B-157759, AUG 16, 1971

B-157759: Aug 16, 1971

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THE RECORD SHOWS THAT CLAIMANT WAS PROMOTED TO THE GRADE OF MAJOR. WAS CREDITED WITH ACTIVE DUTY SERVICE IN THE GRADE OF CAPTAIN UNTIL RETIREMENT ON AUGUST 1. PROVIDES THAT A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN HIS ACTIVE DUTY GRADE MAY NOT SERVE ON ACTIVE DUTY IN THAT RESERVE GRADE UNLESS SPECIFICALLY ORDERED TO DO SO. SINCE THE RECORD CLEARLY INDICATES THAT CLAIMANT WAS NEVER ORDERED TO SERVE ON ACTIVE DUTY IN THE GRADE OF MAJOR. IT FOLLOWS THAT THERE IS NO BASIS FOR PAYMENT OF THE CLAIM. RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27. AT WHICH TIME YOU WERE APPOINTED SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORP (INACTIVE).

B-157759, AUG 16, 1971

MILITARY PERSONNEL - CORRECTION OF MILITARY RECORDS - ACTIVE DUTY PAY - PROMOTION IN RESERVE STATUS DECISION DENYING CLAIM OF MAJOR DANTE S. REALE, USAF, RETIRED, FOR ACTIVE DUTY PAY AS A MAJOR PURSUANT TO THE CORRECTION OF HIS MILITARY RECORD BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. AS CORRECTED, THE RECORD SHOWS THAT CLAIMANT WAS PROMOTED TO THE GRADE OF MAJOR, AIR FORCE RESERVE, ON APRIL 13, 1963, BUT WAS CREDITED WITH ACTIVE DUTY SERVICE IN THE GRADE OF CAPTAIN UNTIL RETIREMENT ON AUGUST 1, 1969. SECTION 8380(A), 10 U.S.C., PROVIDES THAT A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN HIS ACTIVE DUTY GRADE MAY NOT SERVE ON ACTIVE DUTY IN THAT RESERVE GRADE UNLESS SPECIFICALLY ORDERED TO DO SO. SINCE THE RECORD CLEARLY INDICATES THAT CLAIMANT WAS NEVER ORDERED TO SERVE ON ACTIVE DUTY IN THE GRADE OF MAJOR, IT FOLLOWS THAT THERE IS NO BASIS FOR PAYMENT OF THE CLAIM.

TO MAJOR DANTE S. REALE, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1971, AND LATER CORRESPONDENCE, REQUESTING CONSIDERATION OF YOUR CLAIM FOR ACTIVE DUTY PAY AS A MAJOR PURSUANT TO THE CORRECTION OF YOUR MILITARY RECORD BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS.

THE RECORD INDICATES THAT YOU SERVED ON ACTIVE DUTY IN THE U.S. NAVAL RESERVE FROM SEPTEMBER 1942 UNTIL MARCH 1943 AND IN THE ARMY AIR CORPS FROM JUNE 1943 UNTIL APRIL 1946, AT WHICH TIME YOU WERE APPOINTED SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORP (INACTIVE). YOU WERE RECALLED TO ACTIVE DUTY IN THE AIR FORCE IN JUNE 1951 IN THE GRADE OF SECOND LIEUTENANT AND SERVED CONTINUOUSLY ON ACTIVE DUTY UNTIL RELEASED THEREFROM ON JULY 31, 1961, BY ORDERS DATED JULY 27, 1961.

IN DECISION OF JULY 16, 1969, IN REALE V UNITED STATES, 188 CT. CL. 586, THE UNITED STATES COURT OF CLAIMS HELD THAT SUCH RELEASE FROM ACTIVE DUTY WAS ILLEGAL AND THAT YOU WERE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM AUGUST 1, 1961, THROUGH JULY 16, 1969.

IN ITS FINDINGS OF FACT THE COURT OF CLAIMS STATED THAT YOU WERE TEMPORARILY PROMOTED TO THE GRADE OF FIRST LIEUTENANT ON AUGUST 26, 1952, AND TO THE GRADE OF CAPTAIN ON MARCH 12, 1956, WHICH PROMOTIONS WERE SUBSEQUENTLY MADE PERMANENT.

YOU SAY THAT ON MAY 26, 1970, THE ASSISTANT SECRETARY OF THE AIR FORCE APPROVED THE RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS THAT THE AIR FORCE RECORDS BE CORRECTED TO SHOW THAT YOU WERE PROMOTED TO THE GRADE OF MAJOR, RESERVE OF THE AIR FORCE, EFFECTIVE APRIL 13, 1963; THAT YOU WERE NOT RELEASED FROM ACTIVE DUTY ON JULY 31, 1961, BUT WERE CONTINUED ON ACTIVE DUTY UNTIL JULY 31, 1969; AND THAT YOU WERE RETIRED IN THE GRADE OF MAJOR EFFECTIVE AUGUST 1, 1969.

YOU INDICATE THAT THE AIR FORCE REFUSES TO PAY YOU THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR FOR THE PERIOD APRIL 13, 1963, THROUGH JULY 31, 1969, ON THE GROUND THAT YOUR PROMOTION TO MAJOR WAS EFFECTED IN THE AIR FORCE RESERVE AND THAT YOU DID NOT ACTUALLY SERVE ON ACTIVE DUTY IN THE GRADE OF MAJOR. YOU SAY THAT UNDER THE PROVISIONS OF SECTION 511 OF THE RESERVE OFFICERS PERSONNEL ACT OF 1954, 50 U.S.C. 1341 (WHICH ARE NOW CODIFIED IN 10 U.S.C. 8366 AND 8380), YOUR PROMOTION TO MAJOR "WAS A MANDATORY PROMOTION - RESULTING FROM THE MAXIMUM TIME IN GRADE A RESERVE CAPTAIN CAN HAVE WHILE ON ACTIVE DUTY."

YOU SAY THAT YOU DO NOT WISH TO PUT THE MATTER BEFORE THE COURT OF CLAIMS IF YOU CAN AVOID IT, SINCE IT WOULD TAKE SEVERAL YEARS TO RESOLVE AND THE COST INVOLVED WOULD CONSIDERABLY DIMINISH THE AMOUNT OF MONEY YOU WOULD HAVE COMING TO YOU, AND YOU REQUEST THAT THIS OFFICE RESOLVE THE MATTER AND ADVISE YOU ACCORDINGLY.

OUR DELAY IN ANSWERING YOUR INQUIRY WAS OCCASIONED BY OUR FAILURE TO RECEIVE CERTAIN INFORMATION REQUESTED OF THE AIR FORCE. IT APPEARS, HOWEVER, THAT WE CAN ANSWER YOUR INQUIRY ON THE BASIS OF INFORMATION FURNISHED IN LATER CORRESPONDENCE RECEIVED FROM YOU IN ADDITION TO INFORMATION RECEIVED FROM THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS.

THE AIR FORCE RECORDS WERE CORRECTED BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS TO SHOW THAT THE ORDERS OF JULY 27, 1961, RELATING TO YOUR RELEASE FROM ACTIVE DUTY EFFECTIVE JULY 31, 1961, WERE VOID; THAT YOU WERE NOT RELEASED FROM ACTIVE DUTY ON JULY 31, 1961, BUT WERE CONTINUED ON ACTIVE DUTY UNTIL JULY 31, 1969; THAT YOU WERE PROMOTED TO THE GRADE OF MAJOR, RESERVE OF THE AIR FORCE, EFFECTIVE APRIL 13, 1963; AND THAT YOU WERE RETIRED IN THE GRADE OF MAJOR EFFECTIVE AUGUST 1, 1969, UNDER THE PROVISIONS OF 10 U.S.C. 8911. THE RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS THAT SO MUCH OF YOUR APPLICATION AS RELATED TO "PROMOTION TO THE TEMPORARY GRADE OF MAJOR; REINSTATEMENT ON EXTENDED ACTIVE DUTY SUBSEQUENT TO THE DATE OF JULY 1969" BE DENIED WAS APPROVED BY THE ASSISTANT SECRETARY OF THE AIR FORCE ON MAY 26, 1970.

BY LETTER OF JUNE 16, 1971, YOU SUBMITTED A COPY OF "RETIREMENT ORDER" (AFPMC FORM 45) NO. AC-19800, DEPARTMENT OF THE AIR FORCE, WASHINGTON, DATED JUNE 17, 1970, ISSUED PURSUANT TO YOUR RECORD CORRECTION OF MAY 26, 1970, UNDER 10 U.S.C. 1552, SHOWING YOUR RELEASE FROM ACTIVE DUTY TO BE JULY 31, 1969, THAT YOU WERE RETIRED EFFECTIVE AUGUST 1, 1969, UNDER THE PROVISIONS OF 10 U.S.C. 8911, THAT YOU WERE RETIRED IN THE GRADE OF MAJOR, AND THAT THE HIGHEST GRADE YOU HELD ON ACTIVE DUTY WAS CAPTAIN.

SECTION 511 OF THE RESERVE OFFICERS PERSONNEL ACT OF 1954, 68 STAT. 1175, AS AMENDED BY SUBSECTION 4(H) OF THE ACT OF JUNE 30, 1955, 69 STAT. 220, AND AS CODIFIED IN 10 U.S.C. 8366(D) AND 8380 AND IN EFFECT ON THE EFFECTIVE DATE OF YOUR PROMOTION TO MAJOR IN THE AIR FORCE RESERVE, READS IN PERTINENT PART AS FOLLOWS:

10 U.S.C. 8366(D):

"(D) AN OFFICER WHOSE RESERVE GRADE IS FIRST LIEUTENANT, CAPTAIN, OR MAJOR AND WHOSE NAME IS ON A RECOMMENDED LIST MAY BE PROMOTED AT ANY TIME TO FILL A VACANCY, AND SHALL BE PROMOTED, WITHOUT REGARD TO THE EXISTENCE OF A VACANCY, ON THE DATE ON WHICH HE COMPLETES THE SERVICE PRESCRIBED IN SUBSECTION (A)."

10 U.S.C. 8380:

"(A) A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY (OTHER THAN FOR TRAINING) WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN THE GRADE IN WHICH HE IS SERVING MAY NOT SERVE ON ACTIVE DUTY IN THE RESERVE GRADE TO WHICH HE IS PROMOTED AND IS NOT ENTITLED TO THE RANK, PAY, OR ALLOWANCES OF THAT HIGHER GRADE UNLESS HE IS ORDERED TO SERVE ON ACTIVE DUTY IN THAT HIGHER GRADE OR IS TEMPORARILY PROMOTED TO THAT HIGHER GRADE.

"(B) A RESERVE COMMISSIONED OFFICER ON ACTIVE DUTY (OTHER THAN FOR TRAINING) WHO IS PROMOTED TO A RESERVE GRADE THAT IS HIGHER THAN THE GRADE IN WHICH HE IS SERVING CONTINUES TO SERVE ON ACTIVE DUTY IN THE GRADE IN WHICH HE WAS SERVING IMMEDIATELY BEFORE THAT PROMOTION, AND HE MAY BE APPOINTED IN A TEMPORARY GRADE THAT IS EQUAL TO THE GRADE IN WHICH HE WAS SERVING BEFORE THAT PROMOTION. *** "

IT WILL BE SEEN THAT, IN THE ABSENCE OF ORDERS DIRECTING YOU TO PERFORM ACTIVE DUTY IN THE GRADE OF MAJOR OR ORDERS PROMOTING YOU TO THE TEMPORARY GRADE OF MAJOR, YOU ARE NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR. YOU WERE NOT IN FACT ORDERED TO PERFORM ACTIVE DUTY IN THE GRADE OF MAJOR AND YOUR MILITARY RECORDS WERE NOT CORRECTED TO SHOW THAT YOU WERE ORDERED TO PERFORM ACTIVE DUTY IN THAT GRADE OR THAT YOU WERE PROMOTED TO THE TEMPORARY GRADE OF MAJOR. ON THE CONTRARY, YOUR RETIREMENT ORDERS PREPARED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1552, GOVERNING THE CORRECTION OF MILITARY RECORDS, EXPRESSLY STATE THAT THE HIGHEST GRADE HELD BY YOU ON ACTIVE DUTY WAS THE GRADE OF CAPTAIN.

ACCORDINGLY, IT IS OUR OPINION THAT YOU ARE NOT ENTITLED UNDER YOUR MILITARY RECORD AS CORRECTED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF MAJOR DURING ANY PART OF THE PERIOD FROM APRIL 13, 1963, THROUGH JULY 31, 1969.

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