B-139706, AUGUST 6, 1959, 39 COMP. GEN. 78

B-139706: Aug 6, 1959

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MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - NAVY MEMBER HAVING CADET SERVICE DURING ENLISTMENT PERIOD A DISCHARGE AT THE END OF A FOUR-YEAR ENLISTMENT OF A NAVY MEMBER WHO SERVED A PORTION OF THE ENLISTMENT TERM AS A CADET AT THE NAVAL ACADEMY BEFORE HE RESIGNED AND REVERTED TO THE ENLISTED STATUS IS A DISCHARGE BECAUSE OF THE EXPIRATION OF A TERM OF SERVICE. A MUSTERING -OUT PAYMENT UNDER 38 U.S.C. 2101 IS PROPER. 1959: REFERENCE IS MADE TO YOUR LETTER OF APRIL 16. PAYMENT OF MUSTERING-OUT PAY IS AUTHORIZED TO BE MADE TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27. THESE PROVISIONS WERE REPEALED BY SECTION 14 (101) OF THE ACT OF SEPTEMBER 2. EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE ENGAGED IN ACTIVE SERVICE DURING THE KOREAN CONFLICT (ON OR AFTER JUNE 27.

B-139706, AUGUST 6, 1959, 39 COMP. GEN. 78

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - NAVY MEMBER HAVING CADET SERVICE DURING ENLISTMENT PERIOD A DISCHARGE AT THE END OF A FOUR-YEAR ENLISTMENT OF A NAVY MEMBER WHO SERVED A PORTION OF THE ENLISTMENT TERM AS A CADET AT THE NAVAL ACADEMY BEFORE HE RESIGNED AND REVERTED TO THE ENLISTED STATUS IS A DISCHARGE BECAUSE OF THE EXPIRATION OF A TERM OF SERVICE, WITHOUT ANY RELATION TO THE APPOINTMENT OR DISCHARGE FROM THE ACADEMY, AND, THEREFORE, A MUSTERING -OUT PAYMENT UNDER 38 U.S.C. 2101 IS PROPER.

TO COMMANDER R. A. WILSON, DEPARTMENT OF THE NAVY, AUGUST 6, 1959:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1959, ADDRESSED TO THE NAVY AUDIT BRANCH OF OUR OFFICE, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF MUSTERING-OUT PAY TO NORMAN L. MIDKIFF, 469 88 77, FT2, USN, INCIDENT TO HIS SERVICE DURING THE PERIOD JANUARY 29, 1955, THROUGH JANUARY 28, 1959, IN THE CIRCUMSTANCES SHOWN. SEE, IN THIS CONNECTION, 31 U.S.C. 74.

PAYMENT OF MUSTERING-OUT PAY IS AUTHORIZED TO BE MADE TO MEMBERS OF THE ARMED FORCES WHO SERVED ON ACTIVE DUTY ON OR AFTER JUNE 27, 1950, UNDER THE CONDITIONS SPECIFIED, BY TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011, ET SEQ. THESE PROVISIONS WERE REPEALED BY SECTION 14 (101) OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1273, AND REENACTED AS 38 U.S.C. 2101 2105. SECTION 2101, TITLE 38, OF THE CODE, PROVIDES THAT, EXCEPT AS PROVIDED IN SUBSECTION (B) OF SUCH SECTION, EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE ENGAGED IN ACTIVE SERVICE DURING THE KOREAN CONFLICT (ON OR AFTER JUNE 27, 1950, AND PRIOR TO FEBRUARY 1, 1955, 38 U.S.C. 2007) AND WHO IS DISCHARGED OR RELEASED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS,"SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT.' SECTION 2101 (B) (5), TITLE 38 OF THE CODE, PROVIDES THAT NO MUSTERING-OUT PAYMENT SHALL BE MADE TO ANY MEMBER OF THE ARMED FORCES FOR ANY ACTIVE SERVICE PERFORMED PRIOR TO THE DATE OF HIS "DISCHARGE" FROM SUCH FORCES FOR THE PURPOSE OF ENTERING THE UNITED STATES NAVAL ACADEMY. SECTION 2105 (B) PROVIDES THAT THE SECRETARIES OF THE ARMY, NAVY, AIR FORCE, AND TREASURY, SHALL MAKE SUCH REGULATIONS, NOT INCONSISTENT WITH THE 1952 LAW, AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS THEREOF, AND MAKES THE DECISIONS OF THE SECRETARIES IN THE ADMINISTRATION OF THE LAW FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL.

SECTION 1 OF THE ACT OF JUNE 25, 1960, 70 STAT. 333, 50 U.S.C. 1411, PROVIDES THAT THE ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE OF A MEMBER OF ANY OF THE ARMED FORCES WHO ,HEREAFTER" ACCEPTS AN APPOINTMENT AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY SHALL NOT BE TERMINATED BY REASON OF SUCH APPOINTMENT DURING THE CONTINUATION OF THE MIDSHIPMAN STATUS OF SUCH MEMBER. SECTION 2 OF THE ACT, 50 U.S.C. 1412, PROVIDES THAT HEREAFTER A PERSON WHO ACCEPTS AN APPOINTMENT AS A MIDSHIPMAN, WHILE HAVING A PERIOD OF OR WHILE SERVING UNDER AN ENLISTMENT CONTRACT, AND WHO THEREAFTER IS SEPARATED FROM THE UNITED STATES NAVAL ACADEMY FOR SOME REASON OTHER THAN THE ACCEPTANCE OF A COMMISSION IN THE REGULAR OR RESERVE COMPONENTS OF ONE OF THE ARMED FORCES, OR FOR PHYSICAL DISABILITY, SHALL HAVE HIS APPOINTMENT AS MIDSHIPMAN TERMINATED "AND HIS ENLISTED STATUS SHALL THEREUPON BE RESUMED.' SECTION 2 OF THE ACT FURTHER PROVIDES THAT A PERSON WHO HAS REVERTED TO HIS FORMER ENLISTED STATUS SHALL BE CONTINUED IN SUCH ENLISTED STATUS FOR THE REMAINDER OF HIS OBLIGATED SERVICE OR UNTIL SOONER PROMOTED OR DISCHARGED AND THAT, IN COMPUTING THE UNEXPIRED PORTION OF AN ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE,"FOR (THE) PURPOSES OF THIS ACT," TIME SERVED AS A MIDSHIPMAN SHALL BE COUNTED AS TIME SERVED UNDER SUCH CONTRACT OR PERIOD OF OBLIGATED SERVICE. THE LEGISLATIVE HISTORY OF THE 1956 LAW INDICATES THAT THE LAW WAS CONSIDERED NECESSARY TO PREVENT CERTAIN ABUSES; SPECIFICALLY, THE UTILIZATION OF APPOINTMENTS AS CADETS OR MIDSHIPMEN AT SERVICE ACADEMIES IN ORDER TO MODIFY AND SHORTEN THE TERMS OF OBLIGATED MILITARY SERVICE.

BUPERS INSTRUCTION 1530.21B, DATED OCTOBER 16, 1956, ISSUED FOR THE PURPOSE OF IMPLEMENTING THE ACT OF JUNE 25, 1956, PROVIDES THAT, IN ACCORDANCE WITH THE PROVISIONS OF THE SAID LAW, ENLISTED AND INDUCTED MEMBERS OF THE ARMED FORCES WHO ACCEPT APPOINTMENTS AS MIDSHIPMEN AT THE SERVICE ACADEMY, WHILE HAVING A PERIOD OF OBLIGATED SERVICE AS AN ENLISTED CONTRACT WILL, UPON SEPARATION FROM THE ACADEMY UNDER CERTAIN CONDITIONS, RESUME THEIR ENLISTED STATUS, AND THAT TIME SERVED AS A MIDSHIPMAN WILL BE COUNTED IN COMPUTING THE UNEXPIRED PORTION OF AN ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE. IN THIS CONNECTION, WE NOTE THAT PARAGRAPH 1044165-5 (15) CH. 83, NAVY COMPTROLLER MANUAL, PROVIDES THAT "CADETS AND MIDSHIPMEN DISMISSED OR RESIGNING FROM THE MILITARY, NAVAL, OR COAST GUARD ACADEMY, REGARDLESS OF SERVICE PERFORMED IMMEDIATELY PRIOR TO ENTERING SUCH ACADEMY" ARE NOT ENTITLED TO MUSTERING-OUT PAY UNDER TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952. THIS REGULATION, HOWEVER, BY ITS OWN TERMS RELATES ONLY TO SUCH PAYMENT AS AN INCIDENT TO DISCHARGE FROM THE ACADEMY.

IN THE CASE OF THE ENLISTED MEMBER CONCERNED, IT IS REPORTED THAT HE ENTERED ON ACTIVE DUTY TO SERVE A FOUR-YEAR ENLISTMENT ON JANUARY 29, 1955, PRIOR TO FEBRUARY 1, 1955. IT IS REPORTED FURTHER THAT HE ACCEPTED AN APPOINTMENT TO THE UNITED STATES NAVAL ACADEMY ON JUNE 25, 1956, AND UNDER THE ACT OF JUNE 25, 1956, HIS ENLISTED STATUS WAS NOT TERMINATED; THAT HE RESIGNED FROM THE ACADEMY ON OCTOBER 15, 1956, AND UNDER THE PROVISIONS OF THE ACT OF JUNE 25, 1956, REVERTED TO HIS ENLISTED STATUS AND CONTINUED ON ACTIVE DUTY AS AN ENLISTED MEMBER THROUGH JANUARY 28, 1959. UNDER APPLICABLE LAW AND REGULATIONS HIS ACADEMY SERVICE IS CREDITABLE AS ENLISTED SERVICE UNDER HIS ENLISTMENT CONTRACT. THUS, WHILE HE SERVED FOR A PORTION OF HIS ENLISTMENT AT THE NAVAL ACADEMY, HE NEVERTHELESS WAS DISCHARGED JANUARY 28, 1959, BECAUSE OF EXPIRATION OF TERM OF SERVICE AT THE END OF HIS FOUR-YEAR ENLISTMENT. THIS DISCHARGE HAD NOTHING TO DO WITH HIS APPOINTMENT TO OR DISCHARGE FROM THE ACADEMY AND WE ARE NOT AWARE OF ANY LAW OR REGULATION PRECLUDING PAYMENT OF MUSTERING-OUT PAY TO AN ENLISTED MAN OTHERWISE ENTITLED TO SUCH PAYMENT WHEN HE IS DISCHARGED FOR EXPIRATION OF TERM OF SERVICE.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.