B-115285, JULY 16, 1953, 33 COMP. GEN. 34

B-115285: Jul 16, 1953

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SERVED ON ACTIVE DUTY IN THE NAVAL RESERVE UNTIL ORIGINAL ENLISTMENT IN THE NAVAL RESERVE WOULD NORMALLY HAVE TERMINATED MAY BE CONSIDERED A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY FOR ENTITLEMENT TO TRAVEL ALLOWANCE INCIDENT TO RELEASE FROM ACTIVE RESERVE SERVICE. 1953: REFERENCE IS MADE TO LETTER OF MAY 15. AGAIN SERVED ON ACTIVE DUTY IN THE NAVAL RESERVE PRIOR TO THE TIME HIS ENLISTMENT THEREIN WOULD OTHERWISE NORMALLY HAVE EXPIRED IS ENTITLED TO (1) TRAVEL ALLOWANCE INCIDENT TO HIS RELEASE FROM THE NAVAL SERVICE. TO SERVE FOR 4 YEARS AND WAS IMMEDIATELY TRANSFERRED TO INACTIVE DUTY. WAS DISCHARGED THEREFROM ON DECEMBER 18. IN THE NAVAL RESERVE AS INVOLUNTARILY EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF ALNAV 72-50 NORMALLY WOULD HAVE EXPIRED ON MARCH 30.

B-115285, JULY 16, 1953, 33 COMP. GEN. 34

RESERVISTS - TRAVEL ALLOWANCE, UNUSED LEAVE, SERVICE CREDITS, MUSTERING OUT PAY, ETC. - ACTIVE DUTY AFTER TERMINATION OF REGULAR ENLISTMENT A NAVAL RESERVIST WHO ENLISTED IN THE REGULAR NAVY AND WHO, SUBSEQUENT TO DISCHARGE FROM THE REGULAR NAVY AND WITHOUT REENLISTING IN THE NAVAL RESERVE, SERVED ON ACTIVE DUTY IN THE NAVAL RESERVE UNTIL ORIGINAL ENLISTMENT IN THE NAVAL RESERVE WOULD NORMALLY HAVE TERMINATED MAY BE CONSIDERED A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY FOR ENTITLEMENT TO TRAVEL ALLOWANCE INCIDENT TO RELEASE FROM ACTIVE RESERVE SERVICE, FOR SETTLEMENT OF UNUSED LEAVE AT DATE OF RELEASE FROM ACTIVE DUTY, FOR CREDIT OF ACTIVE SERVICE IN THE RESERVE FOR FUTURE RETIREMENT, FOR TRANSPORTATION OF DEPENDENTS, AND FOR MUSTERING-OUT PAY.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF THE NAVY, JULY 16, 1953:

REFERENCE IS MADE TO LETTER OF MAY 15, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, REQUESTING A DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES DISCLOSED, A CERTAIN MEMBER OF THE NAVAL RESERVE WHO ENLISTED AND SERVED IN THE REGULAR NAVY AND WHO, SUBSEQUENT TO DISCHARGE FROM THE REGULAR NAVY AND WITHOUT REENLISTING IN THE NAVAL RESERVE, AGAIN SERVED ON ACTIVE DUTY IN THE NAVAL RESERVE PRIOR TO THE TIME HIS ENLISTMENT THEREIN WOULD OTHERWISE NORMALLY HAVE EXPIRED IS ENTITLED TO (1) TRAVEL ALLOWANCE INCIDENT TO HIS RELEASE FROM THE NAVAL SERVICE, (2) SETTLEMENT FOR UNUSED LEAVE AT DATE OF RELEASE FROM ACTIVE DUTY, (3) CREDIT FOR SUCH ACTIVE SERVICE IN THE NAVAL RESERVE FOR FUTURE RETIREMENT, (4) TRANSPORTATION OF DEPENDENTS, AND (5) MUSTERING OUT PAY.

THE MEMBER INVOLVED ENLISTED IN THE NAVAL RESERVE ON APRIL 1, 1947, TO SERVE FOR 4 YEARS AND WAS IMMEDIATELY TRANSFERRED TO INACTIVE DUTY. JUNE 2, 1947, HE ENLISTED IN THE REGULAR NAVY TO SERVE FOR 4 YEARS, BUT WAS DISCHARGED THEREFROM ON DECEMBER 18, 1947, BY REASON OF HARDSHIP. ENLISTMENTS OF APRIL 1, 1947, IN THE NAVAL RESERVE AS INVOLUNTARILY EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF ALNAV 72-50 NORMALLY WOULD HAVE EXPIRED ON MARCH 30, 1952.

SUBSEQUENT TO HIS DISCHARGE FROM THE REGULAR NAVY AND PRIOR TO HIS BEING ORDERED TO ACTIVE DUTY ON JULY 20, 1950, HE PERFORMED TRAINING DUTY IN THE NAVAL RESERVE WITH PAY AND ALLOWANCES ON THE FOLLOWING DATES: FEBRUARY 5 TO 18, 1948; NOVEMBER 10 TO 18, 1948; FEBRUARY 20 TO 26, 1948 (1949); APRIL 3 TO 16, 1949; JUNE 23 TO SEPTEMBER 30, 1949; JANUARY 24 TO FEBRUARY 11, 1950; AND JULY 9 TO 22, 1950. BY ORDERS STATED JULY 20, 1950, HE WAS ORDERED TO ACTIVE DUTY, REPORTING ON JULY 23, 1950.

IT APPEARS THAT THE NAVY DEPARTMENT CONSISTENTLY HAS VIEWED THE PROHIBITION CONTAINED IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AND PRIOR LEGISLATION, AGAINST A MEMBER OF THE NAVAL RESERVE BECOMING A MEMBER OF ANY OTHER MILITARY OR NAVAL ORGANIZATION EXCEPT THE NAVAL MILITIA, AS BARRING A MEMBER OF THE NAVAL RESERVE FROM BECOMING A MEMBER OF THE REGULAR NAVY AND AT THE SAME TIME RETAINING HIS STATUS AS A MEMBER OF THE NAVAL RESERVE. AND HENCE, SINCE THE NAVAL RESERVE AND THE REGULAR NAVY ARE UNDER THE JURISDICTION OF THE SAME AUTHORITIES, THE APPOINTMENT OR ENLISTMENT OF A MEMBER OF THE NAVAL RESERVE IN THE REGULAR NAVY HAS BEEN REGARDED AS TANTAMOUNT TO HIS DISCHARGE FROM THE NAVAL RESERVE. SEE 26 COMP. GEN. 455, 460.

IN 24 COMP. GEN. 175, IT WAS HELD THAT, WHILE A PERSON UNDER DISQUALIFICATION WHO ENLISTS IN THE MILITARY SERVICE DOES NOT, BY REMAINING IN THE SERVICE AFTER REMOVAL OF DISQUALIFICATION, RATIFY HIS PURPORTED CONTRACT OF ENLISTMENT IN THE STRICT SENSE OF THE WORD, ACTS OF REMAINING IN THE SERVICE AND RECEIVING PAY AND ALLOWANCES THEREFOR ARE EQUIVALENT TO ENLISTMENT IN THE REGULAR MANNER AFTER REMOVAL OF THE DISQUALIFICATION. SEE IN RE GRIMLEY, 137 U.S. 147; EX PARTE HUBBARD, 182 F. 76. SEE, ALSO, 19 COMP. DEC. 367, 371, WHEREIN IT WAS STATED:

* * * I HAVE TO ADVISE YOU THAT THE DATE FROM WHICH AN ENLISTED MAN OF THE MARINE CORPS IS ENTITLED TO BE PAID IS THE DATE UPON WHICH HE TAKES THE OATH OF ALLEGIANCE, EXCEPT IN THOSE RARE CASES WHERE IT IS AFFIRMATIVELY SHOWN THAT THE ENLISTMENT CONTRACT WAS COMPLETED AND THE MAN'S STATUS CHANGED FROM THAT OF A CIVILIAN TO THAT OF A SOLDIER BY SOME ACT OTHER THAN THE TAKING OF THE OATH, SUCH AS ACTUAL ENTRY UPON DUTY WITH THE KNOWLEDGE AND CONSENT OF THE PROPER AUTHORITIES, IN WHICH CASES PAYMENT SHOULD BE ALLOWED FROM THE DATE OF SUCH ACT REGARDLESS OF THE DATE OF APPLICATION.

AN ENLISTMENT IS A CONTRACT TO VOLUNTARILY SERVE THE GOVERNMENT AS A MEMBER OF ONE OF THE ARMED SERVICES, AND MAY BE IMPLIED AS WELL AS EXPRESSED. CONSTRUCTIVE ENLISTMENTS IN THE MILITARY SERVICE HAVE LONG BEEN RECOGNIZED. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-40, PP. 384-385, WHERE THE PRINCIPLE HAS BEEN SUMMARIZED AS FOLLOWS:

AN ENLISTMENT IN THE MILITARY SERVICE OF THE UNITED STATES MAY BE CONSTRUCTIVELY EFFECTED BY OPERATION OF LAW WHEN A PERSON OTHERWISE QUALIFIED TO ENLIST TENDERS HIS SERVICES AND THE GOVERNMENT ACCEPTS THEM WITHOUT CONDITION, EVEN THOUGH NO OATH OF ALLEGIANCE IS TAKEN. THE PERFORMANCE OF FULL MILITARY DUTY AS A SOLDIER UNDER SUCH CIRCUMSTANCES MAY BE BINDING AS AN IMPLIED CONTRACT OF ENLISTMENT.

CF. NAVY DEPARTMENT COURT-MARTIAL ORDER NO. 8-1949, P. 188. ALSO, IT MAY BE NOTED THAT THE COURTS HAVE RECOGNIZED A CONSTRUCTIVE INDUCTION, THAT IS, AN "INDUCTION THAT ARISES FROM THE ACTS OF THE INDUCTEE, AND IS BROUGHT ABOUT BY HIS DEMEANOR, ACTIVITIES, CONSENT AND REQUESTS.' MILLER V. COMMANDING OFFICER, CAMP BOWIE, TEXAS 57 F.1SUPP. 884, 886. THUS IN MAYBORN V.1HEFLEBOWER, 145 F.2D 864, THE COURT HELD THAT THE CONDUCT OF A SELECTEE IN VOLUNTARILY ACCEPTING THE BENEFITS AND ASSUMING THE OBLIGATIONS INCIDENT TO MEMBERSHIP IN THE ARMED FORCES, AND THE CONDUCT OF THE GOVERNMENT IN ACCEPTING HIS SERVICES, AS ONE HAVING BEEN INDUCTED, WERE SUCH AS TO CONSTITUTE A CONSTRUCTIVE INDUCTION. CF. 41 GEORGETOWN LAW JOURNAL 428-430.

IT APPEARS THAT THE MEMBER HERE INVOLVED SERVED ON TRAINING DUTY WITH PAY WITH THE NAVAL RESERVE FOR VARYING PERIODS OF TIME DURING THE YEARS, 1948, 1949, AND 1950, AFTER HIS DISCHARGE FROM THE REGULAR NAVY, AND THAT HE SERVED ON ACTIVE DUTY UNDER ORDERS TREATING HIM AS A MEMBER OF THE NAVAL RESERVE FROM JULY 23, 1950, TO APRIL 7, 1952. WITH RESPECT TO THE PERIOD FROM JULY 23, 1950, TO APRIL 7, 1952, THE CONCLUSION THAT HE WAS AN ENLISTED MEMBER OF THE NAVAL RESERVE APPEARS TO BE WARRANTED. HENCE, HE MAY BE CONSIDERED A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY DURING SUCH PERIOD FOR THE PURPOSES OF THE VARIOUS PAYMENTS AND BENEFITS MENTIONED IN THE FIRST PARAGRAPH HEREOF. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.