B-153635, MAR. 25, 1964

B-153635, MAR. 25, 1964

TO THE SECRETARY OF THE AIR FORCE:

ENCLOSED IS A LETTER DATED JANUARY 21, 1964, FROM TECHNICAL SERGEANT DARRELL C. HESS, AF 18071880, WITH PREVIOUS CORRESPONDENCE RELATIVE TO HIS REQUEST FOR REMISSION OF AN INDEBTEDNESS REPRESENTING OVERPAYMENT OF LONGEVITY PAY IN THE AMOUNT OF $134.35 COVERING THE PERIOD JUNE 1, 1942, TO JUNE 30, 1945, WHILE HE WAS SERVING AS AN ENLISTED MAN IN THE ARMY AIR CORPS.

THE RECORD SHOWS THAT SERGEANT HESS WAS DISCHARGED FROM THE ARMY OF THE UNITED STATES ON SEPTEMBER 6, 1945, AND PERFORMED NO MILITARY SERVICE THEREAFTER UNTIL SEPTEMBER 9, 1947, WHEN HE ENLISTED IN THE UNITED STATES AIR FORCE. THE RECORD FURTHER SHOWS THAT HE IS CURRENTLY SERVING ON ACTIVE DUTY UNDER ENLISTMENT IN THE UNITED STATES AIR FORCE AND THAT HE EXPECTS TO BE RETIRED THEREFROM ON OR ABOUT JUNE 30, 1964.

THE AMOUNT IN QUESTION APPEARS TO BE A PART OF THE OVERPAYMENT OF $275.98 COVERING PERIODS FROM JUNE 1, 1942, TO FEBRUARY 13, 1949, ESTABLISHED AS AN INDEBTEDNESS AND AUTHORIZED TO BE COLLECTED FROM SERGEANT HESS' PAY ON DD FORM 139, PAY ADJUSTMENT AUTHORIZATION, DATED MARCH 29, 1962. ON JULY 6, 1962, THE UNDERSECRETARY OF THE AIR FORCE, PURSUANT TO AUTHORITY CONTAINED IN 10 U.S.C. 9837 (D) GRANTED REMISSION OF THE INDEBTEDNESS IN THE AMOUNT OF $141.63. OVERPAYMENT OF LONGEVITY PAY FOR PERIODS FROM JULY 1, 1949, TO DECEMBER 31, 1959, PREVIOUSLY HAD BEEN ESTABLISHED AS AN INDEBTEDNESS IN THE AMOUNT OF $2,101.49, THE FULL AMOUNT OF WHICH WAS REMITTED BY THE ASSISTANT SECRETARY OF THE AIR FORCE UNDER DATE OF OCTOBER 2, 1961, ALSO UNDER AUTHORITY OF 10 U.S.C. 9837 (D).

CONSIDERATION OF THE REMAINING AMOUNT OF $134.35 FOR POSSIBLE REMISSION UNDER 10 U.S.C. 9837 (D) HAS BEEN DECLINED FOR THE REASON THAT SUCH CONSIDERATION APPEARS CONTRARY TO THE RULES EXPRESSED IN OUR DECISION OF JULY 23, 1957, B-131943, 37 COMP. GEN. 45. IN THAT DECISION WE HELD GENERALLY THAT THE SECRETARY OF THE AIR FORCE COULD CANCEL OR REMIT A DEBT PURSUANT TO 10 U.S.C. 9837 (D) ONLY IF HE HAD JURISDICTION OVER THE DEBT AS WELL AS OVER THE ENLISTED MEMBER. WE INDICATED THAT THE INDEBTEDNESS OF AN AIRMAN WHICH AROSE DURING A PRIOR ENLISTMENT IN THE ARMY WOULD NOT APPEAR TO COME WITHIN THE JURISDICTION OF THE SECRETARY OF THE AIR FORCE UNLESS AUTHORITY TO REMIT THE INDEBTEDNESS WAS TRANSFERRED TO HIM INCIDENT TO ESTABLISHMENT OF THE UNITED STATES AIR FORCE AND TRANSFER THERETO OF ENLISTED MEN OF THE AVIATION COMPONENTS OF THE ARMY PURSUANT TO THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947, APPROVED JULY 26, 1947, CH. 343, 61 STAT. 495. WE DID NOT HAVE FOR CONSIDERATION AT THAT TIME ANY QUESTION CONCERNING A MEMBER CURRENTLY ENLISTED IN THE UNITED STATES AIR FORCE WHOSE INDEBTEDNESS WAS INCURRED WHILE SERVING UNDER A PREVIOUS ENLISTMENT IN THE ARMY AIR CORPS FROM WHICH HE HAD BEEN DISCHARGED BEFORE ENACTMENT OF THE NATIONAL SECURITY ACT OF 1947.

FOR THE PURPOSE OF DETERMINING THE HIGHEST TEMPORARY GRADE SATISFACTORILY HELD BY A RETIRED MEMBER OF THE AIR FORCE AS PROVIDED IN 10 U.S.C. 1372 (2) WE HELD IN B-134566, FEBRUARY 28, 1958, THAT SUCH A DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE WOULD BE INEFFECTIVE TO INCREASE A MEMBER'S RETIRED PAY IF HIS SERVICE IN THE HIGHER TEMPORARY GRADE HAD BEEN PERFORMED AS A MEMBER OF THE CAVALRY, ARMY OF THE UNITED STATES, BUT THAT SUCH A DETERMINATION WOULD BE PROPER IF SERVICE IN THE HIGHER TEMPORARY GRADE HAD BEEN PERFORMED AS A MEMBER OF THE ARMY AIR CORPS. THAT DECISION WAS BASED ON THE THEORY THAT SERVICE IN ANY OF THE COMPONENTS OF THE ARMY WHICH WERE LATER TRANSFERRED TO THE DEPARTMENT OF THE AIR FORCE UNDER THE NATIONAL SECURITY ACT OF 1947 COULD BE REGARDED AS TANTAMOUNT TO SERVICE IN THE UNITED STATES AIR FORCE.

SINCE THE FUNCTIONS OF THE ARMY AIR CORPS, IN WHICH SERGEANT HESS WAS SERVING WHEN THE INDEBTEDNESS IN QUESTION WAS INCURRED, WERE TRANSFERRED TO THE DEPARTMENT OF THE AIR FORCE UNDER SECTION 208 OF THE NATIONAL SECURITY ACT OF 1947, IT IS REASONABLE TO REGARD HIS SERVICE IN THE ARMY AIR CORPS AS TANTAMOUNT TO SERVICE IN THE UNITED STATES AIR FORCE FOR THE PURPOSE OF THE DEBT REMISSION STATUTE.

WE HAVE HELD THAT THE DEBT REMISSION STATUTE APPARENTLY HAS ONLY THREE REQUIREMENTS WHICH MUST BE MET IN ORDER FOR REMISSION ACTION TO BE EFFECTED THEREUNDER--- AN INDEBTEDNESS TO THE UNITED STATES, A CURRENT STATUS FOR THE DEBTOR AS AN ENLISTED MEMBER UNDER THE SECRETARY CONCERNED AND JURISDICTION OF THE SECRETARY OVER THE DEBT. 38 COMP. GEN. 788 AND B- 151815, AUGUST 15, 1963, 43 COMP. GEN.---. SINCE THE LAW DOES NOT REQUIRE THAT THE ENLISTED MEMBER SERVE CONTINUOUSLY FROM THE TIME THE DEBT WAS INCURRED, IT DOES NOT SEEM THAT THE FACT THAT HE WAS NOT IN THE SERVICE WHEN HIS FORMER SERVICE COMPONENT WAS TRANSFERRED TO THE UNITED STATES AIR FORCE SHOULD OPERATE TO DEPRIVE HIM OF THE BENEFITS OF THIS ACT. ACCORDINGLY, THE ENTIRE FILE RECEIVED IN OUR OFFICE RELATIVE TO SERGEANT HESS' DEBT IS FORWARDED TO YOU IN ORDER THAT YOU MAY HAVE AN OPPORTUNITY TO CONSIDER HIS REQUEST FOR REMISSION OF THE REMAINING PORTION THEREOF PRIOR TO HIS CONTEMPLATED RETIREMENT. SEE 39 COMP. GEN. 415.