B-23260, FEBRUARY 27, 1942, 21 COMP. GEN. 819

B-23260: Feb 27, 1942

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WHICH WERE IN EXISTENCE AND OF WHICH HE HAD BEEN INFORMALLY ADVISED WHEN HE COMMENCED THE TRAVEL. TO MILEAGE TO FIRST DUTY STATION AND TO PAY AND ALLOWANCES FROM THE DATE IT WAS NECESSARY FOR HIM TO COMMENCE TRAVEL IN ORDER TO REPORT FOR DUTY ON THE DATE SPECIFIED IN HIS ORDERS. IS ENTITLED TO MILEAGE FROM FORT LEONARD WOOD. WHERE HE REPORTED FOR ACTIVE DUTY AT THE UNITED STATES SUBMARINE BASE AND WHETHER HE IS ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD NOVEMBER 8 TO 20. THAT BEFORE THE COMMISSION WAS RECEIVED. HE WAS INDUCTED INTO THE ARMY PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. WAS RECEIVED BY HIM AND ON SEPTEMBER 23. SINCE AT THE TIME FORREST ATTEMPTED TO ACCEPT THE OFFICE HE WAS IN THE ARMY.

B-23260, FEBRUARY 27, 1942, 21 COMP. GEN. 819

COMMISSIONING OF ARMY INDUCTEE IN NAVAL RESERVE; TRAVEL PRIOR TO RECEIPT OF TRAVEL ORDERS THE PROVISION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, THAT NO OFFICER OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA, DISQUALIFIES AN ARMY INDUCTEE FROM ACCEPTING A COMMISSION IN THE NAVAL RESERVE, BUT THE FACT THAT AN INDUCTEE CANNOT ACCEPT SUCH A COMMISSION WHILE STILL IN THE ARMY DOES NOT INVALIDATE THE COMMISSION SO AS TO PREVENT A VALID ACCEPTANCE UPON REMOVAL OF THE DISQUALIFICATION BY DISCHARGE FROM THE ARMY. WHERE AN INDIVIDUAL TO WHOM A COMMISSION IN THE NAVAL RESERVE HAD BEEN ISSUED COMMENCED TRAVEL TO HIS FIRST DUTY STATION PRIOR TO FORMAL ACCEPTANCE OF THE COMMISSION AND PRIOR TO RECEIPT OF TRAVEL ORDERS, WHICH WERE IN EXISTENCE AND OF WHICH HE HAD BEEN INFORMALLY ADVISED WHEN HE COMMENCED THE TRAVEL, SUCH COMMENCEMENT OF TRAVEL MAY BE REGARDED AS AN ACCEPTANCE OF THE COMMISSION BY CONDUCT SO AS TO ENTITLE HIM, UPON EXECUTION OF THE OATH OF OFFICE, TO MILEAGE TO FIRST DUTY STATION AND TO PAY AND ALLOWANCES FROM THE DATE IT WAS NECESSARY FOR HIM TO COMMENCE TRAVEL IN ORDER TO REPORT FOR DUTY ON THE DATE SPECIFIED IN HIS ORDERS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 27, 1942:

THERE HAS BEEN CONSIDERED YOUR REQUEST FOR DECISION DATED JANUARY 19, 1942, WHETHER ENSIGN JOHN FORREST, E-V (S), UNITED STATES NAVAL RESERVE, IS ENTITLED TO MILEAGE FROM FORT LEONARD WOOD, MO., TO NEW LONDON, CONN., WHERE HE REPORTED FOR ACTIVE DUTY AT THE UNITED STATES SUBMARINE BASE AND WHETHER HE IS ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD NOVEMBER 8 TO 20, 1941.

FROM THE INFORMATION SUBMITTED WITH YOUR REQUEST IT APPEARS THAT FORREST MADE APPLICATION FOR A COMMISSION AS ENSIGN IN THE NAVAL RESERVE THROUGH THE COMMANDANT, ELEVENTH NAVAL DISTRICT, BUT THAT BEFORE THE COMMISSION WAS RECEIVED, HE WAS INDUCTED INTO THE ARMY PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885. WHILE SERVING IN THE ARMY HIS COMMISSION AS ENSIGN DATED SEPTEMBER 10, 1941, WAS RECEIVED BY HIM AND ON SEPTEMBER 23, 1941, PRIOR TO HIS DISCHARGE FROM THE ARMY, HE COMPLETED THE PAPERS AS THOUGH HE HAD FORMALLY ACCEPTED OFFICE AS ENSIGN AND EXECUTED AN OATH OF OFFICE. SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA, AND, THEREFORE, SINCE AT THE TIME FORREST ATTEMPTED TO ACCEPT THE OFFICE HE WAS IN THE ARMY, HE COULD NOT LEGALLY BECOME A MEMBER OF THE NAVAL RESERVE. IN OTHER WORDS, HE WAS LEGALLY DISQUALIFIED TO ACCEPT THE APPOINTMENT AND ANY ATTEMPT TOWARD ACCEPTANCE UNDER SUCH CIRCUMSTANCES IS WITHOUT EFFECT. HOWEVER, THE FACT THAT THE APPOINTEE COULD NOT AT THE TIME COMPLETE THE APPOINTMENT BY HIS ACCEPTANCE THEREOF DOES NOT INVALIDATE THE COMMISSION RECEIVED BY HIM AND UPON REMOVAL OF HIS DISQUALIFICATION THROUGH DISCHARGE FROM THE ARMY, THE COMMISSION MAY THEN BE ACCEPTED. IT IS REPORTED THAT ON NOVEMBER 3, 1941, HE WAS REQUESTED TO SIGN A STATEMENT DECLARING HIS INTENTION TO ACCEPT HIS APPOINTMENT AS ENSIGN UPON DISCHARGE FROM THE ARMY. SUCH STATEMENT WAS APPARENTLY SIGNED AND HE WAS DISCHARGED FROM THE ARMY ON NOVEMBER 5, 1941. ON NOVEMBER 21, 1941, FORREST EXECUTED A SECOND FORMAL ACCEPTANCE AND ANOTHER OATH OF OFFICE. BUREAU OF NAVIGATION ORDERS DATED OCTOBER 29, 1941, ADDRESSED TO FORREST VIA THE COMMANDANT, ELEVENTH NAVAL DISTRICT, ARE AS FOLLOWS: FROM: THE CHIEF OF THE BUREAU OF NAVIGATION. TO: ENSIGN JOHN FORREST, E-V (S) USNR, 306 TYLER STREET, TAFT, CALIFORNIA. VIA: THE COMMANDANT, ELEVENTH NAVAL DISTRICT. SUBJECT: ACTIVE DUTY WITH PAY AND ALLOWANCES--- CHARGEABLE AGAINST APPROPRIATION," PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL PERSONNEL.' REFERENCES: (A) EXECUTIVE ORDER OF SEPTEMBER 8, 1939.

(B) NAVAL APPROPRIATION ^ACT FOR CURRENT FISCAL YEAR.

(C) ALNAV 114, DATED NOVEMBER 22, 1940. ENCLOSURES: (A) AFFIDAVIT RE PENSION OR DISABILITY ALLOWANCE.

(B) FORM N. NAV. 17.

1. UPON ACCEPTANCE OF APPOINTMENT AS AN ENSIGN, E-V (S), U.S.N.R., AND IN ACCORDANCE WITH THE REFERENCES, YOU WILL PROCEED TO SUCH PLACE AND REPORT TO SUCH MEDICAL OFFICER AS MAY BE DESIGNATED BY THE COMMANDANT OF THE ABOVE NAVAL DISTRICT FOR PHYSICAL EXAMINATION. YOU ARE HEREBY ORDERED TO ACTIVE DUTY FOR THIS PURPOSE AND WILL BE CONSIDERED IN AN ACTIVE DUTY STATUS DURING THE TIME REQUIRED FOR PHYSICAL EXAMINATION AND FOR TRAVEL NECESSARY FOR COMPLIANCE WITH THESE ORDERS.

2. IF FOUND NOT PHYSICALLY QUALIFIED, YOU WILL IMMEDIATELY RETURN TO THE ABOVE ADDRESS AND UPON ARRIVAL CONSIDER YOURSELF RELEASED FROM ACTIVE DUTY. IN THIS EVENT, THE EXAMINING MEDICAL OFFICER WILL ADVISE THE BUREAU OF NAVIGATION BY DISPATCH, STATING THE DEFECTS, TOGETHER WITH HIS RECOMMENDATION.

3. IF FOUND PHYSICALLY QUALIFIED, YOU WILL IMMEDIATELY RETURN TO THE ABOVE ADDRESS AND UPON ARRIVAL CONSIDER YOURSELF RELEASED FROM ACTIVE DUTY UNTIL SUCH TIME AS IS NECESSARY TO PROCEED IN ORDER TO REPORT TO THE COMMANDING OFFICER, SUBMARINE BASE, NEW LONDON, CONNECTICUT, ON OR BEFORE NOVEMBER 10, 1941, FOR ACTIVE DUTY UNDER INSTRUCTION, REPORTING BY LETTER TO COMMANDANT, THIRD NAVAL DISTRICT. CONFIRMING BUNAV AIRMAILGRAM. 231629, OCTOBER 1941.

C. W. NIMITZ, COPY TO:

COMDT., THIRD N.D.

C.O., SUBMARINE BASE, NEW LONDON, CONN.

BU SHIPS.

FIRST ENDORSEMENT FROM: COMMANDANT,NAVAL DISTRICT. TO:

1. FORWARDED. YOU WILL PROCEED IN ACCORDANCE WITH BASIC ORDERS AND REPORT TO ----------- AT ------------ FOR PHYSICAL EXAMINATION FOR ACTIVE DUTY AND FURTHER COMPLIANCE WITH BASIC ORDERS.

PLACE DATE AND HOUR (SIGNATURES RECEIVED - -- SUBASE, N.L.C. ---- NOV. 10, 1941, 1000 (SIGNED) J.

FORREST (RESERVE

OFFICER). LEFT HOME -- FORT LEONARD

NOV. 6, 1941, 1330 (SIGNED) JOHN

WOOD, MO. FORREST

(RESERVE

OFFICER). ARRIVE AT --- SUBASE, N.L.C. ---- NOV. 10, 1941, 1000 (SIGNED) JOHN

FORREST (RESERVE

OFFICER). REPORTED AND S/M BASE, NEW

NOV. 12, 1941, 1000 S.M. BRITTEN, EXAMINED, LONDON, CONN. ----- LT. (MC) PHYSICALLY U.S.N.R. QUALIFIED.

( MEDICAL

OFFICER).

THESE ORDERS APPEAR TO HAVE BEEN RECEIVED BY FORREST UPON ARRIVAL AT THE SUBMARINE BASE, NEW LONDON, CONN. HOWEVER, HE STATES THAT ON THE DAY HE WAS DISCHARGED FROM THE ARMY HE RECEIVED THE FOLLOWING LETTER, DATED OCTOBER 23, 1941, FROM THE NAVY DEPARTMENT, BUREAU OF SHIPS:

WE ARE TODAY REQUESTING THE BUREAU OF NAVIGATION TO ISSUE YOU ORDERS CALLING YOU TO ACTIVE DUTY TO REPORT TO THE COMMANDER, SUBMARINE BASE, NEW LONDON, CONNECTICUT, ON OR BEFORE NOVEMBER 10, 1941, FOR ACTIVE DUTY UNDER INSTRUCTION IN CONNECTION WITH THE SUBMARINE MACHINERY SILENCING PROGRAM, IF APPOINTED ENSIGN, E-V (S), USNR.

WE HOPE THAT THIS ADVANCE INFORMATION WILL GIVE YOU SUFFICIENT TIME TO ARRANGE YOUR PERSONAL AFFAIRS SO THAT YOU MAY CONVENIENTLY REPORT FOR DUTY ON THE DATE DESIGNATED. THIS LETTER IS FOR YOUR INFORMATION ONLY AND IS NOT TO BE CONSIDERED AS OFFICIAL ORDERS.

IN AN AFFIDAVIT EXECUTED BY FORREST ON NOVEMBER 28, 1941, IT IS STATED:

* * * UPON THE STRENGTH OF THAT COMMUNICATION (THE LETTER QUOTED ABOVE) AND FROM CONVERSATION WITH THE PERSONNEL OFFICER (WHO I PRESUME HAD RECEIVED A COPY OF THE BUNAV AIRMAILGRAM 231629 OF OCTOBER 1941) I TRAVELED TO NEW LONDON AT MY OWN EXPENSE ON COMMERCIAL CONVEYANCE AND REPORTED ON NOVEMBER 10, 1941, TO THE COMMANDING OFFICER, U.S. SUBMARINE BASE, NEW LONDON, CONNECTICUT. THERE I RECEIVED MY ORIGINAL BUNAV ORDERS DATED OCTOBER 29, 1941 (ENCLOSURE G), WHICH CONFIRMED A PREVIOUS BUNAV AIRMAILGRAM 231629, OCTOBER 1941. * * *

IT HAS BEEN RECOGNIZED THAT THERE MAY BE AN ACCEPTANCE OF AN APPOINTMENT BY ENTERING UPON THE DUTY OF THE OFFICE. IN SUCH A CASE THERE MUST BE AN APPOINTMENT OR COMMISSION, THE APPOINTEE MUST HAVE KNOWLEDGE THEREOF, THERE MUST BE PERFORMANCE OF DUTY PURSUANT TO PROPER ORDERS IN THE CAPACITY IN WHICH, OR THE OFFICE TO WHICH, APPOINTED, AND BEFORE PAYMENT MAY BE MADE THE OATH OF OFFICE MUST BE TAKEN. SEE DECISION DATED FEBRUARY 16, 1942, B-23168, AND CASES CITED THEREIN. FORREST PERFORMED TRAVEL AS DIRECTED IN ORDERS ISSUED PRIOR TO SUCH TRAVEL AND REPORTED TO THE COMMANDING OFFICER AT THE PROPER STATION ON THE DAY SPECIFIED IN SAID ORDERS. UNDER SUCH CIRCUMSTANCES HE ENTERED UPON DUTY IN THE CAPACITY OF ENSIGN ON THE DAY IT WAS NECESSARY FOR HIM TO COMMENCE TRAVEL FROM FORT LEONARD WOOD, MO., IN ORDER TO REPORT AT THE SUBMARINE BASE, NEW LONDON, CONN., ON NOVEMBER 10, 1941, AND SUCH AN ENTRY ON DUTY ON HIS PART MAY BE CONSIDERED AN ACCEPTANCE OF HIS COMMISSION BY CONDUCT. SINCE HE EXECUTED THE OATH OF OFFICE AFTER DISCHARGE FROM THE ARMY HE MAY BE PAID PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 8 TO 20, 1941, IF OTHERWISE CORRECT, WHICH INCLUDES 2 DAYS' TRAVEL TIME, AND HE IS ENTITLED TO MILEAGE AS AUTHORIZED BY LAW FROM FORT LEONARD WOOD, MO., TO NEW LONDON, CONN.

YOU REQUEST THE RETURN OF THE FILE OF CORRESPONDENCE SUBMITTED WITH YOUR REQUEST FOR DECISION. THE FILE CONTAINS THE OFFICER'S CLAIM ON GENERAL ACCOUNTING OFFICE FORM 2034, WITH SUPPORTING PAPERS. SINCE THE ACTION TAKEN BY THIS OFFICE IS NECESSARILY BASED UPON THE INFORMATION DISCLOSED THEREIN, SUCH FILE, WITH THE EXCEPTION OF THE OFFICER'S COMMISSION AND HIS ORIGINAL ORDERS WHICH ARE RETURNED HEREWITH, PROPERLY IS REQUIRED TO BE RETAINED IN THIS OFFICE.