B-144276, FEBRUARY 23, 1961, 40 COMP. GEN. 473

B-144276: Feb 23, 1961

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EVEN THOUGH A CERTIFICATE OF DISCHARGE WAS NOT ISSUED TO THE MEMBER. WHICH REGULATIONS ARE VALID STATUTORY REGULATIONS HAVING THE FORCE AND EFFECT OF LAW. THE MEMBER MAY NOT HAVE INCLUDED. THE NAVAL RESERVE ENLISTED SERVICE WHICH WAS SERVED CONCURRENTLY WITH SERVICE AS A MIDSHIPMAN. INCREASES IN MILITARY OFFICERS' PAY ACCOUNTS BY REASON OF CREDIT FOR ENLISTED NAVAL RESERVE SERVICE CONCURRENTLY WITH SERVICE AS MIDSHIPMAN IN THE NAVAL RESERVE ARE CONTRARY TO STATUTORY REGULATION AND SHOULD BE DISCONTINUED. COLLECTION ACTION WILL NOT BE PRESSED IF THERE IS AN ADMINISTRATIVE DETERMINATION THAT VALIDATING LEGISLATION WILL BE SOUGHT IN THE CURRENT SESSION OF CONGRESS. 1961: REFERENCE IS MADE TO LETTER OF OCTOBER 14.

B-144276, FEBRUARY 23, 1961, 40 COMP. GEN. 473

MILITARY PERSONNEL - NAVAL RESERVE SERVICE - RESERVISTS APPOINTED AS MIDSHIPMEN THE APPOINTMENT OF AN ENLISTED MEMBER OF THE NAVAL RESERVE AS A MIDSHIPMAN IN THE NAVAL RESERVE, AS DISTINGUISHED FROM AN APPOINTMENT AS MIDSHIPMAN OR CADET TO ONE OF THE MILITARY ACADEMIES, MERELY CONTINUES THE MEMBER IN THE NAVAL RESERVE AND DOES NOT MAKE HIM A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION WITHIN THE MEANING OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, WHICH PROHIBITS MEMBERSHIP OF NAVAL RESERVE MEMBERS IN ANY OTHER NAVAL OR MILITARY ORGANIZATION. THE ACCEPTANCE BY AN ENLISTED MEMBER OF THE NAVAL RESERVE OF AN APPOINTMENT AS MIDSHIPMAN IN THE NAVAL RESERVE ON SEPTEMBER 16, 1946, TERMINATED THE MEMBER'S ENLISTED STATUS, EVEN THOUGH A CERTIFICATE OF DISCHARGE WAS NOT ISSUED TO THE MEMBER, IN VIEW OF THE PROHIBITION IN REGULATIONS PROMULGATED PURSUANT TO SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1177, AGAINST THE APPOINTMENT OF ENLISTED NAVAL RESERVE MEMBERS AS MIDSHIPMEN IN THE NAVAL RESERVE WHILE RETAINING THEIR ENLISTED STATUS, WHICH REGULATIONS ARE VALID STATUTORY REGULATIONS HAVING THE FORCE AND EFFECT OF LAW; AND, THEREFORE, THE MEMBER MAY NOT HAVE INCLUDED, IN THE COMPUTATION OF SERVICE FOR BASIC PAY PURPOSES, THE NAVAL RESERVE ENLISTED SERVICE WHICH WAS SERVED CONCURRENTLY WITH SERVICE AS A MIDSHIPMAN. THE ISSUANCE OF A DISCHARGE CERTIFICATE TO AN ENLISTED MEMBER OF THE NAVAL RESERVE FOR THE PURPOSE OF RETROACTIVELY CHANGING THE DATE OF DISCHARGE TO THE DAY PRIOR TO THE DATE OF THE MEMBER'S APPOINTMENT AS MIDSHIPMAN IN THE NAVAL RESERVE DOES NOT CHANGE THE MEMBER'S RIGHTS IN ANY WAY BECAUSE, UNDER THE STATUTORY REGULATIONS WHICH BARRED ENLISTED MEMBERS IN THE NAVAL RESERVE FROM APPOINTMENT AS MIDSHIPMEN IN THE NAVAL RESERVE WHILE RETAINING THEIR ENLISTED STATUS, ACCEPTANCE OF AN APPOINTMENT AS MIDSHIPMAN TERMINATED THE MEMBER'S ENLISTED STATUS. INCREASES IN MILITARY OFFICERS' PAY ACCOUNTS BY REASON OF CREDIT FOR ENLISTED NAVAL RESERVE SERVICE CONCURRENTLY WITH SERVICE AS MIDSHIPMAN IN THE NAVAL RESERVE ARE CONTRARY TO STATUTORY REGULATION AND SHOULD BE DISCONTINUED; HOWEVER, IN VIEW OF HARDSHIP WHICH MAY RESULT FROM RETROACTIVE ADJUSTMENT OF THE PAY ACCOUNTS, COLLECTION ACTION WILL NOT BE PRESSED IF THERE IS AN ADMINISTRATIVE DETERMINATION THAT VALIDATING LEGISLATION WILL BE SOUGHT IN THE CURRENT SESSION OF CONGRESS.

TO THE SECRETARY OF THE NAVY, FEBRUARY 23, 1961:

REFERENCE IS MADE TO LETTER OF OCTOBER 14, 1960, FROM THE ASSISTANT SECRETARY OF THE NAVY (1PERSONNEL AND RESERVE FORCES) REQUESTING A DECISION WHETHER CERTAIN SERVICE IN THE UNITED STATES NAVAL RESERVE MAY BE INCLUDED IN THE COMPUTATION OF SERVICE FOR BASIC PAY PURPOSES. THE SERVICE IN QUESTION IS STATED TO BE INACTIVE ENLISTED SERVICE IN THE UNITED STATES NAVAL RESERVE OF MEMBERS APPOINTED MIDSHIPMEN, UNITED STATES NAVAL RESERVE, BUT WHO WERE NOT DISCHARGED FROM THEIR ENLISTED STATUS AT THE TIME THEY WERE SO APPOINTED. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-N-536 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT LIEUTENANT COMMANDER JAMES D. KEARNY, USN, ENLISTED AS AS, V-12, USNR, ON DECEMBER 13, 1943, ENLISTED SERVICE NO 449 48 93, AND IMMEDIATELY WAS PLACED ON INACTIVE DUTY. HE REPORTED FOR ACTIVE DUTY ON MARCH 1, 1944. ON JUNE 22, 1946, HE WAS DISCHARGED. ON JUNE 23, 1946, HE REENLISTED, AS AS, V-6, USNR, AND WAS IMMEDIATELY ISSUED ORDERS TO INACTIVE DUTY. ON SEPTEMBER 16, 1946, HE WAS APPOINTED A MIDSHIPMAN IN THE U.S. NAVAL RESERVE AND REPORTED FOR DUTY AT THE U.S. NAVAL RESERVE OFFICERS' TRAINING CORPS UNIT, YALE UNIVERSITY, NEW HAVEN, CONNECTICUT. SUCH APPOINTMENT WAS MADE UNDER AUTHORITY CONTAINED IN THE ACT OF AUGUST 13, 1946, 60 STAT. 1057, 10 U.S.C. 6903 (A). IT IS STATED THAT HE WAS NOT DISCHARGED FROM HIS ENLISTED STATUS AT THAT TIME.

THE STATEMENT THAT THE MEMBER WAS NOT DISCHARGED APPARENTLY REFERS TO THE FACT THAT NO FORMAL DISCHARGE ACTION WAS TAKEN AT THE TIME HE WAS APPOINTED A MIDSHIPMAN. IN THAT CONNECTION IT MAY BE STATED THAT EVEN WITHOUT CONSIDERING THE REGULATIONS APPLICABLE TO SUCH CASES, WE WOULD HAVE GRAVE DOUBT THAT THE MEMBER'S ENLISTED STATUS IN THE NAVAL RESERVE CONTINUED AFTER HIS APPOINTMENT AS A MIDSHIPMAN IN THE NAVAL RESERVE. THE APPOINTMENT AS MIDSHIPMAN--- UNLESS DESIGNATED AS TEMPORARY (COMPARE 23 COMP. GEN. 939/--- WOULD SEEM TO HAVE TERMINATED HIS ENLISTED STATUS WITHOUT REGARD TO THE REGULATIONS. BUT HOWEVER THAT MAY BE, HIS STATUS SEEMS TO BE CLEARLY FIXED BY SUCH REGULATIONS. PARAGRAPH 405 (8), REGULATIONS FOR ADMINISTRATION AND TRAINING, NAVAL RESERVE OFFICERS' TRAINING CORPS, 1946, PROVIDES AS FOLLOWS:

* * * NO MEMBER OF THE ACTIVE PERSONNEL OF THE ARMY, NAVY, MARINE CORPS OR COAST GUARD, OR MEMBER OF THE RESERVE OR NATIONAL GUARD COMPONENTS SHALL BE ELIGIBLE FOR ENROLLMENT AS A REGULAR STUDENT (MIDSHIPMAN, U.S. NAVAL RESERVE) IN NROTC WHILE RETAINING HIS STATUS IN THE OTHER ORGANIZATION. NO COMMISSIONED OFFICER, REGULAR OR RESERVE, OF ANY SERVICE IS ELIGIBLE. ENLISTED MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE MAY BE ENROLLED AS CONTRACT STUDENTS.

ON JUNE 16, 1947, COMMANDER KEARNY ACCEPTED AN APPOINTMENT AS ENSIGN, U.S. NAVY. AN ADMINISTRATIVE ENTRY WAS MADE IN HIS ENLISTED SERVICE RECORD ON JANUARY 27, 1949, TO THE EFFECT THAT HIS ENLISTED STATUS TERMINATED ON JUNE 6, 1947 (WHICH DATE IS STATED TO BE TECHNICALLY INCORRECT, SINCE HE ACCEPTED THE APPOINTMENT ON JUNE 16, 1947, TO RANK FROM JUNE 6, 1947); THAT HE HAD BEEN APPOINTED AS ENSIGN, U.S. NAVY; AND THAT HIS ENLISTED STATUS AT THE TIME OF HIS APPOINTMENT AS ENSIGN WAS SR, V-6, USNR. IN THE REGISTER OF COMMISSIONED AND WARRANTED OFFICERS OF THE U.S. NAVY AND MARINE CORPS AND RESERVE OFFICERS ON ACTIVE DUTY DATED JANUARY 1, 1960, COMMANDER KEARNY'S PAY ENTRY BASE DATE IS INDICATED AS DECEMBER 13, 1943, (PAGE 155, LINE 12), AND HE IS PRESENTLY IN RECEIPT OF BASIC PAY (OVER 16 YEARS) AT THE RATE OF $610 PER MONTH. IT IS REPORTED THAT ON JUNE 2, 1960, THE BUREAU OF NAVAL PERSONNEL ADMINISTRATIVELY ESTABLISHED A NEW PAY ENTRY BASE DATE OF SEPTEMBER 1, 1944. THIS CHANGE IS STATED TO HAVE BEEN MADE SO AS TO EXCLUDE CREDIT FOR HIS SERVICE AS MIDSHIPMAN, U.S. NAVAL RESERVE. HOWEVER, PENDING RESOLUTION OF THE MATTER, THE COMPTROLLER OF THE NAVY HAS ADVISED THE DISBURSING OFFICER TO MAKE NO ADJUSTMENTS OF THE MEMBER'S PAY RECORD.

IN VIEW OF THE FACT THAT COMMANDER KEARNY WAS AN ENLISTED MEMBER OF THE U.S. NAVAL RESERVE AT THE TIME HE WAS APPOINTED A MIDSHIPMAN IN THE U.S. NAVAL RESERVE ON SEPTEMBER 16, 1946, AND HIS ENLISTED STATUS WAS NOT TERMINATED ADMINISTRATIVELY UNTIL LONG AFTER HE WAS COMMISSIONED TO ENSIGN IN THE UNITED STATES NAVY, THE FOLLOWING QUESTIONS ARE SUBMITTED FOR CONSIDERATION:

1. SINCE THE MEMBER WAS NOT APPOINTED A MIDSHIPMAN TO ONE OF THE MILITARY ACADEMIES, BUT WAS APPOINTED A MIDSHIPMAN IN THE U.S. NAVY RESERVE, DID SUCH AN APPOINTMENT MAKE HIM A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION AS CONTEMPLATED IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938?

2. MAY THE MEMBER INCLUDE, IN THE COMPUTATION OF SERVICE FOR BASIC PAY PURPOSES, THE U.S. NAVAL RESERVE ENLISTED SERVICE (1SEPTEMBER 16, 1946, TO JUNE 15, 1947) WHICH HE SERVED CONCURRENTLY WITH SERVICE AS A MIDSHIPMAN U.S. NAVAL RESERVE?

3. WOULD THE ANSWER TO QUESTION 2 BE DIFFERENT IF AN ADMINISTRATIVE DISCHARGE CERTIFICATE WERE TO BE ISSUED AT THIS TIME TO LIEUTENANT COMMANDER KEARNY FOR THE PURPOSE OF RETROACTIVELY CHANGING THE DATE OF DISCHARGE FROM HIS NAVAL RESERVE ENLISTMENT TO SEPTEMBER 15, 1946, THE DAY PRIOR TO THE DATE HE WAS APPOINTED MIDSHIPMAN, U.S. NAVAL RESERVE?

4. IF THE DUAL ENLISTMENT/MIDSHIPMAN SERVICE CANNOT BE INCLUDED IN THE COMPUTATION OF SERVICE FOR BASIC PAY PURPOSES MUST LIEUTENANT COMMANDER KEARNY'S PAY ACCOUNT BE ADJUSTED RETROACTIVELY TO JUNE 16, 1947, TO RECOUP THE DIFFERENCE IN PAY DOWN THROUGH THE YEARS? OR, IN VIEW OF THE ERRONEOUS INTERPRETATIONS OF LAW AND REGULATIONS BY AN OFFICER OR OFFICES OF THE GOVERNMENT, MAY IT BE ADJUSTED CURRENTLY AND PROSPECTIVELY TO MERELY REVISE HIS PAY ENTRY BASE DATE APPROPRIATELY WITHOUT ANY RETROACTIVE CHECK AGE OF PAY?

PARAGRAPH H-1102, BUREAU OF NAVAL PERSONNEL MANUAL, 1942 EDITION, PROVIDED THAT THE NAVAL RESERVE, AS ESTABLISHED BY THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, NOW 10 U.S.C. 6330 (A), IS A COMPONENT PART OF THE UNITED STATES NAVY AND CONSISTS OF THE FLEET RESERVE, THE ORGANIZED RESERVE, THE VOLUNTEER RESERVE AND THE MERCHANT MARINE RESERVE.

SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 37 U.S.C. 103A, SUPPLEMENT V, 1940 EDITION, PROVIDED IN PERTINENT PART AS FOLLOWS:

IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTION 101, 103, 108, OR 109 OF THIS TITLE, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTIONS UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED * * * IN THE NAVAL RESERVE FORCE, NAVAL RESERVE * * *

UNDER THE TERMS OF THE ABOVE-QUOTED SECTION, THE OFFICER HERE INVOLVED WOULD APPEAR TO HAVE BEEN ENTITLED TO HAVE HIS PERIOD OF INACTIVE ENLISTED RESERVE SERVICE COUNTED FOR PAY PURPOSES, IF HIS APPOINTMENT AS MIDSHIPMAN IN THE NAVAL RESERVE DID NOT TERMINATE HIS ENLISTED RESERVE STATUS.

SECTION 22 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1276, NOW 10 U.S.C. 6901 (A), PROVIDED FOR THE ESTABLISHMENT OF A NAVAL RESERVE OFFICERS' TRAINING CORPS TO BE ESTABLISHED AND OPERATED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE.

THE ACT OF AUGUST 13, 1946, 60 STAT. 1057, PROVIDED FOR THE ESTABLISHMENT OF A NAVAL AND MARINE CORPS OFFICER CANDIDATE TRAINING PROGRAM SUPPLEMENTARY TO EXISTING PROGRAM, TO BE ADMINISTERED BY THE SECRETARY OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT AND WITH SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE. SECTION 3 (A) OF THAT ACT, 10 U.S.C. 6904 (A), AUTHORIZED THE SECRETARY OF THE NAVY TO ENROLL IN THE TRAINING PROGRAM ANY PERSON (1) WHO, ON MAY 1, 1946, WAS A MEMBER OF THE NAVAL RESERVE OFFICERS' TRAINING CORPS OR (2) WHO SUBSEQUENT TO SUCH DATE MAY BE ADMITTED TO SUCH CORPS AND WHO WILL NOT BE MORE THAN 25 YEARS OF AGE ON JULY 1 OF THE CALENDAR YEAR IN WHICH ELIGIBLE FOR APPOINTMENT TO COMMISSIONED RANKS PURSUANT TO SUBSECTION 6 (A), 10 U.S.C. 6904 (D). UPON ENROLLMENT, SUCH PERSONS WERE TO BE APPOINTED MIDSHIPMEN IN THE NAVAL RESERVE.

IN 32 COMP. GEN. 548, CITED IN YOUR SUBMISSION, WE HELD THAT, QUOTING FROM THE SYLLABUS:

SERVICE IN THE RESERVE DURING A PERIOD IN WHICH THE MEMBER CONCURRENTLY HELD THE STATUS OF CADET OR MIDSHIPMAN AT ONE OF THE MILITARY ACADEMIES MAY BE COUNTED, UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949 AND THE ARMED FORCES RESERVE ACT OF 1952, FOR BASIC PAY PURPOSES WITH THE EXCEPTION OF NAVAL RESERVISTS APPOINTED TO ONE OF THE ACADEMIES PRIOR TO JANUARY 1, 1953, WHOSE RESERVE STATUS WAS AUTOMATICALLY TERMINATED BY SUCH APPOINTMENT UNDER SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, WHICH PROHIBITS NAVAL RESERVISTS FROM BEING MEMBERS OF ANY OTHER MILITARY ORGANIZATION, HOWEVER, THE PROHIBITORY PROVISIONS OF THE SAID STATUTE FOR NAVAL RESERVISTS WAS REPEALED BY THE ARMED FORCES RESERVE ACT OF 1952, EFFECTIVE JANUARY 1, 1953.

IN 23 COMP. GEN. 939, ALSO CITED IN YOUR SUBMISSION, WE SAID, AGAIN QUOTING FROM THE SYLLABUS, THAT:

WHILE UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, NAVAL RESERVE OFFICERS MAY NOT COUNT PRIOR SERVICE AS MIDSHIPMEN (TEMPORARY) OF THE NAVAL RESERVE FOR LONGEVITY PAY PURPOSES, THEIR ACTIVE SERVICE AS MIDSHIPMEN DOES NOT PRECLUDE THE COUNTING AS NAVAL RESERVE ENLISTED SERVICE OF A CONCURRENT PERIOD DURING WHICH THEIR ENLISTED STATUS WAS RETAINED IN ACCORDANCE WITH THE REGULATION GOVERNING THE APPOINTMENT OF ENLISTED MEN AS MIDSHIPMEN (TEMPORARY).

THE MATTER OF MIDSHIPMAN SERVICE IN THE NAVAL RESERVE WAS DISCUSSED IN B- 138442, DATED APRIL 22, 1959, WHERE IT WAS POINTED OUT THAT THE COUNTING OF MIDSHIPMAN SERVICE IN THE MILITARY SERVICE ACADEMIES IS SPECIFICALLY BARRED BY LAW IN COMPUTING LENGTH OF SERVICE OF OFFICERS FOR ANY PURPOSE, EVEN THOUGH SUCH SERVICE ACTUALLY IS A PART OF A CAREER OF ACTIVE MILITARY SERVICE. VIEWING THAT PROHIBITION IN THE LIGHT OF THE FACT THAT MIDSHIPMAN SERVICE IN THE NAVAL RESERVE IS NOT SPECIFICALLY MENTIONED AMONG THE PERIODS OF CREDITABLE SERVICE LISTED IN SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233, IT WAS CONCLUDED THAT THERE IS NO AUTHORITY TO COUNT SUCH SERVICE IN THE COMPUTATION OF BASIC PAY.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROHIBITED MEMBERS OF THE NAVAL RESERVE FROM BEING MEMBERS OF ANY OTHER NAVAL OR MILITARY ORGANIZATION. THOSE CASES HOLDING THAT MIDSHIPMAN OR CADET SERVICE AT A SERVICE ACADEMY AND SIMULTANEOUS MEMBERSHIP IN THE INACTIVE NAVAL RESERVE WERE WITHIN THAT PROHIBITION OR THE SIMILAR PROVISION CONTAINED IN THE ACT OF FEBRUARY 28, 1925, WERE BASED ON A RECOGNITION OF THE FACT THAT NOT ONLY CADETS, BUT MIDSHIPMEN AS WELL, BELONG TO ORGANIZATIONS WHICH ARE NOT A PART OF THE NAVAL RESERVE. SEE 26 COMP. GEN. 455, 32 ID. 548, 35 ID. 202. THOSE DECISIONS ARE NOT FOR APPLICATION AS FAR AS THE MATTER INVOLVED IN QUESTION 1 IS CONCERNED, SINCE COMMANDER KEARNY WAS APPOINTED A MIDSHIPMAN IN THE NAVAL RESERVE AND CONSEQUENTLY CONTINUED TO BE A MEMBER OF THAT ORGANIZATION. QUESTION 1 IS ANSWERED IN THE NEGATIVE.

SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1177, PROVIDES THAT THE SECRETARY OF THE NAVY SHALL PRESCRIBE ALL NECESSARY AND PROPER REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THE ACT FOR THE RECRUITING, ORGANIZATION, GOVERNMENT, ADMINISTRATION, TRAINING, INSPECTION AND MOBILIZATION OF THE NAVAL RESERVE. SECTION 1 OF THE ACT OF AUGUST 13, 1946, 10 U.S.C. 6903 (A), PROVIDES THAT THE OFFICER CANDIDATE TRAINING PROGRAM ESTABLISHED BY THE ACT SHALL BE ADMINISTERED BY THE SECRETARY OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT.

THE 1946 REGULATIONS QUOTED ABOVE APPARENTLY WERE PROMULGATED PURSUANT TO THE ABOVE STATUTORY AUTHORITY AND WE FIND NO BASIS TO QUESTION THEIR VALIDITY. IT IS WELL ESTABLISH THAT VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND MAY NO MORE BE WAIVED THAN THE PROVISIONS OF LAW ON WHICH THEY ARE BASED. SEE 31 COMP. GEN. 193 AND DECISIONS THERE CITED. THE QUOTED REGULATIONS ARE SIMILAR IN FORCE AND EFFECT TO THE PROHIBITION CONTAINED IN SECTION 4 OF THE 1938 ACT, AS FAR AS THE PROBLEM HERE INVOLVED IS CONCERNED, AND THE RULE STATED IN 26 COMP. GEN. 455 THUS REQUIRES A NEGATIVE REPLY TO QUESTION 2.

SINCE ENLISTED MEN OF THE NAVAL RESERVE WERE BARRED BY A STATUTORY REGULATION FROM APPOINTMENT AS MIDSHIPMEN, U.S. NAVAL RESERVE, WHILE RETAINING THEIR ENLISTED STATUS, COMMANDER KEARNY'S ACCEPTANCE OF AN APPOINTMENT AS MIDSHIPMAN IN THE NAVAL RESERVE TERMINATED HIS STATUS AS AN ENLISTED MAN IN THAT ORGANIZATION AND THE ISSUANCE OF A CERTIFICATE OF DISCHARGE CHANGING HIS DISCHARGE TO THE DATE PRIOR TO DATE OF HIS APPOINTMENT AS A MIDSHIPMAN WOULD NOT CHANGE HIS RIGHTS IN ANY WAY. QUESTION 3 IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO THE FOURTH QUESTION, YOUR ATTENTION IS INVITED TO THE FACT THAT THE DECISION IN 26 COMP. GEN. 455 WAS MADE ON JANUARY 7, 1947, ONLY SHORTLY AFTER COMMANDER KEARNY'S APPOINTMENT AS A MIDSHIPMAN, AND THAT THE PRINCIPLE ON WHICH THAT CASE WAS BASED WAS WELL ESTABLISHED AT THAT TIME. SEE 25 COMP. GEN. 241, ID. 313. THE REGULATIONS GOVERNING HIS RIGHTS ARE CLEAR AND FREE FROM AMBIGUITY. SIMILAR REGULATIONS BARRING NAVAL RESERVISTS FROM MEMBERSHIP IN THE NAVAL RESERVE OFFICERS' TRAINING CORPS HAVE BEEN IN EFFECT FOR A NUMBER OF YEARS. SEE PARAGRAPH 401 (4) OF THE NAVAL RESERVE OFFICERS' TRAINING CORPS REGULATIONS, NOVEMBER 1935. THE CIRCUMSTANCES, THE CONCLUSION IS REQUIRED THAT ANY INCREASE IN PAY ON ACCOUNT OF SERVICE IN THE NAVAL RESERVE DURING THE PERIOD THE OFFICER WAS A MIDSHIPMAN IS NOT AUTHORIZED UNDER THE LAW AND SHOULD BE DISCONTINUED. INCREASES IN PAY ALREADY CREDITED IN HIS PAY ACCOUNT FOR SUCH SERVICE LIKEWISE WERE UNAUTHORIZED. SINCE IT IS INDICATED THAT THIS CASE IS BUT ONE OF MANY SIMILAR CASES AND CONSIDERING THAT HARDSHIP MAY RESULT IN NUMEROUS CASES FROM THE ADJUSTMENT OF THE PAY ACCOUNTS INVOLVED RETROACTIVELY FOR SEVERAL YEARS, WE WILL NOT PRESS COLLECTION ACTION IN THIS TYPE OF CASE EXCEPT WHERE THE INTEREST OF THE GOVERNMENT REQUIRES SUCH AN ACTION (AS IN CASES OF SEPARATION FROM THE SERVICE) IF IT BE ADMINISTRATIVELY DETERMINED THAT LEGISLATION WILL BE SOUGHT IN THE CURRENT SESSION OF CONGRESS TO VALIDATE ANY SUCH ERRONEOUS CREDITS. IT IS ASSUMED THAT THE CURRENT PAY WILL BE ADJUSTED AS SOON AS POSSIBLE IN ALL CASES OF THIS TYPE. PLEASE ADVISE US PROMPTLY WHETHER LEGISLATIVE RELIEF WILL BE SOUGHT WITH RESPECT TO THE ERRONEOUS PAYMENTS ALREADY MADE TO THE OFFICERS INVOLVED.