B-118973, JUN 14, 1954

B-118973: Jun 14, 1954

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IS ENTITLED TO MILEAGE AND CASH SETTLEMENT FOR ACCRUED LEAVE UNDER THE CIRCUMSTANCES STATED BELOW. THE ENLISTED MAN WAS RELEASED FROM ACTIVE DUTY EFFECTIVE NOVEMBER 6. IT IS STATED THEREIN THAT HE ELECTED TO BE PAID TRAVEL PAY TO MARYVILLE. PARAGRAPH 11 OF THOSE ORDERS STATES THAT HE VOLUNTEERED FOR ACTIVE DUTY UPON HIS TRANSFER TO THE ARMY RESERVE AND HE ACCORDINGLY WAS ORDERED TO ACTIVE DUTY AT HIS STATION WITH HIS CONSENT EFFECTIVE NOVEMBER 7. INFORMATION RECEIVED INFORMALLY FROM THE DEPARTMENT OF THE ARMY IS TO THE EFFECT THAT HE WAS INDUCTED INTO THE ARMY ON NOVEMBER 7. PERMITS THE PAYMENT OF MILEAGE UPON "RELIEF FROM ACTIVE DUTY" WHETHER OR NOT TRAVEL ACTUALLY IS PERFORMED. CASE 9(B) STATES THAT MILEAGE IS PAYABLE TO A "MEMBER OF THE RESERVE COMPONENTS ON EXTENDED ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM SUCH ACTIVE DUTY UNDER HONORABLE CONDITIONS.".

B-118973, JUN 14, 1954

PRECIS-UNAVAILABLE

FIRST LIEUTENANT O.L. HENDRY, FC; DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT OF FEBRUARY 17, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF FEBRUARY 4, 1954, REQUESTING DECISION AS TO WHETHER CORPORAL SAMUEL E. SIMERLY, ARMY RESERVE, IS ENTITLED TO MILEAGE AND CASH SETTLEMENT FOR ACCRUED LEAVE UNDER THE CIRCUMSTANCES STATED BELOW.

BY PARAGRAPH 10, SPECIAL ORDERS NO. 258, DATED NOVEMBER 5, 1953, HEADQUARTERS, 196TH REGIMENTAL COMBAT TEAM, APO 949, C/O POSTMASTER, SEATTLE, WASHINGTON, THE ENLISTED MAN WAS RELEASED FROM ACTIVE DUTY EFFECTIVE NOVEMBER 6, 1953, AND TRANSFERRED TO THE U.S. ARMY RESERVE, AND IT IS STATED THEREIN THAT HE ELECTED TO BE PAID TRAVEL PAY TO MARYVILLE, TENNESSEE. PARAGRAPH 11 OF THOSE ORDERS STATES THAT HE VOLUNTEERED FOR ACTIVE DUTY UPON HIS TRANSFER TO THE ARMY RESERVE AND HE ACCORDINGLY WAS ORDERED TO ACTIVE DUTY AT HIS STATION WITH HIS CONSENT EFFECTIVE NOVEMBER 7, 1953, UNDER THE PROVISIONS OF SECTION 233(D) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 490, FOR ONE YEAR. INFORMATION RECEIVED INFORMALLY FROM THE DEPARTMENT OF THE ARMY IS TO THE EFFECT THAT HE WAS INDUCTED INTO THE ARMY ON NOVEMBER 7, 1951, UNDER THE PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, 50 U.S.C. APPENDIX 431(A).

CASE 7, PARAGRAPH 4156, JOINT TRAVEL REGULATIONS, PERMITS THE PAYMENT OF MILEAGE UPON "RELIEF FROM ACTIVE DUTY" WHETHER OR NOT TRAVEL ACTUALLY IS PERFORMED. CASE 9(B) STATES THAT MILEAGE IS PAYABLE TO A "MEMBER OF THE RESERVE COMPONENTS ON EXTENDED ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM SUCH ACTIVE DUTY UNDER HONORABLE CONDITIONS." THE TERM "RESERVE COMPONENTS" IS DEFINED IN SECTION 102(K) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, AS INCLUDING MEMBERS WHO ARE "INDUCTED INTO THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES WITHOUT SPECIFICATION AS TO ANY COMPONENT THEREOF PURSUANT TO ANY PROVISION OF LAW." CORPORAL SIMERLY HAD SERVED THE PERIOD OF ACTIVE SERVICE REQUIRED OF HIM UNDER SECTION 4(B) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT AS AMENDED, 50 U.S.C. APPENDIX 454(B) AND HE WAS ENTITLED TO BE RELIEVED FROM ACTIVE DUTY ON NOVEMBER 6, 1953. WHILE HIS SITUATION HAS SOME POINTS OF SIMILARITY TO THAT OF AN ENLISTED MAN WHO EXTENDS A CURRENT CONTRACT OF ENLISTMENT HIS RIGHTS ARE NOT THE SAME BECAUSE HIS PERIOD OF SERVICE WAS TERMINATED, WHEREAS AN EXTENSION OF ENLISTMENT DOES NOT INVOLVE SUCH A TERMINATION.

CASE 19 OF SAID PARAGRAPH 4156 BARS PAYMENT OF MILEAGE TO A MEMBER WHO IS RELIEVED FROM ACTIVE DUTY "FOR THE EXPRESS PURPOSE OF CONTINUING IN THE SERVICE (OTHER THAN EXPIRATION OF ENLISTMENT) IN THE SAME OR IN ANOTHER STATUS." THE IMPLICATION SEEMS PLAIN THAT IF RELIEF FROM ACTIVE DUTY IS DUE TO EXPIRATION OF ENLISTMENT, AND THUS IS NOT FOR THE PURPOSE OF CONTINUING THE MEMBER IN THE SERVICE, MILEAGE IS PAYABLE IN AN OTHERWISE PROPER CASE. WHILE CORPORAL SIMERLY DID NOT ENTER INTO A CONTRACT OF ENLISTMENT IN THE ARMY, HE COMPLETED THE PERIOD HE WAS REQUIRED TO SERVE AND IT IS CLEAR THAT HE WAS NOT RELIEVED FROM ACTIVE DUTY FOR THE PURPOSE OF ORDERING HIM TO ACTIVE DUTY AS A MEMBER OF THE ARMY RESERVE. UNDER THE CIRCUMSTANCES, IT IS CONCLUDED THAT HE IS ENTITLED TO THE MILEAGE PROPERLY PAYABLE UNDER APPLICABLE REGULATIONS.

CONCERNING THE QUESTION OF WHETHER A CASH SETTLEMENT MAY BE MADE FOR THE ACCUMULATED LEAVE HE HAD TO HIS CREDIT ON NOVEMBER 6, 1953, SECTION 4(C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 61 STAT. 748, BARS SUCH CASH SETTLEMENT WHEN THE MEMBER CONCERNED IS "DISCHARGED FOR THE PURPOSE OF ACCEPTING A COMMISSION OR WARRANT OR ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES." THE TERM "DISCHARGE" IS DEFINED IN SECTION 2(B) OF THAT ACT AS INCLUDING A "SEPARATION OR RELEASE FROM ACTIVE DUTY" UNDER HONORABLE CONDITIONS. IT DOES NOT APPEAR THAT, WHERE A MEMBER SERVES THE FULL PERIOD HE AGREED TO SERVE OR WAS OBLIGED TO SERVE, HIS RELIEF FROM ACTIVE DUTY CAN BE REGARDED AS BEING FOR THE PURPOSE OF CONTINUING IN THE SERVICE, EVEN THOUGH HE IS ORDERED TO ACTIVE DUTY WITH HIS CONSENT THE FOLLOWING DAY. UNDER SUCH CIRCUMSTANCES HIS RELIEF FROM ACTIVE DUTY IS FOR THE PURPOSE OF TERMINATING HIS PERIOD OF ACTIVE SERVICE AS FIXED BY LAW. IN CONSONANCE WITH THAT VIEW, PARAGRAPH 6A(6), SPECIAL REGULATIONS 35-1020-1, AUGUST 3, 1953, STATES THAT A NON REGULAR COMMISSIONED OR WARRANT OFFICER WHO IS RELIEVED FROM ACTIVE DUTY AT THE EXPIRATION OF A SPECIFIED PERIOD HE AGREED TO SERVE OR WAS OBLIGATED TO SERVE IS ENTITLED TO LUMP-SUM PAYMENT FOR ACCRUED LEAVE. TO THE SAME EFFECT IS SUBPARAGRAPH (3) OF SUCH REGULATIONS AS IT RELATES TO AN INDUCTEE WHO ENLISTS AT THE EXPIRATION OF THE PERIOD OF TIME HE WAS REQUIRED TO SERVE. NO SUBSTANTIAL DIFFERENCE IS PERCEIVED BETWEEN THE SITUATION THERE INVOLVED AND THAT OF CORPORAL SIMERLY. THE FACT THAT THE ONE ENLISTED IN THE REGULAR ARMY AND THAT THE OTHER VOLUNTEERED FOR ACTIVE DUTY IN THE RESERVE TO WHICH HE WAS REQUIRED TO BE TRANSFERRED UPON HIS RELEASE FROM ACTIVE DUTY AS AN INDUCTEE APPEARS TO BE IMMATERIAL.

ACCORDINGLY, PAYMENT ON THE MILITARY PAY ORDER SUBMITTED WITH YOUR LETTER IS AUTHORIZED IN ACCORDANCE WITH THE FOREGOING. SUCH ORDER IS RETURNED HEREWITH.