B-158437, MAR. 11, 1966

B-158437: Mar 11, 1966

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RET.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3. THE SECRETARY OF THE NAVY ADVISED YOU THAT YOUR TEMPORARY APPOINTMENT AS A COMMISSIONED OFFICER IN THE MARINE CORPS WAS TERMINATED EFFECTIVE UPON DELIVERY OF THE LETTER TO YOU AND YOUR ACCEPTANCE OF A PERMANENT APPOINTMENT IN THE MARINE CORPS RESERVE. UPON ACCEPTANCE OF APPOINTMENT AS FIRST LIEUTENANT (PERMANENT) IN THE RESERVE OF THE MARINE CORPS YOU WERE APPOINTED TO THE TEMPORARY GRADE OF CAPTAIN IN THE RESERVE OF THE MARINE CORPS WITH DATE OF RANK FROM JULY 1. THE PRECEDING DAY YOUR TEMPORARY APPOINTMENT WAS TERMINATED AND YOU WERE DISCHARGED FROM YOUR ENLISTED STATUS. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN.

B-158437, MAR. 11, 1966

TO CAPTAIN AMOUS J. KENDRICK, USMCR, RET.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1966, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 17, 1961, WHICH DISALLOWED YOUR CLAIM FOR LUMP-SUM LEAVE PAYMENT, MILEAGE AND MUSTERING-OUT PAY INCIDENT TO A CHANGE IN YOUR STATUS IN THE MARINE CORPS WHICH OCCURRED ON AUGUST 24, 1961.

THE RECORD TRANSMITTED WITH YOUR CLAIM SHOWS THAT BY LETTER DATED JUNE 21, 1961, THE COMMANDANT OF THE MARINE CORPS ADVISED YOU THAT UPON YOUR ACCEPTANCE OF A COMMISSION IN THE MARINE CORPS RESERVE YOU WOULD CONTINUE ON EXTENDED ACTIVE DUTY UNTIL JUNE 30, 1965, AND THAT SUCH CONTINUATION ON ACTIVE DUTY WOULD NOT CONSTITUTE A SEPARATION FROM THE SERVICE FOR THE PAYMENT OF MILEAGE OR FOR LUMP-SUM PAYMENT FOR ACCRUED LEAVE. BY LETTER OF JULY 21, 1961, THE SECRETARY OF THE NAVY ADVISED YOU THAT YOUR TEMPORARY APPOINTMENT AS A COMMISSIONED OFFICER IN THE MARINE CORPS WAS TERMINATED EFFECTIVE UPON DELIVERY OF THE LETTER TO YOU AND YOUR ACCEPTANCE OF A PERMANENT APPOINTMENT IN THE MARINE CORPS RESERVE. ANOTHER LETTER OF JULY 21, 1961, THE SECRETARY OF THE NAVY ADVISED YOU THAT, PURSUANT TO 10 U.S.C. 591, UPON ACCEPTANCE OF APPOINTMENT AS FIRST LIEUTENANT (PERMANENT) IN THE RESERVE OF THE MARINE CORPS YOU WERE APPOINTED TO THE TEMPORARY GRADE OF CAPTAIN IN THE RESERVE OF THE MARINE CORPS WITH DATE OF RANK FROM JULY 1, 1958. YOU ACCEPTED THIS PERMANENT APPOINTMENT ON AUGUST 25, 1961, AND THE PRECEDING DAY YOUR TEMPORARY APPOINTMENT WAS TERMINATED AND YOU WERE DISCHARGED FROM YOUR ENLISTED STATUS.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN.

IN YOUR PRESENT LETTER FOR OUR USE IN RECONSIDERING YOUR CLAIM YOU HAVE FURNISHED A RESUME OF YOUR SERVICE AND PAYMENTS RECEIVED FROM WHICH IT APPEARS THAT YOU ENLISTED FOR 4 YEARS AT NASHVILLE, TENNESSEE, ON JULY 20, 1940; THAT YOU REENLISTED AT BRITISH SOLOMON ISLANDS, GUADALCANAL, FOR 4 YEARS ON JULY 20, 1940; THAT YOU REENLISTED AT BRITISH SOLOMON ISLANDS, GUADALCANAL, FOR 4 YEARS ON JULY 20, 1944, AND RECEIVED TRAVEL ALLOWANCE AND REENLISTMENT ALLOWANCE. ON JULY 20, 1948, YOU REENLISTED FOR 4 YEARS AT CAMP JOSEPH H. PENDLETON, OCEANSIDE, CALIFORNIA, AT WHICH TIME YOU WERE PAID TRAVEL ALLOWANCE, REENLISTMENT ALLOWANCE, MUSTERING-OUT PAY AND LUMP- SUM FOR UNUSED LEAVE. ON APRIL 3, 1952, PRIOR TO EXPIRATION OF THIRD ENLISTMENT, YOU WERE APPOINTED SECOND LIEUTENANT (TEMPORARY). YOU SAY NO PAYMENTS OF THE ABOVE-NAMED TYPE WERE RECEIVED SINCE YOU WERE SERVING AS A TEMPORARY OFFICER.

YOU SERVED AS A TEMPORARY OFFICER UNTIL AUGUST 24, 1961, AT WHICH TIME, AS STATED ABOVE, SUCH APPOINTMENT WAS TERMINATED AND YOU WERE DISCHARGED FROM YOUR PERMANENT GRADE OF MASTER SERGEANT TO ACCEPT A PERMANENT APPOINTMENT AS AN OFFICER IN THE UNITED STATES MARINE CORPS RESERVE EFFECTIVE THE FOLLOWING DAY. YOU SERVED IN THE LATTER CAPACITY FROM AUGUST 25, 1961, UNTIL YOUR RETIREMENT ON JULY 1, 1965. IN THOSE CIRCUMSTANCES YOU CONTEND THAT SINCE YOUR THIRD ENLISTMENT HAD EXPIRED ON JULY 20, 1952, UPON REVERTING TO YOUR PERMANENT GRADE OF MASTER SERGEANT AND DISCHARGE ON AUGUST 24, 1961, YOU WERE ENTITLED TO TRAVEL ALLOWANCE FROM HAWAII TO FALL RIVER, MASSACHUSETTS, UNDER PARAGRAPH M4157-4 OF THE JOINT TRAVEL REGULATIONS; ALSO YOU SAY THAT SINCE AT THE CONCLUSION OF YOUR THIRD ENLISTMENT REENLISTMENT BONUSES WERE PAID ON THE BASIS OF ENLISTMENTS ALREADY SERVED AND NOT AS AN INDUCEMENT TO REENLIST, YOU ARE ENTITLED TO A BONUS OF $200 FOR THE PERIOD JULY 20, 1948, TO JULY 20, 1952. YOU FURTHER CONTEND YOU ARE ENTITLED TO A MUSTERING-OUT PAYMENT OF $300 FOR SERVICE AS AN ENLISTED MAN; THAT THIS PAYMENT WOULD HAVE BEEN MADE HAD YOU NOT BEEN APPOINTED A TEMPORARY OFFICER AND SERVED IN THAT CAPACITY UNTIL AUGUST 24, 1961, AND THAT THE CUT-OFF DATE OF JANUARY 31, 1958, MENTIONED IN THE SETTLEMENT, WAS ESTABLISHED TO INSURE PAYMENT TO PERSONS WHO HAD SERVED DURING THE KOREAN CONFLICT, NOT TO DEPRIVE THEM OF SUCH PAYMENT.

YOUR CLAIM FOR LUMP-SUM PAYMENT OF LEAVE APPARENTLY IS BASED ON PARAGRAPH 044170-1A, NAVY COMPTROLLER MANUAL, WHICH PROVIDES THAT AN ENLISTED MEMBER WHO VOLUNTARILY FIRST EXTENDS AN ENLISTMENT AS AUTHORIZED BY 10 U.S.C. 5539, IS ENTITLED TO LUMP-SUM SETTLEMENT FOR THE BALANCE OF UNUSED LEAVE. SECTION 5539 PROVIDED THAT UNDER PRESCRIBED REGULATIONS A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS COULD EXTEND HIS ENLISTMENT "BY WRITTEN AGREEMENT FOR LESS THAN ONE YEAR OR FOR A PERIOD OF ONE, TWO, THREE, OR FOUR FULL YEARS.' A MEMBER WHO EXTENDED HIS ENLISTMENT UNDER THESE PROVISIONS WAS ENTITLED TO THE SAME PAY AND ALLOWANCES, INCLUDING LUMP-SUM LEAVE PAYMENT, AS THOUGH HE HAD REENLISTED. SUCH EXTENSIONS ARE EFFECTIVE AT THE EXPIRATION OF THE ENLISTMENT THAT IS EXTENDED. YOU DID NOT EXTEND YOUR ENLISTMENT UNDER THESE PROVISIONS IN 1952. RATHER, BEFORE YOUR ENLISTMENT OF 1948 EXPIRED, YOU WERE APPOINTED A TEMPORARY OFFICER UNDER THE PROVISIONS OF 10 U.S.C. 5596. YOUR ENLISTED STATUS WAS EXTENDED DURING SUCH APPOINTMENT BY SECTION 5596/F) WHICH PROVIDES THAT TEMPORARY APPOINTMENTS UNDER THAT SECTION DO NOT CHANGE THE PERMANENT STATUS OF MEMBERS SO APPOINTED OR ABRIDGE THEIR RIGHTS OR BENEFITS. SINCE YOU HAD NOT COMPLETED YOUR ENLISTMENT AT THE TIME OF YOUR TEMPORARY APPOINTMENT AS AN OFFICER YOU WERE NOT ENTITLED TO A LUMP-SUM LEAVE PAYMENT AT THAT TIME AND SINCE THERE WAS NO EXTENSION OF YOUR ENLISTMENT UNDER 10 U.S.C. 5539 WHILE YOU SERVED UNDER THE TEMPORARY APPOINTMENT AS AN OFFICER, YOU WERE NOT ENTITLED TO A LEAVE PAYMENT DURING SUCH PERIOD.

ON AUGUST 24, 1961, YOUR TEMPORARY APPOINTMENT AS AN OFFICER AND ENLISTED STATUS WERE TERMINATED TO ACCEPT APPOINTMENTS THE FOLLOWING DAY AS PERMANENT LIEUTENANT AND TEMPORARY CAPTAIN IN THE RESERVE OF THE U.S. MARINE CORPS. IN THOSE CIRCUMSTANCES THERE IS FOR APPLICATION PARAGRAPH 044170-2-2 OF THE NAVY COMPTROLLER MANUAL WHICH PROVIDES THAT MEMBERS OF THE MARINE CORPS OR MARINE CORPS RESERVE WHO ARE SEPARATED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT IN THE MARINE CORPS OR MARINE CORPS RESERVE IF CONTINUED ON ACTIVE SERVICE ARE NOT ENTITLED TO LUMP-SUM SETTLEMENT FOR UNUSED LEAVE. THAT PROVISION IS BASED ON 37 U.S.C. 501/B) (FORMERLY SECTION 33/C) ( WHICH PROHIBITS PAYMENT FOR UNUSED ACCRUED LEAVE UNDER THOSE CIRCUMSTANCES AND FURTHER PROVIDES THAT A MEMBER EXCLUDED FROM CASH SETTLEMENT UNDER THOSE PROVISIONS SHALL CARRY UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT FROM ONE STATUS TO ANOTHER WITHIN HIS RESPECTIVE BRANCH OF THE ARMED FORCES.

WITH RESPECT TO YOUR CLAIM FOR MILEAGE, PARAGRAPH M4157-4 OF THE JOINT TRAVEL REGULATIONS SPECIFICALLY PROVIDES THAT MILEAGE ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH A SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING IN THE SAME OR ANOTHER STATUS IN THE SAME OR ANOTHER OF THE UNIFORMED SERVICES. AN EXCEPTION IS PROVIDED WHEN THE SEPARATION OR RELEASE OCCURS AT THE EXPIRATION OF ENLISTMENT OR PRESCRIBED TERM OF SERVICE. UNDER THE PROVISIONS OF 10 U.S.C. 5596/F), UPON YOUR APPOINTMENT AS A TEMPORARY OFFICER IN THE MARINE CORPS ON APRIL 3, 1952, YOU CONTINUED TO HOLD YOUR PERMANENT ENLISTED STATUS UNTIL THE DAY PRECEDING YOUR ACCEPTANCE OF AN APPOINTMENT AS AN OFFICER IN THE MARINE CORPS RESERVE ON AUGUST 25, 1961. IN DECISION OF MARCH 29, 1962, B-148002, 41 COMP. GEN. 624, COPY ENCLOSED, THE SECRETARY OF DEFENSE WAS ADVISED THAT A DISCHARGE FROM SUCH DUAL ENLISTED MAN- OFFICER STATUS TO CONTINUE ON ACTIVE DUTY IN ANOTHER STATUS IS NOT REGARDED AS A DISCHARGE AT EXPIRATION OF ENLISTMENT, SINCE THE MEMBER CONTINUED TO SERVE AS AN OFFICER UNTIL DISCHARGED, AND DOES NOT ENTITLE HIM TO MILEAGE AND LUMP SUM SETTLEMENT FOR UNUSED LEAVE. FOR THE SAME REASONS YOU ARE NOT ENTITLED TO THESE PAYMENTS.

WITH REGARD TO YOUR CLAIM FOR AN ENLISTMENT BONUS OF $200, YOU ARE ADVISED THAT ON APRIL 3, 1952, THERE WAS IN EFFECT SECTION 207/A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF OCTOBER 26, 1951, 65 STAT. 653, 654, WHICH PROVIDED FOR PAYMENT OF A REENLISTMENT BONUS IN VARIOUS AMOUNTS UPON REENLISTMENT FOR VARIOUS PERIOD OF YEARS AND FOR AN UNSPECIFIED PERIOD OF MORE THAN 6 YEARS. THERE ALSO WAS IN EFFECT A SAVINGS PROVISION, SECTION 207/D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, WHICH PERMITTED MEMBERS WHO REENLISTED UNDER THE SPECIFIED CONDITIONS TO BE PAID UNDER THE PRIOR LAW. SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 364, AS AMENDED, 58 STAT. 730, PROVIDED THAT UPON REENLISTMENT WITHIN 3 MONTHS AFTER DISCHARGE OR RELIEF FROM ACTIVE DUTY A MEMBER WAS ENTITLED TO AN ENLISTMENT ALLOWANCE COMPUTED AT THE RATE OF $50 FOR EACH YEAR SERVED IN THE PRIOR ENLISTMENT PERIOD. APPARENTLY, THIS IS THE ALLOWANCE TO WHICH YOU REFER, HOWEVER, UNDER BOTH THE 1942 ACT AS AMENDED AND THE 1949 ACT AS AMENDED THE ENLISTMENT ALLOWANCE (OR REENLISTMENT BONUS) IS PAYABLE ONLY UPON REENLISTMENT, AS AN INDUCEMENT TO REENLIST, AND NO ENLISTMENT ALLOWANCE OR ENLISTMENT BONUS WAS PAYABLE UNLESS THE MEMBER REENLISTED. SINCE YOU DID NOT REENLIST AFTER JULY 20, 1948, YOUR ENLISTMENT OF 1948 HAVING BEEN INDEFINITELY EXTENDED BY THE PROVISIONS OF 10 U.S.C. 5596/F), YOU DID NOT BECOME ENTITLED TO AN ENLISTMENT ALLOWANCE OR REENLISTMENT BONUS IN 1952.

WITH RESPECT TO MUSTERING-OUT PAY, 38 U.S.C. 2101/B) (1) PROVIDES THAT SUCH PAY MAY NOT BE PAID TO COMMISSIONED OFFICERS WHO SERVED DURING THE KOREAN CONFLICT UNLESS RELEASED BEFORE JANUARY 31, 1958. WE HAVE HELD, HOWEVER, THAT UNDER THE SAVINGS PROVISIONS OF 10 U.S.C. 5596/F) A MEMBER OTHERWISE ENTITLED WHOSE TEMPORARY APPOINTMENT AS AN OFFICER AND PERMANENT ENLISTED STATUS ARE SIMULTANEOUSLY TERMINATED AFTER SUCH DATE TO ACCEPT A PERMANENT APPOINTMENT IS ENTITLED TO MUSTERING-OUT PAY UNDER 38 U.S.C. 2101 AND 2104, PROVIDED THE PERMANENT APPOINTMENT WAS IN A REGULAR COMPONENT. SEE DECISION OF FEBRUARY 1, 1962, B-14774, 41 COMP. GEN. 503, COPY ENCLOSED, WHICH EXPLAINS WHY A MEMBER WHO RECEIVES A PERMANENT APPOINTMENT IN A RESERVE COMPONENT IS NOT ENTITLED TO THE PAYMENT. SINCE YOUR APPOINTMENT WAS IN THE MARINE CORPS RESERVE YOU WERE NOT ENTITLED TO A MUSTERING-OUT PAYMENT.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 17, 1961, WAS CORRECT AND IS SUSTAINED. THE ORIGINAL PAPERS RELATING TO YOUR SERVICE ARE RETURNED.