B-88033, OCTOBER 12, 1949, 29 COMP. GEN. 179

B-88033, OCTOBER 12, 1949, 29 COMP. GEN. 179

RETIREMENT - MARINE CORPS ENLISTED MEN ADVANCED TO COMMISSIONED RANK ON RETIRED LIST - EFFECT OF ELECTION TO BE RESTORED TO FORMER RETIRED ENLISTED STATUS UNDER SECTION 3 OF THE ACT OF JUNE 19, 1948, PROVIDING THAT ENLISTED MEN ADVANCED TO COMMISSIONED RANK ON THE RETIRED LIST PURSUANT TO SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, MAY, UPON APPROVAL OF THE SECRETARY OF THE NAVY, BE RESTORED TO THEIR FORMER RETIRED ENLISTED STATUS, ONLY ONE ELECTION TO BE SO RESTORED IS CONTEMPLATED, SO THAT ONCE THAT ELECTION IS MADE IT IS IRREVOCABLE BOTH AS TO THE SECRETARY AND AS TO THE ENLISTED MAN.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. G. B. SMITH, JR., UNITED STATES MARINE CORPS, OCTOBER 12, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 15, 1949, WHEREIN YOU REQUEST DECISION ON A MATTER BEFORE YOU FOR PAYMENT, INVOLVING THE CASE OF JOHN KUHAR, WHO WAS RETIRED AS A MASTER SERGEANT AND WHO, PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED, WAS ADVANCED TO COMMISSIONED RANK ON THE RETIRED LIST, THE QUESTIONS BEING WHETHER THE SECRETARY OF THE NAVY MAY RESCIND HIS APPROVAL OF MR. KUHAR'S APPLICATION TO BE RESTORED TO HIS FORMER RETIRED ENLISTED STATUS AND, IF SO, WITHIN WHAT TIME LIMIT, IF ANY, MAY SUCH APPROVAL BE RESCINDED.

SECTION 3 OF THE ACT OF JUNE 19, 1948, PUBLIC LAW 709, 62 STAT. 505, PROVIDES, AS FOLLOWS:

ENLISTED MEN AND WARRANT OFFICERS HERETOFORE OR HEREAFTER ADVANCED TO COMMISSIONED RANK OR GRADE ON THE RETIRED LIST, UNDER THE SAID ACT OF JULY 24, 1941, AS AMENDED, SHALL, IF APPLICATION THEREFOR IS MADE TO THE SECRETARY OF THE NAVY WITHIN THREE MONTHS FROM THE DATE OF APPROVAL OF THIS ACT OR WITHIN THREE MONTHS AFTER THE DATE OF ADVANCEMENT TO COMMISSIONED RANK OR GRADE ON THE RETIRED LIST, WHICHEVER IS LATER, AND SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE NAVY, BE RESTORED TO THEIR FORMER RETIRED ENLISTED OR WARRANT OFFICER STATUS, AS THE CASE MAY BE, AND SHALL THEREAFTER BE DEEMED TO BE ENLISTED OR WARRANT OFFICER PERSONNEL, AS APPROPRIATE, FOR ALL PURPOSES.

THAT SECTION WAS OFFERED AS AN AMENDMENT AT THE HEARINGS ON THE BILL H.R. 5344, WHICH BECAME THE ACT OF JUNE 19, 1948, BEFORE A SUBCOMMITTEE OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON ARMED SERVICE, IN CONNECTION WITH WHICH IT WAS STATED (PAGE 5779 OF THE REPORT OF THE HEARINGS/---

CAPTAIN HARRISON. UNDER THE AMENDMENT NO PROVISION IS MADE FOR AN ELECTION IF THE INDIVIDUAL SHOULD BECOME SEPARATED FROM HIS CIVILIAN POSITION. FOR INSTANCE, IF HE GIVES UP HIS PAY AS A RETIRED OFFICER AND ACCEPTS PAY AS AN ENLISTED MAN, SHOULD CONSIDERATION BE GIVEN TO PERMITTING HIM TO ELECT TO GO BACK TO HIS OFFICER PAY, IF HE IS SEPARATED FROM CIVILIAN SERVICE?

MR. SIKES. MR. CHAIRMAN, I THINK WE SHOULD EITHER ASK THESE MEN TO HAVE THEIR CAKE OR EAT IT.

I DO NOT THINK IT CAN BE SHIFTED BACK AND FORTH INDEFINITELY.

ADMIRAL HARTMAN. I AGREE WITH MR. SIKES ON THAT.

CAPTAIN HARRISON. ONCE THEY HAVE MADE THE ELECTION THEY HAVE TO STICK TO IT.

MR. SIKES. THAT IS FAIR ENOUGH, I THINK.

FROM THE FOREGOING IT IS CLEAR THAT SECTION 3 OF THE ACT OF JUNE 19, 1948, SUPRA, WAS NOT INTENDED AS AUTHORITY FOR THE MAKING OF MORE THAN ONE ELECTION BY EACH INDIVIDUAL INVOLVED. HENCE, ONCE THAT ELECTION IS MADE UNDER THOSE PROVISIONS IT MUST BE CONSIDERED TO BE IRREVOCABLE BOTH AS TO THE SECRETARY OF THE NAVY AND AS TO THE ENLISTED MAN OR WARRANT OFFICER AND SUCH CONCLUSION WOULD APPEAR TO BE REQUIRED EVEN THOUGH THE ELECTION MAY HAVE BEEN MADE WITHOUT COMPLETE UNDERSTANDING OF THE EFFECT THEREOF. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE MAKING AN ANSWER TO THE SECOND AND THIRD QUESTIONS UNNECESSARY.