B-149114, JULY 11, 1962, 42 COMP. GEN. 35

B-149114, JULY 11, 1962, 42 COMP. GEN. 35

MILITARY PERSONNEL - RESERVISTS - RELEASE FROM ACTIVE DUTY - RECALL WITHOUT BREAK IN SERVICE THE IMMEDIATE RECALL TO INVOLUNTARY ACTIVE DUTY OF NAVAL RESERVISTS WHO UPON COMPLETION OF A PRESCRIBED PERIOD OF SERVICE ARE RELEASED FROM ACTIVE DUTY MAY NOT DEFEAT THEIR RIGHT TO PAYMENT FOR ACCRUED UNUSED LEAVE AND TO MILEAGE ALLOWANCES WHICH ARE DUE MEMBERS OF THE UNIFORMED SERVICES RELEASED FROM ACTIVE DUTY AT THE EXPIRATION OF PRESCRIBED PERIODS OF SERVICE, EVEN THOUGH THERE WAS NO ACTUAL BREAK IN SERVICE, AND UNUSED LEAVE AND MILEAGE ALLOWANCE PAYMENTS ARE PROPER, NOTWITHSTANDING THAT SUCH BENEFITS WERE NOT PAYABLE TO RESERVISTS WHOSE PERIODS OF MILITARY SERVICE PRIOR TO JULY 1, 1962, WERE INVOLUNTARILY EXTENDED UNDER THE ACT OF AUGUST 1, 1961, 75 STAT. 242.

TO THE SECRETARY OF THE NAVY, JULY 11, 1962:

REFERENCE IS MADE TO LETTER OF JUNE 6, 1962, FROM THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF THE NAVY, ASSIGNED SUBMISSION NUMBER SS N- 655 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, WHEREIN A DECISION IS REQUESTED WHETHER LUMP-SUM PAYMENT FOR UNUSED LEAVE AND MILEAGE ALLOWANCE MAY BE PAID TO NAVAL RESERVISTS UPON THE PROLONGATION OF THEIR ACTIVE DUTY UNDER CERTAIN CIRCUMSTANCES.

THE ADMINISTRATIVE ASSISTANT POINTS OUT THAT SECTION 2 OF THE ACT OF AUGUST 1, 1961, PUBLIC LAW 87-117, 75 STAT. 242, PROVIDES THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW, UNTIL JULY 1, 1962, THE PRESIDENT MAY AUTHORIZE THE SECRETARY OF DEFENSE TO EXTEND THOSE ENLISTMENTS, PERIODS OF ACTIVE DUTY, PERIODS OF OBLIGATED SERVICE, OR OTHER MILITARY STATUS, IN ANY COMPONENT OF THE ARMED FORCES THAT EXPIRE BEFORE JULY 1, 1962, FOR NOT MORE THAN 12 MONTHS. THE QUESTION PRESENTED IS WHETHER, IN THE EVENT OF AN EMERGENCY AFTER EXPIRATION OF PUBLIC LAW 87 -117 REQUIRING THE RETENTION OF NAVAL RESERVISTS ON ACTIVE DUTY, THOSE RESERVISTS WHO DO NOT VOLUNTARILY EXTEND THEIR TERM OF SERVICE AND THEREFORE, ARE RELEASED FROM ACTIVE DUTY AND RECALLED IMMEDIATELY TO ACTIVE DUTY INVOLUNTARILY UNDER THE PROVISIONS OF 10 U.S.C. 672 (A) OR 10 U.S.C. 673 MAY BE PAID FOR UNUSED LEAVE AND MILEAGE ALLOWANCE INCIDENT TO THE DISCHARGE ALTHOUGH THERE IS NO ACTUAL BREAK IN THE SERVICE.

A MEMBER OF THE ARMED FORCES IS ENTITLED, UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (A/-39, TO COMPENSATION IN CASH FOR USED ACCRUED LEAVE (NOT IN EXCESS OF 60 DAYS) TO HIS CREDIT AT THE TIME OF HIS DISCHARGE, EXCEPT, INSOFAR AS HERE CONCERNED, NO CASH SETTLEMENT IS AUTHORIZED TO ANY MEMBER WHO IS DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF DISCHARGE. SEE 37 U.S.C. 33 (C). A DISCHARGE AT EXPIRATION OF A PRESCRIBED TERM OF SERVICE FOLLOWED BY REENLISTMENT IS NOT, HOWEVER, REGARDED AS A DISCHARGE FOR PURPOSE OF ENLISTMENT WITHIN THE MEANING OF THAT PROVISION OF LAW AND THE TERM "DISCHARGE" IS DEFINED IN THE ACT (37 U.S.C. 32) AS INCLUDING A RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS. ALSO, UNDER PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), A MEMBER RELIEVED FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS MAY BE PAID A MILEAGE ALLOWANCE WHEN THE RELEASE FROM ACTIVE DUTY IS AT THE EXPIRATION OF HIS PRESCRIBED TERM OF SERVICE.

THUS, A NAVAL RESERVIST IS ENTITLED UPON RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS AFTER COMPLETION OF HIS PRESCRIBED PERIOD OF ACTIVE SERVICE TO PAYMENT FOR HIS ACCRUED LEAVE AND MILEAGE ALLOWANCE AND WE DO NOT BELIEVE THAT HIS IMMEDIATE RECALL TO INVOLUNTARY ACTIVE DUTY UNDER THE PROVISIONS OF 10 U.S.C. 672 (A) OR 673 WITHOUT A BREAK IN SERVICE MAY BE APPLIED TO DEFEAT HIS ENTITLEMENT TO SUCH BENEFITS EVEN THOUGH THERE WOULD BE NO ENTITLEMENT TO THE BENEFITS UNDER AN INVOLUNTARY EXTENSION OF SERVICE SUCH AS WAS AUTHORIZED BY PUBLIC LAW 87-117. SEE 30 COMP. GEN. 103; ID. 531.