B-44054, SEPTEMBER 22, 1944, 24 COMP. GEN. 251

B-44054, SEPTEMBER 22, 1944, 24 COMP. GEN. 251

PAY - SERVICE CREDITS - NAVAL RESERVE - PROHIBITION AGAINST CONCURRENT MEMBERSHIP IN MILITARY ORGANIZATIONS AS AFFECTING COUNTING OF SERVICE UNDER COMMISSION ALTHOUGH HIS COMMISSION IN THE NAVAL RESERVE WAS NOT INVALID BECAUSE THE APPOINTEE WAS DISQUALIFIED, BY REASON OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, FROM ACCEPTING IT WHILE A MEMBER OF A MILITARY ORGANIZATION, AND IT COULD BE ACCEPTED BY CONDUCT UPON SUBSEQUENT REMOVAL OF THE DISQUALIFICATION (23 COMP. GEN. 173), THE MERE RECEIPT BY THE APPOINTEE OF NOTICE OF WHAT HIS ASSIGNMENT WOULD BE "IN THE EVENT OF MOBILIZATION," WHICH NOTICE REQUIRED NO AFFIRMATIVE ACTION ON HIS PART, DOES NOT CONSTITUTE A LEGAL ACCEPTANCE BY CONDUCT TO ENTITLE HIM TO COUNT FOR PAY PURPOSES, AS A NAVAL RESERVE OFFICER NOW ON ACTIVE DUTY, INACTIVE SERVICE IN THE NAVAL RESERVE UNDER THE COMMISSION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 22, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 22, 1944 (REFERENCE JAG:II:WJG:Z OO-MOYLE, EUGENE H. (P20-2 (4) (, TRANSMITTING AN ENDORSEMENT DATED AUGUST 14, 1944, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WITH ENCLOSURES, AND REQUESTING DECISION RESPECTING THE RIGHT OF COMMANDER EUGENE HENRY MOYLE, MC-V (S), USNR, TO COUNT FOR PAY PURPOSES INACTIVE SERVICE IN THE NAVAL RESERVE UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

THE ENDORSEMENT FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IS AS FOLLOWS:

1. THE SUBJECT NAMED OFFICER ACCEPTED COMMISSION AS LIEUTENANT COMMANDER MC-V (S), USNR, ON 13 SEPTEMBER 1934, BUT AT THE TIME HE ACCEPTED THE COMMISSION HE WAS A FIRST LIEUTENANT, MEDICAL CORPS RESERVE, UNDER COMMISSION ACCEPTED 31 OCTOBER 1929. UNDER THE RULING IN REFERENCE (C) THE ACCEPTANCE OF APPOINTMENT IN THE NAVAL RESERVE WAS NOT LEGAL IN VIEW OF THE STATUTORY PROHIBITION CONTAINED IN REFERENCE (A). IN REFERENCE (C) (23 COMP. GEN. 173) THE COMPTROLLER GENERAL STATED IN AN ANALOGOUS CASE THAT THE FACT THAT THE OFFICER WAS PROHIBITED FROM ACCEPTING HIS COMMISSION IN THE NAVAL PRESERVE ON THE DATE OF EXECUTING OATH AND ACCEPTANCE OF OFFICE DID NOT OPERATE TO INVALIDATE THE COMMISSION NOR PREVENT HIS MAKING VALID ACCEPTANCE THEREOF UPON REMOVAL OF DISQUALIFICATION TO ACCEPTANCE. IT WAS FURTHER STATED THAT THE OFFICER DID NOT AUTOMATICALLY BECOME VESTED WITH SUCH COMMISSION UPON TERMINATION OF SERVICE IN ANOTHER MILITARY ORGANIZATION AND THAT IN THE ABSENCE OF A FORMAL ACCEPTANCE FOLLOWING TERMINATION OF SUCH SERVICE SOME AFFIRMATIVE ACT BY THE APPOINTEE INDICATING HIS INTENTION TO ACCEPT THE NAVAL RESERVE COMMISSION WAS NECESSARY.

2. IT WILL BE NOTED FROM ENCLOSURE (A) THAT COMDR. MOYLE WAS INFORMED BY THE COMMANDANT, THIRD NAVAL DISTRICT ON 5 FEBRUARY 1935 OF HIS ASSIGNMENT TO BASE HOSPITAL UNIT NO. 2, NEW YORK CITY, FOR DUTY IN THE EVENT OF MOBILIZATION. COMDR. MOYLE WAS FULLY COGNIZANT OF HIS OBLIGATION AS A MEMBER OF THE NAVAL RESERVE TO SERVE HIS COUNTRY IN TIME OF WAR OR NATIONAL EMERGENCY, AND WHEN ACCEPTANCE OF MOBILIZATION UNIT BILLET ASSIGNED BY THE COMMANDANT, THIRD NAVAL DISTRICT ON 5 FEBRUARY 1935 CONSTITUTED AN ACT BY THE APPOINTEE WHICH INDICATED THAT HE CONSIDERED HIMSELF A COMMISSIONED MEMBER OF THE NAVAL RESERVE AND SUBJECT TO CALL FOR ACTIVE DUTY UNDER THE COMMISSION WHICH HE ORIGINALLY ACCEPTED ON 13 SEPTEMBER 1934. IT IS THEREFORE RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER COMDR. MOYLE IS ENTITLED TO COUNT FOR PAY PURPOSES COMMISSIONED SERVICE IN THE NAVAL RESERVE COMMENCING 5 FEBRUARY 1935.

ENCLOSURE (A) REFERRED TO IN PARAGRAPH 2, ABOVE, IS A COPY OF A LETTER DATED FEBRUARY 5, 1935, FROM THE COMMANDANT, THIRD NAVAL DISTRICT, TO LIEUTENANT COMMANDER E. H. MOYLE, AND READS AS FOLLOWS:

1. HAVING BEEN APPOINTED A LIEUTENANT COMMANDER MC-V (S), U.S. NAVAL RESERVE, YOU ARE HEREBY ASSIGNED TO BASE HOSPITAL UNIT NO. 2, NEW YORK, N.Y., FOR DUTY IN THE EVENT OF MOBILIZATION.

2. LT. COMDR. E. M. LIVINGSTON, MC-V (S), U.S. NAVAL RESERVE, IS THE ORGANIZER OF BASE HOSPITAL UNIT NO. 2.

WITH RESPECT TO LIEUTENANT COMMANDER MOYLE'S COMMISSIONED SERVICE IN THE MEDICAL CORPS RESERVE, A COMPONENT OF THE OFFICER'S RESERVE CORPS, IT IS STATED IN A REPORT DATED FEBRUARY 23, 1943, FROM THE ADJUTANT GENERAL OF THE ARMY, THAT---

HE WAS APPOINTED FIRST LIEUTENANT, MEDICAL CORPS PRESERVE, OCTOBER 19, 1929; ACCEPTED OCTOBER 31, 1929; TERMINATED OCTOBER 18, 1934, BY REASON OF THE EXPIRATION OF THE FIVE-YEAR PERIOD FOR WHICH IT WAS GRANTED. AND IN CONNECTION WITH HIS NAVAL RESERVE SERVICE IT IS REPORTED BY THE NAVAL PERSONNEL AS FOLLOWS:

2. THE RECORDS OF THE BUREAU INDICATE THAT SUBJECT OFFICER WAS COMMISSIONED IN THE NAVAL RESERVE ON 13 SEP. 1934, AND ON 5 FEB. 1935 HE WAS ASSIGNED TO BASE HOSPITAL UNIT NO. 2, NEW YORK, N.Y., FOR DUTY IN THE EVENT OF MOBILIZATION. ON 28 APR 1942 HE WAS ORDERED TO REPORT TO THE U.S. NAVAL HOSPITAL, NEWPORT, R.I., FOR ACTIVE DUTY, AND REPORTED ON 25 MAY 1942.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081--- IN EFFECT AT THE TIME OF THE PURPORTED ACCEPTANCE OF THE COMMISSION IN THE NAVAL RESERVE--- PROVIDED, IN PERTINENT PART: "THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.' SINCE AT THE TIME OF THE ATTEMPTED ACCEPTANCE OF THE COMMISSION IN THE NAVAL RESERVE THE SUBJECT OFFICER WAS A MEMBER OF THE MEDICAL CORPS RESERVE, HE LEGALLY COULD NOT ACCEPT SUCH COMMISSION. BUT, AS STATED IN DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, 177, REFERRED TO IN THE QUOTED ENDORSEMENT FROM THE CHIEF OT THE BUREAU OF SUPPLIES AND ACCOUNTS, THIS FACT DID NOT OPERATE TO INVALIDATE THE COMMISSION NOR TO PREVENT VALID ACCEPTANCE THEREOF AFTER REMOVAL OF THE DISQUALIFICATION. HOWEVER, SINCE THE OFFICER WAS NOT AUTOMATICALLY VESTED WITH THE COMMISSION UPON REMOVAL OF HIS DISQUALIFICATION, THERE WAS REQUIRED, IN THE ABSENCE OF A FORMAL ACCEPTANCE,"SOME AFFIRMATIVE ACT BY THE APPOINTEE INDICATING HIS INTENTION TO ACCEPT SUCH COMMISSION.'

THE QUOTED LETTER OF FEBRUARY 5, 1935, TO LIEUTENANT COMMANDER MOYLE WAS NOT AN ORDER TO REPORT FOR ACTIVE DUTY. RATHER, AS CLEARLY APPEARS THEREFROM, IT MERELY WAS NOTIFICATION TO HIM OF HIS ASSIGNMENT TO BASE HOSPITAL UNIT NO. 2, NEW YORK, NEW YORK,"FOR DUTY IN THE EVENT OF MOBILIZATION.' SUCH NOTIFICATION DID NOT PURPORT TO IMPOSE UPON THE OFFICER ANY OBLIGATION TO PERFORM DUTY IN CONNECTION WITH HIS ASSIGNMENT AND NEITHER HAS IT BEEN SHOWN THAT HE PERFORMED SUCH DUTY OR ANY OTHER DUTY AS A NAVAL RESERVIST, SUBSEQUENT TO HIS DISCHARGE FROM THE MEDICAL CORPS RESERVE--- WHICH MIGHT BE VIEWED AS AN ACCEPTANCE BY CONDUCT--- PRIOR TO MAY 25, 1942, WHEN HE REPORTED TO THE U.S. NAVAL HOSPITAL, NEWPORT, RHODE ISLAND, FOR ACTIVE DUTY PURSUANT TO ORDERS DATED APRIL 28, 1942.

ASSUMING THAT THE SAID COMMUNICATION OF FEBRUARY 5, 1935, WAS RECEIVED BY LIEUTENANT COMMANDER MOYLE, THE VIEW THAT THE RECEIPT THEREOF IS "TACIT ACCEPTANCE" OF THE MOBILIZATION UNIT ASSIGNMENT CONTAINED THEREIN IS UNTENABLE. THE MERE RECEIPT OF THE NOTIFICATION OF ASSIGNMENT "IN THE EVENT OF MOBILIZATION" WAS, AT MOST, A PASSIVE OR NEGATIVE ACTION ON THE PART OF THE OFFICER HERE INVOLVED. THERE WAS REQUIRED NO ACTION ON HIS PART BY VIRTUE OF SUCH NOTIFICATION AND, OBVIOUSLY, HIS PASSIVE CONDUCT WITH RESPECT THERETO MAY NOT BE CONSIDERED AN "AFFIRMATIVE ACT" LEGALLY SUFFICIENT TO CONSTITUTE RECEIPT OF THE NOTICE AN ACCEPTANCE OF A COMMISSION IN THE NAVAL RESERVE.

SO FAR AS THE RECORD DISCLOSES, THE FIRST AFFIRMATIVE ACTION TAKEN BY THE OFFICER HERE INVOLVED UNDER HIS COMMISSION IN THE NAVAL RESERVE APPEARS TO HAVE BEEN ON MAY 25, 1942, WHEN HE REPORTED TO THE U.S. NAVAL HOSPITAL, NEWPORT, RHODE ISLAND, FOR ACTIVE DUTY UNDER ORDERS ISSUED APRIL 28, 1942. ACCORDINGLY, LIEUTENANT COMMANDER MOYLE MAY NOT BE CREDITED WITH SERVICE IN THE NAVAL RESERVE FOR ANY PERIOD PRIOR TO MAY 25, 1942.