B-101631, JULY 5, 1951, 31 COMP. GEN. 3

B-101631, JULY 5, 1951, 31 COMP. GEN. 3

DISCHARGES AND DISMISSALS - RETROACTIVE THE DISCHARGE OF A MARINE CORPS RESERVIST WHO ENLISTED AS AN AVIATION CADET IN THE UNITED STATES AIR FORCE MAY NOT BE RETROACTIVELY DATED SO AS TO EFFECT THE DISCHARGE OF THE ENLISTED MAN PRIOR TO THE ACTUAL DATE OF HIS DISCHARGE, NOTWITHSTANDING THE MARINE CORPS MANUAL PROVIDES THAT UPON ENLISTMENT OF AN ENLISTED RESERVIST IN ANOTHER BRANCH OF THE REGULAR SERVICE SUCH RESERVIST WILL BE DISCHARGED EFFECTIVE THE DAY PRIOR TO SUCH ENLISTMENT. THE ENLISTMENT OF A MEMBER OF THE MARINE CORPS RESERVE AS AN AVIATION CADET IN THE UNITED STATES AIR FORCE DOES NOT AFFECT HIS DE JURE STATUS AS A MEMBER OF SAID RESERVE, AND THEREFORE SUCH MEMBER IS ENTITLED TO CREDIT FOR BASIC PAY PURPOSES FOR SERVICE IN THE MARINE CORPS UNTIL HIS FINAL DISCHARGE THEREFROM AND TO PAY AND ALLOWANCES FOR ACTIVE DUTY PERFORMED IN SAID CORPS SUBSEQUENT TO HIS DISCHARGE FROM THE UNITED STATES AIR FORCE.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPTAIN M. O. SADLER, U.S. MARINE CORPS, JULY 5, 1951:

BY ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS, DATED FEBRUARY 26, 1951, THERE WAS RECEIVED YOUR LETTER OF FEBRUARY 14, 1951, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER BERNARD G. TERRY (601420) IS ENTITLED TO BE CREDITED, FOR BASIC PAY PURPOSES AS PRIVATE, FIRST CLASS, UNITED STATES MARINE CORPS RESERVE, WITH TIME SERVED SUBSEQUENT TO AUGUST 11, 1949, UNDER HIS ENLISTMENT OF DECEMBER 23, 1947, IN THE MARINE CORPS RESERVE, IT APPEARING THAT HE ENLISTED AS AN AVIATION CADET IN THE UNITED STATES AIR FORCE ON AUGUST 12, 1949, AND THAT ON DECEMBER 18, 1950, HE WAS GIVEN A DISCHARGE FROM THE MARINE CORPS RESERVE PURPORTING TO BE EFFECTIVE AS OF AUGUST 11, 1949, BECAUSE OF HIS AIR FORCE ENLISTMENT. ALSO, QUESTION IS PRESENTED AS TO TERRY'S RIGHT TO ACTIVE-DUTY PAY FOR THE PERIOD NOVEMBER 8, 1950, TO DECEMBER 18, 1950, UNDER MARINE CORPS ACTIVE- DUTY ORDERS OF OCTOBER 13, 1950.

THE RECORD IN THE CASE SHOWS THAT TERRY ENLISTED IN THE UNITED STATES MARINE CORPS ON APRIL 29, 1946, WAS DISCHARGED THEREFROM ON MAY 5, 1947, AND ENLISTED IN THE UNITED STATES MARINE CORPS RESERVE ON DECEMBER 23, 1947. WHILE IN AN INACTIVE STATUS IN THE MARINE CORPS RESERVE, HE ENLISTED IN THE UNITED STATES AIR FORCE AS AN AVIATION CADET ON AUGUST 12, 1949, AND WAS DISCHARGED THEREFROM ON OCTOBER 13, 1949, BY REASON OF ELIMINATION FROM FLYING TRAINING. APPARENTLY WITHOUT KNOWLEDGE OF THE ENLISTMENT IN THE AIR FORCE, THE DIRECTOR, ELEVENTH MARINE CORPS RESERVE DISTRICT, ON OCTOBER 13, 1950, ISSUED ORDERS ASSIGNING TERRY TO EXTENDED ACTIVE DUTY. THE ENLISTED MAN ENTERED ON SUCH DUTY ON NOVEMBER 8, 1950. SUBSEQUENTLY, UPON RECEIPT OF INFORMATION AS TO HIS ENLISTMENT IN THE AIR FORCE, TERRY WAS DISCHARGED FROM THE MARINE CORPS RESERVE ON DECEMBER 18, 1950, SUCH DISCHARGE PURPORTING TO BE EFFECTIVE AS OF AUGUST 11, 1949. WAS PAID $70 ON DECEMBER 6, 1950, APPARENTLY AS A PORTION OF PAY AND ALLOWANCES FOR THE PERIOD BEGINNING NOVEMBER 8, 1950.

IN VIEW OF THE PROVISION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, AS AMENDED, TO THE EFFECT THAT NO MEMBER OF THE NAVAL RESERVE "SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA" AND IN VIEW OF THE CONSTRUCTION PLACED ON SUCH PROVISION BY THIS OFFICE IN 23 COMP. GEN. 173 AND 25 COMP. GEN. 241, YOU EXPRESS DOUBT AS TO THE EFFECT OF THE RETROACTIVE DISCHARGE OF DECEMBER 18, 1950.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, 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 * * *.

SECTION 6 OF THE ABOVE ACT, 52 STAT. 1176, PROVIDES IN PART:

* * * THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY * * *.

THE ABOVE PROVISIONS OF SECTIONS 4 AND 6 ARE MADE APPLICABLE TO THE MARINE CORPS RESERVE BY SECTION 2 OF THE SAID ACT, 52 STAT. 1175.

PARAGRAPH 10356, MARINE CORPS MANUAL, 1949, PROVIDES:

UPON RECEIPT OF OFFICIAL NOTIFICATION OF THE ENLISTMENT OF AN ENLISTED RESERVIST IN THE REGULAR ARMY, NAVY, COAST GUARD OR AIR FORCE, THE DIRECTOR, MARINE CORPS RESERVE DISTRICT, OR THE COMMANDING OFFICER CONCERNED WILL EFFECT THE DISCHARGE OF THE RESERVIST AS OF THE DAY PRIOR TO SUCH ENLISTMENT, AND FORWARD THE DISCHARGE CERTIFICATE TO HIS NEW ORGANIZATION, IF KNOWN, OTHERWISE TO THE COMMANDER OF THE MARINE CORPS WITH A STATEMENT AS TO REASON FOR NON-DELIVERY.

IN 23 COMP. GEN. 173, CITED IN YOUR LETTER, IT WAS HELD THAT THE PROHIBITION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, AGAINST NAVAL RESERVISTS BECOMING MEMBERS OF OTHER NAVAL OR MILITARY ORGANIZATIONS DISQUALIFIED A NAVAL RESERVE OFFICER FOR ENLISTMENT IN THE NATIONAL GUARD, AND HENCE, THAT SUCH ENLISTMENT DID NOT DIVEST HIM OF HIS STATUS AS A NAVAL RESERVE OFFICER. IN 25 COMP. GEN. 241, ALSO CITED IN YOUR LETTER, IT WAS HELD THAT THE APPOINTMENT OF A MEMBER OF THE OFFICER'S RESERVE CORPS AS A NAVAL RESERVE OFFICER--- THE PRESIDENT HAVING THE POWER OF APPOINTMENT AND OF DISCHARGE AS TO BOTH OFFICES--- WAS TANTAMOUNT TO THE ACCEPTANCE OF THE OFFICER'S RESIGNATION FROM THE OFFICERS' RESERVE CORPS, AND HENCE, THAT THE ABOVE PROHIBITION DID NOT OPERATE TO PREVENT HIS BECOMING A DE JURE OFFICER OF THE NAVAL RESERVE UPON HIS APPOINTMENT THEREIN. SUCH LATTER DECISION, INVOLVING OFFICER STATUS ONLY, IS NOT APPLICABLE HERE.

IN THE PRESENT CASE, BUT FOR THE ABOVE-QUOTED PROVISIONS OF THE MARINE CORPS MANUAL AND THE RETROACTIVE FEATURE OF THE DISCHARGE OF DECEMBER 18, 1950, ISSUED IN ACCORDANCE THEREWITH, THERE WOULD APPEAR TO BE NO DOUBT THAT TERRY'S ENLISTMENT IN THE AIR FORCE DID NOT AFFECT HIS DE JURE STATUS AS A MEMBER OF THE MARINE CORPS RESERVE, 23 COMP. GEN. 173, SUPRA. MOREOVER, REGARDLESS OF THE MATTER OF STATUTORY PROHIBITION AGAINST MEMBERSHIP IN OTHER NAVAL OR MILITARY ORGANIZATIONS, IT WOULD APPEAR TO BE AXIOMATIC THAT, DURING A PERIOD OF WAR OR NATIONAL EMERGENCY, AN ENLISTED MAN OF THE MARINE CORPS RESERVE COULD NOT, MERELY BY ENLISTING IN ANOTHER NAVAL OR MILITARY ORGANIZATION, CAUSE HIMSELF TO BE SEPARATED FROM THE MARINE CORPS RESERVE AND THUS RELIEVE HIMSELF OF THE OBLIGATION OF ACTIVE SERVICE THEREIN. IT FOLLOWS THAT TERRY'S ENLISTMENT OF AUGUST 12, 1949, IN THE AIR FORCE DID NOT, OF ITSELF, AFFECT HIS MARINE CORPS RESERVE STATUS.

THERE REMAINS THE QUESTION OF THE RETROACTIVE EFFECT, IF ANY, OF THE DISCHARGE OF DECEMBER 18, 1950. THE SAID DISCHARGE PURPORTEDLY WAS EFFECTIVE AS OF AUGUST 11, 1949. HOWEVER, TERRY ACTUALLY PERFORMED ACTIVE SERVICE IN THE MARINE CORPS RESERVE SUBSEQUENT TO THAT DATE AND SINCE HE WAS A DE JURE MEMBER OF THAT ORGANIZATION WHEN SUCH ACTIVE SERVICE WAS PERFORMED, THE TERMS OF THE DISCHARGE IN EFFECT DENYING DE JURE STATUS DURING SUCH ACTIVE SERVICE, AND PRIOR THERETO, WOULD APPEAR TO BE CONTRARY TO LAW AND TO FACT. COMPARE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-40, PAGE 378, REPORTING A CASE IN WHICH IT WAS HELD THAT A DISCHARGE CERTIFICATE IS MERELY EVIDENCE OF A DISCHARGE AND, HENCE, THAT THE ISSUANCE OF A CERTIFICATE SHOWING AN ENLISTED MAN TO HAVE BEEN DISCHARGED ON A DATE WHEN HE WAS NOT IN FACT DISCHARGED WOULD BE IMPROPER. THE CONCLUSION APPEARS TO BE REQUIRED, THEREFORE, THAT TERRY'S DISCHARGE FROM THE MARINE CORPS RESERVE WAS NOT EFFECTIVE PRIOR TO DECEMBER 18, 1950.

ACCORDINGLY, THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH AND YOU ARE ADVISED THAT YOU ARE AUTHORIZED TO CREDIT TERRY WITH ACTIVE DUTY PAY AND ALLOWANCES FROM NOVEMBER 8 TO DECEMBER 18, 1950--- LESS ANY AMOUNT ALREADY PAID TO HIM FOR SUCH PERIOD--- ON THE BASIS OF SERVICE IN THE MARINE CORPS FROM APRIL 29, 1946, TO MAY 5, 1947, AND SERVICE IN THE MARINE CORPS RESERVE FROM DECEMBER 23, 1947, TO DECEMBER 18, 1950.