B-150252, FEB. 1, 1963

B-150252, FEB. 1, 1963

TO MAJOR J. J. JOHNS, USAF:

YOUR LETTER OF OCTOBER 3, 1962, WITH ATTACHMENTS, WAS FORWARDED HERE BY THE DIRECTORATE OF ACCOUNTING AND FINANCE, USAF, BY LETTER DATED NOVEMBER 6, 1962, REQUESTING DECISION (DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, SUBMISSION NO. DO-AF-677) CONCERNING THE PROPRIETY OF MAKING PAYMENT OF INCREASED RETIRED PAY ON A VOUCHER IN THE AMOUNT OF $546.74, STATED IN FAVOR OF CAPTAIN DONALD V. OWENS, AO 490 548, UNDER THE PROVISIONS OF 10 U.S.C. 8964.

YOU RELATE THAT CAPTAIN OWENS COMPLETED 23 YEARS, 10 MONTHS AND 25 DAYS' ACTIVE AND TOTAL SERVICE ON NOVEMBER 30, 1955, WHILE SERVING AS A CHIEF WARRANT OFFICER, W-2, AIR FORCE OF THE UNITED STATES, AND THAT HE WAS RETIRED IN THE GRADE OF CWO, W-2, ON THAT DATE UNDER THE PROVISIONS OF SECTION 1293 OF TITLE 10, U.S.C. YOU STATE THAT HE COMPLETED 30 YEARS' SERVICE, SUM OF ACTIVE SERVICE PLUS SERVICE ON THE RETIRED LIST, ON JANUARY 5, 1962, FOR ELIGIBILITY FOR CONSIDERATION OF ADVANCEMENT UNDER SECTION 8964, TITLE 10, U.S.C.

IT IS FURTHER STATED THAT CAPTAIN OWENS HAD ACTIVE DUTY AS A COMMISSIONED OFFICER FROM SEPTEMBER 3, 1942, TO JUNE 25, 1947--- CORPS OF MILITARY POLICE, ARMY OF THE UNITED STATES; THAT EFFECTIVENESS REPORTS INDICATE THAT HE WAS ON DUTY WITH THE ARMY AIR FORCE FROM 1945 TO JUNE 947; THAT HE SERVED IN THE TEMPORARY GRADE OF CAPTAIN FROM NOVEMBER 23, 1945, TO JUNE 25, 1947; THAT IN VIEW OF THE RULING SET FORTH IN DECISION B-134566, DATED FEBRUARY 28, 1958, DOUBT EXISTS AS TO WHETHER SERVICE WITH THAT FORCE IS TANTAMOUNT TO SERVICE IN THE UNITED STATES AIR FORCE, AND WHETHER A DETERMINATION OF SATISFACTORY SERVICE IN THE GRADE OF CAPTAIN MADE BY THE SECRETARY OF THE AIR FORCE WOULD BE ACCEPTABLE AS AUTHORIZING INCREASED RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 8964.

THE RECORD SHOWS THAT UPON OWENS' REENLISTMENT JUNE 26, 1947, IN THE REGULAR ARMY AT BARKSDALE FIELD, SHREVEPORT, LOUISIANA, HE WAS ASSIGNED TO THE 2621ST AIR FORCE BASE UNIT AND THAT HE CONTINUED TO BE SO ASSIGNED UNTIL HE WAS TRANSFERRED TO THE DEPARTMENT OF THE AIR FORCE BY TRANSFER ORDER NO. 1 DATED SEPTEMBER 26, 1947 (SEE 12 F.R. 6616, 32 CFR, 1947 SUPP., 4641), UNDER AUTHORITY CONTAINED IN SECTIONS 208 (C) AND (D) OF THE NATIONAL SECURITY ACT OF 1947, APPROVED JULY 26,1947, CH. 343, 61 STAT. 504 (5 U.S.C. 626C (C) AND (D), SUPP. I, 1946 ED.).

SECTIONS 208 (C) AND (D) PROVIDED AS FOLLOWS:

"/C) ALL COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN, COMMISSIONED, HOLDING WARRANTS, OR ENLISTED, IN THE AIR CORPS, UNITED STATES ARMY, OR THE ARMY AIR FORCES, SHALL BE TRANSFERRED IN BRANCH TO THE UNITED STATES AIR FORCE. ALL OTHER COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN, WHO ARE COMMISSIONED, HOLD WARRANTS, OR ARE ENLISTED, IN ANY COMPONENT OF THE ARMY OF THE UNITED STATES AND WHO ARE UNDER THE AUTHORITY OR COMMAND OF THE COMMANDING GENERAL, ARMY AIR FORCES, SHALL BE CONTINUED UNDER THE AUTHORITY OR COMMAND OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE, AND UNDER THE JURISDICTION OF THE DEPARTMENT OF THE AIR FORCE. PERSONNEL WHOSE STATUS IS AFFECTED BY THIS SUBSECTION SHALL RETAIN THEIR EXISTING COMMISSIONS, WARRANTS, OR ENLISTED STATUS IN EXISTING COMPONENTS OF THE ARMED FORCES UNLESS OTHERWISE ALTERED OR TERMINATED IN ACCORDANCE WITH EXISTING LAW; AND THEY SHALL NOT BE DEEMED TO HAVE BEEN APPOINTED TO A NEW OR DIFFERENT OFFICE OR GRADE, OR TO HAVE VACATED THEIR PERMANENT OR TEMPORARY APPOINTMENTS IN AN EXISTING COMPONENT OF THE ARMED FORCES, SOLELY BY VIRTUE OF ANY CHANGE IN STATUS UNDER THIS SUBSECTION. NO SUCH CHANGE IN STATUS SHALL ALTER OR PREJUDICE THE STATUS OF ANY INDIVIDUAL SO ASSIGNED, SO AS TO DEPRIVE HIM OF ANY RIGHT, BENEFIT, OR PRIVILEGE TO WHICH HE MAY BE ENTITLED UNDER EXISTING LAW.

"/D) EXCEPT AS OTHERWISE DIRECTED BY THE SECRETARY OF THE AIR FORCE, ALL PROPERTY, RECORDS, INSTALLATIONS, AGENCIES, ACTIVITIES, PROJECTS, AND CIVILIAN PERSONNEL UNDER THE JURISDICTION, CONTROL, AUTHORITY, OR COMMAND OF THE COMMANDING GENERAL, ARMY AIR FORCES, SHALL BE CONTINUED TO THE SAME EXTENT UNDER THE JURISDICTION, CONTROL, AUTHORITY, OR COMMAND, RESPECTIVELY, OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE, IN THE DEPARTMENT OF THE AIR FORCE.'

SECTION 305 (A) OF THAT ACT, 61 STAT. 508, PROVIDED:

"/A) ALL LAWS, ORDERS, REGULATIONS, AND OTHER ACTIONS APPLICABLE WITH RESPECT TO ANY FUNCTION, ACTIVITY, PERSONNEL, PROPERTY, RECORDS OR OTHER THING TRANSFERRED UNDER THIS ACT, OR WITH RESPECT TO ANY OFFICER, DEPARTMENT, OR AGENCY, FROM WHICH SUCH TRANSFER IS MADE, SHALL, EXCEPT TO THE EXTENT RESCINDED, MODIFIED, SUPERSEDED, TERMINATED, OR MADE INAPPLICABLE BY OR UNDER AUTHORITY OF LAW, HAVE THE SAME EFFECT AS IF SUCH TRANSFER HAD NOT BEEN MADE; BUT, AFTER ANY SUCH TRANSFER, ANY SUCH LAW, ORDER, REGULATION, OR OTHER ACTION WHICH VESTED FUNCTIONS IN OR OTHERWISE RELATED TO ANY OFFICER, DEPARTMENT, OR AGENCY FROM WHICH SUCH TRANSFER WAS MADE SHALL, INSOFAR AS APPLICABLE WITH RESPECT TO THE FUNCTION, ACTIVITY, PERSONNEL, PROPERTY, RECORDS OR OTHER THING TRANSFERRED AND TO THE EXTENT NOT INCONSISTENT WITH OTHER PROVISIONS OF SAID SECTIONS, BE DEEMED TO HAVE VESTED SUCH FUNCTION IN OR RELATE TO THE OFFICER, DEPARTMENT, OR AGENCY TO WHICH THE TRANSFER WAS MADE.'

THE RECORD SHOWS FURTHER THAT, WHILE OWENS' BASIC SERVICE ARM AND COMPONENT DESIGNATION WAS CORPS OF MILITARY POLICE, ARMY OF THE UNITED STATES, WHEN HE PERFORMED SERVICE IN THE GRADE OF CAPTAIN, HIS DUTY ASSIGNMENT WAS WITH THE ARMY AIR FORCES, UNDER THE AUTHORITY OR COMMAND OF THE COMMANDING GENERAL, ARMY AIR FORCES. WE SAID IN DECISION OF FEBRUARY 28, 1958, B-134566, THAT UNDER THE AUTHORITY OF SECTIONS 208 (C) AND (D) OF THE NATIONAL SECURITY ACT AUTHORIZING THE TRANSFER OF ARMY PERSONNEL AND RECORDS TO THE AIR FORCE, SERVICE IN THE AIR CORPS, ARMY OF THE UNITED STATES, WAS TANTAMOUNT TO SERVICE IN THE AIR FORCE AND, THEREFORE, A RETIRING MEMBER OF THE AIR FORCE WHO HAD BEEN SO TRANSFERRED WOULD BE ENTITLED TO THE HIGHER GRADE PREVIOUSLY HELD IN THE AIR CORPS. WE SEE NO REASON WHY THOSE MEMBERS DESIGNATED IN SECTION 208 (C) WHO, WHILE NOT SERVING AS MEMBERS OF THE AIR CORPS WERE UNDER THE AUTHORITY OR COMMAND OF THE COMMANDING GENERAL, ARMY AIR FORCES, AND WHO WERE LATER TRANSFERRED TO THE DEPARTMENT OF THE AIR FORCE UNDER THE NATIONAL SECURITY ACT DID NOT BECOME ENTITLED TO THE SAME RIGHTS AND BENEFITS AS THOSE ACCRUING TO MEMBERS OF THE AIR CORPS SO TRANSFERRED. HENCE, IT IS CONCLUDED THAT UPON RETIREMENT THEY ARE ENTITLED TO RETIRED PAY BASED UPON THE HIGHEST RANK SATISFACTORILY HELD WHILE SO SERVING. COMPARE THE ANSWER TO QUESTION 2 IN DECISION OF JULY 23, 1957, 37 COMP. GEN. 45. ACCORDINGLY, OWENS' ADVANCEMENT UNDER 10 U.S.C. 8964 WOULD NOT BE IMPROPER.

HOWEVER, THERE IS NOTHING IN THE SUBMITTED RECORD SHOWING THAT ACTION HAS BEEN TAKEN BY THE SECRETARY OF THE AIR FORCE ADVANCING OWENS TO THE GRADE OF CAPTAIN ON THE RETIRED LIST OF THE AIR FORCE. IN THESE CIRCUMSTANCES ANY PAYMENT SUCH AS INDICATED ON THE VOUCHER WOULD, OF COURSE, BE IMPROPER.

THE SUBMITTED VOUCHER AND ATTACHMENTS ARE RETURNED HEREWITH. ACTION THEREON SHOULD BE HELD IN ABEYANCE PENDING A DETERMINATION BY THE SECRETARY OF THE AIR FORCE UNDER 10 U.S.C. 8964 AND THE ADVANCEMENT OF DONALD V. OWENS TO THE GRADE OF CAPTAIN ON THE RETIRED LIST.