B-82429, FEBRUARY 9, 1949, 28 COMP. GEN. 450

B-82429, FEBRUARY 9, 1949, 28 COMP. GEN. 450

AVIATION OFFICER LUMP-SUM PAYMENTS - OFFICER APPOINTED TO GRADE OF WARRANT OFFICER THE LUMP SUM AUTHORIZED BY SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, TO BE PAID AIR CORPS RESERVE OFFICERS WHO, UPON RELEASE FROM ACTIVE DUTY, HAVE NOT BEEN "SELECTED FOR COMMISSION" IN THE REGULAR ARMY MAY BE PAID IN THE CASE OF AN AIR CORPS RESERVE OFFICER WHO, UPON RELEASE FROM ACTIVE DUTY, WAS SELECTED FOR APPOINTMENT TO THE GRADE OF WARRANT OFFICER IN THE REGULAR ARMY.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. H. J. HERRICK, U.S. AIR FORCE, FEBRUARY 9, 1949:

THERE HAS BEEN RECEIVED BY SECOND INDORSEMENT DATED DECEMBER 22, 1948, FROM HEADQUARTERS, UNITED STATES AIR FORCE, YOUR LETTER OF NOVEMBER 2, 1948 (FILE 1016-1ABGFIN/HGH/JAB/RFW), FORWARDING A PAY AND ALLOWANCE VOUCHER, TOGETHER WITH RELATED PAPERS, FOR DECISION AS TO WHETHER PAYMENT THEREON IS AUTHORIZED, THE VOUCHER BEING STATED IN FAVOR OF JOSEPH E. PUNG, MAJOR, USAFR, AO-342974, IN THE AMOUNT OF $3,477.77, COVERING LUMP- SUM PAYMENT UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 3, 1941, 55 STAT. 240, AS AMENDED, 10 U.S.C., SUPP. I, 300A, BASED ON HIS SERVICE AS AN AIR CORPS RESERVE OFFICER DURING THE PERIOD FROM JULY 10, 1941, TO JUNE 23, 1948.

IT APPEARS FROM REPORT DATED JULY 23, 1948, FROM THE ADJUTANT GENERAL OF THE ARMY, SUBMITTED WITH THE VOUCHER, THAT THE OFFICER WAS TRANSFERRED TO THE AIR CORPS RESERVE FEBRUARY 14, 1940, AS A SECOND LIEUTENANT AND IS NOW A LIEUTENANT COLONEL, UNITED STATES AIR FORCE RESERVE (INACTIVE); THAT HE WAS ON ACTIVE DUTY UNDER HIS COMMISSION AS AN AIR CORPS RESERVE OFFICER FROM JULY 10, 1941, TO JULY 1, 1948, WHEN HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF DEMOBILIZATION, AND THAT HE WAS SELECTED FOR APPOINTMENT TO THE GRADE OF WARRANT OFFICER, JUNIOR GRADE, REGULAR ARMY, UPON FINAL HONORABLE TERMINATION OF ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE AIR CORPS RESERVE. A COPY OF SPECIAL ORDERS NO. 134, DEPARTMENT OF THE ARMY, DATED JULY 6, 1948, SHOWS THAT THE OFFICER WAS APPOINTED A WARRANT OFFICER, JUNIOR GRADE, UNITED STATES AIR FORCE, EFFECTIVE JULY 12, 1948.

INASMUCH AS THE OFFICER WAS SELECTED FOR APPOINTMENT TO THE GRADE OF WARRANT OFFICER, JUNIOR GRADE, IN THE REGULAR ARMY, AND SINCE THE PERTINENT STATUTE DOES NOT AUTHORIZE PAYMENT OF THE LUMP SUM TO RESERVE OFFICERS "SELECTED FOR COMMISSION IN THE REGULAR ARMY," DOUBT IS EXPRESSED AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHER.

SECTION 11 OF THE ACT OF APRIL 3, 1939, 53 STAT. 559, AMENDED SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, TO READ AS FOLLOWS:

ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY SHALL BE PAID UPON RELEASE FROM ACTIVE DUTY FOLLOWING THE TERMINATION OF ANY PERIOD OF ACTIVE DUTY OF THREE YEARS OR MORE IN DURATION A LUMP SUM OF $500 WHICH SUM SHALL BE IN ADDITION TO ANY PAY AND ALLOWANCES WHICH HE MAY OTHERWISE BE ENTITLED TO RECEIVE.

SECTION 6 OF THE ACT OF JUNE 3, 1941, 55 STAT. 240, AMENDED THE ABOVE- QUOTED PROVISIONS TO READ AS FOLLOWS:

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 WAR, SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SRRVICE. THE LUMP-SUM PAYMENTS HEREIN AUTHORIZED SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE. ( ITALICS SUPPLIED.)

SECTION 13 (C) OF PUBLIC LAW 759, APPROVED JUNE 24, 1948 (62 STAT. 623), PROVIDES THAT:

(C) IN COMPUTING THE LUMP-SUM PAYMENTS MADE TO AIR FORCE RESERVE OFFICERS UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED ( U.S.C., TITLE 10, SEC. 300A), * * * NO CREDIT SHALL BE ALLOWED FOR ANY PERIOD OF ACTIVE SERVICE PERFORMED FROM THE EFFECTIVE DATE OF THIS TITLE ( JUNE 24, 1948) TO THE DATE ON WHICH THIS TITLE SHALL CEASE TO BE EFFECTIVE. EACH SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR A FRACTIONAL PART OF A YEAR OF ACTIVE SERVICE IN THE CASE OF ANY RESERVE OFFICER SUBJECT TO THE PROVISIONS OF EITHER SUCH SECTION, IF SUCH RESERVE OFFICER PERFORMS CONTINUOUS ACTIVE SERVICE FOR ONE OR MORE YEARS INCLUSIVE OF SUCH SERVICE PERFORMED DURING THE PERIOD IN WHICH THIS TITLE IS EFFECTIVE) AND SUCH ACTIVE SERVICE INCLUDES A FRACTIONAL PART OF A YEAR IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS TITLE, OR IMMEDIATELY FOLLOWING THE DATE ON WHICH THIS TITLE SHALL CEASE TO BE EFFECTIVE, OR BOTH.

JOINT ARMY REGULATION NO. 35-3420, AIR FORCE REGULATION NO. 173-4, DATED NOVEMBER 5, 1948, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

3. LUMP-SUM PAYMENT TO CERTAIN AIR FORCE RESERVE OFFICERS.--- A. STATUTORY AUTHORITY.

(1) WHENEVER ANY AIR FORCE RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY OR REGULAR AIR FORCE 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 OF 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 OR SECRETARY OF THE AIR FORCE, SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE. THE LUMP SUM PAYMENTS HEREIN AUTHORIZED SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICER MAY OTHERWISE BE ENTITLED TO RECEIVE, * * *. ( ITALICS SUPPLIED.)

A WARRANT OFFICER HAS BEEN CONSIDERED AN "OFFICER" OF THE ARMY WITHIN THE MEANING OF CERTAIN LAWS APPLICABLE TO OFFICERS OF THE ARMY. SEE 18 COMP. DEC. 564; 6 COMP. GEN. 433; 21 ID. 708; 25 ID. 516. HOWEVER, A WARRANT OFFICER OF THE ARMY IS NOT A COMMISSIONED OFFICER OF THE ARMY AND SERVICE AS A WARRANT OFFICER HAS NOT BEEN CONSIDERED AS COMING WITHIN THE SCOPE OF STATUTORY PROVISIONS RELATING TO SERVICE AS A COMMISSIONED OFFICER UNLESS THE STATUTE SPECIFICALLY SO PROVIDED. SEE WALTON V. UNITED STATES, 89 C.1CLS. 28; 25 COMP. DEC. 756; 16 COMP. GEN. 232; 26 ID. 205. ALSO, SEE UNITED STATES V. LENSON, 278 U.S. 60, AND 6 COMP. DEC. 495, WITH RESPECT TO WARRANT OFFICERS OF THE NAVY. NEITHER THE LEGISLATIVE HISTORY OF THE ACT OF APRIL 3, 1939--- IN WHICH THERE FIRST APPEARED THE RESTRICTION AGAINST PAYMENT OF LUMP SUM TO AIR CORPS RESERVE OFFICERS WHO HAD BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY--- NOR THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 3, 1941, IN WHICH SUCH RESTRICTION WAS CONTINUED, CONTAINS ANY INDICATION THAT THE CONGRESS INTENDED THAT THE SAID RESTRICTION SHOULD APPLY IN THE CASE OF SUCH OFFICERS WHO HAD BEEN SELECTED FOR APPOINTMENT AS WARRANT OFFICERS IN THE REGULAR ARMY. FOR A DISCUSSION OF THE LEGISLATIVE HISTORY OF THE STATUTORY PROVISIONS AUTHORIZING THE LUMP-SUM PAYMENT FOR AIR CORPS RESERVE OFFICERS, SEE DECISION OF THIS OFFICE DATED DECEMBER 5, 1944, 24 COMP. GEN. 423. THE PHRASE ,SELECTED FOR COMMISSION" BY ITS OWN TERMS REFERS ONLY TO COMMISSIONED OFFICERS AND IN THE ABSENCE OF ANY INDICATION THAT THE SAID PHRASE SHOULD HAVE OTHER THAN ITS USUAL AND ACCEPTED MEANING, IT MUST BE HELD THAT THE RESTRICTION IN QUESTION DOES NOT APPLY IN THE CASE OF AN OFFICER OF THE AIR CORPS RESERVE SELECTED FOR APPOINTMENT AS A WARRANT OFFICER IN THE REGULAR ARMY OR IN THE REGULAR AIR FORCE.

ACCORDINGLY, PAYMENT OF THE VOUCHER IN FAVOR OF " MAJOR" PUNG IS AUTHORIZED IF OTHERWISE CORRECT, THE SAID VOUCHER, WITH SUPPORTING PAPERS, BEING RETURNED HEREWITH.