B-129327, OCT. 26, 1956

B-129327, OCT. 26, 1956

TO MAJOR JOHN A. CHAPMAN, USAF, (DG):

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1956, REQUESTING REVIEW OF THE ACTION TAKEN IN SETTLEMENT DATED JANUARY 8, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PAY OF $100 A MONTH COVERING THE PERIOD FROM SEPTEMBER 1, 1947, TO SEPTEMBER 28, 1948, INCIDENT TO ACTIVE DUTY PERFORMED BY YOU AS AN OFFICER OF THE DENTAL CORPS, ARMY OF THE UNITED STATES.

THE RECORDS BEFORE US CONTAIN A COPY OF YOUR LETTER DATED SEPTEMBER 11, 1947, TO THE SURGEON GENERAL, U.S. ARMY, REQUESTING ADVICE AS TO YOUR RIGHT TO ADDITIONAL PAY AS PROVIDED BY THE ACT OF AUGUST 5, 1947, PUBLIC LAW 365. IN REPLY TO YOUR LETTER, THE SURGEON GENERAL'S OFFICE BY FIRST ENDORSEMENT DATED OCTOBER 29, 1947, EXPRESSED THE VIEW THAT UNDER THE PROVISIONS OF PUBLIC LAW 365 AN OFFICER MUST HAVE COMPLETED 24 MONTHS ACTIVE COMMISSIONED SERVICE, AND IT WAS SUGGESTED THAT YOU RESUBMIT YOUR REQUEST AT A LATER DATE. THE RECORD ALSO CONTAINS A REPORT FROM THE AIR ADJUTANT GENERAL DATED APRIL 15, 1953, ON YOUR CASE, STATING, AMONG OTHER THINGS, THAT---

"HE HAD ACTIVE DUTY AS A COMMISSIONED OFFICER FROM 14 JANUARY 1947 TO 29 SEPTEMBER 1948 WHEN HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF DEMOBILIZATION.'

SECTION 1A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 101 OF THE ACT OF AUGUST 5, 1947, 61 STAT. 776 (PUBLIC LAW 365), THE STATUTORY AUTHORITY FOR THE PAYMENT OF ADDITIONAL PAY SUCH AS CLAIMED BY YOU AND IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDED THAT OFFICERS OF THE MEDICAL AND DENTAL CORPS OF THE OFFICERS' RESERVE CORPS, THE NAVAL RESERVE, THE NATIONAL GUARD, THE ARMY OF THE UNITED STATES, AND MEDICAL AND DENTAL OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE WHO MIGHT, DURING THE FIVE-YEAR PERIOD COMMENCING SEPTEMBER 1, 47,"VOLUNTEER AND BE ACCEPTED FOR EXTENDED ACTIVE DUTY OF ONE YEAR OR LONGER" WOULD BE ENTITLED, IN ADDITION TO ANY PAY, ALLOWANCES, AND EMOLUMENTS THAT THEY WERE OTHERWISE ENTITLED TO RECEIVE, TO PAY AT THE RATE OF $100 A MONTH FOR EACH MONTH OF ACTIVE VOLUNTEER SERVICE SUBSEQUENT TO SEPTEMBER 1, 1947. BENEFITS UNDER SUCH PROVISIONS HAVE BEEN CONSIDERED TO ACCRUE ONLY TO OFFICERS NOT OTHERWISE OBLIGATED TO SERVE WHO, SUBSEQUENT TO SEPTEMBER 1, 1947, AFFIRMATIVELY VOLUNTEERED FOR ACTIVE DUTY FOR A PERIOD OF ONE YEAR OR MORE AND WHOSE OFFER WAS ACCEPTED BY PROPER ADMINISTRATIVE AUTHORITY. THE MERE PERFORMANCE OF ACTIVE DUTY OF A VOLUNTARY NATURE, EVEN THOUGH CONTINUING FOR A FULL YEAR OR MORE, DID NOT GIVE RISE TO A RIGHT TO THE BENEFITS IN THE ABSENCE OF SUCH OFFER, NOR DID THE RIGHT ARISE AS A RESULT OF AN OFFICER VOLUNTEERING TO PERFORM ACTIVE DUTY IF THE OFFER WAS NOT AFFIRMATIVELY ACCEPTED BY PROPER ADMINISTRATIVE AUTHORITY. B-107255, APRIL 15, 1952, AND B-124505, OCTOBER 3, 1955.

THERE APPEARS TO HAVE BEEN NO AFFIRMATIVE WRITTEN ACCEPTANCE BY THE DEPARTMENT OF THE ARMY OF AN OFFER BY YOU TO SERVE ON ACTIVE DUTY AT ANY TIME DURING THE PERIOD SEPTEMBER 1, 1947, TO SEPTEMBER 28, 1948, AND IRRESPECTIVE OF THE ADMINISTRATIVE REASON OR REASONS FOR NOT AFFIRMATIVELY ACCEPTING YOUR SERVICES AS CONTEMPLATED BY THE STATUTE DURING THE PERIOD SEPTEMBER 1, 1947, TO SEPTEMBER 28, 1948, THERE IS NO AUTHORITY UNDER THE CITED STATUTORY PROVISIONS FOR THE PAYMENT OF THE ADDITIONAL PAY CLAIMED BY YOU. IT FOLLOWS THAT THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.