B-150235, JAN 31, 1963

B-150235, JAN 31, 1963

PRECIS-UNAVAILABLE

JAMES J. TORPEY, RELE W-1, USCG:

REFERENCE IS MADE TO YOUR LETTER OF RECENT DATE REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 1, 1961, WHICH DISALLOWED YOUR CLAIM FOR LUMP SUM LEAVE PAYMENT, MILEAGE ALLOWANCE AND REENLISTMENT BONUS INCIDENT TO YOUR DISCHARGE ON APRIL 27, AND REENLISTMENT IN THE COAST GUARD ON APRIL 28, 1961.

YOU STATE THAT ON JULY 22, 1955, YOU ENLISTED FOR A PERIOD OF SIX YEARS, SUCH ENLISTMENT TO EXPIRE ON JULY 21, 1961; THAT IN FEBRUARY 1961 YOU WERE TRANSFERRED TO WILDWOOD, NEW JERSEY, TO ATTEND A CLASS "C" SERVICE SCHOOL PREPARATORY TO ASSIGNMENT TO OVERSEAS DUTY; THAT COMPLETION OF THIS SCHOOLING WAS SCHEDULED FOR APRIL 28, 1961, WITH YOUR DEPARTURE FROM THE UNITED STATES SCHEDULED FOR THE FIRST WEEK IN MAY; AND THAT THIS MEANT YOU WOULD BE ON AN ISOLATED STATION OVERSEAS WHEN YOUR ENLISTMENT EXPIRED IN JULY 1961. ON APRIL 12, 1961, YOU REQUESTED AN EARLY DISCHARGE UNDER 14 U.S.C. 370 FOR THE PURPOSE OF IMMEDIATELY REENLISTING, IT APPEARING THAT, IF THIS REQUEST WERE GRANTED, YOU WOULD HAVE BEEN PERMITTED TO TAKE REENLISTMENT LEAVE AND YOU COULD HAVE UTILIZED SOME OF YOUR REENLISTMENT BONUS PAYMENT WITH YOUR FAMILY PRIOR TO LEAVING THEM FOR ONE YEAR. LETTER OF APRIL 17, 1961, THE COMMANDANT OF THE COAST GUARD ADVISED YOU OF YOUR APPOINTMENT TO THE PERMANENT GRADE OF WARRANT OFFICER, W-1, EFFECTIVE MAY 1, 1961, AND THAT, UPON ACCEPTANCE OF SUCH APPOINTMENT, YOU WOULD BE DISCHARGED FROM YOUR ENLISTED STATUS ON APRIL 30, 1961.

THE RECORD SHOWS THAT YOU WERE DISCHARGED ON APRIL 27, 1961, AND REENLISTED THE FOLLOWING DAY AND THAT YOU WERE AGAIN DISCHARGED TWO DAYS LATER AND ENTERED ON YOUR DUTIES AS A WARRANT OFFICER ON MAY 1, 1961.

14 U.S.C. 370 PROVIDES AS FOLLOWS:

"UNDER REGULATIONS PRESCRIBED BY THE SECRETARY, ANY ENLISTED MAN MAY BE DISCHARGED AT ANY TIME WITHIN THREE MONTHS BEFORE THE EXPIRATION OF HIS TERM OF ENLISTMENT OR EXTENDED ENLISTMENT WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT THAT HE WOULD HAVE RECEIVED, EXCEPT PAY AND ALLOWANCES FOR THE UNEXPIRED PERIOD NOT SERVED, OR TO WHICH HE WOULD THEREAFTER BECOME ENTITLED, HAD HE SERVED HIS FULL TERM OF ENLISTMENT OR EXTENDED ENLISTMENT."

ARTICLE 12-B-18, COAST GUARD PERSONNEL MANUAL, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"(A) UNDER CERTAIN CIRCUMSTANCES ENLISTED PERSONNEL WILL BE SEPARATED THREE MONTHS OR LESS PRIOR TO NORMAL DATE OF EXPIRATION OF ENLISTMENT, OR EXTENSION OF ENLISTMENT, OR PERIOD OF OBLIGATED ACTIVE DUTY, PROVIDED THAT SUCH EARLY SEPARATION IS IN THE BEST INTEREST OF THE GOVERNMENT.

"(E) IN ACCORDANCE WITH THE ABOVE, COMMANDING OFFICERS ARE AUTHORIZED TO SEPARATE PERSONNEL 3 MONTHS OR LESS PRIOR TO NORMAL DATE OF SEPARATION WITHOUT REFERENCE TO THE COMMANDANT UNDER THE CIRCUMSTANCES LISTED BELOW; OTHER CASES IN WHICH SUCH EARLY SEPARATION APPEARS WARRANTED MAY BE REFERRED TO THE COMMANDANT (PE).

"(4) WHEN AN INDIVIDUAL REQUESTS, IN WRITING, DISCHARGE FOR THE PURPOSE OF IMMEDIATE REENLISTMENT, EXCEPT IN THE CASE OF AN INDIVIDUAL WHO

"A. IS IN RECEIPT OF INFORMATION OF HIS SELECTION FOR APPOINTMENT TO WARRANT GRADE OR COMMISSIONED RANK;

"D. *** REQUESTS FOR DISCHARGE FOR IMMEDIATE REENLISTMENT WILL BE MADE ON PAGE 7 OF THE INDIVIDUAL'S SERVICE RECORD."

IN A LETTER DATED JULY 14, 1961, FROM THE AUTHORIZED CERTIFYING OFFICER, UNITED STATES COAST GUARD, TO THE CLAIMS DIVISION OF THIS OFFICE, IT IS STATED THAT THE "ACCOUNTABLE UNIT" (APPARENTLY THE UNIT WHERE YOU WERE DISCHARGED) HAD KNOWLEDGE OF YOUR APPOINTMENT AS A WARRANT OFFICER PRIOR TO THE DATE OF YOUR DISCHARGE ON APRIL 27, 1961. IN VIEW OF THAT DISCLOSURE, IT IS CLEAR THAT YOU SHOULD NOT HAVE BEEN GRANTED AN EARLY DISCHARGE ON THAT DATE UNDER THE ABOVE-QUOTED PROVISIONS OF LAW AND REGULATIONS, PURSUANT TO YOUR REQUEST. YOUR THEN CURRENT ENLISTMENT WOULD NOT HAVE EXPIRED UNTIL JULY 21, 1961, AND SINCE ACCEPTANCE OF YOUR APPOINTMENT AS A WARRANT OFFICER WOULD NECESSITATE YOUR DISCHARGE ON APRIL 30, 1961, NO INTEREST OF THE GOVERNMENT COULD BE SERVED BY YOUR DISCHARGE ON APRIL 27, 1961, AND YOUR REENLISTMENT ON THE FOLLOWING DAY. NO RIGHT TO A MILEAGE ALLOWANCE MAY BE CONSIDERED TO HAVE ACCRUED INCIDENT TO THAT DISCHARGE.

CONCERNING YOUR RIGHT TO A REENLISTMENT BONUS IN CONNECTION WITH YOUR REENLISTMENT ON APRIL 28, 1961, SUCH BONUS IS PAID FOR AN ENLISTED MAN'S AGREEMENT TO SERVE THE FULL TERM FOR WHICH HE REENLISTS. IF HE HAS NO INTENTION OF SERVING THE ENTIRE PERIOD FOR WHICH THE BONUS WOULD BE PAYABLE, NO RIGHT TO SUCH BONUS WOULD ACCRUE TO HIM. SEE, IN THIS CONNECTION, 27 COMP. DEC. 747 AND 25 COMP. GEN. 700. AT THE TIME OF YOUR REENLISTMENT ON APRIL 28, 1961, IT APPEARS OBVIOUS THAT YOU WERE AWARE OF THE FACT THAT YOU HAD BEEN APPOINTED TO THE PERMANENT GRADE OF WARRANT OFFICER AND THAT IF YOU ACCEPTED SUCH APPOINTMENT YOUR ENLISTED STATUS WOULD BE PERMANENTLY TERMINATED ON APRIL 30, 1961. SINCE YOU DID ACCEPT THE APPOINTMENT, IT CANNOT BE CONCLUDED THAT YOU REENLISTED WITH A BONA FIDE INTENTION OF SERVING THE SIX-YEAR TERM FOR WHICH YOU REENLISTED.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 1, 1961, IS SUSTAINED.

IF, AS STATED, THE ACCRUED ANNUAL LEAVE YOU HAD TO YOUR CREDIT ON THE DATE YOU ACCEPTED YOUR APPOINTMENT AS A WARRANT OFFICER HAS NOT BEEN CARRIED FORWARD IN YOUR CURRENT LEAVE RECORDS, APPROPRIATE ADMINISTRATIVE ACTION TO EFFECT SUCH CREDIT SHOULD BE TAKEN AT THIS TIME. SEE SEC. 4(C) OF THE ARMED FORCES LEAVE ACT OF 1946, CH. 931, 60 STAT. 964, AS AMENDED, 37 U.S.C. 33(O) (1958 ED.).