B-112407, SEP. 13, 1965, 45 COMP. GEN. 116

B-112407, SEP. 13, 1965, 45 COMP. GEN. 116

UNIFORMS - MILITARY PERSONNEL - OFFICERS - ADDITIONAL ALLOWANCE - RESERVE SERVICE TRANSFERS, ETC. A MARINE CORPS RESERVE OFFICER WHO IMMEDIATELY PRIOR TO APPOINTMENT AND ACTIVE DUTY IN THE CORPS HAD SERVED ON ACTIVE DUTY FOR MORE THAN 90 DAYS AS AN OFFICER IN THE AIR FORCE RESERVE MAY NOT BE PAID AN ADDITIONAL UNIFORM ALLOWANCE UNDER THE ARMED FORCES RESERVE ACT OF 1952 (37 U.S.C. 416 (B) ( ON THE BASIS OF REQUIRING A DIFFERENT UNIFORM, ABSENT AN ADMINISTRATIVE REGULATION IMPLEMENTING THE AUTHORITY IN 37 U.S.C. 416 (B) FOR PAYMENT OF THE ALLOWANCE TO A RESERVE OFFICE WHO REQUIRES A DIFFERENT UNIFORM UPON TRANSFER TO, OR APPOINTMENT IN, ANOTHER RESERVE COMPONENT; THEREFORE, THE OFFICER HAVING ENTERED ON HIS MARINE CORPS RESERVE TOUR OF ACTIVE DUTY WITHIN 2 YEARS AFTER COMPLETING A PREVIOUS PERIOD OF ACTIVE DUTY OF MORE THAN 90 DAYS AS A RESERVE OFFICER, THE PAYMENT OF AN ADDITIONAL UNIFORM ALLOWANCE TO HIM IS PROHIBITED UNDER 37 U.S.C. 416 (B) (2), AND THE APPROPRIATE ADMINISTRATIVE REGULATION.

TO MAJOR K. F. MAY, UNITED STATES MARINE CORPS, SEPTEMBER 13, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1965, KFM/TRB/MN, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF FIRST LIEUTENANT FREDERICK BUBENHOFER, JR., O90690, USMCR, FOR ADDITIONAL UNIFORM ALLOWANCE UNDER THE PROVISIONS OF THE ARMED FORCES RESERVE ACT OF 1952 (37 U.S.C. 416 (B) ). YOUR REQUEST WAS FORWARDED HERE BY LETTER DATED MAY 25, 1965, UNDER CONTROL NUMBER DO-MC-849 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY SPECIAL ORDER AB-638, DATED SEPTEMBER 16, 1964, OF THE DEPARTMENT OF THE AIR FORCE, FIRST LIEUTENANT FREDERICK BUBENHOFER, JR., AO3107315, WAS RELIEVED FROM ASSIGNMENT TO TRAVIS AIR FORCE BASE, CALIFORNIA, AND HONORABLY DISCHARGED FROM ALL APPOINTMENTS WHICH HE HELD IN THE UNITED STATES AIR FORCE EFFECTIVE SEPTEMBER 30, 1964, CONTINGENT UPON HIS ACCEPTING APPOINTMENT IN THE UNITED STATES MARINE CORPS ON OCTOBER 1, 1964. LETTER DATED SEPTEMBER 9, 1964, DPH-IBS-6, OF HEADQUARTERS, UNITED STATES MARINE CORPS, PROVIDED, AMONG OTHER THINGS, THAT IMMEDIATELY UPON DISCHARGE FROM THE UNITED STATES AIR FORCE AND UPON ACCEPTANCE OF COMMISSION AS FIRST LIEUTENANT IN THE UNITED STATES MARINE CORPS ON OR ABOUT SEPTEMBER 15, 1964, LIEUTENANT BUBENHOFER WOULD BE ASSIGNED TO ACTIVE DUTY AND WOULD PROCEED AND REPORT TO THE COMMANDANT, MARINE CORPS SCHOOLS, QUANTICO, VIRGINIA, FOR DUTY AND FURTHER ASSIGNMENT TO DUTY UNDER INSTRUCTION. A COPY OF UNITED STATES MARINE CORPS APPOINTMENT ACCEPTANCE AND RECORD, SIGNED BY THE OFFICER, DISCLOSES THAT HE SERVED AS FIRST LIEUTENANT IN THE UNITED STATES AIR FORCE RESERVE FROM JULY 14, 1961 TO SEPTEMBER 30, 1964.

LIEUTENANT BUBENHOFER CERTIFIES THAT HE HAS NOT RECEIVED AN INITIAL UNIFORM ALLOWANCE OF MORE THAN $200 DURING HIS TOUR OF DUTY IN THE MARINE CORPS RESERVE, AND THAT HE HAS NOT RECEIVED NOR CLAIMED THE $100 ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE AUTHORIZED BY 37 U.S.C. 416 (B) FOR HIS PRESENT TOUR OF ACTIVE DUTY IN THE UNITED STATES MARINE CORPS RESERVE.

SINCE LIEUTENANT BUBENHOFER SERVED ON ACTIVE DUTY AS AN OFFICER IN THE AIR FORCE RESERVE IMMEDIATELY PRIOR TO HIS APPOINTMENT AND ASSIGNMENT TO ACTIVE DUTY AS AN OFFICER IN THE MARINE CORPS RESERVE, YOU EXPRESS DOUBT AS TO THE PROPRIETY OF PAYING AN ADDITIONAL UNIFORM ALLOWANCE UNDER 37 U.S.C. 416 (B) DUE TO THE PROVISIONS OF ITEM 2, PARAGRAPH 044145-3B, NAVY COMPTROLLER MANUAL, WHICH STATES THAT THE ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE OF $100 IS NOT PAYABLE FOR ANY TOUR OF ACTIVE DUTY IF THE OFFICER ENTERS ON THAT TOUR OF ACTIVE DUTY WITHIN 2 YEARS AFTER COMPLETING A PREVIOUS PERIOD OF ACTIVE DUTY OF MORE THAN 90 DAYS AS A RESERVE OFFICER. THAT PROVISION IS A RESTATEMENT OF 37 U.S.C. 416 (B) (2).

THE LETTER OF MAY 25, 1965, FROM THE COMMANDANT OF THE MARINE CORPS, TRANSMITTING YOUR REQUEST, INDICATES THAT DIFFERENCES HAVE BEEN EXPRESSED BY THE SERVICES AS TO WHETHER A LITERAL INTERPRETATION SHOULD BE APPLIED TO 37 U.S.C. 416 (B) (2) IN THE CASE OF AN OFFICER ENTERING ON A TOUR OF ACTIVE DUTY OF OVER 90 DAYS IN A SERVICE REQUIRING THE WEARING OF A DIFFERENT UNIFORM THAN THAT REQUIRED ON HIS PREVIOUS ACTIVE DUTY TOUR WITHIN 2 YEARS. IT IS STATED THAT THE MARINE CORPS VIEWS 37 U.S.C. 417 (B) AS PRESERVING THE LITERAL APPLICATION OF 416 (B) (2).

IT IS PROVIDED IN 37 U.S.C. 417 (B) THAT:

UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, OR BY THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, AND SUBJECT TO SECTION 415 (A/ /C) OR 416 OF THIS TITLE, A RESERVE OFFICER OF AN ARMED FORCE WHO HAS RECEIVED A UNIFORM AND EQUIPMENT ALLOWANCE UNDER SECTION 415 (A/-/C) OR 416 OF THIS TITLE, MAY, IF A DIFFERENT UNIFORM IS REQUIRED, BE PAID A UNIFORM AND EQUIPMENT REIMBURSEMENT UPON TRANSFER TO, OR APPOINTMENT IN, ANOTHER RESERVE COMPONENT.

THAT PROVISION IS A CODIFICATION OF SECTION 305 (D) (37 U.S.C. 255D, 1958 ED.) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, AS ADDED BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 629, WHICH REPEALED AND REENACTED SECTION 243 (D) OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 493.

IT APPEARS THAT IN ENACTING 37 U.S.C. 417 (B) THE CONGRESS RECOGNIZED THAT WHEN A MEMBER OF ONE RESERVE COMPONENT TRANSFERS TO OR IS APPOINTED IN ANOTHER RESERVE COMPONENT REQUIRING A DIFFERENT UNIFORM AN ADDITIONAL EXPENSE WILL BE INCURRED FOR UNIFORMS AND EQUIPMENT. ALTHOUGH ADDITIONAL UNIFORM ALLOWANCES THUS WERE AUTHORIZED IN SUCH CASES, WITHIN THE LIMITATIONS PRESCRIBED IN THE LAW, CONGRESS LEFT TO THE SECRETARIES CONCERNED THE DUTY TO DETERMINE BY REGULATION WHEN AND IN WHAT AMOUNT SUCH ADDITIONAL ALLOWANCE MIGHT BE MADE.

WHILE IT IS CLEARLY PROVIDED IN PARAGRAPH 044145-1CD5 OF THE NAVY COMPTROLLER MANUAL THAT AN INITIAL UNIFORM ALLOWANCE OF $200 IS PAYABLE TO A MARINE CORPS RESERVE OFFICER UPON DIRECT RECRUITMENT FROM ANY OF THE ARMED FORCES, REGARDLESS OF COMPONENT, OTHER THAN THE MARINE CORPS, NO PROVISION HAS BEEN FOUND IN THE REGULATIONS AUTHORIZING AN ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE IN SUCH A CASE. COMPARE PARAGRAPH 10704, ARMY REGULATIONS 37-104.

IN THE ABSENCE OF REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 417 (B) AUTHORIZING AN ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE TO MARINE CORPS RESERVE OFFICERS SIMILARLY SITUATED, WE KNOW OF NO AUTHORITY FOR PAYMENT OF SUCH ADDITIONAL ALLOWANCE TO LIEUTENANT BUBENHOFER.