B-175256, MAY 19, 1972

B-175256, MAY 19, 1972

MILITARY PERSONNEL - INCREASED RETIRED PAY - FLIGHT OFFICERS ACT OF 1942 - ENTITLEMENT DECISION AFFIRMING PRIOR DISALLOWANCE OF A CLAIM OF MASTER SERGEANT WILLIAM J. SIMONINI, USAF, RETIRED, FOR LUMP-SUM PAYMENT INCIDENT TO SERVICE AS A FLIGHT OFFICER AND INCREASED RETIREMENT PAYMENTS BASED ON THE RANK OF WARRANT OFFICER. THE COMP. GEN. IS NOT AWARE OF ANY LAW WHICH WOULD AUTHORIZE THE PAYMENT OF A LUMP-SUM BONUS TO FLIGHT OR COMMISSIONED OFFICERS UNDER THE PROVISIONS OF THE FLIGHT OFFICERS ACT OF 1942. FURTHER, SINCE CLAIMANT WAS NEVER AN AIR CORPS RESERVE OFFICER, HE IS INELIGIBLE FOR THE BONUS PRESCRIBED IN THE ACT OF JULY 16, 1936. FINALLY, SGT. SIMONINI IS NOT ELIGIBLE FOR RETIREMENT UNDER 10 U.S.C. 1293 BECAUSE HE WAS NOT SERVING IN A WARRANT OFFICER CAPACITY AT THE TIME OF RETIREMENT. THAT PORTION OF THE SUBJECT CLAIM INVOLVING MUSTERING-OUT PAY IS BEING FORWARDED TO THE GAO CLAIMS DIVISION FOR FURTHER CONSIDERATION.

TO MASTER SERGEANT WILLIAM J. SIMONINI:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1972, REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION DATED DECEMBER 28, 1971, WHICH DISALLOWED YOUR CLAIM FOR LUMP-SUM PAYMENT INCIDENT TO YOUR SERVICE AS A FLIGHT OFFICER, ARMY OF THE UNITED STATES, FOR THE PERIOD FROM APRIL 6, 1943, THROUGH JUNE 12, 1946, AND INCREASED RETIREMENT PAYMENTS BASED ON THE RANK OF WARRANT OFFICER.

THE FILE SHOWS THAT YOU WERE DISCHARGED AS AN ENLISTED MEMBER ON APRIL 6, 1943, TO ACCEPT AN APPOINTMENT AS A FLIGHT OFFICER, ARMY OF THE UNITED STATES, AND THAT YOU SERVED ON ACTIVE DUTY AS A FLIGHT OFFICER FROM APRIL 7, 1943, TO JUNE 12, 1946, AT WHICH TIME YOU WERE RELIEVED FROM ACTIVE DUTY. YOU AGAIN ENLISTED ON JUNE 29, 1946, AND SERVED AS A MASTER SERGEANT UNTIL YOUR RETIREMENT FROM THE AIR FORCE ON MARCH 30, 1962. THE FILE INDICATES THAT YOUR FLIGHT OFFICER APPOINTMENT IN THE ARMY OF THE UNITED STATES WAS TERMINATED ON APRIL 1, 1953.

YOU SAY THAT YOU WERE APPOINTED FLIGHT OFFICER ON APRIL 6, 1943, AND SERVED ON ACTIVE DUTY UNTIL JUNE 1946, THAT YOU REENLISTED AS MASTER SERGEANT IN JUNE 1946, AND RETIRED AS A MASTER SERGEANT ON MARCH 31, 1962. YOU SUGGEST THAT, SINCE CONGRESS DID NOT TERMINATE THE FLIGHT OFFICER ACT UNTIL 1954, YOU HAD 10 YEARS OFFICER'S SERVICE, WITH ACTIVE DUTY OF THREE YEARS AND TWO MONTHS AS SUCH AND THAT YOU HAD A TOTAL OF TWELVE YEARS AND 2 MONTHS (ACTIVE AND INACTIVE SERVICE) IN GRADE AS A FLIGHT OFFICER. YOU THEREFORE SUGGEST THAT YOU SHOULD HAVE BEEN RETIRED AS A WARRANT OFFICER AND FURTHER YOU SHOULD HAVE BEEN PAID A LUMP-SUM PAYMENT AS A FLIGHT OFFICER.

THE TITLE OF "FLIGHT OFFICER" WAS CREATED BY THE FLIGHT OFFICER ACT OF JULY 8, 1942, 56 STAT. 649, 10 U.S.C. 299A (1946 ED.). THE ACT AUTHORIZED THE SECRETARY OF WAR TO MAKE TEMPORARY APPOINTMENTS AS COMMISSIONED OFFICERS AND FLIGHT OFFICERS IN THE ARMY OF THE UNITED STATES FROM AMONG ENLISTED MEMBERS WHO RECEIVED TRAINING AS AVIATION STUDENTS. IT PROVIDED FURTHER THAT PURSUANT TO PRESCRIBED REGULATIONS FLIGHT OFFICERS MAY BE APPOINTED, BY SELECTION, TO THE GRADE OF SECOND LIEUTENANT AND UPON SUCH APPOINTMENT SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES.

SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, 10 U.S.C. 300A (1946 ED.) PROVIDED IN PERTINENT PART THAT WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAD 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 DUTY AS SUCH OFFICER.

THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, AS AMENDED, 38 U.S.C. 691 (1946 ED.), PROVIDED FOR THE PAYMENT OF NOT MORE THAN $300 TO PERSONS SO ELIGIBLE, AT TIME OF FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE WITH CERTAIN EXCEPTIONS UNDER THE CONDITIONS SPECIFIED.

SECTION 1293 OF TITLE 10, U.S.C. PROVIDES THAT THE SECRETARY CONCERNED MAY, UPON THE REQUEST OF A WARRANT OFFICER, RETIRE THAT OFFICER IF HE HAS AT LEAST 20 YEARS OF ACTIVE SERVICE. SECTION 8914 PROVIDES THAT THE SECRETARY OF THE AIR FORCE MAY APPROVE THE RETIREMENT OF A REGULAR ENLISTED MEMBER OF THE AIR FORCE WHO HAS AT LEAST 20 BUT LESS THAN 30 YEARS OF SERVICE. SECTION 8964 OF THAT TITLE PROVIDES THAT EACH WARRANT OFFICER OF THE AIR FORCE AND EACH ENLISTED MEMBER OF THE REGULAR AIR FORCE WHO IS RETIRED IS ENTITLED, WHEN HIS ACTIVE SERVICE PLUS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS, TO BE ADVANCED ON THE RETIRED LIST TO A GRADE THAT IS EQUAL TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE AIR FORCE.

THE FILE DOES NOT SHOW THAT YOU WERE APPOINTED SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE FLIGHT OFFICER ACT OF 1942. NEITHER THE FLIGHT OFFICER ACT OF 1942 (UNDER WHICH YOU WERE APPOINTED A FLIGHT OFFICER) NOR ANY OTHER LAW OF WHICH WE ARE AWARE AUTHORIZED THE PAYMENT OF A LUMP-SUM BONUS TO MEMBERS OF THE ARMY EITHER AS FLIGHT OFFICERS OR AS COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE FLIGHT OFFICER ACT UPON RELEASE FROM ACTIVE DUTY, SEPARATION FROM THE SERVICE, OR OTHERWISE. THEREFORE YOU ARE NOT ENTITLED TO SUCH A PAYMENT ON ACCOUNT OF YOUR SERVICE AS A FLIGHT OFFICER, ARMY OF THE UNITED STATES.

AS FAR AS THE RECORD SHOWS, YOU WERE NOT APPOINTED AN AIR CORPS RESERVE OFFICER AND CONSEQUENTLY YOU WERE NOT ENTITLED TO THE BONUS AUTHORIZED BY THE 1936 ACT TO BE PAID IN CERTAIN CIRCUMSTANCES TO SUCH OFFICERS UPON RELEASE FROM ACTIVE DUTY.

AS TO YOUR REQUEST THAT YOU BE RETIRED EFFECTIVE MARCH 30, 1962, WITH THE RANK OF WARRANT OFFICER SINCE YOU HAD OVER 10 YEARS' SERVICE (INCLUDING THREE YEARS ACTIVE SERVICE) AS A FLIGHT OFFICER, SECTION 1293 OF TITLE 10, U.S.C. PROVIDES THAT THE SECRETARY CONCERNED MAY, UPON THE REQUEST OF THE WARRANT OFFICER RETIRE HIM THEREUNDER. BY LETTER DATED OCTOBER 29, 1969, THE AIR FORCE ACCOUNTING AND FINANCE CENTER ADVISED YOU WERE NOT ELIGIBLE FOR RETIREMENT UNDER THAT SECTION BECAUSE YOU WERE NOT SERVING AS A WARRANT OFFICER OR HOLDING A VALID APPOINTMENT AS A RESERVE WARRANT OFFICER AT THE TIME OF RETIREMENT AND ALSO THAT YOU HAD NOT SERVED ON ACTIVE DUTY IN A WARRANT OFFICER STATUS FOR AT LEAST FIVE YEARS, AS REQUIRED BY THE AIR FORCE TO BE RETIRED AS A WARRANT OFFICER UNDER THAT PROVISION OF LAW.

WITH RESPECT TO YOUR CLAIM FOR MUSTERING-OUT PAYMENT UPON RELIEF FROM ACTIVE DUTY AS A FLIGHT OFFICER ON JUNE 12, 1946, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO OBTAIN THE NECESSARY INFORMATION TO DETERMINE THE AMOUNT, IF ANY, WHICH MAY BE DUE AT THAT TIME AND WHETHER YOU HAVE RECEIVED SUCH PAYMENT. UPON SUCH DETERMINATION, YOU WILL BE PROMPTLY ADVISED AS TO YOUR ENTITLEMENT.

WITH RESPECT TO YOUR CONTENTION THAT THE ARMY WAS NOT FAIR IN ITS PROMOTION OR APPOINTMENT POLICIES IN YOUR CASE, THIS IS A POLICY MATTER WHICH IS FOR CONSIDERATION BY THE DEPARTMENT OF THE ARMY AND MAY NOT BE QUESTIONED OR REVIEWED BY OUR OFFICE. ANY COMMUNICATION RELATING TO THAT MATTER SHOULD BE ADDRESSED TO THAT DEPARTMENT.

ACCORDINGLY, THE DISALLOWANCE DATED DECEMBER 28, 1971, IS CORRECT AND IS SUSTAINED.