B-157678, OCT. 29, 1965, 45 COMP. GEN. 218

B-157678, OCT. 29, 1965, 45 COMP. GEN. 218

PAY - ACTIVE DUTY - DATE OF REPORTING TO DUTY - RESERVISTS - CONSTRUCTIVE ENLISTMENT A DISCHARGED MEMBER OF THE NAVAL RESERVE WHO UNDER ORDERS ISSUED IN THE BELIEF HE WAS STILL A MEMBER RATHER THAN A CIVILIAN PROCEEDED FROM HIS HOME TO THE PLACE HE WAS ORDERED TO REPORT FOR A PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR ACTIVE DUTY, AT WHICH PLACE HE IMMEDIATELY REENLISTED IN THE SERVICE AND WAS TRANSFERRED TO A PERMANENT DUTY STATION, IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR TRAVEL TIME TO THE POINT OF REENLISTMENT, INCLUDING TRAVEL ALLOWANCES AND TRANSPORTATION FOR DEPENDENTS, THE MEMBER HAVING CONSTRUCTIVELY ENTERED UPON MILITARY DUTY IN A DE JURE STATUS ON THE DAY HE DEPARTED FROM HIS HOME TO COMPLY WITH HIS ORDERS.

TO M. G. BENDER, DEPARTMENT OF THE NAVY, OCTOBER 29, 1965:

THERE HAS BEEN RECEIVED BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY DATED SEPTEMBER 15, 1965, YOUR LETTER DATED AUGUST 5, 1965, AND ENCLOSURES REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY FOR PAYMENT OF CLAIMS FOR ACTIVE DUTY PAY AND ALLOWANCES FOR TRAVEL TIME AND FOR REIMBURSEMENT OF TRAVEL EXPENSES AND TRANSPORTATION OF DEPENDENTS IN THE CASE OF FREDERICK L. VEZAIN, AMS 3, UNITED STATES NAVY RESERVE-R. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-872, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY ACTIVE DUTY ORDERS DATED MAY 27, 1965, AS ORIGINALLY ISSUED, ADDRESSED TO FREDERICK L. VEZAIN AT DENVER, COLORADO, ON THE BASIS THAT HE WAS A MEMBER OF THE NAVAL RESERVE, HE WAS ORDERED TO REPORT TO THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, OLATHE, KANSAS, ON JUNE 16, 1965, FOR PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR ACTIVE DUTY, AND IF FOUND PHYSICALLY QUALIFIED HE WAS TO BE TRANSFERRED TO THE NAVAL AIR STATION, SOUTH WEYMOUTH, MASSACHUSETTS, FOR DUTY. TRAVEL BY PRIVATELY OWNED VEHICLE WAS AUTHORIZED AND HE WAS ALSO AUTHORIZED 2 DAYS' TRAVEL TIME, WITH ACTIVE DUTY TO BEGIN ON THE DAY HE WAS REQUIRED TO COMMENCE TRAVEL IN ORDER TO REPORT ON THE DATE STATED. THOSE ORDERS WERE AMENDED, HOWEVER, TO SHOW HIS ADDRESS FOR PURPOSES OF ENTRANCE ON ACTIVE DUTY TO BE OLATHE, KANSAS, AND CHANGE THE TRAVEL TIME AUTHORIZED FROM 2 DAYS TO 0 DAYS.

THE RECORD SHOWS THAT THE MEMBER WAS LAST DISCHARGED FROM THE NAVAL RESERVE ON OCTOBER 20, 1963, AND THAT HE WAS NOT REENLISTED UNTIL JUNE 16, 1965, AT OLATHE, KANSAS. YOU STATE THAT IT APPEARS THAT THROUGH ADMINISTRATIVE ERROR THE ORDERS OF MAY 27, 1965, WERE PREPARED IN THE BELIEF THAT VEZAIN WAS A MEMBER OF THE NAVAL RESERVE WHEN IN FACT HE WAS A CIVILIAN WHO HAD EXPRESSED AN INTENTION TO REENLIST IN THE NAVAL RESERVE FOR IMMEDIATE ACTIVE DUTY. HE WAS PAID ACTIVE DUTY PAY COMMENCING JUNE 16, 1965, AND FOR HIS TRAVEL AND THAT OF HIS DEPENDENTS FROM OLATHE, KANSAS, TO SOUTH WEYMOUTH, MASSACHUSETTS. HOWEVER, YOU SUGGEST THAT THE PAYMENT OF VEZAIN'S CLAIMS MAY BE JUSTIFIED SINCE IT APPEARS THAT HE PERFORMED THE TRAVEL FROM DENVER TO OLATHE IN GOOD FAITH BELIEVING HE WAS ENTITLED TO PAY AND ALLOWANCES FOR THE TRAVEL TIME TO OLATHE, TRAVEL EXPENSES FOR THE TRAVEL PERFORMED TO THAT STATION, AND DEPENDENT'S TRAVEL FROM DENVER TO SOUTH WEYMOUTH, MASSACHUSETTS, LESS THE PREVIOUS PAYMENT FOR THE DISTANCE FROM OLATHE TO SOUTH WEYMOUTH.

IT HAS BEEN HELD THAT THE DATE FROM WHICH AN ENLISTED MEMBER IS ENTITLED TO PAY AND ALLOWANCES IS THE DATE OF THE FINAL ACT WHICH COMPLETES THE ENLISTMENT CONTRACT AND CHANGES HIS STATUS FROM THAT OF A CIVILIAN TO THAT OF A SOLDIER. SEE 19 COMP. DEC. 367; 6 COMP. GEN. 500, AND B-125286, DATED JANUARY 3, 1956. IN THIS REGARD, WE HAVE RECOGNIZED CONSTRUCTIVE ENLISTMENTS (INCLUDING IN SUCH CATEGORY CASES OF RESERVISTS REPORTING FOR ACTIVE DUTY) IN THE MILITARY SERVICE WHERE PERSONS OTHERWISE QUALIFIED TO ENLIST ENTER UPON AND RENDER FULL MILITARY DUTY AND THE GOVERNMENT ACCEPTS SUCH SERVICES WITHOUT CONDITION, AND WE HAVE STATED THAT SUCH CONSTRUCTIVE ENLISTMENTS MAY BE REGARDED AS IN EFFECT DE JURE ENLISTMENTS. 33 COMP. GEN. 34; B 148415, APRIL 24, 1962.

IN THIS CASE, THE MEMBER PROCEEDED FROM HIS HOME IN DENVER TO OLATHE, PURSUANT TO THE REQUIREMENTS OF THE ORDERS OF MAY 27, 1965, AT WHICH PLACE HE WAS IMMEDIATELY REENLISTED IN THE SERVICE TO CONTINUE IN THE PERFORMANCE OF THE ACTIVE DUTY DIRECTED BY THOSE ORDERS. THEREFORE, WE ARE OF THE VIEW THAT HE CONSTRUCTIVELY ENTERED UPON MILITARY DUTY IN A DE JURE STATUS ON JUNE 15, 1965, UPON HIS NECESSARY DEPARTURE FROM DENVER IN COMPLIANCE WITH HIS ORDERS AND SO SHOULD BE CONSIDERED AS ENTITLED TO THE CLAIMED PAY AND ALLOWANCES, INCLUDING TRAVEL ALLOWANCES AND TRANSPORTATION OF DEPENDENTS, ON THAT BASIS.

ACCORDINGLY, THE ENCLOSURES TO YOUR LETTER ARE RETURNED AND IF OTHERWISE PROPER, PAYMENT OF THE CLAIMS IS AUTHORIZED AS INDICATED ABOVE.