B-147776, JAN. 31, 1962

B-147776: Jan 31, 1962

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YOUR REQUEST WAS ASSIGNED NO. WAS SERVING IN THE TEMPORARY RANK OF CAPTAIN UNDER AN APPOINTMENT EFFECTIVE DECEMBER 31. WHEN HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1202. CAPTAIN BOND WAS DETERMINED BY THE SECRETARY OF THE NAVY TO BE UNFIT FOR ACTIVE DUTY DUE TO PHYSICAL DISABILITY AND HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE OCTOBER 1. UNDER THE PROVISION OF 10 U.S.C. 1202 IN THE RANK IN WHICH HE WAS TEMPORARILY SERVING. SINCE HIS UNDERLYING PERMANENT RANK WAS THAT OF MASTER SERGEANT AND ALL THE RIGHTS AND BENEFITS ACCRUING TO HIM AS AN ENLISTED MAN ARE SAVED TO HIM BY 10 U.S.C. 5596 (F). PAYMENT OF MUSTERING OUT PAY IS AUTHORIZED SINCE HE DID NOT REVERT TO HIS PERMANENT ENLISTED STATUS. 38 U.S.C. 2101 (B) (1).

B-147776, JAN. 31, 1962

TO MAJOR B. H. SNYDER, DISBURSING OFFICER:

BY FIRST ENDORSEMENT DATED DECEMBER 8, 1961, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF NOVEMBER 30, 1961, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF EFFECTING PAYMENT OF MUSTERING-OUT PAY TO CAPTAIN GEORGE CALVIN BOND, JR., U.S.M.C., UPON HIS RETIREMENT EFFECTIVE SEPTEMBER 30, 1961. YOUR REQUEST WAS ASSIGNED NO. DO -MC-615 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD DISCLOSES THAT CAPTAIN BOND, WHILE RETAINING HIS PERMANENT ENLISTED RANK OF MASTER SERGEANT, WAS SERVING IN THE TEMPORARY RANK OF CAPTAIN UNDER AN APPOINTMENT EFFECTIVE DECEMBER 31, 1954, PURSUANT TO THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, NOW 10 U.S.C. 5596, WHEN HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1202.

CAPTAIN BOND WAS DETERMINED BY THE SECRETARY OF THE NAVY TO BE UNFIT FOR ACTIVE DUTY DUE TO PHYSICAL DISABILITY AND HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE OCTOBER 1, 1961, UNDER THE PROVISION OF 10 U.S.C. 1202 IN THE RANK IN WHICH HE WAS TEMPORARILY SERVING. SINCE HIS UNDERLYING PERMANENT RANK WAS THAT OF MASTER SERGEANT AND ALL THE RIGHTS AND BENEFITS ACCRUING TO HIM AS AN ENLISTED MAN ARE SAVED TO HIM BY 10 U.S.C. 5596 (F), YOU QUESTION WHETHER, UNDER THE RULING IN 40 COMP. GEN. 622, PAYMENT OF MUSTERING OUT PAY IS AUTHORIZED SINCE HE DID NOT REVERT TO HIS PERMANENT ENLISTED STATUS.

38 U.S.C. 2101 (B) (1), PROVIDES AS FOLLOWS:

"/B) NO MUSTERING-OUT PAYMENT SHALL BE MADE---

"/1) TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE IS IN A PAY GRADE HIGHER THAN 0-3, OR IF HE IS A COMMISSIONED OFFICER, UNLESS HE WAS DISCHARGED OR RELEASED BEFORE JANUARY 31, 1958.'

WE HELD IN 40 COMP. GEN. 622 THAT 38 U.S.C. 2101 (B) (1) DID NOT BAR PAYMENT OF MUSTERING-OUT PAY TO A TEMPORARY COMMISSIONED OFFICER DISCHARGED ON OR AFTER JANUARY 31, 1958, SINCE 10 U.S.C. 5596 EXPRESSLY PROVIDES (SUBSECTION (F) ( THAT TEMPORARY APPOINTMENTS UNDER THAT SECTION DO NOT CHANGE THE PERMANENT STATUS OF THE MEMBERS CONCERNED OR ABRIDGE THEIR RIGHTS AND BENEFITS AND THAT MUSTERING-OUT PAY IS A RIGHT A NAVY ENLISTED MEMBER HAS AT THE TIME OF SIMULTANEOUS TERMINATION OF HIS TEMPORARY OFFICER COMMISSION AND PERMANENT ENLISTED STATUS. THUS, WE HELD THAT THE MEMBER INVOLVED WHO WAS DISCHARGED FOR THE PURPOSE OF "APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES" WAS ENTITLED TO MUSTERING-OUT PAY UNDER 38 U.S.C. 2104.'

CAPTAIN BOND DOES NOT COME WITHIN THE PURVIEW OF 38 U.S.C. 2104, SINCE HE WAS NOT DISCHARGED OR RELEASED FROM ACTIVE DUTY "FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES," BUT WAS PLACED IN AN INACTIVE STATUS ON THE TEMPORARY DISABILITY RETIRED LIST. THEREFORE, HIS ENTITLEMENT TO MUSTERING-OUT PAY MUST ARISE, IF AT ALL, UNDER THE EXCEPTION CONTAINED IN 38 U.S.C. 2101 (B) (2), BARRING PAYMENT:

"/2) TO ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE IS ENTITLED TO SEVERANCE PAY, OR IS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, OR TO A STATUS IN WHICH HE RECEIVES SUCH PAY; EXCEPT THAT THIS PARAGRAPH SHALL NOT APPLY UPON RETIREMENT OR SEPARATION PURSUANT TO CHAPTER 61 OF TITLE 10.'

10 U.S.C. 1372 PROVIDES THAT, UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205--- CONTAINED IN CHAPTER 61 OF THAT TITLE--- IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF VARIOUS GRADES THERE ENUMERATED, THE FIRST OF WHICH IS THE "GRADE OR RANK IN WHICH SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.' ON THE DATE WHEN CAPTAIN BOND'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, HE WAS SERVING IN THE RANK OF CAPTAIN AND, PURSUANT TO 10 U.S.C. 1372, HE WAS PLACED ON THAT LIST IN HIS STATUS AS AN OFFICER AND DID NOT REVERT TO HIS PERMANENT ENLISTED GRADE OF MASTER SERGEANT. WHILE HE COMES WITHIN THE EXCEPTION CONTAINED IN 38 U.S.C. 2101 (B) (2) AS A MEMBER RETIRED FOR DISABILITY, MUSTERING-OUT PAY IS PRECLUDED IN HIS CASE BY 38 U.S.C. 2101 (B) (1), SINCE HIS STATUS IS THAT OF A COMMISSIONED OFFICER AND HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AFTER JANUARY 31, 1958. SO LONG AS HE CONTINUES TO DRAW THE PAY AUTHORIZED IN HIS OFFICER STATUS, WE FIND NO BASIS FOR A CLAIM FOR MUSTERING-OUT PAY BASED ON HIS ENLISTED STATUS.

ACCORDINGLY, IT IS CONCLUDED THAT THERE IS NO AUTHORITY FOR PAYMENT OF MUSTERING-OUT PAY UNDER THE CIRCUMSTANCES IN THIS CASE.