B-128169, FEB. 1, 1957

B-128169, FEB. 1, 1957

TO MR. E. CARRISON WOOD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1956, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 25, 1956, DISALLOWING YOUR CLAIM FOR SEVERANCE PAY, INCIDENT TO THE TERMINATION OF YOUR COMMISSION AS A MAJOR AND YOUR HONORABLE DISCHARGE FROM THE UNITED STATES AIR FORCE ON JULY 22, 1949.

AFTER THE RECEIPT OF YOUR LETTER OF MAY 19, 1956, WE REQUESTED THAT THE DEPARTMENT OF THE AIR FORCE FURNISH US ADDITIONAL INFORMATION CONCERNING YOUR CASE. INCLUDED IN THE INFORMATION FURNISHED PURSUANT TO OUR REQUEST IS A REPORT FROM THE ADJUTANT GENERAL OF THE ARMY. IT APPEARS FROM THAT REPORT THAT THE OFFICIAL RECORDS SHOW, AMONG OTHER THINGS, THAT, WHILE YOU WERE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE ARMY OF THE UNITED STATES, YOU WERE APPOINTED FIRST LIEUTENANT, AIR CORPS, REGULAR ARMY, JULY 5, 1946, WHICH APPOINTMENT YOU ACCEPTED JULY 26, 1946; THAT YOU WERE APPOINTED MAJOR, UNITED STATES AIR FORCE, SEPTEMBER 3, 1948; AND THAT YOU WERE RELIEVED FROM ACTIVE DUTY JULY 22, 1949, ON WHICH DATE YOUR APPOINTMENT AS LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, WAS TERMINATED AND YOUR PROBATIONERY APPOINTMENT AS MAJOR, UNITED STATES AIR FORCE, WAS REVOKED AND YOU WERE HONORABLY DISCHARGED FROM THE UNITED STATES AIR FORCE UNDER THE PROVISIONS OF SECTION 23, NATIONAL DEFENSE ACT OF 1916, AS AMENDED, AND SECTION II, AIR FORCE REGULATION 36-2, AS AMENDED.

SECTION 23 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, 10 U.S.C. 484A, PROVIDES THAT THE SECRETARY OF THE ARMY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, MAY REVOKE THE COMMISSION OF ANY OFFICER ON THE ACTIVE LIST, INITIALLY COMMISSIONED AFTER THE DATE OF THAT SECTION, WHO, AT THE DATE OF SAID REVOCATION, HAS HAD LESS THAN THREE YEARS OF CONTINUOUS SERVICE AS A COMMISSIONED OFFICER OF THE ARMY, AND EACH OFFICER WHOSE COMMISSION IS SO REVOKED SHALL BE DISCHARGED FROM THE ARMY. WHEN THE DEPARTMENT OF THE AIR FORCE WAS ESTABLISHED THESE STATUTORY PROVISIONS WERE MADE APPLICABLE TO OFFICERS OF THE UNITED STATES AIR FORCE.

WHILE YOU CONTEND THAT YOU ACCEPTED YOUR COMMISSION ON JULY 8, 1946, AND, APPARENTLY, THAT YOU DID NOT RECEIVE OFFICIAL NOTICE OF YOUR RELEASE FROM ACTIVE DUTY AND DISCHARGE UNTIL JULY 27, 1949, THE OFFICIAL REPORT RELATING TO YOUR CLAIM DOES NOT SUPPORT YOUR CONTENTIONS AND IT IS AN ESTABLISHED PRINCIPLE THAT, IN THE EVENT OF DISAGREEMENT BETWEEN THE FACTS STATED BY A CLAIMANT AND THOSE ADMINISTRATIVELY REPORTED, THE ACCOUNTING OFFICERS OF THE GOVERNMENT GENERALLY MUST ACCEPT THE ADMINISTRATIVE REPORT OF FACTS AS TRUE IN DISPOSING OF THE CLAIM. 14 COMP. GEN. 927; 16 COMP. GEN. 325.

SINCE, ON THE BASIS OF THE OFFICIAL RECORDS, YOU HAD PERFORMED LESS THAN THREE YEARS OF CONTINUOUS ACTIVE COMMISSIONED SERVICE SUBSEQUENT TO BEING COMMISSIONED IN THE AIR CORPS, REGULAR ARMY, IT APPEARS THAT THE REVOCATION OF YOUR PROBATIONARY APPOINTMENT AS MAJOR, UNITED STATES AIR FORCE, AND YOUR DISCHARGE UNDER THE CITED STATUTORY PROVISIONS AND REGULATIONS WERE PROPER.

NO PROVISION WAS MADE FOR PAYMENT OF SEVERANCE PAY TO OFFICERS DISCHARGED FROM THE UNITED STATES AIR FORCE UNDER THE PROVISIONS OF SECTION 23 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED. SECTION 106/B) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1082, PROVIDED FOR PAYMENT OF SEVERANCE PAY TO OFFICERS REMOVED FROM THE ACTIVE LIST OF THE REGULAR ARMY OR THE REGULAR AIR FORCE PURSUANT TO TITLE I OF THAT ACT. SINCE YOU WERE NOT SO SEPARATED, HOWEVER, PAYMENT OF SEVERANCE PAY IN YOUR CASE IS NOT AUTHORIZED.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF APRIL 25, 1956, IS SUSTAINED.