B-171800, MAR 22, 1971

B-171800, MAR 22, 1971

CONTRACT CANCELLATION PAY - SERVICE AGREEMENT DECISION DENYING CLAIM FOR CONTRACT CANCELLATION PAY INCIDENT TO CLAIMANT'S RELEASE FROM ACTIVE DUTY AS A NAVAL RESERVE OFFICER. WHILE SECTION 680(B), TITLE 10 U.S.C. PROVIDES THAT A MEMBER OF A RESERVE COMPONENT WHO IS RELEASED FROM ACTIVE DUTY WITHOUT HIS CONSENT BEFORE THE END OF HIS ACTIVE DUTY AGREEMENT MADE UNDER 10 U.S.C. 679(A) IS ENTITLED TO CONTRACT CANCELLATION PAY, CLAIMANT'S AGREEMENT TO EXTEND HIS ACTIVE DUTY TOUR TO EFFECT A PERMANENT CHANGE OF STATION AND TO PROVIDE THE NECESSARY OBLIGATED SERVICE DOES NOT FALL WITHIN SECTION 679. NO OTHER WRITTEN AGREEMENT HAVING BEEN ENTERED INTO, CLAIMANT DOES NOT QUALIFY FOR PAY UNDER SECTION 680(B) AND THE CLAIM IS PROPERLY DISALLOWED.

TO LIEUTENANT PAUL H. RAFALOWSKI:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 26, 1970, REQUESTING REVIEW OF YOUR CLAIM FOR CONTRACT CANCELLATION PAY INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS A NAVAL RESERVE OFFICER ON JANUARY 24, 1970. THAT CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED SEPTEMBER 25, 1970.

INFORMATION RECEIVED FROM THE DEPARTMENT OF THE NAVY AFTER THE ISSUANCE OF THE SETTLEMENT OF SEPTEMBER 25, 1970, INDICATES, AS YOU STATE IN YOUR LETTER, THAT YOU RECEIVED READJUSTMENT PAY AND NOT SEVERANCE PAY AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY AS SHOWN ON YOUR FINAL PAY RECORD.

SECTION 680(B) OF TITLE 10, U.S. CODE, PROVIDES THAT A MEMBER OF A RESERVE COMPONENT WHO IS RELEASED FROM ACTIVE DUTY WITHOUT HIS CONSENT BEFORE THE END OF HIS ACTIVE DUTY AGREEMENT MADE UNDER SECTION 679(A) OF TITLE 10, U.S. CODE, IS ENTITLED TO A PAYMENT COMPUTED IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN SECTION 680(B) (CONTRACT CANCELLATION PAY).

REGARDING ACTIVE DUTY AGREEMENTS, SUBSECTIONS 679(A) AND (C) OF TITLE 10, U.S.C. PROVIDE:

"(A) TO PROVIDE DEFINITE TERMS OF ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR RESERVES WITH THEIR CONSENT, THE SECRETARY CONCERNED MAY MAKE A STANDARD WRITTEN AGREEMENT WITH ANY MEMBER OF A RESERVE COMPONENT UNDER HIS JURISDICTION REQUIRING THE MEMBER TO SERVE FOR A PERIOD OF ACTIVE DUTY (OTHER THAN FOR TRAINING) OF NOT MORE THAN FIVE YEARS. WHEN SUCH AN AGREEMENT EXPIRES, A NEW ONE MAY BE MADE. THIS SUBSECTION DOES NOT APPLY IN TIME OF WAR DECLARED BY CONGRESS.

"(C) AGREEMENTS MADE UNDER SUBSECTION (A) SHALL BE UNIFORM SO FAR AS PRACTICABLE, AND ARE SUBJECT TO SUCH STANDARDS AND POLICIES AS MAY BE PRESCRIBED BY THE SECRETARY OF DEFENSE FOR THE ARMED FORCES UNDER HIS JURISDICTION OR BY THE SECRETARY OF THE TREASURY FOR THE COAST GUARD WHEN THE COAST GUARD IS NOT OPERATING AS A SERVICE IN THE NAVY." SECTION 680(A) OF TITLE 10 PROVIDES FOR CERTAIN OTHER PROVISIONS WHICH MUST BE INCLUDED IN AN ACTIVE DUTY AGREEMENT MADE UNDER SECTION 679(A). THIS IS THE ACTIVE DUTY AGREEMENT DISCUSSED IN ARTICLE 103011, BUREAU OF NAVAL PERSONNEL MANUAL, TO WHICH YOU REFERRED IN YOUR LETTER OF OCTOBER 26, 1970.

IT IS APPARENT THAT THE STATUTORY PROVISIONS QUOTED ABOVE REQUIRE A UNIFORM, STANDARD, WRITTEN AGREEMENT CONTAINING CERTAIN SPECIFIED PROVISIONS. TO BE ELIGIBLE FOR CONTRACT CANCELLATION PAY, THE RESERVE MEMBER MUST HAVE BEEN SERVING ON ACTIVE DUTY PURSUANT TO A STANDARD WRITTEN AGREEMENT MADE UNDER SECTION 679(A). NO SUCH WRITTEN AGREEMENT SIGNED BY YOU HAS BEEN FURNISHED IN SUPPORT OF YOUR CLAIM AND THE CHIEF OF NAVAL PERSONNEL INDICATED IN A REPORT DATED JANUARY 14, 1971, THAT NO AGREEMENT WAS ISSUED IN YOUR CASE UNDER AUTHORITY OF SECTION 679. PROCEED AND REPORT FOR DUTY AT A NEW PERMANENT STATION IN NEW YORK, NEW YORK. PARAGRAPH 2D OF THOSE ORDERS STATED THAT THEY -

"ARE CONTINGENT UPON AGREEMENT TO EXTEND ACTIVE DUTY UNTIL 30 JUNE 1970. SUBMIT AGREEMENT TO CHIEF OF NAVAL PERSONNEL PRIOR TO DETACHMENT. AGREEMENT NOT RECEIVED COMPLIANCE WITH THESE ORDERS CONSTRUED AS AN AGREEMENT TO REMAIN ON ACTIVE DUTY UNTIL ABOVE DATE. IF EXTENSION NOT DESIRED, INFORM CHIEF OF NAVAL PERSONNEL BY MESSAGE."

SINCE NO OTHER AGREEMENT RELATING TO AN EXTENSION OF YOUR ACTIVE DUTY HAS BEEN SUBMITTED TO THIS OFFICE, IT IS ASSUMED THAT BOTH YOU AND THE CHIEF OF NAVAL PERSONNEL VIEWED YOUR COMPLIANCE WITH SUCH ORDERS AS CONSTITUTING AN AGREEMENT TO EXTEND YOUR ACTIVE DUTY TO JUNE 30, 1970. IN HIS REPORT DATED JANUARY 14, 1971, THAT OFFICIAL STATED THAT YOU AGREED TO EXTEND YOUR ACTIVE DUTY UNTIL JUNE 30, 1970, IN ORDER TO EFFECT YOUR PERMANENT CHANGE OF STATION MOVEMENT AND TO PROVIDE THE NECESSARY OBLIGATED SERVICE FOR A NORMAL TOUR OF DUTY. WE DO NOT VIEW THE MERE COMPLIANCE WITH AN ORDER FOR SUCH A PURPOSE AS MEETING THE REQUIREMENTS OF SECTION 679.

IT APPEARING THAT YOU TOOK NO ACTION WHICH QUALIFIED YOU FOR THE PAY AUTHORIZED UNDER SECTION 680(B), THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.