B-133628, NOV. 20, 1957

B-133628, NOV. 20, 1957

TO LIEUTENANT COLONEL EDGAR H. ALBERS, JR.:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 19, 1957, RELATIVE TO THE SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE DATED JULY 8, 1957, WHICH DISALLOWED YOUR CLAIM FOR LUMP-SUM PAYMENT UNDER SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED BY SECTION 6 OF THE ACT OF JUNE 3, 1941, 55 STAT. 240. THE CLAIM WAS DISALLOWED ON THE BASIS THAT SINCE YOU WERE APPOINTED AN AVIATION CADET SUBSEQUENT TO JULY 8, 1942, AUTHORITY FOR PAYMENT OF A LUMP SUM IN YOUR CASE WAS BARRED BY SECTION 2 OF THE ACT OF JULY 8, 1942, 56 STAT. 649.

IT APPEARS FROM THE REPORTS MADE BY THE ADJUTANT GENERAL OF THE ARMY AND THE AIR ADJUTANT GENERAL THAT YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON APRIL 1, 1942; THAT YOU WERE APPOINTED AN AVIATION CADET JULY 15, 1942; THAT YOU WERE HONORABLY DISCHARGED MARCH 24, 1943, TO ACCEPT A COMMISSION; THAT YOU WERE APPOINTED SECOND LIEUTENANT, AIR CORPS RESERVE, ON MARCH 25, 1943; AND THAT YOU SERVED ON ACTIVE DUTY FROM THAT DATE UNTIL JANUARY 4, 1947, WHEN YOU WERE RELEASED FROM ACTIVE DUTY AS A MAJOR, AIR CORPS RESERVE, BY REASON OF DEMOBILIZATION.

SECTION 3 OF THE ARMY AVIATION CADET ACT, APPROVED JUNE 3, 1941, 55 STAT. 239, PROVIDED:

"UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, MALE CITIZENS OF THE UNITED STATES MAY ENLIST AS AVIATION CADETS, AND ENLISTED MEN IN THE REGULAR ARMY MAY BE APPOINTED BY THE SECRETARY OF WAR AS AVIATION CADETS. EACH AVIATION CADET SHALL, AT THE TIME OF HIS ENLISTMENT OR APPOINTMENT AS SUCH, BE REQUIRED TO SIGN AN AGREEMENT THAT UPON HIS SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AS AN AVIATION CADET HE WILL ACCEPT A COMMISSION AS SECOND LIEUTENANT, AIR CORPS RESERVE * * *. UPON THE SUCCESSFUL COMPLETION OF SUCH PRESCRIBED COURSE OF TRAINING AND INSTRUCTION, EACH AVIATION CADET SHALL BE COMMISSIONED AS A SECOND LIEUTENANT, AIR CORPS RESERVE * * *.'

THE QUOTED SECTION 3 OF THE ARMY AVIATION CADET ACT WAS SUSPENDED BY SECTION 2 OF THE ACT OF JULY 8, 1942, 56 STAT. 649, WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"THE PROVISIONS OF SECTION 3 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, ARE HEREBY SUSPENDED FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER EXCEPT AS TO ANY PERSON WHO HAS ENLISTED OR WHO HAS BEEN APPOINTED AS AN AVIATION CADET PRIOR TO THE DATE OF ENACTMENT OF THIS ACT. DURING SUCH PERIOD AND UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, MALE CITIZENS OF THE UNITED STATES MAY ENLIST AS AVIATION CADETS AND MEN HAVING AN ENLISTED STATUS IN THE ARMY OF THE UNITED STATES MAY BE APPOINTED BY THE SECRETARY OF WAR AS AVIATION CADETS. * * * UPON SUCCESSFUL COMPLETION OF THE PRESCRIBED COURSE OF TRAINING AND INSTRUCTION AND UNDER SUCH REGULATIONS WITH RESPECT TO SELECTION AS THE SECRETARY OF WAR MAY PRESCRIBE, EACH SUCH CADET SHALL BE COMMISSIONED AS A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941 (PUBLIC LAW 252, SEVENTY- SEVENTH CONGRESS), OR APPOINTED AS A FLIGHT OFFICER IN THE ARMY OF THE UNITED STATES.'

IT IS YOUR CONTENTION THAT NOTWITHSTANDING YOUR APPOINTMENT AS AN AVIATION CADET AFTER JULY 8, 1942, THE FACT OF YOUR ENLISTMENT IN THE ARMY OF THE UNITED STATES PRIOR TO THAT DATE, WITH THE SOLE INTENT OF RECEIVING FLIGHT TRAINING, IS SUFFICIENT TO PLACE YOU AMONG THE EXCEPTED PERSONS STATED IN SECTION 2 OF THE ACT OF JULY 8, 1942.

IN A LETTER DATED NOVEMBER 26, 1956, TO THE PERSONNEL OFFICER, HEADQUARTERS AIR RESCUE SERVICE, ORLANDO AIR FORCE BASE, YOU STATED THAT YOU ENLISTED AS A PRIVATE, AIR CORPS, UNASSIGNED, ON APRIL 1, 1942, PENDING APPOINTMENT AS AN AVIATION CADET WITH ASSURANCE OF ULTIMATE COMMISSION AS A RESERVE OFFICER ON COMPLETION OF FLYING SCHOOLS AND THAT YOU RECEIVED YOUR APPOINTMENT AS AVIATION CADET ON JULY 11, 1942. OTHER THAN THE DATE OF APPOINTMENT AS AVIATION CADET, WHICH WAS ON JULY 15, 1942, THE STATEMENT IS CONSISTENT WITH THE RECORD AS REPORTED HERE. YOU DO NOT CONTEND THAT YOU ENLISTED AS AN AVIATION CADET, BUT YOU STATE, AND THE RECORD SUPPORTS YOU, THAT YOU ENLISTED AS A PRIVATE AND AT A LATER DATE WERE APPOINTED AN AVIATION CADET.

SECTION 3 OF THE ARMY AVIATION CADET ACT, SUPRA, PROVIDED TWO METHODS OF BECOMING AN AVIATION CADET--- ONE, BY DIRECT ENLISTMENT AS AN AVIATION CADET AND THE OTHER BY APPOINTMENT FROM AN ENLISTED STATUS. YOU WERE IN THE SECOND CATEGORY.

THE SUSPENSION OF THE PROVISION OF SECTION 3 OF THE ARMY AVIATION CADET ACT, OBVIOUSLY WAS A RESTRICTIVE MEASURE, AND THE EXCEPTION THERETO MUST BE READ IN CONJUNCTION WITH THE SUSPENDED PROVISIONS. HENCE, THE WORDS "EXCEPT AS TO ANY PERSON WHO HAS ENLISTED OR WHO HAS BEEN APPOINTED AN AVIATION CADET PRIOR TO THE DATE OF ENACTMENT OF THIS ACT" MUST BE READ AS EXCEPTING ANY PERSON WHO HAS ENLISTED AS AN AVIATION CADET OR WHO HAS BEEN APPOINTED AN AVIATION CADET PRIOR TO THE DATE OF ENACTMENT OF THAT ACT.

REGARDLESS OF YOUR INTENT AND OF ANY INTENT OF THE ARMY AIR FORCES, THE FACTS APPEARING INDICATE, AND THE ADJUTANT GENERAL OF THE ARMY HAS REPORTED, THAT YOU DID NOT ACHIEVE THE STATUS OF AN AVIATION CADET UNTIL JULY 15, 1942, AND HENCE, YOUR RIGHTS MUST BE DETERMINED ACCORDINGLY. SECTION 2 OF THE ACT OF JULY 8, 1942, CLEARLY SHOWS THAT IT WAS THE INTENT OF THE CONGRESS THAT PERSONS BECOMING AVIATION CADETS ON OR AFTER JULY 8, 1942, SHOULD NOT BE COMMISSIONED IN THE AIR CORPS RESERVE BUT SHOULD BE COMMISSIONED IN THE ARMY OF THE UNITED STATES UNDER THE ACT OF SEPTEMBER 22, 1941, OR APPOINTED AS FLIGHT OFFICERS IN THE ARMY OF THE UNITED STATES. WHILE APPARENTLY ON THE ERRONEOUS ASSUMPTION THAT YOU WERE WITHIN THE EXCEPTION IN SECTION 2 OF THE ACT OF JULY 8, 1942, AND CONTRARY TO THE INTENT AND PURPOSE OF THE LAW, ACTION WAS TAKEN TO APPOINT YOU IN THE AIR CORPS RESERVE, THE APPOINTMENT WHICH RESULTED DOES NOT ENTITLE YOU TO A LUMP-SUM PAYMENT WHICH IS DENIED TO YOUR FELLOW OFFICERS WHO WERE PROPERLY COMMISSIONED IN THE ARMY OF THE UNITED STATES AS CONTEMPLATED BY THE STATUTE. YOU STATE THAT OTHER OFFICERS APPOINTED AVIATION CADETS AFTER THE DATE OF YOUR APPOINTMENT, AND COMMISSIONED AT OR ABOUT THE SAME TIME AS YOURSELF, RECEIVED THE LUMP-SUM PAYMENT. IF SUCH OFFICERS' SITUATION AND YOURS ARE NOT DISTINGUISHABLE IN SOME MATERIAL ASPECT, PAYMENT OF A LUMP SUM TO THEM WAS ERRONEOUS AND, OF COURSE, IS NO AUTHORITY FOR PAYMENT IN YOUR CASE.