B-145559, MAY 12, 1961, 40 COMP. GEN. 622

B-145559, MAY 12, 1961, 40 COMP. GEN. 622

MILITARY PERSONNEL - NAVY ENLISTED MEMBERS ACCEPTING TEMPORARY WARRANT OFFICER COMMISSIONS - STATUS ALTHOUGH UNDER 38 U.S.C. 2101 (B) (1) MUSTERING-OUT PAY MAY NOT BE PAID TO TEMPORARY COMMISSIONED WARRANT OFFICERS DISCHARGED AFTER JANUARY 31, 1958, UNDER 10 U.S.C. 5596 (F) RIGHTS OR BENEFITS OF ENLISTED NAVY MEMBERS ARE NOT CHANGED OR ABRIDGED UPON ACCEPTANCE OF TEMPORARY WARRANT OFFICER APPOINTMENTS; THEREFORE, THE ACCEPTANCE OF A TEMPORARY WARRANT OFFICER COMMISSION BY A NAVY ENLISTED MEMBER CANNOT ABRIDGE THE RIGHT HE HAD TO MUSTERING-OUT PAY AT TIME OF DISCHARGE SO THAT WHEN THE MEMBER'S TEMPORARY COMMISSION IS TERMINATED UPON ACCEPTANCE OF A PERMANENT COMMISSION, THE MEMBER IS ENTITLED TO MUSTERING-OUT PAY. THE BENEFITS WHICH ARE SAVED TO NAVY ENLISTED MEMBERS UPON THE ACCEPTANCE OF TEMPORARY WARRANT OFFICER COMMISSION UNDER 10 U.S.C. 5596 (F) ARE THOSE SPECIFICALLY AUTHORIZED BY LAW; THEREFORE, IN THE ABSENCE OF ANY PROVISION IN THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C 31A 49, WHICH AUTHORIZES A CASH SETTLEMENT 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, TEMPORARY COMMISSIONED WARRANT OFFICER WHO IS DISCHARGED FROM AN ENLISTED STATUS TO ACCEPT A PERMANENT COMMISSION IS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED LEAVE TO HIS CREDIT AT THAT TIME. SINCE TEMPORARY WARRANT OFFICER COMMISSIONS HAVE NO PRESCRIBED TERMS, A NAVY ENLISTED MEMBER WHO HOLDS SUCH COMMISSION WHEN HE IS DISCHARGED TO ACCEPT A PERMANENT COMMISSION MAY NOT HAVE SUCH SEPARATION OR RELEASE REGARDED AS OCCURRING AT THE "EXPIRATION OF ENLISTMENT OR PRESCRIBED TERM OF SERVICE" WITHIN THE MILEAGE ALLOWANCE PROVISIONS IN PARAGRAPH 4157-4 OF THE JOINT TRAVEL REGULATIONS, IN THE ABSENCE OF A SHOWING THAT HE WAS DISCHARGED AT THE EXPIRATION OF THE PERIOD FOR WHICH HE HAD ENLISTED. NAVY ENLISTED MEMBERS WHO HOLD TEMPORARY WARRANT OFFICER COMMISSIONS, W- 1, UPON ACCEPTANCE OF PERMANENT COMMISSIONS HAVE THE SAME RIGHTS AS THOSE HOLDING TEMPORARY WARRANT OFFICER COMMISSIONS, W-2 THROUGH W-4, SO THAT THEY ARE ENTITLED TO MUSTERING-OUT PAY BUT ARE NOT ENTITLED TO LUMP-SUM LEAVE OR TO MILEAGE ALLOWANCES UNLESS FOR MILEAGE PAYMENT THERE IS A SHOWING THAT THEIR DISCHARGE OCCURRED AT THE EXPIRATION OF A PERIOD OF ENLISTMENT.

TO THE SECRETARY OF THE NAVY, MAY 12, 1961:

REFERENCE IS MADE TO LETTER DATED APRIL 6, 1961, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION AS TO WHETHER ENLISTED MEN, WHO ARE APPOINTED TEMPORARY WARRANTED OFFICERS UNDER THE AUTHORITY OF 10 U.S.C. 5596 AND RETAIN THEIR PERMANENT ENLISTED STATUS, ARE ELIGIBLE TO RECEIVE MUSTERING-OUT PAY, MILEAGE ALLOWANCE AND LUMP-SUM LEAVE PAYMENTS UPON ACCEPTANCE OF PERMANENT COMMISSIONS IN THE CIRCUMSTANCES DISCUSSED BELOW. THE SUBMISSION HAS BEEN ASSIGNED NO. SS-N-569 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

QUESTION 1 SUBMITTED BY THE UNDER SECRETARY IS A FOLLOWS:

IS A TEMPORARY WARRANT OFFICER (WHO IS OTHERWISE ENTITLED) ENTITLED TO MUSTERING-OUT PAY UPON ACCEPTANCE OF A PERMANENT COMMISSION, THEREBY ENDING HIS PERMANENT ENLISTED STATUS?

SINCE QUESTION 4, QUOTED BELOW, APPLIES TO TEMPORARY WARRANT OFFICER W-1, IT IS ASSUMED THAT THE OTHER QUESTIONS RELATE TO TEMPORARY COMMISSIONED WARRANT OFFICERS, W-2 THROUGH W-4.

SECTION 5596, TITLE 10, U.S. CODE, AUTHORIZES APPOINTMENTS OF ENLISTED MEMBERS AS TEMPORARY WARRANT OFFICERS IN THE NAVY. SUBSECTION 5596 (F) PROVIDES AS FOLLOWS:

(F) TEMPORARY APPOINTMENTS UNDER THIS SECTION DO NOT CHANGE THE PERMANENT PROBATIONARY, OR ACTING STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS. A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER THIS SECTION MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT, OR ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE.

SECTION 2101 (B) (1), TITLE 38 U.S. CODE, PROVIDES THAT NO MUSTERING OUT PAYMENT SHALL BE MADE TO ANY MEMBER OF THE ARMED FORCES WHO,"AT THE TIME OF DISCHARGE OR RELEASE IS IN A PAY GRADE HIGHER THAN 10-3, OR IF HE IS A COMMISSIONED OFFICER, UNLESS HE WAS DISCHARGED OR RELEASED BEFORE JANUARY 31, 1958.'

SECTION 101 (15), TITLE 10, U.S. CODE, DEFINES THE TERM "COMMISSIONED OFFICER" AS INCLUDING "A COMMISSIONED WARRANT OFFICER.' WHILE THE COURT OF CLAIMS HAS HELD THAT A COMMISSIONED WARRANT OFFICER IS NOT A "COMMISSIONED OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, AND WE HAVE DECIDED TO FOLLOW THAT HOLDING AS A PRECEDENT (37 COMP. GEN. 591), OUR DECISION RELATES ONLY TO MATTERS INVOLVING THE ECONOMY ACT. SINCE THE PROVISIONS OF 10 U.S.C. 101 (15) WERE NOT CONSIDERED BY THE COURT, ITS CONCLUSION AS TO THE MEANING OF THAT TERM AS USED IN THE ECONOMY ACT FURNISHES NO BASIS TO DISREGARD THE CLEAR PROVISIONS OF THE U.S.C. AND IT IS BELIEVED THAT COMMISSIONED WARRANT OFFICERS OF THE NAVY GENERALLY ARE REQUIRED TO BE CONSIDERED "COMMISSIONED" OFFICERS UNDER THE TERMS OF 10 U.S.C. 101 (15).

WHILE THE PROVISIONS OF 38 U.S.C. 2101 (B) (1) BAR PAYMENT OF MUSTERING- OUT PAY TO TEMPORARY COMMISSIONED WARRANTED OFFICERS DISCHARGED ON OR AFTER JANUARY 31, 1958, 10 U.S.C. 5596 (F) EXPRESSLY PROVIDES THAT TEMPORARY APPOINTMENTS UNDER THAT SECTION DO NOT CHANGE THE PERMANENT STATUS OF THE MEMBERS CONCERNED OR ABRIDGE THEIR RIGHTS OR BENEFITS. ONE OF THE BENEFITS WHICH ACCRUE TO ENLISTED MEMBERS OF THE ARMED FORCES IS THE MUSTERING-OUT PAY WHICH MAY BE PAID TO OTHERWISE QUALIFIED ENLISTED MEN AT THE TIME OF DISCHARGE FOR THE PURPOSE OF "APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES" UNDER 38 U.S.C. 2104. SINCE THE ACCEPTANCE OF A TEMPORARY WARRANT OFFICER COMMISSION CANNOT ABRIDGE THAT RIGHT, A RIGHT TO MUSTERING-OUT PAY ACCRUES AT THE SIMULTANEOUS TERMINATION OF SUCH COMMISSION AND PERMANENT ENLISTED STATUS UPON ACCEPTANCE OF A PERMANENT COMMISSION. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 IS AS FOLLOWS:

WOULD THE PROVISIONS OF LAW AND REGULATION RELATING TO LUMP-SUM LEAVE AND MILEAGE ALLOWANCE PAYMENTS TAKE PRECEDENCE OVER THE PROVISIONS OF 10 U.S.C. 5596 IN THE CASE OF TEMPORARY WARRANT OFFICERS DISCHARGED FROM THEIR ENLISTED STATUS TO ACCEPT PERMANENT COMMISSIONS, SO AS TO PRECLUDE SUCH PAYMENTS?

UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 31A-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. IN CONTRAST TO MUSTERING-OUT PAY WHICH MAY BE PAID TO QUALIFIED ENLISTED MEN UPON DISCHARGE FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN A REGULAR COMPONENT OF THE AIR FORCES, NO CASH SETTLEMENT FOR ACCRUED LEAVE 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.' 37 U.S.C. 33 (C). HENCE, IT APPEARS CLEAR THAT TEMPORARY COMMISSIONED WARRANT OFFICERS WHO ARE DISCHARGED FROM THEIR ENLISTED STATUS TO ACCEPT PERMANENT COMMISSIONS ARE NOT ENTITLED TO LUMP-SUM PAYMENTS FOR THE ACCRUED LEAVE TO THEIR CREDIT AT THAT TIME.

CONCERNING THE MEMBERS' RIGHT TO PAYMENT OF MILEAGE, THE STATUTORY REGULATION INVOLVED, PARAGRAPH 4157-4, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF MILEAGE ALLOWANCE IN CONNECTION WITH A SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS OR IN THE SAME OR IN ANOTHER OF THE UNIFORMED SERVICES, UNLESS THE SEPARATION OR RELEASE OCCURS AT THE "EXPIRATION OF ENLISTMENT OR PRESCRIBED TERM OF SERVICE.' SINCE TEMPORARY COMMISSIONS UNDER 10 U.S.C. 5596 HAVE NO PRESCRIBED TERM, THE MEMBERS HERE INVOLVED MAY NOT BE PAID A MILEAGE ALLOWANCE IN THE ABSENCE OF A SHOWING THAT THEY WERE DISCHARGED AT THE EXPIRATION OF THE PERIOD FOR WHICH THEY ENLISTED.

QUESTION 3 IS AS FOLLOWS:

IF IT IS DETERMINED THAT THESE MEMBERS ARE ENTITLED TO LUMP-SUM LEAVE SETTLEMENT, WOULD PAYMENT BE BASED ON THE APPLICABLE WARRANT OFFICER PAY AND ALLOWANCES OR ON THAT OF THE MEMBER'S ENLISTED STATUS? 37 U.S.C. 33 (C) STATES THAT MEMBERS SHALL BE COMPENSATED FOR UNUSED LEAVE IN CASH ON THE BASIS OF THE BASE AND LONGEVITY PAY AND ALLOWANCES APPLICABLE ON THE DATE OF DISCHARGE.

IN THE LIGHT OF THE ANSWER TO QUESTION 2, NO ANSWER IS REQUIRED TO QUESTION 3.

QUESTION 4 IS AS FOLLOWS:

IF IT IS DETERMINED THAT COMMISSIONED WARRANT OFFICERS (W-2 THROUGHW 4) ARE NOT ENTITLED TO MOP OR OTHER BENEFITS UPON DISCHARGE FROM ENLISTED STATUS TO ACCEPT PERMANENT COMMISSIONS, WOULD WARRANT OFFICERS (W-1) BE ENTITLED TO SUCH BENEFITS AT SUCH TIME, OR WOULD THEY BE SO ENTITLED ONLY UPON FINAL SEPARATION FROM WARRANT OFFICER GRADE?

THE REASONS STATED ABOVE APPLY EQUALLY TO WARRANT OFFICERS (W-1) AND THEIR RIGHTS TO MUSTERING-OUT PAY, LUMP-SUM LEAVE SETTLEMENT, AND MILEAGE ALLOWANCE ARE THE SAME AS THE COMMISSIONED WARRANT OFFICERS W-2 THROUGH W- 4 CONSIDERED IN QUESTIONS 1 AND 2.