B-160673, FEB. 17, 1967

B-160673, FEB. 17, 1967

TO THE DISBURSING OFFICER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 28, 1966, FORWARDED HERE BY LETTER OF JANUARY 11, 1967, OF HEADQUARTERS UNITED STATES MARINE CORPS, REQUESTING A DECISION WHETHER PAYMENT OF INACTIVE DUTY PAY MAY BE MADE TO LIEUTENANT COLONEL STEVEN S. HULL, 045281, U.S. MARINE CORPS RESERVE, FOR FOUR DRILLS PERFORMED BY HIM ON APRIL 23 AND 24, 1966. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC-940 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON MARCH 20, 1966, COLONEL HULL INITIATED A REQUEST FOR TRANSFER FROM CLASS III, VOLUNTARY MARINE CORPS RESERVE, GROUND SERVICE UNIT, 1ST MARINE CORPS DISTRICT, GARDEN CITY, NEW YORK, TO CLASS II, ORGANIZED MARINE CORPS RESERVE AND 2D STAFF GROUP, UNITED STATES MARINE CORPS RESERVE, MARINE CORPS RESERVE TRAINING CENTER, BOSTON, MASSACHUSETTS, FOR DUTY AS INTELLIGENCE OFFICER EFFECTIVE APRIL 20 (23), 1966. BY FIRST INDORSEMENT DATED MARCH 21, 1966, THE REQUEST FOR TRANSFER WAS FORWARDED TO THE DIRECTOR, 1ST MARINE CORPS DISTRICT BY THE COMMANDING OFFICER, 2D STAFF GROUP, RECOMMENDING APPROVAL. THE DIRECTOR, 1ST MARINE CORPS DISTRICT, REPORTED TO THE COMMANDANT OF THE MARINE CORPS BY LETTER DATED APRIL 22, 1966, THAT COLONEL HULL WAS BEING TRANSFERRED FROM CLASS III TO CLASS II AND TO THE 2D STAFF GROUP, BOSTON, MASSACHUSETTS, EFFECTIVE APRIL 22, 1966.

DIARY NO. 11-66, DATED MAY 6, 1966, SHOWS THAT COLONEL HULL JOINED THE 2D STAFF GROUP APRIL 23, 1966, FROM CLASS III, 1ST MARINE CORPS DISTRICT, GARDEN CITY, NEW YORK. ON AUGUST 21, 1966, IT WAS REPORTED THAT HE ATTENDED FOUR DRILLS ON APRIL 23 AND 24, 1966, AND A MILITARY PAY ORDER COVERING THOSE DRILLS WAS ISSUED SEPTEMBER 20, 1966.

IT IS PROVIDED IN 37 U.S.C. 206 THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO IS NOT ENTITLED TO BASIC PAY IS ENTITLED TO COMPENSATION, AT THE RATE OF 1/30 OF THE BASIC PAY AUTHORIZED FOR A MEMBER OF A UNIFORMED SERVICE OF A CORRESPONDING GRADE ENTITLED TO BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH HE IS ENGAGED FOR AT LEAST 2 HOURS, INCLUDING THAT PERFORMED ON A SUNDAY OR HOLIDAY, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, DUTY, OR APPROPRIATE DUTIES, AS THE SECRETARY MAY PRESCRIBE.

MARINE CORPS ORDER 1080R.27, DATED MARCH 18, 1966, EFFECTIVE APRIL 1, 1966, REVISING UNIT DIARY INSTRUCTIONS FOR THE ORGANIZED MARINE CORPS RESERVE, INDICATES THAT AT THE TIME COLONEL HULL MADE HIS REQUEST FOR TRANSFER PERSONNEL WERE JOINED IN A NEW UNIT EFFECTIVE THE DAY FOLLOWING THE DATE OF TRANSFER FROM THE OLD UNIT OR CLASS III STATUS AND THAT IT WAS NORMAL PRACTICE TO AWAIT APPROVAL FROM THE COMMANDANT OF THE MARINE CORPS OR DISTRICT DIRECTOR PRIOR TO JOINING A NEW MEMBER AND THEN ACCOMPLISHING THE JOINING WITH AN "AS OF" ENTRY. THE ORDER PROVIDED THE FOLLOWING CHANGE OF PROCEDURE:

"B. JOININGS. JOINING WILL BE BASED ON THE PHYSICAL REPORTING TO AN ORGANIZED MARINE CORPS RESERVE UNIT OF A RESERVIST FROM ANOTHER CLASS II UNIT OR CLASS III STATUS AND AN INITIAL DETERMINATION BY THE COMMANDING OFFICER OF THE RESERVIST'S QUALIFICATIONS. WHERE THE ACTION OF A COMMANDING OFFICER JOINING A MEMBER TO AN ORGANIZED MARINE CORPS RESERVE UNIT HAS NOT BEEN APPROVED OR REVIEWED BY HIGHER AUTHORITY, THE RESERVIST WILL STILL BE JOINED BY A UNIT DIARY ENTRY, AND BE PERMITTED TO DRILL IN A PAY STATUS PENDING APPROVAL. IF HIGHER AUTHORITY REJECTS THE MEMBER AT A LATER DATE HE WILL BE TRANSFERRED TO CLASS III STATUS. UNDER NO CIRCUMSTANCES WILL RESERVISTS BE PERMITTED TO DRILL PRIOR TO THE DATE, AS INDICATED IN PARAGRAPH 16253.3 OF REFERENCE (C) (MARINE CORPS PERSONNEL MANUAL) OF THE UNIT DIARY CONTAINING THE RESERVIST'S JOINING ENTRY.'

PARAGRAPH 16253.3, CHANGE 7, DATED MAY 12, 1964, MARINE CORPS PERSONNEL MANUAL, READS AS FOLLOWS:

"3. THE DIARY IS PREPARED FOR THE 24-HOUR PERIOD BEGINNING AT 0001 AND ENDING AT 2400. THE DIARY WILL BE SUBMITTED AS SOON AFTER 2400 AS PRACTICABLE, BUT NO LATER THAN 1600 OF THE FIRST WORKING DAY FOLLOWING THE PERIOD TO BE COVERED. IN NO CASE WILL TWO OR MORE DIARIES BE PREPARED TO COVER DIFFERENT PERIODS OF TIME IN THE SAME DAY.'

IN REFERENCE TO THE SAME SUBJECT MATTER, MARINE CORPS BULLETIN 1080, DATED AUGUST 29, 1966, PROVIDES:

"/1) OMCR UNITS WILL JOIN AN INDIVIDUAL TRANSFERRED FROM ANOTHER CLASS II UNIT OR FROM CLASS III STATUS ON THE DATE THE RESERVIST PHYSICALLY REPORTS. PRIOR TO JOINING ANY RESERVIST INTO AN OMCR UNIT, IT MUST BE CLEARLY ASCERTAINED THAT THE RESERVIST IS NOT PRESENTLY JOINED ON THE ROLLS OF ANOTHER OMCR UNIT AND THAT THE INDIVIDUAL HAS BEEN PROPERLY IDENTIFIED AS A MEMBER OF THE MARINE CORPS RESERVE. UPON JOINING THE INDIVIDUAL TO THE OMCR UNIT, A REQUEST FOR FINAL APPROVAL OF THE JOINING WILL BE SUBMITTED TO COMMANDING GENERAL, MARINE AIR RESERVE TRAINING COMMAND/DIRECTOR, MARINE CORPS DISTRICT AND THE COMMANDANT OF THE MARINE CORPS (CODE AF) AS APPROPRIATE. UNDER NO CIRCUMSTANCES WILL RESERVISTS BE PERMITTED TO DRILL PRIOR TO THE DATE OF THE UNIT DIARY CONTAINING THE RESERVIST JOINING ENTRY. THIS PROCEDURE PERMITS OMCR UNITS TO JOIN RESERVISTS ON UNIT DIARIES IMMEDIATELY, ALLOWS THEM TO DRILL SUBJECT TO THE APPROVAL RESTRICTIONS IMPOSED BY HIGHER ECHELONS, AND ELIMINATES RETROACTIVE OF "AS OF" JOINING ENTRIES INTO OMCR UNITS. THE EFFECT OF THIS PROCEDURE WILL ELIMINATE THE REQUIREMENT TO PROCESS INDIVIDUAL PAY RECORDS MANUALLY DUE TO LATE REPORTING OF DRILLS PERFORMED IN PREVIOUS MONTHS, AND WILL ENSURE THAT A RESERVIST IS ACTUALLY JOINED ON THE ROLLS OF A UNIT PRIOR TO PERFORMING ANY DRILLS FOR PAY.'

DOUBT ARISES AS TO THE PROPRIETY OF PAYMENT OF INACTIVE DUTY PAY SINCE COLONEL HULL WAS PERMITTED TO DRILL SUBSEQUENT TO APRIL 1, 1966, THE EFFECTIVE DATE OF THE ABOVE-QUOTED INSTRUCTIONS, EVEN THOUGH AN APPROPRIATE DIARY ENTRY RELATING TO HIS JOINING THE UNIT WITH WHICH HE PERFORMED DRILLS WAS NOT MADE UNTIL AFTER HIS TRANSFER WAS APPROVED BY THE DISTRICT DIRECTOR OR ON ABOUT MAY 6, 1966.

THIS OFFICE HAS HELD, GENERALLY, THAT ADMINISTRATIVE REGULATIONS MAY BE AMENDED OR MODIFIED FROM TIME TO TIME BUT THAT THEY MAY NOT BE MADE RETROACTIVELY EFFECTIVE TO DECREASE OR INCREASE RIGHTS ALREADY VESTED OR FIXED EXCEPT TO CORRECT OBVIOUS ERRORS. 32 COMP. GEN. 315 AND 33 ID. 174. THE REGULATIONS REGARDING UNIT DIARY ENTRIES FOR PAY PURPOSES CONTAINED IN MCO 1080R.27 OF MARCH 18, 1966, MANDATORILY REQUIRED THAT A RESERVIST BE JOINED TO THE NEW UNIT BY A UNIT DIARY ENTRY "NOT LATER THAN 1600 OF THE FIRST WORKING DAY FOLLOWING" THE PERIOD IN WHICH DRILLS WERE PERFORMED IN ORDER TO ENTITLE HIM TO INACTIVE DUTY PAY. THE EFFECT OF THE ORDER WAS TO ABOLISH THE USE OF "AS OF" UNIT DIARY ENTRIES FOR PAY PURPOSES.

WHILE AT THE TIME COLONEL HULL APPLIED FOR TRANSFER THE REQUIREMENT THAT HE BE JOINED TO HIS NEW UNIT BY A UNIT DIARY ENTRY PRIOR TO NOTICE OF APPROVAL FROM THE DISTRICT DIRECTOR HAD NOT BECOME EFFECTIVE, HE HAD NO VESTED RIGHT TO PAY FOR DRILLS PERFORMED AFTER APRIL 1, 1966, PRIOR TO HIS BEING JOINED TO 2D STAFF GROUP BY A UNIT DIARY ENTRY. HE COULD HAVE BEEN JOINED IN TIME TO HAVE QUALIFIED FOR INACTIVE DUTY PAY PURSUANT TO THE REGULATIONS ISSUED ON MARCH 18, 1966, AND SINCE "AS OF" UNIT DIARY ENTRIES WERE NOT PERMITTED FOR PAY PURPOSES SUBSEQUENT TO APRIL 1, 1966, HE MAY NOT BE ALLOWED PAY FOR THE DRILLS PERFORMED ON APRIL 23 AND 24, 1966.

THIS DECISION, OF COURSE, DOES NOT PRECLUDE CONSIDERATION OF COLONEL HULL'S CASE UNDER THE PROVISIONS OF 10 U.S.C. 1552.