B-123729, AUG. 17, 1955

B-123729: Aug 17, 1955

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WERE DISCHARGED ON MAY 1. FOR TWO YEARS AND WERE DISCHARGED ON MAY 1. YOU WERE DISCHARGED TO ACCEPT AN APPOINTMENT AS A SECOND LIEUTENANT. YOU WERE CREDITED WITH PAY AND ALLOWANCES INCIDENT TO YOUR DISCHARGE ON MAY 28. FOR 50 DAYS' UNUSED LEAVE BUT THE AMOUNT CREDITED WAS SUBSEQUENTLY CHECKED AGAINST YOUR PAY. A MEMBER WHO IS DISCHARGED "FOR THE PURPOSE OF ACCEPTING A COMMISSION OR WARRANT OR ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED ORCES" IS NOT ENTITLED TO BE COMPENSATED FOR UNUSED ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF DISCHARGE. IS REQUIRED TO CARRY SUCH UNUSED LEAVE FORWARD TO HIS NEW STATUS IN THE SAME BRANCH OF THE ARMED FORCES. WHICH WOULD OTHERWISE HAVE EXPIRED ON MAY 1.

B-123729, AUG. 17, 1955

TO CAPTAIN HERBERT O. SMITH, USMC, 053105:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE COMMANDANT, UNITED STATES MARINE CORPS, YOUR LETTER OF NOVEMBER 18, 1954, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 27, 1954, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF CHECK AGE OF $465 REPRESENTING AN ERRONEOUS CREDIT FOR 50 DAYS' LUMP- SUM LEAVE UPON YOUR DISCHARGE AS A MASTER SERGEANT ON MAY 28, 1951.

THE RECORD SHOWS THAT YOU ENLISTED IN THE U.S. MARINE CORPS RESERVE ON FEBRUARY 5, 1943, AND WERE DISCHARGED ON MAY 1, 1946; THAT YOU ENLISTED IN THE U.S. MARINE CORPS ON MAY 2, 1946, FOR TWO YEARS AND WERE DISCHARGED ON MAY 1, 1948, AND THAT ON MAY 2, 1948, YOU REENLISTED FOR THREE YEARS. MAY 28, 1951, YOU WERE DISCHARGED TO ACCEPT AN APPOINTMENT AS A SECOND LIEUTENANT, U.S. MARINE CORPS RESERVE, ON MAY 29, 1951. YOU WERE CREDITED WITH PAY AND ALLOWANCES INCIDENT TO YOUR DISCHARGE ON MAY 28, 1951, FOR 50 DAYS' UNUSED LEAVE BUT THE AMOUNT CREDITED WAS SUBSEQUENTLY CHECKED AGAINST YOUR PAY.

UNDER SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, A MEMBER WHO IS DISCHARGED "FOR THE PURPOSE OF ACCEPTING A COMMISSION OR WARRANT OR ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED ORCES" IS NOT ENTITLED TO BE COMPENSATED FOR UNUSED ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF DISCHARGE, BUT IS REQUIRED TO CARRY SUCH UNUSED LEAVE FORWARD TO HIS NEW STATUS IN THE SAME BRANCH OF THE ARMED FORCES.

THE ACT OF JULY 27, 1950, 64 STAT. 379, AUTHORIZED THE PRESIDENT TO EXTEND ALL ENLISTMENTS IN THE U.S. MARINE CORPS FOR A PERIOD OF NOT TO EXCEED 12 MONTHS. EXECUTIVE ORDER NO. 10145, DATED JULY 27, 1950, PROMULGATED PURSUANT TO SUCH ACT, EXTENDED FOR A PERIOD OF 12 MONTHS "ALL ENLISTMENTS" IN THE U.S. MARINE CORPS WHICH WOULD "EXPIRE AT ANY TIME AFTER THE DATE OF THIS ORDER AND PRIOR TO JULY 9, 1951.' IN ACCORDANCE WITH THE FOREGOING, YOUR ENLISTMENT OF MAY 2, 1948, WHICH WOULD OTHERWISE HAVE EXPIRED ON MAY 1, 1951, WAS EXTENDED FOR A PERIOD OF 12 MONTHS. WITH YOUR REQUEST FOR A REVIEW OF YOUR CLAIM YOU SUBMITTED STATEMENTS TO THE EFFECT THAT YOU ATTEMPTED TO REENLIST ON MAY 2, 1951. THE RECORD SHOWS, HOWEVER, THAT YOU DID NOT REENLIST BUT THAT THE ENLISTMENT IN WHICH YOU WERE THEN SERVING WAS ACTUALLY EXTENDED AUTOMATICALLY BY OPERATION OF LAW UNTIL YOUR DISCHARGE ON MAY 28, 1951, TO ACCEPT A COMMISSION. SINCE YOU WERE NOT DISCHARGED AND REENLISTED AT THE NORMAL EXPIRATION DATE OF YOUR ENLISTMENT, YOUR REQUEST TO BE REENLISTED CONSTITUTES NO LEGAL BASIS FOR PAYMENT FOR YOUR ACCRUED LEAVE AT THAT TIME, AND UNDER THE EXPRESS PROVISIONS OF SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT, A CASH SETTLEMENT FOR UNUSED LEAVE TO YOUR CREDIT UPON DISCHARGE AS AN ENLISTED MEMBER FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT AS A SECOND LIEUTENANT IS PROHIBITED. SEE 30 COMP. GEN. 194. ACCORDINGLY, THE SETTLEMENT OF AUGUST 27, 1954, WAS PROPER AND IS SUSTAINED.

THE HONORABLE DISCHARGE CERTIFICATE DATED MAY 28, 1951, SUBMITTED WITH YOUR CLAIM IS ENCLOSED.