B-127169, JUN. 5, 1956

B-127169, JUN. 5, 1956

TO L. A. CAMPBELL, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

BY LETTER OF FEBRUARY 28, 1956, THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF JANUARY 9, 1956, REQUESTING AN ADVANCE DECISION WHETHER THE PAY ACCOUNTS OF RICHARD R. DOWDY, USNR, ROBERT D. FORNEY, USNR, AND EZRA G. FRENCH, JR., USNR, LEGALLY MAY BE CREDITED WITH PAY AND ALLOWANCES FROM JANUARY 14, 1955, THROUGH DIFFERENT DATES OF PURPORTED SEPARATION FROM ENLISTED STATUS IN THE U.S. NAVY IN FEBRUARY 1955, AUTHORIZED BY "MODIFICATION OF ORDERS AND ADMINISTRATIVE REMARKS.'

IT APPEARS THAT THE MEMBERS' ACTIVE DUTY AND STATUS IN THE REGULAR NAVY WAS TERMINATED ON JANUARY 13, 1955, AND THAT THEY WERE TRANSFERRED TO THE NAVAL RESERVE (INACTIVE DUTY) PURSUANT TO SECTION 4/D) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, 50 U.S.C. APP. 454/D), AND APPLICABLE REGULATIONS. WHILE IT IS NOT SHOWN THAT EACH OF THE ENLISTED MEN WAS DISCHARGED PRIOR TO THE EXPIRATION OF HIS TERM OF ENLISTMENT, IT IS CLEAR THAT AT LEAST ONE OF THEM (FRENCH) WAS SO DISCHARGED. IT IS STATED THAT EACH ENLISTED MAN WAS INJURED IN AN AUTOMOBILE ACCIDENT ON JANUARY 13, 1955, AFTER RECEIPT OF HIS DISCHARGE PAPERS, AND THAT ALL THREE OF THEM WERE RETURNED TO NAVAL JURISDICTION FOR HOSPITALIZATION BEFORE MIDNIGHT OF THAT DAY. LATER THE DISCHARGES WERE "CANCELLED" AND THEY WERE REPROCESSED FOR SEPARATION IN THE FOLLOWING MONTH PURSUANT TO INSTRUCTIONS RECEIVED FROM THE BUREAU OF NAVAL PERSONNEL.

THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY HELD THAT AN ACTIVE-DUTY STATUS TERMINATES ON THE DATE STATED IN A MEMBER'S ORDERS UNLESS SUCH ORDERS ARE AMENDED OR MODIFIED ON OR BEFORE THAT DATE SO AS TO POSTPONE OR CANCEL THE RELEASE FROM ACTIVE DUTY. SEE 27 COMP. GEN. 333 AND 33 COMP. GEN. 239. SINCE IT APPEARS THAT THE ORDERS AND DISCHARGES TERMINATING THE ENLISTED MEN'S ACTIVE DUTY AND STATUS IN THE REGULAR NAVY ON JANUARY 13, 1955, WERE NOT CANCELLED OR MODIFIED ON OR BEFORE THAT DATE, THEY WERE FULLY EXECUTED AND THE PURPORTED CANCELLATION OF SUCH ORDERS AND DISCHARGES AT A LATER DATE WAS WITHOUT EFFECT TO CONTINUE THE MEN IN AN ACTIVE-DUTY STATUS AFTER JANUARY 13, 1955. COMPARE 4 COMP. GEN. 773, 777; 27 COMP. GEN. 495.

YOU REFER TO ARTICLE C-10315 (1) (A) OF THE BUREAU OF NAVAL PERSONNEL MANUAL AS HAVING A BEARING ON THESE CLAIMS. SUCH REGULATIONS PROVIDE THAT THE TIME OF DISCHARGE OF AN ENLISTED PERSON SEPARATED BY REASON OF EXPIRATION OF ENLISTMENT, INCLUDING AN EARLY DISCHARGE GIVEN UNDER ARTICLE C-10317 ON A DATE WITHIN THREE MONTHS OF THE EXPIRATION DATE OF AN ENLISTMENT, TAKES EFFECT AT MIDNIGHT OF THE LAST DAY OF SERVICE UNDER THE CONTRACT FROM WHICH SUCH DISCHARGE IS BEING EFFECTED. IT WILL BE ASSUMED FOR PRESENT PURPOSES THAT EACH OF THE ENLISTED MEN HERE INVOLVED WAS GIVEN AN EARLY DISCHARGE UNDER ARTICLE C-10317 (1) (A). WHILE THE CITED REGULATIONS REGARD AN ENLISTED MAN AS CONTINUING IN THE SERVICE UNTIL MIDNIGHT OF HIS LAST DAY OF SERVICE, SUCH LAST DAY IS THE DAY ON WHICH HE IS DISCHARGED FROM THE SERVICE. THERE IS NOTHING IN SUCH REGULATIONS WHICH PURPORTS TO CONTINUE HIM IN THE SERVICE AFTER HIS DISCHARGE HAS BEEN EFFECTED, MERELY BECAUSE THE NAVY DECIDES TO HOSPITALIZE HIM FOR TREATMENT OF INJURIES RECEIVED AFTER RECEIPT OF HIS DISCHARGE PAPERS BUT PRIOR TO MIDNIGHT OF THE DAY HIS DISCHARGE BECOMES EFFECTIVE. NO DAY OF HOSPITALIZATION AFTER THAT DAY OF DISCHARGE IS A DAY OF SERVICE WITHIN THE MEANING OF SUCH REGULATIONS.

SINCE THE ACTIVE DUTY STATUS OF EACH ENLISTED MAN WAS TERMINATED ON JANUARY 13, 1955, NO RIGHT TO PAY AND ALLOWANCES ACCRUED TO THEM ON AND AFTER JANUARY 14, 1955. THE SUBMITTED QUESTION IS ANSWERED IN THE NEGATIVE.