B-138082, JANUARY 29, 1959, 38 COMP. GEN. 523

B-138082: Jan 29, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - RETIRED ENLISTED MEMBERS - DISCHARGE EFFECT A DISCHARGE ISSUED TO AN ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY EVIDENCES SEPARATION FROM THE SERVICE AND TERMINATES THE RIGHT TO RETIRED PAY ON THE DAY THE DISCHARGE IS ISSUED. RETIRED ENLISTED MEMBERS OF THE REGULAR NAVY WHO WERE IN RECEIPT OF DISABILITY RETIRED PAY WHEN UNDESIRABLE DISCHARGES WERE ISSUED ARE NOT ENTITLED TO RECEIVE DISABILITY RETIRED PAY THEREAFTER. TWO OF THE MEN CONCERNED WERE RETIRED UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. ONE OF THEM WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 402 (B). BOTH WERE IN RECEIPT OF RETIRED PAY AT THE TIME THEY WERE CONVICTED SEPARATELY BY STATE COURTS AND SENTENCED TO BE IMPRISONED.

B-138082, JANUARY 29, 1959, 38 COMP. GEN. 523

MILITARY PERSONNEL - RETIRED ENLISTED MEMBERS - DISCHARGE EFFECT A DISCHARGE ISSUED TO AN ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY EVIDENCES SEPARATION FROM THE SERVICE AND TERMINATES THE RIGHT TO RETIRED PAY ON THE DAY THE DISCHARGE IS ISSUED. RETIRED ENLISTED MEMBERS OF THE REGULAR NAVY WHO WERE IN RECEIPT OF DISABILITY RETIRED PAY WHEN UNDESIRABLE DISCHARGES WERE ISSUED ARE NOT ENTITLED TO RECEIVE DISABILITY RETIRED PAY THEREAFTER, AND A SUBSEQUENT CHANGE IN THE CHARACTER OF THE DISCHARGE DOES NOT AFFECT THE MEMBER'S STATUS WITH RESPECT TO SEPARATION FROM THE SERVICE.

TO COMMANDER R. A. WILSON, DEPARTMENT OF THE NAVY, JANUARY 29, 1959:

BY SECOND ENDORSEMENT DATED DECEMBER 2, 1958, THE COMPTROLLER OF THE NAVY FORWARDED YOUR REQUEST FOR ADVANCE DECISION IN LETTER OF JULY 15, 1958, FILE REFERENCE XR:HA:25 L16-4/1, REGARDING THE RIGHT OF THREE ENLISTED MEN ON THE RETIRED LIST OF THE NAVY TO RECEIVE RETIRED PAY SUBSEQUENT TO THEIR DISCHARGE FROM THE NAVY. THE REQUEST HAS BEEN APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NUMBER DO-N-381.

TWO OF THE MEN CONCERNED WERE RETIRED UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272. ONE OF THEM WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 402 (B), 37 U.S.C. 272 (B), AND THE OTHER ON THE PERMANENT DISABILITY RETIRED LIST UNDER SECTION 402 (A), 37 U.S.C. 272 (A). BOTH WERE IN RECEIPT OF RETIRED PAY AT THE TIME THEY WERE CONVICTED SEPARATELY BY STATE COURTS AND SENTENCED TO BE IMPRISONED. THE BUREAU OF NAVAL PERSONNEL DIRECTED THAT THEY WERE TO BE TRIED BY GENERAL COURT-MARTIAL UPON RELEASE FROM STATE PRISON AND THAT THEY BE NOTIFIED THAT THEY COULD SUBMIT A SIGNED REQUEST FOR AN UNDESIRABLE DISCHARGE TO ESCAPE TRIAL BY GENERAL COURT-MARTIAL. THIS THEY BOTH DID AND UNDESIRABLE DISCHARGE CERTIFICATES, BY REASON OF MISCONDUCT, WERE ISSUED, ONE IN 1954, THE OTHER IN 1955. HOWEVER, PAYMENTS OF RETIRED PAY WERE NOT DISCONTINUED UNTIL FEBRUARY 1, 1958, BECAUSE THE NAVY FINANCE CENTER DID NOT RECEIVE NOTICES OF THEIR DISCHARGE UNTIL FEBRUARY 1958.

THE THIRD MAN HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE, CLASS F-4- C, AND RELEASED TO INACTIVE DUTY. ON JANUARY 1, 1940, HE WAS PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY. HE WAS RECALLED TO ACTIVE DUTY ON OCTOBER 26, 1942, AND WAS DISCHARGED JUNE 8, 1944, WITH A BAD CONDUCT DISCHARGE IN COMPLIANCE WITH THE SENTENCE OF A SUMMARY COURT-MARTIAL. DECEMBER 11, 1957, IN ACCORDANCE WITH A DECISION OF THE NAVAL DISCHARGE REVIEW BOARD, HE WAS ISSUED A GENERAL DISCHARGE CERTIFICATE, INDICATING THAT HIS DISCHARGE JUNE 8, 1944, WAS UNDER HONORABLE CONDITIONS. THE MAN RECEIVED NO RETIRED PAY SUBSEQUENT TO HIS DISCHARGE ON JUNE 8, 1944.

WE HAVE HELD IN 37 COMP. GEN. 207, THAT WHERE AN INDIVIDUAL'S RIGHT TO RECEIVE DISABILITY RETIRED PAY IS CONTINGENT UPON HIS CONTINUED STATUS IN THE ARMED FORCES AND WHERE THE DROPPING OF THAT INDIVIDUAL FROM THE RETIRED LIST UNDER THE PROVISIONS OF EITHER 10 U.S.C. 1161 (B) OR 10 U.S.C. 1163 (B) MATERIALLY ALTERS SUCH STATUS, THE RIGHT TO DISABILITY RETIRED PAY CEASES.

ENLISTED MEN ON THE RETIRED LIST OF THE NAVY ARE A PART OF THE NAVY AND OF THE ARMED FORCES AND IN TIME OF WAR OR NATIONAL EMERGENCY MAY BE CALLED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY. SEE 10 U.S.C. 6482. THEY ARE AT ALL TIMES SUBJECT TO NAVAL AUTHORITY ( ARTICLE 1316, NAVY REGULATIONS, 1948 USED.) AND TO THE ORDERS AND REGULATIONS OF THE SECRETARY OF THE NAVY ( ARTICLE C-14501, BUREAU OF NAVAL PERSONNEL MANUAL, 1948 USED.). NAVY REGULATIONS HAVE PROVIDED THAT AT THE TIME OF RETIREMENT, ENLISTED MEN OF THE NAVY ARE NOT DISCHARGED, BUT ARE REGARDED AS CONTINUING IN THE SERVICE UPON THE RETIRED LIST. SEE 22 COMP. GEN. 664, 671.

AN ENLISTED MAN UPON DISCHARGE IS EFFECTIVELY SEPARATED FROM THE NAVAL SERVICE AND NORMALLY THE CUSTODY AND CONTROL BY NAVAL AUTHORITIES THEN AND THERE CEASES. HIS DISCHARGE ABSOLUTELY TERMINATES ANY CONTRACTUAL RELATIONSHIP WITH THE GOVERNMENT. UNITED STATES V. SMITH, 67 F./2D) 412, AFFIRMED 292 U.S. 337. SEE 21 COMP. GEN. 927, 928. ALSO, A MAN SO DISCHARGED, GENERALLY CANNOT BE RESTORED TO SERVICE, EXCEPT BY ANOTHER ENLISTMENT. B-89653, OCTOBER 12, 1949.

SINCE A DISCHARGE OF AN ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY TERMINATES THE STATUS ON WHICH HIS RETIRED PAY DEPENDS, THE DISCHARGE CERTIFICATES EVIDENCING SEPARATION FROM THE NAVAL SERVICE, ISSUED TO THE ENLISTED MEN HERE INVOLVED, TERMINATED THEIR RIGHT TO DISABILITY RETIRED PAY AS OF THE DAY THE CERTIFICATES WERE ISSUED AND THE MEN WERE NOT ENTITLED TO RETIRED PAY SUBSEQUENT TO THEIR DISCHARGE. THE FACT THAT THE CHARACTER OF THE DISCHARGE OF ONE ENLISTED MAN WAS SUBSEQUENTLY CHANGED, DID NOT AFFECT HIS STATUS INSOFAR AS SEPARATION FROM THE SERVICE IS CONCERNED.