B-168177, DECEMBER 29, 1969, 49 COMP. GEN. 407

B-168177: Dec 29, 1969

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STATUS A DISENROLLED SERVICE ACADEMY CADET OR MIDSHIPMAN WHO RETURNS HOME TO AWAIT REASSIGNMENT TO ACTIVE DUTY AS AN ENLISTED MAN IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM THE DATE HIS SEPARATION IS APPROVED AND HIS REASSIGNMENT ORDERS ARE ISSUED TO THE DATE HE RECEIVES NOTIFICATION OF THE ACTION. HE IS REQUIRED TO COMPLETE THE PERIOD OF SERVICE FOR WHICH HE ENLISTED OR FOR WHICH HE IS OBLIGATED. AS THE MEMBER WHILE AT HOME AWAITING ORDERS WILL NOT BE SUBSISTED AT GOVERNMENT EXPENSE. HE IS ENTITLED PURSUANT TO 37 U.S.C. 402(D) TO A BASIC ALLOWANCE FOR SUBSISTENCE. 9348(B) TO A RESERVE COMPONENT RETURNS HOME IS NOT ENTITLED TO PAY AND ALLOWANCES UNTIL HE IS REQUIRED TO COMPLY WITH NEW ACTIVE DUTY ORDERS.

B-168177, DECEMBER 29, 1969, 49 COMP. GEN. 407

MILITARY PERSONNEL -- CADETS MIDSHIPMEN, ETC. -- DISENROLLED FROM SERVICE ACADEMY -- STATUS A DISENROLLED SERVICE ACADEMY CADET OR MIDSHIPMAN WHO RETURNS HOME TO AWAIT REASSIGNMENT TO ACTIVE DUTY AS AN ENLISTED MAN IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM THE DATE HIS SEPARATION IS APPROVED AND HIS REASSIGNMENT ORDERS ARE ISSUED TO THE DATE HE RECEIVES NOTIFICATION OF THE ACTION, THE CADET OR MIDSHIPMAN PURSUANT TO 10 U.S.C. 516(B) "RESUMES HIS ENLISTED STATUS" WHEN SEPARATED FOR ANY REASON OTHER THAN APPOINTMENT AS A COMMISSIONED OFFICER OR FOR DISABILITY, AND HE IS REQUIRED TO COMPLETE THE PERIOD OF SERVICE FOR WHICH HE ENLISTED OR FOR WHICH HE IS OBLIGATED, UNLESS SOONER DISCHARGED. AS THE MEMBER WHILE AT HOME AWAITING ORDERS WILL NOT BE SUBSISTED AT GOVERNMENT EXPENSE, HE IS ENTITLED PURSUANT TO 37 U.S.C. 402(D) TO A BASIC ALLOWANCE FOR SUBSISTENCE. PAY -- ACTIVE DUTY -- EFFECTIVE DATE -- CADETS AND MIDSHIPMEN TRANSFERRED TO RESERVE COMPONENT A DISENROLLED SERVICE ACADEMY CADET OR MIDSHIPMAN WHO WHILE AWAITING TRANSFER BY THE SECRETARY CONCERNED UNDER 10 U.S.C. 4348(B), 6959(B), AND 9348(B) TO A RESERVE COMPONENT RETURNS HOME IS NOT ENTITLED TO PAY AND ALLOWANCES UNTIL HE IS REQUIRED TO COMPLY WITH NEW ACTIVE DUTY ORDERS, AS THE TRANSFER HAS THE EFFECT OF DISCHARGING THE CADET OR MIDSHIPMAN FROM HIS ENLISTED CONTRACT AND, THEREFORE, THE MEMBER IS NOT IN AN ACTIVE DUTY STATUS FOR PAY AND ALLOWANCES PURPOSES UNTIL HE COMPLIES WITH HIS NEW ORDERS. PAY -- ACTIVE DUTY -- AT HOME AWAITING ORDERS -- DISENROLLED CADETS AND MIDSHIPMEN THE FACT THAT SEVERAL DAYS ELAPSED BETWEEN THE TIME A REGULAR ENLISTED MAN OF THE UNIFORMED SERVICES REVERTED TO THAT STATUS PURSUANT TO 10 U.S.C. 516(B) UPON TERMINATION FROM THE AIR FORCE ACADEMY AND THE DATE HE RECEIVED HIS ACTIVE DUTY ORDERS AT HIS HOME IN LOS ANGELES DOES NOT AFFECT THE MEMBER'S ENTITLEMENT TO PAY AND ALLOWANCES AS OF THE DATE OF RESUMING REGULAR ENLISTED STATUS. IF THE MEMBER SHOULD, HOWEVER, BE TRANSFERRED TO ACTIVE DUTY AS A RESERVIST AND ORDERED TO ANDREWS AIR FORCE BASE IN MARYLAND, HIS ENLISTED STATUS HAVING TERMINATED WHEN DISENROLLED FROM THE ACADEMY, HIS RIGHT TO PAY AND ALLOWANCES WOULD COMMENCE ON THE DAY HE DEPARTED FROM HOME BY THE MEANS OF TRANSPORTATION AUTHORIZED, AND SHOULD THE MEMBER'S ORDERS REACH HIM WHILE VISITING IN THE VICINITY OF THE BASE, PAY AND ALLOWANCE WOULD COMMENCE ON THE ORDERED REPORTING DATE.

TO THE SECRETARY OF DEFENSE, DECEMBER 29, 1969:

REFERENCE IS MADE TO LETTER DATED OCTOBER 18, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH PAY AND ALLOWANCE ENTITLEMENTS OF CADETS AND MIDSHIPMEN WHO ARE DISENROLLED FROM A SERVICE ACADEMY AND WHO ARE SENT HOME AWAITING REASSIGNMENT ORDERS. THERE WAS ENCLOSED COPY OF COMMITTEE ACTION NO. 435 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, SETTING FORTH AND DISCUSSING THE SEVERAL QUESTIONS PRESENTED AS FOLLOWS:

IS A DISENROLLED SERVICE ACADEMY CADET OR MIDSHIPMAN, WHO RESUMES A FORMER REGULAR ENLISTED STATUS WHILE AT HOME AWAITING REASSIGNMENT ORDERS, ENTITLED TO FULL PAY AND ALLOWANCES EFFECTIVE THE DATE FOLLOWING THE DATE HE IS DISENROLLED? IF NOT, AT WHAT DATE WOULD ENTITLEMENT COMMENCE? ASSUMING ENTITLEMENT TO BASIC PAY WHAT BAS RATE, IF ANY WOULD APPLY?

WOULD THE ANSWER BE THE SAME IF, INSTEAD OF RESUMING A PRIOR REGULAR ENLISTED GRADE, HE WAS TRANSFERRED TO A RESERVE COMPONENT AND ORDERED TO ACTIVE DUTY?

IT IS STATED IN THE COMMITTEE ACTION DISCUSSION THAT SERVICE ACADEMY CADETS AND MIDSHIPMEN APPOINTED FROM THE ENLISTED RANKS ARE NOT RELIEVED FROM THEIR SERVICE OBLIGATION AND THAT IF DISENROLLED FOR ANY REASON OTHER THAN APPOINTMENT AS A COMMISSIONED OFFICER OR BECAUSE OF PHYSICAL DISABILITY, THE INDIVIDUAL RESUMES HIS ENLISTED STATUS AND COMPLETES THE PERIOD OF OBLIGATED SERVICE, UNLESS SOONER DISCHARGED. 10 U.S.C. 516.

IT IS POINTED OUT THAT THESE CADETS AND MIDSHIPMEN APPOINTED DIRECTLY FROM CIVILIAN LIFE ASSUME A 6-YEAR MILITARY OBLIGATION (10 U.S.C. 651. AND THAT IF DISENROLLED PRIOR TO COMPLETING THE COURSE OF INSTRUCTION THE CADET IS SUBJECT TO BEING TRANSFERRED TO THE RESERVE COMPONENT OF HIS ARMED FORCE AND ORDERED TO ACTIVE DUTY FOR A PERIOD NOT TO EXCEED 4 YEARS. THE STATUTORY AUTHORITY FOR TAKING SUCH ACTION IS CONTAINED IN SECTIONS 4348(B) (ARMY), 6959(B) (NAVY) AND 9348(B) (AIR FORCE) OF TITLE 10, UNITED STATES CODE. IN IMPLEMENTING THESE STATUTORY PROVISIONS WITH RESPECT TO THEIR APPLICABILITY TO CADETS AND MIDSHIPMEN APPOINTED FROM A REGULAR OR RESERVE ENLISTED STATUS, PARAGRAPH V. A. 2 OF DEPARTMENT OF DEFENSE DIRECTIVE NO. 1332.23 DATED MAY 9, 1968, PROVIDES IN PART THAT THE "COMPLETION OR PARTIAL COMPLETION OF SERVICE OBLIGATION REQUIRED BY PRIOR ENLISTMENT IN NO WAY EXEMPTS A SEPARATED CADET OR MIDSHIPMAN FROM BEING TRANSFERRED TO A RESERVE COMPONENT AND ORDERED TO ACTIVE DUTY *** ."

THE COMMITTEE ACTION STATES THAT IT IS THE AIR FORCE POLICY TO SEND A CADET HOME WHILE HE IS AWAITING FINAL APPROVAL OF DISENROLLMENT, AND REASSIGNMENT ORDERS ON ACTIVE DUTY AS AN ENLISTED MAN. IT IS ALSO STATED THAT THE CADET MUST ASSENT TO AND AGREE TO GOING ON LEAVE WITHOUT PAY AND THAT THE INDIVIDUAL CONTINUES IN HIS CADET STATUS WHILE AT HOME UNTIL HIS SEPARATION IS FINALLY APPROVED. THE LEAVE WITHOUT PAY STATUS SEEMS TO BE IN LINE WITH OUR DECISION REPORTED AT 46 COMP. GEN. 261 (1966) WHEREIN IT WAS HELD THAT A MIDSHIPMAN MAY, UNDER PROPER REGULATIONS AND WITH HIS CONSENT, BE PLACED IN A LEAVE WITHOUT PAY STATUS PENDING APPROVAL OF HIS RESIGNATION OR DISCHARGE.

IT IS STATED THAT GENERALLY SEVERAL DAYS ELAPSE FROM THE DATE SEPARATION IS APPROVED AND REASSIGNMENT ORDERS ISSUED, AND THE DATE HE RECEIVES NOTIFICATION OF THE ACTION. DURING THIS PERIOD, IT IS STATED, HE IS NO LONGER A CADET AND NEITHER CAN HE REPORT TO OR UNDERTAKE THE NECESSARY TRAVEL TO HIS NEW UNIT OF ASSIGNMENT. THE COMMITTEE ACTION STATES THAT SOME DOUBT EXISTS CONCERNING HIS ENTITLEMENT TO PAY AND ALLOWANCES DURING THE PERIOD FROM DATE OF SEPARATION TO THE DATE HE BEGINS COMPLIANCE WITH THE REASSIGNMENT ORDERS.

UNDER THE PROVISIONS OF 10 U.S. 516(B), A CADET OR MIDSHIPMAN, WHO HOLDS A REGULAR ENLISTED STATUS AND WHO IS SEPARATED FROM THE SERVICE ACADEMY FOR ANY REASON OTHER THAN HIS APPOINTMENT AS A COMMISSIONED OFFICER OF A REGULAR OR RESERVE COMPONENT OF AN ARMED FORCE OR BECAUSE OF DISABILITY, "RESUMES HIS ENLISTED STATUS," AND IS REQUIRED TO COMPLETE THE PERIOD OF SERVICE FOR WHICH HE WAS ENLISTED OR FOR WHICH HE HAS AN OBLIGATION, UNLESS SOONER DISCHARGED.

HENCE, WHEN A FORMER REGULAR ENLISTED MAN IS NOTIFIED OF THE APPROVAL OF HIS SEPARATION AS A CADET, HE RESUMES HIS REGULAR ENLISTED STATUS AND MAY BE CONSIDERED AS AGAIN BEING ON CONTINUOUS ACTIVE DUTY (10 U.S.C. 3075 AND 8075) SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES BEGINNING WITH THE DATE FOLLOWING THE DATE OF NOTIFICATION OF HIS SEPARATION AS A CADET (SEE RULE 3, TABLE 1-2-1, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL). SINCE A REGULAR MEMBER AT HOME WHILE AWAITING REASSIGNMENT ORDERS GENERALLY IS NOT BEING SUBSISTED AT GOVERNMENT EXPENSE, HE IS ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE UNDER 37 U.S.C. 402(D) AT THE RATE OF $2.57 A DAY. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO THE SECOND QUESTION, UNLIKE THE SITUATION CONTEMPLATED BY 10 U.S.C. 516(B), A CADET OR MIDSHIPMAN WHO DOES NOT FULFILL HIS AGREEMENT MAY BE TRANSFERRED BY THE SECRETARY CONCERNED UNDER SECTIONS 4348(B) (ARMY), 6959(B) (NAVY), AND 9348(B) (AIR FORCE), OF TITLE 10, TO A RESERVE COMPONENT AND ORDERED TO ACTIVE DUTY IN THAT CAPACITY. SINCE THIS WOULD HAVE THE EFFECT OF DISCHARGING HIM FROM HIS PRIOR ENLISTED CONTRACT, THE MEMBER WOULD NOT BE IN AN ACTIVE DUTY STATUS FOR PAY AND ALLOWANCES PURPOSES UNTIL HE IS REQUIRED TO COMPLY WITH THE NEW ACTIVE DUTY ORDERS. SEE 37 U.S.C. 204(B) AND RULE 7, TABLE 1-2-1, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. FOR THIS REASON QUESTION 2 IS ANSWERED IN THE NEGATIVE.

IN ADDITION, THE COMMITTEE ACTION DESCRIBES SITUATIONS THAT CAN EXIST IN CONNECTION WITH THE FOLLOWING QUESTIONS:

A REGULAR AIR FORCE ENLISTED MEMBER STATIONED AT BROOKE AIR FORCE BASE, SAN ANTONIO, TEXAS IS APPOINTED A CADET AND ASSIGNED TO THE AIR FORCE ACADEMY, COLORADO SPRINGS, COLORADO. ON 2 SEPTEMBER THIS CADET GOES TO HIS HOME, LOS ANGELES, CALIFORNIA, IN A LEAVE WITHOUT PAY STATUS, TO AWAIT FINAL APPROVAL OF DISENROLLMENT AND REASSIGNMENT ORDERS TO ACTIVE DUTY AS AN ENLISTED MAN. HIS SEPARATION AS A CADET IS APPROVED ON 10 SEPTEMBER AND ON 15 SEPTEMBER HE RECEIVES THE ORDERS, DATED 15 SEPTEMBER, ASSIGNING HIM TO ANDREWS AIR FORCE BASE, MARYLAND ON PCS TPA WITH A REPORTING DATE OF 0800 HOURS 22 SEPTEMBER. WOULD HIS PAY AND ALLOWANCES BE BASED THE ALLOWABLE TRAVEL TIME FROM LOS ANGELES TO ANDREWS AIR FORCE BASE, OR FROM LOS ANGELES TO ANDREWS AIR FORCE BASE NOT TO EXCEED THE THE ALLOWABLE TRAVEL TIME FROM COLORADO SPRINGS TO ANDREWS AIR FORCE BASE. WHAT WOULD BE THE BASIC IF HE RECEIVED THE ORDERS ON 18 SEPTEMBER WHILE VISITING IN BALTIMORE, MARYLAND? WHAT IF THE REPORTING DATE WERE 0800 HOURS 19 SEPTEMBER AND THE SITUATIONS REMAINED THE SAME

WOULD THE ANSWER CHANGE IF, INSTEAD OF RESUMING A PRIOR REGULAR ENLISTED GRADE, THE INDIVIDUAL WAS TRANSFERRED TO A RESERVE COMPONENT AND ORDERED TO ACTIVE DUTY? IN THIS CASE HE WOULD HAVE PROCEEDED FROM HIS HOME, LOS ANGELES, TO THE AIR FORCE ACADEMY AS A CADET, BUT THE OTHER CIRCUMSTANCES WOULD HAVE BEEN THE SAME.

IT APPEARS THAT THE PERSON WHOSE APPOINTMENT AS A CADET AT THE AIR FORCE ACADEMY WAS TERMINATED ON SEPTEMBER 10, RESUMED HIS REGULAR ENLISTED STATUS ON SEPTEMBER 11 AND HIS ENTITLEMENT TO PAY AND ALLOWANCES COMMENCED ON THAT DAY. SEE THE ANSWER TO THE FIRST QUESTION. THE TIME AND PLACE OF RECEIPT OF THE ORDERS OF SEPTEMBER 15 WOULD NOT AFFECT HIS RIGHT TO PAY AND ALLOWANCES IN ANY WAY. IT IS ASSUMED THAT THE QUESTIONS ASKED DID NOT RELATE TO TRAVEL ALLOWANCES.

IF, INSTEAD OF REVERTING TO HIS REGULAR ENLISTED STATUS, THE PERSON CONCERNED WERE TRANSFERRED TO A RESERVE COMPONENT AND WERE ORDERED TO ACTIVE DUTY AT ANDREWS AIR FORCE BASE, HIS RIGHT TO PAY AND ALLOWANCES WOULD COMMENCE ON THE DAY HE COMMENCED TRAVEL FROM LOS ANGELES BY THE MEANS OF TRANSPORTATION AUTHORIZED IN HIS ORDERS, ASSUMING THAT THE TRAVEL TIME INVOLVED WOULD NOT EXCEED THAT CONTEMPLATED BY RULE 3, TABLE 1-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL.

IF THE ORDERS OF SEPTEMBER 15 WERE RECEIVED BY THE RESERVE MEMBER CONCERNED ON SEPTEMBER 18 WHILE HE WAS VISITING IN BALTIMORE AND HE TRAVELED FROM THAT PLACE AND REPORTED FOR ACTIVE DUTY AT ANDREWS AIR FORCE BASE ON SEPTEMBER 19 OR SEPTEMBER 22 AS DIRECTED IN SUCH ORDERS, HIS RIGHT TO PAY AND ALLOWANCES WOULD COMMENCE ON THE ORDERED REPORTING DATE.