B-44092, AUGUST 31, 1945, 25 COMP. GEN. 241

B-44092: Aug 31, 1945

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- IS TANTAMOUNT TO THE ACCEPTANCE OF THE OFFICER'S RESIGNATION FROM THE FORMER ORGANIZATION. NO LONGER WILL BE FOLLOWED. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH LETTER FROM THE CHIEF OF NAVAL PERSONNEL. IS ENTITLED TO COUNT FOR PAY PURPOSES UNDER THE CONDITIONS THEREIN SET FORTH. IT WOULD APPEAR THAT LIEUTENANT TEW IS ENTITLED TO COUNT FOR PAY PURPOSES ALL PRIOR INACTIVE SERVICE IN THE OFFICERS RESERVE CORPS OF THE ARMY FROM MAY 27. GEN. 173 IS HELD TO BE APPLICABLE TO THIS CASE. YOUR CONFIRMATION IS REQUESTED OF THE STATEMENTS CONTAINED IN PARAGRAPH TWO ABOVE. YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER THE PERIOD OF CONTINUOUS ACTIVE COMMISSIONED SERVICE IN THE CASE OF LIEUTENANT TEW FROM MAY 22.

B-44092, AUGUST 31, 1945, 25 COMP. GEN. 241

NAVAL RESERVE - PROHIBITION AGAINST MEMBERS BELONGING TO MILITARY ORGANIZATIONS THE APPOINTMENT OF AN OFFICERS' RESERVE CORPS OFFICER AS A NAVAL RESERVE OFFICER--- THE PRESIDENT HAVING THE APPOINTMENT AND DISCHARGE POWER AS TO BOTH OFFICES--- IS TANTAMOUNT TO THE ACCEPTANCE OF THE OFFICER'S RESIGNATION FROM THE FORMER ORGANIZATION, SO AS TO CONSTITUTE HIM A DE JURE OFFICER IN THE LATTER UNDER THE LAST APPOINTMENT, AND, THEREFORE, THE PROHIBITION IN THE NAVAL RESERVE ACT OF 1938 AGAINST NAVAL RESERVISTS BEING MEMBERS OF A MILITARY ORGANIZATION HAS NO OPERATION TO AFFECT THE OFFICER'S RIGHT TO COUNT SERVICE IN THE NAVAL RESERVE FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. 23 COMP. GEN. 173, DISTINGUISHED; PRIOR DECISIONS, WHERE INCONSISTENT HEREWITH, NO LONGER WILL BE FOLLOWED. IN VIEW OF THE HOLDING HEREIN, IN CONNECTION WITH THE APPOINTMENT OF A MEMBER OF THE OFFICERS' RESERVE CORPS AS AN AVIATION OFFICER IN THE NAVAL RESERVE, THAT THE PROHIBITION IN THE NAVAL RESERVE ACT OF 1938 AGAINST NAVAL RESERVISTS BEING MEMBERS OF MILITARY ORGANIZATIONS HAS NO OPERATION TO AFFECT HIS DE JURE STATUS IN THE NAVAL RESERVE, ALL CONTINUOUS ACTIVE COMMISSIONED SERVICE AS AN AVIATION OFFICER MAY BE INCLUDED IN COMPUTING THE LUMP-SUM PAYMENT AUTHORIZED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, AUGUST 31, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 23, 1944, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH LETTER FROM THE CHIEF OF NAVAL PERSONNEL, NAVY DEPARTMENT, DATED AUGUST 1, 1944, WITH FIRST ENDORSEMENT THEREON OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED AUGUST 10, 1944, RELATIVE TO THE SERVICE WHICH LIEUTENANT LEMUEL EDGAR TEW, JR. A-V/N), USNR, IS ENTITLED TO COUNT FOR PAY PURPOSES UNDER THE CONDITIONS THEREIN SET FORTH.

APPLYING THE RULE ANNOUNCED IN THE COMPTROLLER GENERAL'S DECISION OF SEPTEMBER 6, 1943 (23 COMP. GEN. 173), TO THE FACTS DISCLOSED IN THE PRESENT CASE, IT WOULD APPEAR THAT LIEUTENANT TEW IS ENTITLED TO COUNT FOR PAY PURPOSES ALL PRIOR INACTIVE SERVICE IN THE OFFICERS RESERVE CORPS OF THE ARMY FROM MAY 27, 1940, TO MARCH 3, 1942, AND COMMISSIONED SERVICE IN THE NAVAL RESERVE FROM MARCH 4, 1942, AS STATED IN THE ENCLOSURE.

HOWEVER, AS POINTED OUT IN THE ENCLOSURE, APPLICATION TO THE PRESENT CASE OF THE RULE LAID DOWN IN 23 COMP. GEN. 173 RAISES A FURTHER QUESTION AS TO WHETHER ACTIVE COMMISSIONED SERVICE PERFORMED BY LIEUTENANT TEW FOR THE PERIOD MAY 22, 1941, TO MARCH 3, 1942, INCLUSIVE, MAY BE INCLUDED IN COMPUTING THE LUMP-SUM PAYMENT AUTHORIZED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, APPROVED AUGUST 4, 1942 (56 STAT. 738), AS AMENDED (34 U.S.CODE, SUPP. III, 850K).

IF THE RULE ANNOUNCED IN 23 COMP. GEN. 173 IS HELD TO BE APPLICABLE TO THIS CASE, IT WOULD APPEAR THAT CONTINUOUS ACTIVE COMMISSIONED SERVICE RENDERED BY LIEUTENANT TEW FROM AND AFTER MAY 22, 1941, MAY PROPERLY BE CONSIDERED AS HAVING BEEN RENDERED IN A DE FACTO STATUS AND THAT SERVICE THUS PERFORMED ON AND AFTER SAID DATE MAY BE HELD TO CONSTITUTE "CONTINUOUS ACTIVE COMMISSIONED SERVICE" WITHIN THE MEANING OF THE QUOTED WORDS AS USED IN SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED. IT FURTHER APPEARS THAT LIEUTENANT TEW'S ACTION IN ACCEPTING A COMMISSION IN THE NAVAL RESERVE FOLLOWED BY HIS ENTRANCE ON ACTIVE DUTY ON MAY 22, 1941, REPRESENTED AN AFFIRMATIVE ACT ON HIS PART TO ACCEPT THE COMMISSION TENDERED HIM AS ENSIGN IN THE NAVAL RESERVE.

YOUR CONFIRMATION IS REQUESTED OF THE STATEMENTS CONTAINED IN PARAGRAPH TWO ABOVE, CONCERNING THE RIGHT OF LIEUTENANT TEW TO COUNT FOR PAY PURPOSES, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, PRIOR INACTIVE SERVICE IN THE OFFICERS RESERVE CORPS OF THE ARMY FROM MAY 27, 1940, TO MARCH 3, 1942, AND COMMISSIONED SERVICE IN THE NAVAL RESERVE FROM MARCH 4, 1942.

YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER THE PERIOD OF CONTINUOUS ACTIVE COMMISSIONED SERVICE IN THE CASE OF LIEUTENANT TEW FROM MAY 22, 1941, TO MARCH 3, 1942, MAY BE INCLUDED IN COMPUTING THE LUMP SUM PAYMENT, AUTHORIZED TO BE COUNTED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED, SUPRA?

IT APPEARS THAT LIEUTENANT TEW WAS APPOINTED A SECOND LIEUTENANT, FIELD ARTILLERY RESERVE ON MAY 27, 1940, THE APPOINTMENT TO REMAIN IN EFFECT FOR 5 YEARS UNLESS THE OFFICER WAS SOONER DISCHARGED BY PROPER AUTHORITY; THAT HE WAS HONORABLY DISCHARGED ON MARCH 3, 1942, BECAUSE HE HAD ACCEPTED A COMMISSION IN THE NAVAL RESERVE, AND THAT HE PERFORMED NO ACTIVE DUTY SERVICE AS A MEMBER OF THE OFFICERS' RESERVE CORPS. IT FURTHER APPEARS THAT HE ENLISTED IN THE NAVAL RESERVE ON AUGUST 15, 1940, ACCEPTED AN APPOINTMENT AS A NAVAL AVIATION CADET ON OCTOBER 5, 1940; ACCEPTED AN APPOINTMENT AS ENSIGN, A-V (N,) U.S. NAVAL RESERVE ON MAY 22, 1941, AND HAS BEEN ON CONTINUOUS ACTIVE SERVICE IN THE NAVAL RESERVE SINCE AUGUST 15, 1940.

IN THE ENDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS TRANSMITTED WITH YOUR LETTER, THE POSITION IS TAKEN THAT THE "ACCEPTANCE OF COMMISSION IN THE NAVAL RESERVE AND ENTRANCE ON ACTIVE DUTY ON 22 MAY 1941 REPRESENTED AN ACT, ON THE PART OF LT. TEW, CONSTITUTING ACTUAL RELINQUISHMENT OF COMMISSION IN THE OFFICERS RESERVE CORPS OF THE ARMY.'

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES IN PART:

* * * THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA * * *.

IN THE DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, REFERRED TO IN YOUR LETTER, IT WAS POINTED OUT THAT WHILE THE GENERALLY ACCEPTED RULE OF LAW IS THAT WHERE THE HOLDING OF TWO PUBLIC OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE, THE RULE IS OTHERWISE WHERE THERE IS AN EXPRESS STATUTORY PROVISION PROHIBITING THE INCUMBENT OF ONE OFFICE FROM ACCEPTING APPOINTMENT TO ANOTHER. IT WAS HELD, IN VIEW OF THE EXPRESS PROVISIONS CONTAINED IN THE NAVAL RESERVE ACT OF 1938, SUPRA, AND THE SIMILAR PROVISION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081, PROHIBITING MEMBERS OF THE NAVAL RESERVE BEING MEMBERS OF ANY OTHER NAVAL OR MILITARY ORGANIZATION, EXCEPT THE NAVAL MILITIA, THAT AN OFFICER OF THE NAVAL RESERVE DID NOT BECOME A DE JURE MEMBER OF THE TEXAS NATIONAL GUARD, FOR THE PURPOSE OF COUNTING SERVICE THEREIN FOR FEDERAL PAY PURPOSES, UPON ENLISTMENT IN THE NATIONAL GUARD WHILE HOLDING A COMMISSION IN THE NAVAL RESERVE, AND, LIKEWISE, THAT AN OFFICER IN THE NATIONAL GUARD RESERVE DID NOT BECOME A DE JURE MEMBER OF THE NAVAL RESERVE UPON ACCEPTING A COMMISSION THEREIN WHILE HOLDING SUCH COMMISSION IN THE NATIONAL GUARD. THE QUESTION HERE INVOLVED IS WHETHER SUCH RULE NECESSARILY APPLIES TO A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY WHO ACCEPTS AN APPOINTMENT AS AN OFFICER IN THE NAVAL RESERVE.

THE GENERAL RULE IN THE UNITED STATES IS THAT A PUBLIC OFFICER HAS THE RIGHT TO RESIGN. THAT RIGHT MAY BE ABSOLUTE, I.E., HE MAY RESIGN AT HIS MERE WILL OR PLEASURE WITHOUT ANY REGARD TO THE WILL OR CONVENIENCE OF THE APPOINTING POWER, OR HIS RIGHT TO RESIGN MAY BE LIMITED, I.E., MAY BECOME EFFECTIVE ONLY WITH THE ASSENT OF THE APPOINTING POWER. 19 A.L.R. 39. APPEARS THAT AN INCUMBENT OF A MILITARY OFFICE HAS A LIMITED RIGHT TO RESIGN, SUCH RESIGNATION NOT BEING EFFECTED UNLESS AND UNTIL ACCEPTED BY PROPER AUTHORITY. MIMMACK V. UNITED STATES, 97 U.S. 426; PARAGRAPH 1, ARMY REGULATIONS 605-275. MOREOVER, THE ACCEPTANCE OF A STATE OFFICE GENERALLY MAY NOT BE TREATED AS A RESIGNATION FROM AN INCOMPATIBLE FEDERAL OFFICE OR VICE VERSA. THE GENERAL RULE IN THAT RESPECT DISCUSSED AT 46 C.J. 947-948, AS FOLLOWS:

THE ACCEPTANCE OF AN INCOMPATIBLE OFFICE BY THE INCUMBENT OF ANOTHER OFFICE IS REGARDED AS A RESIGNATION OR VACATION OF THE FIRST OFFICE. THIS RULE IS APPLIED EVEN WHEN THE SECOND OFFICE IS INFERIOR TO THE FIRST. WHERE THE CONSTITUTION OR STATUTES OF THE STATE DECLARE THAT PERSONS HOLDING ONE OFFICE SHALL BE INELIGIBLE FOR ELECTION OR APPOINTMENT TO ANOTHER OFFICE OF THE STATE, EITHER GENERALLY OR OF A CERTAIN KIND, THE PROHIBITION IS HELD TO INCAPACITATE THE INCUMBENT OF THE FIRST OFFICE TO HOLD THE SECOND SO THAT ANY ATTEMPT TO HOLD THE SECOND IS VOID; BUT WHERE IT IS THE HOLDING OF TWO STATE OFFICES AT THE SAME TIME WHICH IS FORBIDDEN BY THE CONSTITUTION OR STATUTES, A STATUTORY INCOMPATIBILITY IS CREATED SIMILAR IN ITS EFFECT TO THAT OF THE COMMON LAW, AND, AS IN THE CASE OF THE LATTER, IT IS WELL SETTLED THAT THE ACCEPTANCE OF A SECOND OFFICE OF THE KIND PROHIBITED OPERATES IPSO FACTO ABSOLUTELY TO VACATE THE FIRST, ALTHOUGH IF THE FIRST OFFICE IS IN THE UNITED STATES GOVERNMENT AND THE SECOND OFFICE IN A STATE GOVERNMENT, THE SECOND OFFICE IS TREATED AS THE FORBIDDEN OFFICE. THIS DISTINCTION BETWEEN DOUBLE OFFICE HOLDING WHERE THE FIRST OFFICE WAS A FEDERAL OR FOREIGN OFFICE DOES NOT ENLARGE OR AFFECT THE INCUMBENT'S DISQUALIFICATION FOR HOLDING A SECOND OFFICE UNDER THE STATE, BUT MERELY PREVENTS THE AUTOMATIC VACATION OF THE FEDERAL OFFICE BY THE ACCEPTANCE OF, AND ATTEMPTED QUALIFICATION FOR, THE STATE OFFICE, WHICH TO BE VALID AND EFFECTUAL MUST BE PRECEDED BY AN ACTUAL VACATION OF THE OTHER OFFICE. THUS ONE HOLDING AN OFFICE OF PROFIT UNDER THE FEDERAL GOVERNMENT IS NOT, UNDER SUCH STATUTES, INELIGIBLE TO ELECTION TO A STATE OFFICE, ALTHOUGH HE CANNOT QUALIFY SO LONG AS HE RETAINS HIS FEDERAL POSITION. AND IN THE ANNOTATIONS AT PAGE 27, L.R.A. 1917A, AS FOLLOWS:

THERE ARE TWO EXCEPTIONS TO THE GENERAL RULE WITH RESPECT TO THE EFFECT OF INCAPABILITY. IN THE FIRST PLACE, IT IS GENERALLY ADMITTED THAT WHERE THE OFFICE FIRST HELD CANNOT BE RESIGNED BY THE OFFICER, THE SECOND OFFICE, AND NOT THE FIRST, IS THE ONE WHICH HE LOSES. THIS IS ON THE THEORY THAT THE OFFICER, NOT HAVING THE POWER TO RESIGN, SHOULD NOT BE PERMITTED TO EFFECT IN ONE WAY THAT WHICH HE CANNOT ACCOMPLISH IN ANOTHER. THIS RULE HAS FOUND ITS GREATEST APPLICATION IN ENGLAND, WHERE MANY OF THE PUBLIC OFFICES CAN NEITHER BE REFUSED NOR RESIGNED.

THERE IS A SECOND EXCEPTION TO THE RULE THAT THE ACCEPTANCE OF THE SECOND INCOMPATIBLE OFFICE VACATES THE FIRST ONE, BUT NO CASES HAVE BEEN FOUND WITHIN THE SCOPE OF THIS NOTE WHICH ARE AUTHORITY THEREFOR. ALL THE CASES LAYING DOWN THIS EXCEPTION ARISE UNDER STATUTORY OR CONSTITUTIONAL PROVISIONS AGAINST HOLDING TWO OFFICES. THIS SECOND EXCEPTION IS FOUND WHERE THE TWO OFFICES ARE HELD UNDER DIFFERENT SOVEREIGNTIES, AND THE LAW OF THE SOVEREIGNTY UNDER WHICH THE SECOND OFFICE HAS ITS EXISTENCE IS THAT WHICH CREATES THE INCOMPATIBILITY. IN SUCH A CASE THE SOVEREIGNTY CREATING THE INCOMPATIBILITY IS POWERLESS TO PREVENT THE OFFICER FROM EXERCISING THE OFFICE FIRST HELD, AND IT MUST CONTENT ITSELF WITH REFUSING TO PERMIT HIM TO HAVE THE OFFICE WHICH IT DOES CONTROL. ALL THE CASES IN WHICH THIS EXCEPTION IS APPLIED INVOLVE OFFICERS ONE OF WHICH IS HELD UNDER A STATE AND THE OTHER UNDER THE FEDERAL GOVERNMENT. THE MERE FACT THAT TWO OFFICES ARE WITHIN THE GIFT OF TWO DISTINCT PERSONS OR BODIES DOES NOT MAKE A CASE FOR THE APPLICATION OF THIS RULE, WHERE BOTH OFFICES EMANATE FROM THE SAME APPOINTING POWER.

SINCE MEMBERSHIP IN THE NATIONAL GUARD INVOLVES AN OFFICIAL STATUS UNDER STATE LAW, AS WELL AS FEDERAL LAW, IT SEEMS CLEAR, AS HELD IN THE SAID DECISION OF SEPTEMBER 6, 1943, THAT MEMBERSHIP THEREIN, INSOFAR AS THE STATE IS CONCERNED, LEGALLY MAY NOT BE TERMINATED BY THE ACCEPTANCE OF A COMMISSION IN THE NAVAL RESERVE, UNDER FEDERAL LAW. HOWEVER, THAT PARTICULAR PRINCIPLE DOES NOT APPLY WHERE BOTH OFFICES ARE UNDER THE SAME APPOINTING POWER, AS IN THE PRESENT CASE, SO THAT THE APPOINTMENT TO THE SECOND OFFICE MAY BE VIEWED AS AN ACCEPTANCE OF RESIGNATION FROM THE FIRST OFFICE.

THE RULE IS STATED IN THROOP, PUBLIC OFFICERS, SECTION 30, THAT AN OFFICER CANNOT VACATE HIS OFFICE BY ACCEPTING AN INCOMPATIBLE OFFICE, UNLESS HE MIGHT HAVE DETERMINED THE FIRST OFFICE BY HIS OWN ACT, OR UNLESS THE AUTHORITY WHICH COULD ACCEPT HIS SURRENDER OF, OR REMOVE HIM FROM, THE FIRST OFFICE CONCURRED.

SEE, ALSO, DECISION OF DECEMBER 10, 1925, 5 COMP. GEN. 419, 423, WHERE THERE WAS QUOTED WITH APPROVAL THE RULE STATED IN PARAGRAPH 730 OF VOLUME 2, DIGEST OF DECISIONS OF THE SECOND COMPTROLLER, AS FOLLOWS:

WHERE BOTH OFFICES ARE CONFERRED BY THE SAME APPOINTING POWER, THE APPOINTMENT TO AN INCOMPATIBLE OFFICE HAS THE EFFECT TO REMOVE FROM THE FORMER POSITION. REX V. PATEMAN, 2 TERM. REP., 777.

COMPARE STATE V. CRAWFORD, 76 FLA. 388, 79 S. 875, WHERE IT WAS SAID:

* * * THE LAW IS SILENT AS TO WHETHER OR NOT SUCH RESIGNATION MUST BE ACCEPTED BY THE GOVERNOR. IF HIS ACCEPTANCE IS NECESSARY, IT MAY BE ORALLY OR IN WRITING, OR IT MAY BE SHOWN BY THE PERFORMANCE BY THE GOVERNOR OF AN OFFICIAL ACT WHICH IT WOULD NOT BE HIS DUTY, AND WHICH HE WOULD HAVE RIGHT, TO PERFORM, UNLESS A VACANCY HAD OCCURRED BY RESIGNATION; IT MAY BE EQUIVALENT TO, AND CONCLUSIVE OF, AN ACCEPTANCE OF HIS RESIGNATION.

IN AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, AUGUST 17, 1943, C.M.O. 3-1943, PAGE 103, IT WAS HELD THAT ALTHOUGH IT IS NOT WITHIN THE POWER OF A MEMBER OF THE NAVAL SERVICE, WHETHER IN A REGULAR OR RESERVE STATUS, TO SEPARATE HIMSELF FROM THE SERVICE, THE APPOINTMENT OF AN OFFICER ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WAS TERMINATED BY THE ACCEPTANCE OF AN APPOINTMENT AS AN OFFICER IN THE COAST GUARD RESERVE, IN VIEW OF THE AUTHORITY OF THE SECRETARY OF THE NAVY, FOR THE PRESIDENT, TO MAKE THE APPOINTMENT IN THE COAST GUARD RESERVE AND TO ACCEPT THE OFFICER'S RESIGNATION FROM THE NAVAL RESERVE. THAT THE WAR DEPARTMENT DOES NOT CONSIDER A MEMBER OF THE OFFICERS' RESERVE CORPS TO BE LEGALLY INELIGIBLE FOR APPOINTMENT IN THE NAVAL RESERVE IS INDICATED BY PARAGRAPH 74A OF THE ARMY REGULATIONS 140-5, WHICH PROVIDES THAT A MEMBER OF THE OFFICERS' RESERVE CORPS WHO ACCEPTS A COMMISSION IN THE NAVAL RESERVE WILL BE DISCHARGED FROM THE OFFICERS' RESERVE CORPS.

SINCE THE PRESIDENT HAS THE POWER OF APPOINTMENT AND DISCHARGE AS TO OFFICERS IN BOTH THE NAVAL RESERVE AND THE OFFICERS' RESERVE CORPS, I BELIEVE THE CONCLUSION IS WARRANTED THAT THE APPOINTMENT OF A MEMBER OF THE OFFICERS' RESERVE CORPS, SO AS TO CONTINUE HIM A DE JURE OFFICER IN THE NAVAL RESERVE UNDER THE LAST APPOINTMENT. ON THAT BASIS, YOU ARE ADVISED THT LIEUTENANT TEW IS ENTITLED TO COUNT, FOR PAY PURPOSES, HIS SERVICES IN THE OFFICERS' RESERVE CORPS FROM MAY 27, 1940, TO MAY 21, 1941, AND HIS SERVICE IN THE NAVAL RESERVE BEGINNING MAY 22, 1941, AND THAT SERVICE BEGINNING ON THE LATTER DATE IS PROPERLY FOR INCLUSION IN COMPUTING THE LUMP-SUM PAYMENT AUTHORIZED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 738, AS AMENDED.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY. TO THE EXTENT THAT PRIOR DECISIONS OF THIS OFFICE MAY BE REGARDED AS INCONSISTENT WITH THE CONCLUSIONS REACHED HEREIN, THEY NO LONGER WILL BE FOLLOWED.