B-129367, OCT. 30, 1956

B-129367, OCT. 30, 1956

TO COLONEL FRANK SEYDEL, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 1 AND SEPTEMBER 21, 1956, REQUESTING RECONSIDERATION OF THAT PORTION OF YOUR CLAIM FOR RETIRED PAY SUBSEQUENT TO APRIL 1, 1953, WHICH WAS DISALLOWED BY OUR SETTLEMENT OF MAY 10, 1956. WITH OUR CLAIMS DIVISION LETTER OF AUGUST 31, 1956, YOU WERE FORWARDED A COPY OF OUR DECISION OF MARCH 7, 1956, B-108232, 35 COMP. GEN. 504, WHEREIN IT WAS HELD, QUOTING THE SYLLABUS, THAT:

"THE TRANSFER OF A MEMBER OF THE OFFICERS' RESERVE CORPS TO THE HONORARY RESERVE IN 1948, AND TO THE ARMY OF THE UNITED STATES RETIRED LIST ON SEPTEMBER 1, 1951, PURSUANT TO TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, DID NOT AFFECT OR EXTEND THE MEMBERS' RESERVE CORPS APPOINTMENT WHICH WAS MADE IN 1946 AND WHICH WAS TERMINATED BY OPERATION OF LAW NOT LATER THAN APRIL 1, 1953, AND THEREFORE, RETIRED PAY IN ADDITION TO CIVILIAN COMPENSATION MAY BE PAID ONLY FOR THE PERIOD FROM SEPTEMBER 1, 1951, TO APRIL 1, 1953.'

IT APPEARS THAT YOU WERE APPOINTED COLONEL, HONORARY RESERVE, JULY 7, 1947, AND ACCEPTED ON JULY 11, 1947, AND THAT YOU RETIRED AS COLONEL, ARMY OF THE UNITED STATES ON APRIL 30, 1950, PURSUANT TO THE PROVISIONS OF TITLE III, OF THE ACT OF JUNE 29, 1948, 34 U.S.C. 440H. THEREAFTER YOU WERE EMPLOYED BY THE UNITED STATES AIR FORCE AS A CIVILIAN AND NO RETIRED PAY WAS PAID TO YOU FOR THE PERIOD MAY 1, 1950, THROUGH JUNE 30, 1954, THE PERIOD OF YOUR FEDERAL EMPLOYMENT. BY SETTLEMENT OF OUR CLAIMS DIVISION YOU WERE ALLOWED RETIRED PAY FOR THE PERIOD FROM MAY 1, 1950, TO APRIL 1, 1953, THE LATTER DATE BEING THE DATE ON WHICH YOUR APPOINTMENT IN THE UNITED STATES ARMY RESERVE TERMINATED BY OPERATION OF LAW.

YOU NOW CONTEND THAT YOU DID NOT KNOW YOUR COMMISSION HAD LAPSED; THAT YOU WERE NOT AWARE OF THE FACT THAT YOU COULD HAVE ACCEPTED A COMMISSION IN THE RESERVES IN 1952; ALSO, THAT NO SEPARATION BOARD ACTED ON YOUR CASE AND YOU WERE NOT GIVEN AN OPPORTUNITY TO APPLY FOR AN INDEFINITE APPOINTMENT IN THE ARMY RESERVE AS PROVIDED IN SECTIONS 224 AND 229 OF THE ACT OF JULY 9, 1952, 50 U.S.C. 948 AND 992.

YOUR CONTENTION REGARDING A SEPARATION BOARD IS NOT A VALID ONE AND WOULD SEEM TO BE ANSWERED BY OUR DECISION OF MARCH 7, 1956, CITED ABOVE, IN WHICH IT WAS EXPLAINED THAT THE SEPARATION WAS BY OPERATION OF LAW. WAS STATED---

"YOUR TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST DID NOT AFFECT THE TERM OF YOUR APPOINTMENT IN THE OFFICERS' RESERVE CORPS. SINCE BOTH MEMBERS AND NON-MEMBERS OF RESERVE COMPONENTS MAY BE TRANSFERRED TO OR PLACED ON SUCH LIST, IF THEY ARE OTHERWISE ELIGIBLE * * * THE PLACEMENT OF YOUR NAME ON THAT LIST DID NOT HAVE THE EFFECT OF CONFERRING UPON YOU, OR CONTINUING FOR YOU, MEMBERSHIP IN A RESERVE COMPONENT. MOREOVER, IT IS OUR VIEW THAT EVEN IF YOUR HONORARY RESERVE STATUS WAS CONSIDERED TO HAVE CONTINUED AFTER YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN 1951, AND SOME ACTION WAS TAKEN, UNDER SECTION 213 (A) OF THE 1952 ACT (ARMED FORCES RESERVE ACT OF 1952), TO PLACE YOU IN THE RETIRED RESERVE CREATED BY THAT ACT, SUCH ACTION COULD NOT PROPERLY BE CONSIDERED TO HAVE CONTINUED YOUR RESERVE MEMBERSHIP INDEFINITELY, CONTRARY TO THE TERMS OF THE APPOINTMENT WHICH GAVE YOU THAT MEMBERSHIP, PARTICULARLY SINCE SECTION 224 OF THE 1952 ACT SPECIFICALLY PROVIDED THAT "THE TERM OF * * * (A RESERVE OFFICER-S) PRESENT APPOINTMENT SHALL NOT BE CHANGED BY THIS SECTION" UNLESS HE "SHALL AGREE IN WRITING TO HAVE HIS CURRENT APPOINTMENT CONTINUED FOR AN INDEFINITE TERM.'"

THERE IS NO INDICATION THAT YOU HAD ANY RESERVE MEMBERSHIP AFTER APRIL 1, 1953, WHEN YOUR APPOINTMENT WAS TERMINATED BY OPERATION OF LAW.

WITH REGARD TO YOUR CONTENTIONS THAT THE ARMY DID NOT OFFER YOU AN INDEFINITE APPOINTMENT AS PROVIDED IN SECTION 224, SUPRA, WE ARE OF THE OPINION THAT NO SUCH TENDER OF AN APPOINTMENT UNDER THAT SECTION WAS REQUIRED IN THE ABSENCE OF A STATEMENT FROM YOU IN WRITING THAT YOU AGREED TO SUCH APPOINTMENT.

AFTER CAREFUL CONSIDERATION OF YOUR REQUEST, AND THE REVIEW OF YOUR CLAIM, IT IS DETERMINED THAT THE SETTLEMENT OF MAY 10, 1956, IS CORRECT, AND IS SUSTAINED.