B-130306, MARCH 13, 1957, 36 COMP. GEN. 645

B-130306, MARCH 13, 1957, 36 COMP. GEN. 645

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - INTEGRATION OF MEMBERS OF ARMY AND AIR FORCE OF UNITED STATES INTO REGULAR ARMY AND AIR FORCE SERVICE THE ACCEPTANCE OF A REGULAR ARMY OR AIR FORCE COMMISSION BY AN OFFICER, WHO IS SERVING ON ACTIVE DUTY UNDER A COMMISSION IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT, DOES NOT TERMINATE THE EXISTING COMMISSION, AND, THEREFORE, UNLESS THE REGULAR SERVICE APPOINTMENT OR SOME OTHER OFFICIAL ORDER EXPRESSLY TERMINATES THE EXISTING COMMISSION AT THE TIME OF ACCEPTANCE, THE MEMBER MAY NOT BE CONSIDERED AS HAVING BEEN DISCHARGED OR RELEASED FOR ENTITLEMENT TO MUSTERING-OUT PAY. AN ARMY OR AIR FORCE RESERVE MEMBER WHO IS PROMOTED TO A HIGHER GRADE IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, AND WHO, WHILE SERVING IN THE "WITHOUT COMPONENT" APPOINTMENT, RECEIVES AN APPOINTMENT TO A LOWER GRADE IN THE REGULAR SERVICE BUT CONTINUES TO SERVE IN THE "WITHOUT COMPONENT" APPOINTMENT HAS VACATED THE RESERVE COMMISSION BUT MAY NOT BE REGARDED AS HAVING BEEN DISCHARGED OR RELEASED FOR ACCEPTANCE OF THE REGULAR SERVICE APPOINTMENT SO AS TO BE ENTITLED TO MUSTERING-OUT PAY. AN ACTIVE ARMY OR AIR FORCE RESERVE MEMBER WHO IS APPOINTED IN A REGULAR COMPONENT IN A LOWER GRADE WITH SIMULTANEOUS APPOINTMENT IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, HAS TERMINATED HIS RESERVE APPOINTMENT AND MAY BE CONSIDERED AS HAVING BEEN RELEASED FROM ACTIVE DUTY OR DISCHARGED TO ACCEPT A REGULAR SERVICE APPOINTMENT SO AS TO BE ENTITLED TO MUSTERING-OUT PAY, NOTWITHSTANDING THAT, AFTER THE REGULAR APPOINTMENT, THE MEMBER CONTINUED TO SERVE IN THE SAME GRADE AS THAT HELD IN THE RESERVES. MUSTERING-OUT PAY CLAIMS OF MEMBERS OF THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, WHO WERE INTEGRATED INTO THE REGULAR SERVICES MAY NOT BE CONSIDERED UNLESS THEY ARE FILED WITHIN TEN YEARS OF THE DATE OF INTEGRATION, PLUS THE TIME THAT SUCH TEN-YEAR PERIOD MAY HAVE BEEN EXTENDED BY THE MEMBER'S MILITARY SERVICE PURSUANT TO EITHER THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940 OR THE PROVISO IN THE ACT OF OCTOBER 9, 1940.

TO THE SECRETARY OF DEFENSE, MARCH 13, 1957:

REFERENCE IS MADE TO LETTER DATED JANUARY 9, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), ENCLOSING A COPY OF MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 163 AND REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH ARE SET FORTH THEREIN AND WHICH HAVE ARISEN AS A RESULT OF OUR DECISION OF OCTOBER 5, 1956, 36 COMP. GEN. 283 (B-129089), CONCERNING THE PAYMENT OF MUSTERING-OUT PAY TO CERTAIN MEMBERS OF THE ARMY UPON APPOINTMENT OR COMMISSION IN THE REGULAR ARMY.

IN THE CASE CONSIDERED IN DECISION OF OCTOBER 5, 1956, B-129089, 36 COMP. GEN. 283, THE OFFICER WAS SERVING (DURING THE PERIOD FEBRUARY 20, 1950, TO NOVEMBER 29, 1950) AS A RESERVE OFFICER IN THE ARMY OF THE UNITED STATES (COMMISSIONED OFFICER OF A RESERVE COMPONENT), AND WHILE SO SERVING WAS OFFERED AND ACCEPTED A COMMISSION IN THE REGULAR ARMY. IT WAS CONCLUDED THAT MUSTERING-OUT PAYMENT ACCRUED TO RESERVISTS WHO WERE 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. WE SAID THAT THE VACATION OF THE RESERVE APPOINTMENT WAS TANTAMOUNT TO A DISCHARGE OR RELEASE FROM ACTIVE DUTY AS A RESERVIST AND 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 INCONSISTENT WITH THE PERTINENT STATUTORY PROVISIONS, AS WAS RECOGNIZED BY THE SECRETARY OF THE ARMY IN A CORRECTIVE REGULATION OF JULY 25, 1956. WE ALSO SAID THAT PAYMENT CURRENTLY DOES NOT INVOLVE THE RETROACTIVE APPLICATION OF THE REGULATION OF JULY 25, 1956, BUT ONLY THE RECOGNITION OF A STATUTORY RIGHT NOT PRIMARILY DEPENDENT ON A REGULATION. WE CONCLUDED THAT BEGINNING JUNE 1, 1945 (SEE B-129089, OCTOBER 16, 1956), A MEMBER OF A RESERVE COMPONENT SEPARATED FROM ACTIVE DUTY AS A RESERVIST FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR ARMY IS ENTITLED TO THE MUSTERING-OUT PAYMENT, IF HE SO ELECTS AND HE IS OTHERWISE ELIGIBLE FOR SUCH PAYMENT.

THE QUESTIONS ON WHICH A DECISION IS NOW REQUESTED ARE SET FORTH IN COMMITTEE ACTION NO. 163 AS FOLLOWS:

1. IN VIEW OF THE PROVISIONS OF SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944 (58 STAT. 9) AS AMENDED BY SECTION 7 (B) OF THE ACT OF 6 OCTOBER 1945 (59 STAT. 540) OR TITLE V OF THE ACT OF 16 JULY 1952 (66 STAT. 688), MAY A MEMBER OF THE ARMY OR AIR FORCEBE PAID MUSTERING-OUT PAY ON OR AFTER 1 JUNE 1945 UPON HIS APPOINTMENT (COMMISSION) IN THE REGULAR ARMY OR REGULAR AIR FORCE, IF OTHERWISE ENTITLED, UNDER THE FOLLOWING CIRCUMSTANCES:

A. A MEMBER SERVING ON ACTIVE DUTY IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, IS APPOINTED IN A REGULAR COMPONENT OF HIS SERVICE?

B. A MEMBER SERVING ON ACTIVE DUTY IN A RESERVE COMPONENT OF THE ARMY OR AIR FORCE WHO IS PROMOTED TO A HIGHER GRADE IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, AND WHILE SO SERVING IS APPOINTED TO A LOWER GRADE IN A REGULAR COMPONENT BUT CONTINUES TO SERVE IN THE HIGHER GRADE OF THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT?

C. A MEMBER SERVING ON ACTIVE DUTY IN A RESERVE COMPONENT OF THE ARMY OR AIR FORCE WHO IS APPOINTED IN A REGULAR COMPONENT OF HIS SERVICE IN A LOWER GRADE WITH SIMULTANEOUS APPOINTMENT IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, IN THE SAME GRADE AS THAT HELD IN A RESERVE COMPONENT, AND WHO CONTINUES TO SERVE IN SUCH HIGHER GRADE?

2. IF THE ANSWER TO QUESTION 1 OR ANY PART THEREOF IS IN THE AFFIRMATIVE WOULD THE ACT OF 9 OCTOBER 1940 (54 STAT. 1061, CH 788) PRECLUDE PAYMENT TO A MEMBER WHO BECAME ENTITLED TO MUSTERING-OUT PAY RETROACTIVELY TO 1 JUNE 1945?

3. WOULD THE ACT OF 9 OCTOBER 1940, SUPRA, PRECLUDE PAYMENT TO A MEMBER WHO BECAME ENTITLED TO MUSTERING-OUT PAY RETROACTIVELY TO 1 JUNE 1945 AS A RESULT OF DECISION B-129089 OF THE COMPTROLLER GENERAL, DATED 5 OCTOBER 1956 AS AMENDED 16 OCTOBER 1956?

AS STATED IN OUR DECISION OF OCTOBER 5, 1956, B-129089, 36 COMP. GEN. 283, 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, AS AMENDED, 38 U.S.C. 691-691G. SECTION 3 OF THE 1944 ACT AS AMENDED BY SECTION 7 (B) OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 540, 38 U.S.C. 691C, AUTHORIZED MUSTERING -OUT PAYMENT TO MEMBERS, AT THEIR OPTION, UPON ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT. HOWEVER, BOTH THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, AND TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, CLEARLY AUTHORIZE PAYMENT OF MUSTERING-OUT PAY, AT THE OPTION OF A PERSON WHO IS OTHERWISE ELIGIBLE, AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE DUTY FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.

IT IS POINTED OUT IN THE DISCUSSION IN COMMITTEE ACTION NO. 163, INSOFAR AS IT RELATES TO QUESTION A, THAT PERSONS HOLDING COMMISSIONS IN THE ARMY OR AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, GENERALLY WERE SEPARATED FROM SUCH COMMISSIONS UPON THEIR APPOINTMENT IN A REGULAR COMPONENT UNLESS THEY WERE SPECIFICALLY AUTHORIZED TO CONTINUE TO SERVE IN THE GRADE HELD IN THE ARMY OR AIR FORCE WITHOUT COMPONENT, SUCH AUTHORIZATION USUALLY BEING GIVEN WHEN THE "WITHOUT COMPONENT" GRADE WAS HIGHER THAN THE GRADE TO WHICH APPOINTED IN THE REGULAR SERVICE. IN THAT CONNECTION, THE ACCEPTANCE OF A REGULAR ARMY COMMISSION DOES NOT TERMINATE AN EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES. SEE DIGEST OF OPINIONS, THE JUDGE ADVOCATES GENERAL OF THE ARMED FORCES (1953-54), VOL. 3, OFFICERS, SEC 141, PAGE 595. SINCE THE MEMBER DESCRIBED IN QUESTION A COULD HAVE CONTINUED TO HOLD HIS COMMISSION IN THE ARMY OR AIR FORCE OF THE UNITED STATES AFTER HIS APPOINTMENT IN THE REGULAR SERVICE, IT IS OUR VIEW THAT UNLESS SUCH APPOINTMENT OR SOME OTHER OFFICIAL ORDER EXPRESSLY PROVIDED FOR TERMINATION OF THE COMMISSION IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT, AT THE TIME OF THE MEMBER'S ACCEPTANCE OF AN APPOINTMENT IN THE REGULAR SERVICE, THE MEMBER COULD NOT BE CONSIDERED AS HAVING BEEN DISCHARGED OR RELEASED FROM THEIR ARMY OF THE UNITED STATES OR AIR FORCE OF THE UNITED STATES STATUS AT THE TIME OF APPOINTMENT IN THE REGULAR COMPONENT.

AS TO THE MEMBER DESCRIBED IN QUESTION B, THERE IS NO DOUBT THAT SUCH MEMBER VACATED HIS RESERVE COMMISSION IN THE ARMY OR AIR FORCE UPON HIS APPOINTMENT IN THE REGULAR SERVICE, BUT AT THE TIME OF SUCH APPOINTMENT HE WAS SERVING ON ACTIVE DUTY UNDER AN APPOINTMENT IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT AND HE CONTINUED TO SERVE UNDER THE ,WITHOUT COMPONENT" APPOINTMENT AFTER APPOINTMENT IN THE REGULAR SERVICE. IN SUCH CIRCUMSTANCES WE MUST CONCLUDE THAT THE MEMBER WAS NOT DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE. QUESTION B IS ANSWERED IN THE NEGATIVE.

THE MERE FACT THAT THE MEMBER DESCRIBED IN QUESTION C RECEIVED AN APPOINTMENT IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT AT THE SAME TIME HE RECEIVED HIS APPOINTMENT IN A REGULAR COMPONENT WHILE HE WAS SERVING ON ACTIVE DUTY IN A RESERVE COMPONENT WOULD NOT PRECLUDE HIS RIGHT TO MUSTERING-OUT PAY, IF OTHERWISE ELIGIBLE. THE MEMBER HERE, AS DISTINGUISHED FROM THE MEMBER DESCRIBED IN QUESTION B, DID NOT PREVIOUSLY HOLD A COMMISSION OR APPOINTMENT IN THE ARMY OR AIR FORCE WITHOUT COMPONENT. SINCE SUCH MEMBER'S RESERVE COMMISSION (UNDER WHICH HE WAS SERVING ON ACTIVE DUTY) DEFINITELY TERMINATED AT THE TIME HE WAS APPOINTED IN THE REGULAR COMPONENT, AND SINCE HE DID NOT, PRIOR TO THAT TIME, HOLD AN APPOINTMENT IN THE ARMY OR AIR FORCE WITHOUT COMPONENT, HE MAY BE CONSIDERED AS HAVING BEEN RELEASED FROM ACTIVE DUTY OR DISCHARGED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE, NOTWITHSTANDING THE FACT THAT HE WAS AUTHORIZED TO CONTINUE TO SERVE AFTER THE REGULAR APPOINTMENT IN THE SAME GRADE AS THAT WHICH HE HAD HELD IN THE RESERVE COMPONENT. QUESTION C, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE.

UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WE ARE PRECLUDED FROM CONSIDERING ANY CLAIM OR DEMAND AGAINST THE UNITED STATES WHICH IS COGNIZABLE BY OUR OFFICE UNLESS RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE IF FIRST ACCRUED, SUBJECT TO THE PROVISO THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSES OF THAT ACT, IT IS CONSIDERED THAT PEACE WAS ESTABLISHED JULY 25, 1947, SINCE JOINT RESOLUTION OF JULY 25, 1947, 61 STAT. 451, SO PROVIDES. IN CONSIDERING THE EFFECT OF THE ACT OF OCTOBER 9, 1940, ON THE RIGHT OF A MEMBER TO RECEIVE MUSTERING-OUT PAY WITH RESPECT TO A RELEASE OR DISCHARGE ON OR AFTER JUNE 1, 1945, SUCH ACT MUST BE CONSIDERED IN CONJUNCTION WITH SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, 50 U.S.C. APP. 525. THAT SECTION PROVIDES THAT THE PERIOD OF MILITARY SERVICE SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY LAW FOR THE BRINGING OF ANY ACTION OR PROCEEDING BY OR AGAINST ANY PERSON IN MILITARY SERVICE, WHETHER THE CAUSE OF ACTION OR RIGHT SHALL HAVE ACCRUED PRIOR TO OR DURING THE PERIOD OF SUCH SERVICE. SINCE ANY RIGHT TO MUSTERING-OUT PAY WHICH ACCRUED TO THE MEMBERS HERE INVOLVED WOULD HAVE ACCRUED AT THE TIME THEY WERE INTEGRATED INTO THE REGULAR ARMY OR AIR FORCE, AND SINCE IT WOULD APPEAR THAT ALL OF THEM CONTINUED ON ACTIVE DUTY AFTER SUCH INTEGRATION, THEIR RIGHT TO MUSTERING-OUT PAY WOULD NOT BE BARRED WITHIN THE 10-YEAR PERIOD PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, PLUS THE TIME THAT SUCH PERIOD MAY HAVE BEEN EXTENDED BY MILITARY SERVICE UNDER THE PROVISIONS OF SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940. SEE, GENERALLY, BERRY V. UNITED STATES, 130 C.1CLS. 33 (DECIDED NOVEMBER 30, 1954). THE CLAIMS CONTEMPLATED BY QUESTIONS 2 AND 3 ARE NOT TIMELY FILED ON THE BASIS INDICATED, THE PAYMENT OF SUCH CLAIMS WOULD BE PRECLUDED BY THE ACT OF OCTOBER 9, 1940. QUESTIONS 2 AND 3 ARE ANSWERED ACCORDINGLY.