B-168645, FEB. 10, 1970

B-168645: Feb 10, 1970

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AFTER ORDERS TO ACTIVE DUTY UNDER A 2-YEAR EXTENDED ENLISTMENT AGREEMENT LEARNED THAT THE AGREEMENT WAS WITHOUT LEGAL EFFECT. RATHER THAN SERVE A LONGER PERIOD HE WAS RELEASED FROM DUTY AND RETURNED TO AN INACTIVE DUTY STATUS. WHILE HE IS NOT ENTITLED TO ANY PAY FOR PERIOD AFTER RELEASE HE MAY HAVE PERIOD OF ACTUAL SERVICE REGARDED AS BEING DE JURE AND RECEIVE PAY AND ALLOWANCES FOR SUCH PERIOD. CLEMONS: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 2. LARA'S CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 6. BASED ON THE ADMINISTRATIVE DETERMINATION THAT HE WAS NOT PROPERLY ON ACTIVE DUTY. HE SIGNED AN AGREEMENT PURPORTING TO EXTEND AN ENLISTMENT FOR A PERIOD OF 2 YEARS BUT SINCE HE WAS NOT SERVING UNDER AN ENLISTMENT CONTRACT AT THAT TIME SUCH AGREEMENT WAS HELD TO BE INEFFECTIVE.

B-168645, FEB. 10, 1970

MILITARY--PAY--DE FACTO STATUS DECISION REVISING SETTLEMENT ALLOWING ADDITIONAL PAY TO INDIVIDUAL FOR SERVICE AS MEMBER OF NAVAL RESERVE FOR PERIOD IN DE FACTO STATUS. A MEMBER WHO, AFTER ORDERS TO ACTIVE DUTY UNDER A 2-YEAR EXTENDED ENLISTMENT AGREEMENT LEARNED THAT THE AGREEMENT WAS WITHOUT LEGAL EFFECT. RATHER THAN SERVE A LONGER PERIOD HE WAS RELEASED FROM DUTY AND RETURNED TO AN INACTIVE DUTY STATUS. WHILE HE IS NOT ENTITLED TO ANY PAY FOR PERIOD AFTER RELEASE HE MAY HAVE PERIOD OF ACTUAL SERVICE REGARDED AS BEING DE JURE AND RECEIVE PAY AND ALLOWANCES FOR SUCH PERIOD.

TO MR. WILLIS J. CLEMONS:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 2, 1969, WITH ENCLOSURES, AND OCTOBER 30, 1969, SUBMITTED ON BEHALF OF MR. NICK P. LARA, WHO CLAIMS ADDITIONAL PAY AND ALLOWANCES BELIEVED TO BE DUE AS A MEMBER OF THE U.S. NAVAL RESERVE FOR THE PERIOD JULY 23, 1966, THROUGH AUGUST 7, 1967.

THE RECORD SHOWS THAT MR. LARA'S CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 6, 1969, BASED ON THE ADMINISTRATIVE DETERMINATION THAT HE WAS NOT PROPERLY ON ACTIVE DUTY. ON APRIL 27, 1966, HE SIGNED AN AGREEMENT PURPORTING TO EXTEND AN ENLISTMENT FOR A PERIOD OF 2 YEARS BUT SINCE HE WAS NOT SERVING UNDER AN ENLISTMENT CONTRACT AT THAT TIME SUCH AGREEMENT WAS HELD TO BE INEFFECTIVE. OUR CLAIMS DIVISION CONCLUDED THAT HIS STATUS DURING THE PERIOD MAY 16, 1966, THROUGH JULY 22, 1966, WHEN HE ACTUALLY SERVED ON ACTIVE DUTY, WAS TO BE VIEWED AS BEING DE FACTO AND HENCE THAT SUCH SERVICE COULD NOT FORM THE BASIS FOR A LEGAL CLAIM AGAINST THE UNITED STATES FOR ANY UNPAID PAY AND ALLOWANCES.

IN YOUR LETTER OF OCTOBER 30, 1969, YOU CONTEND THAT AFTER MR. LARA REPORTED FOR ACTIVE DUTY ON MAY 16, 1966, PURSUANT TO ORDERS, HE WAS NOT THEREAFTER INFORMED THAT HE WAS NO LONGER IN THE NAVY UNTIL AUGUST 7, 1967, WHEN HE RECEIVED A DISCHARGE FROM THE DEPARTMENT OF THE NAVY. YOU CLAIM THAT HE WAS UNDER THE IMPRESSION THAT HE WAS IN AN ENLISTED STATUS IN THE NAVY DURING THE STATED PERIOD AND THEREFORE ENTITLED TO PAY AND ALLOWANCES. IN THIS CONNECTION, YOU ARE ADVISED THAT A MEMBER OF THE NAVAL RESERVE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES ONLY WHILE HE IS INAN ACTIVE DUTY STATUS.

A REVIEW OF OUR FILE SHOWS THAT AT THE TIME THAT MR. LARA WAS RELIEVED FROM ACTIVE DUTY IN 1964, AS AN ENLISTED MEMBER OF THE REGULAR NAVY, HE WAS TRANSFERRED TO THE U.S. NAVAL RESERVE WITH A RESERVE OBLIGATION UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, WHICH OBLIGATION TERMINATED ON NOVEMBER 7, 1966. WHILE IN THAT STATUS, HE APPLIED FOR AND WAS PERMITTED TO ATTEND A CLASS "C" SCHOOL AFTER AGREEING THAT FOLLOWING THIS SCHOOLING HE WOULD SERVE AS A MEMBER OF THE SELECTED RESERVE FOR A 2- YEAR PERIOD. ON APRIL 27, 1966, HE SIGNED AN EXTENSION OF ENLISTMENT AGREEMENT WHEREBY HE AGREED TO EXTEND HIS ENLISTMENT AND SERVE ON ACTIVE DUTY FOR A PERIOD OF 2 YEARS. BY ORDERS DATED APRIL 29, 1966, HE WAS DIRECTED TO REPORT FOR 24 MONTHS OF ACTIVE DUTY, WHICH HE DID ON MAY 16, 1966, AS A MEMBER OF THE NAVAL RESERVE.

IT APPEARS THAT, AFTER MR. LARA BEGAN SERVING ON ACTIVE DUTY, IT WAS DISCOVERED THAT THE EXTENSION AGREEMENT WHICH HE SIGNED WAS WITHOUT LEGAL EFFECT SINCE AT THE TIME OF THE AGREEMENT HE WAS NOT SERVING UNDER AN ENLISTMENT CONTRACT WHICH WAS SUBJECT TO BEING EXTENDED. IT WAS FURTHER NOTED THAT HE WAS SERVING OUT THE REMAINDER OF A RESERVE OBLIGATION UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, WHICH ALSO COULD NOT BE VOLUNTARILY EXTENDED.

PRESUMABLY, HE WAS INFORMED THAT THE EXTENSION AGREEMENT FURNISHED NO BASIS FOR ORDERING HIM TO ACTIVE DUTY FOR A PERIOD OF 2 YEARS AND IT IS REPORTED THAT ON OR ABOUT JULY 22, HE WAS OFFERED THE OPPORTUNITY OF AGAIN ENLISTING IN THE REGULAR NAVY FOR A SECOND 4 YEARS OF DUTY OR REENLISTING IN THE NAVAL RESERVE FOR 6 YEARS, WITH THE OBLIGATION TO PERFORM 2 YEARS OF ACTIVE DUTY. HE COSE NOT TO ACCEPT EITHER OF THESE ALTERNATIVES AND IT APPARENTLY WAS CONCLUDED BY THE NAVAL AUTHORITIES THAT HE SHOULD NOT CONTINUE TO PERFORM ACTIVE DUTY UNDER THE ORDERS OF APRIL 29, 1966. JULY 22, 1966, HE WAS RELEASED FROM THAT DUTY AND RETURNED TO AN INACTIVE DUTY RESERVE STATUS IN THE NAVAL RESERVE.

WHILE NO FORMAL WRITTEN ORDERS HAVE BEEN FURNISHED DIRECTING MR. LARA'S RELEASE FROM ACTIVE DUTY ON JULY 22, 1966, THERE IS NO QUESTION THAT HE WAS ADVISED OF SUCH ACTION SINCE HE LEFT HIS STATION AND RETURNED TO HIS HOME. SEE IN THIS CONNECTION 10 U.S.C. 681 (A).

SECTION 204 (A) OF TITLE 37, U.S. CODE, PROVIDES THAT "A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY" IS ENTITLED TO THE BASIC PAY OF THE GRADE TO WHICH ASSIGNED. THE TERM "ACTIVE DUTY" IS DEFINED IN SECTION 101 (18) OF THE SAME TITLE AS MEANING

"* * * FULL-TIME DUTY IN THE ACTIVE SERVICE OF A UNIFORMED SERVICE, AND INCLUDES DUTY ON THE ACTIVE LIST, FULL TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY CONCERNED."

THE PAY ACCOUNTS AT MR. LARA'S DUTY STATION, THE U.S. NAVAL SUBMARINE BASE, NEW LONDON, CONNECTICUT, WHERE IT IS INDICATED THAT HE WAS ATTENDING SCHOOL, SHOW THAT THE LAST DAY OF ACTIVE DUTY PERFORMED BY HIM PRIOR TO HIS RETURNING HOME TO SANTA ANA, CALIFORNIA, WAS JULY 22, 1966. THERE IS NOTHING IN THE RECORD TO SHOW THAT HE PERFORMED ANY ACTIVE NAVAL SERVICE AFTER THAT DATE. HENCE, THERE IS NO AUTHORITY OF LAW TO SUPPORT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO HIM FOR ANY PART OF THE PERIOD AFTER THAT DATE. COMPARE KILBANKS V UNITED STATES, 139 CT. CL. 128 (1957).

AS TO THE PERIOD MAY 16, 1966, THROUGH JULY 22, 1966, IT SEEMS CLEAR THAT HE ACTUALLY SERVED ON ACTIVE DUTY WITH HIS CONSENT AS A MEMBER OF THE NAVAL RESERVE DURING SUCH PERIOD. HIS STATUS IS VIEWED AS BEING DE JURE DURING THAT TIME AND HE WAS ENTITLED TO RECEIVE THE APPROPRIATE ACTIVE DUTY PAY AND ALLOWANCES FOR HIS GRADE AND YEARS OF SERVICE. SINCE THE RECORD INDICATES THAT HE DID NOT RECEIVE ALL THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED FOR THAT PERIOD, A SETTLEMENT WILL ISSUE IN DUE COURSE ALLOWING THE ADDITIONAL AMOUNT FOUND DUE.