B-40140, JUNE 3, 1944, 23 COMP. GEN. 914

B-40140, JUNE 3, 1944, 23 COMP. GEN. 914

TRAVEL AND ENLISTMENT ALLOWANCES - NAVY ENLISTED MEN SERVING AS TEMPORARY OFFICERS WHERE A NAVY ENLISTED MAN EXTENDED HIS ENLISTMENT WHILE TEMPORARILY SERVING AS AN OFFICER UNDER THE ACT OF JULY 24, 1941, AND SUBSEQUENTLY REVERTED TO HIS PERMANENT ENLISTED STATUS UPON REVOCATION OF THE TEMPORARY APPOINTMENT, SUCH REVERSION DOES NOT RETROACTIVELY OPERATE TO ENTITLE HIM, AS OF A DATE WITHIN THE TENURE OF HIS TEMPORARY OFFICE, TO TRAVEL AND ENLISTMENT ALLOWANCES WHICH ON THE DATE OF THE ENLISTMENT EXTENSION WERE DENIED TO HIM BY THE PROVISION IN SECTION 7 (A) OF SAID ACT LIMITING PERSONS HOLDING TEMPORARY COMMISSIONS UNDER THE ACT TO PAY AND ALLOWANCES AUTHORIZED FOR THE POSITION TEMPORARILY OCCUPIED. 23 COMP. GEN. 37, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 3, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 12, ENCLOSING A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED FEBRUARY 2, 1944, AND REQUESTING DECISION ON THE FOLLOWING QUESTION:

* * * IS AN ENLISTED MAN ENTITLED TO TRAVEL AND REENLISTMENT ALLOWANCES AFTER REVOCATION OF HIS TEMPORARY APPOINTMENT, IRRESPECTIVE OF WHETHER THE ALLOWANCES WERE NOT CREDITED ON DATE OF DISCHARGE AND REENLISTMENT OR WHETHER CREDITED AND SUBSEQUENTLY CHECKED, UNDER THE FOLLOWING CIRCUMSTANCES:

CHIEF PETTY OFFICER REENLISTED ON 22 JUNE 1938 FOR FOUR YEARS, WAS TEMPORARILY APPOINTED ENSIGN ON 15 JANUARY 1942, EXTENDED HIS ENLISTMENT FOR A PERIOD OF TWO YEARS FROM 22 JUNE 1942, AND HIS TEMPORARY APPOINTMENT AS ENSIGN WAS REVOKED ON 4 JANUARY 1943, ON WHICH DATE HE REVERTED TO HIS ENLISTED STATUS.

IN 21 COMP. GEN. 991 AND IN 22 ID. 548, THERE WAS CONSIDERED THE QUESTION OF PAYMENT OF ENLISTMENT AND TRAVEL ALLOWANCES TO MEN HAVING A PERMANENT ENLISTED STATUS WHO--- WHILE HOLDING A TEMPORARY WARRANT OR COMMISSION UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603--- VOLUNTARILY REENLIST OR EXTEND THEIR ENLISTMENTS. IT WAS HELD IN BOTH DECISIONS THAT UNDER SUCH CIRCUMSTANCES NO RIGHT TO ENLISTMENT OR TRAVEL ALLOWANCES ACCRUES TO SUCH TEMPORARY OFFICERS AS THE FIRST PROVISO TO SECTION 7 (A) OF THE ABOVE ACT, 55 STAT. 604, STIPULATES:

THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. ( ITALICS SUPPLIED.)

THE BASIS FOR THE CONCLUSION IN SUCH DECISIONS, WAS THAT, INTER ALIA, TRAVEL ALLOWANCES AND ENLISTMENT ALLOWANCE AS FOR DISCHARGE AND REENLISTMENT, OR EXTENSION OF AN ENLISTMENT, CONSTITUTE NO PART OF THE PAY AND ALLOWANCES PROVIDED BY LAW FOR PERSONS TEMPORARILY SERVING AS OFFICERS APPOINTED UNDER THE ACT OF JULY 24, 1941.

THE EXAMPLE CITED BY YOU IS SQUARELY WITHIN THE RULE LAID DOWN IN THE ABOVE TWO DECISIONS. UNDER THAT RULE THE SUBJECT MAN IS NOT ENTITLED TO ENLISTMENT OR TRAVEL ALLOWANCES FOR A VOLUNTARY EXTENSION OF ENLISTMENT EFFECTUATED WHILE SERVING UNDER A TEMPORARY COMMISSION UNDER THE ACT OF JULY 24, 1941.

IN THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IT IS SUGGESTED THAT ENLISTMENT ALLOWANCE NEED NOT BE PAID ON DATE OF REENLISTMENT OR WITHIN A SPECIFIED PERIOD THEREAFTER, AND THAT IF SUCH ALLOWANCE WERE PAID TO AN ENLISTED MAN (FORMER TEMPORARY OFFICER) AFTER REVERSION TO HIS PERMANENT ENLISTED STATUS, SUCH PAYMENT WOULD NOT CONTRAVENE ANY PROVISION OF LAW. OBVIOUSLY, THE RIGHT TO ENLISTMENT AND TRAVEL ALLOWANCES ACCRUES, IF AT ALL, ON THE EFFECTIVE DATE OF REENLISTMENT OR EXTENSION OF ENLISTMENT. BY THE TERMS OF THE PROVISO HEREINBEFORE QUOTED, NO SUCH RIGHT ACCRUES INCIDENT TO A REENLISTMENT OR AN EXTENSION WHICH BECOMES EFFECTIVE WHILE SERVING AS A TEMPORARY OFFICER UNDER THE ACT OF JULY 24, 1941. THE FACT THAT A TEMPORARY OFFICER LATER REVERTS TO HIS PERMANENT ENLISTED STATUS--- AS MANY APPOINTEES UNDER THE ACT OF JULY 24, 1941, EVENTUALLY WILL DO--- MAY NOT RETROACTIVELY OPERATE TO ENTITLE HIM, AS OF A DATE WITHIN THE TENURE OF HIS TEMPORARY OFFICE, TO ALLOWANCES WHICH ON THAT DATE WERE DENIED TO HIM BY LAW.

IN FURTHER SUPPORT OF THE ARGUMENT ADVANCED FOR PAYMENT OF BOTH TRAVEL AND ENLISTMENT ALLOWANCES UPON REVERSION TO AN ENLISTED STATUS, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS REFERRED TO THE DECISION OF THIS OFFICE DATED JULY 20, 1943, 23 COMP. GEN. 37. THE FACTS IN THAT CASE (QUESTION B) WERE ALTOGETHER DIFFERENT FROM THOSE HERE INVOLVED. THERE THE MAN REENLISTED ON FEBRUARY 7, 1936, AS A CHIEF MACHINIST'S MATE ( PA); WAS TEMPORARILY APPOINTED A WARRANT OFFICER JANUARY 15, 1942, WHICH TEMPORARY APPOINTMENT WAS REVOKED ON FEBRUARY 11, 1943; WAS DISCHARGED AS AN ENLISTED MAN ON FEBRUARY 19, 1943, AND REENLISTED FEBRUARY 20, 1943. THERE WAS NO REENLISTMENT OR EXTENSION, EITHER VOLUNTARY OR INVOLUNTARY, DURING THE PERIOD OF HIS TEMPORARY WARRANT STATUS, THE ONLY QUESTION INVOLVED BEING THE LENGTH OF SERVICE IN THE LAST EXPIRING ENLISTMENT FOR THE PURPOSE OF ENLISTMENT ALLOWANCE INCIDENT TO THE DISCHARGE AND REENLISTMENT FEBRUARY 19-20, 1943, AND IT WAS HELD THAT HIS DISCHARGE FEBRUARY 19, 1943, AFTER REVERSION TO AN ENLISTED GRADE WAS A DISCHARGE FROM THE ENLISTMENT ENTERED INTO FEBRUARY 7, 1936. THE ENLISTMENT ALLOWANCE AUTHORIZED TO BE PAID IN THAT CASE WAS NOT AS FOR THE REVERSION, BUT WAS BASED UPON A DISCHARGE FROM THE LAST EXPIRING ENLISTMENT FOLLOWED BY A REENLISTMENT WITHIN THREE MONTHS, AS REQUIRED BY SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363. IT WILL BE NOTED THAT THE MAN'S ENLISTMENT IN THAT CASE ORDINARILY WOULD HAVE EXPIRED FOUR YEARS FROM FEBRUARY 7, 1936, DURING WHICH TIME HE WAS SERVING AS TEMPORARY WARRANT OFFICER, BUT NO SUGGESTION APPEARED OF AN ADMINISTRATIVE APPLICATION OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, INVOLUNTARILY TO EXTEND HIS ENLISTMENT, ON THE APPARENT VIEW THAT HIS TEMPORARY WARRANT HELD IN ABEYANCE HIS ENLISTED STATUS, AND THERE WAS NO CONTENTION THAT SUCH ALLOWANCES FOR CONSTRUCTIVE TRAVEL AND REENLISTMENT AROSE AS AN INCIDENT TO A VOLUNTARY REENLISTMENT OR EXTENSION DURING THE PERIOD THAT THE TEMPORARY WARRANT STATUS WAS IN EFFECT. WHILE THE FACTS DISCLOSED IN QUESTION A OF THE SAME DECISION INDICATED AN INVOLUNTARY DETENTION IN SERVICE UNDER THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, FOLLOWED BY A SUBSEQUENT DISCHARGE AND IMMEDIATE REENLISTMENT, THERE WAS NO QUESTION INVOLVING THE PAYMENT OF SUCH ALLOWANCES INCIDENT TO A REENLISTMENT OR VOLUNTARY EXTENSION DURING A PERIOD THAT THE MAN HELD A TEMPORARY WARRANT OR COMMISSIONED STATUS.