B-133748, SEP. 20, 1957

B-133748, SEP. 20, 1957

TO MAJOR FRANCIS L. THOMAS, U.S. ARMY VETERINARY FOOD INSPECTION DETACHMENT:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 4, 1957, ADDRESSED TO HONORABLE CARL VINSON, HOUSE OF REPRESENTATIVES, CONCERNING THE LEGALITY OF THE PAYMENT OF MUSTERING-OUT PAY MADE TO YOU IN THE AMOUNT OF $200, INCIDENT TO YOUR APPOINTMENT AS AN OFFICER IN THE REGULAR ARMY. YOUR LETTER WAS TRANSMITTED TO OUR OFFICE FOR REPLY BY HONORABLE OLIN E. TEAGUE, CHAIRMAN, COMMITTEE ON VETERANS' AFFAIRS, HOUSE OF REPRESENTATIVES.

WE HAVE NO KNOWLEDGE OF THE ACTUAL FACTS IN YOUR CASE OTHER THAN THOSE FURNISHED IN THE ENCLOSURE WITH YOUR LETTER. THE FACTS AS THERE STATED SHOW THAT YOU WERE APPOINTED A CAPTAIN IN THE OFFICERS' RESERVE CORPS ON JANUARY 13, 1950; THAT YOU WERE APPOINTED A CAPTAIN, ARMY OF THE UNITED STATES, ON JANUARY 25, 1950; AND THAT ON AUGUST 6, 1952, YOU ACCEPTED AN APPOINTMENT IN THE REGULAR ARMY IN THE GRADE OF FIRST LIEUTENANT BUT CONTINUED TO SERVE ON ACTIVE DUTY IN THE CAPACITY OF CAPTAIN, ARMY OF THE UNITED STATES, WITHOUT COMPONENT. YOU WERE PAID THE MUSTERING-OUT PAY IN THE AMOUNT OF $200. THEREAFTER, UNDER OUR DECISION OF MARCH 13, 1957, B- 130306, YOU WERE REQUESTED TO REFUND THE PAYMENT FOR THE REASON THAT AT THE TIME OF YOUR APPOINTMENT IN THE REGULAR ARMY YOU WERE SERVING AS A CAPTAIN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND CONTINUED TO SERVE IN THAT STATUS.

MUSTERING-OUT PAY AS AUTHORIZED UNDER TITLE V OF THE ACT OF JULY 16, 1952, 66 STAT. 688, IS PAYABLE IN INSTALLMENTS OR IN A LUMP-SUM AS PROVIDED IN SECTION 502 OF THAT ACT ON AND AFTER "THE TIME OF FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE, OR AT THE OPTION OF THE PERSON SO ELIGIBLE, AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.' IF A PERSON ACCEPTS AN APPOINTMENT IN THE REGULAR ARMY, NO RIGHT TO MUSTERING-OUT PAY CAN ACCRUE IN CONNECTION WITH THAT ACTION UNLESS SUCH PERSON IS DISCHARGED OR RELEASED FROM ACTIVE DUTY FOR THE PURPOSE OF ACCEPTING SUCH APPOINTMENT.

YOUR REFERENCE TO OUR DECISION OF OCTOBER 5, 1956, B-12081, APPEARS TO BE ERRONEOUS AND IT IS ASSUMED THAT YOU HAVE IN MIND A DECISION OF THE SAME DATE, B-129089, 36 COMP. GEN. 283. IN THAT CASE THE OFFICER WAS SERVING AS A RESERVE OFFICER IN THE ARMY OF THE UNITED STATES (COMMISSIONED OFFICER OF A RESERVE COMPONENT), AND WHILE SO SERVING IN THAT STATUS WAS OFFERED AND ACCEPTED A COMMISSION IN THE REGULAR ARMY. WE HELD IN THAT DECISION THAT THE OFFICER WAS ENTITLED TO MUSTERING-OUT PAY SINCE ACCEPTANCE OF A REGULAR ARMY APPOINTMENT HAD THE EFFECT OF VACATING HIS RESERVE COMMISSION AND WAS TANTAMOUNT TO A DISCHARGE OR RELEASE FROM ACTIVE DUTY WITHIN THE MEANING OF THE STATUTE. IN OUR DECISION OF MARCH 13, 1957, B-130306, 36 COMP. GEN. 645, IN ANSWER TO QUESTION 1B, WE SAID THAT WHERE A MEMBER IS NOT SERVING ON ACTIVE DUTY IN HIS RESERVE COMMISSION, BUT INSTEAD IS SERVING ON ACTIVE DUTY IN A HIGHER TEMPORARY GRADE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF HIS ACCEPTANCE OF THE APPOINTMENT IN THE REGULAR ARMY, AND CONTINUES TO SERVE ON ACTIVE DUTY IN HIS TEMPORARY GRADE--- ACCEPTANCE OF THE REGULAR ARMY COMMISSION DOES NOT TERMINATE AN EXISTING COMMISSION IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT--- THERE IS NO DISCHARGE OR RELEASE FROM ACTIVE DUTY ON WHICH TO BASE A RIGHT TO MUSTERING-OUT PAY. THE TWO CITED DECISIONS ARE NOT INCONSISTENT SINCE THE OPPOSITE CONCLUSIONS REACHED ARE BASED ON DIFFERENT FACTUAL SITUATIONS, THE LATTER APPARENTLY BEING APPLICABLE IN YOUR CASE. WHILE IT IS TRUE THAT YOUR RESERVE COMMISSION WAS AUTOMATICALLY VACATED AT THE TIME YOU ACCEPTED THE REGULAR ARMY COMMISSION, THAT FACT DID NOT ENTITLE YOU TO MUSTERING-OUT PAY SINCE YOU WERE SERVING ON ACTIVE DUTY IN ANOTHER CAPACITY (ARMY OF THE UNITED STATES WITHOUT COMPONENT) AT THAT TIME AND CONTINUED TO SO SERVE AFTER ACCEPTANCE OF THE REGULAR ARMY APPOINTMENT.

CONCERNING YOUR STATEMENT THAT REPAYMENT OF THE INDEBTEDNESS WILL RESULT IN A STRAIN ON YOUR ECONOMY, YOU ARE ADVISED THAT THE ACT OF JULY 15, 1954, 68 STAT. 482--- AN ACT TO AUTHORIZE THE COLLECTION OF INDEBTEDNESS OF MILITARY AND CIVILIAN PERSONNEL RESULTING FROM ERRONEOUS PAYMENTS--- AND REGULATIONS ISSUED PURSUANT TO THAT ACT, PROVIDE SAFEGUARDS TO PROTECT A DEBTOR FROM EXCESSIVE HARDSHIP BY REQUIRING THAT INSTALLMENT DEDUCTIONS FROM HIS PAY ACCOUNT FOR THE COLLECTION OF INDEBTEDNESS SHALL BE MADE IN REASONABLE AMOUNTS.