B-177119, MAR 12, 1973

B-177119, MAR 12, 1973

PRECIS-UNAVAILABLE

MAJOR F. D. BRADY, UNITED STATES MARINE CORPS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 6, 1972 (FILE REFERENCE CD-WMM 7207), WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER FORMER CORPORAL MARK A. KEMENOVICH, USMC, IS ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES FROM THE MARINE CORPS FOR THE PERIOD AUGUST 20, 1966, TO OCTOBER 2, 1966, AND THE PERIOD AUGUST 2, 1968, TO MAY 27, 1969. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER DATED SEPTEMBER 25, 1972, FROM THE COMMANDANT OF THE MARINE CORPS AND HAS BEEN ASSIGNED CONTROL NO. DO-MC-1175 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD IN THIS CASE SHOWS THAT MR. KEMENOVICH ENLISTED IN THE MARINE CORPS ON JUNE 7, 1966, FOR A TERM OF 3 YEARS. BY LETTER DATED JUNE 22, 1966, THE CHIEF OF NAVAL PERSONNEL NOTIFIED THE COMMANDANT OF THE MARINE CORPS THAT MR. KEMENOVICH HAD BEEN ACCEPTED FOR APPOINTMENT AS A MIDSHIPMAN IN THE NAVAL RESERVE OFFICERS TRAINING CORPS AT THE UNIVERSITY OF CALIFORNIA, COMMENCING IN THE FALL OF 1966. THE LETTER REQUESTED THAT MR. KEMENOVICH BE RELEASED TO INACTIVE DUTY AND BE PROVIDED WITH A CONTINGENT RELEASE FROM THE MARINE CORPS RESERVE PRIOR TO REPORTING TO HIS NROTC UNIT FOR THE REASON THAT UNDER THE PROVISIONS OF 10 U.S.C. 2107, HE WOULD HAVE TO BE DISCHARGED FROM HIS MARINE CORPS STATUS AND ENLISTED IN THE NAVAL RESERVE.

PURSUANT TO THAT REQUEST, THE COMMANDANT OF THE MARINE CORPS ON JULY 20, 1966, AUTHORIZED MR. KEMENOVICH'S DISCHARGE ON THE DAY PRECEDING HIS ENLISTMENT IN THE NAVAL RESERVE UPON HIS WRITTEN AGREEMENT TO ACCEPT HIS NROTC APPOINTMENT. IN TURN, MR. KEMENOVICH'S COMMANDING OFFICER HAD HIM EXECUTE THE REQUIRED AGREEMENT AND ON AUGUST 19, 1966, ORDERED HIS RELEASE FROM ACTIVE DUTY, TRANSFERRING HIM TO THE 5TH MARINE CORPS DISTRICT FOR CONTROL PURPOSES. CONCURRENT WITH THIS ACTION, THE COMMANDING OFFICER FURNISHED THE DISBURSING OFFICER A DD FORM 114, MILITARY PAY ORDER, AUTHORIZING MR. KEMENOVICH'S COMPLETE DISCHARGE FROM THE MARINE CORPS FOR THE CONVENIENCE OF THE GOVERNMENT, EFFECTIVE AUGUST 19, 1966. PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES WAS TERMINATED EFFECTIVE THAT DATE AND HE WAS REIMBURSED FOR HIS UNUSED LEAVE AND PAID A MILEAGE ALLOWANCE TO HIS HOME OF RECORD.

ON OCTOBER 3, 1966, MR. KEMENOVICH ENLISTED IN THE UNITED STATES NAVAL RESERVE FOR A TERM OF 6 YEARS AND ACCEPTED IN WRITING AN APPOINTMENT AS A MIDSHIPMAN, USNR, ON THE SAME DATE. ON AUGUST 1, 1968, THAT APPOINTMENT WAS TERMINATED AND HE WAS DISENROLLED FROM THE NROTC UNIT AT THE UNIVERSITY OF CALIFORNIA AND DISCHARGED FROM THE NAVAL RESERVE.

YOU INDICATE THAT ON OCTOBER 21, 1968, MR. KEMENOVICH REQUESTED CLARIFICATION OF HIS STATUS FROM HEADQUARTERS, UNITED STATES MARINE CORPS, AND IN RESPONSE WAS SENT A DD FORM 214, REPORT OF TRANSFER OR DISCHARGE, ON DECEMBER 6, 1968, WHICH SHOWED THAT HE HAD BEEN RELEASED FROM ACTIVE DUTY IN THE MARINE CORPS ON AUGUST 19, 1966, CITING 10 U.S.C. 2107 AS AUTHORITY THEREFOR AND A DD FORM 256, CERTIFICATE OF DISCHARGE REFLECTING HIS COMPLETE DISCHARGE FROM THE MARINE CORPS ON THE SAME DATE. ON MAY 28, 1969, MR. KEMENOVICH REENLISTED IN THE MARINE CORPS AND SERVED ON ACTIVE DUTY UNTIL HIS DISCHARGE ON MARCH 26, 1971.

YOU SAY THAT OTHER THAN THE MILITARY PAY ORDER (DD FORM 114), DATED AUGUST 18, 1966, NO OTHER PROSPECTIVE ACTION WAS TAKEN BY THE MARINE CORPS TO EFFECT EITHER MR. KEMENOVICH'S RELEASE FROM ACTIVE DUTY OR HIS DISCHARGE FROM THE MARINE CORPS. ALL OTHER DOCUMENTS RELATING TO HIS RELEASE AND DISCHARGE FROM THE MARINE CORPS WERE ISSUED RETROACTIVELY AND YOU EXPRESS THE BELIEF THAT THEY WERE NOT ISSUED TO CONFORM TO THE PROVISIONS OF MARINE CORPS ORDER 1306.17A, DATED MARCH 9, 1961, WHICH PROVIDES IN PART THAT WHEN A MARINE SERVING ON ACTIVE DUTY ACCEPTS AN APPOINTMENT AS AN NROTC MIDSHIPMAN ACTIVE DUTY PAY AND ALLOWANCES WILL BE PAID THROUGH THE DATE PRIOR TO ACCEPTANCE OF APPOINTMENT.

IN THIS CONNECTION, YOU SAY THAT ON MARCH 28, 1972, MR. KEMENOVICH WAS INFORMED THAT HIS MARINE CORPS RECORD HAD BEEN CORRECTED TO SHOW THAT UPON HIS RELEASE FROM ACTIVE DUTY ON AUGUST 19, 1966, HE WAS TRANSFERRED TO THE 5TH MARINE CORPS DISTRICT AND THAT HIS DISCHARGE FROM THE MARINE CORPS DID NOT BECOME EFFECTIVE UNTIL OCTOBER 2, 1966, BUT YOU SAY THAT NEITHER A DD FORM 214 NOR DISCHARGE CERTIFICATE WAS ISSUED TO SUBSTANTIATE SUCH A DISCHARGE. AS A RESULT, YOU NOW QUESTION WHETHER MR. KEMENOVICH WAS ACTUALLY RELEASED FROM THE MARINE CORPS PRIOR TO OCTOBER 2, 1966, CITING THE PROVISIONS OF 10 U.S.C. 516, AS HAVING POSSIBLE APPLICATION.

IN THIS REGARD, YOU ASK WHETHER THE REQUIREMENT IN 10 U.S.C. 2107, THAT MR. KEMENOVICH ENLIST IN THE NAVAL RESERVE, SUPERSEDES THE REQUIREMENT IN 10 U.S.C. 516 THAT HIS STATUS AS AN ENLISTED MEMBER OF THE MARINE CORPS CONTINUE AFTER HIS APPOINTMENT. OR DID THE STATUTES PERMIT HIM TO HOLD A TRIPLE STATUS: MIDSHIPMAN, USNR; ENLISTED MEMBER, USNR, AND ENLISTED MEMBER, USMC?

YOU ALSO ASK THAT IF IT IS CONCLUDED THAT MR. KEMENOVICH'S STATUS AS A MEMBER OF THE MARINE CORPS WAS NOT TERMINATED BY HIS APPOINTMENT AND ENLISTMENT IN THE NAVAL RESERVE, MAY HE BE CONSIDERED TO HAVE "RESUMED" HIS MARINE CORPS STATUS UPON TERMINATION OF HIS NAVAL RESERVE APPOINTMENT SINCE HE PERFORMED NO ACTUAL SERVICE OR OTHER DUTIES IN THE MARINE CORPS UNTIL HIS REENLISTMENT ON MAY 28, 1969? AND, IF IT IS CONCLUDED THAT HE RESUMED HIS STATUS AS AN ENLISTED MEMBER OF THE MARINE CORPS ON AUGUST 2, 1968, DID THE ACTION OF DECEMBER 6, 1968, WHEREBY MR. KEMENOVICH WAS SENT THE REQUESTED DD FORM 214 AND CERTIFICATE OF DISCHARGE, TERMINATE THAT STATUS? IF SO, ON WHAT DATE SHOULD PAY AND ALLOWANCES BE STOPPED?

SECTION 204 OF TITLE 37, U. S. CODE, PROVIDES THAT AMONG THOSE ENTITLED TO BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED OR DISTRIBUTED, IN ACCORDANCE WITH THEIR YEARS OF SERVICE, IS A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY. "ACTIVE DUTY" IS DEFINED IN 37 U.S.C. 101(18) TO MEAN FULL TIME DUTY IN THE ACTIVE SERVICE OF A UNIFORMED SERVICE, INCLUDING DUTY ON THE ACTIVE LIST, ETC. THUS, UNLESS A MEMBER IS SERVING IN AN ACTIVE DUTY STATUS HE IS NOT ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES.

WITH RESPECT TO MR. KEMENOVICH'S MILITARY STATUS, THE MATERIAL WITH THE SUBMISSION SHOWS THAT THE CHIEF OF NAVAL PERSONNEL SPECIFICALLY REQUESTED OF THE COMMANDANT OF THE MARINE CORPS THAT MR. KEMENOVICH "BE RELEASED TO INACTIVE DUTY, AND BE PROVIDED WITH A CONTINGENT RELEASE FROM THE U. S. MARINE CORPS RESERVE" AND THAT "IN ORDER FOR (HIM) TO BE APPOINTED MIDSHIPMAN, USNR, HE WILL HAVE TO BE DISCHARGED FROM HIS MARINE CORPS STATUS AND ENLISTED IN THE NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 2107, TITLE 10 U. S. CODE." PURSUANT TO THAT REQUEST, THE COMMANDANT OF THE MARINE CORPS ISSUED THE NECESSARY RELEASE AUTHORIZATION AND BY SECOND ENDORSEMENT, MR. KEMENOVICH'S COMMANDING OFFICER ISSUED THAT RELEASE, STATING IN PART THAT "EFFECTIVE THIS DATE, 19 AUGUST 1966, YOU ARE HEREBY TRANSFERRED TO THE 5TH MARINE CORPS DISTRICT PENDING YOUR APPOINTMENT TO MIDSHIPMAN."

SECTION 2107 OF TITLE 10, U. S. CODE, IS A PART OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1063. THE PURPOSE OF THAT ACT WAS TO IMPROVE AND EXPAND EXISTING ROTC PROGRAMS, WITH THE NEW SECTION 2107 CREATING A 4-YEAR SENIOR ROTC PROGRAM UNDER EACH OF THE MILITARY SERVICES WHEREBY SPECIALLY SELECTED STUDENTS WOULD RECEIVE SCHOLARSHIP ASSISTANCE IN THE FORM OF TUITION, FEES, BOOKS AND LABORATORY EXPENSES, AS WELL AS PAYMENT OF A MONTHLY SUBSISTENCE ALLOWANCE TO THE STUDENT. SUBSECTION (B) OF THAT SECTION PROVIDES THAT IN ORDER FOR AN INDIVIDUAL TO PARTICIPATE IN THE 4- YEAR PROGRAM, CERTAIN ELIGIBILITY REQUIREMENTS MUST BE MET. INCLUDED IN THOSE REQUIREMENTS ARE THAT THE STUDENT MUST ENLIST IN THE RESERVE COMPONENT OF THE ARMED FORCE IN WHICH APPOINTED A CADET OR MIDSHIPMAN; MUST AGREE TO ACCEPT AN APPOINTMENT AS AN OFFICER, IF TENDERED, AND SERVE ON ACTIVE DUTY FOR A MINIMUM OF FOUR YEARS, BUT SHOULD THE STUDENT DECLINE TO ACCEPT THE TENDERED OFFICER APPOINTMENT OR FAILS TO COMPLETE THE COURSE, HE MAY BE ORDERED TO ACTIVE DUTY IN HIS RESERVE ENLISTED STATUS.

YOU HAVE INDICATED YOUR BELIEF THAT THE PROVISIONS OF 10 U.S.C. 516 MAY BE DETERMINATIVE OF MR. KEMENOVICH'S MILITARY STATUS. THAT SECTION WAS DERIVED FROM THE ACT OF JUNE 25, 1956, CH. 439, 70 STAT. 333, AND PROVIDES THAT AN ENLISTMENT OR OTHER PERIOD OF OBLIGATED SERVICE OF AN ENLISTED MEMBER OF THE ARMED FORCES WHO ACCEPTS AN APPOINTMENT AS A CADET OR MIDSHIPMAN, INCLUDING MIDSHIPMAN, USNR, MAY NOT BE TERMINATED BECAUSE OF THE ACCEPTANCE OF THAT APPOINTMENT. THAT SECTION FURTHER PROVIDES THAT IF AN ENLISTED MEMBER IS SEPARATED FROM SUCH SERVICE FOR REASONS OTHER THAN HIS APPOINTMENT AS A COMMISSIONED OFFICER OR DUE TO A PHYSICAL DISABILITY, HE SHALL RESUME HIS ENLISTED STATUS AND COMPLETE HIS OBLIGATED ENLISTMENT PERIOD UNLESS SOONER DISCHARGED.

THE LEGISLATIVE HISTORY OF THE 1956 LAW SHOWS THAT IT WAS ENACTED TO END AN ABUSE BY CERTAIN ENLISTED MEMBERS OF THE ARMED FORCES, WHEREBY UNDER EXISTING LAW THEY COULD AVOID ADDITIONAL COMPULSORY MILITARY TRAINING BY BEING APPOINTED CADETS OR MIDSHIPMEN AND RESIGNING FROM THESE APPOINTMENTS SHORTLY THEREAFTER.

IT IS A WELL ESTABLISHED RULE OF STATUTORY CONSTUCTION THAT WHERE ONE STATUTE DEALS WITH A SUBJECT IN GENERAL TERMS, AND ANOTHER DEALS WITH OR REFERS TO THE SAME SUBJECT BUT IN A MORE DETAILED MANNER, THE MORE SPECIFIC STATUTORY PROVISIONS WILL PREVAIL UNLESS IT APPEARS THAT THE LEGISLATURE INTENDED TO MAKE THE LANGUAGE OF THE GENERAL ACT CONTROLLING. SEE 37 COMP. GEN. 475 (1958) AND CASES CITED.

UNDER BOTH PROVISIONS OF LAW IT IS APPARENT THAT THE CONGRESS INTENDED TO EXERCISE CONTROL OVER THOSE WHO WOULD RECEIVE THE BENEFITS OF HIGHER EDUCATION AT GOVERNMENT EXPENSE. HOWEVER, IN PROVIDING SPECIFICALLY IN 10 U.S.C. 2107 THAT PROSPECTIVE PARTICIPANTS IN A 4 YEAR SENIOR ROTC PROGRAM MUST JOIN THE RESERVE COMPONENT OF THE ARMED FORCE IN WHICH APPOINTED CADETS OR MIDSHIPMEN, ALL SUCH PARTICIPANTS ARE AFFECTED THEREBY. WHILE THE MARINE CORPS WAS NOT REQUIRED TO RELEASE MR. KEMENOVICH, TO PARTICIPATE IN THE 4-YEAR NROTC PROGRAM, SINCE THEY OBVIOUSLY INTENDED TO DO SO IN ORDER TO PERMIT SUCH PARTICIPATION UNDER THE PROVISIONS OF 10 U.S.C. 2107 AND HE DID SO PARTICIPATE, IT IS OUR VIEW THAT THE PROVISIONS OF 10 U.S.C. 516 ARE INAPPLICABLE TO HIM.

AS TO MR. KEMENOVICH'S RELEASE AND DISCHARGE FROM THE MARINE CORPS, IT IS CLEARLY EVIDENT THAT THE ACTION TAKEN ON AUGUST 19, 1966, WAS OF SUCH A CHARACTER AS TO SIGNIFICANTLY AFFECT HIS STATUS. WHETHER THAT ACTION ACTUALLY OPERATED TO COMPLETELY DISCHARGE HIM FORM THE MARINE CORPS ON THAT DATE OR MERELY CAUSED HIM TO BE RELEASED FROM ACTIVE DUTY AND BE PLACED IN AN INACTIVE DUTY STATUS PENDING ACCEPTANCE OF HIS APPOINTMENT AS A MIDSHIPMAN, USNR, IS UNCLEAR. IT WOULD APPEAR, HOWEVER, THAT IN ANY EVENT, MR. KEMENOVICH WAS RELEASED FROM ACTIVE DUTY AS AN ENLISTED MEMBER OF THE MARINE CORPS ON THAT DATE AND THEREAFTER UNTIL OCTOBER 2, 1966, WAS IN AN INACTIVE DUTY STATUS. FURTHER, SINCE HIS RELEASE AND DISCHARGE FROM THE MARINE CORPS HAD BEEN AUTHORIZED AND HE HAD TO BE DISCHARGED FROM THE MARINE CORPS IN ORDER TO ACCEPT HIS NROTC APPOINTMENT, IT IS OUR VIEW THAT ON OCTOBER 2, 1966, HE CEASED TO BE A MEMBER OF THE MARINE CORPS IN ANY CAPACITY, AND ON OCTOBER 3, 1966, UPON EXECUTING A NAVAL RESERVE ENLISTMENT CONTRACT, AS WELL AS AN ACCEPTANCE CONTRACT FOR HIS APPOINTMENT, HE UNDERTOOK THE DUAL STATUS AUTHORIZED BY 10 U.S.C. 2107, THAT OF MIDSHIPMAN, USNR, AND AN ENLISTED MEMBER, USNR. FURTHER, IT IS OUR VIEW THAT UPON HIS DISENROLLMENT FROM THE NAVAL RESERVE OFFICERS TRAINING CORPS AND HIS DISCHARGE FROM THE NAVAL RESERVE AS AN ENLISTED MEMBER ON AUGUST 1, 1968, MR. KEMENOVICH HAD NO MILITARY STATUS WITH RESPECT TO EITHER THE UNITED STATES MARINE CORPS OR THE UNITED STATES NAVAL RESERVE UNTIL HE REENLISTED IN THE MARINE CORPS ON MAY 28, 1969.

THEREFORE, BASED ON OUR UNDERSTANDING OF THE FACTS IN THIS CASE AND IN THE ABSENCE OF A SHOWING THAT MR. KEMENOVICH CONTINUED IN AN ACTIVE DUTY STATUS OR PERFORMED ANY MILITARY DUTY IN THE MARINE CORPS DURING THE PERIODS AUGUST 20, 1966, TO OCTOBER 2, 1966, AND AUGUST 2, 1968, TO MAY 27, 1969, PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IS NOT AUTHORIZED AND YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.