B-148415, APR. 24, 1962

B-148415: Apr 24, 1962

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THE REQUEST WAS ASSIGNED SUBMISSION NO. WELCH'S RECALL TO ACTIVE DUTY AND THAT WHEN DIRECTED BY HIS COMMANDING OFFICER HE WAS TO PROCEED VIA TRANSPORTATION FURNISHED THEREWITH AND REPORT TO THE OFFICER IN CHARGE. WELCH'S STATUS WAS TO BE CHANGED IMMEDIATELY FROM TEMPORARY ACTIVE DUTY TO ACTIVE DUTY AND HE WAS TO PROCEED AS DIRECTED. WELCH'S ORDERS SHOW THAT THEY WERE DELIVERED TO HIM IN EL PASO. WHERE HE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED. HE WAS THEN TRANSFERRED AND ORDERED TO REPORT NOT LATER THAN 12:00 P.M. WE HAVE LONG RECOGNIZED CONSTRUCTIVE ENLISTMENTS IN THE MILITARY SERVICE WHERE A PERSON OTHERWISE QUALIFIED TO ENLIST ENTERS UPON AND RENDERS FULL MILITARY DUTY AND THE GOVERNMENT ACCEPTS SUCH SERVICES WITHOUT CONDITION.

B-148415, APR. 24, 1962

TO LIEUTENANT (JG) J. K. MULLEN, SC, USN:

YOUR LETTER OF FEBRUARY 9, 1962, FORWARDED BY THE COMPTROLLER OF THE NAVY ON MARCH 14, 1962, REQUESTS A DECISION WHETHER ACTIVE DUTY PAY FOR HARRY J. WELCH, 525 67 69, SA, USNR-R, SHOULD BE COMMENCED AS OF JULY 6, 1961. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-636 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ORDERS DATED MAY 26, 1961, PROVIDED FOR MR. WELCH'S RECALL TO ACTIVE DUTY AND THAT WHEN DIRECTED BY HIS COMMANDING OFFICER HE WAS TO PROCEED VIA TRANSPORTATION FURNISHED THEREWITH AND REPORT TO THE OFFICER IN CHARGE, U.S. NAVY RECRUITING STATION, ALBUQUERQUE, NEW MEXICO, PRIOR TO 8:00 A.M. ON JULY 20, 1961, FOR TEMPORARY ACTIVE DUTY FOR PHYSICAL EXAMINATION AND COMPLETION OF LOYALTY CERTIFICATE. IF FOUND PHYSICALLY QUALIFIED, MR. WELCH'S STATUS WAS TO BE CHANGED IMMEDIATELY FROM TEMPORARY ACTIVE DUTY TO ACTIVE DUTY AND HE WAS TO PROCEED AS DIRECTED, AND REPORT TO THE COMMANDING OFFICER OF THE NEAREST ACTIVITY LISTED IN AN ENCLOSURE TO HIS ORDERS FOR OUTFITTING, CLASSIFICATION AND FURTHER ASSIGNMENT BY THE CHIEF OF NAVAL PERSONNEL. ENDORSEMENTS TO MR. WELCH'S ORDERS SHOW THAT THEY WERE DELIVERED TO HIM IN EL PASO, TEXAS, ON JULY 5, 1961, AND THAT ON JULY 6 HE DEPARTED FROM THERE AND REPORTED THE SAME DATE TO THE NAVY RECRUITING STATION, ALBUQUERQUE, NEW MEXICO, WHERE HE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED. HE WAS THEN TRANSFERRED AND ORDERED TO REPORT NOT LATER THAN 12:00 P.M., JULY 7, 1961, TO THE COMMANDING OFFICER, U.S. NAVAL STATION, SAN DIEGO, CALIFORNIA, FOR OUTFITTING, CLASSIFICATION AND FURTHER ASSIGNMENT. HE REPORTED AT SAN DIEGO AS DIRECTED AND APPARENTLY HAS CONTINUED TO SERVE ON ACTIVE DUTY.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) BY THE ACT OF MARCH 31, 1955, 69 STAT. 19), PROVIDES THAT ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST OR ON ACTIVE DUTY SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED. WE HAVE LONG RECOGNIZED CONSTRUCTIVE ENLISTMENTS IN THE MILITARY SERVICE WHERE A PERSON OTHERWISE QUALIFIED TO ENLIST ENTERS UPON AND RENDERS FULL MILITARY DUTY AND THE GOVERNMENT ACCEPTS SUCH SERVICES WITHOUT CONDITION. SEE 33 COMP. GEN. 34. IT IS NOT CLEAR WHY MR. WELCH REPORTED FOR DUTY ON JULY 6, 1961, RATHER THAN JULY 20, 1961, THE DATE SPECIFIED IN HIS ORDERS, BUT SINCE HE DEPARTED FROM HIS HOME ONLY A FEW HOURS AFTER THE ORDERS WERE DELIVERED TO HIM HE APPARENTLY CONSIDERED THAT HE WAS REQUIRED TO REPORT FOR DUTY IMMEDIATELY. HE WAS ACCEPTED FOR DUTY BY THE NAVY WHEN HE REPORTED AND HIS SERVICES CONTINUED ON AND AFTER JULY 20, 1961.

ACCORDINGLY, IF OTHERWISE PROPER, PAYMENT OF ACTIVE DUTY PAY COMMENCING JULY 6, 1961, TO MR. WELCH IS AUTHORIZED ON THE BASIS THAT HE ENTERED ON ACTIVE DUTY IN A DE JURE STATUS ON THAT DATE.