B-49360, JAN. 28, 1963

B-49360, JAN. 28, 1963

TO LIEUTENANT COMMANDER MARION E. MOORE, U.S. NAVY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1963, AND RELATED CORRESPONDENCE, PRESENTING CLAIM FOR A LUMP-SUM PAYMENT AS AUTHORIZED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AUGUST 4, 1942, CH. 547, 56 STAT. 738.

IN DECISION OF AUGUST 10, 1945, 25 COMP. GEN. 170, IT WAS HELD THAT OFFICERS WHO HAD BEEN COMMISSIONED IN THE NAVAL OR MARINE CORPS RESERVE PURSUANT TO THE PROVISIONS OF THE NAVAL AVIATION RESERVE ACT OF 1939, JUNE 13, 1939, CH. 205, 53 STAT. 819, OR THE NAVAL AVIATION CADET ACT OF 1942 AND WHOSE COMMISSIONS WERE TERMINATED TO PERMIT SUCH OFFICERS TO ACCEPT COMMISSIONS IN THE REGULAR NAVY OR MARINE CORPS UNDER AUTHORITY OF SECTION 2 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AUGUST 27, 1940, CH. 694, 54 STAT. 864, ARE NOT ENTITLED TO THE LUMP SUM PAYMENT AUTHORIZED BY SECTION 12 OF THE 1942 ACT FOR AVIATION RESERVE OFFICERS UPON RELEASE FROM ACTIVE DUTY. UPON A SUBSEQUENT RECONSIDERATION OF THE MATTER THAT HOLDING WAS SUSTAINED IN DECISION OF JULY 18, 1951, 31 COMP. GEN. 9. YOU EXPRESS DISAGREEMENT WITH THOSE CONCLUSIONS.

THE POSITION TAKEN BY THIS OFFICE IN THE DECISION OF AUGUST 10, 1945 (AND WITH SIMILAR EFFECT AS TO THE DECISION OF JULY 18, 1951) WAS UPHELD BY THE COURT OF CLAIMS ON OCTOBER 9, 1957, IN THE CASE OF EDMONSTON V. UNITED STATES, 140 CT.CL. 199. IN THAT CASE THE OFFICER'S COMMISSION IN THE NAVAL RESERVE WAS TERMINATED ON OCTOBER 31, 1946, TO

PERMIT HIM TO ACCEPT A COMMISSION IN THE REGULAR NAVY THE NEXT DAY. THE OPINION OF THE COMMISSIONER OF THE COURT OF CLAIMS, WHICH WAS ADOPTED BY THE COURT, STATED:

"THE CONCLUSION IS INESCAPABLE, FROM THE TEXT OF THE STATUTE AS A WHOLE AND OF SECTION 12 IN PARTICULAR, THAT RELEASE FROM ACTIVE DUTY IS CLOSELY RELATED TO AND LIMITED BY A RESULTING STATUS OF INACTIVITY INSOFAR AS CONCERNS SERVICE IN THE NAVY OR ANY OF ITS COMPONENTS.

"SINCE PLAINTIFF'S DECEDENT TRANSFERRED FROM THE RESERVE TO THE REGULAR NAVY, HIS RELEASE FROM ACTIVE DUTY IN THE NAVAL RESERVE DID NOT RESULT IN PLACING HIM IN A STATUS OF INACTIVITY. IN FACT, THE PURPOSE AND INTENT OF HIS RELEASE WAS JUST THE CONTRARY: TO ENABLE HIM TO CONTINUE ON ACTIVE DUTY, ALBEIT IN A DIFFERENT COMPONENT OF THE NAVY. THEREFORE, HE WAS NOT RELEASED FROM ACTIVE DUTY WITHIN THE MEANING OF SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942.'

A STATEMENT OF YOUR NAVAL SERVICE, REQUESTED UPON RECEIPT OF YOUR LETTER HERE, HAS BEEN RECEIVED FROM THE BUREAU OF NAVAL PERSONNEL. SUCH STATEMENT SHOWS THAT YOU ENLISTED IN THE UNITED STATES NAVAL RESERVE AS AN AVIATION CADET ON AUGUST 27, 1942; THAT YOU SERVED ON ACTIVE DUTY AS AN AVIATION CADET DURING THE PERIOD JANUARY 14, 1943, TO MARCH 23, 1944, INCLUSIVE; THAT YOU WERE COMMISSIONED AS ENSIGN AV/N), UNITED STATES NAVAL RESERVE ON MARCH 24, 1944, AND SERVED ON ACTIVE DUTY TO NOVEMBER 6, 1946, ON WHICH DATE YOU ACCEPTED A PERMANENT APPOINTMENT AS ENSIGN IN THE REGULAR NAVY. THE RECORD SHOWS THAT YOU HAVE SERVED AS A COMMISSIONED OFFICER OF THE REGULAR NAVY FROM NOVEMBER 7, 1946, TO DATE.

IT SEEMS CLEAR FROM THE FACTS RELATED CONCERNING YOUR NAVAL SERVICE THAT YOUR COMMISSION IN THE UNITED STATES NAVAL RESERVE WAS TERMINATED ON NOVEMBER 6, 1946, TO PERMIT YOU TO ACCEPT A COMMISSION IN THE REGULAR NAVY. HENCE YOUR STATUS FOR PURPOSES OF THE LUMP-SUM PAYMENT PRESCRIBED IN SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942 FALLS SQUARELY WITHIN THE HOLDINGS OF THE DECISIONS OF THIS OFFICE OF AUGUST 10, 1945, AND JULY 18, 1951, AS WELL AS WITHIN THE HOLDING OF THE COURT OF CLAIMS IN THE DECISION OF OCTOBER 9, 1957, IN THE EDMONSTON CASE.