B-147753, JAN. 29, 1962

B-147753: Jan 29, 1962

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STEPHENS: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16. YOU WERE ALLOWED THE AMOUNT OF $7.12 REPRESENTING LUMP-SUM LEAVE PAYMENT FOR TWO ADDITIONAL DAYS DUE AT DISCHARGE. YOU WERE ORDERED TO REPORT JANUARY 11. FOR A PHYSICAL EXAMINATION AND IF FOUND PHYSICALLY QUALIFIED YOU WERE FURTHER ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED AND REPORT ON OR BEFORE JANUARY 18. YOU WERE FOUND PHYSICALLY DISQUALIFIED AND RELEASED FROM ACTIVE DUTY THE FOLLOWING DAY. YOU WERE ORDERED TO REPORT APRIL 17. HAD ADVISED THAT YOU WERE ERRONEOUSLY RELEASED TO INACTIVE DUTY AND HAD DIRECTED THAT YOU BE RESTORED TO ACTIVE DUTY EFFECTIVE FEBRUARY 3. YOU WERE FINALLY RELEASED FROM ACTIVE DUTY AND DISCHARGED FROM THE UNITED STATES NAVAL SERVICE MAY 17.

B-147753, JAN. 29, 1962

TO MR. LEON C. STEPHENS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1961, FORWARDED HERE BY THE UNITED STATES NAVY FINANCE CENTER, NAVY DEPARTMENT, NOVEMBER 29, 1961, FOR DIRECT REPLY. YOUR LETTER REQUESTS RECONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD FEBRUARY 4 THROUGH APRIL 16, 1961, PLUS PAYMENT FOR LEAVE EARNED DURING THAT PERIOD AS APPRENTICE SEAMAN, UNITED STATES NAVAL RESERVE. BY OUR SETTLEMENT OF SEPTEMBER 19, 1961, YOU WERE ALLOWED THE AMOUNT OF $7.12 REPRESENTING LUMP-SUM LEAVE PAYMENT FOR TWO ADDITIONAL DAYS DUE AT DISCHARGE, MAY 17, 1961.

THE RECORD SHOWS THAT BY ORDERS OF DECEMBER 13, 1960, YOU WERE ORDERED TO REPORT JANUARY 11, 1961, AT DETROIT, MICHIGAN, FOR A PHYSICAL EXAMINATION AND IF FOUND PHYSICALLY QUALIFIED YOU WERE FURTHER ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED AND REPORT ON OR BEFORE JANUARY 18, 1961, TO THE COMMANDING OFFICER, U.S. NAVAL RECEIVING STATION, PHILADELPHIA, PENNSYLVANIA, FOR OUTFITTING, CLASSIFICATION AND FURTHER ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. YOU REPORTED AS DIRECTED JANUARY 18, 1961. FEBRUARY 2, 1961, YOU WERE FOUND PHYSICALLY DISQUALIFIED AND RELEASED FROM ACTIVE DUTY THE FOLLOWING DAY. BY ORDERS OF MARCH 28, 1961, WHICH YOU RECEIVED APRIL 7, 1961, YOU WERE ORDERED TO REPORT APRIL 17, 1961, TO THE COMMANDING OFFICER, U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, FOR EXAMINATION, TREATMENT, AND REPORT BY AN APPROPRIATE MEDICAL BOARD. THE ORDERS STATED THAT BUREAU OF NAVAL PERSONNEL LETTER DATED MARCH 20, 1961, HAD ADVISED THAT YOU WERE ERRONEOUSLY RELEASED TO INACTIVE DUTY AND HAD DIRECTED THAT YOU BE RESTORED TO ACTIVE DUTY EFFECTIVE FEBRUARY 3, 1961. AFTER REPORTING ON APRIL 17, YOU WERE FINALLY RELEASED FROM ACTIVE DUTY AND DISCHARGED FROM THE UNITED STATES NAVAL SERVICE MAY 17, 1961. YOU WERE PAID ACTIVE DUTY PAY AND ALLOWANCES FOR JANUARY 11, FROM JANUARY 18 TO FEBRUARY 3 AND FROM APRIL 17 TO MAY 17, 1961.

YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FEBRUARY 4 TO APRIL 16, 1961, AND FOR A LUMP-SUM LEAVE PAYMENT FOR TEN DAYS IN LIEU OF THE THREE DAYS' LEAVE PAY PAID TO YOU UPON DISCHARGE, WAS TRANSMITTED HERE FOR SETTLEMENT AND BY SETTLEMENT DATED SEPTEMBER 19, 1961, YOU WERE ALLOWED THE SUM OF $7.12 AS LUMP-SUM LEAVE PAY FOR AN ADDITIONAL TWO DAYS' LEAVE DUE AT DISCHARGE MAY 17, 1961. THE SETTLEMENT STATED THAT NO PAYMENT WAS DUE FOR THE PERIOD FEBRUARY 4 TO APRIL 16, 1961, FOR THE REASON YOU WERE NOT SERVING ON ACTIVE DUTY DURING THAT PERIOD.

ACTIVE DUTY PAY AND ALLOWANCES ACCRUE TO MEMBERS OF THE NAVAL RESERVE ONLY WHEN THEY ARE SERVING ON ACTIVE DUTY OR PARTICIPATING IN FULL-TIME TRAINING, TRAINING DUTY WITH PAY, OR OTHER FULL-TIME DUTY. SEE SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (D). UNDER THE PROVISIONS OF 10 U.S.C. 681A, THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER OF THE NAVAL RESERVE FROM ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING AT ANY TIME (EXCEPT UNDER CERTAIN CIRCUMSTANCES NOT INVOLVED HERE) AND IT HAS BEEN HELD THAT SUCH AUTHORITY IS WHOLLY WITHIN HIS DISCRETION AND HIS MOTIVE BEHIND A VALID EXERCISE OF THIS POWER DOES NOT RENDER THE RESULTING ORDER INVALID. SEE DENBY V. BERRY, 263 U.S. 29; 27 COMP. GEN. 333. COMPARE HARPER V. JONES, ET AL., 195 F.2D 705. WHILE IT MAY BE THAT YOUR RELEASE FROM ACTIVE DUTY ON FEBRUARY 3, 1961, WAS NOT IN ACCORDANCE WITH THE USUAL ADMINISTRATIVE PRACTICE IN SUCH CIRCUMSTANCES, SUCH RELEASE NEVERTHELESS TERMINATED YOUR ACTIVE DUTY STATUS. THE ORDERS OF MARCH 28, 1961, WHICH PURPORTED TO RESTORE YOU TO ACTIVE DUTY AS OF THE DATE YOU WERE RELEASED MAY NOT BE VIEWED AS HAVING ANY RETROACTIVE EFFECT, IT BEING WELL ESTABLISHED THAT, GENERALLY, RETROSPECTIVE LAWS OR ADMINISTRATIVE ACTIONS DISTURBING OR DESTROYING EXISTING OR VESTED RIGHTS, OR CREATING NEW OBLIGATIONS CONCERNING PERTINENT TRANSACTIONS ARE INVALID. SEE 38 COMP. GEN. 103-105 AND CASES THERE CITED.

SINCE YOU WERE EFFECTIVELY RELEASED FROM ACTIVE DUTY ON FEBRUARY 3, 1961, THE ORDERS OF MARCH 28, 1961, WHICH DIRECTED YOU TO REPORT TO THE COMMANDING OFFICER, UNITED STATES NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, FOR EXAMINATION, ETC., ON APRIL 17, 1961, MAY BE CONSIDERED AS RECALLING YOU TO ACTIVE DUTY EFFECTIVE THAT DATE AND YOU BECAME ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES UPON SO REPORTING. SINCE THE RECORD SHOWS THAT YOU WERE PROPERLY PAID, INCLUDING PAYMENT FOR ACCRUED LEAVE, NO FURTHER PAYMENT IS DUE YOU. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 19, 1961, WAS CORRECT AND IS SUSTAINED.