B-57926, JULY 15, 1946, 26 COMP. GEN. 40

B-57926: Jul 15, 1946

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RIGHTS WHERE ORDERS DETACHING A NAVAL RESERVE OFFICER FROM ACTIVE DUTY AND DIRECTING HIM TO PROCEED TO HIS HOME FOR RELEASE FROM ACTIVE DUTY AT THE EXPIRATION OF HIS TERMINAL LEAVE WERE MODIFIED PRIOR TO THE EXPIRATION OF SUCH LEAVE BY ORDERS DIRECTING TRAVEL TO A NEW STATION FOR ACTIVE DUTY. THE OFFICER IS ENTITLED TO MILEAGE ONLY FOR TRAVEL BETWEEN THE STATION FROM WHICH DETACHED AND HIS NEW STATION. WERE NOT DELIVERED PRIOR TO THE EXPIRATION OF HIS TERMINAL LEAVE UNDER HIS ORIGINAL ORDERS. WERE NOT DELIVERED PRIOR TO THE DATE SPECIFIED IN THE ORIGINAL ORDERS FOR REVERSION TO AN INACTIVE DUTY STATUS. TRANSPORTATION AT GOVERNMENT EXPENSE FOR HIS DEPENDENTS FROM LAST STATION TO HOME WAS PROPER UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942.

B-57926, JULY 15, 1946, 26 COMP. GEN. 40

MODIFICATION OF NAVAL RESERVE OFFICER'S RELEASE-FROM-ACTIVE-DUTY ORDERS MILEAGE, PAY, ETC., RIGHTS WHERE ORDERS DETACHING A NAVAL RESERVE OFFICER FROM ACTIVE DUTY AND DIRECTING HIM TO PROCEED TO HIS HOME FOR RELEASE FROM ACTIVE DUTY AT THE EXPIRATION OF HIS TERMINAL LEAVE WERE MODIFIED PRIOR TO THE EXPIRATION OF SUCH LEAVE BY ORDERS DIRECTING TRAVEL TO A NEW STATION FOR ACTIVE DUTY, THE OFFICER IS ENTITLED TO MILEAGE ONLY FOR TRAVEL BETWEEN THE STATION FROM WHICH DETACHED AND HIS NEW STATION, AND THE ADVANCE MILEAGE PAID PURSUANT TO SECTION 7 OF THE ACT OF SEPTEMBER 7, 44,"INCIDENT TO RELEASE FROM ACTIVE DUTY" SHOULD BE REFUNDED. WHERE ORDERS MODIFYING PRIOR ORDERS RELEASING A NAVAL RESERVE OFFICER FROM ACTIVE DUTY RECALLED THE OFFICER TO ACTIVE DUTY, BUT, EVEN THOUGH ISSUED IN AMPLE TIME, WERE NOT DELIVERED PRIOR TO THE EXPIRATION OF HIS TERMINAL LEAVE UNDER HIS ORIGINAL ORDERS, THE OFFICER MAY NOT BE CONSIDERED AS HAVING BEEN ON CONTINUOUS ACTIVE DUTY SO AS TO BE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES DURING THE PERIOD BETWEEN THE DATE OF EXPIRATION OF HIS TERMINAL LEAVE AND THE DATE OF COMPLIANCE WITH THE MODIFYING ORDERS. WHERE ORDERS CANCELLING A NAVAL RESERVE OFFICER'S RELEASE-FROM ACTIVE- DUTY ORDERS, ALTHOUGH ISSUED IN AMPLE TIME, WERE NOT DELIVERED PRIOR TO THE DATE SPECIFIED IN THE ORIGINAL ORDERS FOR REVERSION TO AN INACTIVE DUTY STATUS, THE OFFICER MAY RETAIN THE AMOUNTS PROPERLY PAID PURSUANT TO SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, THE LUMP-SUM PAYMENT AUTHORIZED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AND THE ADVANCE PAYMENT OF MILEAGE UNDER THE ACT OF SEPTEMBER 7, 1944; ALSO, TRANSPORTATION AT GOVERNMENT EXPENSE FOR HIS DEPENDENTS FROM LAST STATION TO HOME WAS PROPER UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942. A NAVAL RESERVE OFFICER WHO HAD BEEN COMPLETELY SEPARATED FROM THE SERVICE BY ORDERS WHICH, UPON THE EXPIRATION OF HIS TERMINAL LEAVE, REVOKED HIS TEMPORARY APPOINTMENT, RELEASED HIM FROM ACTIVE DUTY AS AN ENLISTED MAN, AND DISCHARGED HIM FROM THE NAVAL RESERVE IS NOT ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES BETWEEN THE DATE OF SUCH SEPARATION AND THE DATE OF REPORTING BACK FOR ACTIVE DUTY UNDER MODIFYING ORDERS CANCELLING THE PRIOR ORDERS, WHICH MODIFYING ORDERS HAD NOT BEEN ISSUED, ALTHOUGH THEY HAD BEEN PREPARED, PRIOR TO HIS SEPARATION FROM THE SERVICE. A NAVAL RESERVE OFFICER WHO HAD RECEIVED ADVANCE PAYMENT OF MILEAGE FROM LAST STATION TO HOME UNDER THE ACT OF SEPTEMBER 7, 1944, WHEN ORDERED HOME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AT THE EXPIRATION OF HIS TERMINAL LEAVE, BUT WHO, PRIOR TO EXPIRATION OF SUCH LEAVE, RECEIVED AND COMPLIED WITH MODIFYING ORDERS DIRECTING TRAVEL TO A NAVAL HOSPITAL FOR OBSERVATION AND TREATMENT IS NOT ENTITLED TO RETAIN SUCH ADVANCE MILEAGE UNDER HIS ORIGINAL ORDERS BUT, RATHER, IS ENTITLED UNDER THE AMENDED ORDERS TO MILEAGE FROM HIS LAST STATION TO THE HOSPITAL AND THENCE TO HIS HOME UPON HIS SUBSEQUENT RELEASE FROM ACTIVE DUTY. A NAVAL RESERVE OFFICER WHO PROCEEDED TO HIS HOME UNDER ORDERS PROVIDING FOR RELEASE FROM ACTIVE DUTY UPON EXPIRATION OF HIS TERMINAL LEAVE BUT WHO, PRIOR TO THE EXPIRATION OF HIS LEAVE, RECEIVED AND COMPLIED WITH MODIFYING ORDERS DIRECTING TRAVEL TO A NAVAL HOSPITAL FOR OBSERVATION AND TREATMENT IS TO BE REGARDED AS IN A CONTINUOUS ACTIVE DUTY STATUS UNDER SUCH ORDERS AS MODIFIED AND ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FROM THE TIME HIS TERMINAL LEAVE WOULD HAVE EXPIRED TO THE DATE HE SUBSEQUENTLY WAS RELEASED FROM ACTIVE DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 15, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 14, 1946, REQUESTING DECISION ON SPECIFIC QUESTIONS CONTAINED IN A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED APRIL 16, 1946. PARAGRAPHS 1, 2, 3 AND 4 OF SAID LETTER OF APRIL 16, 1946, ARE AS FOLLOWS:

1. BY ORDER OF 10 SEPTEMBER 1945, LIEUT. COMDR. DONALD A. DERTIEN, (D) USNR, WAS DIRECTED TO REPORT TO THE COMMANDANT, FIFTH NAVAL DISTRICT, NAVAL OPERATING BASE, NORFOLK, VIRGINIA, FOR TEMPORARY DUTY IN CONNECTION WITH SEPARATION PROCESSING, UPON COMPLETION OF WHICH HE WAS TO BE DETACHED FROM SUCH TEMPORARY DUTY TO PROCEED TO HIS HOME FOR RELEASE FROM ACTIVE DUTY. BY THIRD ENDORSEMENT ON THESE ORDERS DATED 17 SEPTEMBER 1945, LIEUT. COMDR. DERTIEN WAS DETACHED AND DIRECTED TO PROCEED TO HIS HOME. HE WAS GRANTED 2 MONTHS AND 29 DAYS LEAVE, UPON THE EXPIRATION OF WHICH, AT MIDNIGHT OF 16 DECEMBER 1945, HE WAS TO REGARD HIMSELF RELEASED FROM ALL ACTIVE DUTY.

2. IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, THE OFFICER WAS PAID ADVANCE MILEAGE FROM NORFOLK, VIRGINIA TO MUSKEGON, MICHIGAN, THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, WHICH WAS ALSO HIS OFFICIAL HOME OF RECORD AT THE TIME HE WAS ORDERED TO ACTIVE DUTY. THE OFFICER LEFT NORFOLK, VIRGINIA ON 17 SEPTEMBER 1945 AND ARRIVED AT MUSKEGON, MICHIGAN, ON 19 SEPTEMBER 1945. PRIOR TO THE EXPIRATION OF HIS TERMINAL LEAVE, ORDERS OF 26 OCTOBER 1945 WERE ISSUED WHICH DIRECTED HIM TO PROCEED AND REPORT FOR A PHYSICAL AND IF FOUND PHYSICALLY QUALIFIED, THE UNEXECUTED PORTION OF THE ORDERS OF 10 SEPTEMBER 1945 WAS TO BE CONSIDERED AS CANCELLED AND HE WAS DIRECTED TO PROCEED TO WASHINGTON, D.C., AND REPORT TO THE CHIEF OF NAVAL PERSONNEL FOR DUTY. THE OFFICER PROCEEDED TO MILWAUKEE, WISCONSIN FOR HIS PHYSICAL EXAMINATION AND HAVING BEEN FOUND QUALIFIED HE PROCEEDED TO WASHINGTON, D.C., AND REPORTED TO THE CHIEF OF NAVAL PERSONNEL ON 9 NOVEMBER 1945 FOR DUTY.

3. IN DECISION OF THE COMPTROLLER GENERAL DATED 17 AUGUST, 1945, B 51378, IT WAS HELD THAT WHERE LEAVE OF ABSENCE IS GRANTED TO AN OFFICER IN CONNECTION WITH CHANGE OF STATION ORDERS, THE OFFICER IS NOT REQUIRED TO PERFORM TRAVEL THEREUNDER UNTIL SUCH TIME AS IT IS NECESSARY FOR HIM TO BEGIN TRAVEL TO REACH HIS NEW STATION ON THE DATE CONTEMPLATED BY SUCH ORDERS, AND THAT IF, DURING SUCH PERIOD OF LEAVE, MODIFYING ORDERS ARE ISSUED DIRECTING TRAVEL TO ANOTHER STATION, THE OFFICER IS ENTITLED ONLY TO MILEAGE FOR TRAVEL WHICH IS NECESSARY UNDER THE ORDERS AS MODIFIED; THAT IS, MILEAGE DIRECT FROM THE OLD STATION TO THE ULTIMATE NEW STATION.

4. SINCE THERE WOULD APPEAR TO BE A DISTINCTION BETWEEN STRAIGHT CHANGE OF STATION ORDERS CONSIDERED IN THE DECISION OF 17 AUGUST, 1945, SUPRA, AND ORDERS DIRECTING AN OFFICER TO PROCEED TO HIS HOME INCIDENT TO RELEASE FROM ACTIVE DUTY, IT IS RECOMMENDED THAT A DECISION BE REQUESTED FROM THE COMPTROLLER GENERAL AS TO THE MILEAGE PAYABLE IN LIEUT. COMDR. DERTIEN'S CASE, AND IN SIMILAR CASES. IN THE EVENT IT IS DECIDED THAT MILEAGE IS PAYABLE ONLY FROM NORFOLK, VIRGINIA TO WASHINGTON, D.C., FURTHER DECISION IS REQUESTED AS TO WHETHER REFUND OF THE ADVANCE PAYMENT OF MILEAGE FROM NORFOLK, VIRGINIA TO MUSKEGON, MICHIGAN UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, IS REQUIRED.

WITH THE EXCEPTION OF THE BUREAU OF NAVAL PERSONNEL ORDERS DATED OCTOBER 26, 1945, THE PROVISIONS OF THE ORDERS DIRECTING THE TRAVEL PERFORMED BY COMMANDER DERTIEN ARE SUFFICIENTLY SUMMARIZED IN THE ABOVE QUOTED PORTION OF THE SAID LETTER OF APRIL 16, 1946. THE SAID ORDERS OF OCTOBER 26 WERE SENT TO THE OFFICER AT MUSKEGON, MICHIGAN, VIA THE COMMANDANT OF THE NINTH NAVAL DISTRICT, AND THEY DIRECTED HIM TO PROCEED AND REPORT TO SUCH MEDICAL OFFICER AS MIGHT BE DESIGNATED IN THE FIRST ENDORSEMENT THEREON FOR PHYSICAL EXAMINATION TO DETERMINE HIS FITNESS FOR ACTIVE DUTY. FIRST ENDORSEMENT DATED OCTOBER 31, 1945, HEADQUARTERS, NINTH NAVAL DISTRICT, GREAT LAKES, ILLINOIS, HE WAS DIRECTED TO PROCEED AND REPORT TO THE MEDICAL OFFICER, NAVY V-12 UNIT, MT. PLEASANT, MICHIGAN, FOR PHYSICAL EXAMINATION AND FURTHER COMPLIANCE WITH BASIC ORDERS. BY SECOND ENDORSEMENT OF NOVEMBER 3, 1945, NAVY V 12 UNIT, MT. PLEASANT, MICHIGAN, IT IS INDICATED THAT HE REPORTED ON THAT DATE AS DIRECTED BUT THAT NO MEDICAL OFFICER WAS AVAILABLE AT THAT STATION. ALSO, THE SAID ENDORSEMENT CONFIRMED VERBAL ORDERS FROM COMMANDER E. J. REDDEN, COMMANDANT NINTH NAVAL DISTRICT, DIRECTING THE OFFICER TO PROCEED AND REPORT TO THE MEDICAL OFFICER " NROTC" MARQUETTE UNIVERSITY, MILWAUKEE, WISCONSIN, FOR PHYSICAL EXAMINATION AND FURTHER COMPLIANCE WITH HIS BASIC ORDERS. IT IS INDICATED THAT COMMANDER DERTIEN TRAVELED FROM MUSKEGON TO MT. PLEASANT, ON NOVEMBER 3, THAT HE ARRIVED AT MILWAUKEE ON NOVEMBER 5; THAT HE LEFT THAT PLACE THE SAME DAY; AND THAT HE ARRIVED IN WASHINGTON, D.C., ON NOVEMBER 9, 1945.

UNDER THE PROVISIONS OF SECTIONS 7 AND 9 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, AMENDING SECTIONS 3 AND 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, 364, NAVAL RESERVE OFFICERS ARE ENTITLED TO MILEAGE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS WITHOUT TROOPS AND MILEAGE FOR THEIR RETURN HOME "MAY BE PAID TO THEM PRIOR TO THEIR DEPARTURE FROM THEIR LAST STATION INCIDENT TO RELEASE FROM ACTIVE DUTY.'

WHERE LEAVE OF ABSENCE IS GRANTED TO AN OFFICER IN CONNECTION WITH CHANGE OF STATION ORDERS, THE OFFICER IS NOT REQUIRED TO PERFORM TRAVEL THEREUNDER UNTIL SUCH TIME AS IT IS NECESSARY FOR HIM TO BEGIN TRAVEL TO REACH HIS NEW STATION ON THE DATE CONTEMPLATED BY SUCH ORDERS, AND IF, DURING SUCH PERIOD OF LEAVE, MODIFYING ORDERS ARE ISSUED DIRECTING TRAVEL TO ANOTHER STATION, THE OFFICER IS ENTITLED ONLY TO MILEAGE FOR THE TRAVEL WHICH IS NECESSARY UNDER THE ORDERS AS MODIFIED. THAT RULE IS APPLICABLE ALSO TO A CASE WHERE AN OFFICER RECEIVES ORDERS DIRECTING HIM TO PROCEED TO HIS HOME FOR RELEASE FROM ACTIVE DUTY AT THE EXPIRATION OF HIS TERMINAL LEAVE. SEE DECISION OF DECEMBER 7, 1945, B 52246, AND DECISIONS THEREIN CITED. TRAVEL FROM NORFOLK, VIRGINIA, TO WASHINGTON, D.C., WAS THE ONLY OFFICIAL TRAVEL THAT WAS NECESSARY IN ORDER TO COMPLY WITH COMMANDER DERTIEN'S ORDERS OF SEPTEMBER 10, AS AMENDED BY THE ORDERS OF OCTOBER 26. IF HE HAD NOT BEEN ABSENT FROM NORFOLK WHEN THE ORDERS OF OCTOBER 26 WERE ISSUED, PRESUMABLY HE WOULD HAVE BEEN DIRECTED TO TAKE HIS PHYSICAL EXAMINATION AT THAT PLACE AND THE FACT THAT THE ORDERS ACTUALLY ISSUED REQUIRED HIM TO REPORT FOR PHYSICAL EXAMINATION IN THE VICINITY OF HIS LEAVE ADDRESS DOES NOT INCREASE HIS RIGHTS IN THE MATTER. ACCORDINGLY, UNDER HIS ORDERS MILEAGE IS PAYABLE FOR THE DISTANCE FROM NORFOLK TO WASHINGTON.

WITH RESPECT TO THE PAYMENT OF MILEAGE TO THE OFFICER UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF SEPTEMBER 7, 1944, IT IS CLEAR THAT HE WAS NOT RELEASED FROM ACTIVE DUTY, AND HENCE, A PAYMENT OF MILEAGE TO COMMANDER DERTIEN "INCIDENT TO RELEASE FROM ACTIVE DUTY," IS NOT AUTHORIZED. SUCH MILEAGE AS WAS PAID TO HIM INCIDENT TO HIS ANTICIPATED RELEASE FROM ACTIVE DUTY SHOULD BE REFUNDED BY HIM.

PARAGRAPH 5 OF THE SAID LETTER OF APRIL 16, 1946, IS AS FOLLOWS:

5. THERE ARE ALSO ENCLOSED SAMPLE COPIES OF ORDERS ISSUED BY THE BUREAU OF NAVAL PERSONNEL TO CERTAIN OFFICERS WHILE ON TERMINAL LEAVE INCIDENT TO RELEASE FROM ACTIVE DUTY. IN CERTAIN CASES, THE ORDERS CANCELLING THE RELEASE ORDERS WERE PREPARED, BUT THROUGH CERTAIN ADMINISTRATIVE DELAYS IN PROCESSING, WERE NOT ACTUALLY SIGNED UNTIL AFTER DATE OF EXPIRATION OF TERMINAL LEAVE. IN OTHER CASES THE ORDERS CANCELLING THE RELEASE ORDERS WERE SIGNED PRIOR TO EFFECTIVE DATE OF RELEASE FROM ACTIVE DUTY, BUT WERE NOT RECEIVED BY THE ADDRESSEE, THROUGH DELAY IN DELIVERY, UNTIL AFTER DATE OF EXPIRATION OF TERMINAL LEAVE. THE USE OF THE PHRASE "HEREBY CANCELLED" IN THE SEVERAL TYPES OF ORDERS ENCLOSED HEREWITH SHOWS THAT IT WAS THE ADMINISTRATIVE INTENT TO RETAIN THE INDIVIDUAL IN A CONTINUOUS ACTIVE DUTY STATUS. HOWEVER, UNDER A LITERAL INTERPRETATION OF THE WORDING OF THE RELEASE ORDERS, SUCH ORDERS HAD BEEN FULLY EXECUTED AND THE ACTIVE DUTY STATUS OF THE INDIVIDUAL HAD ACTUALLY TERMINATED PRIOR TO DATE OF ISSUANCE (DATE SIGNED). IN OTHER INSTANCES THE ACTIVE DUTY STATUS WAS TERMINATED SUBSEQUENT TO DATE OF ISSUANCE, BUT PRIOR TO RECEIPT, OF SUCH ORDERS CANCELLING THE UNEXECUTED PORTION OF THE RELEASE ORDERS. THE INTERIM PERIOD IN INACTIVE STATUS MAY RANGE FROM SEVERAL DAYS TO SEVERAL WEEKS. THE QUESTION ARISES AS TO WHETHER THE ADMINISTRATIVE INTENT OF SUCH ORDERS SHOULD BE CONSIDERED AS CONTROLLING OR WHETHER THE GENERALLY ACCEPTED RULE THAT ORDERS ARE NOT EFFECTIVE UNTIL DATE OF RECEIPT THEREOF SHOULD GOVERN IN DETERMINING THE RIGHTS OF THE INDIVIDUAL TO PAY AND ALLOWANCES, INCLUDING MILEAGE OR TRAVEL EXPENSES. IN THIS CONNECTION IT IS POINTED OUT THAT IN CASES OF THIS NATURE, THE RELEASE ORDERS WERE CANCELLED AT THE SPECIFIC REQUEST OF THE OFFICER WHO WISHED TO BE RETAINED IN AN ACTIVE DUTY STATUS PENDING ACTION ON REQUEST FOR TRANSFER TO THE REGULAR NAVY. IN ORDER THAT THIS SITUATION MAY BE CLARIFIED INSOFAR AS THE PAY STATUS OF THE INDIVIDUAL IS CONCERNED, IT IS RECOMMENDED THAT A DECISION BE OBTAINED IN THE FOLLOWING ADDITIONAL CASES:

THE CASES UPON WHICH DECISION IS REQUESTED WILL BE CONSIDERED IN ALPHABETICAL ORDER.

(A) A LIEUTENANT (A1) USNR (FORMER AVCAD) WAS DETACHED FROM DUTY INVOLVING FLYING AT NAVAL AIR STATION, CORPUS CHRISTI, TEXAS ON 26 SEPTEMBER 1945 AND ORDERED TO SEPARATION CENTER, WASHINGTON, D.C. FOR TEMPORARY DUTY IN CONNECTION WITH SEPARATION PROCESSING. HE WAS DETACHED THEREFROM ON 1 OCTOBER 1945 AND WAS PAID INITIAL PAYMENT OF MUSTERING-OUT PAYMENT AND ADVANCE PAYMENT OF MILEAGE FROM WASHINGTON, D.C., TO RICHMOND, VIRGINIA, HOME OF RECORD AND PLACE FROM WHICH CALLED TO ACTIVE DUTY. DATE OF DETACHMENT FROM CORPUS CHRISTI THE OFFICER WAS FURNISHED TRANSPORTATION IN KIND FOR HIS DEPENDENTS (LAWFUL WIFE AND CHILD) FROM CORPUS CHRISTI, TEXAS TO RICHMOND, VIRGINIA. THE SECOND $100 INCREMENT OF MUSTERING-OUT PAYMENT WAS MADE ON 1 NOVEMBER 1945 AND THE THIRD INCREMENT ON 1 DECEMBER 1945. TERMINAL LEAVE EXPIRED ON 12 DECEMBER 1945, AND, UNDER THE WORDING OF THE RELEASE, ORDERS, ACTIVE DUTY STATUS TERMINATED AS OF MIDNIGHT THAT DATE. FINAL PAYMENT OF PAY AND ALLOWANCES FOR THE PERIOD 1-12 DECEMBER 1945, INCLUDING A-V (N) LUMP SUM PAYMENT, IN THE AMOUNT OF$1,538 WAS MADE ON 15 DECEMBER 1945. ORDERS OF 6 DECEMBER 1945 ( ENCLOSURE (B) ( CANCELLING HIS RELEASE TO INACTIVE DUTY, WERE NOT RECEIVED UNTIL 20 DECEMBER 1945, DUE TO UNFORESEEN CIRCUMSTANCES, AND HE REPORTED TO THE BUREAU OF AERONAUTICS IN OBEDIENCE THERETO ON 21 DECEMBER 1945. MAY THIS OFFICER BE CONSIDERED AS BEING ON CONTINUOUS ACTIVE DUTY, THEREBY BEING ENTITLED TO CREDIT OF ACTIVE DUTY PAY AND ALLOWANCES, FROM 13 DECEMBER 1945 TO 20 DECEMBER 1945? IF SO, IT WOULD APPEAR THAT HE IS IN THE SAME STATUS AS ANY OTHER OFFICER GRANTED INTERIM LEAVE UNDER CHANGE OF STATION ORDERS, WHICH WERE MODIFIED WHILE ON LEAVE TO DIRECT HIM TO REPORT TO A PERMANENT OR TEMPORARY DUTY STATION OTHER THAN THAT DESIGNATED IN SUCH CHANGE OF STATION ORDERS. THEREFORE, DECISION IS REQUESTED AS TO WHETHER IT IS INCUMBENT UPON THE OFFICER TO REFUND THE AMOUNT PAID AS MUSTERING-OUT PAYMENT, LUMP SUM PAYMENT, ADVANCE PAYMENT OF MILEAGE FROM WASHINGTON, D.C., TO RICHMOND, VIRGINIA, AND THE DIFFERENCE, IF ANY, IN COST TO THE GOVERNMENT FOR TRANSPORTATION FURNISHED DEPENDENTS FROM CORPUS CHRISTI, TEXAS, TO RICHMOND, VIRGINIA, AND THE AMOUNT TO WHICH ENTITLED FROM CORPUS CHRISTI, TEXAS, OLD PERMANENT DUTY STATION, TO WASHINGTON, D.C., NEW PERMANENT DUTY STATION. THE OFFICER WAS PAID MILEAGE FROM CORPUS CHRISTI, TEXAS TO WASHINGTON, D.C., UNDER ORDERS DIRECTING HIM TO REPORT TO THE SEPARATION CENTER AT THE LATTER PLACE.

IT IS ASSUMED THAT THE ORDERS OF SEPTEMBER 26, 1945, A COPY OF WHICH WAS NOT RECEIVED WITH YOUR REQUEST FOR DECISION, WERE SIMILAR IN CHARACTER TO COMMANDER DERTIEN'S ORDERS OF SEPTEMBER 10, 1945, SUPRA, AND THAT THE LEAVE GRANTED FOLLOWED HIS SEPARATION PROCESSING AT SEPARATION CENTER, WASHINGTON, D.C. THE ORDERS OF DECEMBER 6, 1945, WERE ISSUED BY THE BUREAU OF NAVAL PERSONNEL AND IN ADDITION TO CANCELLING THE ORDERS OF SEPTEMBER 26, 1945, RELEASING THE OFFICER FROM ACTIVE DUTY ON DECEMBER 12, 1945, THEY DIRECTED HIM TO PROCEED TO WASHINGTON, D.C., AND REPORT ON OR ABOUT DECEMBER 15, 1945, TO THE CHIEF OF THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, FOR TEMPORARY DUTY INVOLVING FLYING.

IT HAS BEEN HELD THAT ORDERS TO ACTIVE DUTY IN A RESERVE COMPONENT ARE NOT EFFECTIVE TO PLACE AN OFFICER IN AN ACTIVE DUTY STATUS PRIOR TO THE DATE OF SUCH ORDERS OR UNTIL, ON OR SUBSEQUENT TO THE DATE OF THE ORDERS, THERE IS AN OFFICIAL AND NECESSARY COMPLIANCE WITH SUCH ORDERS. 8 COMP. GEN. 69. THE CONCLUSION THUS REACHED IS APPLICABLE NOT ONLY TO ORIGINAL ORDERS DIRECTING AN OFFICER TO REPORT FOR ACTIVE DUTY BUT IS EQUALLY APPLICABLE TO A CASE WHERE THE ORDERS REQUIRING THE PERFORMANCE OF THE ACTIVE DUTY ARE IN THE FORM OF A CANCELLATION OF PRIOR ORDERS RELEASING THE OFFICER FROM ACTIVE DUTY. IN OTHER WORDS, UNTIL THE OFFICER COMPLIES WITH THE ORDERS ATTEMPTING TO CANCEL HIS RELEASE FROM ACTIVE DUTY, THOSE ORDERS ARE INEFFECTIVE TO CHANGE HIS STATUS AS FIXED BY HIS PRIOR ORDERS. WHILE IT APPEARS THAT THE SAID ORDERS OF DECEMBER 6, 1945, WERE ISSUED IN AMPLE TIME TO HAVE BEEN DELIVERED TO THE OFFICER AT RICHMOND PRIOR TO DECEMBER 12, 1945, THE DATE HIS ACTIVE DUTY STATUS WAS TO TERMINATE UNDER HIS ORDERS OF SEPTEMBER 26, 1945, THEY WERE NOT ACTUALLY RECEIVED BY HIM UNTIL AFTER THAT DATE AND HE DID NOT COMPLY THEREWITH UNTIL DECEMBER 21, 1945. THE ORDERS RELEASING HIM FROM ACTIVE DUTY BECAME FULLY EXECUTED ON DECEMBER 12, 1945, AND HE REVERTED TO AN INACTIVE DUTY STATUS ON THAT DATE. HE IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 13 TO 20, 1945.

THE LUMP-SUM PAYMENT AUTHORIZED UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF AUGUST 4, 1942, 56 STAT. 738, IS PAYABLE "WHEN OFFICERS * * * ARE RELEASED FROM ACTIVE DUTY.' SECTION 1 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, PROVIDES THAT EACH MEMBER OF THE ARMED FORCES WHO HAS BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR AND WHO "IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE" UNDER HONORABLE CONDITIONS SHALL BE ENTITLED TO RECEIVE MUSTERING-OUT PAYMENT. SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AUTHORIZES THE FURNISHING OF TRANSPORTATION IN KIND TO THE NEW STATION, FOR DEPENDENTS OF OFFICERS ORDERS TO MAKE A PERMANENT CHANGE OF STATION, AND DEFINES THE WORDS "PERMANENT CHANGE OF STATION" AS INCLUDING THE CHANGE FROM LAST STATION TO HOME "IN CONNECTION WITH RETIREMENT, RELIEF FROM ACTIVE DUTY.' SINCE THE OFFICER WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 12, 1945, HE MAY RETAIN SUCH AMOUNTS AS WERE PROPERLY PAID TO HIM AS MUSTERING-OUT PAY, LUMP-SUM PAYMENT, AND MILEAGE TO HIS HOME INCIDENT TO THAT RELEASE. ALSO, HE WAS ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FOR HIS DEPENDENTS FROM CORPUS CHRISTI, TEXAS, TO RICHMOND, VIRGINIA.

(B) AN ENLISTED MAN, USNR, HOLDING A TEMPORARY APPOINTMENT AS A LIEUTENANT (JG) USNR, WAS DETACHED FROM DUTY AT NAVAL CONSTRUCTION TRAINING CENTER, MIAMI, FLORIDA, AND ORDERED TO SEPARATION CENTER, SAN FRANCISCO, FOR TEMPORARY DUTY AND SEPARATION PROCESSING, PURSUANT TO SECNAV ORDERS WHICH STATED THAT HIS TEMPORARY APPOINTMENT WOULD BE REVOKED ON 1 FEBRUARY 1946, DATE OF EXPIRATION OF TERMINAL LEAVE, AND THAT HIS RELEASE TO INACTIVE DUTY AS AN ENLISTED MAN AND DISCHARGE FROM THE NAVAL RESERVE WOULD BE EFFECTIVE THE SAME DATE. THE MAN ENLISTED AT SAN FRANCISCO, CALIFORNIA, AND WAS CALLED TO ACTIVE DUTY FROM STOCKTON, CALIFORNIA. THIS INDIVIDUAL WAS PAID MILEAGE FROM MIAMI, FLORIDA TO SAN FRANCISCO, CALIFORNIA AND TRAVEL ALLOWANCE AT THE RATE OF 5 CENTS PER MILE FROM SAN FRANCISCO TO STOCKTON, CALIFORNIA, AND HAD BEEN PAID INITIAL, SECOND AND THIRD INCREMENTS OF MUSTERING-OUT PAYMENT BY THE TIME ORDERS CANCELLING HIS RELEASE ORDERS WERE RECEIVED. ENCLOSURE (C), PREPARED BY THE BUREAU OF NAVAL PERSONNEL ON 25 JANUARY 1946 WAS NOT ACTUALLY SIGNED BY THE SECRETARY OF THE NAVY UNTIL 2 FEBRUARY 1946 AND WAS NOT RECEIVED BY THE ADDRESSEE AT HIS LEAVE ADDRESS IN LONG BEACH, CALIFORNIA UNTIL 8 FEBRUARY 1946, AND THE OFFICER REPORTED ON 14 FEBRUARY 1946. MAY THIS OFFICER BE CONSIDERED AS BEING IN A CONTINUOUS ACTIVE DUTY STATUS FROM 2 FEBRUARY 1946, AND THEREBY ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM 2-13 FEBRUARY 1946? IF SO, DECISION IS REQUESTED AS TO WHETHER REPAYMENT OF TRAVEL ALLOWANCE AND MUSTERING-OUT PAY IS REQUIRED, AND WHETHER THIS INDIVIDUAL IS ENTITLED TO REIMBURSEMENT AS SPECIFIED IN ENCLOSURE (B) ON THE BASIS OF CONSTRUCTIVE TRAVEL FROM MIAMI, FLORIDA TO WASHINGTON, D.C., OR ACTUAL TRAVEL FROM LONG BEACH, CALIFORNIA TO WASHINGTON, D.C.

THE ORDERS OF FEBRUARY 2, 1946, ENCLOSURE (C), CANCELLED THAT PORTION OF THE OFFICER'S ORIGINAL ORDERS WHICH RELEASED HIM FROM ACTIVE DUTY AT THE EXPIRATION OF HIS TERMINAL LEAVE, AND DIRECTED HIM TO PROCEED TO WASHINGTON, D.C., UPON THE EXPIRATION OF HIS LEAVE AND REPORT TO THE CHIEF OF THE BUREAU OF SHIPS, NAVY DEPARTMENT, FOR TEMPORARY DUTY UNDER INSTRUCTION. SAID ORDERS PRESCRIBED A PER DIEM ALLOWANCE OF $7 IN ACCORDANCE WITH ARTICLE 2501-4 (D) OF THE NAVY TRAVEL INSTRUCTIONS. HAS BEEN HELD THAT THE REVOCATION OF A TEMPORARY APPOINTMENT ONCE ACCOMPLISHED CANNOT BE WITHDRAWN BY ANY AUTHORITY. 1 COMP. GEN. 737. ALSO, IT HAS BEEN HELD THAT, IN THE ABSENCE OF FRAUD ON THE PART OF THE OFFICER OR MAN DISCHARGED, AN EXECUTED DISCHARGE FROM THE MILITARY OR NAVAL SERVICE LEGALLY ISSUED BY AN AUTHORIZED OFFICIAL, CANNOT BE REVOKED SO AS TO RESTORE THE PERSON TO WHOM IT WAS ISSUED TO THE SERVICE. 4 COMP. GEN. 260; ID. 773.

FROM THE FACTS QUOTED ABOVE, IT APPEARS THAT THE INDIVIDUAL HERE INVOLVED WAS COMPLETELY SEPARATED FROM THE NAVAL SERVICE ON FEBRUARY 1, 1946, HIS STATUS AS A TEMPORARY OFFICER AND AS AN ENLISTED MAN HAVING BEEN TERMINATED ON THAT DAY BY ORDERS ISSUED SOMETIME PRIOR TO THAT DATE. THE FACT THAT THE ORDERS OF FEBRUARY 2, 1946, WERE PREPARED ON JANUARY 25, 1946, WOULD SEEM TO BE IMMATERIAL SINCE IN NO EVENT COULD SUCH ORDERS TAKE EFFECT UNTIL THEY ARE ISSUED. IN VIEW OF THE FACT THAT THE ORDERS OF FEBRUARY 2, 1946, WERE ACTUALLY ISSUED AFTER THE OFFICER'S TEMPORARY APPOINTMENT HAD BEEN REVOKED AND AFTER HE HAD BEEN RELEASED FROM ACTIVE DUTY AS AN ENLISTED MAN AND HAD BEEN DISCHARGED FROM THE NAVAL RESERVE, THEY WERE WITHOUT EFFECT TO CONTINUE HIM ON ACTIVE DUTY AND HENCE HE IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES DURING THE PERIOD FEBRUARY 2 TO 13, 1946.

(C) A RESERVE OFFICER WAS DETACHED FROM DUTY AT THE NAVY YARD, MARE ISLAND, CALIFORNIA, AND ORDERS TO REPORT TO THE SEPARATION CENTER, CHICAGO, ILLINOIS, FOR TEMPORARY DUTY AND SEPARATION PROCESSING. AT THAT POINT HE WAS DIRECTED TO PROCEED TO HIS HOME, COLUMBUS, OHIO, GRANTED TERMINAL LEAVE, AND AT EXPIRATION THEREOF AT MIDNIGHT ON 28 DECEMBER 1945, TO CONSIDER HIMSELF RELEASED FROM ALL ACTIVE DUTY. A REVIEW BY THE BUREAU OF MEDICINE AND SURGERY OF THEREPORT OF PHYSICAL EXAMINATION (M AND S FORM Y) HELD AT THE SEPARATION CENTER TO DETERMINE PHYSICAL FITNESS FOR RELEASE FROM ACTIVE DUTY, SHOWED THAT THE OFFICER SHOULD BE ORDERED TO A HOSPITAL FOR OBSERVATION AND REPORT ON CERTAIN PHYSICAL DEFECTS PRIOR TO TERMINATION OF ACTIVE DUTY STATUS. RELEASE ORDERS WERE CANCELLED BY ENCLOSURE (D), RECEIVED BY THE OFFICER ON 15 DECEMBER 1945, WHICH DIRECTED HIM TO REPORT TO NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, FOR OBSERVATION AND TREATMENT. THE OFFICER REPORTED ON 18 DECEMBER 1945. THE OFFICER HAD BEEN PAID MILEAGE FROM CHICAGO, ILLINOIS, TO COLUMBUS, OHIO, AND THE FIRST AND FINAL INCREMENT OF MUSTERING-OUT PAY. THE OFFICER WAS FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY ON 1 FEBRUARY 1946, DISCHARGED FROM TREATMENT ON THE SAME DATE AND, PURSUANT TO BUREAU OF NAVAL PERSONNEL ORDERS OF 15 DECEMBER 1945, WAS DIRECTED TO PROCEED TO HIS HOME, COLUMBUS, OHIO, AND CONSIDER HIMSELF RELIEVED OF ALL ACTIVE DUTY UPON ARRIVAL. THE OFFICER ARRIVED HOME ON 2 FEBRUARY 1946. DECISION IS REQUESTED AS TO WHETHER THIS OFFICER IS ENTITLED TO MILEAGE FROM COLUMBUS, OHIO, TO GREAT LAKES, ILLINOIS, AND RETURN UNDER THE ORDERS OF 1 FEBRUARY 1946, WHETHER HE IS ENTITLED TO RETAIN ADVANCE PAYMENT OF MILEAGE FROM CHICAGO, ILLINOIS, TO COLUMBUS, OHIO, AND WHETHER HE IS ENTITLED TO CREDIT OF ACTIVE DUTY PAY AND ALLOWANCES FROM 28 DECEMBER 1945 TO 2 FEBRUARY 1946, INCLUSIVE?

IN THIS CASE THE OFFICER'S ORDERS OF DECEMBER 12, 1945, ENCLOSURE (D), CANCELLING THE UNEXECUTED PORTION OF THE ORDERS RELEASING HIM FROM ACTIVE DUTY, WERE RECEIVED BY HIM AND HE COMPLIED THEREWITH PRIOR TO THE EXPIRATION OF HIS TERMINAL LEAVE. CONSEQUENTLY, HE WAS NOT RELEASED FROM ACTIVE DUTY UNDER HIS ORIGINAL ORDERS AND NO RIGHT TO PAYMENT OF MILEAGE INCIDENT TO A RELEASE FROM ACTIVE DUTY ACCRUED TO HIM UNDER THOSE ORDERS. THE OFFICER'S ORIGINAL ORDERS AS AMENDED BY THE ORDERS OF DECEMBER 12, 1945, AND FEBRUARY 1, 1946, HAD THE EFFECT OF DIRECTING TRAVEL FROM CHICAGO TO GREAT LAKES AND THENCE TO COLUMBUS. HE IS ENTITLED TO MILEAGE FOR THAT TRAVEL. SINCE HE PREVIOUSLY HAS BEEN PAID MILEAGE FROM CHICAGO TO COLUMBUS, THE ONLY ADDITIONAL MILEAGE TO WHICH HE IS ENTITLED IS FOR THE DISTANCE FROM CHICAGO TO GREAT LAKES AND RETURN. ALSO, THE EFFECT OF THE OFFICER'S ORDERS WAS TO CONTINUE HIS ACTIVE DUTY STATUS DURING THE PERIOD DECEMBER 28, 1945, TO FEBRUARY 2, 1946, AND HENCE, HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THAT PERIOD.