B-124207, OCTOBER 12, 1955, 35 COMP. GEN. 202

B-124207, OCTOBER 12, 1955, 35 COMP. GEN. 202

APPOINTMENTS - MILITARY, NAVAL, ETC., PERSONNEL - ACCEPTANCE OF ONE AS VACATING ANOTHER AN APPOINTMENT AS A CADET, U.S. COAST GUARD, IS AN APPOINTMENT IN A MILITARY OR NAVAL ORGANIZATION WHICH, UNDER SECTION 4 OF THE NAVAL RESERVE ACT OF 1925 AND UNDER SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, AUTOMATICALLY TERMINATES THE CADET'S PREEXISTING NAVAL RESERVE STATUS EVEN THOUGH AN HONORABLE DISCHARGE IS NOT ISSUED UNTIL LATER, AND THEREFORE THE MEMBER MAY NOT COUNT FOR PAY PURPOSES SERVICE IN THE NAVAL RESERVE SUBSEQUENT TO HIS APPOINTMENT AS A COAST GUARD CADET.

TO LIEUTENANT C. D. MILLER, UNITED STATES COAST GUARD, OCTOBER 12, 1955:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 1, 1955, ENCLOSING STATEMENTS OF SERVICE WHICH HAVE BEEN SUBMITTED TO SUBSTANTIATE A LENGTH OF SERVICE PAY INCREASE IN THE CASE OF COMMANDER ELMER A. CROCK, U.S. COAST GUARD. YOU REQUEST A DECISION--- ON THE BASIS OF THOSE STATEMENTS--- AS TO THE SERVICE WHICH MAY BE CREDITED TO THE OFFICER IN COMPUTING HIS CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES.

IT APPEARS THAT ON FEBRUARY 28, 1935, ELMER A. CROCK ENLISTED IN THE U.S. NAVAL RESERVE FOR FOUR YEARS. HE WAS APPOINTED A CADET, U.S. COAST GUARD, ON AUGUST 14, 1937. ON FEBRUARY 27, 1939, HE WAS ISSUED AN HONORABLE DISCHARGE FROM THE U.S. NAVAL RESERVE. HE EXECUTED OATH AS ENSIGN, U.S. COAST GUARD, ON MAY 19, 1941, AND HAS HAD CONTINUOUS COAST GUARD COMMISSIONED SERVICE SINCE THAT DATE.

YOU POINT OUT THAT COMMANDER CROCK WAS NOT DISCHARGED FROM THE NAVAL RESERVE UNTIL FEBRUARY 27, 1949, AND WHILE RECOGNIZING THAT HIS COAST GUARD CADET SERVICE, AS SUCH, MAY NOT BE CREDITED TO HIM AS SERVICE FOR PAY PURPOSES (29 COMP. GEN. 331; 30 COMP. GEN. 228) YOU PRESENT THE QUESTION WHETHER THE PERIOD FROM AUGUST 14, 1937, TO FEBRUARY 27, 1939, DURING WHICH HIS "SERVICE IN THE NAVAL RESERVE OVERLAPS HIS APPOINTMENT AND SERVICE AS A CADET," MAY BE CREDITED AS A PERIOD OF SERVICE IN COMPUTING HIS SERVICE FOR PAY PURPOSES.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081, AND SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, EACH CONTAINED A PROVISO AS FOLLOWS:

PROVIDED FURTHER, THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.

IN 26 COMP. GEN. 455, IT WAS HELD (QUOTING THE SYLLABUS):

IN VIEW OF THE PROHIBITION IN THE ACT OF AUGUST 29, 1916, AGAINST MEMBERS OF THE NAVAL RESERVE FORCE ACCEPTING EMPLOYMENT AS OFFICERS OR ENLISTED MEN IN ANY BRANCH OF THE MILITARY SERVICE, AND THAT IN SECTION 4 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, AGAINST MEMBERS OF THE NAVAL RESERVE BEING MEMBERS OF OTHER MILITARY OR NAVAL ORGANIZATIONS, THE APPOINTMENT OF RESERVISTS AS MIDSHIPMEN AT THE NAVAL ACADEMY TERMINATED THEIR RESERVE STATUS, SO THAT NO PERIOD AFTER SUCH APPOINTMENT MAY BE COUNTED AS RESERVE SERVICE UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FOR PAY PURPOSES. 23 COMP. GEN. 939 AND 25 ID. 655, DISTINGUISHED.

COMPARE 25 COMP. GEN. 241 AND 25 COMP. GEN. 313.

THE APPOINTMENT OF COMMANDER CROCK AS A CADET U.S. COAST GUARD, WAS AN APPOINTMENT IN A MILITARY OR NAVAL ORGANIZATION WHICH, UNDER THE STATUTORY PROVISIONS QUOTED THE PRINCIPLES OF THE DECISIONS CITED ABOVE, TERMINATED HIS STATUS IN THE NAVAL RESERVE ON THE DATE OF SUCH APPOINTMENT. ACCORDINGLY, AFTER THAT APPOINTMENT THERE WAS NO PERIOD OF SERVICE IN THE NAVAL RESERVE. THEREFORE, THE ONLY PERIOD OF NAVAL RESERVE SERVICE WHICH MAY BE COUNTED IN COMPUTING COMMANDER CROCK'S CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES IS THE PERIOD FROM FEBRUARY 28, 1935, DATE OF ENLISTMENT, THROUGH AUGUST 13, 1937, THE DATE PRIOR TO THE DATE OF HIS APPOINTMENT AS A CADET, U.S. COAST GUARD. SEE 32 COMP. GEN. 548, 550. IN OTHER WORDS, SINCE THERE WAS NO SERVICE IN THE U.S. NAVAL RESERVE DURING THE PERIOD FROM AUGUST 14, 1937, THROUGH FEBRUARY 27, 1939, THAT PERIOD MAY NOT BE INCLUDED IN THE COMPUTATION OF COMMANDER CROCK'S SERVICE FOR PAY PURPOSES. YOUR QUESTION IS ANSWERED ACCORDINGLY.

THE DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173--- CITED IN YOUR LETTER AS POSSIBLY INDICATING THE COMMANDER CROCK'S APPOINTMENT AS CADET WAS ILLEGAL AND THAT HE CONTINUED TO BE A MEMBER OF THE NAVAL RESERVE UNTIL FEBRUARY 27, 1939--- INVOLVED A NAVAL RESERVE OFFICER WHO ENLISTED IN THE TEXAS NATIONAL GUARD. IN THAT DECISION IT WAS HELD THAT SUCH ENLISTMENT, INVOLVING AN OFFICIAL STATUS UNDER STATE LAW, AS WELL AS FEDERAL LAW, DID NOT TERMINATE THE OFFICER'S STATUS AS A MEMBER OF THE NAVAL RESERVE. HOWEVER, AS POINTED OUT IN 25 COMP. GEN. 241, CITED ABOVE, THAT PARTICULAR PRINCIPLE DOES NOT APPLY WHERE BOTH OFFICES OR STATUSES ARE UNDER THE SAME APPOINTING POWER (THE PRESIDENT), AS IN THE PRESENT CASE, SO THAT THE APPOINTMENT TO THE SECOND OFFICE MAY BE VIEWED AS AN ACCEPTANCE OF RESIGNATION FROM THE FIRST OFFICE.