B-142319, MAY 12, 1960

B-142319: May 12, 1960

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USNR: REFERENCE IS MADE TO YOUR LETTER OF MARCH 4. YOU WERE ORDERED TO REPORT FOR PHYSICAL EXAMINATION WITHIN SEVEN DAYS OF THE RECEIPT OF SUCH ORDERS AND IF PHYSICALLY QUALIFIED TO RETURN TO YOUR HOME ADDRESS AND CONSIDER YOURSELF RELEASED FROM ACTIVE DUTY UNTIL SUCH TIME AS WAS NECESSARY TO REPORT FOR ACTIVE DUTY UNDER INSTRUCTION ON JULY 6. THESE ORDERS WERE MODIFIED BY A DISPATCH DATED JUNE 19 (QUOTED IN ORDERS OF JUNE 23. SUCH ORDERS WERE RECEIVED BY YOU ON JUNE 29. THAT YOU WERE FOUND PHYSICALLY QUALIFIED AND REPORTED ON THAT SAME DATE (JULY 1. YOU STATE THAT YOU SIGNED A CONTRACT UNDER WHICH IT WAS AGREED THAT YOU WERE TO BE PAID "FROM THE TIME OF MATRICULATION WHICH WAS JUNE 6" AND THAT YOU SHOULD NOT BE PENALIZED BY THE FAILURE OF THE BUREAU OF NAVAL PERSONNEL TO ORDER YOU TO ACTIVE DUTY ON THAT DATE.

B-142319, MAY 12, 1960

TO ENSIGN ERIC H. JENSEN, USNR:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1960, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 1, 1960, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JUNE 13 TO 30, 1959, INCIDENT TO YOUR BEING ORDERED TO ACTIVE DUTY UNDER INSTRUCTIONS AT HARVARD MEDICAL SCHOOL, BOSTON, MASSACHUSETTS, AS A MEMBER OF THE UNITED STATES NAVAL RESERVE.

BY ORDERS OF JUNE 13, 1959, ADDRESSED TO YOU AT BOSTON, MASSACHUSETTS, YOU WERE ORDERED TO REPORT FOR PHYSICAL EXAMINATION WITHIN SEVEN DAYS OF THE RECEIPT OF SUCH ORDERS AND IF PHYSICALLY QUALIFIED TO RETURN TO YOUR HOME ADDRESS AND CONSIDER YOURSELF RELEASED FROM ACTIVE DUTY UNTIL SUCH TIME AS WAS NECESSARY TO REPORT FOR ACTIVE DUTY UNDER INSTRUCTION ON JULY 6, 1959, AT THE SENIOR MEDICAL STUDENT PROGRAM, HARVARD MEDICAL SCHOOL, BOSTON, MASSACHUSETTS. THESE ORDERS WERE MODIFIED BY A DISPATCH DATED JUNE 19 (QUOTED IN ORDERS OF JUNE 23, 1959), SO AS TO DIRECT YOU TO PROCEED AND REPORT ON JUNE 19, 1959, INSTEAD OF JULY 6, 1959. SUCH ORDERS WERE RECEIVED BY YOU ON JUNE 29, 1959. IT APPEARS THAT YOU LEFT YOUR HOME IN BOSTON ON JULY 1, 1959, AND REPORTED FOR YOUR PHYSICAL EXAMINATION AT THE UNITED STATES NAVAL HOSPITAL,CHELSEA, MASSACHUSETTS, AND THAT YOU WERE FOUND PHYSICALLY QUALIFIED AND REPORTED ON THAT SAME DATE (JULY 1, 1959) FOR ACTIVE DUTY UNDER INSTRUCTION AT HARVARD UNIVERSITY, CAMBRIDGE, MASSACHUSETTS. YOU STATE THAT YOU SIGNED A CONTRACT UNDER WHICH IT WAS AGREED THAT YOU WERE TO BE PAID "FROM THE TIME OF MATRICULATION WHICH WAS JUNE 6" AND THAT YOU SHOULD NOT BE PENALIZED BY THE FAILURE OF THE BUREAU OF NAVAL PERSONNEL TO ORDER YOU TO ACTIVE DUTY ON THAT DATE.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) BY THE ACT OF MARCH 31, 1955, 69 STAT. 19), PROVIDES:

"ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST OR WHEN ON ACTIVE DUTY * * * SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED, * * *.'

YOU HAVE NOT FURNISHED A COPY OF THE CONTRACT TO WHICH YOU REFER. HOWEVER, REGARDLESS OF THE PROVISIONS THEREOF, NO OFFICER OR EMPLOYEE OF THE GOVERNMENT HAS AUTHORITY TO OBLIGATE THE GOVERNMENT TO PAY ACTIVE DUTY PAY AND ALLOWANCES TO A MEMBER OF A RESERVE COMPONENT FOR ANY PERIOD PRIOR TO THE COMMENCEMENT OF AN ACTIVE DUTY STATUS UNDER ORDERS DIRECTING HIM TO REPORT FOR ACTIVE DUTY. UNDER THE ABOVE-QUOTED PROVISIONS OF LAW, YOU WERE ENTITLED TO PAY AND ALLOWANCE ONLY "WHEN ON ACTIVE DUTY.' SINCE NO ORDERS APPEAR TO HAVE BEEN ISSUED DIRECTING YOU TO REPORT FOR ACTIVE DUTY PRIOR TO JUNE 19, AND ON JULY 1, 1959, YOU COMPLIED WITH THE ORDERS YOU RECEIVED AND REPORTED FOR ACTIVE DUTY, NO RIGHT TO PAY AND ALLOWANCES ACCRUED TO YOU BEFORE THAT DATE.

ACCORDINGLY, THERE IS NOT AUTHORITY FOR THE PAYMENT TO YOU OF THE ADDITIONAL AMOUNT CLAIMED FOR THE PERIOD PRIOR TO JULY 1, 1959, AND THE SETTLEMENT OF MARCH 1, 1960, IS SUSTAINED.