B-149114, JANUARY 28, 1963, 42 COMP. GEN. 399

B-149114, JANUARY 28, 1963, 42 COMP. GEN. 399

DISCHARGES AND DISMISSALS - MILITARY PERSONNEL - RESERVISTS - EARLY RELEASE FROM ACTIVE DUTY PRIOR TO ENLISTMENT EXPIRATION A NAVAL RESERVIST SERVING UNDER A 6-YEAR ENLISTMENT WHO IS RELEASED WITHIN 3 MONTHS BEFORE THE EXPIRATION OF A PRESCRIBED 2-YEAR PERIOD OF ACTIVE DUTY FOR THE PURPOSE OF REENLISTING IN THE REGULAR NAVY WITHOUT A BREAK IN SERVICE, ALTHOUGH HIS RESERVE ENLISTMENT WOULD NOT BE COMPLETED UNTIL SEVERAL YEARS LATER, IS NOT CONSIDERED DISCHARGED FROM ACTIVE DUTY UNDER 10 U.S.C. 6295 TO ENTITLE HIM TO PAYMENT OF LUMP-SUM LEAVE UNDER THE ARMED FORCES LEAVE ACT OF 1946 (37 U.S.C. 501), AND MILEAGE ALLOWANCE PURSUANT TO 37 U.S.C. 404, SECTION 6295, PROVIDING FOR THE DISCHARGE OF A MEMBER OF THE REGULAR NAVY WITHIN 3 MONTHS BEFORE THE EXPIRATION OF THE TERM OF HIS ENLISTMENT WITHOUT AFFECTING THE MONETARY BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE COMPLETED HIS ENLISTMENT, EXCEPT PAY AND ALLOWANCES FOR THE PERIOD NOT SERVED, HAVING NO APPLICATION TO A RESERVIST GIVEN AN EARLY RELEASE FROM A TERM OF ACTIVE DUTY BUT WHOSE ENLISTMENT CONTINUED IN EFFECT FOR A PERIOD OF MORE THAN 3 MONTHS AFTER RELEASE.

TO THE SECRETARY OF THE NAVY, JANUARY 28, 1963:

REFERENCE IS MADE TO LETTER OF DECEMBER 3, 1962, FROM THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS AND LOGISTICS), ASSIGNED SUBMISSION NO. SS-N-679 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, REQUESTING DECISION AS TO WHETHER AN ENLISTED MEMBER OF THE NAVAL RESERVE SERVING UNDER A 6-YEAR ENLISTMENT, WHO IS RELEASED WITHIN 3 MONTHS PRIOR TO THE EXPIRATION OF A PRESCRIBED 2 YEAR PERIOD OF ACTIVE DUTY FOR THE PURPOSE OF REENLISTING IN THE REGULAR NAVY IS ENTITLED TO LUMP-SUM LEAVE AND MILEAGE ALLOWANCE PAYMENTS.

THE ASSISTANT SECRETARY REFERS TO OUR DECISION TO YOU OF JULY 11, 1962, B -149114, 42 COMP. GEN. 35, IN WHICH IT WAS HELD THAT A NAVAL RESERVIST INVOLUNTARILY RECALLED TO ACTIVE DUTY UNDER 10 U.S.C. 672 (A) OR 10 U.S.C. 673 IMMEDIATELY AFTER COMPLETING HIS PRESCRIBED PERIOD OF ACTIVE SERVICE, IS ENTITLED TO PAYMENT FOR ACCRUED LEAVE AND MILEAGE ALLOWANCE. THE ASSISTANT SECRETARY ASSUMES FROM THE LANGUAGE USED IN THAT DECISION THAT DECISION THAT LUMP-SUM LEAVE AND MILEAGE ALLOWANCE ENTITLEMENT WOULD LIKEWISE EXIST IN THE CASE OF A NAVAL RESERVIST WHO ENLISTS IN THE REGULAR NAVY WITHOUT A BREAK IN SERVICE FOLLOWING COMPLETION OF A PRESCRIBED TOUR OF ACTIVE DUTY TO WHICH ORDERED, EVEN THOUGH HIS RESERVE ENLISTMENT HAS NOT EXPIRED, SINCE HIS RELEASE FROM ACTIVE DUTY IS REGARDED AS A "DISCHARGE" WITHIN THE MEANING OF 37 U.S.C. 501. IN THIS REGARD, THE ANSWER TO THE QUESTION CONSIDERED IN THE DECISION OF JULY 11, 1962, TURNED ON THE PROPOSITION THAT, UNDER APPLICABLE LAW, THE INDIVIDUALS CONCERNED ACQUIRED A VESTED RIGHT TO THE BENEFITS INVOLVED UPON THEIR "DISCHARGE" AND AN IMMEDIATE RECALL TO INVOLUNTARY ACTIVE DUTY COULD NOT BE APPLIED TO DEFEAT SUCH RIGHT.

THE ASSISTANT SECRETARY SAYS THAT QUESTION ARISES AS TO WHETHER ENTITLEMENT TO LUMP-SUM LEAVE AND MILEAGE ALLOWANCE WOULD ACCRUE IF THE RESERVIST WERE RELEASED FROM ACTIVE DUTY WITHIN 3 MONTHS BEFORE THE EXPIRATION OF HIS PRESCRIBED TERM OF ACTIVE SERVICE FOR REENLISTMENT IN THE REGULAR NAVY, ALTHOUGH HIS RESERVE ENLISTMENT WOULD NOT BE COMPLETED UNTIL SEVERAL YEARS LATER. AS AN EXAMPLE, THE ASSISTANT SECRETARY REFERS TO THE CASE OF A MEMBER ENLISTED IN THE NAVAL RESERVE FOR 6 YEARS ON NOVEMBER 10, 1958, WHO WAS ORDERED TO ACTIVE DUTY FOR A 2-YEAR PERIOD ON SEPTEMBER 15, 1960, AND ON JULY 2, 1962, WAS RELEASED FROM ACTIVE DUTY FOR THE CONVENIENCE OF THE GOVERNMENT FOR THE PURPOSE OF REENLISTING IN THE REGULAR NAVY. THE ASSISTANT SECRETARY FURTHER STATES THAT SINCE THE TERM "DISCHARGE" AS USED IN THE ARMED FORCES LEAVE ACT OF 1946 (THE PERTINENT PROVISIONS ARE NOW CODIFIED IN 37 U.S.C. 501) INCLUDES A RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, THERE IS SOME QUESTION AS TO WHETHER A RESERVIST WHO IS GIVEN AN EARLY (WITHIN 3 MONTHS) RELEASE FROM ACTIVE DUTY TO REENLIST IN THE REGULAR NAVY, MAY BE CONSIDERED TO HAVE BEEN ,DISCHARGED" FOR PURPOSES OF ENTITLEMENT TO PAYMENT OF LUMP-SUM LEAVE AND MILEAGE ALLOWANCE.

A MEMBER OF THE ARMED FORCES IS ENTITLED UNDER THE PROVISIONS OF 37 U.S.C. 501 TO COMPENSATION IN CASH FOR UNUSED ACCRUED LEAVE (NOT IN EXCESS OF 60 DAYS) TO HIS CREDIT AT THE TIME OF HIS DISCHARGE, EXCEPT, INSOFAR AS HERE CONCERNED, NO CASH SETTLEMENT IS AUTHORIZED TO ANY MEMBER WHO IS DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF DISCHARGE. SEE 37 U.S.C. 501 (B) (1). A DISCHARGE AT EXPIRATION OF A PRESCRIBED TERM OF SERVICE FOLLOWED BY REENLISTMENT IS NOT, HOWEVER, REGARDED AS A DISCHARGE FOR PURPOSE OF ENLISTMENT (30 COMP. GEN. 103; ID. 280; ID. 531), AND THE TERM DISCHARGE" IS DEFINED IN THE ACT (37 U.S.C. 501 (A) (1) ( AS INCLUDING RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS. PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 404, DOES NOT PRECLUDE PAYMENT OF MILEAGE ALLOWANCE TO A MEMBER RELIEVED FROM ACTIVE DUTY FOR THE PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS WHEN THE RELEASE FROM ACTIVE DUTY IS AT THE EXPIRATION OF HIS PRESCRIBED TERM OF SERVICE.

AUTHORITY FOR THE DISCHARGE OF A MEMBER OF THE REGULAR NAVY WITHIN 3 MONTHS BEFORE THE EXPIRATION OF THE TERM OF HIS ENLISTMENT,WITHOUT AFFECTING ANY MONETARY BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE COMPLETED HIS ENLISTMENT, EXCEPT PAY AND ALLOWANCES FOR THE PERIOD NOT SERVED, IS CONTAINED IN 10 U.S.C. 6295. THESE PROVISIONS FORMERLY WERE CONTAINED IN THE ACT OF AUGUST 22, 1912, CH. 335, 37 STAT. 331, 34 U.S.C. 195 (1952 ED.). IN OUR DECISION OF JANUARY 10, 1951, 30 COMP. GEN. 280, IT WAS HELD THAT THOSE EARLY DISCHARGE PROVISIONS ARE APPLICABLE TO MEMBERS OF THE NAVAL RESERVE. THUS, IT WAS HELD THAT AN ENLISTED MEMBER OF THE NAVAL RESERVE UPON EARLY DISCHARGE AND IMMEDIATE REENLISTMENT WAS ENTITLED TO PAYMENT FOR UNUSED LEAVE. THAT DECISION GAVE CONSIDERATION TO SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 1177, 34 U.S.C. 853E (1946 ED.), WHICH PROVIDED THAT ENLISTED MEN OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY WITH PAY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ENLISTED MEN OF THE REGULAR NAVY OF THE SAME GRADE OR RATING AND THE SAME LENGTH OF SERVICE. WHILE THAT PROVISION WAS REPEALED BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505, 34 U.S.C. 854 NOTE (1952 ED.), RESERVE AND REGULAR ENLISTED MEN ON ACTIVE DUTY WITH PAY RECEIVE THE SAME PAY AND ALLOWANCES UNDER 37 U.S.C. 203.

SECTION 6295, TITLE 10, U.S. CODE, HOWEVER, RELATES ONLY TO AN ENLISTED MAN OF THE REGULAR NAVY WHO IS "DISCHARGED WITHIN THREE MONTHS BEFORE THE EXPIRATION OF THE TERM OF HIS ENLISTMENT OR EXTENDED ENLISTMENT.' IT HAS NO APPLICATION IN THE CASE OF AN EARLY RELEASE FROM ACTIVE DUTY OF A NAVAL RESERVIST AS SUCH. SINCE THAT SECTION SPECIFICALLY APPLIES ONLY TO A DISCHARGE WITHIN 3 MONTHS OF EXPIRATION OF ENLISTMENT OR EXTENDED ENLISTMENT, THERE APPEARS TO BE NO BASIS TO CONCLUDE THAT IT HAS ANY APPLICATION IN THE CASE OF A RESERVIST WHO IS GIVEN AN EARLY RELEASE FROM A TERM OF ACTIVE DUTY BUT WHOSE ENLISTMENT CONTINUES IN EFFECT FOR A PERIOD OF MORE THAN 3 MONTHS AFTER SUCH RELEASE. IT WILL BE NOTED THAT 30 COMP. GEN. 280 INVOLVED THE CASE OF A RESERVIST WHO WAS DISCHARGED WITHIN 3 MONTHS OF THE EXPIRATION OF HIS ENLISTMENT. THAT DECISION WAS NOT INTENDED TO IMPLY THAT A RESERVIST WHO IS GIVEN AN EARLY RELEASE FROM A TERM OF ACTIVE DUTY BUT WHOSE ENLISTMENT CONTINUES IN EFFECT IS ENTITLED TO ANY BENEFITS BY REASON OF 10 U.S.C. 6295. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.