B-164116, JUN. 20, 1968

B-164116: Jun 20, 1968

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G. SUNDBERG: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 22. HE WAS DISCHARGED ON JANUARY 13. AN APPROPRIATE DISCHARGE CERTIFICATE WAS ISSUED AND MAILED TO HIM AT HIS LATEST ADDRESS OF RECORD. ACCEPTANCE OF MOBILIZATION ASSIGNMENT" SENT TO HIM WAS SIGNED. HIS REQUEST WAS APPROVED BY THE COMMANDING OFFICER OF THAT UNIT ON APRIL 16. RITO WAS CREDITED WITH DE FACTO SERVICE FOR THE PERIOD FROM APRIL 2. YOU REQUEST A DECISION AS TO WHETHER HE IS ENTITLED TO PAY FOR THE DRILLS PERFORMED WHILE HE WAS WITHOUT STATUS FROM JANUARY 14. RITO WAS QUALIFIED TO SERVE IN THE U.S. THAT HIS SERVICE WAS ACCEPTED BY THE GOVERNMENT WITHOUT QUESTION. HE WOULD HAVE REENLISTED AT THAT TIME.

B-164116, JUN. 20, 1968

TO COMMANDER D. G. SUNDBERG:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 22, 1968, FORWARDED HERE BY SECOND ENDORSEMENT OF APRIL 22, 1968, FROM THE COMPTROLLER OF THE NAVY, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF THE ACTION TAKEN TO RECOVER THE SUM OF $237.72 IN THE ACCOUNT OF SK2 FRANK E. RITO, 717 86 01, U.S. NAVAL RESERVE, REPRESENTING THE AMOUNT PAID HIM FOR 22 DRILLS PERFORMED DURING THE PERIOD FROM JANUARY 18, 1966, THROUGH SEPTEMBER 25, 1966. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-992 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT MR. RITO'S ENLISTMENT IN THE U.S. NAVAL RESERVE, AS VOLUNTARILY EXTENDED FOR A PERIOD OF FOUR YEARS, EXPIRED ON JANUARY 14, 1966. HE WAS DISCHARGED ON JANUARY 13, 1966, BY THE COMMANDING OFFICER, U.S. NAVAL RESERVE SURFACE DIVISION 8-24 (L), U.S. NAVAL RESERVE TRAINING CENTER, LAFAYETTE, LOUISIANA, AND AN APPROPRIATE DISCHARGE CERTIFICATE WAS ISSUED AND MAILED TO HIM AT HIS LATEST ADDRESS OF RECORD. HE STATES THAT HE NEVER RECEIVED SUCH DISCHARGE; THAT HIS IDENTIFICATION CARD SHOWED HIS ENLISTMENT EXPIRATION DATE AS DECEMBER 30, 1966; THAT THE LATEST ,ACCEPTANCE OF MOBILIZATION ASSIGNMENT" SENT TO HIM WAS SIGNED, RETURNED AND DATED JANUARY 22, 1966; AND THAT NO ONE RAISED ANY QUESTION RELATIVE THERETO AT THAT TIME.

MR. RITO ATTENDED DRILLS WITH HIS UNIT AT LAFAYETTE, LOUISIANA, ON JANUARY 18 AND 25, 1966, AND ON MARCH 19, 1966, HE REQUESTED ORDERS FOR ASSIGNMENT TO DRILL PAY STATUS WITH NRA AWS-82, U.S. NAVAL AIR STATION, NEW ORLEANS, LOUISIANA. HIS REQUEST WAS APPROVED BY THE COMMANDING OFFICER OF THAT UNIT ON APRIL 16, 1966, AND HE PERFORMED DRILLS WITH THE UNIT DURING THE PERIOD FROM APRIL 2, 1966, UNTIL NOVEMBER 6, 1966, FOR WHICH HE RECEIVED PAYMENT.

THE NOVEMBER 1966 DRILL REPORT OF NAVAL RESERVE AIR WING 82 S, REFLECTS CANCELLATION OF THE GAIN OF FRANK EMILLO RITO TO THE UNIT EFFECTIVE MARCH 19, 1966. THE UNIT'S DECEMBER 1966 DRILL REPORT DISCLOSED HIS REENLISTMENT ON DECEMBER 17, 1966. ALTHOUGH MR. RITO WAS CREDITED WITH DE FACTO SERVICE FOR THE PERIOD FROM APRIL 2, 1966, TO NOVEMBER 6, 1966, LETTERS DATED FEBRUARY 26, 1968, AND MARCH 18, 1968, REQUESTED THAT HE REFUND THE SUM OF $205.96, THE NET AMOUNT RECEIVED BY HIM FOR DRILLS PERFORMED WHILE NO ENLISTMENT CONTRACT EXISTED. YOU REQUEST A DECISION AS TO WHETHER HE IS ENTITLED TO PAY FOR THE DRILLS PERFORMED WHILE HE WAS WITHOUT STATUS FROM JANUARY 14, 1966, UNTIL HIS REENLISTMENT ON DECEMBER 17, 1966.

NO EVIDENCE HAS BEEN FURNISHED TO INDICATE OTHER THAN THAT MR. RITO WAS QUALIFIED TO SERVE IN THE U.S. NAVAL RESERVE; THAT HE INTENDED TO REMAIN IN THE NAVAL RESERVE WITHOUT BREAK IN SERVICE; THAT HE RENDERED SERVICE IN GOOD FAITH; AND THAT HIS SERVICE WAS ACCEPTED BY THE GOVERNMENT WITHOUT QUESTION. PRESUMABLY, IF HE HAD RECEIVED NOTICE OF HIS DISCHARGE, HE WOULD HAVE REENLISTED AT THAT TIME. IN SUCH CIRCUMSTANCES, IT APPEARS PROPER TO VIEW HIM AS HAVING CONSTRUCTIVELY REENLISTED UPON THE EXPIRATION OF HIS TERM OF SERVICE ON JANUARY 14, 1966, AND HE MAY BE REGARDED AS HAVING A DE JURE STATUS WITH ENTITLEMENT TO FULL CREDIT FOR SERVICE PERFORMED DURING THE PERIOD JANUARY 14 TO DECEMBER 16, 1966, WHEN NO FORMAL ENLISTMENT CONTRACT ACTUALLY EXISTED. SEE 45 COMP. GEN. 218 AND DECISIONS THERE CITED.

ACCORDINGLY, NO FURTHER COLLECTION ACTION NEED BE TAKEN AGAINST MR. RITO.