B-80260, APRIL 21, 1949, 28 COMP. GEN. 596

B-80260: Apr 21, 1949

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WAS PLACED ON TERMINAL LEAVE ON OR ABOUT OCTOBER 17. THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF DEMOBILIZATION FEBRUARY 4. ADDITIONAL FACTS PERTAINING TO THE OFFICER'S STATUS ARE SET FORTH BY THE DEPARTMENT OF THE AIR FORCE. THIS APPOINTMENT WAS TENDERED FOR THE PURPOSE OF RECALLING SUBJECT OFFICER TO ACTIVE DUTY IN THE GRADE HE HELD PRIOR TO PROCESSING FOR RELIEF FROM PREVIOUS PERIOD OF ACTIVE DUTY AND TO ADMINISTRATIVELY VACATE HIS COMMISSION AS MAJOR. WAS ORDERED TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. THAT HE WAS RETURNED TO THE UNITED STATES BY ORDERS DATED OCTOBER 27. WAS RELIEVED FROM ACTIVE DUTY EFFECTIVE JULY 8. THE QUESTION THUS PRESENTED IS WHETHER THE OFFICER.

B-80260, APRIL 21, 1949, 28 COMP. GEN. 596

PAY - MUSTERING-OUT - AIR CORPS RESERVE OFFICERS AN ARMY AIR CORPS RESERVE OFFICER WHO, UPON REVERSION TO AN INACTIVE STATUS, RECEIVED A LUMP-SUM PAYMENT UNDER SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, AND WHO THEREAFTER PERFORMED ACTIVE DUTY AS A CAPTAIN IN THE ARMY OF THE UNITED STATES, MAY NOT BE REGARDED AS ELIGIBLE, IN VIEW OF THE PROHIBITION IN SECTION 1 (B) (4) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, TO RECEIVE ALSO MUSTERING-OUT PAY UPON RELEASE FROM THE LATTER DUTY; MOREOVER, THE PROHIBITION IN SECTION 3 OF THE 1944 STATUTE AGAINST THE PAYMENT OF MUSTERING-OUT PAY MORE THAN ONCE WOULD PRECLUDE THE ALLOWANCE OF MUSTERING-OUT PAY FOR SUCH LATTER ADDITIONAL SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. H. W. HANSEN, DEPARTMENT OF THE AIR FORCE, APRIL 21, 1949:

THERE HAS BEEN RECEIVED BY INDORSEMENT DATED SEPTEMBER 14, 1948, YOUR LETTER OF JULY 30, 1948, ENCLOSING A VOUCHER IN FAVOR OF CAPTAIN ALVIN E. FINK, USAF, COVERING MUSTERING-OUT PAYMENT IN THE SUM OF $300, AND REQUESTING DECISION AS TO WHETHER PAYMENT MAY BE MADE THEREON UNDER THE CIRCUMSTANCES SHOWN BELOW.

IT APPEARS THAT THE OFFICER, FOLLOWING EXTENDED ACTIVE DUTY, WAS PLACED ON TERMINAL LEAVE ON OR ABOUT OCTOBER 17, 1945, AT MARCH FIELD, CALIFORNIA, AS CAPTAIN, AIR CORPS RESERVE, AND THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF DEMOBILIZATION FEBRUARY 4, 1946. ON THE BASIS OF ACTIVE COMMISSIONED SERVICE IN THE AIR CORPS RESERVE FROM JANUARY 16, 1942, TO FEBRUARY 4, 1946, HE RECEIVED A LUMP-SUM PAYMENT OF $2,071, PURSUANT TO SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, 55 STAT. 240. ADDITIONAL FACTS PERTAINING TO THE OFFICER'S STATUS ARE SET FORTH BY THE DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, UNITED STATES AIR FORCE, IN SECOND INDORSEMENT DATED SEPTEMBER 14, 1948, AS FOLLOWS:

A. ACCEPTED TERMINAL LEAVE PROMOTION TO MAJOR, ARMY OF THE UNITED STATES, 3 JANUARY 1946.

B. APPOINTED MAJOR, AIR CORPS RESERVE, 4 FEBRUARY 1946, ACCEPTED 23 NOVEMBER 1946.

C. REVERTED TO INACTIVE STATUS 4 FEBRUARY 1946 BY REASON OF

DEMOBILIZATION.

D. APPOINTED CAPTAIN, ARMY OF THE UNITED STATES, 26 FEBRUARY 1947, THE ACCEPTANCE OF WHICH VACATED HIS COMMISSION AS MAJOR, ARMY OF THE UNITED STATES, BUT DID NOT AFFECT HIS STATUS AS MAJOR, AIR CORPS RESERVE. THIS APPOINTMENT WAS TENDERED FOR THE PURPOSE OF RECALLING SUBJECT OFFICER TO ACTIVE DUTY IN THE GRADE HE HELD PRIOR TO PROCESSING FOR RELIEF FROM PREVIOUS PERIOD OF ACTIVE DUTY AND TO ADMINISTRATIVELY VACATE HIS COMMISSION AS MAJOR, ARMY OF THE UNITED STATES.

E. RECALLED TO ACTIVE DUTY EFFECTIVE 1 APRIL 1947.

F. RELIEVED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS EFFECTIVE 8 JULY 1948.

IT APPEARS THAT THE OFFICER, FOLLOWING RECALL TO ACTIVE DUTY ON APRIL 1, 1947, WAS ORDERED TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; THAT HE DEPARTED ON APRIL 29, 1947; THAT HE WAS RETURNED TO THE UNITED STATES BY ORDERS DATED OCTOBER 27, 1947, AND WAS RELIEVED FROM ACTIVE DUTY EFFECTIVE JULY 8, 1948.

THE QUESTION THUS PRESENTED IS WHETHER THE OFFICER, HAVING RECEIVED THE AIR CORPS RESERVE LUMP-SUM PAYMENT UPON REVERSION TO AN INACTIVE STATUS AS AN AIR CORPS RESERVE OFFICER AND HAVING THEREAFTER SERVED ON ACTIVE DUTY AS CAPTAIN IN THE ARMY OF THE UNITED STATES, IS ELIGIBLE TO RECEIVE MUSTERING-OUT PAY UPON RELEASE FROM THE LATTER DUTY.

SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, 55 STAT. 240, PROVIDES THAT 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 THAT SUCH PAYMENT "SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE.'

THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, 9, AS AMENDED BY SECTION 7 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 540, PROVIDES, IN PERTINENT PART, THAT:

SEC. 1. (A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT.

(B) NO MUSTERING-OUT PAYMENT SHALL BE MADE TO---

(4) ANY AIR CORPS RESERVE OFFICER WHO IS ENTITLED TO RECEIVE A LUMP-SUM PAYMENT UNDER SECTION 2, AS AMENDED (55 STAT. 240), OF THE ACT OF JUNE 16, 1936;

SEC. 2. (A) MUSTERING-OUT PAYMENT FOR PERSONS ELIGIBLE UNDER SECTION 1 SHALL BE IN SUMS AS FOLLOWS.

(1) $300 FOR PERSONS WHO, HAVING PERFORMED ACTIVE SERVICE FOR SIXTY DAYS OR MORE, HAVE SERVED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.

(B) EACH PERSON ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT UNDER SUBSECTION (A) (1) SHALL RECEIVE ONE-THIRD OF THE STIPULATED AMOUNT AT THE TIME OF FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE, OR AT THE OPTION OF THE PERSON SO ELIGIBLE, AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT.

SEC. 3. * * * PROVIDED, THAT NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS ACT 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.

THE STATUTORY PROVISIONS FOR THE MUSTERING-OUT PAYMENTS ARE PREDICATED UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY OF A RELATIVELY PERMANENT NATURE, EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED UNDER THE OPTIONS CONTAINED THEREIN, AND ARE COUPLED WITH THE PROVISION THAT PAYMENT THEREOF SHALL NOT BE MADE MORE THAN ONCE; HENCE, WHEN THE RIGHT HAS ACCRUED BY VIRTUE OF THE PERFORMANCE OF ACTIVE DUTY, TERMINATED BY A RELEASE WHICH DOES NOT CONTEMPLATE RETURN TO DUTY, THE PROHIBITION IMPOSED BY SECTION 1 (B) (4) OF THE STATUTE AGAINST PAYMENT OF MUSTERING-OUT PAY BECOMES EFFECTIVE AND MAY NOT LEGALLY BE REMOVED BY THE INCIDENT OF SUBSEQUENT ADDITIONAL ACTIVE SERVICE. FOR EXAMPLE, IN THE INSTANT CASE HAD THE OFFICER'S RESERVE COMMISSION BEEN REVOKED, WITHOUT TERMINATION OF ACTIVE SERVICE UNDER HIS AUS COMMISSION, AND HAD SUCH ACTIVE SERVICE THEREUNDER CONTINUED WITHOUT BREAK, THERE WOULD APPEAR TO BE LITTLE, IF ANY, DOUBT THAT THE PROHIBITION CONTAINED IN SECTION 1 (B) (4) OF THE STATUTE WOULD PRECLUDE THE PAYMENT OF MUSTERING-OUT PAY BY VIRTUE OF HIS RIGHT TO PAYMENT OF THE LARGER LUMP SUM UNDER THE ACT OF JUNE 16, 1936, AS AMENDED. THE FACT THAT HE PERFORMED ACTIVE SERVICE UNDER AN AUS COMMISSION, SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY AS A MEMBER OF THE AIR CORPS RESERVE, MAY NOT BE ACCEPTED AS A LEGAL BASIS FOR AVOIDING THE PROHIBITION, CONTAINED IN THE MUSTERING-OUT PAYMENT ACT, AGAINST THE PAYMENT OF MUSTERING-OUT PAY TO ANY OFFICER OF THE AIR CORPS RESERVE WHO HAS RECEIVED THE LUMP-SUM PAYMENT.

SINCE THE MUSTERING-OUT PAYMENT ACT OF 1944 SPECIFICALLY EXCLUDES FROM ITS BENEFITS ANY AIR CORPS RESERVE OFFICER ENTITLED TO RECEIVE A LUMP-SUM PAYMENT UNDER THE ACT OF JUNE 16, 1936, AS AMENDED, IT SEEMS CLEAR THAT SUCH LUMP-SUM PAYMENT CONSTITUTES AN EXCLUSIVE BENEFIT IN LIEU OF MUSTERING-OUT PAY FOR SERVICE DURING THE PRESENT WAR, AMD THAT BOTH THE LUMP-SUM AND THE MUSTERING-OUT PAYMENTS MAY NOT BE MADE TO THE SAME INDIVIDUAL. ALSO, IT SEEMS CLEAR FROM THE PROHIBITION AGAINST PAYMENT OF MUSTERING-OUT PAY MORE THAN ONCE THAT ADDITIONAL PERIODS OF SERVICE FOLLOWING HONORABLE DISCHARGE ARE NOT TO BE REGARDED AS AFFORDING A NEW RIGHT TO MUSTERING-OUT PAY FOR SERVICE DURING THE PRESENT WAR.

THE LUMP-SUM PAYMENT WHICH CAPTAIN FINK RECEIVED UPON RELEASE FROM ACTIVE DUTY IN THE AIR CORPS RESERVE RENDERED HIM INELIGIBLE FOR MUSTERING-OUT PAY AT THAT TIME, AND HIS SUBSEQUENT PERIOD OF SERVICE MAY NOT BE CONSIDERED AS ACCRUING TO HIM THE RIGHT TO RECEIVE MUSTERING OUT PAY FOR SUCH SERVICE.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.