B-171870, MAR 10, 1971

B-171870: Mar 10, 1971

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G. REDDICK: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20. WHICH WAS FORWARDED HERE BY LETTER DATED FEBRUARY 3. REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CREDIT THE FINAL ACTIVE DUTY PAY RECORD OF CAPTAIN JOHN D. HE WAS OFFERED AND ACCEPTED A STANDARD WRITTEN ACTIVE DUTY AGREEMENT TO COMMENCE ON MARCH 16. HE REQUESTED AN ADDITIONAL TOUR OF ACTIVE DUTY WHICH WAS NOT ACCEPTED. THAT HE WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 31. READJUSTMENT PAYMENT UPON INVOLUNTARY RELEASE FROM ACTIVE DUTY IS AUTHORIZED BY 10 U.S.C. 687. ALTHOUGH IT IS PROVIDED IN SUBSECTION (A) THAT A MEMBER OF A RESERVE COMPONENT WHO HAS COMPLETED IMMEDIATELY BEFORE HIS RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY IS ENTITLED TO A READJUSTMENT PAYMENT.

B-171870, MAR 10, 1971

TO MAJOR W. G. REDDICK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20, 1971, WHICH WAS FORWARDED HERE BY LETTER DATED FEBRUARY 3, 1971, OF HEADQUARTERS, UNITED STATES MARINE CORPS, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CREDIT THE FINAL ACTIVE DUTY PAY RECORD OF CAPTAIN JOHN D. SIXT, 09 40 31, USMCR, WITH READJUSTMENT PAY. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC 1111 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT CAPTAIN SIXT ENTERED ON A CONTINUOUS PERIOD OF ACTIVE DUTY ON JANUARY 10, 1966; THAT ON SEPTEMBER 25, 1968, HE WAS OFFERED AND ACCEPTED A STANDARD WRITTEN ACTIVE DUTY AGREEMENT TO COMMENCE ON MARCH 16, 1969, AND TO TERMINATE ON DECEMBER 31, 1970; THAT ON AUGUST 27, 1970, HE REQUESTED AN ADDITIONAL TOUR OF ACTIVE DUTY WHICH WAS NOT ACCEPTED; AND THAT HE WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 31, 1970, HAVING COMPLETED 4 YEARS, 11 MONTHS AND 22 DAYS OF CONTINUOUS ACTIVE DUTY.

READJUSTMENT PAYMENT UPON INVOLUNTARY RELEASE FROM ACTIVE DUTY IS AUTHORIZED BY 10 U.S.C. 687. ALTHOUGH IT IS PROVIDED IN SUBSECTION (A) THAT A MEMBER OF A RESERVE COMPONENT WHO HAS COMPLETED IMMEDIATELY BEFORE HIS RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY IS ENTITLED TO A READJUSTMENT PAYMENT, IT IS FURTHER PROVIDED THAT FOR THE PURPOSES OF THAT SUBSECTION "A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED." YOU ARE, THEREFORE, IN DOUBT AS TO WHETHER CAPTAIN SIXT'S 4 YEARS, 11 MONTHS AND 22 DAYS OF ACTIVE SERVICE QUALIFIES AS "FIVE YEARS" CONTINUOUS ACTIVE DUTY WITHIN THE MEANING OF THE APPLICABLE LAW AND REGULATIONS SO AS TO ENTITLE HIM TO READJUSTMENT PAYMENT.

SINCE THE DATE OF YOUR SUBMISSION THE UNITED STATES COURT OF CLAIMS HELD IN THE CASE OF ARTHUR C. SCHMID, JR. V UNITED STATES, CT. CL. NO. 493-69, DECIDED JANUARY 22, 1971, THAT THE PLAINTIFF WAS ENTITLED TO RECOVER READJUSTMENT PAY ON ACCOUNT OF HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY AFTER 4 YEARS, 6 MONTHS AND 27 DAYS OF CONTINUOUS ACTIVE DUTY. WE DO NOT AGREE WITH THE COURT'S CONCLUSION IN THE SCHMID CASE AND BY LETTER DATED FEBRUARY 12, 1971, B-168559, TO THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, WE STATED OUR VIEWS IN THIS MATTER. WE RECOMMENDED THAT FURTHER ACTION BE TAKEN TO ASK THE COURT TO RECONSIDER ITS POSITION AND THAT IF IT ADHERES TO ITS ORIGINAL CONCLUSION, CONSIDERATION BE GIVEN TO THE MATTER OF SEEKING A WRIT OF CERTIORARI FROM THE SUPREME COURT OF THE UNITED STATES TO OBTAIN A REVIEW OF THE DECISION.

WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF JUSTICE THAT A MOTION FOR RECONSIDERATION OF THE DECISION WILL BE FILED, AND IT HAS BEEN INDICATED THAT IF THE COURT DENIES SUCH MOTION, CONSIDERATION WILL BE GIVEN TO THE ADVISABILITY OF SEEKING A WRIT OF CERTIORARI FROM THE SUPREME COURT. WE PROPERLY MAY NOT APPLY THE DECISION IN THE SCHMID CASE UNTIL LITIGATION IN THAT CASE HAS BEEN COMPLETED.

UPON RECEIPT OF NOTIFICATION FROM THE DEPARTMENT OF JUSTICE OF THE CONCLUSION OF THE JUDICIAL PROCEEDINGS IN THE SCHMID CASE, FURTHER CONSIDERATION WILL BE GIVEN YOUR REQUEST FOR ADVANCE DECISION.