B-160311, JAN. 17, 1967

B-160311, JAN. 17, 1967

TO LIEUTENANT COLONEL JOHN A. RAPP, USMC, DISBURSING OFFICER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30, 1966, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER PAYMENT OF MILEAGE ALLOWANCE, BASIC PAY AND APPLICABLE ALLOWANCES FOR UNUSED LEAVE, AND REENLISTMENT BONUS MAY BE MADE TO SECOND LIEUTENANT RONALD L. KRUEGER, USMC, UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. DOMC-934 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

RONALD L. KRUEGER REENLISTED IN THE U.S. MARINE CORPS ON MAY 27, 1960, FOR 6 YEARS. ON FEBRUARY 10, 1966, HE EXECUTED AN AGREEMENT TO EXTEND HIS ENLISTMENT FOR 2 YEARS, EFFECTIVE MAY 27, 1966, UNDER 10 U.S.C. 5539. MAY 27, 1966, HE ACCEPTED A TEMPORARY APPOINTMENT AS A SECOND LIEUTENANT UNDER 10 U.S.C. 5596. HIS PAY AND ALLOWANCES AS AN OFFICER COMMENCED ON MAY 27, 1966.

YOU POINT OUT THAT A MEMBER OF THE REGULAR MARINE CORPS WHO INITIALLY EXTENDS HIS ENLISTMENT FOR 2 YEARS IS ENTITLED TO THE SAME PAY AND ALLOWANCES (INCLUDING MILEAGE ALLOWANCE, PAYMENT FOR UNUSED LEAVE, AND REENLISTMENT BONUS) AS THOUGH REGULARLY DISCHARGED AND REENLISTED. YOU ASK WHETHER, IN VIEW OF KRUEGER'S ENTRANCE ON ACTIVE DUTY AS AN OFFICER ON MAY 27, HE MAY BE PAID SUCH PAY AND ALLOWANCES AND SAY THAT YOUR DOUBT IN THE MATTER IS WHETHER AN ENLISTED MEMBER WHO INITIALLY EXTENDS HIS ENLISTMENT FOR 2 YEARS IS ENTITLED TO:

"A. MILEAGE ALLOWANCE AND PAYMENT FOR UNUSED LEAVE ON THE DATE HE COMPLETES HIS ORIGINAL TERM OF ENLISTMENT OR ON THE DATE HIS EXTENSION BECOMES EFFECTIVE. (COMPARE 9 COMP. GEN. 385 AT 386)

B. REENLISTMENT BONUS ON THE DATE HIS EXTENSION BECOMES EFFECTIVE IF HE ACCEPTS AN APPOINTMENT AS, AND IS ENTITLED TO THE PAY AND ALLOWANCES OF, AN OFFICER ON THAT DATE. (COMPARE 23 COMP. GEN. 914, 35 COMP. GEN. 664, 699.'

YOU SAY THAT UNDER THE GENERAL RULE THAT A DAY IS TO BE REGARDED AS A SINGLE UNIT OF TIME AND FRACTIONAL PARTS OF A DAY ARE NOT TO BE RECOGNIZED IN MATTERS OF APPOINTMENT OR PROMOTION, RONALD L. KRUEGER WOULD BE CONSIDERED FOR PAY PURPOSES AS HAVING BEEN A SECOND LIEUTENANT THE ENTIRE DAY OF MAY 27, 1966, REGARDLESS OF THE HOUR HE ACCEPTED THE TEMPORARY APPOINTMENT TO THAT GRADE. 44 COMP. GEN. 537.

THE PERTINENT PROVISIONS OF 10 U.S.C. 5539 PERMIT A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS TO EXTEND HIS ENLISTMENT UNDER SECRETARIAL REGULATIONS FOR LESS THAN ONE YEAR OR FOR A PERIOD OF 1, 2, 3 OR 4 YEARS. ALSO, UNDER THE PROVISIONS OF 37 U.S.C. 906 (B), A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS, AS THE CASE MAY BE, WHO EXTENDS HIS ENLISTMENT UNDER SECTION 5539 OF TITLE 10 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. IN VIEW OF THESE PROVISIONS WE HAVE, AS YOU SAY, CONSISTENTLY REGARDED MEMBERS WHO EXTEND ENLISTMENTS UPON EXPIRATION OF TERM OF SERVICE AS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH REGULARLY DISCHARGED AND IMMEDIATELY REENLISTED. COMP. GEN. 103; 35 ID. 663; 39 ID. 455 AND 711; B-150737, MARCH 27, 1963, AND 43 COMP. GEN. 539.

IT APPEARS THAT YOUR DOUBT IS PREDICATED UPON SOME QUESTION AS TO WHETHER, IN VIEW OF KRUEGER'S ENTRANCE ON ACTIVE DUTY AS A TEMPORARY OFFICER IN THE REGULAR MARINE CORPS ON THE SAME DAY THAT HIS EXTENSION WAS TO BECOME EFFECTIVE, THUS PREVENTING ANY SERVICE UNDER THE EXTENSION OF ENLISTMENT, HE MAY BE REGARDED AS HAVING VALIDLY EXTENDED HIS ENLISTMENT FOR PURPOSES OF PAY AND ALLOWANCES AS AN ENLISTED MAN.

UNDER THE PROVISIONS OF 10 U.S.C. 5596 (B) (2) TEMPORARY APPOINTMENTS IN THE REGULAR MARINE CORPS IN GRADES NOT ABOVE CAPTAIN MAY BE MADE FROM MASTER, TECHNICAL AND STAFF SERGEANTS OF THE REGULAR MARINE CORPS. SUBSECTION (F) OF SECTION 5596 DECLARES EXPRESSLY THAT SUCH APPOINTMENTS DO NOT CHANGE THE PERMANENT STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS AND BENEFITS. IN ORDER TO MEET THE STATUTORY REQUIREMENTS FOR APPOINTMENT AS A TEMPORARY OFFICER, A MEMBER MUST HAVE AN ENLISTED STATUS OF APPROPRIATE PAY GRADE. THIS KRUEGER HAD AND TO VIEW THE CIRCUMSTANCE OF HIS ENTRANCE ON ACTIVE DUTY AS A TEMPORARY OFFICER APPOINTED UNDER SUBSECTION 5596 (B) ON THE SAME DAY HIS EXTENSION OF ENLISTMENT OTHERWISE BECAME EFFECTIVE AS OPERATING IN ANY WAY TO AFFECT HIS PERMANENT STATUS AS AN ENLISTED MAN CLEARLY WOULD RESULT IN THE VERY SITUATION WHICH SUBSECTION 5596 (F) DECLARES SHALL NOT RESULT FROM HIS TEMPORARY APPOINTMENT. ACCORDINGLY, WE DO NOT BELIEVE THAT KRUEGER'S ENTRANCE ON ACTIVE DUTY AS AN OFFICER ON THE SAME DAY THE EXTENSION OF HIS ENLISTMENT BECAME EFFECTIVE HAD ANY EFFECT UPON THE VALIDITY OF THE EXTENSION, OR OPERATED IN ANY WAY TO DISTURB HIS PERMANENT ENLISTED STATUS.

PARAGRAPH 044170 OF THE NAVY COMPTROLLER MANUAL DEFINES THE TERM "DISCHARGE.' IT PROVIDES THAT AN ENLISTED MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO VOLUNTARILY FIRST EXTENDS AN ENLISTMENT, REGARDLESS OF THE DURATION, AS AUTHORIZED UNDER 10 U.S.C. 5539, IS ENTITLED TO LUMP-SUM SETTLEMENT FOR THE BALANCE OF UNUSED LEAVE, AND SUCH MEMBER WILL BE CONSIDERED ,DISCHARGED" FOR THE PURPOSE OF THAT SECTION ON THE DATE HIS ENLISTMENT WOULD HAVE EXPIRED HAD IT NOT BEEN EXTENDED. PARAGRAPH M4158-3, JOINT TRAVEL REGULATIONS PROVIDES THAT NAVY, MARINE CORPS AND COAST GUARD MEMBERS WHO EXTEND ENLISTMENT FOR AT LEAST 2 YEARS WILL BE ENTITLED TO MILEAGE, IF OTHERWISE PAYABLE, UPON COMPLETION OF ORIGINAL TERM OF SERVICE.

ACCORDINGLY, IN ANSWER TO QUESTION (A), KRUEGER'S ENTITLEMENTS ARE THOSE OF AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS WHO ENTERS INTO AN EXTENSION OF ENLISTMENT FOR 2 YEARS AT THE EXPIRATION OF HIS REGULAR ENLISTMENT AND HE MAY BE PAID TRAVEL ALLOWANCES AND FOR HIS UNUSED ACCRUED LEAVE AS UPON DISCHARGE ON THAT BASIS. 42 COMP. GEN. 447.

CONCERNING KRUEGER'S ENTITLEMENT TO REENLISTMENT BONUS, THE REENLISTMENT BONUS IS PAID FOR AN ENLISTED MAN'S AGREEMENT TO SERVE THE FULL TERM FOR WHICH HE REENLISTS. HIS ENTRANCE ON ACTIVE DUTY AS AN OFFICER COULD PREVENT HIM FROM PERFORMING ANY ENLISTED DUTY DURING THE PERIOD OF HIS ENLISTMENT EXTENSION. HOWEVER, AS NOTED ABOVE, SUBSECTION (F) OF 10 U.S.C. 5596 PROVIDES THAT TEMPORARY APPOINTMENTS UNDER THAT SECTION DO NOT CHANGE THE PERMANENT STATUS OF MEMBERS SO APPOINTED OR ABRIDGE THEIR RIGHTS OR BENEFITS. AND, UPON TERMINATION OF KRUEGER'S STATUS AS A TEMPORARY OFFICER, WHICH COULD BE EFFECTED AT ANY TIME AT THE CONVENIENCE OF THE GOVERNMENT, HE COULD BE REQUIRED TO SERVE OUT THE TERM OF HIS ENLISTMENT AS EXTENDED. 35 COMP. GEN. 664.