B-188489 April 5, 1977

B-188489 April 5, 1977

The Honorable Robert F. Drinan House of Representatives

Dear Mr. Drinan:

Further reference is made to your letter dated February 15, 1977, with enclosures, concerning the claim of Mrs. Florence C. Rutan, c/o Banes, 705C Salerno Circle, Fort Devens, Massachusetts 01433, for additional pay believed due her late husband Sergeant First Class Rexford D. Rutan, incident to a Reserve obligation in the United States Air Force which it is indicated he served during the period October 3, 1954, through October 2, 1958.

This matter was the subject of settlement by our Claims Division dated November 26, 1976, which disallowed the claim on the basis that the National Personnel Records Center (Military Personnel Records), St. Louis, Missouri, had advised both the Department of the Army and our Office that records pertaining to Sergeant Rutan for the period claimed were destroyed in the fire which occurred at that Center on July 12, 1973, and that no evidence was available showing Sergeant Rutan to be in a Reserve status during 1954-1958.

In your letter of February 15, you urge further consideration of Mrs. Rutan's claim, not on the basis of the destruction f records in the St. Louis fire, but rather on the basis of the Air Force policy in existence at the time of Sergeant Rutan's active duty service during the period of 1950-1954. You have submitted additional evidence along these lines for our consideration. We agree t his matter can be considered in such manner.

According to information on record, Mr. Rutan enlisted in the Regular Air Force on October 3, 1950 for a 4-year term of enlistment. The documents submitted show that on October 2, 1954, the member, then a staff sergeant, was honorably discharged from the United States Air Force. See Honorable Discharge, DD Form 256 AF.

The report of separation (DD Form 214) submitted by you in this matter, states in item 8, that the reason and authority for Sergeant Rutan's separation was "AFR 39-10 ETS"-expiration of term of service. More significantly, item 16, captioned "Enlisted in or Transferred to a Reserve Component" has an entry of "No" for Sergeant Rutan, and "Not Applicable" for Reserve component and branch or class, as well as for cognizant district or area command. The total net service competed for pay purposes in shown, in item 24, as 4 years, 0 months, 0 days.

Thereafter, after a lapse of almost 7 years, Mr. Rutan enlisted in the United States Army on June 29, 1961. His Army enlistment record at that time reflected his prior Air Force service as being from October 3, 1950, to October 2, 1954, and he was given credit for 4 years service.

The basis of Mrs. Rutan's claim is her belief that it was Air Force policy at the time of her late husband's release from the Air Force in October 1954 to place all members in an "inactive reserve" status automatically upon completion of their enlistments. She believes that he was in such inactive Reserve status from October 3, 1954 to October 2, 1958. However, he did not receive credit for that period in computation of his pay entitlement during his Army enlistment from 1961 to t he date of his death in 1976.

At the time of Sergeant Rutan's discharge in 1954, many service personnel who had enlisted in the Air Force (as well as in other branches of the service) were required to serve for a total period of 8 years in a Regular and Reserve status by virtue of section 4(d) of the Universa Miliary Training and Service Act (originally enacted as the Selective Service Act of 1948) June 24, 1948, ch. 625, 62 Stat. 605, as amended, 50 U.S.C. App. 454(d) (1952 ed).

However, at the time Sergeant Rutan enlisted in the Air Force (October 3, 1950) subsection 4(d)(1) of the cited act provided that persons who enlisted and served for a period of less than 3 years were in certain circumstances to be transferred to the Reserves component of the service in question. Such persons, upon separation from active duty, were not discharged, rather, they were transferred to a Reserve status for the purpose of completing 5 more years of obligatory service. This authority was not applicable in the case of the 4 year, October 3, 1950 enlistment of Sergeant Rutan.

After Sergeant Rutan's enlistment the cited act was amended by the 1951 Universal Training and Service Act Amendments, June 19, 1951, ch. 144, 65 Stat. 75. Section 1(g) of the act amended section 4 of the Universal Military Training and Service Act to require that all persons inducted, enlisted or appointed after the date of enactment of that amendment serve on active duty and in the Reserves for a total of 8 years. The provision requiring Reserve service only for individuals who served on active duty less than 3 years was retained for those who entered service prior to the date of enactment.

Air Force regulations in effect at the time of Sergeant Rutan's discharge in 1954, include Air Force Regulations (AFR) 39-10, dated October 27, 1953, covering discharges of enlisted personnel upon expiration of enlistment or required service. This regulation defines "Discharge" in Section I, paragraph 4 thereof, as a complete severance from all military status, as upon expiration of enlistment when an airmen does not have a Reserve service obligation.

Further explanation is given in Section IV, paragraph 12 of the same regulation, providing in pertinent part as follows:

"SECTION IV-ELIGIBILITY FOR SEPARATION

"12. Separation Upon Expiration of Enlistment or Required Service. The periods of required service will be as prescribed by the Department of the Air Force in accordance with law. Airmen serving in the active military service will normally be discharged or released on the date the term of enlistment or period for which ordered to active duty is completed. Whether an airman is discharged or released from active duty upon termination of enlistment or period of active duty will depend upon whether the airman has a Reserve service obligation under the Universal Military Training and Service Act (see AFR 45-35) or whether he has an uncompleted Reserve of the Air Force enlistment. Regular airmen released from active duty and transferred to a Reserve component will not be discharged from such Reserve component until completion of any such obligation or Reserve component enlistment.

"a. Airman Enlisted Between 24 June 1948 and 19 June 1951. Male airmen who were subject to induction under the Universal Military Training and Service Act and who enlisted in the Regular Air Force between 24 June 1948 and 19 June 191951, both dates inclusive, prior to reaching the age of 26 may not be discharged unless they have completed 3 years of active duty. Airmen with less than 3 years of active duty are released from active duty and transferred to the Air Force Reserve for completion of obligation under the Universal Military Training and Service Act, as amended (see AFR 45-35).

A review of AFR 45-35, dated August 6, 1953, is to the same effect in not requiring a 4-year enlistee to be transferred to a Reserve component. Thus, applicable regulations implemented the requirements of the law as discussed above and did not provide for additional Reserve service. The foregoing Air Force Regulations, considered together with the documentation furnished by you, establishes that Sergeant Rutan was not subject to any mandatory Reserve commitment under existing law or regulations. Since the m ember was issued an Honorable Discharge by the Air Force on October 2, 1954, under the then applicable law and regulations, such action resulted in a complete severance of his military status at that time. We are not aware of any legal basis for concluding otherwise.

We trust the foregoing will serve the purpose of your inquiry and regret a more favorable reply cannot be made. The enclosures forwarded with your letter are returned herewith.

Sincerely yours,

R. F. Keller Acting Comptroller General Of the United States

Enclosures