B-138442, NOV. 15, 1963

B-138442, NOV. 15, 1963

TO LIEUTENANT COLONEL EDWIN M. SCHMIDT, JAGC, USA:

YOUR LETTER OF OCTOBER 4, 1962 (1963), AND ENCLOSURES, REQUESTS REVIEW AND RECONSIDERATION OF YOUR CLAIM FOR BACK PAY FROM OCTOBER 1, 1950, BASED ON ADDITIONAL CREDIT FOR SERVICE AS A MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE, FROM SEPTEMBER 2 THROUGH DECEMBER 1, 1942. YOUR CLAIM WAS DENIED BY DECISION B-138442, DATED APRIL 22, 1959, FOR THE REASON THAT MIDSHIPMAN SERVICE IN THE NAVAL RESERVE DOES NOT CONSTITUTE EITHER ENLISTED, WARRANT OR COMMISSIONED SERVICE, AND IT IS NOT OTHERWISE ENUMERATED AS CREDITABLE IN THE COMPUTATION OF BASIC PAY UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 807. YOU NOW CONTEND THAT YOU WERE NOT ACTUALLY DISCHARGED IN 1942 FROM YOUR ENLISTED STATUS AS APPRENTICE SEAMAN UNDER THE V-7 PROGRAM, AND HENCE THAT YOU HAD A CONCURRENT ENLISTED STATUS DURING YOUR SERVICE AS A MIDSHIPMAN.

THE RECORD SHOWS THAT ON MARCH 27, 1942, YOU ENLISTED IN THE U.S. NAVAL RESERVE, CLASS V-7, AND, ON AUGUST 14, 1942, REPORTED TO USNR MIDSHIPMEN'S SCHOOL, NEW YORK, NEW YORK, PURSUANT TO COMMANDANT NINTH NAVAL DISTRICT ACTIVE DUTY ORDER OF JULY 20, 1942. ON SEPTEMBER 2, 1942, YOU EXECUTED AN OATH OF OFFICE AND ACCEPTED APPOINTMENT AS MIDSHIPMAN, VOLUNTEER RESERVE, IN THE UNITED STATES NAVAL RESERVE. YOUR ENLISTED SERVICE RECORD CONTAINS AN ENTRY PREPARED AT THE USNR MIDSHIPMEN'S SCHOOL, NEW YORK, NEW YORK, ON SEPTEMBER 2, 1942, STATING THAT YOUR ENLISTMENT AS APPRENTICE SEAMAN V-7, USNR,"IS HEREBY TERMINATED, EFFECTIVE SEPTEMBER 1, 1942.'

THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1175, PROVIDED FOR APPOINTMENTS IN THE GRADE OF MIDSHIPMAN, U.S. NAVAL RESERVE, UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE NAVY. TO FURTHER THE PROVISIONS OF THAT ACT A CLASS OF ENLISTED MEN IN THE NAVAL RESERVE, DESIGNATED V-7, WAS ESTABLISHED "FOR THE PROCUREMENT OF PROSPECTIVE CANDIDATES FOR APPOINTMENT AS MIDSHIPMEN, U.S. NAVAL RESERVE.' INFORMATION CONCERNING THE ESTABLISHMENT OF SUCH CLASS OF ENLISTED MEN WAS PUBLISHED IN A NAVY DEPARTMENT CIRCULAR ISSUED IN 1941 ENTITLED "INFORMATION FOR CANDIDATES FOR APPOINTMENT AS MIDSHIPMEN, U.S. NAVAL RESERVE 1941-1942," WHICH WAS CIRCULATED AS AN ENCLOSURE TO BUREAU OF NAVIGATION CIRCULAR LETTER NO. 56-41, DATED MAY 6, 1941. SUCH CANDIDATES WERE ADVISED IN THAT CIRCULAR THAT UPON COMPLETION OF THE PRELIMINARY V-7 COURSE THOSE CANDIDATES RECOMMENDED WOULD BE APPOINTED AS MIDSHIPMEN, U.S. NAVAL RESERVE, AND GIVEN AN ADDITIONAL 3 MONTHS' TRAINING AT THE SAME STATION, AND THAT THOSE NOT RECOMMENDED FOR APPOINTMENT AS RESERVE MIDSHIPMEN WOULD BE ORDERED HOME AND IMMEDIATELY DISCHARGED OR, UPON THEIR OWN REQUEST, TRANSFERRED IN AN ENLISTED STATUS TO ANOTHER BRANCH OF THE NAVAL RESERVE FOR WHICH QUALIFIED. IT IS CLEAR THAT A V-7 ENLISTED STATUS WAS CONTEMPLATED FOR A COMPARATIVELY SHORT PERIOD OF TIME AND THAT IT WAS TO BE PRELIMINARY TO, AND SUCCEEDED BY, APPOINTMENT AS A MIDSHIPMAN IN THE NAVAL RESERVE. HENCE, IT APPEARS THAT YOUR ENLISTED STATUS WAS TERMINATED EFFECTIVE SEPTEMBER 1, 1942, UPON YOUR ACCEPTANCE OF APPOINTMENT AS MIDSHIPMAN ON SEPTEMBER 2, 1942, THERE BEING NO REASON FOR A CONTINUING NAVAL RESERVE V-7 ENLISTED STATUS THEREAFTER. IN SUCH CIRCUMSTANCES WE FIND NO BASIS FOR A CONCLUSION THAT YOU HAD A CONCURRENT ENLISTED RESERVE STATUS DURING YOUR MIDSHIPMAN SERVICE. COMPARE 40 COMP. GEN. 473, IN WHICH WE EXPRESSED GRAVE DOUBT THAT A MEMBER'S ENLISTED STATUS IN THE NAVAL RESERVE CONTINUED AFTER HIS APPOINTMENT AS A MIDSHIPMAN IN THAT ORGANIZATION. WE STATED FURTHER THAT SUCH APPOINTMENT WOULD SEEM TO HAVE TERMINATED HIS ENLISTED STATUS WITHOUT REGARD TO THE REGULATIONS WHICH WERE APPLICABLE IN THAT CASE.

THE FACT THAT A CERTIFICATE WAS ISSUED IN 1960 STATING THAT YOU WERE HONORABLY DISCHARGED FROM THE NAVY ON SEPTEMBER 1, 1942, IS NOT VIEWED AS A CIRCUMSTANCE WHICH ADDS TO YOUR RIGHTS IN ANY WAY.

WE FIND NOTHING IN YOUR LETTER WHICH WARRANTS A CONCLUSION THAT YOU ARE ENTITLED TO INCREASED PAY BASED ON LONGEVITY CREDIT FOR THE PERIOD SEPTEMBER 2 TO DECEMBER 1, 1942.