
    468 F. 2d 933.
    MORRIS E. MANSELL III v. THE UNITED STATES
    [No. 50-71.
    Decided November 10, 1972]
    
      
      Morris E. Mansell III, plaintiff, fro se.
    
    Arthw* E. Fay, with whom was Assistant Attorney General Harlington Wood, Jr., for defendant.
    Before Coaven, Chief Judge, Dates, Skelton, Nichols, Kashiwa, Ktjnzig, and Bennett, Judges.
    
   Per Curiam:

This case was referred to Trial Commissioner Mastín G. White with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on January 18, 1972. Exceptions to the commissioner’s opinion and report were filed by defendant and the case has been submitted to the court on the briefs of the parties and oral argument of plaintiff, fro se, and counsel for defendant. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Rule 131(c).

OPINION OF COMMISSIONER

White, Commissioner:

The plaintiff, a member of the United States Naval Reserve who was released from active duty by the Na~vy on December 2, 1969, sues in the present case for a readjustment payment under the provisions of 10 U.S.C. § 687 (a).

It is my opinion that the plaintiff is entitled to recover. The plaintiff served continuously on active duty with the Navy from August 31, 1962, until December 2, 1969. His initial service was as an enlisted man in the Regular Navy, from August 31, 1962, until February 1, 1967. While serving as an enlisted man, the plaintiff was selected for flight training as a pilot; and, in connection with such selection, the plaintiff executed an active-duty agreement in Which he agreed that, as consideration for the aviation training, he would obligate himself to serve on active duty with the Navy for 3yz years after the completion of flight training.

After successfully completing his flight training, the plaintiff was commissioned as an ensign in the United States Naval Reserve on February 2, 1967, and began a 814-year tour of active duty with the Navy under the agreement mentioned in the preceding paragraph of this opinion.

While serving on active duty overseas as a pilot with Fighter Squadron Fifty-Three, the plaintiff received orders dated August 11,1969, from the Bureau of Naval Personnel Stating that, as of November 1969, he was detached from Fighter Squadron Fifty-Three and directed to proceed and report .to the Commanding Officer of Training Squadron Seven at the Naval Air Station in Meridian, Mississippi, for further service. These orders were conditional, however, in that the plaintiff could accept them if — and only if — he would agree to extend his tour of active duty (which was then scheduled to expire on August 2,1970) to July 31, 1971. For reasons that are explained in finding 3, the plaintiff did not regard the prospective assignment to Training Squadron Seven at the Naval Air Station in Meridian, Mississippi, as sufficiently attractive to justify an agreement on his part to extend his tour of active duty from August 2, 1970, to July 31, 1971. Accordingly, the plaintiff informed the Bureau of Naval Personnel that he did not wish to accept the orders of August 11, 1969.

In taking the action mentioned in the last sentence of the preceding paragraph, the plaintiff did not intend or desire to shorten in any way his then-current 3%-year tour of active duty. On the contrary, the plaintiff positively desired — and assumed that he would be permitted — to remain on active duty until the end of the 3%-year period on August 2,1070. Indeed, the plaintiff hoped that arrangements could be made Whereby 'he would remain on active duty beyond August 2, 1970, but in an assignment different from the one involved in the orders of August 11, 1969; and he intended to work toward the making of such arrangements upon returning to the continental United States from his overseas assignment.

The plaintiff returned to the continental United States near the end of October 1969 from his overseas assignment. After his return, the plaintiff received from the Bureau of Naval Personnel orders dated October 16, 1969, which can-celled his orders of August 11, 1969, and directed that he be separated from active duty by the end of November 1969.

As the plaintiff did not wish to be separated from active duty prior to August 2, 1970, which would be the end of the 314-year period covered by his active-duty agreement, the plaintiff informed the Bureau of Naval Personnel by means of a message dated November 5,1969, that he desired to remain on active duty until the expiration of the 314-year period of his obligated service. No condition as to assignment or otherwise was imposed by the plaintiff in connection with his request that he be permitted to remain on active duty until the end of his 3%-year tour, although he did indicate a preference as to assignment.

In a communication dated November 7, 1969, the Bureau of Naval Personnel advised the plaintiff that if he desired to remain on active duty after November 30, 1969, he must execute the 1-year extension of his active-duty agreement, as provided in the orders of August 11, 1969.

The plaintiff was still unwilling to have his 314-year tour of active duty extended for an additional year in accordance with the orders of August 11, 1969, since that would have involved an assignment to Training Squadron Seven at the Naval Air Station in Meridian, Mississippi, and the plaintiff did not desire to perform duty with that organization at that location for an extended period of active duty.

Subsequently, in accordance with a first endorsement dated November 28, 1969, to the plaintiff’s orders of October 16, 1969, he was released from active duty effective December 2, 1969.

The statutory provision on which the plaintiff relies in the present case is 10 U.S.C. § 687(a), which states in pertinent part as follows:

* * * a member of a reserve component * * * who is released from active duty involuntarily, or because he was not accepted for an additional tour of active duty for which he volunteered after he had completed a tour of active duty, and who has completed, immediately before his release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service * * * by two months’ basic pay of the grade in which he is serving at the time of his release. * * *

It is my opinion that the plaintiff clearly qualifies for a readjustment payment under the plain, unambiguous statutory language quoted in the preceding paragraph.

In the first place, the plaintiff was “a member of a reserve component,” since he was performing active duty as an officer of the United States Naval Reserve immediately prior to and at the time of his release from active duty.

In the second place, the plaintiff had “completed, immediately before his release, at least five years of continuous active duty.” His continuous active duty with the Navy immediately before his release on December 2, 1969, totaled more than 7 years and 3 months. It is true that the greater part of this total period of active duty was performed by the plaintiff as a member of the Regular Navy, and that only the last portion, extending from February 2, 1967, to December 2, 1969, was performed by the plaintiff as a member of the United States Naval Reserve. However, 10 U.S.C. § 687(a), in requiring “at least five years of continuous active duty,” does not differentiate between active duty performed as a member of a reserve component and active duty performed in some other capacity.

In the third place, the plaintiff was “released from active duty involuntarily.” His release from active duty on December 2, 1969, was contrary to his own choice, preference, and desire. The plaintiff positively desired — and the Navy knew that the plaintiff positively desired — to complete the full 3%-year period of active duty provided for in his active-duty agreement with the Navy. Furthermore, the plaintiff’s desire in this respect was not conditioned in any way. The imposition of a condition by the plaintiff, i.e., an assignment different from the one involved in the orders of August 11, 1969, was not in connection with the completion of his 3y2- year period of active duty, but was in connection with the proposed 1-year extension of such period. If the plaintiff had been permitted to remain on active duty until the end of the 314,-year period in accordance with his unconditional wish, and he had then conditioned an extension of such period upon some factor which the Navy was unwilling to accept, the plaintiff’s release from active duty under such circumstances at the end of the 3%-year period on August 2, 1970, would have been voluntary and would not have qualified him for a readjustment payment under the provisions of 10 U.S.C. § 687(a). Henneberger v. United States, 185 Ct. Cl. 614, 624, 403 F. 2d 237, 242 (1968). However, we are not dealing with that sort of situation in the present case.

Despite the plaintiff’s positive and unconditional desire— of which the Navy was aware — to complete the 314-year period of active duty under his active-duty agreement, the Navy released the plaintiff from active duty 8 months prior to the date on which the 3%-year period was scheduled to expire. Under these circumstances, a determination that the plaintiff’s early release from active duty on December 2, 1969, was voluntary from his standpoint, rather than involuntary, would do violence to the plain meaning of these terms in the English language.

For the reasons previously set out in this opinion, the plaintiff is entitled to recover. The amount of the recovery can be determined in subsequent proceedings under Rule 131(c).

FINDINGS or Fact

1. The plaintiff is a citizen of the United States and a resident of Dallas, Texas.

2. (a) The plaintiff served as an enlisted man in the United States Navy from August 31, 1962, to February 1, 1967.

(b) While he was serving as an enlisted man in the Regular Navy, the plaintiff was selected for flight training as a pilot through the Naval Aviation Cadet program. In connection with his acceptance for flight training as a pilot, the plaintiff executed an active-duty agreement pursuant to which he agreed that, as consideration for the aviation training, he would obligate himself to serve on active duty with the Navy for 3 14 years after the completion of flight training, unless sooner released by the Department of the Navy.

(c) After successfully completing the Naval Aviation Cadet program, the plaintiff on February 2,1967, was commissioned as an ensign in the United States Naval Keserve and began a 314-year tour of active duty with the Navy as a Keserve officer under the active-duty agreement mentioned in paragraph (b) of this finding.

3. (a) While serving on active duty overseas with Fighter Squadron Fifty-Three of the Navy, the plaintiff received orders dated August 11, 1969, from the Bureau of Naval Personnel stating that, when directed in November 1969, he was detached from duty with Fighter Squadron Fifty-Three and directed to proceed and report to the Commanding Officer of Training Squadron Seven at the Naval Air Station in Meridian, Mississippi, for further service. Acceptance of these orders required the plaintiff to agree to an extension of the 314-year period of his obligated active-duty service (then scheduled to expire on August 2,1970) to July 31,1971.

(b) At the time when the plaintiff received the orders of August 11,1969, he was aware that the Navy was reducing its officer strength; and he realized that, in the future, he would be competing with highly qualified officers who had received college degrees. The plaintiff did not have any college education; and it was his intention, after returning to the United 'States from the tour of overseas duty, to attempt to obtain, through his “detailer” in the Bureau of Naval Personnel, orders which would allow him to pursue his education and obtain a college degree, so that he could compete successfully as a career officer with other officers who were his contemporaries and peers. At the time, the Navy had a program known as “Bootstrap,” which allowed an officer, While serving with one of the training squadrons, to fly half a day and to attend college the other half-day. The plaintiff desired to receive orders which would permit him to take part in this program and to pursue his education, thus enhancing his chances for a successful career in the Navy through the possession of a college education.

(c) The plaintiff believed that duty with Training Squadron Seven for an extended period of active duty, pursuant to the orders of August 11,1969, would not permit him to pursue a college education in accordance with the plan which he had in mind. Training Squadron Seven was assigned to the Naval Air Station at Meridian, Mississippi; and the plaintiff believed that Meridian would not afford him an opportunity to undertake a college education while still on active duty. Also, he 'knew that the instructors at the Naval Air Station in Meridian worked long hours and had very little time to pursue any sort of outside educational activities.

(d) Because of his belief that duty with Training Squadron Seven at Meridian, Mississippi, for an extended period of active duty did not fit in with his plan to begin his college education upon returning to the continental United States, the plaintiff decided he would not agree to extend his obligated tour of active duty in order to accept the orders of August 11, 1969. He believed that, after returning to the continental United States following the conclusion of his overseas duty, he would have ample time before August 2, 1970, to obtain, through his “detailer” in the Bureau of Naval Personnel, other orders which would permit him to begin his college education during an extended tour of active duty.

(e) Exercising his prerogative to decline orders which involved a voluntary extension of his active-duty obligation, the plaintiff advised the Bureau of Naval Personnel that he did not desire to accept the orders of August 11,1969.

(f) In taking the action referred to in paragraph (e) of this finding, the plaintiff did not intend or desire to shorten in any way his then-current 3^-year active-duty tour as a Reserve officer. On the contrary, the plaintiff positively desired, and assumed that he would be permitted, to remain on active duty until the end of the 314-year tour on August 2, 1970. Furthermore, the plaintiff desired to continue his active-duty status beyond that date if he could obtain an assignment which would permit him to pursue a college education while remaining on active duty.

4. (a) Tbe plaintiff returned to tbe continental United States near the end of October 1969 from his tour of overseas duty. After bis return, tbe plaintiff received from tbe Bureau of Naval Personnel orders dated October 16,1969, which can-celled bis orders of August 11,1969, and directed that be be separated from active duty prior to November 30,1969.

(b) The plaintiff did not wish to be separated from active duty with the Navy prior to tbe end of his obligated 3^-year period of service on August 2,1970. Consequently, tbe plaintiff advised tbe Bureau of Naval Personnel, by means of a message dated November 5, 1969, that be desired to remain on active duty until the expiration of his period of obligated service; and that, in the event he was to be released at an earlier date, he requested readjustment pay under the provisions of article 2650280 of the Bureau of Naval Personnel Manual. No condition was imposed by the plaintiff as to assignment or otherwise in connection with his request that he be permitted to remain on active duty until the end of the 3^-year tour, although the plaintiff did indicate a preference as to assignment.

(c) By means of a message dated November 7, 1969, the Bureau of Naval Personnel informed the plaintiff that he could not remain on active duty unless he requested an extension or augmentation of his active-duty obligation; that if he desired to remain on active duty after November 30, 1969, he must execute the one-year extension of the active-duty agreement, as provided in the orders of August 11, 1969; and that in the absence of such action on his part, he would be separated from active duty. In addition, the plaintiff was informed by the Bureau of Naval Personnel that he did not qualify for readjustment pay in the absence of a request for a further active-duty tour in accordance with paragraph 5 of SECNAV Instruction 1900.7B.

5. By means of a first endorsement dated November 28, 1969, to the orders of October 16, 1969, the plaintiff was released from active duty effective December 2,1969.

6. (a) After being released from active duty by the Navy on December 2, 1969, the plaintiff filed an “Application for Arrears in Pay” (DD Form 821) with the General Accounting Office, asserting a claim for readjustment pay.

(b) By means of a settlement certificate dated July 10, 1970, relative to Claim No. Z-2405190, the Claims Division of the General Accounting Office disallowed the plaintiff’s claim for readjustment pay. The basic reason for the dis-allowance was stated in the following paragraph of the settlement certificate:

_ The legislative history of the above statutory provisions [10 U.S.C. § 687(a)] shows that while Beserve members who were serving on extended or additional tours of duty were to receive readjustment pay in the event of their involuntary release from active duty, such members who were serving in a period of legally obligated service were not to be considered eligible.

(o) In a letter dated September 4, 1970, and addressed to the Office of General Counsel, GAO, the plaintiff, in effect, requested reconsideration of his claim for readjustment pay.

(d) In a communication dated October 29, 1970 (B-169541), the Acting Comptroller General informed the plaintiff that the disallowance of his claim was sustained. The Acting Comptroller General stated in part as follows:

It seems clear that you did not unconditionally volunteer for the additional active duty service offered to you by the Navy, and that you in fact declined to accept such additional duty. Since you were offered an opportunity to remain on active duty by the Navy and you did not unconditionally accept a one-year extension of your active duty obligation offered you by the Navy, it is our opinion that you were not “involuntarily released from. active duty” within the meaning of that term as used in section 687 (a), so as to entitle you to a readjustment payment.

(e) In a letter dated November 8, 1970, and addressed to the Acting Comptroller General, the plaintiff again requested that his claim for readjustment pay be given further consideration.

(f) By means of a letter dated December 22, 1970 (B-169541), the Assistant Comptroller General again sustained the denial of the plaintiff’s claim.

7. The plaintiff’s petition was filed with this court on February 18,1971.

8. Article 2650280 of the Bureau of Naval Personnel Manual (see finding 4(b)) provides in part as follows:

1. A member of the Naval Eeserve who is involuntarily released from active duty after having completed, immediately prior to such release, at least five years of continuous active duty in the Eegular Navy or Naval Eeserve, except for breaks in service of not more than 30 days, is entitled to a lump-sum readjustment payment.

9. Paragraph 5 of SECNAV Instruction 1900.7B (see finding 4(c)) provides in part as follows:

5. Determinations Concerning Involuntary Release from Active Duty. The term “involuntarily released from active duty” as used in reference (a), includes discharge and all other forms of separation from active-duty status under conditions wherein the individual, upon or immediately prior to completing a tour of active duty, volunteers to remain on active duty for an additional tour but is not accepted. An individual volunteering for an additional period of active service contingent upon assignment to certain type of duty or location, or being tendered a specific type of contract, is not considered to have volunteered for an additional tour for the purposes of entitlement to readjustment pay. * * *

10. (a) The plaintiff, a member of a reserve component, was released from active duty involuntarily.

(b) Immediately before his release from active duty, the plaintiff had completed at least 5 years of continuous active duty.

CONCLUSION OE LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and judgment is entered to that effect. The amount of the recovery will be determined in subsequent proceedings under Eule 131 (c).  