B-14769, FEBRUARY 26, 1941, 20 COMP. GEN. 486

B-14769, FEBRUARY 26, 1941, 20 COMP. GEN. 486

PAY - ADDITIONAL - NAVAL RESERVISTS HELD IN SERVICE AFTER EXPIRATION OF ENLISTMENT DURING THE NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT ON SEPTEMBER 8, 1939, A NAVAL RESERVIST ON ACTIVE DUTY HAS NO RIGHT TO DISCHARGE AT THE EXPIRATION OF THE FIXED TERM OF HIS ENLISTMENT, AND, HENCE, EVEN THOUGH HE IS HELD IN SERVICE AFTER SUCH TERM, HE IS NOT ENTITLED TO THE ADDITIONAL PAY AUTHORIZED BY SECTION 1422, REVISED STATUTES, FOR DETENTION SERVICE AFTER EXPIRATION OF ENLISTMENT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 26, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 1, 1941, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, DATED JANUARY 8, 1941, WITH ACCOMPANYING CORRESPONDENCE, REQUESTING AN ADVANCE DECISION ON THE QUESTION THEREIN PRESENTED, NAMELY, WHETHER OR NOT ENLISTED MEN OF THE NAVAL RESERVE SERVING AFLOAT, WHO ARE DETAINED BEYOND THEIR REGULAR TERM OF ENLISTMENT UNTIL THE RETURN TO THE UNITED STATES OF THE VESSEL TO WHICH THEY BELONG, ARE ENTITLED FOR THE PERIOD OF ANY SUCH DETENTION TO THE ADDITION OF ONE-FOURTH OF THEIR FORMER PAY, UPON CERTIFICATION OF THEIR COMMANDING OFFICER THAT THEY WERE DETAINED BY HIM UNDER THE PROVISIONS OF SECTION 1422, REVISED STATUTES (34 U.S.C. 201), AND THAT SUCH DETENTION WAS ESSENTIAL TO THE PUBLIC INTERESTS.

THE BUREAU OF NAVIGATION LETTER OF JANUARY 8, 1941, CONTAINS THE FOLLOWING:

IN VIEW OF THE FACT THAT MEMBERS OF THE NAVAL RESERVE IN THE EVENT OF WAR OR NATIONAL EMERGENCY WHICH MAY OCCUR DURING THEIR TERM OF SERVICES ARE OBLIGATED TO SERVE THROUGHOUT THE WAR OR NATIONAL EMERGENCY IF THEIR SERVICES ARE REQUIRED, THERE IS SOME DOUBT AS TO WHETHER THE PROVISION FOR ONE-QUARTER ADDITIONAL PAY IS AUTHORIZED FOR MEMBERS OF THE NAVAL RESERVE SERVING AFLOAT WHO ARE DETAINED BEYOND THE EXPIRATION OF THEIR ENLISTMENTS AS ABOVE STATED. A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY MIGHT AT THE EXPIRATION OF HIS ENLISTMENT REFUSE TO RE-ENLIST AND, IF DETAINED ON ACTIVE DUTY IN THE EMERGENCY ON BOARD THE VESSEL IN WHICH HE WAS THEN SERVING, MIGHT CONCEIVABLY RECEIVE THE ADDITIONAL PAY OVER AN EXTENDED PERIOD OF TIME.

THOUGH NOT EXPRESSLY STATED, IT IS PRESUMED THAT YOUR QUESTION IS LIMITED TO MEN SERVING ON ACTIVE DUTY IN THE PRESENT NATIONAL EMERGENCY.

SECTION 1422, REVISED STATUTES (34 U.S.C. 201), PROVIDES IN EFFECT THAT ENLISTED MEN OF THE NAVY SERVING AFLOAT SHALL BE RETURNED TO AN ATLANTIC OR PACIFIC PORT, AS THEIR ENLISTMENTS MAY HAVE OCCURRED ON EITHER THE ATLANTIC OR PACIFIC COAST, ON SOME PUBLIC OR OTHER VESSEL AT THE EXPIRATION OF THEIR TERMS OF ENLISTMENT OR AS SOON THEREAFTER AS MAY BE, UNLESS IN THE OPINION OF THE COMMANDING OFFICER DETENTION FOR A LONGER PERIOD IS ESSENTIAL TO THE PUBLIC INTEREST, IN WHICH CASE AN ENLISTED MAN MAY BE DETAINED UNTIL THE VESSEL ON WHICH SERVING SHALL RETURN TO THE ATLANTIC OR PACIFIC PORT. IF SO DETAINED IN THE PUBLIC INTEREST THE STATUTE AUTHORIZES AN ADDITION OF ONE-FOURTH HIS FORMER PAY DURING THE PERIOD OF DETENTION AFTER DATE OF EXPIRATION OF ENLISTMENT.

PARTS OF THE NAVAL RESERVE ACT OF 1938 HAVING BEARING ON THE QUESTION SUBMITTED ARE AS FOLLOWS:

SEC. 5. ANY MEMBER OF THE NAVAL RESERVE * * * MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: * * * PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

SEC. 6. * * * THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY:* * *

SEC. 7. * * * ENLISTED MEN OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST, OR WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY * * * ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE * * *.

PART H OF THE BUREAU OF NAVIGATION MANUAL RELATES TO THE NAVAL RESERVE AND ARTICLE H-2507 (3) (D) THEREOF PROVIDES:

(D) SHIPPING ARTICLES--- N. NAV. 351, SIGNED BY MEDICAL EXAMINER AND RECRUIT. THE FOLLOWING SHALL BE STAMPED OR TYPEWRITTEN ON THE FACE OF THE SHIPPING ARTICLES:

"IN THE EVENT OF WAR OR NATIONAL EMERGENCY DURING MY TERM OF SERVICE, I FURTHER OBLIGATE MYSELF TO SERVE THROUGHOUT THE WAR OR NATIONAL EMERGENCY, IF SO REQUIRED.'

UNDER EXECUTIVE ORDER NO. 8245, SEPTEMBER 8, 1939, PURSUANT TO A PROCLAMATION OF THE PRESIDENT OF THE SAME DATE DECLARING A NATIONAL EMERGENCY WITH RESPECT TO THE NATIONAL DEFENSE, THE PRESIDENT AUTHORIZED THE SECRETARY OF THE NAVY TO ORDER TO ACTIVE DUTY SUCH OFFICERS AND MEN OF THE NAVAL RESERVE "AS AGREE VOLUNTARILY TO SERVE.' SECTION 1422, REVISED STATUTES, IS BASED ON THE RIGHT OF ENLISTED MEN OF THE NAVY TO A DISCHARGE AT EXPIRATION OF ENLISTMENT AS AFFECTED BY THE GOVERNMENT'S RIGHT, WHEN ESSENTIAL TO THE PUBLIC INTEREST, TO DETAIN THEM IN SERVICE FOR A LONGER PERIOD. THE STATUTE RECOGNIZES A CONDITION IN WHICH THE PUBLIC INTEREST MAY CONFLICT WITH THE INDIVIDUAL'S RIGHT TO DISCHARGE AT EXPIRATION OF HIS ENLISTMENT PERIOD AND IN CONSIDERATION OF THE MAN'S RIGHTS PROVIDES AN INCREASE OF ONE QUARTER ADDITIONAL PAY DURING THE PERIOD OF DETENTION. CASE OF ENLISTED MEN OF THE NAVAL RESERVE THE LAW PRESCRIBES OTHER MEANS OF TAKING CARE OF A LIKE SITUATION. SECTION 5 OF THE NAVAL RESERVE ACT REQUIRES THE ENLISTED MAN TO SERVE THROUGHOUT A TIME OF WAR OR UNTIL A NATIONAL EMERGENCY SHALL CEASE TO EXIST. SECTION 5 TAKES NO ACCOUNT OF A LIMITED EMERGENCY OR OF VOLUNTARY ENTRY ON ACTIVE DUTY. THE OBLIGATION TO SERVE IS EFFECTIVE THROUGHOUT A TIME OF WAR OR UNTIL THE NATIONAL EMERGENCY SHALL CEASE TO EXIST REGARDLESS OF WHETHER THE ENTRY ON ACTIVE SERVICE IS VOLUNTARY OR INVOLUNTARY. IN TIME OF A NATIONAL EMERGENCY SERVICE BEYOND THE DATE HIS ENLISTMENT WOULD OTHERWISE EXPIRE IS PROVIDED FOR IN THE LAW AND HE IS OBLIGATED UNDER THE LAW AND HIS ENLISTMENT CONTRACT TO SO SERVE. THEREFORE, IF DURING THE EXISTING EMERGENCY A NAVAL RESERVIST IS HELD TO SERVICE BEYOND THE DATE HIS ENLISTMENT OTHERWISE WOULD EXPIRE HE HAS NO RIGHT TO DISCHARGE AT SUCH TIME, AND HAVING NO RIGHT TO A DISCHARGE AT EXPIRATION OF THE FIXED TERM OF HIS ENLISTMENT DURING THE EXISTENCE OF A NATIONAL EMERGENCY, SECTION 1422, REVISED STATUTES, IS NOT APPLICABLE TO HIS DETENTION IN SERVICE BEYOND DATE OF EXPIRATION OF ENLISTMENT. HIS ENLISTMENT IS, IN EFFECT, FOR A DEFINITE TERM WHICH IS AUTOMATICALLY EXTENDED DURING WAR OR A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT. DURING SUCH AN ENLISTMENT INCLUDING THE PERIOD BEYOND ITS NORMAL DATE OF EXPIRATION, HE IS ENTITLED TO THE PAY OF HIS GRADE AND LENGTH OF SERVICE ONLY.

ACCORDINGLY, YOU ARE ADVISED THAT DURING THE EXISTING NATIONAL EMERGENCY NO RIGHT TO ADDITIONAL PAY CAN ACCRUE TO AN ENLISTED MAN OF THE NAVAL RESERVE UNDER SECTION 1422, REVISED STATUTES.