B-147685, JAN 15, 1962

B-147685, JAN 15, 1962

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL H. A. DRAGOTTA, FC:

FINANCE AND ACCOUNTING OFFICER

THROUGH CHIEF OF FINANCE

WASHINGTON 25, D.C.

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 2, 1961, WITH ENCLOSURES, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF AN INITIAL AND ACTIVE DUTY UNIFORM ALLOWANCE TO SECOND LIEUTENANT ROBERT W. HATCH, 092526. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NO. A-604 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT PURSUANT TO LETTER ORDERS RC A-01-29, DATED JANUARY 17, 1961, HEADQUARTERS, FIRST UNITED STATES ARMY, LIEUTENANT HATCH-- UPON ACCEPTANCE OF APPOINTMENT IN THE UNITED STATES ARMY RESERVE AND WITH HIS CONSENT, AND BY DIRECTION OF THE SECRETARY OF THE ARMY-- WAS ORDERED TO ACTIVE DUTY IN HIS RESERVE GRADE OF A PERIOD OF TWO YEARS. THE EFFECTIVE DATE OF DUTY WAS MAY 30, 1961. AS OF THE EFFECTIVE DATE OF DUTY HE WAS ASSIGNED TO THE 91ST ENGINEER BATTALION (COMBAT)(ARMY), FORT BELVOIR, VIRGINIA, AND AS OF THAT SAME DATE HE WAS DIRECTED TO PROCEED FOR TEMPORARY DUTY TO THE ENGINEER SCHOOL AT FORT BELVOIR, TO REPORT NOT LATER THAN MAY 31, 1961. IT FURTHER APPEARS THAT BY SPECIAL ORDERS NO. 49, DATED FEBRUARY 27, 1961, HEADQUARTERS, DEPARTMENT OF THE ARMY, ANNOUNCEMENT WAS MADE OF THE APPOINTMENT AND COMMISSIONING OF LIEUTENANT HATCH, A DISTINGUISHED MILITARY GRADUATE (ROTC), AS A SECOND LIEUTENANT IN THE REGULAR ARMY OF THE UNITED STATES, CORPS OF ENGINEERS. SUCH ORDERS STATED THAT HE WAS ORDERED TO ACTIVE DUTY EFFECTIVE UPON EXECUTION OF HIS OATH OF OFFICE; THAT THE OATH OF OFFICE WOULD NOT BE EXECUTED UNTIL AUTHORIZED BY THE MAJOR COMMANDER UNDER AR 601-125; THAT HIS COMMISSION IN THE RESERVES WOULD BE VACATED UPON ACCEPTANCE OF THE REGULAR ARMY APPOINTMENT; AND THAT THE EFFECTIVE DATE OF ENTRANCE ON ACTIVE DUTY WAS THE DATE OF EXECUTION OF THE OATH OF OFFICE. IT ALSO APPEARS THAT LIEUTENANT HATCH ENTERED ON ACTIVE DUTY AS A RESERVE OFFICER ON MAY 30, 1961, REPORTING AT FORT BELVOIR, VIRGINIA, AND THAT HE EXECUTED HIS OATH OF OFFICE FOR REGULAR APPOINTMENT ON JUNE 7, 1961.

SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 20(D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628, 37 U.S.C. 255, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(A) AN OFFICER OF A RESERVE COMPONENT IS ENTITLED TO AN INITIAL SUM NOT TO EXCEED $200 AS REIMBURSEMENT FOR THE PURCHASE OF REQUIRED UNIFORMS AND EQUIPMENT, EITHER--

"(1) UPON FIRST REPORTING FOR ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD IN EXCESS OF 90 DAYS; OR

"(C) AN OFFICER OF A RESERVE COMPONENT ENTERING ON ACTIVE DUTY IS ENTITLED, FOR EACH TIME OF SUCH ENTRY OR REENTRY ON ACTIVE DUTY OR MORE THAN 90 DAYS' DURATION TO A FURTHER SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY:

PARAGRAPH 2C OF THE 1961 DMG LETTER, MARCH 3, 1961 (ASSIGNMENT INSTRUCTIONS FOR DISTINGUISHED MILITARY GRADUATES APPOINTED IN THE REGULAR ARMY, 1961-62), PROVIDES IN PERTINENT PART, AS FOLLOWS:

"C. DMGS WHOSE RA APPOINTMENT CANNOT BE CONSUMMATED UPON GRADUATION WILL BE ORDERED TO ACTIVE DUTY IN THEIR RESERVE STATUS AND ASSIGNED IN ACCORDANCE WITH THE ABOVE PROVIDED THEY SO DESIRE AND INDICATE THEIR INTENTION TO ACCEPT RA APPOINTMENT. ***."

ON THE BASIS OF THE FACTS STATED ABOVE, THE CONCLUSION APPEARS WARRANTED THE LIEUTENANT HATCH REPORTED FOR ACTIVE DUTY UNDER HIS RESERVE COMMISSION, NOT FOR THE PURPOSE OF ENTERING IN EXTENDED ACTIVE DUTY UNDER THAT COMMISSION, BUT FOR THE PURPOSE OF COMPLETION OF PROCESSING AND ACCEPTANCE OF HIS REGULAR ARMY COMMISSION WHICH WAS EFFECTIVE UPON EXECUTION OF HIS OATH OF OFFICE. IT IS CLEAR THAT HE DID NOT INTEND TO SERVE A TOUR OF DUTY IN EXCESS OF NINETY DAYS UNDER HIS RESERVE COMMISSION.

IN OUR DECISION OF MARCH 22, 1961, B-144820, 40 COMP.GEN. 539, IN A SIMILAR SITUATION CONCERNING AN AFROTC DISTINGUISHED MILITARY GRADUATE, IT WAS HELD, QUOTING THE SYLLABUS:

"ORDERS ISSUED BY THE AIR FORCE RESERVE WHICH DIRECTED AN AIR FORCE RESERVE OFFICER TO ACTIVE DUTY FOR 36 MONTHS UNDER THE AIR FORCE INSTITUTE OF TECHNOLOGY PROGRAM, WHEREBY AFROTC DISTINGUISHED GRADUATES ARE OFFERED REGULAR COMMISSIONS FOR GRADUATE EDUCATION AND ORDERS, DATED 3 DAYS AFTER THE MEMBER TO A REGULAR AIR FORCE COMMISSION MUST BE CONSIDERED TOGETHER TO GIVE EFFECT TO THE INTENT OF THE AIR FORCE EDUCATION PROGRAM SO THAT THE ORDERS TO EXTENDED ACTIVE DUTY IN THE RESERVE WHEN THE MEMBER ANTICIPATED RECEIPT OF THE REGULAR COMMISSION MAY NOT BE REGARDED AS COMING WITHIN THE UNIFORM ALLOWANCE PROVISIONS OF SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 255, TO ENTITLE THE MEMBER TO A UNIFORM ALLOWANCE FOR ACTIVE DUTY AS RESERVE OFFICER IN EXCESS OF 90 DAYS."

THIS DECISION IS EQUALLY APPLICABLE TO THE CIRCUMSTANCES CONSIDERED HERE.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR PAYMENT OF A UNIFORM ALLOWANCE TO LIEUTENANT HATCH AND THE SUBMITTED MILITARY PAY VOUCHER AND ACCOMPANYING PAPERS ARE BEING RETAINED HERE.