B-157338, SEP. 15, 1965

B-157338, SEP. 15, 1965

TO MR. EUGENE W. TABER:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 1, 1965, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED DECEMBER 30, 1954, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD APRIL 2 TO 23, 1953, AS SECOND LIEUTENANT, UNITED STATES AIR FORCE RESERVE.

BY PARAGRAPH 7, SPECIAL ORDERS NO. 85, HEADQUARTERS, RANDOLPH AIR FORCE BASE, RANDOLPH FIELD, TEXAS, DATED APRIL 11, 1953, AS AMENDED, YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT THAT STATION AND DIRECTED TO PROCEED ON APRIL 18, 1953, TO YOUR HOME OF RECORD, KEY WEST, FLORIDA, TO ARRIVE NOT LATER THAN APRIL 24, 1953, AT WHICH TIME YOU WERE TO REVERT TO AN INACTIVE STATUS. THE REASON WAS STATED TO BE THAT YOU DECLINED TO SIGN AN INDEFINITE TERM APPOINTMENT, REFERENCE BEING MADE TO A MESSAGE DATED NOVEMBER 21, 1952. THE PAY RECORDS SHOW THAT YOU WERE CREDITED PAY AND ALLOWANCES THROUGH APRIL 1, 1953. BY PARAGRAPH 120, AIR FORCE RESERVE ORDERS NO. 132, HEADQUARTERS, FOURTEENTH AIR FORCE, ROBINS AIR FORCE BASE, GEORGIA, DATED JUNE 11, 1953, YOUR APPOINTMENT AS A RESERVE OFFICER IN THE UNITED STATES AIR FORCE FOR AN INDEFINITE PERIOD WAS ANNOUNCED, EFFECTIVE DECEMBER 17, 1952.

SECTION 224 OF THE ARMED FORCES RESERVE ACT OF 1952, DATED JULY 9, 1952, 66 STAT. 487, 50 U.S.C. 948 (1952 ED.), PROVIDED IN PERTINENT PART THAT AFTER JULY 9, 1952, ALL APPOINTMENTS OF RESERVE OFFICERS SHOULD BE FOR AN INDEFINITE TERM, AND THAT AN OFFICER NOT HOLDING SUCH AN APPOINTMENT ON THAT DAY WOULD BE GIVEN AN APPOINTMENT FOR AN INDEFINITE TERM IN LIEU OF HIS CURRENT APPOINTMENT, IF SUCH OFFICER, AFTER WRITTEN NOTIFICATION BY COMPETENT AUTHORITY, WHICH SHOULD BE GIVEN WITHIN SIX MONTHS FROM THE EFFECTIVE DATE OF THE ACT, AGREES IN WRITING TO HAVE HIS CURRENT APPOINTMENT CONTINUED FOR AN INDEFINITE TERM. PARAGRAPH 5A, AIR FORCE REGULATIONS 35-6, DATED FEBRUARY 3, 1953, PROVIDED THAT THE APPOINTMENT OF A RESERVE OFFICER NOT HOLDING AN INDEFINITE TERM APPOINTMENT WOULD AUTOMATICALLY TERMINATE ON APRIL 1, 1953, OR ON THE EXPIRATION OF HIS TERM APPOINTMENT, WHICHEVER WAS LATER.

YOU SAY THAT YOU SHOULD HAVE BEEN SEPARATED BEFORE APRIL 1, 1953, BUT THROUGH NO FAULT OF YOUR OWN YOU WERE HELD OVER UNTIL APRIL 23, 1953, AND THAT YOU WORE THE UNIFORM AND PERFORMED THE DUTY REQUIRED BY YOUR GRADE UNTIL APRIL 18, 1953, WHEN YOU COMMENCED TRAVEL TO YOUR HOME OF RECORD, KEY WEST, FLORIDA, ARRIVING APRIL 23, 1953. ALSO, YOU SAY THAT YOU HAD YOUR RESERVE COMMISSION RENEWED FROM DECEMBER 17, 1952, FOR AN INDEFINITE TERM. YOU THEREFORE CLAIMED PAY AND ALLOWANCES FOR THE PERIOD APRIL 1 TO 23, 1953. BY THE SETTLEMENT DATED DECEMBER 30, 1954, YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE SEPARATED FROM THE SERVICE BY REASON OF THE EXPIRATION OF YOUR COMMISSION ON APRIL 1, 1953, AND YOU WERE WITHOUT A STATUS IN THE MILITARY ESTABLISHMENT SO AS TO BE SERVING ON ACTIVE DUTY SUBSEQUENT TO APRIL 1, 1953. IN YOUR LETTER DATED JULY 1, 1965, YOU AGAIN SAY THAT YOU WERE AN ACTIVE MEMBER OF THE UNIFORMED ARMED FORCES TO APRIL 23, 1953, DATE OF SEPARATION FROM THE AIR FORCE, AND THAT YOU HAD BEEN PAID ONLY TO MARCH 30, 1953.

SECTION 127A OF THE ACT OF JUNE 3, 1916, AS ADDED BY SECTION 51 OF THE ACT OF JUNE 4, 1920, 41 STAT. 785, AND AMENDED BY SECTION 20 OF THE ACT OF JUNE 15, 1933, 48 STAT. 161, PROVIDED THAT AN APPOINTMENT IN THE ARMY OF THE UNITED STATES IN TIME OF WAR, OTHER THAN THAT OF A MEMBER OF THE REGULAR ARMY, SHOULD CONTINUE UNTIL SIX MONTHS AFTER ITS TERMINATION. THE ACT OF JULY 3, 1952, 66 STAT. 330, PROVIDED THAT NOTWITHSTANDING THE TERMINATION ON APRIL 28, 1952, OF THE EXISTENCE OF A STATE OF WAR WITH JAPAN, AND THE NATIONAL EMERGENCIES PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, AND ON MAY 27, 1941, THE PRESIDENT WAS AUTHORIZED TO CONTINUE IN EFFECT UNTIL AND INCLUDING APRIL 1, 1953, ALL APPOINTMENTS AS OFFICERS OF THE ARMY WHICH, UNDER THE PROVISIONS OF SECTION 127A OF THE ACT OF JUNE 3, 1916, AS AMENDED (APPLICABLE IN YOUR CASE BY VIRTUE OF SECTION 208 (C) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 504), WOULD TERMINATE AFTER APRIL 27, 1952, AND BEFORE APRIL 1, 1953. BY EXECUTIVE ORDER NO. 10397, DATED SEPTEMBER 25, 1952, 17 FEDERAL REGISTER 8605, THE PRESIDENT CONTINUED IN EFFECT ALL SUCH APPOINTMENTS UNTIL AND INCLUDING APRIL 1, 1953.

HENCE YOUR APPOINTMENT EXPIRED ON APRIL 1, 1953, AND SINCE THE RECORD SHOWS THAT YOU DECLINED AN INDEFINITE TERM APPOINTMENT PROFERRED UNDER THE PROVISIONS OF SECTION 224 OF THE ARMED FORCES RESERVE ACT OF 1952, YOU HAD NO STATUS AS A RESERVE OFFICER AFTER APRIL 1, 1953. THE ORDERS OF JUNE 11, 1953, ANNOUNCING YOUR APPOINTMENT AS A RESERVE OFFICER FOR AN INDEFINITE PERIOD EFFECTIVE DECEMBER 17, 1952, MAY NOT BE CONSIDERED AS AFFECTING THE PREVIOUS TERMINATION OF YOUR APPOINTMENT EFFECTIVE APRIL 1, 1953, WHICH ALSO TERMINATED YOUR ACTIVE DUTY STATUS FOR PAY PURPOSES.

ACCORDINGLY, THE SETTLEMENT DATED DECEMBER 30, 1954, WAS CORRECT AND IS SUSTAINED.

THE PAY RECORD FOR THE PERIOD NOVEMBER 1 TO DECEMBER 31, 1952, SHOWS THAT YOU WERE PAID FLYING PAY IN THE AMOUNT OF $100 FOR THE MONTH OF DECEMBER 1952. A SIMILAR PAYMENT OF $100 COVERING FLYING PAY FOR DECEMBER 1952, WAS MADE IN THE PAY RECORD FOR THE PERIOD JANUARY 1 TO APRIL 1, 1953, CONSTITUTING A DUPLICATE PAYMENT OF $100. THIS DUPLICATE PAYMENT IS STILL OUTSTANDING AS AN INDEBTEDNESS TO THE UNITED STATES AND SHOULD BE LIQUIDATED BY YOU. PAYMENT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO:

U.S. GENERAL ACCOUNTING OFFICE

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