B-131444, JUL. 3, 1957

B-131444: Jul 3, 1957

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REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CREDIT THE PAY ACCOUNT OF CHIEF WARRANT OFFICER CEDRIC A. THE LETTER FURTHER STATED THAT THE ACTION WAS TAKEN BY REASON OF THE OFFICER HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF CAPTAIN AND HIS REQUEST "FOR REVERSION TO GRADE OF COMMISSIONED OFFICER" AS PROVIDED IN SECTION 312 (H) OF THE CITED STATUTE. FEVURLY WAS TEMPORARILY APPOINTED AS A WARRANT OFFICER ON OCTOBER 31. THAT HE WAS APPOINTED A SECOND LIEUTENANT ON JULY 5. THAT HE WAS PERMANENTLY APPOINTED AFIRST LIEUTENANT (LIMITED DUTY OFFICER CATEGORY) ON JUNE 26. FEVURLY STATES THAT THE ADMINISTRATIVE PROCEDURES IN TERMINATING HIS APPOINTMENT AS FIRST LIEUTENANT AND ACCEPTANCE OF HIS APPOINTMENT OF CHIEF WARRANT OFFICER ARE ESSENTIALLY A SEPARATION AND REENTRY IN THE SERVICE.

B-131444, JUL. 3, 1957

TO CAPTAIN L. W. HOPKINS, USMCR, DISBURSING OFFICER, COMMANDANT OF THE MARINE CORPS, HEADQUARTERS, UNITED STATES MARINE CORPS:

BY FIRST INDORSEMENT OF APRIL 4, 1957, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF JANUARY 16, 1957, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CREDIT THE PAY ACCOUNT OF CHIEF WARRANT OFFICER CEDRIC A. FEVURLY, 015963, U.S. MARINE CORPS, WITH MUSTERING-OUT PAY, COMPENSATION FOR UNUSED ACCRUED LEAVE, AND MILEAGE INCIDENT TO THE TERMINATION OF HIS PERMANENT APPOINTMENT, LIMITED DUTY OFFICER ON JUNE 30, 1956, AND REVERSION TO CHIEF WARRANT OFFICER STATUS ON JULY 1, 1956, IN THE CIRCUMSTANCES STATED.

THE RECORD SHOWS THAT BY LETTER DATED JUNE 26, 1956, THE COMMANDANT OF THE MARINE CORPS NOTIFIED MR. FEVURLY THAT IN ACCORDANCE WITH THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, HIS PERMANENT APPOINTMENT AS FIRST LIEUTENANT, LIMITED DUTY OFFICER, WOULD BE TERMINATED ON JUNE 30, 1956, AND HE WOULD REVERT TO CHIEF WARRANT OFFICER STATUS ON JULY 1, 1956. THE LETTER FURTHER STATED THAT THE ACTION WAS TAKEN BY REASON OF THE OFFICER HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF CAPTAIN AND HIS REQUEST "FOR REVERSION TO GRADE OF COMMISSIONED OFFICER" AS PROVIDED IN SECTION 312 (H) OF THE CITED STATUTE. THE COMMANDANT OF THE MARINE CORPS HAS FURNISHED US WITH CERTAIN ADDITIONAL INFORMATION SHOWING THAT WHILE SERVING IN AN ENLISTED STATUS MR. FEVURLY WAS TEMPORARILY APPOINTED AS A WARRANT OFFICER ON OCTOBER 31, 1942; THAT HE WAS APPOINTED A SECOND LIEUTENANT ON JULY 5, 1944, AND A FIRST LIEUTENANT ON FEBRUARY 15, 1946; AND THAT HE WAS PERMANENTLY APPOINTED AFIRST LIEUTENANT (LIMITED DUTY OFFICER CATEGORY) ON JUNE 26, 1950, TO RANK FROM JANUARY 1, 1950.

IN URGING PAYMENT OF HIS CLAIM, MR. FEVURLY STATES THAT THE ADMINISTRATIVE PROCEDURES IN TERMINATING HIS APPOINTMENT AS FIRST LIEUTENANT AND ACCEPTANCE OF HIS APPOINTMENT OF CHIEF WARRANT OFFICER ARE ESSENTIALLY A SEPARATION AND REENTRY IN THE SERVICE. HE FURTHER STATES THAT SINCE THE TERMINATION OF HIS COMMISSION AS A FIRST LIEUTENANT WAS BY OPERATION OF LAW AND NOT FOR THE PURPOSE OF IMMEDIATE REENTRY IN THE SERVICE, HIS CONTINUANCE IN THE SERVICE AS CHIEF WARRANT OFFICER WAS MERELY INCIDENTAL THERETO AND NOT THE REASON FOR SEPARATION.

THE REVERSION TO WARRANT GRADE IN MR. FEVURLY'S CASE IS BASED UPON THE PROVISIONS OF SECTION 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, 34 U.S.C. 410J (H/--- MADE APPLICABLE TO THE MARINE CORPS, 34 U.S.C. 626 (O/--- WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * LIEUTENANTS (JUNIOR GRADE) (FIRST LIEUTENANT U.S. MARINE CORPS), WHO SHALL HAVE TWICE FAILED OF SELECTION FOR PROMOTION TO * * * LIEUTENANT (CAPTAIN) * * * SHALL BE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY FAILED OF SUCH SELECTION THE SECOND TIME * * * AND PROVIDED FURTHER, THAT AN OFFICER DESIGNATED FOR LIMITED DUTY, INSTEAD OF SUCH SEPARATION FROM THE ACTIVE LIST, SHALL HAVE THE OPTION DESCRIBED IN SUBSECTION (F) OF THIS SECTION.'

SUBSECTION (F), 34 U.S.C. 410J (F), PROVIDES, IN PERTINENT PART, THAT:

"* * * AND IF HE HAD A PERMANENT RATING BELOW WARRANT OFFICER WHEN FIRST SO APPOINTED HE SHALL HAVE THE OPTION OF REVERTING TO THE GRADE AND STATUS HE WOULD HAVE HELD HAD HE NOT BEEN SO APPOINTED BUT HAD INSTEAD BEEN APPOINTED A WARRANT OFFICER, * * *"

UNDER THE PROVISIONS OF THE CITED STATUTE, AN OFFICER DESIGNATED FOR LIMITED DUTY WHO OTHERWISE WOULD HAVE BEEN SEPARATED FROM THE ACTIVE LIST BECAUSE HE TWICE FAILED OF SELECTION FOR PROMOTION, AND WHO HAD A PERMANENT RATING BELOW WARRANT OFFICER WHEN FIRST APPOINTED AN OFFICER, IS GIVEN AN OPTION OF "REVERTING" TO THE GRADE AND STATUS HE WOULD HAVE HELD HAD HE NOT BEEN SO APPOINTED BUT HAD INSTEAD BEEN APPOINTED A WARRANT OFFICER. WHILE THE OFFICER STATUS AS A LIMITED DUTY OFFICER IS TERMINATED BY OPERATION OF LAW, THE PROVISO IN THAT SUBSECTION CLEARLY SAVES TO THE OFFICER, BY EXERCISING THE OPTION, THE RIGHT TO CONTINUE IN THE SERVICE IN A DIFFERENT STATUS.

IN THE PRESENT CASE, MR. FEVURLY'S APPOINTMENT AS AN OFFICER TERMINATED ON JUNE 30, 1956, AND UNDER THE TERMS OF THE STATUTE HE REVERTED TO CHIEF WARRANT OFFICER STATUS ON JULY 1, 1956. BY THE EXERCISE OF THE OPTION TO CONTINUE IN THE SERVICE AS CHIEF WARRANT OFFICER, HE AVOIDED BEING SEPARATED FROM THE SERVICE AND IT IS OUR VIEW THAT SUCH A CHANGE WITHOUT A BREAK IN SERVICE WAS CONTEMPLATED BY SECTION 312 (F) OF THE CITED STATUTE.

SECTION 501 OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011, AUTHORIZES PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES, WITH CERTAIN EXCEPTIONS, WHO ARE "DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS," AND SECTION 503, 38 U.S.C. 1013, OF THE ACT PROVIDES THAT MUSTERING-OUT PAYMENT SHALL ACCRUE AND THE AMOUNTS THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR ULTIMATE RELIEF FROM ACTIVE SERVICE OR, AT THE OPTION OF THE MEMBER, AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES. SINCE MR. FEVURLY "REVERTED" TO A STATUS FIXED BY OPERATION OF LAW AND CONTINUED TO SERVE IN THAT STATUS, IT MUST BE CONCLUDED THAT HE WAS NOT DISCHARGED OR RELEASED WITHIN THE MEANING OF THE STATUTE SO AS TO ENTITLE HIM TO MUSTERING OUT PAY. COMPARE PARAGRAPH 78641-1, MARINE CORPS MANUAL. SEE, GENERALLY, OUR DECISION OF MARCH 13, 1957, 36 COMP. GEN. 645, TO THE SECRETARY OF DEFENSE.

UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31 (A/-39, A MEMBER OF THE ARMED FORCES IS ENTITLED TO COMPENSATION IN CASH FOR UNUSED ACCRUED LEAVE, NOT IN EXCESS OF 60 DAYS, TO HIS CREDIT AT THE TIME OF HIS "DISCHARGE" (AS SUCH TERM IS DEFINED IN THE ACT), EXCEPT THAT NO CASH SETTLEMENT IS AUTHORIZED TO ANY 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 FORCES, OR WHO ELECTS TO CARRY OVER HIS UNUSED ACCRUED LEAVE TO A NEW ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF DISCHARGE. THE TERM "DISCHARGE" AS APPLIED TO COMMISSIONED OR WARRANT OFFICERS IS DEFINED AS A ,SEPARATION OR RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS.' MR. FEVURLY EXERCISED THE OPTION TO REVERT TO THE GRADE OF CHIEF WARRANT OFFICER ON JULY 1, 1956, AND CONTINUE TO SERVE IN THAT GRADE. THE CHANGE IN HIS STATUS WHICH RESULTED FROM SUCH ACTION ON HIS PART MAY NOT BE CONSIDERED A SEPARATION OR RELEASE FROM ACTIVE DUTY WITHIN THE CONTEMPLATION OF THE TERM ,DISCHARGE" AS DEFINED IN THE ACT. IN THE CIRCUMSTANCES, HE WOULD NOT BE ENTITLED TO LUMP-SUM PAYMENT OF THE ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS REVERSION TO CHIEF WARRANT OFFICER ON JUNE 30, 1956. SEE, GENERALLY, 31 COMP. GEN. 388 AND 35 ID. 25. SEE, ALSO, PARAGRAPH 78601- 1A, MARINE CORPS MANUAL.

CONCERNING HIS RIGHT TO PAYMENT OF MILEAGE, 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. VIEW OF THE NATURE OF MR. FEVURLY'S CHANGE OF STATUS AS EXPLAINED ABOVE, NO RIGHT TO MILEAGE ALLOWANCE ACCRUED TO HIM INCIDENT TO HIS EXERCISE OF THE OPTION TO REVERT TO THE STATUS OF CHIEF WARRANT OFFICER ON JULY 1, 1956. COMPARE DECISION OF SEPTEMBER 5, 1956, B 128903, TO LIEUTENANT C. H. SAMUELSON, S.C., U.S.N., DISBURSING OFFICER.