B-145843, JAN. 11, 1962

B-145843, JAN. 11, 1962

TO MR. EARNEST B. YARNELL:

BY FIRST ENDORSEMENT DATED NOVEMBER 2, 1961, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF NOVEMBER 1, 1961, REQUESTING CLARIFICATION OR RECONSIDERATION OF OUR DECISION OF AUGUST 14, 1961, B 145843, TO MAJOR JOHN A. RAPP, DISBURSING OFFICER, RELATIVE TO THE COMPUTATION OF YOUR RETIRED PAY AS A RETIRED MEMBER OF THE MARINE CORPS.

THE RECORDS SHOW THAT YOU SERVED ON ACTIVE DUTY AS A TEMPORARY WARRANT OFFICER FROM JUNE 1, 1944, TO MAY 7, 1946, AND THAT FOLLOWING YOUR RELEASE FROM ACTIVE DUTY YOU ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE ON MAY 14, 1946. SUCH PERMANENT APPOINTMENT, HOWEVER, DID NOT CHANGE THE FACT THAT YOU ACTUALLY SERVED AS A TEMPORARY WARRANT OFFICER DURING THE PERIOD INDICATED. YOU WERE ASSIGNED TO ACTIVE DUTY AT YOUR HOME FOR ONE DAY, JULY 28, 1947, AND WERE TEMPORARILY PROMOTED TO COMMISSIONED WARRANT OFFICER, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED. YOU REVERTED TO AN INACTIVE STATUS ON THE SAME DAY. ON MARCH 16, 1948, YOU ACCEPTED A PERMANENT APPOINTMENT AS A COMMISSIONED WARRANT OFFICER IN THE U.S. MARINE CORPS RESERVE AND YOU WERE DISCHARGED ON FEBRUARY 24, 1949. YOU ENLISTED IN THE REGULAR MARINE CORPS ON FEBRUARY 25, 1949, AND SERVED CONTINUOUSLY ON ACTIVE DUTY FROM THAT DATE THROUGH APRIL 30, 1961. AFTER BEING TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS IN YOUR ENLISTED STATUS EFFECTIVE MAY 1, 1961, UNDER THE PROVISIONS OF 10 U.S.C. 1202, YOU WERE ADVANCED ON THE TEMPORARY DISABILITY RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (W-2), PURSUANT TO AN ADMINISTRATIVE DETERMINATION THAT THAT WAS THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH YOU HAD "SERVED SATISFACTORILY," UNDER AUTHORITY OF CLAUSE (2) OF 11 U.S.C. 1372. YOUR CONTENTION IS THAT YOU HAD MORE THAN ONE DAY'S SERVICE IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER; THAT "THE PERIOD INVOLVED WAS FROM 28 JULY 1947 TO INCLUDE 15 MARCH 1948.'

SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, PERMITTED THE CONTINUANCE OF YOUR TEMPORARY COMMISSIONED WARRANT OFFICER STATUS NOT LONGER THAN THE "DATE OF RELEASE FROM ACTIVE DUTY," AND PROVIDED THAT SUCH PERSONNEL "SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT * * *.' WE ARE NOT AWARE OF ANY OTHER STATUTORY PROVISION WHICH PERMITTED YOU TO HOLD THE TEMPORARY COMMISSIONED WARRANT OFFICER GRADE WHILE ON INACTIVE DUTY ON AND AFTER JULY 29, 1947, THE DATE FOLLOWING THAT ON WHICH YOU WERE TEMPORARILY APPOINTED TO THE GRADE OF COMMISSIONED WARRANT OFFICER. SINCE YOUR ORDERS OF JULY 15, 1947, ASSIGNED YOU TO ACTIVE DUTY WITHOUT PAY AND ALLOWANCES AT YOUR HOME ON JULY 28, 1947, ONLY "TO PERMIT YOUR TEMPORARY PROMOTION TO THE NEXT HIGHER RANK" AND YOUR ONLY DUTY WAS TO PRESENT YOURSELF "AT YOUR OWN EXPENSE" FOR A PHYSICAL EXAMINATION IN CONNECTION WITH SUCH APPOINTMENT, THE BASIS FOR THE ADMINISTRATIVE DETERMINATION THAT YOU SERVED SATISFACTORILY IN THE GRADE OF COMMISSIONED WARRANT OFFICER IS TOO DOUBTFUL TO PERMIT PAYMENT TO YOU OF RETIRED PAY COMPUTED ON THE PAY OF THAT GRADE.

THERE IS ENCLOSED A COPY OF OUR DECISION OF JULY 7, 1961, B-145655, TO WHICH YOU REFER IN YOUR ..END :