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B-111903, MAY 15, 1968

B-111903 May 15, 1968
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LOFFEL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 8. ENCLOSED FOR YOUR INFORMATION IS A COPY OF THE STATEMENT OF MR. IT WILL BE NOTED THAT MR. TUCKER WAS DISCHARGED FROM HIS REGULAR ARMY APPOINTMENT ON JANUARY 31. WAS ACCEPTED EFFECTIVE JANUARY 30. THAT HE WAS DISCHARGED FROM THE UNITED STATES ARMY RESERVE ON AUGUST 8. NO BASIS IS PRESENTED FOR PAYMENT TO HIM OF THE NON-REGULAR RETIRED PAY BENEFITS PRESCRIBED IN TITLE III OF THE 1948 ACT (NOW CONTAINED IN CHAPTER 67. WITH RESPECT TO THE SECOND PROVISO IN SECTION 302 (A) OF THE 1948 LAW IS DIRECTLY IN POINT AND NO EXCEPTION TO THAT RULE MAY BE MADE IN MR.

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B-111903, MAY 15, 1968

TO MR. LEO H. LOFFEL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1968, REQUESTING ON BEHALF OF MR. CHARLES S. TUCKER, REVIEW OF DECISION DATED NOVEMBER 6, 1952 (32 COMP. GEN. 225),"TO SEE IF AN EXCEPTION CAN BE MADE IN THIS CASE.'

ENCLOSED FOR YOUR INFORMATION IS A COPY OF THE STATEMENT OF MR. TUCKER'S MILITARY SERVICE PREPARED APRIL 22, 1968, IN THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY. THE STATEMENT DISCLOSES THAT WHILE SERVING AS A LIEUTENANT COLONEL, UNITED STATES ARMY RESERVE, HE ALSO HELD AN APPOINTMENT DURING THE PERIOD NOVEMBER 1, 1954, TO JANUARY 31, 1957, AS A CHIEF WARRANT OFFICER (W2) IN THE REGULAR ARMY. IT WILL BE NOTED THAT MR. TUCKER WAS DISCHARGED FROM HIS REGULAR ARMY APPOINTMENT ON JANUARY 31, 1957 (PARAGRAPH 103, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 21, DATED JANUARY 30, 1957, DISCLOSES THAT RESIGNATION OF HIS APPOINTMENT AS CWO-W2, REGULAR ARMY, WAS ACCEPTED EFFECTIVE JANUARY 30, 1957); THAT HIS APPOINTMENT AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES AND HIS ACTIVE DUTY STATUS TERMINATED ON JANUARY 31, 1957; AND THAT HE WAS DISCHARGED FROM THE UNITED STATES ARMY RESERVE ON AUGUST 8, 1958.

SINCE MR. TUCKER'S DUAL STATUS, I.E., SERVICE AS A MEMBER OF A RESERVE COMPONENT AND AS A MEMBER OF THE REGULAR ARMY DURING THE PERIOD NOVEMBER 1, 1954, TO JANUARY 31, 1957, INCLUSIVE, FALLS SQUARELY WITHIN THE PROHIBITION PRESCRIBED IN THE SECOND PROVISO CONTAINED IN SECTION 302 (A), ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087 (PRESENTLY CODIFIED WITHOUT SUBSTANTIVE CHANGE AS SECTION 1331 (A) (3), TITLE 10, U.S. CODE), NO BASIS IS PRESENTED FOR PAYMENT TO HIM OF THE NON-REGULAR RETIRED PAY BENEFITS PRESCRIBED IN TITLE III OF THE 1948 ACT (NOW CONTAINED IN CHAPTER 67, TITLE 10, U.S. CODE).

IN SUCH CIRCUMSTANCES THE RULE STATED IN DECISION OF NOVEMBER 6, 1952, B- 111903 (32 COMP. GEN. 225), WITH RESPECT TO THE SECOND PROVISO IN SECTION 302 (A) OF THE 1948 LAW IS DIRECTLY IN POINT AND NO EXCEPTION TO THAT RULE MAY BE MADE IN MR. TUCKER'S CASE.

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