B-41115, SEPTEMBER 4, 1944, 24 COMP. GEN. 177

B-41115: Sep 4, 1944

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ALTHOUGH HE WAS IMMEDIATELY ASSIGNED TO ACTIVE DUTY AS A GROUND OFFICER. 1944: REFERENCE IS MADE TO YOUR LETTER OF MARCH 24. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH AN OFFICER'S SUPPLEMENTARY PAY VOUCHER. WAS APPOINTED AN AVIATION CADET IN THE U.S. WAS DETAILED TO DUTY INVOLVING FLYING AS PILOT EFFECTIVE THAT DATE. HIS DETAIL TO DUTY INVOLVING FLYING WAS REVOKED. HE WAS RECLASSIFIED AND TRANSFERRED FROM CLASS III (A) ( NAVC) TO CLASS III (A) ( AV). THAT HE WAS RELEASED FROM ACTIVE DUTY ON 21 JANUARY. WAS REASSIGNED TO ACTIVE DUTY THEREAT AS AN OFFICER ( AV) ON 22 JANUARY. IT IS REQUESTED THAT A DECISION BE FURNISHED THIS OFFICE WHETHER OR NOT THE CLAIM MAY BE PAID. PROVIDES: WHEN OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 819) ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS.

B-41115, SEPTEMBER 4, 1944, 24 COMP. GEN. 177

LUMP SUM PAYMENT UNDER NAVAL AVIATION CADET ACT OF 1942 THE RELEASE OF A MARINE CORPS RESERVE OFFICER FROM ACTIVE DUTY AS A NAVAL AVIATOR COMMISSIONED PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1929, ALTHOUGH HE WAS IMMEDIATELY ASSIGNED TO ACTIVE DUTY AS A GROUND OFFICER, CONSTITUTED A "RELEASE FROM ACTIVE DUTY" AS CONTEMPLATED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED, ENTITLING HIM TO PAYMENT OF THE LUMP SUM AUTHORIZED BY THE ACT TO BE PAID, UPON RELEASE FROM ACTIVE DUTY, FOR EACH YEAR OF CONTINUOUS ACTIVE COMMISSIONED SERVICE OF OFFICERS COMMISSIONED THEREUNDER OR UNDER THE 1939 ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR D. J. DEE, U.S. MARINE CORPS, SEPTEMBER 4, 1944:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1944, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH AN OFFICER'S SUPPLEMENTARY PAY VOUCHER, IN THE CASE OF CAPTAIN OSCAR J. CAMP, JR., USMCR ( AV), SHOWING CLAIM FOR $500.00 LUMP SUM PAYMENT AS AUTHORIZED BY SEC. 12 OF THE ACT OF AUGUST, 1942, STAT. 738, TOGETHER WITH CERTIFIED COPIES OF CAPTAIN CAMP'S REQUEST FOR GROUND DUTY, STATEMENTS OF HIS COMMANDING OFFICER AND MEDICAL OFFICER, RELIEF FROM ACTIVE DUTY ORDERS, AND REASSIGNMENT TO ACTIVE DUTY ORDERS.

THE RECORDS OF HEADQUARTERS MARINE CORPS SHOW THAT OSCAR J. CAMP, JR., WAS APPOINTED AN AVIATION CADET IN THE U.S. NAVAL RESERVE ON 11 JULY, 1941; REPORTED FOR ACTIVE DUTY THAT DATE; ACCEPTED APPOINTMENT AS SECOND LIEUTENANT IN THE U.S. MARINE CORPS RESERVE ON 9 FEBRUARY, 1942, IN ACCORDANCE WITH THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819; WAS DETAILED TO DUTY INVOLVING FLYING AS PILOT EFFECTIVE THAT DATE; THAT PURSUANT TO HIS REQUEST DATED 17 DECEMBER, 1943, THAT HE BE DETAILED TO DUTY AS A GROUND OFFICER IN CONNECTION WITH AVIATION, HIS DETAIL TO DUTY INVOLVING FLYING WAS REVOKED, EFFECTIVE 10 JANUARY, 1944, AND HE WAS RECLASSIFIED AND TRANSFERRED FROM CLASS III (A) ( NAVC) TO CLASS III (A) ( AV), EFFECTIVE 11 JANUARY, 1944; THAT HE WAS RELEASED FROM ACTIVE DUTY ON 21 JANUARY, 1944; AT THE MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA, AND WAS REASSIGNED TO ACTIVE DUTY THEREAT AS AN OFFICER ( AV) ON 22 JANUARY, 1944.

IT IS REQUESTED THAT A DECISION BE FURNISHED THIS OFFICE WHETHER OR NOT THE CLAIM MAY BE PAID, SUBSTANTIATED BY THE FACTS PRESENTED.

SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 738, PROVIDES:

WHEN OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 819) ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY, OR IN THE EVENT OF THE DEATH OF SUCH OFFICERS AFTER CONTINUOUS ACTIVE DUTY FOR ONE OR MORE YEARS, THE BENEFICIARIES SPECIALLY DESIGNATED IN THE MANNER PRESCRIBED BY THE SECRETARY OF THE NAVY, SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF CONTINUOUS COMMISSIONED ACTIVE SERVICE, AND IN THE EVENT OF THEIR DEATH NOT THE RESULT OF THEIR OWN MISCONDUCT, OR IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON THEIR OWN REQUEST OR AS A RESULT OF DISCIPLINARY ACTION, THIS LUMP SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH SERVICE: PROVIDED, THAT THE LUMP SUM PAYMENTS AUTHORIZED HEREIN SHALL ACCRUE FOR NOT MORE THAN SEVEN YEARS AND SHALL BE IN ADDITION TO ANY PAY, ALLOWANCE, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION, EXCEPT THOSE OF THE FIRST PROVISO HEREOF, MAY BE SUSPENDED DURING WAR OR NATIONAL EMERGENCY WHEN THE PRESIDENT SHALL SO DIRECT, SO AS TO ALL OFFICERS WHO WERE FORMERLY ENLISTED IN THE GRADE OF AVIATION CADET OR TRANSFERRED TO THAT ENLISTED GRADE MORE THAN THIRTY DAYS AFTER THE DATE OF APPROVAL OF THIS ACT.

THIS SECTION WAS AMENDED BY THE ACT OF OCTOBER 25, 1943, PUBLIC LAW NO. 169, 57 STAT. 574, AS FOLLOWS:

THAT SECTION 12 OF THE AVIATION CADET ACT OF 1942 (56 STAT. 738, 34 U.S.C. 850K) IS HEREBY AMENDED BY INSERTING AFTER THE COMMA FOLLOWING THE WORK " NAVY," IN LINE 6, THE FOLLOWING: "OR, IF NO BENEFICIARY HAS BEEN SPECIALLY DESIGNATED, THE WIDOW OF SUCH OFFICER, AND IF THERE BE NO WIDOW, HIS CHILD OR CHILDREN, AND IF THERE BE NEITHER WIDOW NOR CHILD, THE REPRESENTATIVE OF THE OFFICER'S ESTATE, .'

THE LUMP SUM PAYMENTS PROVIDED BY SAID SECTION 12 OF THE 1942 ACT, SUPRA, ARE FOR OFFICERS COMMISSIONED PURSUANT TO THAT ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819, AND SECTION 7 OF THE 1942 ACT, 56 STAT. 738, PROVIDES THAT AVIATION CADETS WHO FULFILL THE REQUIREMENTS OF LAW FOR DESIGNATION OR APPOINTMENT AS NAVAL AVIATORS MAY BE COMMISSIONED AS OFFICERS IN EITHER THE NAVAL RESERVE OR THE MARINE CORPS RESERVE. IT FURTHER PROVIDES THAT ONLY THOSE AVIATION CADETS SO COMMISSIONED AND SO DESIGNATED OR APPOINTED SHALL BE DEEMED TO HAVE BEEN COMMISSIONED PURSUANT TO SUCH ACT.

COPIES OF THE ORDERS TRANSMITTED WITH THE VOUCHER INDICATE THAT CAPTAIN CAMP WAS RELEASED FROM ACTIVE DUTY AS A CAPTAIN, USMCR ( NAVC), ON JANUARY 21, 1944, AND WAS ORDERED TO ACTIVE DUTY AS A CAPTAIN, USMCR ( AV) ON THE NEXT DAY, JANUARY 22, 1944. THE QUESTION THUS PRESENTED IS WHETHER HIS RELEASE FROM ACTIVE DUTY AS A NAVAL AVIATOR, FOLLOWED IMMEDIATELY BY AN ASSIGNMENT TO ACTIVE DUTY AS A GROUND OFFICER WITHOUT ANY BREAK IN ACTIVE SERVICE, WAS A RELEASE FROM ACTIVE DUTY WITHIN THE PURVIEW OF SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED, SUPRA.

THE LUMP SUM PAYMENTS IN QUESTION ARE NOT MERE GRATUITIES OR BONUSES BUT ARE IN THE NATURE OF ADDITIONAL COMPENSATION FOR SERVICES UNDER STIPULATED CONDITIONS AND THE ONLY SERVICE FOR WHICH THEY ACCRUE IS ACTIVE COMMISSIONED SERVICE WHICH HAS BEEN CONTINUOUS AS NAVAL AVIATORS. SOMEWHAT ANALOGOUS CASE WAS CONSIDERED IN 23 COMP. GEN. 376, SUPRA, IN WHICH IT WAS HELD THAT A TRANSFER TO THE RETIRED LIST, NOTWITHSTANDING THAT THE OFFICER CONTINUED ON ACTIVE DUTY, WAS A RELEASE FROM ACTIVE DUTY AS CONTEMPLATED BY THE STATUTORY PROVISIONS HERE CONSIDERED. IN ARRIVING AT SUCH CONCLUSION, IT WAS STATED (PAGE 382):

* * * IT IS AT LEAST DOUBTFUL THAT IN AUTHORIZING THE LUMP-SUM PAYMENTS OF $500 TO RESERVE NAVAL AVIATORS FOR EACH YEAR OF CONTINUOUS COMMISSIONED ACTIVE SERVICE THE CONGRESS INTENDED SUCH PAYMENTS TO ACCRUE FOR PERIODS AFTER SUCH OFFICERS HAD BEEN TRANSFERRED TO THE RETIRED LIST ON ACCOUNT OF PHYSICAL INCAPACITY TO PERFORM GENERALLY THE DUTIES OF NAVAL AVIATORS ON THE ACTIVE LIST, ALTHOUGH PLACED ON ACTIVE DUTY IN THE STATUS OF RETIRED OFFICERS FOR ASSIGNMENT TO SUCH LIMITED DUTIES AS THEY MIGHT BE CAPABLE OF PERFORMING. UNDER SUCH CIRCUMSTANCES, THE TRANSFER OF SUCH OFFICERS TO THE RETIRED LIST PROPERLY IS TO BE REGARDED AS A RELEASE FROM THE ACTIVE DUTY CONTEMPLATED BY THE STATUTE, SO AS TO AUTHORIZE PAYMENT AT THAT TIME OF THE LUMP-SUM AMOUNTS ACCRUED FOR CONTINUOUS COMMISSIONED ACTIVE SERVICE THERETOFORE PERFORMED, IRRESPECTIVE OF WHETHER SUCH DUTY AS RETIRED OFFICERS FOLLOWS IMMEDIATELY THEIR TRANSFER TO THE RETIRED LIST OR FOLLOWS AN INTERVAL IN AN INACTIVE STATUS.

UNDER THE ORDERS OF JANUARY 10, 1944, CAPTAIN CAMP, AS OF JANUARY 21, 1944, WAS RELEASED FROM ACTIVE DUTY AS A NAVAL AVIATOR ( NAVC), AND PURSUANT TO ORDERS OF THE SAME DATE HE WAS RETURNED TO ACTIVE DUTY, EFFECTIVE JANUARY 22, 1944, AS A MEMBER OF THE MARINE CORPS RESERVE ( AV). UNDER ARTICLE 13-10 OF THE MARINE CORPS MANUAL THE DESIGNATION NAVC IS USED TO DESCRIBE GRADUATE AVIATION CADETS, VOLUNTEER MARINE CORPS RESERVE, AND THE SYMBOL AV PERTAINS TO MEMBERS OF THE AVIATION VOLUNTEER MARINE CORPS RESERVE (LINE OFFICERS ASSIGNED TO AVIATION). ALTHOUGH NO REGULATION OF THE MARINE CORPS HAS BEEN FOUND REQUIRING A RELEASE FROM ACTIVE DUTY AS AN INCIDENT TO TRANSFER FROM NAVC TO SOME OTHER CATEGORY OF THE VOLUNTEER MARINE CORPS RESERVE, THE REGULATIONS APPLICABLE TO MEMBERS OF THE NAVAL RESERVE WITH COMPARABLE DESIGNATION " AV-N" REQUIRE THEM TO BE SO RELEASED, AND FOLLOWING SUCH RELEASE FROM ACTIVE DUTY THEY MAY NOT BE CONTINUED IN SUCH CLASS. SEE ARTICLE H 10401 (4), BUREAU OF PERSONNEL MANUAL, 1942. IT APPEARS EVIDENT, THEREFORE, THAT CAPTAIN CAMP'S CONTINUOUS COMMISSIONED ACTIVE DUTY AS A NAVAL AVIATOR COMMISSIONED PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 TERMINATED UPON HIS RELEASE FROM ACTIVE DUTY JANUARY 21, 1944. THE CONCLUSION APPEARS WARRANTED THAT THE RELEASE FROM ACTIVE DUTY AS A NAVAL AVIATOR AND THE ASSIGNMENT TO DUTIES AS A GROUND OFFICER CONSTITUTED A RELEASE FROM ACTIVE DUTY AS CONTEMPLATED BY THE STATUTE IN QUESTION AND ANY LUMP SUM PAYMENT WHICH MAY HAVE ACCRUED AT THE TIME OF SUCH RELEASE FROM ACTIVE DUTY MAY BE PAID TO THE EXTENT IT IS OTHERWISE PROPER.

THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, PAYMENT THEREOF BEING AUTHORIZED, IF IT IS OTHERWISE CORRECT.