B-130529, SEPTEMBER 9, 1957, 37 COMP. GEN. 178

B-130529, SEPTEMBER 9, 1957, 37 COMP. GEN. 178

MILITARY PERSONNEL - NAVAL ENLISTED MEN SERVING ON VESSELS IN FOREIGN WATERS - RETENTION AFTER EXPIRATION OF ENLISTMENT - INCREASED PAY THE RETENTION OF NAVY ENLISTED MEN ON ACTIVE DUTY ON VESSELS IN FOREIGN WATERS AFTER THE EXPIRATION OF THE TERM OF ENLISTMENT IS REGARDED AS AN INVOLUNTARY CHANGE IN THE ENLISTMENT CONTRACT ENTITLING THE MEMBERS TO THE TWENTY-FIVE PERCENT INCREASE IN PAY PROVIDED IN 10 U.S.C. 5540 EVEN THOUGH BY LAW, 50 U.S.C. APP. 454 (D), THE MEMBERS ARE REQUIRED TO CONTINUE IN A RESERVE STATUS FOR THE BALANCE OF EIGHT YEARS OF OBLIGATORY SERVICE AFTER COMPLETION OF THE ENLISTMENT CONTRACT.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 9, 1957:

REFERENCE IS MADE TO LETTER OF AUGUST 1, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), REQUESTING DECISION AS TO WHETHER MEMBERS OF THE REGULAR NAVY WHO INITIALLY ENLISTED IN THE SERVICE AFTER JUNE 19, 1951, WHILE STILL UNDER THE AGE OF 26 YEARS, ARE ENTITLED TO AN INCREASE IN BASIC PAY OF 25 PERCENT FOR THE PERIOD RETAINED ON ACTIVE DUTY BEYOND THE EXPIRATION DATE OF ENLISTMENT CONTRACT WHEN SUCH CONTRACT EXPIRES WHILE MEMBERS ARE SERVING ON A VESSEL IN FOREIGN WATERS.

PERSONS WHO ENLISTED IN THE REGULAR NAVY UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED ARE REQUIRED TO SERVE FOR A PERIOD OF EIGHT YEARS IN A REGULAR AND RESERVE STATUS UNDER SECTION 4 (D) (3) OF THE SELECTIVE SERVICE ACT OF 1948, AS ADDED BY SECTION 1 (G) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF JUNE 19, 1951, 65 STAT. 79, 50 U.S.C. APP. 454 (D), AND IT APPEARS THAT UPON COMPLETION OF THE CONTRACT OF ENLISTMENT IN THE REGULAR NAVY THEY ARE TRANSFERRED TO THE NAVAL RESERVE AND CONCURRENTLY RELEASED TO INACTIVE DUTY FOR THE PURPOSE OF SERVING THE BALANCE OF THE EIGHT YEARS OF OBLIGATORY SERVICE.

IT WAS HELD IN OUR DECISION OF APRIL 16, 1957, 36 COMP. GEN. 709, THAT THE PROVISIONS OF 10 U.S.C. 5540, WHICH AUTHORIZE THE PAYMENT OF INCREASED BASIC PAY OF 25 PERCENT TO EACH MEMBER OF THE NAVAL RESERVE "WHOSE TERM OF ENLISTMENT HAS EXPIRED" WHILE HE IS SERVING ON A VESSEL IN FOREIGN WATERS AND WHO IS RETAINED ON ACTIVE DUTY IN THE PUBLIC INTEREST (AS DETERMINED BY THE SENIOR OFFICER PRESENT AFLOAT) PENDING RETURN OF THE VESSEL TO THE UNITED STATES, ARE APPLICABLE TO MEMBERS OF THE NAVAL RESERVE AS WELL AS TO MEMBERS OF THE REGULAR NAVY.

AS AN EXAMPLE OF THE CIRCUMSTANCES PROMPTING THE QUESTION INVOLVED, THERE WAS CITED THE CASE OF AN ENLISTED MAN WHO FIRST ENLISTED IN THE REGULAR NAVY ON MARCH 18, 1953, FOR FOUR YEARS, AND WHO WAS SERVING ON A VESSEL IN FOREIGN WATERS ON MARCH 17, 1957. HE WAS RETAINED ON THE VESSEL IN THE PUBLIC INTEREST UNTIL IT RETURNED TO THE UNITED STATES AND ON APRIL 9, 1957, HE WAS TRANSFERRED TO THE NAVAL RESERVE AND CONCURRENTLY RELEASED TO INACTIVE DUTY, HE BEING OBLIGATED TO CONTINUE IN THE NAVAL SERVICE UNTIL MARCH 17, 1961, UNLESS SOONER DISCHARGED BY COMPETENT AUTHORITY.

THE APPARENT PURPOSE OF THE PROVISIONS OF LAW AUTHORIZING AN INCREASE IN BASIC PAY OF 25 PERCENT TO A MEMBER "WHOSE TERM OF ENLISTMENT HAS EXPIRED" WHILE SERVING ON A VESSEL IN FOREIGN WATERS, AND WHO IS RETAINED ON THE VESSEL IN THE PUBLIC INTEREST UNTIL IT RETURNS TO THE UNITED STATES, IS TO GRANT INCREASED PAY AS COMPENSATION TO MEMBERS FOR ACTIVE DUTY REQUIRED TO BE PERFORMED IN THE PUBLIC INTEREST BEYOND THE PERIOD THEY HAD VOLUNTARILY AGREED TO SERVE IN THE REGULAR NAVY OR IN THE NAVAL RESERVE. THAT AN ADDITIONAL PERIOD OF INACTIVE SERVICE IN A RESERVE STATUS IS REQUIRED BY STATUTE BEYOND THE CONTRACTUAL PERIOD OF ENLISTMENT IN THE REGULAR NAVY, IN A CASE SUCH AS IS HERE INVOLVED, WOULD NOT CHANGE THE FACT THAT ACTIVE SERVICE IS REQUIRED AND PERFORMED IN THE REGULAR NAVY BEYOND THE CONTRACTUAL TERM OF ACTIVE SERVICE, AND THAT THE TERMS OF THE CONTRACT, IN EFFECT, HAVE BEEN VARIED IN THE PUBLIC INTEREST. IT IS THIS INVOLUNTARY CHANGE IN THE CONTRACTUAL RELATIONSHIP WHICH GIVES RISE TO A RIGHT TO THE INCREASED PAY. WHILE THE ENLISTED MAN INVOLVED WAS REQUIRED BY LAW TO SERVE FOR A PERIOD OF EIGHT YEARS, HIS ENLISTMENT IN THE REGULAR NAVY FOR FOUR YEARS WAS A VOLUNTARY ACTION NOT REQUIRED BY LAW AND SUCH ACTION MADE HIM ELIGIBLE TO RECEIVE THE BENEFITS OF 10 U.S.C. 5540 WHEN THE OTHER REQUIREMENTS OF THE STATUTE WERE MET.