B-63549, MARCH 20, 1947, 26 COMP. GEN. 681

B-63549, MARCH 20, 1947, 26 COMP. GEN. 681

PAY - NAVAL RESERVE - WHILE AT HOME AWAITING RETIREMENT; PERIOD FOLLOWING NON-RETIREMENT AND RECALL TO ACTIVE DUTY A NAVAL RESERVE OFFICER WHO WAS DETACHED FROM DUTY AND ORDERED HOME TO AWAIT ORDERS PENDING RETIREMENT FOR LENGTH OF SERVICE AND TO REGARD HIMSELF AS RELIEVED OF ALL ACTIVE DUTY UPON BEING PLACED ON THE RETIRED LIST AS OF A SPECIFIED FUTURE DATE IS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES UP TO THE DATE HE WAS RELIEVED OF ALL ACTIVE DUTY AND PLACED ON THE RETIRED LIST. WHERE ORDERS DETACHING A NAVAL RESERVE OFFICER FROM DUTY AND DIRECTING HIM TO PROCEED TO HIS HOME AND THERE TO REGARD HIMSELF RELIEVED OF ALL ACTIVE DUTY UPON BEING PLACED ON THE RETIRED LIST AS OF A SPECIFIED FUTURE DATE CONTAINED NO ALTERNATIVE INSTRUCTIONS IN THE EVENT RETIREMENT DID NOT BECOME EFFECTIVE ON THAT DATE, THE OFFICER, WHOSE RETIREMENT WAS NOT EFFECTED ON THE DATE CONTEMPLATED IN THE ORDERS, IS NOT ENTITLED TO ACTIVE -DUTY PAY AND ALLOWANCES FOR THE PERIOD BETWEEN THE DATE HE WAS TO BE RELIEVED OF ACTIVE DUTY AND THE DATE HE REPORTED BACK TO ACTIVE DUTY UPON RECALL THERETO.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 20, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 29, 1947, FILE JAG:II:WJG:MH OO--- BERRY, ALBERT G. (L16-4, REQUESTING DECISION ON THE QUESTIONS PRESENTED IN A LETTER DATED DECEMBER 12, 1946, TRANSMITTED THEREWITH, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WHICH READS AS FOLLOWS: REF: (A) DEC. COMP. GEN. B-33933 DATED 21 MAY 1943.

(B) SECTIONS 6 AND 7 OF PUBLIC LAW 305 APPROVED 21 FEBRUARY

1946.

(C) DEC. COMP. GEN. B-57926 DATED 15 JULY 1946 (26 COMP. GEN.

40).

(D) DEC. COMP. GEN. B-55609 DATED 15 JULY 1946 ( 26 COMP. GEN.

37). ENCL: (A) COPY OF LETTER OF CDR BERRY TO SECNAV DATED 1 APRIL 1946.

(B) COPY OF BUPERS ORDERS PERS-31528-MES-2A 8702 DATED 18 MAY

1946, WITH ALL ENDORSEMENTS THEREON.

(C) COPY OF BUPERS LETTER 325 OF 11 SEPTEMBER 1946.

(D) COPY OF BUPERS ORDERS PERS-31531-MFJ-2A DATED 4 OCTOBER

1946.

(E) COPY OF BUPERS DESPATCH ORDERS 161859 OCTOBER 1946.

(F) COPY OF NAVPERS FORM B ( REPORT OF COMPLIANCE WITH ORDERS)

DATED 21 OCTOBER 1946.

1. THE SUBJECT NAMED OFFICER ENTERED THE NAVAL ACADEMY ON 6 JULY 1910, GRADUATED THEREFROM ON 5 JUNE 1914, ACCEPTED COMMISSION AS ENSIGN USN, ON 6 JUNE 1914, AND RESIGNED FROM THE REGULAR NAVY ON 15 FEBRUARY 1926. ACCEPTED APPOINTMENT AS LIEUTENANT COMMANDER, USNR, ON 6 APRIL 1926, PERFORMED ACTIVE DUTY FOR TRAINING FROM 29 MAY TO 13 JUNE 1926 AND FROM 10 -19 MAY 1928, AND ACTIVE DUTY FROM 11FEBRUARY 1941 TO 31 AUGUST 1946 AND FROM 20 OCTOBER 1946 TO THE PRESENT TIME. THIS OFFICER REQUESTED THAT HE BE PLACED ON THE RETIRED LIST ON OR ABOUT 1 SEPTEMBER 1946 UNDER THE AUTHORITY CONTAINED IN SECTION 6 OF PUBLIC LAW 305 APPROVED FEBRUARY 21, 1946. AS OF 1 SEPTEMBER 1946 THIS OFFICER HAD COMPLETED ACTIVE COMMISSIONED SERVICE TOTALING 17 YEARS 3 MONTHS AND 26 DAYS. THE REMAINDER OF HIS COMMISSIONED SERVICE OF OVER 30 YEARS IS INACTIVE SERVICE AS AN OFFICER IN THE NAVAL RESERVE. IN ADDITION, HE HAD SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY TOTALING 3 YEARS AND 11 MONTHS.

ENCLOSURE

2. PURSUANT TO DIRECTIVE CONTAINED IN ENCLOSURE (D) AS MODIFIED BY ENCLOSURE (E), AS EVIDENCED BY ENCLOSURE (F), COMMANDER BERRY REPORTED TO COMMANDER, NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, ON 20 OCTOBER 1946 FOR ACTIVE DUTY.

3. THE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT A RESERVE OFFICER IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES ONLY WHEN EMPLOYED ON ACTIVE DUTY, WHEN IN A WAITING-ORDERS STATUS, WHILE ON AUTHORIZED LEAVE DURING PERIOD OF CONTINUOUS ACTIVE DUTY, OR DURING PERIOD OF TERMINAL LEAVE PRECEDING EFFECTIVE DATE OF RELEASE FROM ACTIVE DUTY. IN THIS CONNECTION, NOTICE HAS BEEN TAKEN OF REFERENCE (A) IN WHICH THE COMPTROLLER GENERAL HELD THAT A RESERVE OFFICER WHO IS DISCHARGED FROM A HOSPITAL AND PLACED IN A WAITING-ORDERS STATUS PENDING COMPLETION OF FORMALITIES IN CONNECTION WITH PROCEEDINGS OF A NAVAL RETIRING BOARD AUTHORIZING TRANSFER TO THE RETIRED LIST IN A PAY STATUS, MAY BE CREDITED, UNDER SUCH CIRCUMSTANCES, WITH ACTIVE DUTY PAY AND ALLOWANCES FOR A REASONABLE TIME. IT IS RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER:

(A) THE ACTIVE DUTY STATUS OF COMMANDER BERRY TERMINATED AS OF 31 AUGUST 1946 UNDER THE TERMS OF ENCLOSURE (B), THE UNEXECUTED PORTION OF WHICH WAS NOT CANCELLED UNTIL ISSUANCE OF ENCLOSURE (D) ON 4 OCTOBER 1946;

(B) THE CASE OF COMMANDER BERRY COMES WITHIN THE PURVIEW OF REFERENCE (A) IN THAT IT WAS CONTEMPLATED, AT THE TIME ENCLOSURE (B) WAS ISSUED, THAT HIS REQUEST FOR VOLUNTARY RETIREMENT WOULD BE SUBMITTED TO THE PRESIDENT THE LATTER PART OF AUGUST; OR

(C) SINCE RETIREMENT WAS NOT EFFECTED ON 1 SEPTEMBER 1946 AS CONTEMPLATED, COMMANDER BERRY IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM 1 SEPTEMBER TO 19 OCTOBER 1946, ON THE BASIS THAT RELEASE FROM ACTIVE DUTY ON 1 SEPTEMBER 1946 WAS CONTINGENT UPON HIS TRANSFER TO RETIRED LIST IN A PAY STATUS IN COMPLIANCE WITH HIS REQUEST OF 1 APRIL 1946.

ORDERS DATED MAY 18, 1946, FROM THE CHIEF OF NAVAL PERSONNEL ADDRESSED TO COMMANDER ALBERT G. BERRY, JR. (S), USNR, READ AS FOLLOWS:

1. WHEN DIRECTED BY YOUR COMMANDING OFFICER, REPORT FOR A PHYSICAL EXAMINATION IN ACCORDANCE WITH REFERENCE (A). IF HOSPITALIZATION IS REQUIRED, YOU WILL BE DETACHED FROM DUTY, ORDERED TO AN APPROPRIATE HOSPITAL, AND THESE ORDERS ENDORSED IN ACCORDANCE WITH REFERENCE (B). FURTHER COMPLIANCE WITH THESE ORDERS IS DELAYED UNTIL YOU ARE READY FOR DISCHARGE FROM TREATMENT. AT THAT TIME, THE MEDICAL OFFICER IN COMMAND WILL PERFORM THE DUTIES OF THE COMMANDING OFFICER REFERRED TO IN THE BALANCE OF THESE ORDERS.

2. WHEN DIRECTED BY YOUR COMMANDING OFFICER, PROCEED AND REPORT TO A CIVIL READJUSTMENT OFFICER FOR AN INTERVIEW. UPON COMPLETION OF THE INTERVIEW, RETURN TO YOUR DUTY STATION OR THE HOSPITAL AT WHICH YOU ARE A PATIENT, AND WHEN DIRECTED ON OR ABOUT 1 JUNE 1946, YOU WILL REGARD YOURSELF DETACHED FROM ALL DUTY, AWAIT ORDERS PENDING RETIREMENT. YOU WILL PROCEED TO YOUR HOME. IF HOSPITALIZATION WAS REQUIRED, UPON DISCHARGE FROM TREATMENT AWAIT ORDERS PENDING RETIREMENT. YOU WILL PROCEED TO YOUR HOME. YOU WILL COMPLETE ALL TRAVEL WITHIN ONE YEAR FROM DATE OF DETACHMENT; OR, IF UNDER TREATMENT, WITHIN ONE YEAR FROM DATE OF DISCHARGE FROM TREATMENT BUT NOT LATER THAN ONE YEAR FROM DATE OF RETIREMENT; OR WITHIN ONE YEAR AFTER TERMINATION OF THE WAR, WHICHEVER IS LATER.

3. IMMEDIATELY UPON DETACHMENT, YOU WILL REPORT YOUR MAIL ADDRESS AND SUBSEQUENT CHANGES THEREOF TO THE BUREAU OF NAVAL PERSONNEL AND TO THE COMMANDANT OF THE NAVAL DISTRICT IN WHICH YOU RESIDE. COMPLY ALSO WITH ARTICLES 134 AND 135 NAVY REGULATIONS (1920).

4. IMMEDIATELY UPON DETACHMENT, YOU WILL FURNISH THE BUREAU OF NAVAL PERSONNEL AND THE DISBURSING OFFICER CARRYING YOUR PAY ACCOUNTS A COPY OF THESE ORDERS BEARING ALL ENDORSEMENTS, INCLUDING THE DATE OF DETACHMENT.

5. UPON BEING PLACED ON THE LIST OF RETIRED OFFICERS OF THE U.S. NAVY ON 1 SEPTEMBER 1946, YOU WILL REGARD YOURSELF RELIEVED OF ALL ACTIVE DUTY IN THE U.S. NAVY.

6. DURING THE PERIOD BETWEEN DATE OF DETACHMENT AND DATE RELIEVED OF ALL ACTIVE DUTY, YOU MAY, AT YOUR OPTION, WEAR CIVILIAN CLOTHES; AND WHILE WEARING CIVILIAN CLOTHES, YOU ARE AUTHORIZED TO ENGAGE IN ANY OCCUPATION NOT CONTRARY TO LAW.

SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED BY SECTION 15 OF THE ACT OF AUGUST 4, 1942, 56 STAT. 739, PROVIDES AS FOLLOWS:

ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309, TITLE III, OF THIS ACT, OR WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS CONSENT ONLY: PROVIDED THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

THE FIRST PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES:

OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY, NAVY, MARINE CORPS, COAST GUARD, OR PUBLIC HEALTH SERVICE.

SEE, ALSO, SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305, 60 STAT. 27, PROVIDES:

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.

THE DECISION OF MAY 21, 1943, B-33933, REFERRED TO IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, CONCERNED OFFICERS OF THE NAVAL RESERVE, PHYSICALLY DISABLED WHILE ON ACTIVE DUTY, WHO WERE ORDERED TO THEIR HOMES TO AWAIT ORDERS PENDING THE COMPLETION OF THE FORMALITIES FOR THEIR RETIREMENT. THE CONCLUSION REACHED IN THAT DECISION WAS BASED UPON THE PARTICULAR FACTS THERE INVOLVED AND STATED NO GENERAL RULE WHICH WOULD BE FOR APPLICATION TO COMMANDER BERRY'S CASE. ACCORDINGLY, YOUR QUESTION (B) IS ANSWERED IN THE NEGATIVE. HOWEVER, YOUR ATTENTION IS INVITED TO DECISION OF JUNE 15, 1922, 1 COMP. GEN. 736, CONSIDERING STATUTORY PROVISIONS SIMILAR TO THOSE HERE INVOLVED, WHEREIN IT WAS HELD THAT AN OFFICER OF THE NAVAL RESERVE FORCE, OTHERWISE PROPERLY ON ACTIVE DUTY, WAS ENTITLED TO ACTIVE DUTY PAY WHILE AWAITING ORDERS AT HIS HOME UNDER ORDER TO DO SO PENDING A NEW DUTY ASSIGNMENT OR A RELEASE FROM ALL ACTIVE DUTY. THE CONCLUSION THERE REACHED WOULD APPEAR TO BE EQUALLY APPLICABLE UNDER THE PRESENT LAWS, AND, ACCORDINGLY, NO QUESTION IS RAISED WITH RESPECT TO COMMANDER BERRY'S RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES DURING THE PERIOD FROM JUNE 7 TO AUGUST 31, 1946. UNITED STATES V. WILLIAMSON, 90 U.S. 411; UNITED STATES V. PHISTERER, 94 U.S. 219; UNITED STATES V. LIPPITT, 100 U.S. 663.

THE OFFICER'S RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD SEPTEMBER 1 TO OCTOBER 19, 1946, DEPENDS UPON THE EFFECT OF HIS ORDERS OF MAY 18, 1946. THOSE ORDERS PURPORT TO DIRECT HIM TO PROCEED TO HIS HOME AND AWAIT RETIREMENT ON SEPTEMBER 1, 1946. IT DOES NOT APPEAR THAT THE SAID ORDERS CONTEMPLATED THAT HE WOULD BE IN AN AWAITING ORDERS STATUS AFTER AUGUST 31, 1946, AND, ON THE OTHER HAND, THE ORDERS CONTAIN NO ALTERNATIVE INSTRUCTIONS WITH WHICH HE WAS TO COMPLY, EXCEPT WITH RESPECT TO HIS RELEASE FROM ACTIVE DUTY. IN OTHER WORDS, THE ORDERS CONTAINED NO PROVISION ASSIGNING THE OFFICER TO A STATION AND FURTHER DUTY FOLLOWING THE EXPIRATION OF HIS AWAITING ORDERS STATUS, THAT IS, ON SEPTEMBER 1, 1946, IN THE EVENT HIS RETIREMENT DID NOT BECOME EFFECTIVE ON THAT DATE, AND UNDER SUCH CIRCUMSTANCES IT MUST BE HELD THAT, INSOFAR AS PAY AND ALLOWANCES ARE CONCERNED, THE OFFICER WAS RELEASED FROM ACTIVE DUTY ON AUGUST 31, 1946. IT CANNOT BE ASSUMED THAT THERE WAS ANY INTENTION TO PLACE THE OFFICER IN AN AWAITING ORDERS STATUS UNTIL THE HAPPENING OF AN EVENT WHICH MIGHT NEVER OCCUR OR THAT HIS RELEASE FROM ACTIVE DUTY WAS MADE CONTINGENT UPON THE HAPPENING OF SUCH AN EVENT. SUCH A PROCEDURE, WHICH COULD HAVE THE EFFECT OF CONTINUING AN OFFICER ON ACTIVE DUTY INDEFINITELY, IN AN "AWAITING ORDERS" STATUS, WOULD NOT BE IN ACCORDANCE WITH THE LAW AND COULD NOT BE SANCTIONED BY THIS OFFICE. 1 COMP. GEN. 736, SUPRA; 23 COMP. GEN. 193.

FOR THE REASONS STATED, COMMANDER BERRY MUST BE CONSIDERED TO HAVE BEEN RELEASED TO INACTIVE DUTY ON AUGUST 31, 1946, AND HE IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD SEPTEMBER 1 TO OCTOBER 19, 1946. THEREFORE, QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE AND QUESTION (C) IN THE NEGATIVE.