B-79677, DEC 8, 1948

B-79677, DEC 8, 1948

PRECIS-UNAVAILABLE

COLONEL C. A. FRANK, F.D., U.S. ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1948, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN GEORGE H. WILSON, UNITED STATES AIR FORCE RESERVE, FOR LUMP-SUM PAYMENT UNDER SECTION 6 OF THE ACT OF JUNE 3, 1941, 55 STAT. 240, COMPUTED ON THE PERIOD DECEMBER 6, 1941, TO DECEMBER 4, 1947.

IT APPEARS THAT GEORGE HAWKS WILSON ENLISTED IN THE REGULAR ARMY AS A FLYING CADET DECEMBER 28, 1940; THAT HE WAS HONORABLY DISCHARGED FEBRUARY 4, 1941, BY REASON OF FLYING DEFICIENCY; THAT HE REENLISTED IN THE REGULAR ARMY AS A FLYING CADET APRIL 26, 1941; THAT HE WAS HONORABLY DISCHARGED DECEMBER 5, 1941, TO ACCEPT A COMMISSION IN THE OFFICER'S RESERVE CORPS; THAT HE WAS APPOINTED SECOND LIEUTENANT, AIR CORPS RESERVE, DECEMBER 6, 1941; AND THAT HE HAD ACTIVE DUTY UNDER HIS AIR CORPS RESERVE COMMISSION FROM DECEMBER 6, 1941, TO DECEMBER 4, 1947, WHEN HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY.

ON JUNE 6, 1947, CAPTAIN WILSON ADVISED THE COMMANDING GENERAL, SIXTH ARMY, PRESIDIO OF SAN FRANCISCO, SAN FRANCISCO, CALIFORNIA, THAT HE HAD BEEN NOTIFIED OF HIS NOMINATION AS FIRST LIEUTENANT, REGULAR ARMY, THAT HE HAD NOTIFIED HEADQUARTERS, SIXTH ARMY, OF HIS ACCEPTANCE OF THIS APPOINTMENT, BUT THAT HE WAS UNABLE TO COMPLY WITH THE 15-DAY LIMIT TO TAKE THE REGULAR ARMY PHYSICAL EXAMINATION DUE TO HOSPITALIZATION AT AAF STATION HOSPITAL, HAMILTON, HAMILTON FIELD, CALIFORNIA.

PARAGRAPH 23, SPECIAL ORDER NO. 121, WAR DEPARTMENT, JUNE 19, 1947, ANNOUNCED CERTAIN APPOINTMENTS-- INCLUDING THE APPOINTMENT OF CAPTAIN WILSON IN THE GRADE OF FIRST LIEUTENANT-- IN THE REGULAR ARMY EFFECTIVE JUNE 19, 1947, SUBJECT TO QUALIFICATION BY PHYSICAL EXAMINATION.

ON JUNE 30, 1947, THE COMMANDING GENERAL, SIXTH ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, ADVISED CAPTAIN WILSON AS FOLLOWS:

"1. REFERENCE YOUR LETTER OF 6 JUNE 1947 RELATIVE YOUR INABILITY TO COMPLY WITH 15 DAY LIMIT TO TAKE FINAL PHYSICAL EXAMINATION, AND FIRST INDORSEMENT THERETO, OFFICE OF THE SURGEON, STATION HOSPITAL, HAMILTON FIELD, CALIFORNIA, YOU ARE HEREBY ADVISED THAT THE OFFICES OF THE SURGEON GENERAL AND THE ADJUTANT GENERAL HAVE GIVEN CAREFUL CONSIDERATION TO YOUR PHYSICAL QUALIFICATIONS FOR COMMISSION IN THE REGULAR ARMY. IT HAS BEEN DETERMINED THAT YOU ARE DISQUALIFIED FOR A COMMISSION IN THE REGULAR ARMY IN THAT YOU DO NOT MEET THE REQUIREMENTS OF AR 40-105 AND 40-110.

"2. THE DECISION OF THE SURGEON GENERAL'S OFFICE IS FINAL, A WAIVER CANNOT BE GRANTED AND APPOINTMENT WILL NOT BE TENDERED.

"3. YOUR OFFER OF SERVICE IS APPRECIATED AND IT IS REGRETTED THAT A MORE FAVORABLE REPLY CANNOT BE MADE.

AS INDICATED ABOVE, CAPTAIN WILSON WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON DECEMBER 4, 1947, AND THEREAFTER, BY PARAGRAPH 37 SPECIAL ORDERS NO. 14, DEPARTMENT OF THE ARMY, DATED JANUARY 21, 1948, PARAGRAPH 23 OF SPECIAL ORDERS NO. 121, SUPRA, WAS REVOKED INSOFAR AS IT PERTAINED TO CERTAIN INDIVIDUALS, INCLUDING CAPTAIN WILSON WAS "APPOINTED" A FIRST LIEUTENANT, AIR CORPS, REGULAR ARMY, ON JUNE 19, 1947, BUT THAT THERE IS NO RECORD THAT HE EXECUTED AN OATH OF ACCEPTANCE.

SECTION 1 AND 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, ORIGINALLY PROVIDED:

"THAT THE PRESIDENT BE, AND HE IS HEREBY, AUTHORIZED TO CALL TO ACTIVE DUTY, WITH THEIR CONSENT, FOR PERIODS OF NOT MORE THAN FIVE YEARS, SUCH NUMBER OF ARMY AIR CORPS RESERVE OFFICERS AS HE MAY DEEM NECESSARY, NOT TO EXCEED ONE THOUSAND THREE HUNDRED AND FIFTY.

"SEC. 2. UPON THE TERMINATION OF SUCH A PERIOD OF ACTIVE DUTY OF NOT LESS THAN THREE YEARS IN DURATION, SUCH AIR CORPS RESERVE OFFICERS SHALL BE PAID A LUMP SUM OF $500, WHICH SUM SHALL BE ADDITION TO ANY PAY AND ALLOWANCES WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE."

SECTION 11 OF THE ACT OF APRIL 3, 1939, 53 STAT. 559, AMENDED SECTION 2 OF THE ABOVE ACT OF JUNE 16, 1936, TO READ AS FOLLOWS:

"ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY SHALL BE PAID UPON RELEASE FROM ACTIVE DUTY FOLLOWING THE TERMINATION OF ANY PERIOD OF ACTIVE DUTY OF THREE YEARS OR MORE IN DURATION A LUMP SUM OF $500 WHICH SUM SHALL BE IN ADDITION TO ANY PAY AND ALLOWANCES WHICH HE MAY OTHERWISE BE ENTITLED TO RECEIVE."

SECTION 6 OF THE ACT OF JUNE 3, 1941, 55 STAT. 240, PROVIDES:

"SECTION 2 OF THE ACT OF JUNE 16, 1936 (49 STAT. 1524), AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 2. WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH OFFICER, AND IF RELEASED FROM ACTIVE DUTY OTHERWISE 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. THE LUMP-SUM PAYMENTS HEREIN AUTHORIZED SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE.'"

IN RECOMMENDING THE LEGISLATION WHICH BECAME THE ACT OF JUNE 16, 1936, SUPRA, THE SECRETARY OF WAR, IN A LETTER TO THE SPEAKER, HOUSE OF REPRESENTATIVES, STATED, IN PERTIMENT PART, THAT--

"*** THIS AMOUNT ($500) ADDED TO HIS PAY WILL EQUALIZE THE COST TO THE GOVERNMENT OF BOTH THE NAVY AND ARMY PILOT. IN ADDITION, THE PAYMENT OF THIS SUM AT THE TERMINATION OF HIS ACTIVE DUTY WILL EASE THE SHOCK OF TRANSFERENCE TO CIVIL LIFE AS RECOMMENDED BY THE HOWELL COMMISSION. ***"

RESPECTING THE AMENDMENT OF APRIL 3, 1939, TO SECTION 2 OF THE ACT OF JUNE 16, 1936, THE HOUSE COMMITTEE ON MILITARY AFFAIRS MADE THE FOLLOWING STATEMENT (HOUSE REPORT NO. 32, FEBRUARY 8, 1939, ON H.R. 3791, 76TH CONGRESS):

"*** THE PURPOSE OF THE BONUS IS TO PROVIDE FOR THE IMMEDIATE NEEDS OF THE RESERVE OFFICER UPON HIS RETURN TO CIVIL LIFE. AS THAT NEED DOES NOT EXIST IN THE CASE OF OFFICERS PERMANENTLY APPOINTED IN THE REGULAR ARMY UPON EXPIRATION OF OR DURING SUCH TOUR OF ACTIVE DUTY, THE AMENDMENT LIMITS THE PAYMENT OF THE BONUS TO RESERVE OFFICERS WHO ARE NOT SELECTED FOR SUCH APPOINTMENT."

THE RECORD SHOWS THAT CAPTAIN WILSON'S "APPOINTMENT" IN THE REGULAR ARMY UNDER THE ORDERS OF JUNE 19, 1947, WAS NEVER COMPLETED BECAUSE HE WAS FOUND TO BE NOT PHYSICALLY QUALIFIED THEREFOR. IN OTHER WORDS, WHILE HE WAS SELECTED AS A PERSON TO BE CONSIDERED FOR COMMISSION IN THE REGULAR ARMY, HIS PHYSICAL CONDITION WAS SUCH THAT HE COULD NOT MEET THE REQUIREMENTS OF THE ARMY. BEARING IN MIND THAT PAYMENT OF THE LUMP SUM WAS AUTHORIZED TO PROVIDE A FINANCIAL CUSHION FOR THOSE AIR CORPS RESERVES OFFICERS RETURNING TO CIVILIAN LIFE, THE RESTRICTIVE PROVISION OF THE STATUTE WOULD SEEM INAPPLICABLE TO AN AIR CORPS RESERVE OFFICER WHO, BECAUSE OF HIS PHYSICAL CONDITION, COULD NOT CONTINUE HIS MILITARY CAREER BY BECOMING AN OFFICER IN THE REGULAR ARMY. HENCE, THE ACTION TAKEN BY THE WAR DEPARTMENT IN CAPTAIN WILSON'S CASE MAY NOT BE CONSIDERED A SELECTION FOR COMMISSION IN THE REGULAR ARMY WITHIN THE MEANING OF THE SAID STATUTE.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.