B-104495, NOV 20, 1951

B-104495, NOV 20, 1951

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL LEWIS L. FLAMM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1951, WITH ENCLOSURES, ADDRESSED TO THE ADJUTANT GENERAL OF THE ARMY AND FORWARDED HERE FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM FOR INCREASED LONGEVITY PAY FOR THE PERIOD NOVEMBER 10, 1944; TO JANUARY 12, 1945.

ON DECEMBER 22, 1948, YOU PRESENTED A CLAIM FOR THE DIFFERENCE BETWEEN PAY AS A CAPTAIN, 9 YEARS' SERVICE, AND PAY AS A CAPTAIN, 12 YEARS' SERVICE, FOR THE PERIOD NOVEMBER 10, 1944, TO JANUARY 12, 1945, STATING THAT YOU COMPLETED 12 YEARS' SERVICE ON NOVEMBER 10, 1944, RATHER THAN ON JANUARY 12, 1945, AS PROVIOUSLY COMPUTED BY YOU.

ON JULY 1, 1949, THE ADJUTANT GENERAL, MONTANA NATIONAL GUARD, REPORTED AS FOLLOWS:

"TO WHOM IT MAY CONCERN: RE: FLAMM, LEWIS L. 0-384213

"THE FOLLOWING IS A STATEMENT OF SERVICE FOR LEWIS L. FLAMM, 0 384213, AS DISCLOSED BY THE RECORDS OF THIS OFFICE:

"ENLISTED AT BILLINGS, MONTANA ON 17 JANUARY 1928 FOR CO. H, 163D INF, MONT NG, TO SERVE FOR A PERIOD OF THREE (3) YEARS.

"TRANSFERRED TO NATIONAL GUARD RESERVE, 7 OCTOBER 1929 PER PAR 1, SO 147, AGO MONT DTD 7 OCTOBER 1929.

"TRANSFERRED FROM NATIONAL GUARD RESERVE TO CO. H, 163D INF, MONT NG, 10 JUNE 1930 PER PAR 2, SO 114, AGO MONT, DTD 10 JUNE 1930.

"TRANSFERRED TO NATIONAL GUARD RESERVE, 15 SEPTEMBER 1930 PER PAR 1, SO 146 1/2, AGO MONT, DTD SD.

"HONORABLY DISCHARGED FROM NATIONAL GUARD RESERVE, 16 JANUARY 1931 BY REASON OF EXPIRATION OF TERM OF SERVICE.

"RE-ENLISTED 9 JUNE 1931 FOR CO. H, 163D INF, MONT NG, TO SERVE FOR A PERIOD OF THREE (3) YEARS.

"TRANSFERRED TO NATIONAL GUARD RESERVE, 22 JULY 1931 PER PAR 1, SO 92, AGO MONT, DTD 22 JULY 1931.

"HONORABLY DISCHARGED FROM NATIONAL GUARD RESERVE, 8 JUNE 1934, BY REASON OF EXPIRATION OF TERM OF SERVICE.

"RE-ENLISTED 10 NOVEMBER 1938 FOR CO. H, 163D INF, MONT NG, TO SERVE FOR A PERIOD OF THREE (3) YEARS.

"COMMISSIONED 2ND LT. NGUS, AND ATTACHED TO CO. H, 163D INF, MONT NG, EFF 25 SEPTEMBER 1939 PER PAR 8, SO 41, AGO MONT, DTD SD."

ON NOVEMBER 30, 1949, THE ADJUTANT GENERAL, MONTANA NATIONAL GUARD, ADVISED THIS OFFICE IN CONNECTION WITH YOUR CLAIM THAT:

"THE FILES IN THIS OFFICE FAIL TO REVEAL THE DATE IN WHICH SUBJECT OFFICER SUBSCRIBED TO THE DUAL OATH. RECORDS SHOW THAT HE WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE ON 22 JULY 1931 AND SERVED IN THAT CAPACITY UNTIL THE TIME OF HIS DISCHARGED IN 8 JUNE 1934. IT IS THEREFORE BELIEVED THAT HE DID NOT BECOME A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES, AND THEREFORE DID NOT SUBSCRIBE TO THE DUAL OATH."

ON JUNE 13, 1949, THE ADJUTANT GENERAL OF THE ARMY, DEPARTMENT OF THE ARMY, REPORTED THAT:

"THE RECORDS INDICATE THAT LEWIS LE VERL FLAMM WAS APPOINTED 2D LT, INF- NGUS, 22 AUG 39; ASSIGNED SERIAL NUMBER 0 384 213; ACCEPTED 14 SEP 39; OFFICER'S NATIONAL GUARD UNIT INDUCTED INTO THE FEDERAL SERVICE PURSUANT TO THE CALL OF THE PRESIDENT 16 SEP 40, BUT HE WAS ABSENT SICK, NOT IN LINE OF DUTY UNTIL 23 JAN 41, ON WHICH DATE HE ENTERED ON EXTENDED ACTIVE DUTY; PROMOTED TO 1ST LT, AUS, 13 SEP 41; ACCEPTED 17 SEP 41; PROMOTED TO CAPT, AUS, 20 AUG 44; APPOINTED CAPT, REGULAR ARMY, 19 JUN 47, WITH DATE OF RANK FROM 4 OCT 44; ASSIGNED SERIAL NUMBER 0 42 384; ACCEPTED 1 AUG 47; PROMOTED TO MAJ, AUS, 8 AUG 48, WITH RANK FROM 1 JUL 48, AND IS NOW A CAPT, QMC, (TC), RA, ON ACTIVE DUTY AS MAJ, AUS."

BY SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED JANUARY 30, 1950, YOU WERE ADVISED THAT YOU WERE NOT ENTITLED TO CREDIT FOR SERVICE IN THE NATIONAL GUARD RESERVE FOR THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934; THAT YOU WERE NOT A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THAT PERIOD; THAT, THEREFORE, YOU DID NOT COMPLETE 12 YEARS' SERVICE UNTIL NOVEMBER 3, 1945; AND HENCE, THAT YOUR CLAIM WAS DISALLOWED, AND THAT AS OF NOVEMBER 30, 1948, YOU HAD BEEN OVERPAID - ON THE BASIS OF THE COMPLETION OF 12 YEARS' SERVICE ON JANUARY 12, 1945 - IN THE TOTAL AMOUNT OF $765.78. YOU NOW SUBMIT A PHOTOSTATIC COPY OF A DISCHARGE CERTIFICATE STATING THAT YOU WERE HONORABLY DISCHARGED FROM THE NATIONAL GUARD OF THE UNITED STATES AND OF THE STATE OF MONTANA ON JUNE 8, 1934. ALSO, YOU CALL ATTENTION TO THE RECORD OF YOUR SERVICE AS CONTAINED IN THE "OFFICERS REGISTER". (THE OFFICIAL ARMY REGISTER OF JANUARY 1, 1949, ISSUED JUST AFTER YOU PRESENTED YOUR CLAIM FOR INCREASED LONGEVITY PAY, STATES THAT YOU HAD ENLISTED SERVICE FROM JANUARY 17, 1928, TO JANUARY 16, 1931, AND FROM JUNE 9, 1931, TO JUNE 8, 1934; THE OFFICIAL ARMY REGISTER OF JANUARY 1, 1948, STATES YOUR ENLISTED SERVICE AS "NON-FEDERAL: PVT., PFC., CPL. AND SGT. INF. MONT. N.G. 10 APR 28 TO 6 OCT. 29; TRFD. TO NG -RES. 7 OCT. 29; PVT. AND SGT. INF. MONT. N.G. 10 JUNE 30 TO 5 SEPT. 30; TRFD. TO NG.-RES. 6 SEPT. 30; PVT. AND CPL. INF. MONT. N.G. 9 JUNE 31 TO 21 JULY 31; TRFD. TO NG-RES. 22 JULY 31; PVT., PFC., CPL. AND SGT. INF. N.G. 10 NOV. 38 TO 22 JAN 41.")

SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, EFFECTIVE JUNE 1, 1942, 56 STAT. 360, AS AMENDED BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, PROVIDED, INTER ALIA, THAT OFFICERS OF THE ARMY OF THE UNITED STATES SHOULD BE ENTITLED TO LONGEVITY CREDIT FOR ENLISTED SERVICE IN THE NATIONAL GUARD, THE NATIONAL GUARD RESERVE, AND THE NATIONAL GUARD OF THE UNITED STATES. YOUR CLAIM IS PRESENTED ON THE BASIS OF CREDIT FOR THE COMPLETION OF 12 YEARS' SERVICE ON NOVEMBER 10, 1944, INCLUDING CREDIT FOR THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934. FOR VARIOUS PERIODS SUBSEQUENT TO JUNE 1, 1942, YOU HAVE BEEN PAID ON THE BASIS OF CREDIT FOR THE COMPLETION OF 12 YEARS' SERVICE ON JANUARY 11, 1945, WHICH INCLUDES CREDIT FOR A PORTION OF THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934.

ON JUNE 14, 1933, YOU WERE A MEMBER OF THE NATIONAL GUARD RESERVE. JUNE 15, 1933, THE NATIONAL GUARD RESERVE WAS DISCONTINUED AND MEMBERS THEREOF BECAME MEMBERS OF THE INACTIVE NATIONAL GUARD. 23 COMP. GEN. 755, 757. ALSO, ON JUNE 15, 1933, THE NATIONAL GUARD OF THE UNITED STATES WAS ESTABLISHED. SECTION 5 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155. SECTION 7 OF THAT ACT, 43 STAT. 156, PROVIDES, INTER ALIA, THAT: "ALL ENLISTED MEN OF THE NATIONAL GUARD ON THE DATE OF APPROVAL OF THIS ACT MAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR, BE ENLISTED IN GRADE, RATING, AND BRANCH IN THE NATIONAL GUARD OF THE UNITED STATES FOR THE REMAINING UNEXPIRED PORTIONS OF THEIR ENLISTMENTS IN THE NATIONAL GUARD."

YOU ARE NOT ENTITLED TO CREDIT FOR SERVICE IN THE NATIONAL GUARD RESERVE SUBSEQUENT TO JUNE 14, 1933, SINCE THAT ORGANIZATION WAS DISCONTINUED ON JUNE 15, 1933, AND YOU ARE NOT ENTITLED TO CREDIT FOR SERVICE AS A MEMBER OF THE INACTIVE NATIONAL GUARD ON AND AFTER JUNE 15, 1933, BECAUSE A STATUS IN THAT ORGANIZATION IS NOT CREDITABLE FOR LONGEVITY PAY PURPOSES. 23 COMP. GEN. 755, SUPRA. THE ONLY APPARENT BASIS UPON WHICH YOU MIGHT BE ENTITLED TO LONGEVITY CREDIT FOR THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934, WOULD BE UPON AN ACCEPTANCE SHOWING THAT YOU WERE A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THAT PERIOD.

ENLISTED MEN IN THE NATIONAL GUARD ON JUNE 15, 1933, DID NOT AUTOMATICALLY BECOME MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES, ESTABLISHED ON THAT DAY, IT BEING REQUIRED THAT SUCH MEN EXECUTE A NEW ENLISTMENT CONTRACT FOR MEMBERSHIP IN THE LATTER ORGANIZATION. SECTION 7 OF THE ACT OF JUNE 15, 1933, SUPRA. NO EVIDENCE HAS BEEN FURNISHED TO SHOW WHEN, IF EVER, YOU ENLISTED IN THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934. IN VIEW OF THE STATEMENT FROM THE MONTANA NATIONAL GUARD TO THE EFFECT THAT THERE IS NO RECORD THAT YOU BECAME A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD IN QUESTION, THERE IS DOUBT THAT YOUR DISCHARGE CERTIFICATE, ISSUED APPROXIMATELY ONE YEAR AFTER THE ESTABLISHMENT OF THE NATIONAL GUARD OF THE UNITED STATES, ON A FORM PRESCRIBED FOR DISCHARGE FROM THAT ORGANIZATION AND FROM THE NATIONAL GUARD OF THE PARTICULAR STATE CONCERNED, DISCLOSES YOUR ACTUAL STATUS ON THE DATE SUCH DISCHARGE WAS ISSUED. MOREOVER, EVEN IF THE SAID CERTIFICATE COULD BE ACCEPTED AS SHOWING THAT YOU WERE A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES ON JUNE 8, 1934, IT WOULD NOT ESTABLISH WHEN YOU BECAME A MEMBER OF THAT ORGANIZATION. THE STATEMENT IN THE OFFICIAL ARMY REGISTER - FIRST APPEARING SUBSEQUENT TO THE PRESENTATION OF YOUR CLAIM - THAT YOU WERE IN AN ENLISTED STATUS (FOR LONGEVITY PURPOSES) DURING THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934, PRESUMABLY WAS BASED UPON INFORMATION FURNISHED BY YOU WHEN YOU BECAME OF THE OPINION THAT YOUR PREVIOUS COMPUTATION OF LONGEVITY CREDIT WAS ERRONEOUS AND IN VIEW OF THE OTHER FACTS APPEARING IN YOUR CASE MAY NOT BE ACCEPTED AS ESTABLISHING THE STATUS ALLEGED. COMPARE B 26013, JULY 1, 1942.

AFTER FULL CONSIDERATION OF ALL PHASES OF THE MATTER IT MUST BE CONCLUDED THAT YOU HAVE NOT ESTABLISHED THAT YOU WERE A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934. ACCORDINGLY, THE SETTLEMENT OF JANUARY 30, 1950, PROPERLY DISALLOWED YOUR CLAIM FOR INCREASED LONGEVITY PAY FOR THE PERIOD NOVEMBER 10, 1944, TO JANUARY 12, 1945, THE RIGHT THERETO BEING CONTINGENT UPON YOUR MEMBERSHIP IN THE ABOVE ORGANIZATION DURING THE INDICATED PERIOD.

PRESUMABLY, YOU HAVE BEEN PAID TO DATE ON THE BASIS THAT YOU ARE ENTITLED TO LONGEVITY CREDIT FOR THE PERIOD JUNE 15, 1933, TO JUNE 8, 1934. VIEW OF THE CIRCUMSTANCES UNDER WHICH SUCH PAYMENTS WERE MADE THEY WILL NOT BE QUESTIONED BY THIS OFFICE. HOWEVER, IN THE ABSENCE OF A DEFINITE SHOWING THAT YOU WERE A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE SAID PERIOD, THAT PERIOD MAY NOT BE INCLUDED AS A PERIOD OF SERVICE IN THE COMPUTATION OF YOUR PAY FOR ANY PERIOD SUBSEQUENT TO THE DATE OF THIS DECISION.