B-140793, OCT. 19, 1959

B-140793, OCT. 19, 1959

TO MAJOR C. C. DAVIS, USAF, ACCOUNTING AND FINANCE OFFICER, UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1959, FORWARDED HERE BY THE DIRECTOR OF ACCOUNTING AND FINANCE (COMPTROLLER) BY LETTER DATED SEPTEMBER 17, 1959, REQUESTING DECISION BY THIS OFFICE WHETHER ADJUSTMENT OF THE PAY ACCOUNT OF AIRMAN FIRST CLASS WILLIAM M. BROWN, AF 1506 8846, MAY BE MADE TO CREDIT SAVED PAY TO HIM ON AND AFTER THE DATE OF HIS ENLISTMENT IN THE UNITED STATES AIR FORCE OF OCTOBER 1, 1958. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. 457 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE.

BY SPECIAL ORDERS NO. 229, DATED SEPTEMBER 23, 1958, OF HEADQUARTERS, 101ST AIRBORNE DIVISION, FORT CAMPBELL, KENTUCKY, AIRMAN BROWN WAS HONORABLY DISCHARGED FROM THE U. S. ARMY EFFECTIVE SEPTEMBER 30, 1958. APPEARS FROM THE FACTS PRESENTED THAT AIRMAN BROWN WAS SERVING IN PAY GRADE E-4 WITH 16 YEARS' SERVICE AT THE TIME OF DISCHARGE AND THAT HE WAS BEING PAID ON A SAVED PAY BASIS AT THE RATE OF $210.60 PER MONTH. SPECIAL ORDERS NO. 196, DATED OCTOBER 2, 1958, OF U.S. ARMY RECRUITING MAIN STATION, LOUISVILLE, KENTUCKY, INDICATE THAT BROWN ENLISTED IN THE REGULAR AIR FORCE AS AN AIRMAN FIRST CLASS, PAY GRADE E-4 ON OCTOBER 1, 1958.

AIRMAN BROWN HAS BEEN PAID AT THE RATE OF $190 PER MONTH, FROM OCTOBER 1, 1958, TO PRESENT, PURSUANT TO SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 1 OF PUBLIC LAW 85 422, 72 STAT. 122, 37 U.S.C. 232 (A). BY AN UNNUMBERED MILITARY PAY ORDER OF HEADQUARTERS, 801ST COMBAT SUPPORT GROUP, LOCKBOURNE AIR FORCE BASE, OHIO, DATED JULY 24, 1959, YOU WERE REQUESTED TO ADJUST AIRMAN BROWN'S PAY RECORD TO CREDIT SAVED PAY ON AND AFTER OCTOBER 1, 1958, PURSUANT TO SECTION 10 (1) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 130, EFFECTIVE JUNE 1, 1958, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 10. THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE--

"/1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.'

OUR DECISION OF JULY 22, 1958, B-133668, 38 COMP. GEN. 47, HELD THAT MEMBERS OF THE UNIFORMED SERVICES WHOSE PERIOD OF ENLISTMENT TERMINATED AFTER MAY 31, 1958, AND WHO REENLISTED WITHOUT A BREAK IN SERVICE, DID NOT THEREBY LOSE PREVIOUSLY EXISTING RIGHTS TO SAVED PAY UNDER SECTION 10 (1). SECTION 102 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231, FOR THE PURPOSES OF THAT ACT, DEFINES THE TERM "UNIFORMED SERVICES," UNLESS OTHERWISE QUALIFIED, TO MEAN AND INCLUDE THE ARMY OF THE UNITED STATES AND THE AIR FORCE OF THE UNITED STATES, AND ALL REGULAR AND RESERVE COMPONENTS THEREOF. SECTION 102 (B) OF THAT ACT DEFINES "MEMBER" AS INCLUDING ENLISTED PERSONS OF THE UNIFORMED SERVICES. THE PURPOSE OF SECTION 10 (1) CLEARLY IS TO PRECLUDE THE REDUCTION OF THE BASIC PAY OF A MEMBER OF A UNIFORMED SERVICE AS A RESULT OF THE ENACTMENT OF THE ACT OF MAY 20, 1958. NOTHING HAS BEEN FOUND IN THE 1958 ACT OR ITS LEGISLATIVE HISTORY TO INDICATE THAT SECTION 10 (1) WAS INTENDED BY CONGRESS TO BENEFIT A MEMBER SOLELY WITHIN THE SERVICE IN WHICH HE WAS SERVING ON MAY 31, 1958. ON THE CONTRARY, THE USE OF "MEMBER" AND ,UNIFORMED SERVICE" IN SECTION 10 (1) SEEM TO INDICATE THAT NO SUCH LIMITATION WAS INTENDED. THE USE OF THE SINGULAR IN THE TERM "UNIFORMED SERVICE" IN SECTION 10 (1) IS NOT CONSIDERED TO PRECLUDE THIS INTERPRETATION, SINCE A PERSON MAY BE A MEMBER OF ONLY ONE SERVICE AT A PARTICULAR POINT IN TIME.

HENCE, IT IS OUR VIEW THAT SO LONG AS AIRMAN BROWN CONTINUED TO BE A "MEMBER" OF ONE OF THE ,UNIFORMED SERVICES" WITHOUT A BREAK OF SERVICE OF ONE DAY OR MORE BETWEEN DISCHARGE FROM ONE SERVICE AND REENLISTMENT IN ANOTHER, HIS RIGHTS TO THE SAVED PAY BENEFITS OF SECTION 10 (1) WERE NOT TERMINATED BY THE FACT THAT REENLISTMENT WAS NOT IN THE SAME SERVICE.

ACCORDINGLY, YOU ARE AUTHORIZED TO ADJUST THE PAY ACCOUNTS OF AIRMAN BROWN AS REQUESTED BY THE MILITARY PAY ORDER DATED JULY 24, 1959, WHICH IS RETURNED.