B-156480, APR. 23, 1965

B-156480, APR. 23, 1965

TO EUGENE B. BREEDING, LIEUTENANT COLONEL, USAFR RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1965, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 3, 1965, WHICH DISALLOWED YOUR CLAIM FOR AIR CORPS RESERVE LUMP-SUM BONUS FOR THE PERIOD OCTOBER 20, 1947, TO JUNE 24, 1948, UPON YOUR RELEASE FROM ACTIVE DUTY.

THE RECORD SHOWS THAT YOU HAD ACCEPTED A COMMISSION AS SECOND LIEUTENANT, AIR RESERVE, ON JUNE 24, 1943, AND ENTERED ON EXTENDED ACTIVE DUTY UNDER THAT COMMISSION ON THAT DATE. ON FEBRUARY 10, 1944, YOU ACCEPTED A PROMOTION TO FIRST LIEUTENANT (TEMPORARY) IN THE ARMY OF THE UNITED STATES, AN ORGANIZATION SEPARATE AND DISTINCT FROM THE AIR CORPS RESERVE. FURTHER PROMOTIONS TO CAPTAIN (TEMPORARY), ARMY OF THE UNITED STATES ON DECEMBER 28, 1945, AND FIRST LIEUTENANT (PERMANENT), AIR CORPS RESERVE, JUNE 24, 1946, WERE MADE. ON OCTOBER 20, 1947, YOU ACCEPTED AN APPOINTMENT AS CAPTAIN (PERMANENT), AIR RESERVE, WHICH CONTAINED THE STATEMENT: "THIS DOES NOT AFFECT YOUR CURRENT ACTIVE DUTY STATUS AND YOU WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SO DIRECTED BY COMPETENT ORDERS.' NO ORDERS WERE ISSUED DIRECTING YOU TO PERFORM ACTIVE DUTY UNDER YOUR APPOINTMENT AS CAPTAIN, AIR RESERVE, PRIOR TO JUNE 24, 1948, THE DATE ON WHICH SERVICE CREDIT FOR THE LUMP-SUM PAYMENT WAS TERMINATED UNDER THE PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, 62 STAT. 604, 623, AS AMENDED, 50 U.S.C. APP. 463 (C) (1952 ED.).

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 3, 1965, FOR THE REASONS STATED THEREIN. IN YOUR LETTER, YOU STATE THAT YOUR STATUS AS A RESERVE OFFICER WAS NEVER CHANGED FROM JUNE 24, 1943, UNTIL YOU RETIRED. ALSO, WHILE YOU ACCEPTED A PROMOTION TO FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES, YOU SAY THAT DID NOT CHANGE YOUR STATUS AS A RESERVE OFFICER AND OUR OFFICE HAS RECOGNIZED THAT THE HOLDING OF A TEMPORARY PROMOTION IN THE ARMY OF THE UNITED STATES WHILE CONCURRENTLY HOLDING A RESERVE COMMISSION DID NOT DISQUALIFY A MEMBER FOR THE LUMP-SUM BONUS WHILE HE SERVED IN A DUAL ACTIVE DUTY STATUS. YOU REQUEST INFORMATION WHY THE ACCEPTANCE OF A RESERVE COMMISSION AS CAPTAIN ON OCTOBER 21, 1947, WHICH CONTAINED THE STATEMENT QUOTED ABOVE, DID EFFECT YOUR STATUS, SINCE YOU SAY YOU WERE A RESERVE OFFICER BEFORE AND STILL CONTINUED TO SERVE UNDER THE RESERVE COMMISSION. YOU ALSO SEEM TO FEEL THAT OUR SETTLEMENT CONSTRUED A 1941 ARMY REGULATION AS TAKING PRECEDENCE OVER A STATUTE AND THE STATEMENT MADE IN THE 1947 APPOINTMENT WHICH ACTION YOU QUESTION. ADDITION, YOU POINT OUT THAT YOU WERE TRANSFERRED TO THE DEPARTMENT OF THE AIR FORCE BY ORDER NO. 1, NATIONAL MILITARY ESTABLISHMENT, EFFECTIVE SEPTEMBER 26, 1947, AND THUS YOU CONTEND THAT ON OCTOBER 20, 1947, ARMY REGULATIONS NO LONGER APPLIED TO YOU. FINALLY, YOU STATE YOUR BELIEF THAT YOU HAVE BEEN DENIED A CLAIM THAT IS RIGHTLY DUE YOU AND REQUEST THAT IF OUR OFFICE IS NOT ABLE TO CORRECT THIS WRONG, YOU BE ADVISED AS TO WHICH OFFICE WILL DO SO.

SECTION 300A, TITLE 10 OF THE U.S.C. (1946 ED.), PROVIDED THAT WHENEVER ANY AIR CORPS RESERVE OFFICER, WHO HAD NOT BEEN SELECTED FOR A COMMISSION IN THE REGULAR ARMY, IS RELEASED FROM ACTIVE DUTY WHICH HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE DUTY AS AN AIR CORPS RESERVE OFFICER AND IF RELEASED FROM ACTIVE DUTY OTHER THAN UPON HIS OWN REQUEST, OR AS A RESULT OF INEFFICIENT OR UNSATISFACTORY SERVICE AS DETERMINED BY THE SECRETARY OF WAR, SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE. SERVICE CREDIT FOR THE LUMP-SUM PAYMENTS WAS TERMINATED EFFECTIVE JUNE 24, 1948, AS STATED ABOVE.

THE ACT OF FEBRUARY 16, 1942, 56 STAT. 94, 10 U.S.C. 292A-1 NOTE (1946 ED.) PROVIDED IN PERTINENT PART THAT DURING ANY WAR IN WHICH THE UNITED STATES WAS THEN ENGAGED, ANY OFFICER OF THE AIR CORPS RESERVE OR ANY OTHER SECTION OF THE OFFICERS' RESERVE CORPS, ASSIGNED TO ACTIVE DUTY COULD BE APPOINTED TO HIGHER TEMPORARY GRADE, NOT ABOVE THAT OF COLONEL, IN THE ARMY OF THE UNITED STATES WITHOUT VACATING HIS EXISTING COMMISSION IN THE OFFICERS' RESERVE CORPS. SEE ALSO, SECTIONS 355A AND 513 OF TITLE 10, U.S.C. (1946 ED.). THEREFORE, A PERSON TEMPORARILY APPOINTED IN THE ARMY OF THE UNITED STATES WHILE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE AIR CORPS RESERVE SERVED THEREAFTER IN A DUAL STATUS AS A RESERVE OFFICER AND AN OFFICER OF THE ARMY OF THE UNITED STATES, AND, HENCE WAS ENTITLED TO THE AUTHORIZED CREDIT FOR LUMP-SUM PAYMENT AFTER APPOINTMENT IN THE ARMY OF THE UNITED STATES, FOR THE PERIOD HE LIKEWISE SERVED ON ACTIVE DUTY IN THE STATUS OF AN AIR CORPS RESERVE OFFICER.

PARAGRAPH 73, ARMY REGULATIONS 140-5, JUNE 17, 1941, IN EFFECT DURING THE PERIOD HERE INVOLVED PROVIDED---

"VACATION OF APPOINTMENT--- ANY MEMBER OF THE OFFICERS' RESERVE CORPS WHO ACCEPTS A COMMISSION IN * * * A DIFFERENT GRADE OR SECTION IN THE OFFICERS' RESERVE CORPS, THEREBY VACATES HIS FORMER COMMISSION IN THE OFFICERS' RESERVE CORPS.'

IF, AS YOU STATE, YOU WERE TRANSFERRED TO THE DEPARTMENT OF THE AIR FORCE EFFECTIVE SEPTEMBER 27, 1947, PRIOR TO YOUR APPOINTMENT AS A CAPTAIN, AIR RESERVE, ON OCTOBER 20, 1947, THE ABOVE ARMY REGULATION WAS APPLICABLE NEVERTHELESS TO SUCH APPOINTMENT. AIR FORCE LETTER NO. 5-10, DATED NOVEMBER 14, 1947, PROVIDED IN PARAGRAPH 1 THAT IT HAD BEEN PREVIOUSLY DIRECTED THAT WAR DEPARTMENT PUBLICATIONS PUBLISHED PRIOR TO SEPTEMBER 18, 1947, WOULD HAVE CONTINUED APPLICATION UPON THE AIR FORCE UNTIL CHANGED, REVISED, OR SUPERSEDED BY LATER DIRECTIVES. THE FACT THAT ARMY REGULATIONS 140-5 WAS STILL APPLICABLE ON OCTOBER 20, 1947, WHEN YOU ACCEPTED THE COMMISSION OF CAPTAIN IN THE AIR RESERVE IS EVIDENCED BY THE STATEMENT MADE IN AIR FORCE LETTER 5-10A, DATED APRIL 8, 1948, THAT CHANGE NO. 4 TO ARMY REGULATIONS 140-5, WHICH WAS ISSUED MARCH 16, 1948, WAS ALSO APPLICABLE TO THE AIR FORCE ACTIVITIES. HENCE, WHEN YOU ACCEPTED THE COMMISSION OF CAPTAIN IN THE AIR RESERVE, SUCH ACCEPTANCE VACATED YOUR PRIOR APPOINTMENT IN THE AIR CORPS RESERVE AND TERMINATED ANY FURTHER ACTIVE DUTY STATUS AS A RESERVE OFFICER UNDER SUCH PRIOR APPOINTMENT. INASMUCH AS YOUR APPOINTMENT AS CAPTAIN IN THE AIR CORPS RESERVE DID NOT PROVIDE FOR ACTIVE DUTY UNTIL DIRECTED BY FURTHER ORDERS, YOUR ACTIVE SERVICE IN THE STATUS OF A RESERVE OFFICER WAS THEN TERMINATED. FOLLOWS THAT ONLY YOUR ACTIVE DUTY STATUS AS AN OFFICER OF THE ARMY OF THE UNITED STATES OR AIR FORCE OF THE UNITED STATES CONTINUED FROM OCTOBER 20, 1947, UNTIL JUNE 24, 1948. CREDIT FOR SUCH SERVICE IS NOT AUTHORIZED IN THE COMPUTATION OF THE LUMP-SUM BONUS PAYMENT.

UNDER THE PROVISIONS OF 10 U.S.C. 38 (1940 ED.), THE PREPARATION OF IMPLEMENTING POLICIES AND REGULATIONS AFFECTING THE ORGANIZATION, DISTRIBUTION, TRAINING, APPOINTMENT, ASSIGNMENT, PROMOTION, AND DISCHARGE OF MEMBERS OF THE OFFICERS' RESERVE CORPS WAS TO BE BY APPROPRIATE COMMITTEES IN THE WAR DEPARTMENT, WITH THE CHIEF OF STAFF ACTING AS AGENT OF THE SECRETARY OF WAR IN CARRYING OUT THE POLICIES AND REGULATIONS SO PREPARED AND AS APPROVED BY THE SECRETARY. THUS, IT MAY BE SEEN THAT THERE WAS AMPLE STATUTORY AUTHORITY TO PROMULGATE AND EFFECTUATE ARMY REGULATIONS NO. 140-5, DATED JUNE 17, 1941, WHICH WERE PLACED INTO EFFECT BY THE CHIEF OF STAFF ON JULY 1, 1941, BY ORDER OF THE SECRETARY OF WAR. THEREFORE, IN VIEW OF THE PROVISIONS CONTAINED IN PARAGRAPH 73 THEREOF, WE PERCEIVE NO LEGAL BASIS UPON WHICH YOU COULD HAVE CONTINUED ON ACTIVE DUTY AS A RESERVE OFFICER AFTER ACCEPTING THE PERMANENT COMMISSION OF CAPTAIN IN THE AIR RESERVE UNTIL YOU RECEIVED FURTHER ORDERS FOR ACTIVE DUTY UNDER THAT COMMISSION. YOUR CLAIM IS SIMILAR TO THE CLAIM OF LIEUTENANT COLONEL SEYMOUR BERMAN THE DISALLOWANCE OF WHICH WAS SUSTAINED IN OUR DECISION OF JUNE 19 AND AUGUST 21, 1963, B-151521, COPIES OF WHICH ARE ENCLOSED. ACCORDINGLY, THE SETTLEMENT OF MARCH 3, 1965, IS SUSTAINED.

WITH REFERENCE TO THE FURTHER PURSUIT OF YOUR CLAIM, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, THE SETTLEMENT OF CLAIMS AGAINST THE GOVERNMENT OF THE UNITED STATES IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE AND OUR DECISIONS WITH RESPECT TO SUCH CLAIMS ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE, IN THIS CONNECTION, 31 U.S.C. 74. HOWEVER, CERTAIN CLAIMS MAY BE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS. SUCH SUITS MUST BE FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 2501.