B-94766, MAY 2, 1952, 31 COMP. GEN. 551

B-94766: May 2, 1952

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WHO WAS NOT SELECTED FOR RETENTION AS A PERMANENT OFFICER OF THE REGULAR NAVY AND WHO. WAS CONTINUED ON ACTIVE DUTY FOR A LIMITED PERIOD PENDING RECEIPT OF ORDERS SEPARATING HIM FROM HIS REGULAR NAVY STATUS. IS NOT ENTITLED TO THE UNIFORM GRATUITY AUTHORIZED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938. 1952: REFERENCE IS MADE TO LETTER OF JANUARY 25. WHO WERE NOT SELECTED FOR RETENTION AS PERMANENT OFFICERS OF THE REGULAR NAVY. WHO UPON TERMINATION OF THEIR ORIGINAL COMMISSIONS AND ACCEPTANCE OF APPOINTMENTS AS OFFICERS IN THE NAVAL RESERVE WERE CONTINUED ON ACTIVE DUTY IN A RESERVE STATUS. FOR LIMITED PERIODS PENDING RECEIPT OF SEPARATION ORDERS ARE ENTITLED TO THE $100 AND $150 UNIFORM GRATUITY AUTHORIZED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 855A).

B-94766, MAY 2, 1952, 31 COMP. GEN. 551

UNIFORM ALLOWANCE - NAVAL RESERVE - REGULAR NAVY OFFICER CONTINUING ON DUTY IN NAVAL RESERVE PENDING SEPARATION FROM SERVICE A REGULAR NAVY OFFICER, COMMISSIONED PURSUANT TO AUTHORITY IN THE ACT OF AUGUST 13, 1946, AS AMENDED, WHO WAS NOT SELECTED FOR RETENTION AS A PERMANENT OFFICER OF THE REGULAR NAVY AND WHO, UPON TERMINATION OF HIS ORIGINAL COMMISSION AND ACCEPTANCE OF AN APPOINTMENT AS OFFICER IN THE NAVAL RESERVE, WAS CONTINUED ON ACTIVE DUTY FOR A LIMITED PERIOD PENDING RECEIPT OF ORDERS SEPARATING HIM FROM HIS REGULAR NAVY STATUS, IS NOT ENTITLED TO THE UNIFORM GRATUITY AUTHORIZED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, UPON FIRST REPORTING FOR ACTIVE DUTY AS A RESERVE OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 2, 1952:

REFERENCE IS MADE TO LETTER OF JANUARY 25, 1952, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING DECISION---

"WHETHER OFFICERS ORIGINALLY COMMISSIONED IN THE U.S. NAVY UNDER AUTHORITY CONTAINED IN THE ACT OF AUGUST 13, 1946, AS AMENDED (34 U.S.C. SUP. IV, 1020), WHO WERE NOT SELECTED FOR RETENTION AS PERMANENT OFFICERS OF THE REGULAR NAVY, AND WHO UPON TERMINATION OF THEIR ORIGINAL COMMISSIONS AND ACCEPTANCE OF APPOINTMENTS AS OFFICERS IN THE NAVAL RESERVE WERE CONTINUED ON ACTIVE DUTY IN A RESERVE STATUS, FOR LIMITED PERIODS PENDING RECEIPT OF SEPARATION ORDERS ARE ENTITLED TO THE $100 AND $150 UNIFORM GRATUITY AUTHORIZED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938 (34 U.S.C. 855A), UPON THE DATE OF FIRST REPORTING FOR ACTIVE DUTY AS RESERVE OFFICERS.'

SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, PROVIDES THAT:

"IN TIME OF PEACE, UPON FIRST REPORTING FOR ACTIVE OR TRAINING DUTY WITH PAY, AFTER ENACTMENT HEREOF, AT A LOCATION WHERE UNIFORMS ARE REQUIRED TO BE WORN, AFTER THE AUTHORIZED PERFORMANCE OF FOURTEEN DRILLS, A COMMISSIONED OR WARRANT OFFICER OF THE NAVAL RESERVE SHALL BE PAID A SUM NOT TO EXCEED $100 AS REIMBURSEMENT FOR THE PURCHASE OF THE REQUIRED UNIFORMS, AND THEREAFTER HE SHALL BE PAID AN ADDITIONAL SUM OF $50 FOR THE SAME PURPOSE UPON THE COMPLETION OF EACH PERIOD OF NOT LESS THAN FOUR YEARS IN THE NAVAL RESERVE: PROVIDED, THAT THIS LATTER AMOUNT OF $50 SHALL NOT BECOME DUE ANY OFFICER UNTIL HE HAS COMPLETED NOT LESS THAN ONE HUNDRED AND FIFTY DRILLS OR PERIODS OF OTHER EQUIVALENT INSTRUCTION OR DUTY OR APPROPRIATE DUTIES AND FIFTY SIX DAYS' ACTIVE OR TRAINING DUTY, OR SEVENTY-FIVE DRILLS AND EIGHTY FOUR DAYS' ACTIVE OR TRAINING DUTY, OR ONE HUNDRED TWELVE DAYS' ACTIVE OR TRAINING DUTY: PROVIDED FURTHER, THAT ANY OFFICER WHO HAS HERETOFORE RECEIVED A UNIFORM GRATUITY SHALL NOT BE ENTITLED TO EITHER OF THE ABOVE-MENTIONED SUMS UNTIL THE EXPIRATION OF FOUR YEARS FROM THE DATE OF THE RECEIPT OF THE LAST SUCH GRATUITY: PROVIDED FURTHER, THAT UNIFORMS FOR AVIATION CADETS SHALL BE PROVIDED AS HERETOFORE OR HEREAFTER AUTHORIZED BY LAW: AND PROVIDED FURTHER, THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY.'

IN DECISION OF THIS OFFICE DATED FEBRUARY 5, 1945, B-45897, 24 COMP. GEN. 591, IT WAS HELD THAT AN OFFICER OF THE NAVAL RESERVE, APPOINTED ON THE DAY FOLLOWING THE TERMINATION DATE OF HIS COMMISSION IN THE REGULAR NAVY, AND CONTINUED ON ACTIVE DUTY AT THE SAME POST UNDER ORDERS OF INDEFINITE DURATION, WAS ENTITLED TO A $150 UNIFORM ALLOWANCE UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, SUPRA.

THE LETTER OF THE UNDER SECRETARY OF THE NAVY AND THE ENCLOSURES FORWARDED THEREWITH CITE THE ABOVE DECISION AND REFER SPECIFICALLY TO THE CASE OF ENSIGN EDWARD W. RHOADS, WHOSE CLAIM FOR UNIFORM ALLOWANCES OF $100 AND $150, UNDER THE ABOVE SECTION 302, WAS DISALLOWED BY SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED FEBRUARY 14, 1951.

IT APPEARS THAT MR. RHOADS WAS ENROLLED AS A NAVAL AVIATION OFFICER CANDIDATE AND APPOINTED A MIDSHIPMAN IN THE NAVY UNDER PARAGRAPH (B) OF SECTION 3 OF THE ACT OF AUGUST 13, 1946, 60 STAT. 1058; THAT HE WAS COMMISSIONED AN ENSIGN, REGULAR NAVY, UNDER PARAGRAPH 2 OF SUBSECTION (A) OF SECTION 6 OF THE SAID ACT, 60 STAT. 1059; AND THAT HIS COMMISSION IN THE REGULAR NAVY WAS TERMINATED AND HE ACCEPTED APPOINTMENT AS AN OFFICER OF THE NAVAL RESERVE UNDER SECTION 9 (A) OF THE ABOVE ACT AS AMENDED BY THE ACT OF JUNE 19, 1948, 62 STAT. 486, 34 U.S.C. SUPP. IV, 1020H, PROVIDING THAT:

"THE COMMISSION OF EACH OFFICER COMMISSIONED PURSUANT TO PARAGRAPH 2 OF SUBSECTION (A) OF SECTION 6 WHO, PRIOR TO APRIL 1 OF THE CALENDAR YEAR FOLLOWING THAT IN WHICH HE ACCEPTED HIS COMMISSION OR PRIOR TO THE FIRST ANNIVERSARY OF THE ACCEPTANCE OF HIS COMMISSION, WHICHEVER IS EARLIER, SHALL NOT HAVE APPLIED FOR RETENTION IN THE REGULAR SERVICE, SHALL BE TERMINATED NOT LATER THAN THE FIRST ANNIVERSARY OF HIS ACCEPTANCE OF HIS COMMISSION, AND THE COMMISSION OF EACH SUCH OFFICER WHO APPLIES FOR RETENTION AS A PERMANENT OFFICER WITHIN THE TIME LIMITS PRESCRIBED BY THIS SUBSECTION, BUT WHO IS NOT SELECTED FOR RETENTION UNDER CLAUSE (A) OF SECTION 8 SHALL BE TERMINATED NOT LATER THAN JUNE 30 OF THE APPROPRIATE CALENDAR YEAR OF THE FIRST ANNIVERSARY OF HIS ACCEPTANCE OF HIS COMMISSION, WHICHEVER IS THE LATER DATE. UPON TERMINATION OF COMMISSION, EACH SUCH OFFICER WHO THEREUPON ACCEPTS APPOINTMENT TO COMMISSIONED RANK IN THE NAVAL OR MARINE CORPS RESERVE MAY APPLY FOR AND RECEIVE RETAINER PAY AT THE RATE OF $100 FOR EACH CALENDAR MONTH OR PART THEREOF DURING WHICH, WHILE AN OFFICER OF THE NAVAL OR MARINE CORPS RESERVE, HE PURSUES FULL-TIME INSTRUCTION IN AN ACCREDITED COLLEGE OR UNIVERSITY BUT NOT TO EXCEED A TOTAL OF $2,000, SUCH INSTRUCTION TO COMMENCE NOT LATER THAN A DATE TO BE DETERMINED BY THE SECRETARY OF THE NAVY; IN ADDITION, EACH SUCH OFFICER SHALL BE ENTITLED TO THE BENEFITS PROVIDED FOR HIM BY SECTION 10 OF THIS ACT.'

MR. RHOADS WAS TENDERED AN APPOINTMENT IN THE NAVAL RESERVE BY THE FOLLOWING COMMUNICATION:

" THE SECRETARY OF THE NAVY

WASHINGTON

PERS-3214-CJP

496855/1310

24 JUN 1949

FROM: THE SECRETARY OF THE NAVY

TO: ENSIGN EDWARD W. RHOADS, 496855/1310, USN.

VIA: COMMANDING OFFICER.

ATTACK SQUADRON THIRTY-FIVE

C/O FLEET POST OFFICE

NEW YORK, N.Y.

SUBJ: TERMINATION OF REGULAR NAVY COMMISSION AND ACCEPTANCE

OF NAVAL RESERVE COMMISSION.

REF: (A) PUBLIC LAW 729-79TH CONGRESS, AS AMENDED.

ENCL: (A) APPOINTMENT IN THE NAVAL RESERVE.

1. I AM FORWARDING HEREWITH YOUR COMMISSION IN THE NAVAL RESERVE.

IT IS REQUESTED THAT YOU EXECUTE YOUR ACCEPTANCE AND OATH OF OFFICE

FOR APPOINTMENT IN THE NAVAL RESERVE WITHOUT UNDUE DELAY. YOUR

COMMISSION IN THE REGULAR NAVY IS TERMINATED EFFECTIVE THE DATE

PRECEDING YOUR OATH OF OFFICE AS AN OFFICER OF THE NAVAL RESERVE.

2. UPON THE ACCEPTANCE OF YOUR APPOINTMENT IN THE NAVAL RESERVE

YOU WILL CONTINUE YOUR PRESENT DUTY INVOLVING FLYING, PENDING THE

RECEIPT OF ORDERS RELEASING YOU FROM ACTIVE DUTY.

3. YOU ARE ADVISED THAT IN ACCORDANCE WITH YOUR ORIGINAL AGREEMENT,

YOU ARE NOT TO RESIGN YOUR COMMISSION IN THE NAVAL RESERVE PRIOR TO

THE SIXTH ANNIVERSARY OF THE DATE OF RANK STATED IN YOUR ORIGINAL

COMMISSION IN THE REGULAR NAVY.

FOR THE PRESIDENT:

(STAMPED) FRANCIS P. MATTHEWS

SECRETARY OF THE NAVY.'

IT IS STATED IN THE ENCLOSURES THAT MR. RHOADS ACCEPTED APPOINTMENT IN THE NAVAL RESERVE ON JULY 5, 1949, AND WAS CONTINUED ON ACTIVE DUTY UNTIL AUGUST 24, 1949; THAT OTHER OFFICERS WERE RETAINED ON ACTIVE DUTY FOR PERIODS RANGING FROM SIX DAYS TO APPROXIMATELY THREE MONTHS PENDING RECEIPT OF SEPARATION ORDERS; AND THAT DUE TO THE INTERVENTION OF THE UNITED NATIONS IN KOREA, NUMEROUS MEMBERS OF THE NAVAL RESERVE IN ENSIGN RHOADS' CATEGORY WERE EITHER CONTINUED ON ACTIVE DUTY AND ARE CURRENTLY SERVING, OR WERE RECALLED TO ACTIVE DUTY AFTER HAVING BEEN RELEASED TO INACTIVE DUTY. IT IS ALSO STATED THAT IN THE EVENT THAT THE SETTLEMENT CERTIFICATE OF FEBRUARY 14, 1951, SUPRA, IS NOT REVERSED, OFFICERS OF THE CATEGORY OF ENSIGN RHOADS WHO ARE NOW SERVING ON ACTIVE DUTY WILL LOSE CREDIT FOR ALL SUCH SERVICE WHICH NORMALLY WOULD BE CREDITABLE TOWARD ENTITLEMENT TO A $50 UNIFORM ALLOWANCE. PRESUMABLY, THE LATTER STATEMENT HAS REFERENCE TO ONLY THOSE OFFICERS WHOSE SERVICE HAS BEEN CONTINUOUS FROM DATE OF ACCEPTANCE OF APPOINTMENT IN THE NAVAL RESERVE, SINCE IT IS STATED IN THE ENCLOSURES THAT SUBSEQUENT TO RELEASE FROM ACTIVE DUTY--- SUCH ACTIVE DUTY BEING FOR LIMITED PERIODS BEGINNING WITH ACCEPTANCE OF NAVAL RESERVE APPOINTMENTS--- SOME OF THE OFFICERS IN ENSIGN RHOADS' CATEGORY HAVE QUALIFIED FOR $100 UNIFORM ALLOWANCES BY THE PERFORMING OF 14 DRILLS OR BY REPORTING FOR ACTIVE DUTY FOR TRAINING, WHILE OTHERS HAVE QUALIFIED FOR ALLOWANCES OF $100 AND OF $150 BY REPORTING FOR ACTIVE DUTY, AND THAT NO ADMINISTRATIVE DIFFICULTIES WILL BE EXPERIENCED IN DETERMINING THE DATE OF ENTITLEMENT TO $50 ALLOWANCES IN SUCH CASES.

FROM INFORMATION RECEIVED INFORMALLY FROM THE DEPARTMENT OF THE NAVY WHILE THE RHOADS CASE WAS FIRST UNDER CONSIDERATION BY THIS OFFICE, IT APPEARS THAT IN CASES SUCH AS HIS, THE PERIOD DURING WHICH AN INDIVIDUAL WOULD HAVE CONTINUED SERVING IN THE REGULAR NAVY WAS SHORTENED TO THE EXTENT THAT IT WAS CONTEMPLATED THAT HE WOULD SERVE IN THE NAVAL RESERVE AND THAT THE ACTIVE DUTY OF SUCH INDIVIDUALS FOR LIMITED PERIODS IN THE NAVAL RESERVE WAS MERELY INCIDENTAL TO THEIR SEPARATION FROM A REGULAR NAVY STATUS. THE ACTION TAKEN IN MR. RHOADS' CLAIM WAS BASED ON THAT UNDERSTANDING. THAT FACT WAS INDICATED IN THE SETTLEMENT CERTIFICATE ISSUED IN HIS CASE AND APPARENTLY THE NAVY DEPARTMENT UNDERSTOOD THAT THE CLAIM WAS DISALLOWED ON THAT BASIS. HOWEVER, YOUR REQUEST FOR DECISION CONTAINS NO INFORMATION WHICH REFUTES THE EVIDENCE PREVIOUSLY BEFORE THIS OFFICE AND CONSIDERED IN MR. RHOADS' CLAIM.

THE PURPOSE OF THE UNIFORM ALLOWANCES OF $100 AND $150 PROVIDED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, IS THE REIMBURSEMENT, AT LEAST IN PART, OF THE COST OF UNIFORMS PURCHASED FOR USE IN THE PERFORMANCE OF NAVAL RESERVE SERVICE. IT CANNOT BE SERIOUSLY ARGUED THAT A BRIEF PERIOD OF SERVICE IN THE NAVAL RESERVE IN LIEU OF SERVICE IN THE REGULAR NAVY SUCH AS PERFORMED BY RHOADS WOULD NECESSITATE THE PURCHASE OF ANY ARTICLES OF UNIFORM AND EQUIPMENT WHICH OTHERWISE WOULD NOT HAVE BEEN REQUIRED. TO GRANT A UNIFORM ALLOWANCE UNDER THE SAID SECTION 302 TO AN INDIVIDUAL SO SITUATED, WHOSE SERVICE IN THE NAVAL RESERVE WAS MERELY INCIDENT TO HIS SEPARATION FROM HIS STATUS IN THE REGULAR NAVY, AND WHO WAS NOT REQUIRED TO MAKE ANY EXPENDITURE FOR UNIFORMS TO BE WORN IN CONNECTION WITH NAVAL RESERVE SERVICE, WOULD BE CONTRARY TO THE INTENT AND PURPOSE OF THE LAW.

ACCORDINGLY, THE QUESTION PRESENTED IN THE UNDER SECRETARY'S LETTER IS ANSWERED IN THE NEGATIVE. IT SHOULD BE UNDERSTOOD, HOWEVER, THAT THIS DECISION WOULD NOT BE APPLICABLE IN ANY CASE IN WHICH AN INDIVIDUAL IN MR. RHOADS' CATEGORY SERVED ON ACTIVE DUTY IN THE NAVAL RESERVE IF SUCH ACTIVE DUTY WAS NOT MERELY AN INCIDENT TO HIS SEPARATION FROM A REGULAR NAVY STATUS.