B-127630, OCTOBER 1, 1956, 36 COMP. GEN. 262

B-127630, OCTOBER 1, 1956, 36 COMP. GEN. 262

MILITARY PERSONNEL - MARINE CORPS BAND LEADER - MILEAGE ON DISCHARGE AN ENLISTED MARINE CORPS MEMBER WHO SERVES AS BAND LEADER AND RECEIVES THE PAY AND ALLOWANCES OF A COMMISSIONED OFFICER IS NOT AN OFFICER, AND ON DISCHARGE FROM HIS ENLISTED STATUS AT THE EXPIRATION OF HIS ENLISTMENT HE MAY BE REGARDED AS SEPARATED FROM THE SERVICE FOR ENTITLEMENT TO A MILEAGE PAYMENT EVEN THOUGH HE IMMEDIATELY REENLISTS FOR ANOTHER TOUR OF DUTY. C.G. 699, MODIFIED.

TO THE SECRETARY OF THE NAVY, OCTOBER 1, 1956:

REFERENCE IS MADE TO LETTER DATED AUGUST 11, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 18, 1956, B-127630, 35 COMP. GEN. 699, IN THE CASE OF MASTER SERGEANT ALBERT F. SCHOEPPER, 241896, U.S. MARINE CORPS. SERGEANT SCHOEPPER HAS BEEN SERVING AS LEADER OF THE BAND OF THE MARINE CORPS SINCE MAY 1, 1955, AND HIS RIGHT TO PAY AND ALLOWANCES, THEREFORE, IS FOR DETERMINATION UNDER SECTION 11 OF THE ACT OF MARCH 4, 1925, AS AMENDED BY SECTION 517 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 833 (34 U.S.C. 701) WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE BAND OF THE UNITED STATES MARINE CORPS SHALL CONSIST OF ONE LEADER, WHO SHALL BE PAID THE BASIC PAY, THE BASIC ALLOWANCES, AND SUCH OTHER ALLOWANCES AS ARE AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949 TO BE PAID TO COMMISSIONED OFFICERS IN PAY GRADE 10-3 AND WITH THE SAME NUMBER OF CUMULATIVE YEARS OF SERVICE; * * *

IN THE DECISION OF JUNE 18, 1956, WE HELD THAT SERGEANT SCHOEPPER WAS NOT ENTITLED TO MILEAGE (TRAVEL ALLOWANCE) AND REENLISTMENT BONUS INCIDENT TO HIS DISCHARGE ON APRIL 7, 1956, BY REASON OF EXPIRATION OF ENLISTMENT, SUCH DISCHARGE HAVING BEEN FOLLOWED BY IMMEDIATE REENLISTMENT. ALSO, WE HELD THAT THE ENLISTED MAN WAS ENTITLED TO PAYMENT FOR HIS ACCRUED UNUSED LEAVE, PROVIDED HE HAD NOT ELECTED TO CARRY OVER SUCH LEAVE TO HIS NEW ENLISTMENT.

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 333 (C), CONSISTENTLY HAS BEEN REGARDED AS AUTHORIZING PAYMENT FOR ACCRUED LEAVE UPON DISCHARGE AT EXPIRATION OF ENLISTMENT EVEN THOUGH IMMEDIATELY FOLLOWED BY A REENLISTMENT. SINCE SERGEANT SCHOEPPER WAS ,DISCHARGED" FROM HIS ENLISTED STATUS AT THE EXPIRATION OF AN ENLISTMENT, IT WAS CONCLUDED THAT HE WAS ENTITLED TO PAYMENT FOR ACCRUED LEAVE UPON SUCH DISCHARGE NOT WITHSTANDING THAT THE PAYMENT WAS FOR COMPUTATION AT THE RATE PAYABLE TO AN OFFICER IN PAY GRADE 0-3 WITH SERVICE EQUAL TO SERGEANT SCHOEPPER-S, THAT THERE WAS AN IMMEDIATE REENLISTMENT, AND THAT GENERALLY AN OFFICER UNDERGOING A COMPARABLE TRANSITION FROM ONE STATUS OR PERIOD OF SERVICE AS AN OFFICER TO ANOTHER WOULD NOT BE ENTITLED TO PAYMENT FOR ACCRUED LEAVE. HOWEVER, SERGEANT SCHOEPPER WAS NOT ALLOWED MILEAGE AS FOR A SEPARATION FROM THE SERVICE AND AS MEMBERS OF THE UNIFORMED SERVICES GENERALLY ARE ENTITLED, UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253 (A) AND PARAGRAPH 4157-1 OF THE JOINT TRAVEL REGULATIONS, TO MILEAGE UPON SEPARATION FROM SERVICE, RECONSIDERATION IS REQUESTED RESPECTING HIS RIGHT TO BE PAID MILEAGE INCIDENT TO HIS DISCHARGE.

THE CONCLUSION REACHED IN THE DECISION OF JUNE 18, 1956, REGARDING MILEAGE, WAS BASED ON THE VIEW THAT SERGEANT SCHOEPPER'S DISCHARGE AS AN ENLISTED MAN DID NOT CONSTITUTE A SEPARATION FROM THE SERVICE FOR MILEAGE PURPOSES SINCE HE IS PAID THE PAY AND ALLOWANCES OF AN OFFICER IN PAY GRADE 10-3 AND SINCE SUCH AN OFFICER UNDERGOING A TRANSITION FROM ONE OFFICER STATUS OR TOUR OF DUTY TO ANOTHER, WITHOUT A BREAK IN SERVICE, WOULD NOT BE CONSIDERED AS SEPARATED FROM THE SERVICE FOR MILEAGE PURPOSES. HOWEVER, IT IS RECOGNIZED THAT AS LEADER OF THE BAND HE IS NOT AN OFFICER, EVEN THOUGH PAID AS SUCH, AND UNDER THE JOINT TRAVEL REGULATIONS, HIS DISCHARGE FROM HIS ENLISTED STATUS DID CONSTITUTE A SEPARATION FROM THE SERVICE IN THAT STATUS. WE NOW CONCLUDE, THEREFORE, THAT SINCE ANY MEMBER OF THE UNIFORMED SERVICES WHO IS "SEPARATED" FROM THE SERVICE IS ENTITLED TO A MILEAGE PAYMENT, UPON THE SEPARATION, SERGEANT SCHOEPPER IS ENTITLED TO A MILEAGE PAYMENT, INCIDENT TO HIS DISCHARGE, SUCH PAYMENT TO BE IN THE AMOUNT THAT WOULD HAVE ACCRUED TO HIM IF HE HAD BEEN SEPARATED FROM THE SERVICE AS AN OFFICER IN PAY GRADE 10-3 ON THE DATE HE WAS DISCHARGED AS AN ENLISTED MAN.