B-143432, OCT. 12, 1960

B-143432, OCT. 12, 1960

TO MR. WILLIAM W. PREBLE:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 21, 1960, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES ARISING BECAUSE OF ERRONEOUS PAYMENTS RECEIVED BY YOU FOR ACTIVE DUTY AS A COMMISSIONED OFFICER IN EXCESS OF THE MILITARY PAY TO WHICH ENTITLED BY VIRTUE OF YOUR GRADE AND YEARS OF CREDITABLE SERVICE.

IN A LETTER DATED JUNE 15, 1960, FROM OUR CLAIMS DIVISION YOU WERE FULLY ADVISED OF THE BASIS FOR THE CONCLUSION THAT YOU WERE OVERPAID $1,987.92 INCIDENT TO ACTIVE DUTY PERFORMED DURING THE PERIODS JULY 29, 1950, THROUGH OCTOBER 12, 1952, AND MARCH 20, 1953, THROUGH FEBRUARY 28, 1958. SUCH OVERPAYMENTS RESULTED FROM AN ERRONEOUS INCLUSION FOR LONGEVITY PAY PURPOSES OF CREDIT FOR THE PERIOD APRIL 13, 1946, TO MARCH 16, 1949, WHEN YOU HAD NO MILITARY STATUS. THE AIR FORCE REPORTED THAT AT THE TIME OF YOUR DISCHARGE YOU HAD $1,133.54 AVAILABLE FOR SETOFF, LEAVING A BALANCE DUE OF $854.38. IT WAS ALSO REPORTED THAT $354.38 WAS COLLECTED AND THAT YOUR PRESENT INDEBTEDNESS THEREFORE HAS BEEN REDUCED TO $500. YOU CONTEND THAT YOUR DISCHARGE FROM THE SERVICE WAS UNFAIR AND PREMATURE AND THEREFORE REQUEST THAT WE RULE ON YOUR CASE. ALSO, YOU REQUEST CONSIDERATION OF YOUR RIGHT TO "RIF" PAY OF $1,900 WHICH YOU CLAIM YOU WOULD HAVE BECOME ENTITLED TO IN MARCH 1958. WE ASSUME YOU ARE REFERRING TO THE LUMP-SUM READJUSTMENT PAYMENT AUTHORIZED BY SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, 70 STAT. 517, 50 U.S.C. 1016.

THE ESTABLISHMENT OF STANDARDS AND THE ADMINISTRATION OF THESE STANDARDS GOVERNING DISCHARGES FROM THE ARMED FORCES HAVE BEEN CONSIDERED PECULIARLY MILITARY. RESPECTING THIS THE COURTS HAVE BEEN SCRUPULOUSLY CAREFUL NOT TO INTERFERE WITH, OR INTERVENE IN, AUTHORIZED AND LEGITIMATE SERVICE MATTERS AND HAVE HELD THAT THE DISCHARGE OF A SOLDIER WAS A DISCRETIONARY ACT NOT SUBJECT TO REVIEW BY THE COURTS. NORDMANN V. WOODRING, 28 F.SUPP. 573; SCHUSTACK V. HERREN, 234 F.2D 134; BERNSTEIN V. HERREN, 141 F.SUPP. 78, AFFIRMED 234 F.2D 434, CERTIORARI DENIED 352 U.S. 840. SEE ALSO MARSHALL V. WYMAN, 132 F.SUPP. 169; DAVIS V. WOODRING, 111 F.2D 523. IT WOULD APPEAR THAT THE DECISIONS ARE ALSO APPLICABLE TO THE AIR FORCE, AND IT NECESSARILY FOLLOWS THAT WE DO NOT HAVE JURISDICTION TO REVIEW THE CHARACTER OF YOUR DISCHARGE.

THE ARMED FORCES RESERVE ACT OF 1952, AS AMENDED, REFERRED TO ABOVE, PROVIDES, IN PERTINENT PART, THAT A LUMP-SUM READJUSTMENT PAYMENT IS AUTHORIZED TO BE PAID TO A "MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY * * * AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY.' THE AIR FORCE REPORT THAT MILITARY PAY RECORDS SHOW THAT YOU WERE SERVING ON ACTIVE DUTY FROM JULY 29, 1950, THROUGH OCTOBER 12, 1952, AND FROM MARCH 20, 1953, THROUGH FEBRUARY 28, 1958. SINCE YOU DID NOT HAVE FIVE YEARS OF CONTINUOUS ACTIVE DUTY IMMEDIATELY PRIOR TO RELEASE, YOU COULD NOT BE CONSIDERED AS ENTITLED TO READJUSTMENT PAY UNDER SUCH PROVISIONS REGARDLESS OF THE CIRCUMSTANCES OF YOUR SEPARATION FROM THE SERVICE.

ACCORDINGLY, YOU ARE AGAIN REQUESTED TO REMIT THE $500 DUE THE UNITED STATES TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER, UNITED STATES AIR FORCE, DENVER, COLORADO.