B-140372, OCTOBER 29, 1959, 39 COMP. GEN. 324

B-140372, OCTOBER 29, 1959, 39 COMP. GEN. 324

MILITARY PERSONNEL - RETIRED PAY - QUALIFICATION FOR TRANSFER TO FLEET MARINE CORPS RESERVE - DISCHARGE SUBSEQUENT TO ACCEPTANCE OF COMMISSION AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS WHO WAS NOT DISCHARGED FROM HIS PERMANENT ENLISTED STATUS UNTIL APRIL 15, 1944, WHEN HE HAD COMPLETED OVER 20 YEARS OF ACTIVE SERVICE, ALTHOUGH HE HAD ACCEPTED A PERMANENT COMMISSION AS WARRANT OFFICER ON AUGUST 11, 1943, AND WHO REMAINED IN AN OFFICER STATUS UNTIL RESIGNATION FROM THE SERVICE ON JUNE 20, 1945, MAY NOT HAVE HIS ENLISTED STATUS REGARDED AS CONTINUING BEYOND THE DATE OF ACCEPTANCE OF HIS PERMANENT COMMISSION AS WARRANT OFFICER, THEREFORE, THE MEMBER NOT HAVING COMPLETED 20 YEARS OF ACTIVE SERVICE AT THE TIME HIS PERMANENT ENLISTMENT TERMINATED ON AUGUST 11, 1943, DOES NOT QUALIFY FOR APPOINTMENT TO THE FLEET MARINE CORPS RESERVE AND TRANSFER TO THE RETIRED LIST UNDER THE ACT OF JULY 24, 1956. A REGULAR MARINE CORPS MEMBER WHO RESIGNED AS AN OFFICER OF JUNE 20, 1945, AFTER HAVING COMPLETED TWENTY YEARS AND ONE MONTH OF ACTIVE SERVICE ON APRIL 15, 1944, WHEN HE WAS DISCHARGED FROM HIS PERMANENT ENLISTED STATUS ALTHOUGH HE HAD ACCEPTED A COMMISSION AS A WARRANT OFFICER ON AUGUST 11, 1943, AT WHICH TIME HE DID NOT HAVE TWENTY YEARS OF ACTIVE SERVICE TO QUALIFY FOR APPOINTMENT TO THE FLEET MARINE CORPS RESERVE AND TRANSFER TO THE RETIRED LIST UNDER THE ACT OF JULY 24, 1956, MAY NOT HAVE THE RESIGNATION FROM A COMMISSION REGARDED AS A DISCHARGE UNDER THE 1956 ACT WHICH APPLIES TO FORMER MEMBERS WHO HAD AN ENLISTED STATUS AT THE TIME OF DISCHARGE PRIOR TO AUGUST 10, 1946, AND WHO AT THAT TIME HAD COMPLETED 20 YEARS OF ACTIVE SERVICE.

TO CAPTAIN JOHN A. RAPP, UNITED STATES MARINE CORPS, OCTOBER 29, 1959:

BY FIRST ENDORSEMENT DATED JULY 29, 1959, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF JULY 20, 1959, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF RETIRED PAY TO CAPTAIN WILLIAM A. STEIMER, 109365, UNITED STATES MARINE CORPS, RETIRED, AND WHETHER SUCH PAY IS FOR COMPUTATION ON THE BASIS OF HIS GRADE OF CAPTAIN IN ACCORDANCE WTIH OUR DECISION OF APRIL 2, 1957, B-130465. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-MC-440 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN THE ABOVE-MENTIONED DECISION OF APRIL 2, 1957, THERE WAS CONSIDERED THE QUESTION AS TO THE PROPER RATE OF PAY ON WHICH TO BASE THE COMPUTATION OF RETIRED PAY IN THE CASE OF MASTER SERGEANT LEONARD C. PRICE, UNITED STATES MARINE CORPS, RETIRED, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1956 ( PUBLIC LAW 771), 70 STAT, 34 U.S.C. 854C-1, 2, AND 10 U.S.C. 6330 NOTE, WHICH READS AS FOLLOWS:

THAT UPON APPLICATION BY ANY FORMER MEMBER OF THE NAVY OR MARINE CORPS---

(1) WHO WAS DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND

(2) WHO, AT THE TIME OF HIS DISCHARGE, HAD AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE,

THE SECRETARY OF THE NAVY SHALL APPOINT SUCH FORMER MEMBER IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AS MAY BE APPROPRIATE, IN THE RANK HELD BY HIM AT THE TIME OF SUCH DISCHARGE.

SEC. 2. EACH PERSON APPOINTED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER THE FIRST SECTION OF THIS ACT SHALL BE TRANSFERRED TO THE APPROPRIATE RETIRED LIST (1) ON THE FIRST DAY OF THE FIRST CALENDAR MONTH BEGINNING AFTER SUCH APPOINTMENT, IF HIS LAST DISCHARGE OCCURRED TEN OR MORE YEARS PRIOR TO THE DATE OF SUCH APPOINTMENT, AND (2) IN THE CASE OF INDIVIDUALS APPOINTED UNDER SUCH SECTION BEFORE THE EXPIRATION OF TEN YEARS FROM THEIR LAST DISCHARGE, ON THE FIRST DAY OF THE FIRST CALENDAR MONTH, BEGINNING AFTER THE EXPIRATION OF TEN YEARS FROM THE DATE OF SUCH DISCHARGE.

SEC. 3. EACH FORMER MEMBER TRANSFERRED TO A RETIRED LIST UNDER CLAUSES (1) AND (2) OF SECTION 2 SHALL RECEIVE RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT THE TIME OF HIS LAST DISCHARGE, MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE FEDERAL SERVICE AT SUCH TIME (NOT TO EXCEED THIRTY), AND ADJUSTED TO REFLECT THE PERCENTAGE INCREASES MADE SINCE SUCH DISCHARGE IN THE RETIRED PAY OF PERSONS RETIRED FROM THE ARMED FORCES PRIOR TO OCTOBER 12, 1949.

SEC. 4. FOR THE PURPOSES OF THIS ACT, ALL ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE NAVY, THE MARINE CORPS, THE COAST GUARD, OR ANY COMPONENT THEREOF, SHALL BE DEEMED TO BE ACTIVE FEDERAL SERVICE.

SEC. 5. NO PAY SHALL ACCRUE TO THE BENEFIT OF ANY PERSON APPOINTED UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE DATE SUCH PERSON IS ACTUALLY APPOINTED UNDER THE PROVISIONS OF THIS ACT AND IN NO EVENT PRIOR TO THE FIRST DAY OF THE FIRST MONTH FOLLOWING ENACTMENT OF THIS ACT.

AFTER CONSIDERATION OF THE LEGISLATIVE HISTORY OF THE ACT OF JULY 24, 1956, IN CONJUNCTION WITH THAT ACT, WE CONCLUDED IN THE DECISION OF APRIL 2, 1957, THAT UNDER THE TERMS OF SECTION 3, 34 U.S.C. 854C-3, THE COMPUTATION OF THE RETIRED PAY IN THE CASE OF MASTER SERGEANT PRICE IS REQUIRED TO BE BASED ON THE RATE OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING ON MARCH 28, 1945, THE DATE OF HIS LAST DISCHARGE. THAT RATE OF PAY TIMES 2 1/2 PERCENTUM MULTIPLIED BY THE NUMBER OF YEARS OF HIS ACTIVE FEDERAL SERVICE AS OF THAT DATE, NOT TO EXCEED THIRTY, PLUS ALL ADJUSTMENTS TO REFLECT THE PERCENTAGE INCREASES MADE IN THE RATE OF PAY OF PERSONS RETIRED PRIOR TO OCTOBER 12, 1949, GIVES THE PROPER AMOUNT OF RETIRED PAY DUE HIM.

YOUR SUBMISSION SETS FORTH THE MATERIAL FACTS IN THE INSTANT CASE AS FOLLOWS:

(A) WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN THE GRADE OF FIRST LIEUTENANT WITH AN UNDERLYING PERMANENT ENLISTED STATUS IN THE U.S. MARINE CORPS, WILLIAM A. STEIMER ACCEPTED A PERMANENT APPOINTMENT AS A PAY CLERK (WARRANT OFFICER) ON 11 AUGUST 1943 IN THE U.S. MARINE CORPS. THE TEMPORARY APPOINTMENT WAS MADE UNDER THE ACT OF JULY 24, 1941 (55 STAT. 603), AND THE PERMANENT APPOINTMENT UNDER THE ACT OF JUNE 10, 1926 (44 STAT. 725).

(B) NO FORMAL DISCHARGE FROM HIS ENLISTED STATUS WAS EFFECTED AT THE TIME HE ACCEPTED THE PERMANENT APPOINTMENT AS A PAY CLERK. BY LETTER OF 20 MARCH 1944 THE COMMANDANT OF THE MARINE CORPS DIRECTED STEIMER'S COMMANDING OFFICER TO DISCHARGE HIM HONORABLY AS OF THE DATE PRIOR HIS ACCEPTANCE OF THE PERMANENT APPOINTMENT AS A PAY CLERK. HE WAS SO "DISCHARGED" ON 15 APRIL 1944.

(C)ON 1 AUGUST 1944 HE WAS TEMPORARILY APPOINTED TO THE GRADE OF CAPTAIN IN THE U.S. MARINE CORPS UNDER THE ACT OF JULY 24, 1941 (55 STAT. 603).

(D) HE TENDERED HIS RESIGNATION AS AN OFFICER ON 7 APRIL 1945. HIS RESIGNATION UNDER HONORABLE CONDITIONS WAS ACCEPTED BY THE ACTING SECRETARY OF THE NAVY ON 29 MAY 1945 AND BECAME EFFECTIVE ON 20 JUNE 1945.

(E) ON 10 AUGUST 1943 STEIMER HAD NOT COMPLETED 20 YEARS OF ACTIVE FEDERAL SERVICE. ON 15 APRIL 1944 HE HAD COMPLETED 20 YEARS AND 1MONTH OF ACTIVE FEDERAL SERVICE. ON 20 JUNE 1945 HE HAD COMPLETED 21 YEARS, 3 MONTHS, AND 5 DAYS OF ACTIVE FEDERAL SERVICE. ALL OF HIS SERVICE WAS PERFORMED AS A MEMBER OF THE REGULAR MARINE CORPS.

(F) ON 10 OCTOBER 1958 HE APPLIED FOR APPOINTMENT TO THE FLEET MARINE CORPS RESERVE AND RETIREMENT UNDER THE ACT OF JULY 24, 1956, PUBLIC LAW 771-84TH CONGRESS (70 STAT. 626). ON 23 DECEMBER 1958 THE ASSISTANT SECRETARY OF THE NAVY APPOINTED HIM TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF MASTER SERGEANT AS OF 30 NOVEMBER 1958, AND EFFECTIVE 1 DECEMBER 1958 PLACED HIM ON THE RETIRED LIST OF ENLISTED MEN OF THE U.S. MARINE CORPS, BOTH ACTIONS HAVING BEEN TAKEN UNDER THE CITED 1956 ACT.

(G) ON 5 MARCH 1959 HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN EFFECTIVE 1 DECEMBER 1958 UNDER 10 U.S.C. 6151, THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY.

IT ALSO APPEARS FROM THE ENCLOSURES THAT STEIMER COMMENCED SERVICE AS AN ENLISTED MAN IN THE MARINE CORPS ON MARCH 7, 1924. YOUR OFFICE ALSO ADVISED US INFORMALLY THAT THE ENLISTED MAN WAS APPOINTED WARRANT OFFICER (PAY CLERK), TEMPORARY, ON MARCH 2, 1942; APPOINTED SECOND LIEUTENANT, TEMPORARY, ON JULY 7, 1942, AND APPOINTED FIRST LIEUTENANT, TEMPORARY, ON MARCH 1, 1943.

ACCOMPANYING YOUR SUBMISSION IS AN OPINION DATED OCTOBER 6, 1958, FROM THE HEAD, LEGAL BRANCH, TO THE HEAD, SEPARATION AND RETIREMENT BRANCH, CONCERNING THE APPOINTMENT OF CAPTAIN STEIMER TO THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF THE ABOVE-MENTIONED ACT OF JULY 24, 1956. THE OPINION READS IN PERTINENT PART AS FOLLOWS:

1. THE FLEET RESERVE IS COMPOSED OF OFFICERS AND ENLISTED MEN TRANSFERRED OR ASSIGNED THERETO IN ACCORDANCE WITH THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854. THE FLEET MARINE CORPS RESERVE WAS MADE A PART OF THE MARINE CORPS RESERVE AND PROVISIONS RELATING TO THE FLEET RESERVE CONTAINED IN THE NAVAL RESERVE ACT OF 1938 APPLIED TO THE FLEET MARINE CORPS RESERVE, 34 U.S.C. 853A. HOWEVER, IT DOES NOT APPEAR THAT THE TRANSFER OR ASSIGNMENT OF OFFICERS TO THE FLEET MARINE CORPS RESERVE WAS ACCOMPLISHED. IN VIEW OF THE LACK OF SUCH TRANSFERS OR ASSIGNMENTS, IT IS CONSIDERED THAT THE RESIGNATION OF STEIMER MAY NOT BE REGARDED AS THE BASIS FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE.

3. ON THE BASIS OF STEIMER'S DISCHARGE FROM ENLISTED STATUS ON 15 APR. 1944, HE IS CONSIDERED TO MEET THE REQUIREMENTS OF P.L. 771-84TH CONGRESS AND TO BE ELIGIBLE FOR APPOINTMENT TO THE FLEET MARINE CORPS RESERVE.

4. * * * NEVERTHELESS, IN VIEW OF THE GENERAL NATURE OF P.L. 771 AND DESPITE THE FACT THAT CASES SUCH AS THAT OF STEIMER HAD NOT BEEN CONTEMPLATED AT THE TIME OF PASSAGE OF LAW, IT IS THE OPINION OF THE LEGAL BRANCH THAT STEIMER IS QUALIFIED FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE ON THE BASIS OF OVER 20 YEARS ACTIVE ENLISTED SERVICE FROM WHICH HE WAS DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS.

YOU POINT OUT THAT CAPTAIN STEIMER WAS APPOINTED TO THE FLEET MARINE CORPS RESERVE ON THE BASIS THAT HE WAS DISCHARGED FROM HIS ENLISTED STATUS ON APRIL 15, 1944, AND AT THAT TIME HE HAD AT LEAST 20 YEARS OF ACTIVE FEDERAL SERVICE. YOU SAY THAT SINCE THE SECRETARY OF THE NAVY HAD THE POWER OF BOTH APPOINTING STEIMER TO THE PERMANENT GRADE OF WARRANT OFFICER AND DISCHARGING HIM FROM HIS ENLISTED STATUS, THE ACCEPTANCE OF THE APPOINTMENT BY STEIMER ON AUGUST 11, 1943, HAD THE EFFECT OF TERMINATING HIS ENLISTED STATUS AT THAT TIME, AND THAT THE ISSUANCE OF THE DISCHARGE CERTIFICATE ON APRIL 15, 1944, DID NOT HAVE THE EFFECT OF CONTINUING HIS ENLISTED STATUS UNTIL THAT DATE. ON THAT BASIS, YOU SAY THAT STEIMER'S APPOINTMENT TO THE FLEET MARINE CORPS RESERVE APPEARS TO HAVE BEEN INCORRECT, SINCE AT THE TIME HIS ENLISTED STATUS WAS IN FACT TERMINATED AND HE DID NOT HAVE "AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE" AS REQUIRED BY THE 1956 ACT. YOU ALSO STATE THAT THE PROVISIONS OF 10 U.S.C. 6332--- CONCERNING THE CONCLUSIVENESS OF TRANSFERS TO THE FLEET MARINE CORPS RESERVE--- WOULD SEEM TO HAVE NO APPLICATION, SINCE STEIMER WAS NOT A MEMBER OF THE NAVAL SERVICE AT THE TIME HE WAS APPOINTED TO THE FLEET MARINE CORPS RESERVE. IN CONCLUSION, YOU SUGGEST AS AN ALTERNATIVE THAT WE CONSIDER WHETHER THE 1956 ACT IS APPLICABLE TO AN OTHERWISE QUALIFIED PERSON WHO WAS DISCHARGED AS AN OFFICER PRIOR TO AUGUST 10, 1946, AND, IF SO, WHETHER A RESIGNATION MAY BE CONSIDERED A "DISCHARGE" FOR THE PURPOSES OF THAT ACT.

AS POINTED OUT IN THE ABOVE-MENTIONED DECISION OF APRIL 2, 1957, THE LEGISLATIVE HISTORY OF THE BILL, H.R. 6729, WHICH BECAME PUBLIC LAW 771, COUPLED WITH OTHER FACTS PRESENTED, CLEARLY SHOWS THAT THE CASE OF MASTER SERGEANT PRICE WAS THE ONLY KNOWN CASE WITHIN THE PURVIEW OF THAT BILL. THE ENLISTED MAN HAD COMPLETED 20 YEARS OF ACTIVE FEDERAL SERVICE, FOUR YEARS OF WHICH CONSISTED OF SERVICE IN THE ARMY AT A PRIOR TIME, BUT HE HAD NOT COMPLETED 20 YEARS OF ACTIVE " NAVAL" SERVICE. HE WAS PREVENTED FROM REENLISTING BECAUSE OF PHYSICAL REASONS. THE DRAFTERS OF THE BILL RECOGNIZED THAT THERE MIGHT BE OTHER SIMILAR CASES AND DECIDED TO WRITE THE BILL AS GENERAL LEGISLATION. IT IS STATED ON PAGE 1 OF SENATE REPORT NO. 2553, DATED JULY 12, 1956, TO ACCOMPANY H.R. 6729, THAT THE PURPOSE OF THE LEGISLATION IS TO PROVIDE AUTHORITY FOR APPOINTMENT IN THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE AND FOR FURTHER TRANSFER TO THE RETIRED RESERVE, WITH RETIRED PAY, FOR FORMER MEMBERS OF THE NAVY AND MARINE CORPS WHO WERE DISCHARGED PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND WHO AT THE TIME OF DISCHARGE HAD COMPLETED 20 YEARS OF ACTIVE FEDERAL SERVICE. IT IS ALSO STATED THAT THE EFFECT OF THE BILL WOULD BE TO PERMIT SUCH PERSONS DISCHARGED PRIOR TO THE 1946 DATE TO COUNT ACTIVE SERVICE IN THE ARMY FOR THE PURPOSES OF TRANSFER TO THE FLEET RESERVE AND RETIREMENT UNDER THE 20-YEAR NAVY STATUTE. SINCE AUGUST 10, 1946, ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS HAVE BEEN ABLE TO CREDIT THEIR ACTIVE DUTY PERFORMED IN OTHER SERVICES TOWARDS THE COMPUTATION OF TIME REQUIRED FOR TRANSFER TO THE FLEET RESERVE AND LATER ENTITLEMENT TO RETIRED PAY.

UNDER THE PROVISIONS OF SECTION ONE OF THE ACT OF JULY 24, 1956, 70 STAT. 626, THE SECRETARY OF THE NAVY IS AUTHORIZED TO "APPOINT," UPON APPLICATION BY ANY FORMER MEMBER OF THE NAVY OR MARINE CORPS, SUCH FORMER MEMBERS IN THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE WHO (1) WAS ,DISCHARGED" PRIOR TO AUGUST 10, 1946, UNDER HONORABLE CONDITIONS, AND (2) AT THE TIME OF HIS ,DISCHARGE" HAD AT LEAST 20 YEARS' ACTIVE FEDERAL SERVICE. IT WAS NOT UNTIL AUGUST 10, 1946, THAT ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS COULD COUNT ACTIVE SERVICE IN THE ARMY AS CONSTITUTING ACTIVE FEDERAL SERVICE FOR TRANSFER PURPOSES TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE. SEE SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, WHICH AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179. GENERALLY, WHILE OFFICER SERVICE IS CREDITABLE FOR TRANSFER PURPOSES TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, IT SEEMS THAT A PREREQUISITE OF SUCH TRANSFER IS THAT THE MEMBER HAVE AN ENLISTED STATUS AT THE TIME OF TRANSFER (SEE SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AND SECTION 2 OF THE ACT OF AUGUST 10, 1946), 10 U.S.C. 6331. WHILE THE TERM "FORMER MEMBER" OF THE NAVY OR THE MARINE CORPS, AS USED IN THE ACT OF JULY 24, 1956, COULD BE LITERALLY CONSTRUED TO INCLUDE EITHER OFFICER OR ENLISTED MAN, SINCE SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 RELATES SOLELY TO ENLISTED MEN, IT SEEMS TO US THAT THE USE OF THE TERM "DISCHARGE" THROUGHOUT THE ACT, COUPLED WITH ITS LEGISLATIVE HISTORY, CONTEMPLATES THAT THE FORMER MEMBER HAVE AN ENLISTED STATUS "AT THE TIME OF HIS DISCHARGE" AND THAT HE HAVE AT THAT TIME "AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE.' IT DOES NOT APPEAR THAT THE CONGRESS INTENDED THAT THE 1956 ACT SHOULD GO ANY FURTHER THAN TO AUTHORIZE FOR FORMER MEMBERS OF THE NAVY AND MARINE CORPS DISCHARGED PRIOR TO AUGUST 10, 1946, WHAT THE 1946 ACT AUTHORIZED AFTER THAT DATE. IT IS OUR VIEW THAT A RESIGNATION OF A COMMISSION BY AN OFFICER IS NOT A "DISCHARGE," WITHIN THE MEANING OF THE 1956 ACT FOR THE PURPOSES OF APPOINTING SUCH A MEMBER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE. IT APPEARS FROM THE INFORMATION FURNISHED THAT WHILE STEIMER WAS SERVING AS A TEMPORARY FIRST LIEUTENANT, DURING WHICH TIME HE ALSO HELD A PERMANENT ENLISTED STATUS AS MASTER SERGEANT, HE ACCEPTED A PERMANENT APPOINTMENT AS A WARRANT OFFICER (PAY CLERK) ON AUGUST 11, 1943. ON THAT DATE, IT IS REPORTED THAT HE HAD NOT COMPLETED 20 YEARS' ACTIVE FEDERAL SERVICE. WHILE HE WAS NOT OFFICIALLY DISCHARGED FROM HIS ENLISTED STATUS UNTIL APRIL 15, 1944--- AT WHICH TIME HE WOULD HAVE COMPLETED 20 YEARS AND 1 MONTH ACTIVE FEDERAL SERVICE--- WE KNOW OF NO AUTHORITY WHICH WOULD HAVE THE EFFECT OF CONTINUING HIS ENLISTED STATUS BEYOND THE DATE OF HIS ACCEPTANCE OF HIS PERMANENT APPOINTMENT AS WARRANT OFFICER. IN 25 COMP. GEN. 241, CITED BY YOU, THERE WAS CONSIDERED THE PROVISION OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853B,"PROVIDING * * * THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.' THAT PROVISION HAS NO APPLICATION HERE, SINCE THE PRESENT CASE DEALS WITH THE HOLDING OF TWO PERMANENT STATUSES IN THE REGULAR MARINE CORPS. IN THAT CONNECTION, SEE COMPILATION OF COURT MARTIAL ORDERS, 1916-1937, VOLUME 1, AT PAGE 1038, HOLDING THAT:

IN THE OPINION OF THE NAVY DEPARTMENT WHENEVER AN ENLISTED MAN OF THE REGULAR NAVY RECEIVES A PERMANENT APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR NAVY, SAID PERMANENT APPOINTMENT OPERATES TO DISCHARGE HIM FROM HIS ENLISTED STATUS UNDER HONORABLE CONDITIONS. IN THIS CONNECTION ATTENTION IS INVITED TO A DECISION OF THE COMPTROLLER OF THE TREASURY, JUNE 24, 1903, SUPPLIES AND ACCOUNTS MEMORANDUM (VOL. 1, PP. 222, 224), IN WHICH IT WAS HELD THAT MILITARY SERVICE IS DIVIDED INTO TWO DISTINCT BRANCHES, THE COMMISSIONED OFFICERS AND ENLISTED MEN, AND SERVICE IN THE ONE IS INCOMPATIBLE WITH SERVICE IN THE OTHER ( FILE: MM/P14-5/P19-1 (260806) J, AUGUST 24, 1926).

IT WAS ALSO HELD IN 6 DIG. OPS., WARRANT AND FLIGHT OFFICERS, SECTION 15.1, AT PAGE 562, THAT UNLESS AUTHORIZED BY STATUTE TO CONTINUE, A REGULAR ARMY WARRANT OFFICER'S STATUS AS A WARRANT OFFICER IS VACATED UPON HIS ACCEPTANCE OF A REGULAR ARMY COMMISSION.

IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT STEIMER'S PERMANENT ENLISTED STATUS TERMINATED ON AUGUST 11, 1943. SINCE AT THAT TIME HE HAD NOT COMPLETED 20 YEARS OF ACTIVE FEDERAL SERVICE AND SINCE THEREAFTER HE HAD NO ENLISTED STATUS, IT IS OUR VIEW THAT CAPTAIN STEIMER'S CASE DOES NOT FALL WITHIN THE PURVIEW OF THE ACT OF JULY 24, 1956, FOR THE PURPOSES OF APPOINTING HIM TO THE FLEET MARINE CORPS RESERVE AND SUBSEQUENT TRANSFER TO THE RETIRED LIST. THE MATTER IS TOO DOUBTFUL FOR US TO APPROVE RETIRED PAY IN CAPTAIN STEIMER'S CASE.

ACCORDINGLY, THE PROPOSED PAYMENT IS NOT AUTHORIZED AND THE PAPERS SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.