formerly a seaman, United States Naval Reserve, who was discharged on January 23, 1959, at Norfolk, Virginia.

In your letter of August 9, 1961, you made claim for the active duty pay and allowances "which would have been received by the claimant had he been permitted by the Navy to serve the normal term of obligated service in the United States Reserve" and you there indicated you believed favorable consideration of such claim was warranted on the basis of the holding of the Court of Claims in the case of Clackum v. United States, Ct. Cl. No. 246-56, decided January 20, 1960. We advised you in letter of August 24, 1962, that judgment had not been entered in the Clackum case and that, since it was not known what method would be used in determining the amount due or the period which would be covered by the judgment, such case furnished no basis for the settlement of Mr. Nelson's claim at that time. You say in your letter of May 22, 1963, that in view of the fact that the Court of Claims has entered a judgment in the Clackum case you trust we will give further consideration to the settlement of Mr. Nelson's claim on the basis of the decision and judgment of the court in that case.

The records show that George E. Nelson, Jr., enlisted in the United States Naval Reserve on April 18, 1956, for 6 years, and that he reported for extended active duty on August 30, 1957. On January 16, 1959, the Chief of Naval Personnel directed that he be discharged and that his service should be characterized as undesirable by reason of unfitness. On January 23, 1959, he was issued an undesirable discharge. Upon the request of Mr. Nelson, the Navy Discharge Review Board, acting under the provisions of 10 U.S.C. 1553, reviewed the type and nature of his discharge. In accordance with the decision reached by that Board, the official records were changed to show that Mr. Nelson was discharged on January 23, 1959, with an honorable discharge.

The facts in the Clackum case show that the plaintiff in that case was separated from the United States Air Force on January 22, 1952, with a discharge "under conditions other than honorable." After her discharge, she appealed to the Air Force Discharge Review Board and that Board decided that no change should be made in the type of discharge certificate which had been given her. The Court of Claims, in an opinion dated January 20, 1960, held that the hearing before the Air Force Discharge Review Board was a meaningless formality and concluded that the discharge given the plaintiff on January 22, 1952, by the United States Air Force was invalid and did not effect the plaintiff's separation from the Air Force. In the opinion dated March 6, 1963, in that case, the court stated that as the plaintiff, under the terms of her 3-year enlistment contract, would have remained subject to "the military" until March 17, 1953, she was entitled to

recover active duty pay to that date. It then specified that for the period from January 23, 1952, the day following her "illegal" discharge, to March 17, 1953, she was entitled to recover "her pay, allowance for clothing, quarters, rations, mustering-out pay, travel, and amounts attributable to leave," the total of which, according to stipulation, amounted to $3,198.15. Citing the case of Egan v. United States, 141 Ct. Cl. 1, the court specified further, however, that there was to be set off against such amount the amount of $1,373.67, the stipulated gross income plaintiff received from her civilian employment during the period involved.

The establishment and administration of standards governing discharges from the Armed Forces have been considered peculiarly military. Respecting this, the courts heretofore have been scrupulously careful not to interfere with, or to intervene in, authorized and legitimate service matters and have held that the discharge of a member of the Armed Forces is a discretionary act which is not subject to review by the courts. Nordmann v. Woodring, 28 F. Supp. 573 (1939); Marshall v. Wyman, 132 F. Supp. 169 (1955); Schustack v. Herren, 234 F. 2d 134 (1956); Bernstein v. Herren, 141 F. Supp. 78, affirmed 234 F. 2d 434, certiorari denied, 352 U.S. 840 (1956); and Reed v. Franke, 187 F. Supp. 905 (1960).

The Clackum case was decided on the basis of the particular facts there presented which resulted in the judicial finding that the discharge issued in that case was invalid and did not terminate her military status. That case fixes no basis for a determination by this Office that a discharge is invalid nor does it permit us, in the absence of a judicial determination that a particular discharge is invalid, to authorize allowance of active duty pay and allowances after the date of discharge. Accordingly, we must advise you that the Clackum case established no precedent which we may follow in the consideration of the present claim.

[B-110493]

Pay — Retired Disability - Re-retirement ment-Disability Determination

A retired Navy enlisted member who claims increased retired pay for a disability retirement and Seliga (137 Ct. Cl. 710) type benefits and submits a medical survey report as evidence under the Wilson case (Ct. Cl. No. 465-59, decided Nov. 7, 1962) in which the court held that a member's request for evaluation of his physical disability under section 411 of the Career Compensation Act of 1949 and the Navy's response that his case did not come under that section constitute an adequate election may not have the uncertainties in that case applied to bring his retired status within the Wilson case when the record does not show a valid section 411 election required of all members retired for physical disability prior to October 1, 1949-the date of the Career Compensation Act-or that the member was misled so as not to elect at all.

To King & King, August 5, 1963:

Reference is made to your letter of April 5, 1963, and enclosure, requesting reconsideration of settlement dated March 21, 1963, in which our Claims Division disallowed the claim received here on January 29, 1963, submitted by you on behalf of John Silas Upton, a retired enlisted member of the Regular Navy, for increased retired pay effective from January 1, 1953, believed due him under the rule of the Seliga decision of March 6, 1957, 137 Ct. Cl. 710.

As plaintiff No. 126 in the case of Prendable, et al. v. United States, Ct. Cl. No. 42-56, Mr. Upton claimed increased retired pay for the period from July 1, 1952, through date of judgment. It was pointed out in the settlement of March 21, 1963, that since Mr. Upton's action on Court of Claims petition No. 42-56 was dismissed on the merits by the Court on July 12, 1957, 139 Ct. Cl. 748, the bar of res judicata precluded any action by this Office on that part of his present claim covering the period preceding July 13, 1957. Your request for review of the settlement of March 21, 1963, being silent in that respect does not raise any issue as to the period barred under the rule of res judicata.

The Department of the Navy has reported that Mr. Upton was transferred to the Fleet Naval Reserve in June 1928 and that he thereafter served on active duty from October 17, 1940, to December 31, 1941. On January 1, 1942, he reverted to an inactive duty status and was placed on that same date on the retired list of the Regular Navy as with over 30 years' creditable service. He again served on active duty from January 2, 1942, to December 15, 1945, inclusive.

The claim now presented for increased retired pay, computed under the provisions of Title IV of the Career Compensation Act of 1949, 37 U.S.C. 271 (1952 Ed.), together with the benefits of the Seliga rule, was disallowed in the settlement of March 21, 1963, for the reason that as shown by the record here Mr. Upton was not retired for physical disability and consequently his retired status did not come within the scope of section 411 of the 1949 law, Ch. 681, 63 Stat. 823, 37 U.S.C. 281 (1952 Ed.). You state that the enclosure (copy of "NMS-Form M Report of Medical Survey," dated November 8, 1945), forwarded here with your letter of April 5, 1963, overcomes the conclusion reached in the disallowance of March 21, 1963, by establishing that Mr. Upton was "re-retired" on December 16, 1945, for a physical disability under circumstances which bring him within the scope of section 411 and the rule of the Wilson case, Ct. Cl. No. 465-59, decided November 7, 1962.

In the Wilson decision of November 7, 1962, the court held that Wilson's request for an evaluation of his physical disability under

section 411 and the Navy's response that his case did not come under that section "constituted an adequate election." The uncertainties. inherent in that holding preclude its broad acceptance by this Office as a precedent for payment, solely on that basis, of Seliga-type benefits in other similar cases and the question whether an individual exercised a proper and valid section 411 election, or was misled so as not to elect at all, is for determination from all the facts and circumstances presented in each individual case submitted for action.

here.

The record before us with respect to Mr. Upton does not disclose any facts which would appear to bring his retired pay status within the purview of the Wilson decision, nor is there any indication in the record that he made, or was deterred from making by reason of being misled, the election which all personnel of the uniformed services who were retired for physical disability prior to October 1, 1949, were required to make within the 5-year period prescribed in section 411. Accordingly, the disallowance of Mr. Upton's claim in the settlement of March 21, 1963, is sustained.

Details

[B-150096]

Military Personnel-Foreign Assistance Programs-Leave Since commissioned officer personnel of the Coast Guard who are assigned or detailed to duty with a foreign government outside the United States under authority of the Foreign Assistance Act of 1961, 22 U.S.C. 2151-2406, continue their status in the active service of the Armed Forces during the overwan assignment and are not regarded as civilian officers or employees within the purview of the Annual and Sick Leave Act of 1951, the members are entitled to the leave benefits authorized incident to their membership in the Armed Forces under 10 U.S.C. 701(a).

To the Secretary of the Treasury, August 5, 1963:

The Assistant Secretary of the Treasury has submitted for an advance decision by letter of May 27, 1963, the question whether commissioned officer personnel of the United States Coast Guard who have been or may be assigned or detailed under authority of the Foreign Assistance Act of 1961 (Public Law 87-185, September 4, 1961, 75 Stat. 424-463, 22 U.S.C. 2151-246) to assist the Indonesian government in establishing navigational aide and maritime commandcation in that country are entitled to leave as members of the Armed Forces under the provisions of 11 USC70, or employes under the provisions of 3 US.C.202.

as

In decision of December 7. 242, B-2501A, 42 Comp. Gen. 28, we held that the assignment of stained a pavze of the United States Coast Guard for the purpose of performing functiona outside the United States oder withority of win VA (21) of the

Foreign Assistance Act of 1961, 75 Stat. 450, 22 U.S.C. 2385 (d) (1) (Supp. III), appears permissible, since the phrase "officers or employees" as used therein includes "members of the Armed Forces of the United States Government"-section 644(j), 75 Stat. 462, 22 U.S.C. 2403 (j)-and the term "Armed Forces" of the United States means the Army, Navy, Air Force, Marine Corps, and Coast Guardsection 644 (b), 75 Stat. 461, 22 U.S.C. 2403 (b).

Section 625 (d) (1) of the Foreign Assistance Act of 1961 provides as follows:

(d) For the purpose of performing functions under this Act outside the United States the President may

(1) employ or assign persons, or authorize the employment or assignment of officers or employees by agencies of the United States Government, who shall receive compensation at any of the rates provided for the Foreign Service Reserve and Staff by the Foreign Service Act of 1946, as amended (22 U.S.C. 801 et. seq.), together with allowances and benefits thereunder; and persons so employed or assigned shall be entitled, except to the extent that the President may specify otherwise in cases in which the period of employment or assignment exceeds thirty months, to the same benefits as are provided by section 528 of that Act for persons appointed to the Foreign Service Reserve, and the provisions of section 1005 of that Act shall apply in the case of such persons, except that policymaking officials shall not be subject to that part of section 1005 of that Act which prohibits political tests; ***

Military personnel of the Armed Forces of the United States Government who are assigned to duty outside the United States under authority of the above-quoted statutory provisions are entitled to receive compensation at any of the rates provided for the Foreign Service Reserve and Staff by the Foreign Service Act of 1946, as amended, "together with allowances and benefits thereunder." In view of the provisions of 5 U.S.C. 70 (barring extra allowances) the compensation, allowances and benefits authorized to be paid to such military personnel by section 625 (d) (1) of the 1961 act may not be considered as authorized in addition to their military pay and allowances.

Hence we concluded in the decision of December 7, 1962, that the only items of compensation, allowances and benefits which accrue to members of the Armed Forces of the United States Government assigned to duty outside the United States under authority of section 625 (d) (1)

are the compensation, allowances and benefits prescribed for Foreign Service Reserve and Staff personnel in the Foreign Service Act of 1946, as amended, and that the right to receive military pay and allowances (travel, transportation, subsistence, quarters, etc., and other privileges and benefits incident to such military status), are suspended for the period of such detail or assignment. *

It was also stated in the decision of December 7, 1962, that

Although the member does not receive "basic pay" as such term is used in title IV of the Career Compensation Act of 1949 *** while assigned to duty outside the United States under section 625 (d)(1) of the 1961 act, he does remain in the active service and except for the specific provisions of section 625 (d) (1) would otherwise be entitled to the compensation prescribed therefor. * *