B-159375, JULY 21, 1966, 46 COMP. GEN. 68

B-159375, JULY 21, 1966, 46 COMP. GEN. 68

PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - SEPARATION NOT INVOLUNTARY. A RESERVE OFFICER IN A "FAILED OF SELECTION" STATUS WHOSE REQUEST FOR AN ACTIVE-DUTY AGREEMENT FOR 1 YEAR AT THE TERMINATION OF HIS CURRENT AGREEMENT IS CONTINGENT UPON ASSIGNMENT TO A PARTICULAR TYPE DUTY AND GEOGRAPHIC LOCATION IS NOT ENTITLED TO RECEIVE A LUMP-SUM READJUSTMENT PAYMENT INCIDENT TO HIS RELEASE FROM ACTIVE DUTY, THE MEMBER NOT HAVING UNCONDITIONALLY VOLUNTEERED FOR AN ADDITIONAL REGULAR TOUR DUTY, HIS SEPARATION UPON THE EXPIRATION OF HIS ACTIVE DUTY COMMITMENT IS NOT THE "INVOLUNTARY RELEASE" CONTEMPLATED BY THE ACT OF JULY 9, 1956, 50 U.S.C. 1016, FOR ENTITLEMENT TO A LUMP-SUM READJUSTMENT PAYMENT. PAY - PROMOTIONS - OFFICERS FAILING PROMOTION - ADDITIONAL DUTY OFFER. THE FACT THAT A RESERVE OFFICER IS IN A "FAILED OF SELECTION" STATUS FOR SOMETIME PRIOR TO RELEASE FROM ACTIVE DUTY DOES NOT CONSTITUTE A BAR TO HIS RETENTION ON ACTIVE DUTY, NOR DOES THE POSSIBILITY OF FAILURE TO BE SELECTED FOR PROMOTION A SECOND TIME IF RETAINED ON ACTIVE DUTY PREVENT THE ACCEPTANCE OF A VOLUNTEERED UNCONDITIONAL OFFER TO SERVE FOR AN ADDITIONAL REGULAR TOUR OF ACTIVE DUTY. PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - ADDITIONAL DUTY OFFER. IF THE OFFER OF A RESERVE OFFICER IN A "FAILED OF SELECTION" STATUS TO UNCONDITIONALLY SERVE FOR AN ADDITIONAL REGULAR TOUR OF DUTY IS NOT ACCEPTED, HE IS ENTITLED TO THE LUMP-SUM READJUSTMENT PAYMENT AUTHORIZED BY THE ACT OF JULY 9, 1956 (5 U.S.C. 1016), AND IF HIS OFFER IS ACCEPTED AND THE ADDITIONAL TOUR OF ACTIVE DUTY OF THE MEMBER IS CUT SHORT BECAUSE HE FAILED A SECOND TIME OF SELECTION FOR PROMOTION, THE OFFICER WOULD BE ENTITLED AT THAT TIME TO RECEIVE A LUMP-SUM READJUSTMENT PAYMENT.

TO LIEUTENANT JOHN A. HENNEBERGER, JULY 21, 1966:

LETTER DATED JUNE 7, 1966, WRITTEN ON YOUR BEHALF BY MR. SAMUEL T. ANSELL, JR., REQUESTS REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 14, 1965, WHICH DISALLOWED YOUR CLAIM FOR LUMP-SUM READJUSTMENT PAY INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY ON SEPTEMBER 13, 1964.

THE RECORD DISCLOSES THAT YOU ENLISTED IN THE UNITED STATES NAVAL RESERVE ON AUGUST 15, 1959, ENTERED ON ACTIVE DUTY AUGUST 31, 1959, SERVED ON ACTIVE DUTY AS AN ENLISTED MAN AND AS AN OFFICER UNTIL SEPTEMBER 13, 1964, AND HAVE BEEN ON INACTIVE DUTY FROM SEPTEMBER 14, 1964, TO DATE.

BY LETTER DATED MAY 22, 1964, PURSUANT TO PARAGRAPH 8, BUPERS INSTRUCTION 1120.22C, DATED APRIL 21, 1961, YOU REQUESTED AN ACTIVE- DUTY AGREEMENT FOR A PERIOD OF 1 YEAR FROM THE TERMINATION OF YOUR CURRENT AGREEMENT AND FURTHER REQUESTED THAT THIS ADDITIONAL 1 YEAR BE SERVED AT FLEET AIRBORNE ELECTRONICS TRAINING UNIT, PACIFIC, DETACHMENT THREE, NAVAL AIR STATION, BARBER'S POINT, HAWAII. BUPERS ORDER NO. 068328, DATED JUNE 3, 1964, DIRECTED YOU TO PROCEED TO CONTINENTAL UNITED STATES ON OR AFTER AUGUST 3 IN TIME TO PERMIT COMPLETION OF SEPARATION PROCESSING PRIOR TO SEPTEMBER 4, 1964, DUE TO EXPIRATION OF ACTIVE-DUTY COMMITMENT. BY LETTER DATED JULY 2, 1964, THE BUREAU OF NAVAL PERSONNEL ADVISED YOU THAT UNDER PRESENT POLICY AN ACTIVE-DUTY AGREEMENT MAY NOT BE ISSUED TO AN OFFICER WHO IS IN A "FAILED OF SELECTION" STATUS IN PRESENT GRADE AND, SINCE YOU CURRENTLY WERE IN THIS STATUS, YOU WERE NOT ELIGIBLE FOR AN ACTIVE-DUTY AGREEMENT. IN SPEEDLETTER DATED AUGUST 24, 1964, YOU REQUESTED THAT THE DISAPPROVAL OF YOUR MAY 22, 1964, REQUEST BE RECONSIDERED AND THAT AN ACTIVE-DUTY AGREEMENT FOR THE FULL REGULAR TOUR BE OFFERED TO YOU.

IT APPEARS THAT SUBSEQUENT TO YOUR SEPARATION FROM ACTIVE DUTY ON SEPTEMBER 13, 1964, YOU MADE CLAIM FOR LUMP-SUM READJUSTMENT PAY. LETTER DATED NOVEMBER 19, 1964, THE NAVY FINANCE CENTER, CLEVELAND, OHIO, INFORMED YOU THAT THE BUREAU OF NAVAL PERSONNEL HAD ADVISED THAT A BOARD HAD DETERMINED THAT YOUR SEPARATION ON SEPTEMBER 13, 1964, WAS VOLUNTARY AND PAYMENT OF LUMP-SUM READJUSTMENT PAY WAS DENIED. BY LETTER DATED NOVEMBER 23, 1964, THE BUREAU OF NAVAL PERSONNEL ADVISED YOU THAT A BOARD OF OFFICERS CAREFULLY CONSIDERED THE ACTIONS AND EVENTS PERTAINING TO YOUR SEPARATION AND DETERMINED THAT YOU WERE NOT ENTITLED TO RECEIVE A LUMP-SUM READJUSTMENT PAYMENT. IN LETTER DATED DECEMBER 21, 1964, THE BUREAU FURTHER ADVISED YOU THAT:

RECORDS IN THE BUREAU OF NAVAL PERSONNEL DO NOT INDICATE THAT YOU MADE, AT ANY TIME PRIOR TO YOUR RELEASE FROM ACTIVE DUTY UPON EXPIRATION OF YOUR OBLIGATED SERVICE, AN UNCONDITIONAL REQUEST FOR EXTENSION OF ACTIVE DUTY. ACCORDINGLY, YOUR RELEASE WAS NOT "INVOLUNTARY" WITHIN THE MEANING OF THE STATUTE AUTHORIZING LUMP SUM READJUSTMENT PAYMENTS.

THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, AMENDED THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 481, BY ADDING SECTION 265 (50 U.S.C. 1016), WHICH AUTHORIZES PAYMENT OF A LUMP- SUM READJUSTMENT PAYMENT TO A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY. SUBSECTION (H) OF SECTION 265, 50 U.S.C. 1016 (H) (2) CONTAINS THE FOLLOWING DEFINITION:

THE TERM "INVOLUNTARY RELEASE" SHALL INCLUDE RELEASE UNDER CONDITIONS WHEREIN A MEMBER OF A RESERVE COMPONENT, WHO HAS COMPLETED A TOUR OF DUTY, VOLUNTEERS FOR AN ADDITIONAL TOUR OF DUTY AND THE SERVICE CONCERNED DOES NOT EXTEND OR ACCEPT THE VOLUNTEER REQUEST OF THE MEMBER FOR THE ADDITIONAL TOUR.

IN UNDATED LETTER RECEIVED IN THIS OFFICE SEPTEMBER 27, 1965, YOUR ATTORNEY CONTENDED THAT YOU BECAME ENTITLED TO LUMP-SUM READJUSTMENT PAY AFTER YOUR REQUEST OF MAY 22, 1964, WAS NOT APPROVED, BASED ON THE FOLLOWING SENTENCE WHICH APPEARS IN PARAGRAPH 044189-1 OF THE NAVY DEPARTMENT COMPTROLLER MANUAL PARAPHRASING 10 U.S.C. 1016 (H) (2) AS FOLLOWS:

* * * THE TERM "INVOLUNTARILY RELEASED" INCLUDES RELEASE UNDER CONDITIONS WHEREIN A MEMBER OF A RESERVE COMPONENT, WHO HAS COMPLETED A TOUR OF ACTIVE DUTY, VOLUNTEERS FOR AN ADDITIONAL REGULAR TOUR OF DUTY AND THE SERVICE CONCERNED DOES NOT EXTENT OR ACCEPT THE VOLUNTEER REQUEST OF THE MEMBER FOR THE ADDITIONAL TOUR; * * *

HOWEVER, PARAGRAPH 044189-1 FURTHER PROVIDES THAT:

* * * WHEN A MEMBER VOLUNTEERS FOR A PERIOD OF ACTIVE DUTY CONTINGENT UPON ASSIGNMENT TO A PARTICULAR TYPE OF DUTY OR GEOGRAPHICAL LOCATION, OR CONTINGENT UPON BEING TENDERED A SPECIFIC TYPE OF CONTRACT (E.G., ACTIVE DUTY AGREEMENT), HE HAS, BY HIS OWN ACTION, PLACED RESTRICTIONS ON HIS REQUESTS WHICH ARE INCOMPATIBLE WITH THE REQUIREMENT THAT HE VOLUNTEER FOR AN ADDITIONAL ,REGULAR" TOUR OF DUTY AND, CONSEQUENTLY, SHOULD SUCH CONDITIONAL REQUEST BE DENIED, MAY NOT BE REGARDED AS HAVING BEEN INVOLUNTARILY RELEASED FROM ACTIVE DUTY. * * *

PARAGRAPH 8, BUPERS INSTRUCTION NO. 1120.22C, PROVIDES THE METHOD OF APPLICATION BY WHICH OFFICERS WHO HAVE NOT RECEIVED OFFERS OF AN ACTIVE- DUTY AGREEMENT MAY REQUEST AN AGREEMENT. PARAGRAPH 9 OF THAT INSTRUCTION PROVIDES THAT:

APPLICATIONS SUBMITTED IN RESPONSE TO THIS INSTRUCTION WILL BE CONSIDERED BY A CONTINUING BOARD OF OFFICERS CONVENED BY THE CHIEF OF NAVAL PERSONNEL. THIS BOARD WILL MEET AS OFTEN AS MAY BE NECESSARY TO INSURE PROMPT CONSIDERATION OF ALL APPLICATIONS RECEIVED. WITHIN THE NUMBERS ALLOCATED, THE BOARD WILL RECOMMEND THOSE OFFICERS TO RECEIVE AGREEMENTS WHOM THEY CONSIDER BEST QUALIFIED FOR RETENTION ON ACTIVE DUTY.

YOUR REQUEST OF MAY 22, 1964, CLEARLY WAS FOR AN ACTIVE-DUTY AGREEMENT CONTINGENT UPON DUTY AT THE NAVAL AIR STATION, BARBER'S POINT, HAWAII. FURTHERMORE, YOUR REQUEST OF AUGUST 24, 1964, WAS NOT FOR AN ADDITIONAL "REGULAR" TOUR OF DUTY BUT WAS FOR AN "ACTIVE DUTY AGREEMENT FOR A FULL REGULAR TOUR;, IN OTHER WORDS, IT APPEARS TO HAVE BEEN AN OFFER TO ENTER INTO AN AGREEMENT TO SERVE ON ACTIVE DUTY FOR A SPECIFIED PERIOD OF TIME. BOTH SUCH REQUESTS WERE PROPERLY FOR CONSIDERATION BY THE BOARD OF OFFICERS PROVIDED FOR IN PARAGRAPH 9 OF BUPERS INSTRUCTION NO. 1120.22C, AS TO WHETHER THE OFFICER WAS TO RECEIVE AN ACTIVE-DUTY AGREEMENT.

UNDER 10 U.S.C. 679 (C) ACTIVE-DUTY AGREEMENTS ARE SUBJECT TO SUCH STANDARDS AND POLICIES AS MAY BE PRESCRIBED BY THE SECRETARY OF DEFENSE FOR THE ARMED FORCES UNDER HIS JURISDICTION. AMONG OTHER THINGS, SUCH AGREEMENTS MUST BE MADE FOR A SPECIFIED PERIOD OF TIME AND MEMBERS WHO ENTER INTO SUCH AGREEMENTS ARE NOT SUBJECT TO RELEASE FROM ACTIVE DUTY WITHOUT THEIR CONSENT DURING THE PERIOD OF THE AGREEMENT EXCEPT AS PROVIDED IN 10 U.S.C. 680. SUCH AGREEMENTS NECESSARILY ARE SUBJECT TO THE CONDITIONS CONTAINED THEREIN.

SINCE YOU DID NOT UNCONDITIONALLY VOLUNTEER FOR AN ADDITIONAL REGULAR TOUR OF DUTY AND WERE SEPARATED FROM ACTIVE DUTY BY REASON OF EXPIRATION OF YOUR ACTIVE DUTY COMMITMENT, THERE IS NO LEGAL BASIS FOR CONSIDERING YOUR SEPARATION ON SEPTEMBER 13, 1964, AN "INVOLUNTARY RELEASE" SO AS TO ENTITLED YOU TO LUMP-SUM READJUSTMENT PAMENT.

THE FACT THAT YOU HAD BEEN IN A "FAILED OF SELECTION" STATUS FOR SOME TIME PRIOR TO YOUR RELEASE FROM ACTIVE DUTY IN SEPTEMBER 1964 DID NOT CONSTITUTE A BAR TO YOUR RETENTION ON ACTIVE DUTY; NOR WOULD THE POSSIBILITY (IN AND OF ITSELF) THAT YOU MIGHT FAIL OF SELECTION FOR PROMOTION A SECOND TIME IF RETAINED ON ACTIVE DUTY AFTER SEPTEMBER 13, 1964, HAVE PREVENTED THE PROPER NAVAL OFFICIALS FROM ACCEPTING AN UNCONDITIONAL OFFER TO SERVE FOR AN ADDITIONAL TOUR OF ACTIVE DUTY IF YOU HAD SO VOLUNTEERED. IF SUCH OFFER OR REQUEST HAD BEEN MADE BUT HAD NOT BEEN ACCEPTED, YOU, OF COURSE, WOULD HAVE BEEN ENTITLED TO READJUSTMENT PAY. IF THE OFFER HAD BEEN ACCEPTED BUT THE ADDITIONAL TOUR OF ACTIVE DUTY HAD BEEN CUT SHORT BY YOUR FAILING A SECOND TIME TO BE SELECTED FOR PROMOTION, READJUSTMENT PAY WOULD HAVE BEEN PAYABLE AT THAT TIME.