B-151521, JUN. 19, 1963

B-151521, JUN. 19, 1963

TO LIEUTENANT COLONEL SEYMOUR BERMAN, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1963, REQUESTING RECONSIDERATION OF SETTLEMENT DATED APRIL 12, 1963, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNTS WITHHELD FROM YOUR RETIRED PAY IN LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES FOR OVERPAYMENT OF AIR CORPS RESERVE LUMP-SUM BONUS FOR THE PERIOD SEPTEMBER 10, 1947, TO JUNE 24, 1948, UPON YOUR RELEASE FROM ACTIVE DUTY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR ACCEPTANCE OF AN APPOINTMENT ON SEPTEMBER 10, 1947, AS MAJOR IN THE AIR RESERVE VACATED YOUR FORMER APPOINTMENT IN THE AIR CORPS RESERVE AND, SINCE YOU WERE NOT ORDERED TO ACTIVE DUTY UNDER YOUR COMMISSION IN THE AIR RESERVE, YOU WERE NOT ENTITLED AFTER SUCH COMMISSION TO ACTIVE SERVICE CREDIT AS AN AIR CORPS RESERVE OFFICER FOR PAYMENT OF THE LUMP-SUM BONUS PROVIDED BY SECTION 300 A OF TITLE 10, U.S.C. (1946 ED.).

IT IS YOUR CONTENTION THAT YOU WERE SERVING ON ACTIVE DUTY IN A RESERVE STATUS DURING THE PERIOD OF YOUR CLAIM, FOR THE REASON THAT YOU WERE NOT AN OFFICER IN THE REGULAR ARMY AND, HENCE, YOUR STATUS COULD BE ONLY THAT OF AN OFFICER IN THE AIR CORPS RESERVE.

THE RECORD SHOWS THAT HAVING HAD PREVIOUS PERIODS OF ACTIVE SERVICE AS AN ENLISTED MAN IN THE REGULAR ARMY AND IN THE ARMY OF THE UNITED STATES, YOU ACCEPTED A COMMISSION ON FEBRUARY 19, 1942, AS SECOND LIEUTENANT IN THE AIR CORPS RESERVE AND ON FEBRUARY 24, 1942, BEGAN SERVING ON ACTIVE DUTY UNDER THAT COMMISSION. ON NOVEMBER 11, 1942, YOU ACCEPTED A PROMOTION TO THE HIGHER GRADE OF FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES, AN ORGANIZATION SEPARATE AND DISTINCT FROM THE AIR CORPS RESERVE, AND EFFECTIVE FEBRUARY 28, 1944, YOU WERE FURTHER PROMOTED IN THE SAME ORGANIZATION TO THE GRADE OF CAPTAIN. ON SEPTEMBER 10, 1947, YOU ACCEPTED A COMMISSION AS MAJOR IN THE AIR RESERVE. THIS COMMISSION, HOWEVER, CONTAINED THE STATEMENT "THIS DOES NOT AFFECT YOUR CURRENT ACTIVE DUTY STATUS AND YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS.' NO ORDERS WERE ISSUED DIRECTING YOU TO PERFORM UNDER YOUR APPOINTMENT AS MAJOR, AIR RESERVE, PRIOR TO JUNE 24, 1948, THE DATE OF THE ACT (62 STAT. 604, 623, 50 U.S.C. 463 (C) (1952 ED.) (, TERMINATING SERVICE CREDIT FOR THE LUMP-SUM PAYMENTS.

10 U.S.C. 300A (1946 ED.) PROVIDES THAT WHENEVER ANY AIR CORPS RESERVE OFFICE 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 SERVICE. THE ACT OF FEBRUARY 16, 1942, 56 STAT. 94, 10 U.S.C. 292A-1 NOTE (1946 ED.), PROVIDED IN PERTINENT PART THAT DURING ANY WAR IN WHICH THE UNITED STATES WAS THEN ENGAGED, ANY OFFICER OF THE AIR CORPS RESERVE OR ANY OTHER SECTION OF THE OFFICERS' RESERVE CORPS ASSIGNED TO ACTIVE DUTY COULD BE APPOINTED TO HIGHER TEMPORARY GRADE, NOT ABOVE THAT OF COLONEL, IN THE ARMY OF THE UNITED STATES WITHOUT VACATING HIS EXISTING COMMISSION IN THE OFFICERS' RESERVE CORPS. AT THE TIME OF THE ENACTMENT OF THE ACT OF FEBRUARY 16, 1942, FURTHER PROVISIONS CONCERNING THE COMMISSIONS OF OFFICERS IN THE RESERVE CORPS WERE CONTAINED IN TITLE 10 OF THE UNITED STATES CODE (1940 ED.) WHICH PROVIDES (SECTION 355A) THAT "ALL PERSONS APPOINTED IN THE OFFICERS' RESERVE CORPS ARE RESERVE OFFICERS AND SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES," AND (SECTION 513) ,IN TIME OF WAR ANY OFFICER OF THE REGULAR ARMY APPOINTED TO HIGHER TEMPORARY GRADE, AND ALL OTHER PERSONS APPOINTED, AS OFFICERS, SHALL BE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES.'

UNDER THE ABOVE PROVISIONS OF LAW A PERSON TEMPORARILY APPOINTED IN THE ARMY OF THE UNITED STATES WHILE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE AIR CORPS RESERVE SERVED THEREAFTER IN A DUAL STATUS AS A RESERVE OFFICER AND AS AN OFFICER OF THE ARMY OF THE UNITED STATES AND, HENCE, WAS ENTITLED TO THE AUTHORIZED CREDIT FOR LUMP-SUM PAYMENT AFTER APPOINTMENT IN THE ARMY OF THE UNITED STATES FOR THE PERIOD HE LIKEWISE SERVED ON ACTIVE DUTY IN THE STATUS OF AN AIR CORPS RESERVE OFFICER. SEE 24 COMP. GEN. 790 AND 25 ID. 18 (COPIES ENCLOSED).

PARAGRAPH 73, ARMY REGULATIONS 140-5, JUNE 17, 1941, IN EFFECT DURING THE PERIOD HERE CONCERNED PROVIDED:

"VACATION OF APPOINTMENT.--- ANY MEMBER OF THE OFFICERS' RESERVE CORPS WHO ACCEPTS A COMMISSION IN THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, OR IN A DIFFERENT GRADE OR SECTION IN THE OFFICERS' RESERVE CORPS, THEREBY VACATES HIS FORMER COMMISSION IN THE OFFICERS' RESERVE CORPS.'

SINCE THE AIR CORPS RESERVE WAS A PART OF THE OFFICERS' RESERVE CORPS ON SEPTEMBER 10, 1947, WHEN YOU ACCEPTED THE COMMISSION OF MAJOR IN THE AIR RESERVE, SUCH ACCEPTANCE VACATED YOUR PRIOR APPOINTMENT IN THE AIR CORPS RESERVE AND HENCE TERMINATED ANY FURTHER ACTIVE DUTY STATUS AS A RESERVE OFFICER UNDER SUCH APPOINTMENT, AND INASMUCH AS YOUR COMMISSION AS MAJOR IN THE AIR RESERVE DID NOT PROVIDE FOR ACTIVE DUTY UNTIL DIRECTED BY FURTHER ORDERS, YOUR ACTIVE SERVICE IN THE STATUS OF A RESERVE OFFICER WAS THEN TERMINATED. HENCE, IT FOLLOWS THAT ONLY YOUR ACTIVE DUTY STATUS AS AN OFFICER OF THE ARMY OF THE UNITED STATES CONTINUED FROM SEPTEMBER 10, 1947, UNTIL TRANSFERRED TO A SIMILAR STATUS IN THE AIR FORCE OF THE UNITED STATES PURSUANT TO THE NATIONAL SECURITY ACT OF 1947, APPROVED JULY 26, 1947, 61 STAT. 495, FOR WHICH TYPE OF SERVICE CREDIT IS NOT AUTHORIZED IN COMPUTATION OF THE LUMP-SUM BONUS PAYMENT.

ACCORDINGLY, THE SETTLEMENT OF APRIL 12, 1963, WHICH DISALLOWED YOUR CLAIM FOR THE BONUS FOR THE PERIOD SEPTEMBER 10, 1947, TO JUNE 24, 1948, IS SUSTAINED.