B-147982, FEBRUARY 19, 1962, 41 COMP. GEN. 547

B-147982, FEBRUARY 19, 1962, 41 COMP. GEN. 547

UNIFORMS - MILITARY PERSONNEL - OFFICERS - RESERVISTS - QUALIFICATION THE PURCHASE OF UNIFORMS BY AN AIR FORCE RESERVE OFFICERS TRAINING CORPS GRADUATE INCIDENT TO SERVICE ON ACTIVE DUTY IN A RESERVE STATUS IN EXCESS OF 14 DAYS PENDING THE PROCESSING OF HIS COMMISSION AS AN OFFICER IN THE REGULAR AIR FORCE UNDER THE DISTINGUISHED MILITARY GRADUATE TRAINING PROGRAM MAY NOT BE REGARDED AS THE PURCHASE OF UNIFORMS AS A RESERVE MEMBER UPON COMPLETION OF NOT LESS THAN 14 DAYS ACTIVE DUTY AS PROVIDED IN SECTION 305 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 255, BUT MUST BE REGARDED AS THE PURCHASE OF UNIFORMS INCIDENT TO ACTIVE DUTY AS A REGULAR OFFICER OF THE AIR FORCE, AND, THEREFORE, THE PAYMENT OF A UNIFORM ALLOWANCE ON THE BASIS OF THE RESERVE SERVICE UNDER 37 U.S.C. 255 IS NOT PROPER.

TO LIEUTENANT COLONEL J. W. BALLENTINE, DEPARTMENT OF THE AIR FORCE, FEBRUARY 19, 1962:

BY LETTER OF JANUARY 16, 1962, THE CHIEF, PAY AND TRAVEL DIVISION, DIRECTORATE OF ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF NOVEMBER 24, 1961, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF AN INITIAL UNIFORM ALLOWANCE TO SECOND LIEUTENANT ELLIS F. HITT, 59778A. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. 622 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN YOUR LETTER YOU STATE THAT THE CIRCUMSTANCES SURROUNDING LIEUTENANT HITT'S CLAIM FOR AN INITIAL UNIFORM ALLOWANCE ARE THE SAME AS THOSE OF LIEUTENANT RICHARD F. FELTON, COVERED IN OUR DECISION OF MARCH 22, 1961, B -144820, 40 COMP. GEN. 539, EXCEPT FOR THE LENGTH OF THE TIME INTERVAL BETWEEN THE DATE LIEUTENANT HITT STARTED COMPLYING WITH HIS ORDERS FOR ACTIVE DUTY AND THE DATE HE EXECUTED THE OATH FOR HIS REGULAR COMMISSION.

IT APPEARS THAT LIEUTENANT HITT, WHILE AN AIR FORCE ROTC STUDENT, APPLIED FOR A REGULAR AIR FORCE COMMISSION UNDER THE PROGRAM OF THE AIR FORCE INSTITUTE OF TECHNOLOGY WHEREBY A LIMITED NUMBER OF DISTINGUISHED MILITARY GRADUATES OF AIR FORCE ROTC ARE OFFERED COMMISSIONS IN THE REGULAR AIR FORCE AND UPON ACCEPTANCE BECOME ELIGIBLE FOR GRADUATE EDUCATION AT THE INSTITUTE UNIVERSITIES. ON MAY 27, 1960, LIEUTENANT HITT WAS SELECTED TO ATTEND AN 18-MONTH COURSE IN GRADUATE ELECTRONIC ENGINEERING ( GUIDANCE AND CONTROL OPTION) AT THE INSTITUTE OF TECHNOLOGY, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, COMMENCING SEPTEMBER 6, 1960.

IN ACCORDANCE WITH THE PROCEDURAL DIRECTIVES ESTABLISHED IN CONNECTION WITH THE PROGRAM, THE HEADQUARTERS, AIR RESERVE RECORDS CENTER ( CONAC), DENVER, COLORADO, ISSUED SPECIAL ORDERS NO. A-4545 OF JULY 11, 1960, DIRECTING HIM TO SERVE ON EXTENDED ACTIVE DUTY IN THE GRADE OF SECOND LIEUTENANT FOR A PERIOD OF 36 MONTHS UNLESS SOONER RELIEVED, RELIEVING HIM FROM RESERVE ASSIGNMENT WITH HEADQUARTERS CONAC ( IRS) EFFECTIVE AUGUST 18, 1960, AND ASSIGNING HIM TO THE ABOVE UNIVERSITY ON AUGUST 19, 1960, FOR THE 18-MONTH COURSE COMMENCING SEPTEMBER 6, 1960. THE ORDERS STATED THAT THE EFFECTIVE DATE OF DUTY D BE AUGUST 19, 1960, BUT DIRECTED LIEUTENANT HITT TO REPORT IN CLASS A" UNIFORM AT A SPECIFIED DESTINATION AT WRIGHT-PATTERSON AIR FORCE BASE ON AUGUST 22, 1960. THEREAFTER, BY SPECIAL ORDERS NO. A-1668 OF AUGUST 31, 1960, OF THE DEPARTMENT OF THE AIR FORCE, WASHINGTON, D.C., LIEUTENANT HITT WAS APPOINTED A SECOND LIEUTENANT, REGULAR AIR FORCE, WITH DATE OF RANK AUGUST 19, 1960. YOU STATE THAT HE EXECUTED THE OATH FOR HIS REGULAR COMMISSION ON SEPTEMBER 9, 1960. THE MILITARY PAY ORDERED SIGNED BY LIEUTENANT HITT ON SEPTEMBER 29, 1961, INDICATES THAT HE REPORTED FOR ACTIVE DUTY ON AUGUST 19, 1960.

IN YOUR LETTER OF NOVEMBER 24, 1961, YOU STATE:

3. SINCE LT HITT WAS ON ACTIVE DUTY IN A RESERVE STATUS IN EXCESS OF 14 DAYS, IT APPEARS THAT THE CLAIM IS PROPERLY PAYABLE. HOWEVER, IN VIEW OF THE STATEMENT THE COMPTROLLER GENERAL DECISION B-144820 THAT BOTH THE ORDERS TO ACTIVE DUTY AND APPOINTMENT IN THE REGULAR AIR FORCE "MUST BE CONSIDERED TOGETHER SO AS TO GIVE EFFECT TO THE MANIFEST INTENTION OF THE UNITED STATES AIR FORCE UNDER THE PROGRAM," DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT.

4. IT IS UNDERSTOOD THAT SEVERAL SIMILAR CLAIMS ARE BEING HELD BY INDIVIDUALS PENDING RESOLUTION AS TO WHETHER THE NUMBER OF DAYS ON ACTIVE DUTY IN A RESERVE STATUS IS TO BE CONSIDERED THE DETERMINING FACTOR IN REGARDS TO UNIFORM ALLOWANCES. DUE TO THE DIFFERENCES IN ALLOWABLE TRAVEL TIME FROM HOMES OF RECORD AND DELAYS IN MEETING PHYSICAL QUALIFICATIONS, THE ELAPSED TIME FROM THE EFFECTIVE DATES OF ACTIVE DUTY TO THE DATES OF EXECUTING THE OATH FOR A REGULAR COMMISSION WILL VARY FROM A FEW DAYS TO IN EXCESS OF 90 DAYS.

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

(2) UPON COMPLETION, AS A MEMBER OF A RESERVE COMPONENT, BUT NOT AS A MEMBER OF THE ARMY WITHOUT SPECIFICATION OF COMPONENT OR THE AIR FORCE WITHOUT SPECIFICATION OF COMPONENT, OF NOT LESS THAN 14 DAYS ACTIVE DUTY; 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 OF MORE THAN NINETY DAYS' DURATION TO A FURTHER SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY:

IN OUR DECISION OF MARCH 22, 1961, B-144820 (40 COMP. GEN. 539), CONCERNING LIEUTENANT FELTON, 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 ENTERED ON ACTIVE DUTY AT THE SCHOOL, WHICH APPOINTED THE MEMBER TO A REGULAR AIR FORCE COMMISSION MUST BE CONSIDERED TOGETHER TO GIVE EFFECTIVE 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.

THE PRINCIPLES OF SUCH DECISION WERE ALSO APPLIED IN THE CASE OF AN ARMY ROTC DISTINGUISHED MILITARY GRADUATE. SEE B-147685, JANUARY 15, 1962 (COPY ENCLOSED).

AS WAS THE CASE WITH LIEUTENANT FELTON, LIEUTENANT HITT WAS SELECTED FOR THE SPECIAL TRAINING AND PROCESSED FOR APPOINTMENT AS A SECOND LIEUTENANT IN THE REGULAR AIR FORCE. THE DISTINGUISHING FACTOR IN LIEUTENANT HITT'S CASE WAS THAT HE SERVED ON ACTIVE DUTY IN A RESERVE STATUS IN EXCESS OF 14 DAYS AFTER HIS ENTRY ON ACTIVE DUTY. NOTWITHSTANDING THIS PERIOD OF SERVICE IN EXCESS OF 14 DAYS, IT IS UNDERSTOOD FROM THE ENCLOSURES YOU HAVE SUBMITTED AND FROM THE CIRCUMSTANCES SURROUNDING THE DISTINGUISHED MILITARY GRADUATE PROGRAM OF THE AIR FORCE THAT BOTH THE MEMBER INVOLVED AND THE UNITED STATES AIR FORCE INTENDED THAT HIS ENTRANCE ON ACTIVE DUTY IN A RESERVE STATUS WAS FOR A SHORT PROCESSING PERIOD CULMINATING IN A REGULAR AIR FORCE COMMISSION. HOWEVER, YOU REFER TO A LETTER DATED SEPTEMBER 27, 1961, FROM HEADQUARTERS, AIR UNIVERSITY, MAXWELL AIR FORCE BASE, ALABAMA, TO THE INSTITUTE OF TECHNOLOGY, DEALING WITH SECURING A UNIFORM ALLOWANCE FOR DISTINGUISHED MILITARY GRADUATES. IT IS THERE STATED IN PART THAT:

2. THE QUESTION OF UNIFORM ALLOWANCE FOR DMG'S WAS DISCUSSED WITH PERSONNEL OF HQ USAF ( AFPTR) IN APRIL 1961 SUBSEQUENT TO THE COMPTROLLER GENERAL'S DECISION B-144820.

3. ON 1 MAY 1961 THIS HEADQUARTERS WAS VERBALLY ADVISED BY PERSONNEL OF HQ USAF ( AFPTR-PR) THAT THE DECISION HAD BEEN MADE TO DELAY TENDER OF REGULAR APPOINTMENTS TO DMG'S FOR AT LEAST 91 DAYS AFTER ENTERING ON EAD. THIS DECISION WAS REACHED AFTER CONFERENCES BETWEEN AFPTR AND JAG, HG USAF. WE WERE ADVISED THAT AFPTR WOULD HANDLE THE TENDER OF REGULAR APPOINTMENTS TO DMG'S AND THAT GROUND RULES WERE BEING ESTABLISHED AT THAT TIME FOR DMG'S TO ENTER IT TRAINING AS RESERVE OFFICERS UNTIL THEY WERE TENDERED REGULAR APPOINTMENTS. HQ USAF STATED THAT DMG'S WOULD BE ASKED TO SIGN CRS PRIOR TO ENTRY INTO IT TRAINING.

THE LEGALITY OF THE PAYMENT OF UNIFORM ALLOWANCES UNDER THAT PROCEDURE IS NOT A MATTER PROPERLY BEFORE US FOR DECISION AT THIS TIME, BUT WILL BE CONSIDERED IN THE AUDIT OF SUCH PAYMENTS. IN LIEUTENANT HITT'S CASE, HOWEVER, IT MAY NOT BE CONSIDERED, BECAUSE OF THE DELAY IN EFFECTING HIS APPOINTMENT IN THE REGULAR SERVICE AFTER HIS ENTRANCE ON ACTIVE DUTY IN A RESERVE STATUS, THAT HE ACQUIRED A RIGHT TO AN INITIAL UNIFORM ALLOWANCE ON THE BASIS OF 14 DAYS OF RESERVE SERVICE BEFORE THE REGULAR APPOINTMENT WAS COMPLETED. IN THIS CONNECTION IT MAY BE STATED THAT THE FILE IN THE FELTON CASE CONTAINS A COPY OF A LETTER DATED JANUARY 11, 1960, FROM THE AIR UNIVERSITY, MAXWELL AIR FORCE BASE, SETTING FORTH PROCEDURE FOR PROCESSING ROTC GRADUATES ENTERING THE INSTITUTE OF TECHNOLOGY PROGRAM AND WHICH PROVIDES FOR FORWARDING A TENDER OF APPOINTMENT IN THE REGULAR AIR FORCE BY THE OFFICER APPOINTMENT BRANCH WITHIN 72 HOURS OF RECEIPT OF NOTIFICATION OF THE GRADUATE'S ENTRY ON ACTIVE DUTY. IN VIEW OF THE FOREGOING AND THE PURPOSE OF THE DISTINGUISHED MILITARY GRADUATE PROGRAM TO SECURE HIGHLY TRAINED REGULAR AIR FORCE OFFICERS, IT MUST BE CONSIDERED THAT THE UNIFORMS PURCHASED BY LIEUTENANT HITT WERE PURCHASED BY HIM INCIDENT TO ACTIVE DUTY AS A REGULAR OFFICER OF THE AIR FORCE, AND HE IS NOT ENTITLED TO THE UNIFORM ALLOWANCE CLAIMED.

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