B-128903, SEP. 5, 1956

B-128903: Sep 5, 1956

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IT IS REPORTED THAT FOLLOWING HIS DISCHARGE FROM THE MARINE CORPS ON MAY 21. HE WAS APPOINTED TO THE RANK OF SECOND LIEUTENANT (TEMPORARY) UNDER THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF JULY 24. THAT SUCH TEMPORARY APPOINTMENT WAS AFFIRMED UNDER THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947. - WAS TERMINATED AND HE WAS DISCHARGED FOR THE PURPOSE OF ACCEPTING A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE REGULAR MARINE CORPS. HE WAS REAPPOINTED TO THE TEMPORARY RANK OF CAPTAIN. YOU REFER TO THREE OF OUR DECISIONS AS HAVING A POSSIBLE BEARING ON THE QUESTION WERE UNDER CONSIDERATION. THE PERSONS INVOLVED IN THE FIRST CASES WERE ENLISTED MEMBERS OF THE ARMY WHO WERE SERVING INVOLUNTARILY IN A 12 MONTHS' EXTENSION OF ENLISTMENT AND WHO WERE DISCHARGED FOR THE PURPOSE OF REENLISTING IN THE REGULAR ARMY.

B-128903, SEP. 5, 1956

TO LIEUTENANT C. H. SAMUELSON, SC, USN, DISBURSING OFFICER, HEADQUARTERS, UNITED STATES MARINE CORPS:

BY FIRST ENDORSEMENT OF AUGUST 6, 1956, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF JULY 26, 1956, SUBMITTING FOR ADVANCE DECISION A VOUCHER COVERING PAYMENT OF MILEAGE TO CAPTAIN JAMES A. TOOTLE, USMC, IN CONNECTION WITH THE TERMINATION OF HIS TEMPORARY APPOINTMENT AND DISCHARGE FROM THE MARINE CORPS ON MAY 22, 1956.

IT IS REPORTED THAT FOLLOWING HIS DISCHARGE FROM THE MARINE CORPS ON MAY 21, 1946, HE REENLISTED THE FOLLOWING DAY FOR A PERIOD OF THREE YEARS; THAT ON SEPTEMBER 29, 1946, HE WAS APPOINTED TO THE RANK OF SECOND LIEUTENANT (TEMPORARY) UNDER THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350A; THAT SUCH TEMPORARY APPOINTMENT WAS AFFIRMED UNDER THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 795; AND THAT ON MAY 22, 1956, HIS TEMPORARY APPOINTMENT AS A CAPTAIN--- TO WHICH RANK HE HAD PROGRESSED BY PERIODIC PROMOTIONS--- WAS TERMINATED AND HE WAS DISCHARGED FOR THE PURPOSE OF ACCEPTING A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE REGULAR MARINE CORPS. FOLLOWING ACCEPTANCE OF SUCH PERMANENT APPOINTMENT ON MAY 23, 1956, UNDER PROVISIONS OF THE ACT OF MAY 29, 1954, 68 STAT. 157, HE WAS REAPPOINTED TO THE TEMPORARY RANK OF CAPTAIN.

YOU REFER TO THREE OF OUR DECISIONS AS HAVING A POSSIBLE BEARING ON THE QUESTION WERE UNDER CONSIDERATION, 30 COMP. GEN. 531, 31 ID. 247 AND DECISION OF OCTOBER 22, 1946, B-60870. THE PERSONS INVOLVED IN THE FIRST CASES WERE ENLISTED MEMBERS OF THE ARMY WHO WERE SERVING INVOLUNTARILY IN A 12 MONTHS' EXTENSION OF ENLISTMENT AND WHO WERE DISCHARGED FOR THE PURPOSE OF REENLISTING IN THE REGULAR ARMY. IN THE OTHER TWO CASES THE PERSONS CONCERNED HELD A DUAL STATUS AS ENLISTED MAN AND OFFICER UNDER A TEMPORARY APPOINTMENT SIMILAR TO THE SITUATION OF CAPTAIN TOOTLE ON MAY 22, 1956. THESE LATTER TWO DECISIONS ARE NO LONGER FOR APPLICATION IN VIEW OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF DAY V. UNITED STATES, 123 C.CLS. 10, IN WHICH IT WAS HELD THAT THE MILEAGE ALLOWANCE PAYABLE IN CONNECTION WITH THE TERMINATION OF SUCH DUAL ENLISTED MAN- OFFICER STATUS, IS THAT WHICH ACCRUES TO AN OFFICER UPON HIS SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY. THE FACT THAT THE PERSON CONCERNED SIMULTANEOUSLY RECEIVED A DISCHARGE FROM HIS PERMANENT STATUS AS AN ENLISTED MAN, WAS NOT REGARDED AS OF ANY SIGNIFICANCE IN DETERMINING HIS RIGHTS IN SUCH CIRCUMSTANCES.

PARAGRAPH 4157-4, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF A MILEAGE ALLOWANCE IN CONNECTION WITH SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS, UNLESS THE SEPARATION OR RELEASE FROM ACTIVE DUTY IS EFFECTED AT THE "EXPIRATION OF ENLISTMENT OR PRESCRIBED TERM OF SERVICE.' IT IS DOUBTFUL THAT THE QUOTED LANGUAGE REFERS TO SERVICE OTHER THAN AS AN ENLISTED MAN, SINCE ONLY AN ENLISTED MAN ENLISTS FOR A TERM OF SERVICE AND THE WORDS "PRESCRIBED TERM OF SERVICE" MORE APTLY DESCRIBES THE SERVICE OF AN ENLISTED MAN THAN THAT OF AN OFFICER. CAPTAIN TOOTLE'S SERVICE AS AN OFFICER UNDER HIS TEMPORARY APPOINTMENT OF SEPTEMBER 29, 1946, AS AFFIRMED UNDER THE OFFICER PERSONNEL ACT OF 1947, WAS NOT FOR A PRESCRIBED TERM. SUCH APPOINTMENT WOULD HAVE TERMINATED ON DECEMBER 1, 1947, UNDER SECTION 302 (I) OF THAT ACT IF IT HAD NOT BEEN AFFIRMED, BUT AS SO AFFIRMED, IT HAD NO FIXED TERMINATION DATE.

IN THE CIRCUMSTANCES, AND IN LINE WITH THE DECISION IN THE DAY CASE, IT IS CONCLUDED THAT THE REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A MILEAGE ALLOWANCE WHERE A MEMBER IS SEPARATED FROM THE SERVICE FOR THE PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS, UNLESS HE IS THEN SERVING ON ACTIVE DUTY SOLELY IN AN ENLISTED STATUS--- AS DISTINGUISHED FROM A TEMPORARY OFFICER STATUS WITH PERMANENT RATING AS AN ENLISTED MAN--- AND THE SEPARATION IS ACCOMPLISHED AT THE EXPIRATION OF HIS ENLISTMENT OR PRESCRIBED TERM OF SERVICE.

ACCORDINGLY, NO RIGHT TO A MILEAGE ALLOWANCE ACCRUED TO CAPTAIN TOOTLE INCIDENT TO THE TERMINATION OF HIS TEMPORARY APPOINTMENT AND SEPARATION FROM THE SERVICE ON MAY 22, 1956, AND THE SUBMITTED VOUCHER WILL BE RETAINED HERE.