B-128883, SEPTEMBER 21, 1956, 36 COMP. GEN. 228

B-128883: Sep 21, 1956

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MILITARY PERSONNEL - RETIRED ENLISTED MEN RECALLED TO ACTIVE DUTY FOR PURPOSE OF COURT-MARTIAL AND DISHONORABLE DISCHARGE - PAY RIGHTS AFTER "RECALL" JUDICIALLY DETERMINED TO BE ILLEGAL TWO RETIRED NAVY ENLISTED MEN WHO WERE RECALLED TO ACTIVE DUTY AND LATER PERMITTED TO RETURN TO THEIR HOMES. UPON A DETERMINATION BY A UNITED STATES DISTRICT COURT THAT THEY WERE ILLEGALLY RECALLED TO ACTIVE DUTY. ARE TO BE REGARDED AS HAVING BEEN RELEASED "FROM ANY AND ALL ACTIVE DUTY STATUS" AND ARE NOT ENTITLED TO ACTIVE DUTY PAY AFTER THE COURT ORDER. THE MEMBERS ARE ENTITLED TO RETIRED PAY PROVIDED THEIR RIGHT THERETO HAS NOT OTHERWISE BEEN LOST. 1956: REFERENCE IS MADE TO YOUR LETTER OF MAY 15. THE QUESTION OF THE RIGHT OF THESE MEN TO RETIRED PAY ALSO IS INVOLVED IN THE RELATED FACTS.

B-128883, SEPTEMBER 21, 1956, 36 COMP. GEN. 228

MILITARY PERSONNEL - RETIRED ENLISTED MEN RECALLED TO ACTIVE DUTY FOR PURPOSE OF COURT-MARTIAL AND DISHONORABLE DISCHARGE - PAY RIGHTS AFTER "RECALL" JUDICIALLY DETERMINED TO BE ILLEGAL TWO RETIRED NAVY ENLISTED MEN WHO WERE RECALLED TO ACTIVE DUTY AND LATER PERMITTED TO RETURN TO THEIR HOMES, UPON A DETERMINATION BY A UNITED STATES DISTRICT COURT THAT THEY WERE ILLEGALLY RECALLED TO ACTIVE DUTY, ARE TO BE REGARDED AS HAVING BEEN RELEASED "FROM ANY AND ALL ACTIVE DUTY STATUS" AND ARE NOT ENTITLED TO ACTIVE DUTY PAY AFTER THE COURT ORDER, NOTWITHSTANDING THE ABSENCE OF WRITTEN ORDERS WHICH WOULD CANCEL OR TERMINATE THEIR ACTIVE DUTY STATUS; HOWEVER, ON THE DAY FOLLOWING THE COURT ORDER, THE MEMBERS ARE ENTITLED TO RETIRED PAY PROVIDED THEIR RIGHT THERETO HAS NOT OTHERWISE BEEN LOST.

TO UNITED STATES NAVY ACCOUNTS DISBURSING OFFICER, SEPTEMBER 21, 1956:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1956, CODE 43A/L16 RNA:1J, WITH ENCLOSURES, REQUESTING DECISION AS TO THE RIGHT OF TWO RETIRED ENLISTED MEN OF THE REGULAR NAVY, TO THE ACTIVE-DUTY PAY OF THEIR GRADES SUBSEQUENT TO MAY 8, 1956, IN THE CIRCUMSTANCES DISCLOSED. AS POINTED OUT IN AN INDORSEMENT DATED JULY 20, 1956, FROM THE COMPTROLLER OF THE NAVY, THE QUESTION OF THE RIGHT OF THESE MEN TO RETIRED PAY ALSO IS INVOLVED IN THE RELATED FACTS.

BY ORDERS DATED JANUARY 25, 1956, OF THE COMMANDANT, 13TH NAVAL DISTRICT, THESE RETIRED ENLISTED MEN WERE ORDERED, ON OR ABOUT JANUARY 31, 1956, WHEN RELEASED FROM A STATE PENAL INSTITUTION, TO ACTIVE DUTY IN THE UNITED STATES NAVY. IT APPEARS THAT THIS ACTION WAS TAKEN PURSUANT TO THE ACT OF MARCH 3, 1915, 36 STAT. 941, AS AMENDED, 34 U.S.C. 433, WHICH AUTHORIZES THE SECRETARY OF THE NAVY DURING CERTAIN PERIODS TO CALL ENLISTED MEN ON THE RETIRED LIST INTO ACTIVE SERVICE FOR SUCH DUTY AS THEY MAY BE ABLE TO PERFORM. SUBSEQUENT TO REPORTING FOR ACTIVE DUTY, THE RETIRED ENLISTED MEN EXECUTED, UNDER PROTEST, A WAIVER OF RETIRED PAY IN FAVOR OF ACTIVE- DUTY PAY AND IT IS UNDERSTOOD THAT THEY HAVE BEEN PAID THE ACTIVE-DUTY PAY OF THE GRADES FOR THE PERIOD FROM FEBRUARY 1 TO MAY 8, 1956.

ON MARCH 7, 1956, THESE RETIRED ENLISTED MEN WERE ORDERED TO RESTRICTED STATUS AND LIMITED TO THEIR BARRACKS AND MESS HALL. ON THAT DATE AND ON MARCH 12, 1956, RESPECTIVELY, THEY FILED IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION, PETITIONS FOR WRITS OF HABEAS CORPUS ALLEGING ILLEGAL RESTRAINT BY THE NAVY AND PRAYING FOR RELEASE FROM FURTHER CUSTODY AND DETENTION. BY ORDERS DATED MAY 8, 1946, OF THE DISTRICT COURT, HABEAS CORPUS PETITIONS WERE SUSTAINED. IN ONE OF THE CASES THE ORDER DIRECTED THE NAVAL AUTHORITIES "TO FORTHWITH RELEASE AND DISCHARGE SAID RELATOR FROM ANY AND ALL ACTIVE DUTY STATUS AND FURTHER RESTRAINT," AND THE ORDER IN THE OTHER CASE PROVIDED THAT SUCH AUTHORITIES "SHALL FORTHWITH RELEASE (--- --- --- ( FROM ACTIVE DUTY IN THE UNITED STATES NAVY.' IN A MEMORANDUM OPINION FILED IN SUPPORT OF ITS ORDERS THE COURT HELD THAT THE RETIRED ENLISTED MEN WERE ORDERED TO ACTIVE DUTY FOR THE PURPOSE OF COURT-MARTIAL AND DISHONORABLE DISCHARGE, A PURPOSE NOT CONTEMPLATED BY THE ACT OF MARCH 3, 1915, AS AMENDED, AND, THEREFORE, THAT THEY HAD BEEN UNLAWFULLY CALLED TO ACTIVE DUTY.

PURSUANT TO THE ORDERS OF THE DISTRICT COURT THE MEN WERE ALLOWED TO RETURN HOME. IT IS UNDERSTOOD THAT NO WRITTEN ORDER HAVE BEEN ISSUED BY NAVAL AUTHORITIES TO "CANCEL" OR TERMINATE THEIR ORDERS TO ACTIVE DUTY AND THAT CONSIDERATION IS BEING GIVEN TO APPEALING THE DECISION OF THE DISTRICT COURT.

NOTWITHSTANDING THE ABSENCE OF WRITTEN ORDERS TO THAT EFFECT, IT IS REASONABLE TO ASSUME THAT THE ACTION OF THE NAVAL AUTHORITIES IN ALLOWING THESE RETIRED ENLISTED MEN TO RETURN TO THEIR HOMES WAS INTENDED AS A FULL AND COMPLETE COMPLIANCE WITH THE ORDERS OF THE DISTRICT COURT AND, WITHIN THE CONTEMPLATION OF THE PAY STATUTES, A RELEASE FROM ACTIVE DUTY AND REVERSION TO AN INACTIVE STATUS ON THE RETIRED LIST. ON THAT BASIS THEY ARE TO BE REGARDED AS HAVING BEEN RELEASED "FROM ANY AND ALL ACTIVE DUTY STATUS" AND "FROM ACTIVE DUTY IN THE UNITED STATES NAVY" ON MAY 8, 1956. IN SUCH CIRCUMSTANCES THE MEN HAD NO STATUS AFTER THAT DATE WHICH COULD GIVE THEM A RIGHT TO ACTIVE DUTY PAY. IT FOLLOWS THAT, NOT BEING ENTITLED TO RECEIVE ACTIVE-DUTY PAY AFTER MAY 8, 1956, THE MEN ARE ENTITLED TO PAYMENT OF THEIR RETIRED PAY EFFECTIVE MAY 9, 1956, PROVIDED, OF COURSE, THAT THEY HAVE NOT LOST THEIR RIGHT TO RECEIVE THEIR RETIRED PAY UNDER SOME OTHER PROCEEDINGS OR ACTION IN THE CASE. IT IS ASSUMED THAT THE DISBURSING OFFICER WHO PAYS RETIRED PAY OF ENLISTED MEN OF THE NAVY WILL BE APPRISED OF THIS DECISION.