B-151309, AUG. 21, 1963, 43 COMP. GEN. 176

B-151309, AUG. 21, 1963, 43 COMP. GEN. 176

PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - CONCURRENT ENLISTED REGULAR SERVICE. PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - CONCURRENT ENLISTED REGULAR SERVICE. PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - CONCURRENT ENLISTED RESERVE SERVICE. PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - CONCURRENT ENLISTED RESERVE SERVICE. PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - CONCURRENT ENLISTED RESERVE SERVICE AN ENLISTED MEMBER OF THE NAVY WHO DID NOT RECEIVE A FORMAL DISCHARGE WHEN HE ACCEPTED AN APPOINTMENT AS A MIDSHIPMAN AT THE NAVAL ACADEMY ON JUNE 25, 1956--- THE DATE OF APPROVAL OF AN ACT CONTINUING ENLISTMENT CONTRACTS BY REASON OF ACADEMY APPOINTMENTS--- IS NOT CONSIDERED TO HAVE ACCEPTED AN APPOINTMENT AFTER THE DATE OF THE ACT TO COME WITHIN ITS PROVISIONS (10 U.S.C. 971) BUT MUST BE REGARDED AS HAVING BEEN DISCHARGED FROM HIS ENLISTED STATUS UPON ACCEPTANCE OF THE MIDSHIPMAN APPOINTMENT EVEN THOUGH A FORMAL DISCHARGE WAS NOT ISSUED. AN ENLISTED MEMBER OF THE NAVY WHO DID NOT RECEIVE A FORMAL DISCHARGE WHEN HE ACCEPTED AN APPOINTMENT AT THE NAVAL ACADEMY AND WHO, WHEN DISCHARGED BECAUSE OF ACADEMIC DEFICIENCY, RESUMED HIS ENLISTED DUTIES UNTIL A SUBSEQUENT APPOINTMENT TO THE NAVAL ACADEMY IS CONSIDERED IN A DE FACTO ENLISTED STATUS DURING THE PERIOD BETWEEN DISCHARGE AND THE SECOND ACADEMY APPOINTMENT, IT BEING ASSUMED THAT THE RESUMPTION OF DUTIES AS AN ENLISTED MEMBER OF THE NAVY WAS DONE UPON OFFICIAL DIRECTION AND, THEREFORE, THE MEMBER MAY HAVE SUCH ENLISTED SERVICE CREDITED FOR BASIC PAY PURPOSES AS AN OFFICER. AN ENLISTED MEMBER IN THE NAVAL RESERVE WHO ACCEPTED AN APPOINTMENT AS A MIDSHIPMAN AT THE NAVAL ACADEMY ON JUNE 25, 1956--- THE DATE OF APPROVAL OF AN ACT CONTINUING ENLISTMENT CONTRACTS FOR MEMBERS ACCEPTING MIDSHIPMAN APPOINTMENTS THEREAFTER--- BUT WHO DID NOT RECEIVE A FORMAL DISCHARGE FROM THE NAVAL RESERVE IS REGARDED AS HAVING CONTINUED IN THE ENLISTED RESERVE SERVICE NOTWITHSTANDING THAT HE CONCURRENTLY HELD THE STATUS OF A CADET AND, THEREFORE, THE MEMBER MAY HAVE THE ENLISTED RESERVE SERVICE CREDITED UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, IN COMPUTATION OF SERVICE FOR PAY PURPOSES. AN ENLISTED MEMBER OF THE NAVY WHO ACCEPTS A PERMANENT MIDSHIPMAN APPOINTMENT IN THE NAVAL RESERVE OFFICERS' TRAINING CORPS ON JUNE 25, 1956 --- THE DATE OF APPROVAL OF AN ACT CONTINUING ENLISTMENT CONTRACTS FOR MEMBERS THEREAFTER ACCEPTING MIDSHIPMAN APPOINTMENTS--- IS REQUIRED, UNDER AN ADMINISTRATIVE REGULATION BARRING MEMBERS OF THE REGULAR ARMED FORCES FROM ENROLLMENT AS STUDENTS IN NROTC WHILE RETAINING STATUS IN THE REGULAR SERVICE, TO HAVE THE ACCEPTANCE OF THE PERMANENT MIDSHIPMAN APPOINTMENT REGARDED AS VACATING THE EARLIER STATUS EVEN THOUGH FORMAL DISCHARGE PAPERS ARE NOT ISSUED. AN ENLISTED MEMBER OF THE NAVAL RESERVE WHO WITHOUT A FORMAL DISCHARGE ACCEPTS AN APPOINTMENT AS A MIDSHIPMAN IN THE NAVAL RESERVE OFFICERS' TRAINING CORPS ON OR BEFORE JUNE 25, 1956--- THE DATE OF APPROVAL OF AN ACT CONTINUING ENLISTMENT CONTRACTS FOR MEMBERS THEREAFTER ACCEPTING MIDSHIPMAN APPOINTMENTS--- COMES UNDER THE ADMINISTRATIVE REGULATION THAT BARS RESERVE MEMBERS AS WELL AS REGULAR MEMBERS FROM ELIGIBILITY FOR ENROLLMENT IN THE NROTC WHILE RETAINING HIS FORMER STATUS AND, THEREFORE, RESERVE MIDSHIPMAN SERVICE IS NOT CREDITABLE FOR BASIC PAY PURPOSES AS AN OFFICER.

TO THE SECRETARY OF THE NAVY, AUGUST 21, 1963:

REFERENCE IS MADE TO LETTER OF APRIL 11, 1963, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING A DECISION ON FIVE SPECIFIC QUESTIONS CONCERNING THE CREDITING OF SERVICE FOR PAY PURPOSES IN THE CASE OF CERTAIN REGULAR AND RESERVE ENLISTED MEMBERS WHO WERE APPOINTED MIDSHIPMEN AT THE U.S. NAVAL ACADEMY OR IN THE NAVAL RESERVE OFFICERS TRAINING CORPS ON JUNE 25, 1956, THE DATE OF APPROVAL OF PUBLIC LAW 614, 84TH CONGRESS, 70 STAT. 333, 50 U.S.C. 1411 (1952 ., SUPP. V). THIS REQUEST HAS BEEN ASSIGNED SUBMISSION NUMBER SS-N 701 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. THE ENCLOSURES WITH THE LETTER ARE A LETTER DATED FEBRUARY 1, 1963, FROM THE CHIEF OF NAVAL PERSONNEL TO THE JUDGE ADVOCATE GENERAL, AND AN ENDORSEMENT THEREON DATED APRIL 10, 1963, FROM THE JUDGE ADVOCATE GENERAL TO THE SECRETARY OF THE NAVY.

THE BASIC CORRESPONDENCE DESCRIBES AND CITES THE CASE OF ENSIGN DANA P. FRENCH, JR., U.S. NAVY, AS REPRESENTATIVE OF THE TYPES OF CASES ABOUT WHICH THERE IS DOUBT. THE CIRCUMSTANCES ARE STATED AS FOLLOWS:

ENS DANA P. FRENCH, JR., USN, 647548/1100 FIRST ENLISTED IN THE U.S. NAVY ON 28 JUNE 1955 TO SERVE DURING MINORITY UNTIL 6 NOVEMBER 1958; ACCEPTED APPOINTMENT TO THE NAVAL ACADEMY ON 25 JUNE 1956 (WITHOUT TERMINATION OF ENLISTED STATUS); DISCHARGED FROM THE U.S. NAVAL ACADEMY BECAUSE OF ACADEMIC DEFICIENCY EFFECTIVE 4 FEBRUARY 1957 AND RESUMED HIS ENLISTED STATUS AS SA, USN; ACCEPTED APPOINTMENT TO THE NAVAL ACADEMY ON 12 AUGUST 1957; DISCHARGED FROM ENLISTED STATUS FOR THE CONVENIENCE OF THE GOVERNMENT ON 6 JUNE 1961 TO ACCEPT APPOINTMENT AS ENSIGN, USN ON 7 JUNE 1961.

THE FIVE QUESTIONS PRESENTED ARE AS FOLLOWS:

QUES. 1. SHOULD THE OFFICER'S ENLISTED STATUS HAVE BEEN TERMINATED BY DISCHARGE EFFECTIVE 24 JUNE 1956 INCIDENT TO HIS APPOINTMENT TO THE NAVAL ACADEMY ON 25 JUNE 1956?

QUES. 2 IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE, WOULD THE PERIOD 5 FEBRUARY 1957 TO 11 AUGUST 1957 BE CONSIDERED DE FACTO ENLISTED SERVICE AND, AS SUCH, BE CREDITABLE FOR BASIC PAY PURPOSES AS AN OFFICER?

QUES. 3 IN VIEW OF THE PROVISIONS OF 10 U.S.C. 971 CONCERNING APPOINTMENTS TO THE NAVAL ACADEMY ACCEPTED AFTER 25 JUNE 1956, IF THE ANSWER TO QUESTION 1 IS NEGATIVE, MAY THE CONTINUED ENLISTED STATUS AFTER APPOINTMENT TO THE NAVAL ACADEMY ON 25 JUNE 1956 BE CREDITED FOR BASIC PAY PURPOSES AS AN OFFICER?

QUES. 4 WOULD THE ANSWERS BE THE SAME AS IN THIS CASE IF FRENCH HAD ENLISTED ON 28 JUNE 1955 IN THE NAVAL RESERVE INSTEAD OF THE REGULAR NAVY?

QUES. 5 WOULD THE ANSWERS BE THE SAME IF FRENCH HAD BEEN APPOINTED AS MIDSHIPMAN, U.S. NAVAL RESERVE (NROTC) ON 25 JUNE 1956 INSTEAD OF MIDSHIPMAN, U.S. NAVY (NAVAL ACADEMY/?

ARTICLE C-10316 (1) (C) OF BUREAU OF NAVAL PERSONNEL MANUAL, RELATING TO THE DISCHARGE OF ACTIVE DUTY ENLISTED PERSONNEL FOR THE CONVENIENCE OF THE GOVERNMENT, IN EFFECT ON JUNE 25, 1956, PROVIDED IN PERTINENT PART AS FOLLOWS:

(1) THE CHIEF OF NAVAL PERSONNEL MAY AUTHORIZE OR DIRECT THE DISCHARGE OF ENLISTED OR INDUCTED MEN * * * FOR CONVENIENCE OF THE GOVERNMENT FOR ANY ONE OF THE FOLLOWING REASONS:

(A) GENERAL DEMOBILIZATION, * * *.

(B) ACCEPTANCE OF A PERMANENT APPOINTMENT AS OFFICER IN ANY BRANCH OF THE ARMED SERVICES.

(C) ACCEPTANCE OF APPOINTMENT AS A CADET OR MIDSHIPMAN TO THE MILITARY, NAVAL, AIR FORCE OR COAST GUARD ACADEMY.

WHILE SECTION 1 OF THE ACT OF JUNE 25, 1956, CH. 439, 70 STAT. 333, REENACTED AND CODIFIED AS 10 U.S.C. 516, REFERRED TO ENLISTED MEMBERS OF THE ARMED FORCES WHO "HEREAFTER ACCEPT" APPOINTMENTS AS MIDSHIPMEN AT THE NAVAL ACADEMY, IT IS BELIEVED THAT THE ACT WAS NOT INTENDED TO COVER THE SITUATIONS OF MEMBERS WHO ACCEPTED APPOINTMENTS AS MIDSHIPMEN ON JUNE 25, 1956, THE DATE OF ENACTMENT. SEE 41 COMP. GEN. 578. THE APPOINTMENT REFERRED TO IN SECTION 1 WAS MORE DEFINITELY DESCRIBED IN SECTION 4 AS ONE MADE "AFTER THE DATE OF ENACTMENT OF THIS ACT.' AS SECTION 4 WAS CODIFIED IN 10 U.S.C. 971 BY SECTION 1 (20) OF THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-861, 72 STAT. 1442, THE APPOINTMENT IS REFERRED TO AS ONE ACCOMPLISHED AFTER JUNE 25, 1956. SECTION 34 (A) OF THE 1958 ACT, 72 STAT. 1568, STATED THE LEGISLATIVE INTENT OF RESTATING ,WITHOUT SUBSTANTIVE CHANGE" THE LAWS REPLACED BY THAT ACT.

THERE APPEARS TO BE NO BASIS FOR QUESTIONING THAT MIDSHIPMEN AT THE NAVAL ACADEMY ARE IN THE REGULAR ESTABLISHMENT OF THE NAVY AS DISTINGUISHED FROM THE RESERVE COMPONENTS. SEE UNITED STATES V. COOK, 128 U.S. 254 (1888); UNITED STATES V. BAKER, 125 U.S. 646 (1887); AND 29 COMP. GEN. 331. COMPARE BRAND, ET AL. V. UNITED STATES, 133 CT.CL. 115 (1955), AND TRAVIS V. UNITED STATES, 137 CT.CL. 148 (1956). IN THE BRAND CASE THE COURT STATED THAT "THE CADETS OF THE U.S. MILITARY ACADEMY HAVE ALWAYS BEEN REGARDED AS A PART OF THE REGULAR ARMY.' UPON ACCEPTANCE AND EXECUTION OF THE REQUIRED OATH OF OFFICE, MIDSHIPMEN AT THE NAVAL ACADEMY ARE ISSUED APPOINTMENTS AS MIDSHIPMEN IN THE UNITED STATES NAVY WHICH ARE SIGNED BY THE SECRETARY OF THE NAVY BY DIRECTION OF THE PRESIDENT. IT WAS STATED IN THE COOK CASE "THAT A MIDSHIPMAN IS AN OFFICER HAS BEEN UNDERSTOOD EVER SINCE THERE WAS A NAVY.' THE ATTORNEY GENERAL HAS STATED THAT IT IS NOT TO BE DOUBTED THAT A MIDSHIPMAN IS AN OFFICER, AND THAT THIS HAS BEEN AUTHORITATIVELY DECIDED RESPECTING UNDERGRADUATES AT THE NAVAL ACADEMY UNDER VARIOUS LAWS FOR THE BENEFIT OF OFFICERS OF THE NAVY. OP.ATTY.GEN. 579. SEE, ALSO, 15 COMP. DEC. 39.

THE QUESTION INVOLVED THEN IS WHETHER A PERSON CAN HOLD TWO GRADES IN THE REGULAR NAVY AT THE SAME TIME. AN ENLISTED MAN IN THE REGULAR NAVY CONTRACTS TO SERVE ON ACTIVE DUTY. IT WOULD BE MOST ANOMALOUS IF, AFTER AGREEING TO SO SERVE FOR A NUMBER OF YEARS, AN ENLISTED MAN COULD CONTINUE TO HOLD SUCH STATUS AFTER BEING RELEASED FROM ACTIVE DUTY AND ACCEPTING AN APPOINTMENT AS A MIDSHIPMAN AT THE NAVAL ACADEMY, IN THE ABSENCE OF A STATUTE SO PROVIDING. THE DEPARTMENT OF THE NAVY LONG HAS HELD THAT WHENEVER AN ENLISTED MAN OF THE REGULAR NAVY RECEIVES A PERMANENT APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR NAVY, THE APPOINTMENT OPERATES TO DISCHARGE HIM FROM HIS ENLISTED STATUS UNDER HONORABLE CONDITIONS. NAVY FILE MM-P14-5/P19-1 (260806) AUG. 24, 1926, CITED ON PAGE 100, LAWS RELATING TO THE NAVY, 1929 SUPPLEMENT, MELLING.

IT MAY BE OBSERVED AT THIS POINT THAT IN THE COMMITTEE HEARINGS CONCERNING THE ACT OF JUNE 25, 1956, ADMIRAL BOONE, TESTIFYING IN BEHALF OF THE DEPARTMENT OF THE NAVY AS TO THE NEED FOR THE LEGISLATION, STATED THAT:

* * * UNDER EXISTING LAW, ENLISTED PERSONNEL OF THE ARMED FORCES WHO ARE APPOINTED AS CADETS OR MIDSHIPMEN ARE DISCHARGED FROM ENLISTED STATUS IN ORDER TO ACCEPT SUCH AN APPOINTMENT. * * * (PAGE 5473. NO. 51 SUBCOMMITTEE HEARINGS ON H.R. 2106. H.R. SUBCOMMITTEE NO. 1 OF ARMED SERVICES COMMITTEE, JANUARY 23, 1956.)

PRIOR TO THE ABOVE ENACTMENT, IT APPEARS TO HAVE BEEN THE GENERAL PRACTICE TO DISCHARGE A REGULAR NAVY ENLISTED MEMBER FROM HIS ENLISTED STATUS BY REASON OF INCOMPATIBILITY BETWEEN THAT STATUS AND THE NEW STATUS WHICH COMMENCED UPON HIS ACCEPTANCE OF APPOINTMENT AS A MIDSHIPMAN, USN, AT THE NAVAL ACADEMY, NOTWITHSTANDING THE PERMISSIVE NATURE OF THE REGULATIONS.

IT IS OUR VIEW THAT IN THE SITUATION OF ENSIGN FRENCH CITED ABOVE, THE ACCEPTANCE OF THE APPOINTMENT ON JUNE 25, 1956, AS A MIDSHIPMAN AT THE NAVAL ACADEMY EFFECTED HIS DISCHARGE FROM HIS ENLISTED STATUS, NOTWITHSTANDING THE FACT THAT A FORMAL DISCHARGE WAS NOT ISSUED. QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

IN DECISION DATED MARCH 19, 1953, 32 COMP. GEN. 397, WE HELD, QUOTING THE SYLLABUS:

PERSON WHO ENLISTED IN MARINE CORPS RESERVE AND WAS DISCHARGED, WITHOUT HAVING PERFORMED ANY ACTIVE DUTY, BUT WHO, NOTWITHSTANDING SUCH DISCHARGE, WAS SUBSEQUENTLY ORDERED TO AND DID GO ON EXTENDED ACTIVE DUTY MAY BE CONSIDERED AS HAVING PERFORMED SUCH DUTY IN A DE FACTO STATUS AND IS ENTITLED, UPON SUBSEQUENT ENLISTMENT IN THE REGULAR MARINE CORPS, TO COUNT SUCH SERVICE IN COMPUTING HIS CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES.

ALTHOUGH THE RECITAL OF FACTS DOES NOT SO STATE, IT IS ASSUMED THAT THE RESUMPTION OF DUTIES AS AN ENLISTED MEMBER OF THE NAVY BY MR. FRENCH WAS DONE BY OFFICIAL DIRECTION. BASED ON THAT ASSUMPTION, QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION NO. 3 REQUIRES NO ANSWER IN VIEW OF THE AFFIRMATIVE ANSWER TO QUESTION NO. 1.

QUESTION NO. 4 IS ANSWERED IN THE NEGATIVE ON THE BASIS OF OUR DECISION OF MARCH 2, 1962, 41 COMP. GEN. 578, WHEREIN IT WAS HELD:

* * * HAVING ACCEPTED HIS APPOINTMENT ON JUNE 25, 1956, THE MEMBER WAS ENTITLED UNDER THE PROVISIONS OF SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233, TO BE CREDITED, IN COMPUTING HIS CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES, WITH THE FULL TIME OF HIS ENLISTED RESERVE SERVICE NOTWITHSTANDING THE FACT THAT HE CONCURRENTLY HELD THE STATUS OF CADET (SIC) AT THE U.S. NAVAL ACADEMY, THE PRINCIPLES OF THE DECISION OF JUNE 10, 1953, 32 COMP. GEN. 548, BEING APPLICABLE TO ENLISTED NAVAL RESERVE SERVICE. * * *.

SINCE QUESTION 4 IS ANSWERED IN THE NEGATIVE AND QUESTION 1 WAS ANSWERED IN THE AFFIRMATIVE, AN ANSWER IS BELIEVED NECESSARY TO QUESTION NO. 3 PREDICATED ON THE CHANGED FACTS. THE QUESTION PRESENTED AS A COROLLARY TO QUESTION 4 IS AS FOLLOWS:

IN VIEW OF THE PROVISIONS OF 10 U.S.C. 971 CONCERNING APPOINTMENTS TO THE NAVAL ACADEMY ACCEPTED AFTER 25 JUNE 1956, MAY THE CONTINUED ENLISTED STATUS OF A NAVAL RESERVIST AFTER APPOINTMENT TO THE NAVAL ACADEMY ON 25 JUNE 1956 BE CREDITED FOR BASIC PAY PURPOSES AS AN OFFICER?

THIS RESOLVES ITSELF INTO SUBSTANTIALLY THE SAME QUESTION AS NO. 4 AND IS ANSWERED BY THE DECISION OF MARCH 2, 1962, 41 COMP. GEN. 578.

QUESTION NO. 5 IS ANSWERED IN THE AFFIRMATIVE, EXCEPT AS IT RELATES TO QUESTION NO. 4. PARAGRAPH 305 (H), REGULATIONS FOR THE ADMINISTRATION AND TRAINING OF THE NAVAL RESERVE OFFICERS' TRAINING CORPS, 1952 AND 1956, BARRED ANY MEMBER OF THE REGULAR ARMED FORCES FROM ENROLLMENT AS A STUDENT (MIDSHIPMAN, USNR) IN THE NROTC WHILE RETAINING HIS STATUS IN THE OTHER ORGANIZATION. IN SUCH CIRCUMSTANCES, IT APPEARS THAT THE ACCEPTANCE OF A PERMANENT MIDSHIPMAN USNR APPOINTMENT (NROTC) WHILE HOLDING A PERMANENT REGULAR ENLISTED STATUS (PRIOR TO JUNE 26, 1956) VACATED THE EARLIER PERMANENT STATUS AND SERVED AS A DISCHARGE NOTWITHSTANDING THE FAILURE TO ISSUE FORMAL DISCHARGE DOCUMENTS. COMPARE B-144276, FEBRUARY 23, 1961, 40 COMP. GEN. 473.

AS TO ENLISTED RESERVISTS ACCEPTING APPOINTMENTS AS MIDSHIPMEN, U.S. NAVAL RESERVE (NROTC) ON OR BEFORE JUNE 25, 1956, SEE 40 COMP. GEN. 473, AND PARAGRAPH 305 (H), REGULATIONS FOR THE ADMINISTRATION AND TRAINING OF THE NAVAL RESERVE OFFICERS' TRAINING CORPS, 1952 AND 1956. SUCH REGULATIONS BARRED A MEMBER OF A RESERVE COMPONENT, AS WELL AS A MEMBER OF A REGULAR COMPONENT, FROM ELIGIBILITY FOR ENROLLMENT AS A STUDENT (MIDSHIPMAN, USNR) IN THE NROTC, WHILE RETAINING HIS STATUS IN THE OTHER ORGANIZATION. IN THE ABSENCE OF SUCH STATUS, THE TIME SERVED AS A NAVAL RESERVE MIDSHIPMAN (NROTC) IS NOT CREDITABLE FOR BASIC PAY PURPOSES AS AN OFFICER. COMPARE B-138442, APRIL 22, 1959.