B-129089, OCTOBER 5, 1956, 36 COMP. GEN. 283

B-129089, OCTOBER 5, 1956, 36 COMP. GEN. 283

MILITARY PERSONNEL - MUSTERING-OUT PAYMENTS MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO WHILE ON ACTIVE DUTY ENLIST, REENLIST OR ACCEPT COMMISSIONED APPOINTMENTS IN THE REGULAR SERVICES MAY NOT BE DENIED MUSTERING-OUT PAYMENTS BY REASON OF AN ADMINISTRATIVE REGULATION WHICH PROVIDED THAT AN APPOINTMENT IN THE REGULAR SERVICE WAS NOT AN AUTOMATIC VACATION OF RESERVE STATUS NOR A FORMAL DISCHARGE OR RELEASE FROM ACTIVE DUTY FOR MUSTERING-OUT PAYMENTS.

TO M. L. JOHNSON, DEPARTMENT OF THE ARMY, OCTOBER 5, 1956:

BY FIRST ENDORSEMENT DATED AUGUST 27, 1956, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF AUGUST 13, 1956, SUBMITTING FOR DECISION A VOUCHER STATED IN FAVOR OF CAPTAIN ALBERT C. MALONE, JR., 1063275, JAG, FOR $200 AS MUSTERING-OUT PAYMENT UNDER THE PROVISIONS OF TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, APPROVED JULY 16, 1952, 66 STAT. 688, 38 U.S.C. 1011, AS IMPLEMENTED BY PARAGRAPH 151 (2) (E), ARMY REGULATIONS NO. 35-1340, CHANGES NO. 3, DATED JULY 25, 1956.

SECTION 501 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 EXTENDS ELIGIBILITY FOR MUSTERING-OUT PAYMENT TO EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE ON OR AFTER JUNE 27, 1950, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS, EXCEPT THOSE MEMBERS WHO ARE DISCHARGED AFTER PARTICULAR TYPES OF SERVICE AS SPECIFIED IN THE ACT. SECTION 502, 38 U.S.C. 1012, OF THE ACT AUTHORIZES THE PAYMENT OF THE MUSTERING OUT PAYMENT IN DIFFERENT AMOUNTS, DEPENDING UPON THE LENGTH AND CHARACTER OF SERVICE PERFORMED, SUCH PAYMENT TO BE MADE IN INSTALLMENTS UPON AND AFTER FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE. SECTION 502 FURTHER PROVIDES THAT A PERSON ENTITLED TO RECEIVE THE FIRST INSTALLMENT OF MUSTERING-OUT PAY AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES SHALL, AT HIS ELECTION, RECEIVE THE WHOLE OF SUCH PAYMENT IN ONE LUMP-SUM, RATHER THAN IN INSTALLMENTS. SECTION 503, 38 U.S.C. 1013, OF THE ACT PROVIDES THAT THE MUSTERING-OUT PAYMENT SHALL ACCRUE AND THE AMOUNTS THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR ULTIMATE RELIEF FROM ACTIVE SERVICE OR, AT THE OPTION OF THE MEMBER, AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES. SECTION 505 (B), 38 U.S.C. 1015 (B), PROVIDES THAT THE SECRETARIES OF THE RESPECTIVE SERVICES SHALL MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THE ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT ITS PROVISIONS, AND THAT THEIR DECISIONS SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL.

PARAGRAPH 15I (2) (E), ARMY REGULATIONS NO. 35-1340, CHANGES NO. 3, DATED JULY 25, 1956, PROVIDES AS FOLLOWS:

* * * A MEMBER OF A RESERVE COMPONENT WHO IS ON ACTIVE DUTY AT THE TIME OF APPOINTMENT AND ACCEPTANCE OF A COMMISSION IN THE REGULAR ARMY AND WHOSE COMMISSION IN THE RESERVE COMPONENT IS AUTOMATICALLY VACATED BY ACCEPTANCE OF A REGULAR ARMY COMMISSION IS ELIGIBLE TO RECEIVE MUSTERING- OUT PAYMENT, IF OTHERWISE ENTITLED. THE PURPOSE OF THIS PROVISION WAS EVIDENTLY TO CORRECT A PRIOR REGULATION, DATED MARCH 22, 1955, WHICH STATED THAT:

A MEMBER OF A RESERVE COMPONENT WHO ENTERED ON EXTENDED ACTIVE DUTY ON OR AFTER 27 JUNE 1950 AND WHO IS ON EXTENDED ACTIVE DUTY AT THE TIME OF APPOINTMENT AND ACCEPTANCE OF A COMMISSION IN THE REGULAR ARMY AND WHOSE COMMISSION IN THE CIVILIAN COMPONENT IS AUTOMATICALLY VACATED BY ACCEPTANCE OF A REGULAR ARMY COMMISSION IS NOT ENTITLED TO MUSTERING-OUT PAYMENT, SINCE SUCH MEMBER IS NOT DISCHARGED OR RELIEVED FROM ACTIVE DUTY.

AN EARLIER REVISION OF AR 35-1340, DATED OCTOBER 26, 1951, HAD PROVIDED (IN PARAGRAPH 12G) THAT , MEMBERS DISCHARGED OR RELIEVED FROM ACTIVE DUTY TO ACCEPT APPOINTMENTS AS WARRANT OR COMMISSIONED OFFICERS * * * ARE NOT ENTITLED TO MUSTERING-OUT PAYMENTS.' HOWEVER, CHANGES NO. 1 TO SUCH REGULATIONS, DATED AUGUST 25, 1952, PROVIDED (IN PARAGRAPH 12G (2) (C) ( AS FOLLOWS:

A MEMBER WHO ENTERED ACTIVE SERVICE ON OR AFTER JULY 1947 AND WHO WAS DISCHARGED OR RELIEVED FROM ACTIVE DUTY ON OR AFTER 27 JUNE 1950 FOR THE PURPOSE OF ACCEPTING APPOINTMENT AS A WARRANT OR COMMISSIONED OFFICER IN A REGULAR COMPONENT OF THE ARMED FORCES OR FOR THE PURPOSE OF ENLISTING OR REENLISTING IN A REGULAR COMPONENT OF THE ARMED FORCES IS ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT UNDER THE PROVISIONS OF THE ACT OF 16 JULY 1952, IF OTHERWISE ENTITLED THERETO. ALSO, EARLIER REGULATIONS (PARAGRAPH 11G (2), AR 35-2490, DATED FEBRUARY 20, 1946), ISSUED UNDER THE MUSTERING- OUT PAYMENT ACT OF 1944, 38 U.S.C. 691-691G, HAD PROVIDED THAT " PERSONNEL DISCHARGE OR RELIEVED FROM ACTIVE DUTY ON OR AFTER 1 JUNE 1945 FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT AS WARRANT OR COMMISSIONED OFFICER IN THE REGULAR ARMY ARE ELIGIBLE FOR MUSTERING-OUT PAYMENT, IF OTHERWISE ENTITLED THERETO.'

IT APPEARS THAT CAPTAIN MALONE SERVED AS A RESERVE OFFICER IN THE ARMY OF THE UNITED STATES FROM FEBRUARY 20, 1950, TO NOVEMBER 29, 1950, AT WHICH TIME HE WAS OFFERED AND ACCEPTED A COMMISSION IN THE REGULAR ARMY. YOUR DOUBT AS TO THE PROPRIETY OF PAYING HIM MUSTERING-OUT PAY APPEARS TO BE BASED ON THE CONCLUSION THAT SUCH PAYMENT MIGHT BE UNAUTHORIZED BECAUSE IT WOULD BE CONTRARY TO AN ARMY VIEW AND PRACTICE ANNOUNCED, IN SPECIFIC TERMS, IN THE PARAGRAPH OF THE REGULATIONS OF MARCH 22, 1955, WHICH IS QUOTED ABOVE, AND BECAUSE THE REGULATIONS OF JULY 25, 1956, QUOTED ABOVE, APPARENTLY SHOULD NOT BE GIVEN ANY RETROACTIVE EFFECT.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952 DISCLOSES THAT THE CONGRESS CONSIDERED THE MUSTERING-OUT PAYMENT PROVISIONS OF THE ACT TO BE COMPARABLE IN INTENT AND PURPOSE TO THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, 38 U.S.C. 690A, AS AMENDED. SECTION 3 OF THE 1944 ACT, 38 U.S.C. 691D, PROVIDED THAT THE MUSTERING-OUT PAYMENT AUTHORIZED BY THAT ACT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE. SECTION 3 OF THE ACT WAS AMENDED, HOWEVER, BY SECTION 7 (B) OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 540, 38 U.S.C. 691C, TO AUTHORIZE MUSTERING-OUT PAYMENT TO BE RECEIVED BY MEMBERS, AT THEIR OPTION, UPON ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT.

IT SEEMS CLEAR THAT IT WAS THE INTENT OF THE 1944 ACT, AT LEAST AFTER THE AMENDMENT OF OCTOBER 6, 1945, AND OF THE 1952 ACT FROM THE DATE OF ITS ENACTMENT THAT MUSTERING-OUT PAYMENT SHOULD ACCRUE TO RESERVISTS BEING INTEGRATED INTO THE REGULAR ARMY, AS OF THE DATE OF ACCEPTANCE OF THE APPOINTMENT IN THE REGULAR ARMY, WITHOUT REGARD TO THE QUESTION WHETHER SUCH INTEGRATION, IN ANY INDIVIDUAL CASE, INVOLVED A FORMAL DISCHARGE OR RELEASE FROM ACTIVE DUTY OR WHETHER THE FORMAL DISCHARGE OR RELEASE WAS DEEMED UNNECESSARY BECAUSE THE ACCEPTANCE OF A REGULAR ARMY APPOINTMENT BY AN OFFICER OF A RESERVE COMPONENT OF THE ARMY WAS CONSIDERED AS HAVING THE EFFECT OF VACATING HIS RESERVE COMMISSION. IT SEEMS PLAIN THAT THE VACATION OF THE RESERVE APPOINTMENT WAS TANTAMOUNT TO A DISCHARGE OR RELEASE FROM ACTIVE DUTY AS A RESERVIST. HENCE, IT IS OUR VIEW THAT ANY REGULATION PURPORTING TO DENY MUSTERING-OUT PAYMENT TO A MEMBER OF A RESERVE COMPONENT OF THE ARMY SEPARATED FROM ACTIVE DUTY AS A RESERVIST (BY AUTOMATIC VACATION OF RESERVE STATUS OR OTHERWISE) FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT (COMMISSION) IN THE REGULAR ARMY WOULD BE CLEARLY INCONSISTENT WITH THE PERTINENT STATUTORY PROVISIONS, AS WAS RECOGNIZED BY THE SECRETARY OF THE ARMY IN THE CORRECTIVE REGULATION OF JULY 25, 1956. PAYMENT NOW DOES NOT INVOLVE THE RETROACTIVE APPLICATION OF THAT REGULATION BUT ONLY THE RECOGNITION OF A STATUTORY RIGHT NOT PRIMARILY DEPENDENT ON A REGULATION.

IT IS CONCLUDED, THEREFORE, THAT BEGINNING JUNE 1, 1945, (CHANGED FROM OCTOBER 6, 1945, BY B-129089, OCTOBER 16, 1956, UNPUBLISHED DECISION), A MEMBER OF A RESERVE COMPONENT SEPARATED FROM ACTIVE DUTY AS A RESERVIST FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT (COMMISSION) IN THE REGULAR ARMY IS ENTITLED TO THE MUSTERING-OUT PAYMENT, IF HE SO ELECTS AND HE IS OTHERWISE ELIGIBLE FOR SUCH PAYMENT.

ACCORDINGLY, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH, TOGETHER WITH THE OTHER PAPERS ACCOMPANYING YOUR LETTER, IS RETURNED.