B-158302, MAR. 4, 1966, 45 COMP. GEN. 548

B-158302: Mar 4, 1966

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PAY - RETIRED - EFFECTIVE DATE - MORE THAN ONE APPLICATION FOR RETIREMENT - FLEET RESERVISTS A MARINE CORPS ENLISTED MAN WHOSE THIRD APPLICATION FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE WAS APPROVED OCTOBER 27. AFTER THE FIRST AUTHORIZATION WAS REVOKED. FAILED BECAUSE IT WAS NEVER RECEIVED BY THE COMMANDING OFFICER OR THE MEMBER MUST BE REGARDED AS HAVING BEEN EFFECTIVELY TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON NOVEMBER 30. ARE FOR USE IN THE COMPUTATION OF THE MEMBER'S RETAINER PAY RATHER THAN THE LOWER RATES WHICH WERE IN EFFECT PRIOR TO SEPTEMBER 1. 1966: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1. YOUR REQUEST WAS ASSIGNED CONTROL NO. AUTHORIZED THE APPROPRIATE COMMANDING OFFICER TO TRANSFER SERGEANT PUCKETT (WHOSE INITIAL APPLICATION FOR TRANSFER WAS DATED MAY 20.

B-158302, MAR. 4, 1966, 45 COMP. GEN. 548

PAY - RETIRED - EFFECTIVE DATE - MORE THAN ONE APPLICATION FOR RETIREMENT - FLEET RESERVISTS A MARINE CORPS ENLISTED MAN WHOSE THIRD APPLICATION FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE WAS APPROVED OCTOBER 27, 1956, AUTHORIZING TRANSFER EFFECTIVE NOVEMBER 30, 1965, AFTER THE FIRST AUTHORIZATION WAS REVOKED, AND THE SECOND ORDER DIRECTING REINSTATEMENT OF THE TRANSFER EFFECTIVE AUGUST 31, 1965, FAILED BECAUSE IT WAS NEVER RECEIVED BY THE COMMANDING OFFICER OR THE MEMBER MUST BE REGARDED AS HAVING BEEN EFFECTIVELY TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON NOVEMBER 30, 1965, AND, THEREFORE, THE HIGHER RATES OF PAY PRESCRIBED IN THE PAY INCREASE ACT EFFECTIVE AFTER SEPTEMBER 1, 1965, ARE FOR USE IN THE COMPUTATION OF THE MEMBER'S RETAINER PAY RATHER THAN THE LOWER RATES WHICH WERE IN EFFECT PRIOR TO SEPTEMBER 1, 1965.

TO MAJOR G. OPACIC, UNITED STATES MARINE CORPS, MARCH 4, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1965, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET MARINE CORPS RESERVE OF STAFF SERGEANT HAROLD C. PUCKETT, 1162005, UNDER THE CIRCUMSTANCES SET FORTH BELOW. YOUR REQUEST WAS ASSIGNED CONTROL NO. DO-MC-886 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN CHRONOLOGICAL ORDER THE FOLLOWING EVENTS OCCURRED:

(1) AUTHORIZATION FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE ISSUED BY THE COMMANDANT OF THE MARINE CORPS, ON JULY 9, 1965, AUTHORIZED THE APPROPRIATE COMMANDING OFFICER TO TRANSFER SERGEANT PUCKETT (WHOSE INITIAL APPLICATION FOR TRANSFER WAS DATED MAY 20, 1965) TO THE FLEET MARINE CORPS RESERVE, CLASS 1 (D), EFFECTIVE AUGUST 31, 1965.

(2) MARINE CORPS ORDER NO. 1900.12, ISSUED AUGUST 13, 1965, BY THE COMMANDANT OF THE MARINE CORPS (WITH THE APPROVAL OF SECRETARY OF THE NAVY), SETTING FORTH THE SEPARATION POLICY FOR REGULAR MARINE CORPS PERSONNEL, IN PERTINENT PART PROVIDED:

B. REGULAR ENLISTED PERSONNEL.

(2) ORDERS FOR TRANSFER OF PERSONNEL TO FMCR WITH AN EFFECTIVE DATE OF 31AUG65 OR LATER, ARE CANCELLED. REQUESTS FOR TRANSFER TO FMCR WILL BE DEFERRED FOR A PERIOD NOT TO EXCEED 12 MONTHS. REQUESTS MAY BE RESUBMITTED UNDER HUMANITARIAN/HARDSHIP CRITERIA. DECISIONS WILL BE BASED ON INDIVIDUAL HARDSHIP AND NEEDS OF THE MARINE CORPS. IN NO CASE WILL THIS PERIOD EXCEED THE EAS OF CURRENT ENLISTMENT PLUS AUTHORIZED 4 MONTHS INVOLUNTARY EXTENSION. MARCORMAN PARAS 1133.3D AND E ARE NOT APPLICABLE IN CASE OF INVOLUNTARY EXTENSIONS.

(3) ON AUGUST 18, 1965, SERGEANT PUCKETT RESUBMITTED A REQUEST FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE TO TAKE EFFECT AUGUST 31, 1965. IN RESPONSE TO THIS REQUEST SERGEANT PUCKETT'S COMMANDING OFFICER WAS INSTRUCTED BY THE COMMANDANT OF THE MARINE CORPS IN DISPATCH ORDER DATED AUGUST 25, 1965, THAT THE PROVISIONS OF MARINE CORPS ORDER NO. 1900.12 WERE WAIVED IN SERGEANT PUCKETT'S CASE AND THAT HE SHOULD CARRY INTO EFFECT THE PROVISIONS OF THE TRANSFER AUTHORIZATION OF JULY 9, 1965, AND TRANSFER SERGEANT PUCKETT TO THE FLEET MARINE CORPS RESERVE EFFECTIVE AUGUST 31, 1965.

(4) IT IS STATED THAT "THIS COMMUNICATION (WE UNDERSTAND THIS AS REFERRING TO THE DISPATCH ORDER OF AUGUST 25, 1965) WAS NOT RECEIVED BY PROPER AUTHORITY; SERGEANT PUCKETT WAS NOT RELEASED FROM ACTIVE DUTY ON 31 AUGUST 1965" AND THAT "THE ORDERS DIRECTING SERGEANT PUCKETT'S TRANSFER WERE NOT DELIVERED TO HIM BUT INSTEAD WERE SUBSEQUENTLY RETURNED TO HEADQUARTERS MARINE CORPS.'

(5) ON OCTOBER 15, 1965, THE DISPATCH ORDER OF AUGUST 25, 1965, WAS REVOKED BY THE COMMANDANT OF THE MARINE CORPS AND IT HAS BEEN INFORMALLY ASCERTAINED THAT SERGEANT PUCKETT WAS NOTIFIED THAT IF HE STILL DESIRED TO BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE TO SUBMIT ANOTHER APPLICATION. HE SUBMITTED A THIRD APPLICATION ON OCTOBER 18, 1965, WHICH WAS APPROVED BY THE COMMANDANT OF THE MARINE CORPS IN TRANSFER AUTHORIZATION ISSUED OCTOBER 27, 1965, WAIVING THE PROVISIONS OF MARINE CORPS ORDER NO. 1900.12A AND AUTHORIZING HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE EFFECTIVE NOVEMBER 30, 1965.

THE BASIC REASON UNDERLYING THE NEED OF ESTABLISHING PRECISELY THE EFFECTIVE DATE OF SERGEANT PUCKETT'S TRANSFER TO THE FLEET MARINE CORPS RESERVE IS FOUND IN PUBLIC LAW 89-132, AUGUST 21, 1965, 79 STAT. 545-548, WHICH INCREASED THE MONTHLY RATES OF BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES EFFECTIVE SEPTEMBER 1, 1965. IF SERGEANT PUCKETT'S TRANSFER TO THE FLEET MARINE CORPS RESERVE DID NOT BECOME EFFECTIVE UNTIL NOVEMBER 30, 1965, HIS RETAINER PAY WILL BE COMPUTED ON THE BASIS OF THE HIGHER RATES OF PAY PRESCRIBED IN PUBLIC LAW 89 132. ON THE OTHER HAND, IF HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE BECAME EFFECTIVE ON AUGUST 21, 1965, HIS RETAINER PAY WILL BE BASED ON THE LOWER RATES OF ACTIVE DUTY BASIC PAY WHICH WERE IN EFFECT PRIOR TO SEPTEMBER 1, 1965. SEE 10 U.S.C. 6330 (C).

THE TRANSFER AUTHORIZATION OF JULY 9, 1965, AUTHORIZING SERGEANTPUCKETT'S TRANSFER TO THE FLEET MARINE CORPS RESERVE EFFECTIVE AUGUST 31, 1965, WAS CANCELED BY MARINE CORPS ORDER NO. 1900.12 DATED AUGUST 13, 1965. SERGEANT PUCKETT APPARENTLY WAS PROMPTLY ADVISED OF SUCH CANCELLATION AND HIS FIRST APPLICATION FOR TRANSFER THUS CAME TO NAUGHT.

IN CONNECTION WITH HIS SECOND APPLICATION FOR TRANSFER DATED AUGUST 18, 1965, THE COMMANDANT OF THE MARINE CORPS INSTRUCTED THE SERGEANT'S COMMANDING OFFICER IN THE DISPATCH ORDER OF AUGUST 25, 1965, THAT THE PROVISIONS OF MARINE CORPS ORDER NO. 1900.12 WERE WAIVED AND TO EXECUTE THE TRANSFER AUTHORIZATION OF JULY 9, 1965. PARAGRAPH 13406, MARINE CORPS PERSONNEL MANUAL, RELATING TO TRANSFER TO THE FLEET MARINE CORPS RESERVE AND RELEASE FROM ACTIVE DUTY IN PERTINENT PART PROVIDES AS FOLLOWS:

1. ENLISTED PERSONNEL SHALL BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ONLY UPON AUTHORITY OF THE COMMANDANT OF THE MARINE CORPS. TRANSFERS SHALL BE EFFECTED ON THE LAST DAY OF THE MONTH AND PERSONNEL WILL ASSUME THEIR STATUS AS MEMBERS OF THE FLEET MARINE CORPS RESERVE ON THE FIRST DAY OF THE FOLLOWING MONTH. * * * EXCEPT IN TIME OF WAR OR NATIONAL EMERGENCY, PERSONNEL TRANSFERRED TO THE FLEET MARINE CORPS RESERVE SHALL BE RELEASED FROM ACTIVE DUTY ON DATE OF SUCH TRANSFER, UNLESS AN ORDER TO THE CONTRARY HAS BEEN RECEIVED.

2. TRANSFER TO THE FLEET MARINE CORPS RESERVE SHALL NOT BE MADE ON A DATE OTHER THAN AS CONTAINED IN THE AUTHORIZATION, UNLESS THE COMMANDANT OF THE MARINE CORPS' AUTHORITY FOR A CHANGE IN THE DATE IS FIRST OBTAINED. * *

WHERE A DISEASE OR INJURY OCCURS AFTER THE INDIVIDUAL HAS SUBMITTED HIS REQUEST FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE IT IS PROVIDED THAT "IF THE AUTHORIZATION FOR TRANSFER HAS BEEN RECEIVED, IT SHOULD BE RETURNED WITH THE REPORT (OUTLINING THE CIRCUMSTANCES OF THE DISEASE OR INJURY).'

IN SUBPARAGRAPH 4 OF PARAGRAPH 13406 IT IS PROVIDED THAT "COMMANDS EFFECTING AN INDIVIDUAL'S TRANSFER TO THE FLEET MARINE CORPS RESERVE AND RELEASE TO INACTIVE STATUS SHALL SEE THAT THE FOLLOWING PROCEDURE (DISPOSITION OF THE COMMANDER'S ORDER TO THE INDIVIDUAL TRANSFERRING HIM TO THE FLEET MARINE CORPS RESERVE, HEALTH RECORD, SERVICE RECORD, ETC.) IS COMPLIED WITH.'

THE LANGUAGE OF PARAGRAPH 13406 AS A WHOLE, AND IN PARTICULAR THE PHRASES ABOVE UNDERLINED, CLEARLY ESTABLISH THAT THE TRANSFER AUTHORIZATION OF JULY 9, 1965, FROM THE COMMANDANT OF THE MARINE CORPS WAS JUST THAT--- AN AUTHORIZATION EMPOWERING THE SUBJECT MAN'S COMMANDING OFFICER TO TRANSFER HIM (SERGEANT PUCKETT) TO THE FLEET MARINE CORPS RESERVE EFFECTIVE AUGUST 31, 1965. SUCH AUTHORIZATION, HOWEVER, WAS NOT SELF-EXECUTING AND IN THE ABSENCE OF APPROPRIATE AND TIMELY ACTION THEREUNDER BY SERGEANT PUCKETT'S COMMANDING OFFICER HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE DID NOT BECOME EFFECTIVE ON AUGUST 31, 1965.

AS PREVIOUSLY STATED, THE COMMANDANT'S DISPATCH ORDER OF AUGUST 25, 1965, DIRECTING THE SUBJECT MAN'S COMMANDING OFFICER TO CARRY INTO EFFECT THE TRANSFER AUTHORIZATION OF JULY 9, 1965, WAS NEVER DELIVERED TO PROPER AUTHORITY AND IN THE MONTH OF OCTOBER 1965 SUCH DISPATCH WAS RETURNED TO HEADQUARTERS MARINE CORPS. THERE IS NOTHING OF RECORD TO SHOW THAT SERGEANT PUCKETT OR HIS COMMANDING OFFICER HAD ANY KNOWLEDGE, CONSTRUCTIVE OR OTHERWISE, OF THE DISPATCH ORDER OF AUGUST 25, 1965, WHEN IT WAS STILL POSSIBLE TO CARRY OUT THE INSTRUCTIONS CONTAINED THEREIN. HENCE, THERE AROSE NO OPPORTUNITY FOR THEM TO EFFECT THE TRANSFER AUTHORIZED BY THE COMMUNICATION OF JULY 9, 1965, AS SUPPLEMENTED BY THE DISPATCH ORDER OF AUGUST 25, 1965. IN SUCH CIRCUMSTANCES, SERGEANT PUCKETT'S SECOND APPLICATION FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE LIKEWISE FAILED TO ACCOMPLISH ITS PURPOSE.

SERGEANT PUCKETT'S THIRD APPLICATION DATED OCTOBER 18, 1965, WAS APPROVED BY THE COMMANDANT OF THE MARINE CORPS AND HE WAS SUBSEQUENTLY TRANSFERRED TO THE FLEET MARINE CORPS RESERVE EFFECTIVE NOVEMBER 30, 1965. HE IS ENTITLED, THEREFORE, TO COMPUTE HIS RETAINER PAY EFFECTIVE FROM DECEMBER 1, 1965, ON THE RATE OF BASIC PAY HE WAS RECEIVING AT THE TIME OF HIS TRANSFER ON NOVEMBER 30, 1965. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.