B-129232, OCT. 12, 1956

B-129232, OCT. 12, 1956

TO MR. VINCENT T. BARRY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 1, 1956, WITH ENCLOSURES, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JULY 27, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL LONGEVITY PAY AND CUMULATIVE SERVICE PAY FOR THE PERIOD JUNE 1, 1942, TO JUNE 30, 1952, INCIDENT TO YOUR ALLEGED SERVICE IN THE NEW YORK NATIONAL GUARD FROM JUNE 15, 1933, TO JANUARY 12, 1936.

THE RECORD CONTAINS A CERTIFICATE OF YOUR NATIONAL GUARD SERVICE FURNISHED BY THE ADJUTANT GENERAL OF THE STATE OF NEW YORK DATED MAY 7, 1956, CERTIFYING THAT ON JANUARY 13, 1933, YOU ENLISTED IN BATTERY A, 104TH FIELD ARTILLERY, NEW YORK NATIONAL GUARD; THAT ON JUNE 5, 1933, YOU WERE TRANSFERRED TO THE NATIONAL GUARD RESERVE; AND THAT ON JANUARY 12, 1936, YOU WERE HONORABLY DISCHARGED AS A PRIVATE BY REASON OF EXPIRATION OF THE TERM OF YOUR SERVICE.

SINCE YOU TRANSFERRED TO THE NATIONAL GUARD RESERVE ON JUNE 5, 1933, AND SINCE THAT ORGANIZATION WAS DISCONTINUED BY THE ACT OF JUNE 15, 1933, 48 STAT. 153, THE ADJUTANT GENERAL OF THE STATE OF NEW YORK, IN RESPONSE TO A REQUEST FROM OUR CLAIMS DIVISION, REPORTED THAT "RECORDS OF THIS OFFICE INDICATE THAT INDIVIDUALS WHO WERE TRANSFERRED TO THE NATIONAL GUARD RESERVE PRIOR TO 14 JUNE 1933 AND WHO WERE NOT TRANSFERRED BACK TO AN ACTIVE STATUS, DID NOT SUBSCRIBE TO THE DUAL OATH.' ON THE BASIS OF THAT REPORT AND SINCE YOU DID NOT SUBSCRIBE TO THE DUAL OATH AS REQUIRED BY THE ACT OF JUNE 15, 1933, YOUR CLAIM WAS DISALLOWED.

IN SUPPORT OF YOUR CLAIM YOU REFER TO AN AFFIDAVIT OF A BRIGADIER GENERAL CHARLES F. STANTON, RETIRED, FORMERLY COMMANDING OFFICER OF THE ORGANIZATION TO WHICH YOU WERE ATTACHED ON JANUARY 13, 1933. THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, HAS NOW FURNISHED US WITH A COPY OF THAT AFFIDAVIT WHICH READS AS FOLLOWS:

"MAY 3, 1955.

TO WHOM IT MAY CONCERN:

BARRY, VINCENT T., ENLISTED IN BATTERY A, 104TH F.A., N.G.N.Y. ON 13 JANUARY 1933: AT WHICH TIME HE TOOK DUAL OATH THE GOVERNOR OF STATE OF NEW YORK AND THE PRESIDENT OF THE UNITED STATES. UPON BEING TRANSFERRED TO THE N.G. RESERVE THIS OATH WAS NOT CHANGED.

CHARLES F. STANTON

BRIGADIER GENERAL, RETIRED

FORMERLY CAPTAIN

BATTERY A. 104 F.A.'

IN RESPONSE TO A REQUEST FROM THE CHIEF OF NAVAL PERSONNEL CONCERNING THE AFFIDAVIT OF GENERAL STANTON, THE ADJUTANT GENERAL OF THE STATE OF NEW YORK BY FIRST INDORSEMENT DATED MAY 18, 1955, REPORTED THAT "ALTHOUGH RECORDS OF THIS OFFICE DO NOT VERIFY THE SIGNING OF THE DUAL OATH, IT IS THE OPINION OF THIS OFFICE THAT INCLOSED AFFIDAVIT IS SUFFICIENT PROOF THAT THE DUAL OATH WAS SIGNED BY VINCENT T. BARRY.'

SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942 AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AND AMENDED BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, PROVIDED THAT, EFFECTIVE JUNE 1, 1942, ENLISTED MEN WOULD BE ENTITLED TO LONGEVITY CREDIT FOR ENLISTED SERVICE IN THE NATIONAL GUARD, THE NATIONAL GUARD RESERVE, AND THE NATIONAL GUARD OF THE UNITED STATES. SIMILAR AUTHORITY IS PRESENTLY CONTAINED IN SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233. YOUR CLAIM IS PRESENTED ON THE BASIS OF CREDIT FOR THE COMPLETION OF 9 YEARS OF CUMULATIVE SERVICE ON MAY 26, 1942, 12 YEARS ON MAY 26, 1945, 15 YEARS ON JUNE 3, 1948, 16 YEARS ON JUNE 23, 1949, AND 18 YEARS ON JUNE 23, 1951. THIS SERVICE INCLUDES CREDIT FOR THE PERIOD JANUARY 13, 1933, TO JANUARY 12, 1936, AS A MEMBER OF THE NEW YORK NATIONAL GUARD.

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. SEE SECTION 5 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155. SECTION 7 OF THAT ACT, 48 STAT. 156, PROVIDES, AMONG OTHER THINGS, 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. THE ONLY APPARENT BASIS UPON WHICH YOU MIGHT BE ENTITLED TO LONGEVITY CREDIT FOR THE PERIOD JUNE 15, 1933, TO JANUARY 12, 1936, WOULD BE UPON AN ACCEPTABLE 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 UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF JUNE 15, 1933, THAT SUCH MEN EXECUTE A NEW ENLISTMENT CONTRACT FOR MEMBERSHIP IN THE LATTER ORGANIZATION. WHILE YOU SUBSCRIBED TO THE DUAL OATH WHEN YOU ENLISTED IN THE NEW YORK NATIONAL GUARD ON JANUARY 13, 1933, AND THEREAFTER TRANSFERRED TO THE NATIONAL GUARD RESERVE ON JUNE 5, 1933, THAT ENLISTMENT AND DUAL OATH HAD NO EFFECT AFTER JUNE 14, 1933, WHEN THE NATIONAL GUARD RESERVE WAS DISCONTINUED, UNLESS, OF COURSE, YOU EXECUTED A NEW ENLISTMENT CONTRACT FOR MEMBERSHIP IN THE NATIONAL GUARD OF THE UNITED STATES ON AND AFTER JUNE 15, 1933, AS REQUIRED BY SECTION 7 OF THE 1933 ACT. NOTWITHSTANDING THE OPINION OF THE ADJUTANT GENERAL OF THE STATE OF NEW YORK, YOUR STATUS ON AND AFTER JUNE 15, 1933, WAS MERELY THAT OF A MEMBER OF THE INACTIVE NATIONAL GUARD FOR WHICH SERVICE IN THAT ORGANIZATION, AS POINTED OUT ABOVE, IS NOT CREDITABLE FOR LONGEVITY AND CUMULATIVE SERVICE PAY PURPOSES. NO EVIDENCE HAS BEEN FURNISHED TO SHOW THAT YOU EXECUTED A NEW ENLISTMENT CONTRACT FOR MEMBERSHIP IN THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD JUNE 15, 1933, TO JANUARY 12, 1936. B-104495, NOVEMBER 20, 1951.

IT FOLLOWS THAT YOU WERE NOT A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD JUNE 15, 1933, TO JANUARY 12, 1936, AND HENCE THE SETTLEMENT OF JULY 27, 1956, MUST BE AND IS SUSTAINED.

IN ADDITION, YOUR PAY RECORDS WILL BE FURTHER EXAMINED BY OUR DEFENSE ACCOUNTING AND AUDITING DIVISION TO ASCERTAIN WHETHER YOU WERE CORRECTLY PAID BASIC PAY AFTER JULY 1, 1952, COMPUTED ON THE SERVICE PROPERLY CREDITABLE, SINCE YOU WERE NOT ENTITLED TO CREDIT FOR SERVICE IN THE INACTIVE NATIONAL GUARD DURING THE PERIOD JUNE 15, 1933, TO JANUARY 12, 1936.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER OF SEPTEMBER 1, 1956, ARE RETURNED AS REQUESTED.