B-132365, AUGUST 8, 1957, 37 COMP. GEN. 94

B-132365, AUGUST 8, 1957, 37 COMP. GEN. 94

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - EVIDENCE OF CONTINUED SERVICE IN ARMY OF UNITED STATES AFTER ACCEPTANCE OF REGULAR ARMY COMMISSION THE ACCEPTANCE OF A REGULAR ARMY COMMISSION AS FIRST LIEUTENANT BY AN OFFICER WHO IS SERVING ON ACTIVE DUTY UNDER A COMMISSION AS CAPTAIN, ARMY OF THE UNITED STATES, WITHOUT COMPONENT, DOES NOT TERMINATE THE EXISTING COMMISSION AND THE FACT THAT THE OFFICER'S MILITARY RECORD AND REPORT OF SEPARATION SHOW HIM AS BEING SEPARATED ON THE DATE OF HIS ACCEPTANCE OF THE REGULAR ARMY COMMISSION DOES NOT IN ITSELF ALTER OR CHANGE HIS STATUS INSOFAR AS HIS EXISTING COMMISSION IN ARMY OF THE UNITED STATES, WITHOUT COMPONENT, IS CONCERNED AND, ACCORDINGLY, THE OFFICER WAS NOT DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE FOR ENTITLEMENT TO MUSTERING-OUT PAY.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, AUGUST 8, 1957:

BY FIRST ENDORSEMENT DATED JUNE 25, 1957, THE ACTING CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF JUNE 10, 1957, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF DELBERT R. BELCHER (PRESENTLY LIEUTENANT COLONEL, USAF, 7077A) FOR MUSTERING-OUT PAY IN THE AMOUNT OF $300, UNDER THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, BASED ON HIS SERVICE DURING THE PERIOD DECEMBER 7, 1941, TO JULY 1, 1947.

YOUR REQUEST THAT A DETERMINATION BE MADE AS TO THE PROPRIETY OF PAYING THE VOUCHER IN VIEW OF OUR DECISIONS OF OCTOBER 5, 1956, B 129089, 36 COMP. GEN. 283, AND MARCH 13, 1957, B-130306, 36 COMP. GEN. 645.

THE OFFICER APPARENTLY IS OF THE OPINION THAT, ON THE BASIS OF CERTAIN DOCUMENTS WHICH HE HAS SUBMITTED, HE IS ENTITLED TO MUSTERING OUT PAY AS CLAIMED. HE STATES, HOWEVER," I INTERPRET PARAGRAPH 23B, SO 121, WAR DEPARTMENT, DATED 19 JUNE 1947, AS PROVIDING THAT ANY COMMISSION IN THE AUS WAS NOT AFFECTED, WITH THE EXCEPTION OF (TERMINAL LEAVE) PROMOTIONS MADE UNDER THE PROVISIONS OF CIR. 10 OR CIR. 140, WD 1946.' HE ALSO STATES " I WAS APPOINTED A ST LIEUTENANT IN THE REGULAR ARMY ON 19 JUNE 1947, UNDER SERIAL NO. AO-45081. IN ADDITION, I BELIEVE THAT PARAGRAPH 23B, SO 121, WAR DEPARTMENT, APPOINTED ME A CAPTAIN, AUS, ON 19 JUNE 1947, SUCH GRADE HAVING BEEN HELD IMMEDIATELY PRIOR TO SEPARATION.'

IT APPEARS FROM THE RECORD ( DD FORM 13) THAT ON SEPTEMBER 16, 1942, THE CLAIMANT ACCEPTED AN APPOINTMENT AS A SECOND LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT; THAT HE WAS PROMOTED TO FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT ON APRIL 24, 1943, AND TO CAPTAIN, ARMY OF THE UNITED STATES WITHOUT COMPONENT ON JUNE 15, 1944; AND THAT HE WAS APPOINTED A FIRST LIEUTENANT IN THE REGULAR ARMY ON JUNE 19, 1947. SUBMITTED WITH THE PAPERS IS WD AGO FORM 53-98, DATED FEBRUARY 9, 1948, SHOWING THAT CAPTAIN BELCHER SERVED AS AN OFFICER IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT FROM SEPTEMBER 16, 1942, TO JUNE 18, 1947. ITEM 7 OF THAT FORM STATES " SEPARATION 18 JUNE 1947" AND ITEM 12 STATES " CONTINUING ON ACTIVE DUTY.' THE OFFICER'S APPOINTMENT AS A FIRST LIEUTENANT IN THE REGULAR ARMY WAS ANNOUNCED BY PARAGRAPH 23, SPECIAL ORDERS NO. 121, WAR DEPARTMENT, WASHINGTON 25, D.C., DATED JUNE 19, 1947, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

A. ANNOUNCEMENT IS MADE OF THE APMT OF THE FOLLOWING COMMISSIONED OFFICERS OR FORMER COMMISSIONED OFFICERS AUS IN THE RA EFF THIS DATE SUBJECT TO QUALIFICATION BY PHYSICAL EXAM AS PRESCRIBED BY AR 40 105AND, IN ADDITION, FOR THOSE OFFICERS APTD IN THE AC WITH AN ASTERISK SHOWN AFTER THE RA ASR, SUBJECT TO QUALIFICATION BY PHYSICAL EXAM AS PRESCRIBED BY AR 40-110.

B. ACCEPTANCE OF THIS APMT WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS W/O COMPONENT WITH THE EXCEPTION THAT THOSE COMMISSIONS NOW HELD AS A RESULT OF PROMOTIONS UNDER THE PROVISIONS OF CIR 10 OR CIR 140, WD, 1946 ARE ADMINISTRATIVELY VACATED UPON ACCEPTANCE OF RA COMMISSION, AND APMT IN THE AUS IS EFFECTED IN THE GR HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM AD.

C. A FORMER COMMISSIONED OFF APTD IN RA BY THIS ORDER OR AN APPOINTEE WHO HOLDS AN APMT IN THE RES OR UCUS IS HEREBY APTD IN THE AUS W/O COMPONENT IN THE GR HELD IMMEDIATELY PRIOR TO PROCESSING FOR RELIEF FROM AD WITH DATE OF RANK IN AUS GR COMPUTED TO EXCLUDE ANY PERIOD OF INACTIVE SV AS A COMMISSIONED OFF IN ACCORDANCE WITH THE PROVISIONS OF SEC 127 A (PAR 8) NATIONAL DEFENSE ACT (AS AMENDED) AND PAR 4, AR 600-15. THE TEMP APPOINTMENTS IN THE AUS OF THESE OFFICERS WHOSE DATE OF RANK IN THE AUS, OR WHOSE PERMANENT GR AND DATE OF RANK IN RA FALLS WITHIN THE TIME LIMITS FOR OFFICERS WHOSE GRADES HAVE ALREADY BEEN READJUSTED OR ARE TO BE READJUSTED, ARE TERMINATED ON 30 JUNE 1947, OR ON THE DATE OF ACCEPTANCE OF RA COMMISSION, WHICHEVER IS APPLICABLE IN ACCORDANCE WITH POLICIES CURRENTLY IN EFFECT ON THE DATE OF ACCEPTANCE AND OFFICERS SO AFFECTED ARE APTD IN THE AUS IN THE NEXT LOWER GR. ( ITALICS SUPPLIED.)

IT WAS POINTED OUT IN OUR DECISION OF OCTOBER 5, 1956, 36 COMP. GEN. 283, THAT IT WAS THE INTENT OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 691-691G, 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. IN OUR DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, IN ANSWER TO QUESTION A, WE SAID THAT THE ACCEPTANCE OF A REGULAR ARMY COMMISSION DOES NOT TERMINATE AN EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES. SEE DIGEST OF OPINIONS, JUDGE ADVOCATES GENERAL OF THE ARMED FORCES (1953- 54), VOL. 3, OFFICERS, SEC. 141, PAGE 595. WE CONCLUDED THAT 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 WAS 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 WITHIN THE MEANING OF THE STATUTE SO AS TO BE ENTITLED TO MUSTERING-OUT PAY.

THE MERE FACT THAT THE OFFICER'S MILITARY RECORD AND REPORT OF SEPARATION ( WD AGO FORM 53-98) SHOWED HIM AS BEING SEPARATED ON JUNE 18, 1947, DID NOT, IN ITSELF, ALTER OR CHANGE HIS STATUS INSOFAR AS HIS EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WAS CONCERNED. CAPTAIN BELCHER HAD NO RESERVE COMMISSION TO VACATE WHEN HE ACCEPTED HIS COMMISSION IN THE REGULAR ARMY AND CONTINUED ON ACTIVE DUTY. AT THE TIME OF HIS APPOINTMENT IN THE REGULAR ARMY ON JUNE 19, 1947, HE WAS SERVING UNDER AN APPOINTMENT AS CAPTAIN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND SUCH APPOINTMENT WAS NOT ONE WHICH WAS MADE UNDER THE PROVISIONS OF CIRCULAR 10 OR CIRCULAR 140, WAR DEPARTMENT, 1946. HENCE, HIS APPOINTMENT IN THE REGULAR ARMY WAS SUBJECT TO THE EXPRESS PROVISION IN PARAGRAPH 23B OF SPECIAL ORDERS NO. 121 THAT "ACCEPTANCE OF THIS APMT WILL NOT AFFECT ANY EXISTING COMMISSION IN THE AUS W/O COMPONENT.' WE MUST CONCLUDE, THEREFORE, THAT THE CLAIMANT'S COMMISSION AS CAPTAIN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT WAS NOT TERMINATED ON JUNE 18, 1947, AND THAT, ACCORDINGLY, HE WAS NOT DISCHARGED OR RELEASED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE REGULAR SERVICE, WITHIN THE MEANING OF THE STATUTE, SO AS TO BE ENTITLED TO MUSTERING-OUT PAY.