORE OCTOBER 13, 1964, AND WAS NOT ACTUALLY ACCEPTED BY HIM UNTIL OCTOBER 27, 1964, WHEN THE NEW LAW WAS IN EFFECT, HE MAY BE CONSIDERED "A REGULAR OFFICER OF AN ARMED FORCE APPOINTED UNDER SECTION 2106 OR 2107 OF TITLE 10" AFTER OCTOBER 13, 1964, WITHIN THE PURPOSE AND INTENT OF THE AMENDMENT OF THAT DATE OF 37 U.S.C. 415 AND 416, FOR UNIFORM ALLOWANCE PURPOSES.

ACCORDINGLY, PAYMENT OF THE OFFICER'S CLAIM IS AUTHORIZED, IF OTHERWISE CORRECT.