B-148002, MARCH 29, 1962, 41 COMP. GEN. 624

B-148002: Mar 29, 1962

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OFFICER STATUS - TEMPORARY OFFICER STATUS - ACCEPTANCE OF PERMANENT OFFICER APPOINTMENT A MARINE CORPS MEMBER WITH A DUAL ENLISTED-OFFICER STATUS WHO IS DISCHARGED FROM HIS PERMANENT ENLISTED STATUS AT THE SAME TIME THAT HIS STATUS ON ACTIVE DUTY AS A TEMPORARY OFFICER UNDER 10 U.S.C. 5596 IS TERMINATED SO THAT HE CAN ACCEPT A PERMANENT OFFICER APPOINTMENT MUST BE REGARDED AS BEING SEPARATED AS AN OFFICER RATHER THAN AS AN ENLISTED MEMBER SINCE HE DID NOT REVERT TO HIS PERMANENT ENLISTED RATING AFTER RECEIVING THE TEMPORARY OFFICER APPOINTMENT IN WHICH STATUS HE CONTINUED TO SERVE UNTIL THE PERMANENT OFFICER APPOINTMENT. ARE NOT PAYABLE TO THE MEMBER. 1962: REFERENCE IS MADE TO LETTER DATED JANUARY 18.

B-148002, MARCH 29, 1962, 41 COMP. GEN. 624

MILITARY PERSONNEL - ENLISTED V. OFFICER STATUS - TEMPORARY OFFICER STATUS - ACCEPTANCE OF PERMANENT OFFICER APPOINTMENT A MARINE CORPS MEMBER WITH A DUAL ENLISTED-OFFICER STATUS WHO IS DISCHARGED FROM HIS PERMANENT ENLISTED STATUS AT THE SAME TIME THAT HIS STATUS ON ACTIVE DUTY AS A TEMPORARY OFFICER UNDER 10 U.S.C. 5596 IS TERMINATED SO THAT HE CAN ACCEPT A PERMANENT OFFICER APPOINTMENT MUST BE REGARDED AS BEING SEPARATED AS AN OFFICER RATHER THAN AS AN ENLISTED MEMBER SINCE HE DID NOT REVERT TO HIS PERMANENT ENLISTED RATING AFTER RECEIVING THE TEMPORARY OFFICER APPOINTMENT IN WHICH STATUS HE CONTINUED TO SERVE UNTIL THE PERMANENT OFFICER APPOINTMENT; THEREFORE, THE PAYMENTS WHICH ACCRUE TO ENLISTED MEMBERS ON SEPARATION, SUCH AS MILEAGE ALLOWANCE OR LUMP-SUM LEAVE, ARE NOT PAYABLE TO THE MEMBER. AN ENLISTED MARINE CORPS MEMBER SERVING UNDER A TEMPORARY OFFICER APPOINTMENT DURING TIMES OF WAR OR NATIONAL EMERGENCY PURSUANT TO 10 U.S.C. 5597 HOLDS A DUAL ENLISTED-OFFICER STATUS AND, THEREFORE, ON THE TERMINATION OF SUCH DUAL ENLISTED MAN-OFFICER STATUS SO THAT THE MEMBER CAN ACCEPT A PERMANENT OFFICER APPOINTMENT, MILEAGE ALLOWANCE PAYMENTS AND LUMP-SUM PAYMENTS FOR UNUSED LEAVE WHICH ACCRUE BY REASON OF A DISCHARGE FROM AN ENLISTED STATUS WHEN THE MEMBER NEVER REVERTED TO SUCH STATUS AFTER ACCEPTANCE OF THE TEMPORARY OFFICER APPOINTMENT MAY NOT BE MADE.

TO THE SECRETARY OF DEFENSE, MARCH 29, 1962:

REFERENCE IS MADE TO LETTER DATED JANUARY 18, 1962, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION AS TO WHETHER A TEMPORARY OFFICER OF THE MARINE CORPS WITH PERMANENT ENLISTED STATUS, WHOSE TEMPORARY OFFICER APPOINTMENT AND PERMANENT ENLISTED STATUS ARE TERMINATED TO ACCEPT APPOINTMENT AS AN OFFICER IN THE REGULAR MARINE CORPS OR MARINE CORPS RESERVE, IS ENTITLED TO MILEAGE ALLOWANCE AND LUMP-SUM LEAVE SETTLEMENT FOR UNUSED LEAVE.

SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE STATED IN COMMITTEE ACTION NO. 297 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

A MEMBER IS SERVING AS A TEMPORARY OFFICER UNDER THE PROVISIONS OF 10 U.S.C. 5596, OR ITS SOURCE LAW. HIS UNDERLYING PERMANENT STATUS IS THAT OF AN ENLISTED MEMBER. HIS ENLISTMENT WOULD HAVE EXPIRED WHILE SERVING AS A TEMPORARY OFFICER BUT FOR THE PROVISIONS OF 10 U.S.C. 5596 (F) WHICH REQUIRE HIS PERMANENT STATUS TO CONTINUE WITHOUT CHANGE. FOLLOWING SELECTION FOR OFFICER APPOINTMENT IN THE REGULAR MARINE CORPS OR MARINE CORPS RESERVE, HIS TEMPORARY APPOINTMENT IS TERMINATED AND HE IS DISCHARGED FROM HIS ENLISTED STATUS THE SAME DATE "FOR THE CONVENIENCE OF THE GOVERNMENT TO ACCEPT APPOINTMENT AS A PERMANENT OFFICER IN THE MARINE CORPS (OR MARINE CORPS RESERVE).' HE ACCEPTS SUCH APPOINTMENT THE NEXT DAY AND CONTINUES TO SERVE IN AN ACTIVE STATUS INDEFINITELY:

1. MAY HIS DISCHARGE BE CONSIDERED A DISCHARGE AS AT EXPIRATION OF ENLISTMENT SO AS TO ENTITLE HIM TO A MILEAGE ALLOWANCE AND A LUMP-SUM SETTLEMENT FOR UNUSED LEAVE?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, IS THE LUMP SUM/LEAVE SETTLEMENT TO BE COMPUTED ON THE PAY AND ALLOWANCES APPLICABLE TO THE ENLISTED GRADE IN WHICH HE IS DISCHARGED OR MAY IT BE BASED ON THE PAY AND ALLOWANCES TO WHICH HE IS ENTITLED IN HIS TEMPORARY OFFICER GRADE?

3. WOULD THE ANSWER TO QUESTIONS 1 AND 2 HAVE EQUAL APPLICATION IN THE CASE OF TEMPORARY APPOINTMENTS UNDER THE PROVISIONS OF 10 U.S.C. 5597, AND ITS SOURCE LAW?

4. IF THE ANSWER TO QUESTION 3 IS IN THE AFFIRMATIVE, WHAT EFFECT DOES COMPTROLLER GENERAL'S DECISION B-60870, OF 22 OCTOBER 1946, HAVE UPON THE TIME LIMIT DURING WHICH CLAIMS AGAINST THE GOVERNMENT MUST BE SUBMITTED UNDER 31 U.S.C. 71A?

IN THE DISCUSSION OF THE ABOVE QUESTIONS IN COMMITTEE ACTION NO. 297, IT IS STATED THAT SINCE 1946 PERMANENT ENLISTED PERSONNEL HOLDING TEMPORARY APPOINTMENTS UNDER 10 U.S.C. 5596, 10 U.S.C. 5597, OR THEIR SOURCE LAWS, HAVE BEEN INTEGRATED IN THE REGULAR MARINE CORPS AS PERMANENT WARRANT, COMMISSIONED WARRANT, AND COMMISSIONED OFFICERS. WITH THE PLAN OF PHASING OUT A MAJORITY OF THESE TEMPORARY OFFICERS, THE INTEGRATION PROGRAM IS BEING ACCELERATED AND EXPANDED TO INCLUDE APPOINTMENTS IN THE MARINE CORPS RESERVE WITH ACTIVE DUTY AGREEMENTS SUFFICIENT IN LENGTH TO INSURE QUALIFICATION FOR RETIREMENT AS OFFICERS ON ACTIVE DUTY.

IT IS STATED THAT IN THE PAST WHERE THE PERSON CONCERNED HELD A DUAL STATUS AS ENLISTED MAN AND OFFICER UNDER TEMPORARY APPOINTMENT, IT HAS BEEN THE POLICY OF THE MARINE CORPS TO SETTLE SUCH CASES ON THE BASIS THAT THE TERMINATION OF SUCH DUAL ENLISTED-OFFICER STATUS WAS EFFECTED FOR THE EXPRESS PURPOSE OF ACCEPTING A COMMISSION OR APPOINTMENT REGARDLESS OF THE FACT THAT THE MEMBER'S ENLISTMENT ACTUALLY EXPIRED AT THE TIME OF TERMINATION OF TEMPORARY APPOINTMENT. CONSEQUENTLY, IT WAS CONSIDERED THAT THERE WAS NO ENTITLEMENT TO MILEAGE (TRAVEL) ALLOWANCE AND LUMP-SUM PAYMENT FOR UNUSED LEAVE AND THERE WAS UNIFORMITY OF TREATMENT FOR ALL OFFICERS, REGARDLESS OF THE STATUS OF UNDERLYING ENLISTMENTS. DOUBT IN THE MATTER IS SAID TO HAVE ARISEN, HOWEVER, BECAUSE OF OUR DECISION OF MAY 12, 1961, 40 COMP. GEN. 622. WE HELD IN THAT DECISION THAT ALTHOUGH 38 U.S.C. 2101 (B) (1) PROVIDES THAT MUSTERING-OUT PAY MAY NOT BE PAID TO A TEMPORARY COMMISSIONED WARRANT OFFICER WITH PERMANENT ENLISTED STATUS DISCHARGED AFTER JANUARY 31, 1958, SUCH A MEMBER WAS ENTITLED TO MUSTERING -OUT PAY UPON TERMINATION OF HIS DUAL ENLISTED-OFFICER STATUS AND ACCEPTANCE OF HIS PERMANENT COMMISSION IN VIEW OF THE PROVISIONS OF 10 U.S.C. 5596 (F) WHICH SAVED TO THE MEMBER RIGHTS OR BENEFITS WHICH ACCRUED INCIDENT TO HIS ENLISTED STATUS. HOWEVER, WE HELD THE MEMBER INVOLVED WAS NOT ENTITLED TO LUMP SUM PAYMENT FOR ACCRUED LEAVE OR MILEAGE ALLOWANCE SINCE HE WAS DISCHARGED FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY. IT IS SUGGESTED IN THE COMMITTEE ACTION THAT SINCE MILEAGE ALLOWANCE AND LUMP SUM SETTLEMENT FOR ACCRUED LEAVE ARE BENEFITS WHICH, LIKE MUSTERING-OUT PAY, ACCRUE TO ENLISTED MEN AT THE TIME OF DISCHARGE, SUCH LEAVE PAYMENT AND MILEAGE ALLOWANCE SHOULD ALSO BE VIEWED AS PAYABLE AT THE SIMULTANEOUS TERMINATION OF THE TEMPORARY APPOINTMENT AND ENLISTED STATUS UNDER THOSE SAVING PROVISIONS.

THIS PRECISE QUESTION, AS IT RELATES TO MILEAGE ALLOWANCE, WAS CONSIDERED IN OUR DECISION OF SEPTEMBER 5, 1956, B-128903, TO LIEUTENANT C. H. SAMUELSON, SC, USN, DISBURSING OFFICER, UNITED STATES MARINE CORPS. THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF DAY V. UNITED STATES, 123 CT. CL. 10, HOLDING THAT UNDER LANGUAGE LIKE THAT CONTAINED IN THE CITED SAVINGS PROVISIONS THE MILEAGE ALLOWANCE PAYABLE TO A MEMBER INCIDENT TO THE SIMULTANEOUS TERMINATION OF SUCH DUAL ENLISTED- OFFICER STATUS IS THAT WHICH ACCRUES TO AN OFFICER UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY, WE HELD THAT SINCE THE PERSON CONCERNED WAS SERVING ON ACTIVE DUTY AS AN OFFICER AND NOT SOLELY AS AN ENLISTED MAN AND WAS SEPARATED FOR THE PURPOSE OF CONTINUING ON ACTIVE DUTY IN ANOTHER STATUS, PAYMENT OF MILEAGE WAS PRECLUDED BY THE PROVISIONS OF PARAGRAPH 4157-4 OF THE JOINT TRAVEL REGULATIONS PROHIBITING THE PAYMENT OF MILEAGE TO OFFICERS SEPARATED FOR SUCH PURPOSE. SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, 37 U.S.C. 33 (C), SIMILARLY PROHIBITS PAYMENT FOR ACCRUED LEAVE TO MEMBERS SEPARATED FOR SUCH PURPOSE. ACCORDINGLY, SINCE THE MEMBER CONSIDERED IN THE PRESENT CASE DID NOT REVERT TO HIS PERMANENT ENLISTED RATING WHILE ON ACTIVE DUTY BUT CONTINUED ON ACTIVE DUTY AS AN OFFICER IN WHICH STATUS HE WAS SERVING AT THE TIME OF DISCHARGE FOR THE PURPOSE OF CONTINUING ON ACTIVE DUTY IN ANOTHER STATUS, NO RIGHT TO MILEAGE ALLOWANCE OR LUMP-SUM LEAVE PAYMENT ACCRUED TO HIM INCIDENT TO HIS SEPARATION. THE STATEMENT MADE IN OUR DECISION OF MAY 12, 1961, 40 COMP. GEN. 622, CONCERNING THE APPLICATION OF THE SAVINGS PROVISIONS OF 10 U.S.C. 5596 (F) WAS NOT INTENDED TO INDICATE A DIFFERENT VIEW OR AS MODIFYING OUR DECISION OF SEPTEMBER 5, 1956, B 128903.

QUESTION 1 IS ANSWERED IN THE NEGATIVE. IN THE LIGHT OF THE ANSWER TO QUESTION 1, NO ANSWER IS REQUIRED TO QUESTION 2. IN ANSWER TO QUESTION 3, SINCE AN ENLISTED MEMBER SERVING AS A TEMPORARY OFFICER UNDER THE PROVISIONS OF 10 U.S.C. 5597 HOLDS A DUAL STATUS AS ENLISTED MAN AND OFFICER UNDER THE PROVISIONS OF 10 U.S.C. 5596, IT APPEARS THAT THE ANSWER TO QUESTION 1 HAS EQUAL APPLICATION HERE. HENCE, NO PAYMENT OF MILEAGE ALLOWANCE OR PAYMENT FOR ACCRUED LEAVE IS AUTHORIZED INCIDENT TO THE TERMINATION OF SUCH DUAL ENLISTED MAN-OFFICER STATUS. SINCE QUESTION 3 IS ANSWERED IN THE NEGATIVE, NO ANSWER IS REQUIRED TO QUESTION 4.