B-142506, NOVEMBER 27, 1961, 41 COMP. GEN. 331

B-142506, NOVEMBER 27, 1961, 41 COMP. GEN. 331

MILITARY PERSONNEL - TRANSFERS BETWEEN SERVICES - INTERSERVICE AUTHORITY -- TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DISLOCATION ALLOWANCE - TRANSFERS - BETWEEN SERVICES ALTHOUGH AN INTERSERVICE TRANSFER OF AN OFFICER FROM ONE MILITARY SERVICE TO ANOTHER IS ACCOMPLISHED BY A RESIGNATION WHICH OPERATES TO TERMINATE THE MEMBER'S SERVICE IN THAT ORGANIZATION AND BY AN IMMEDIATE APPOINTMENT IN THE NEW SERVICE, THE INTERSERVICE TRANSFER AUTHORITY VESTED IN THE PRESIDENT UNDER 10 U.S.C. 716 IS BROAD ENOUGH TO AUTHORIZE SUCH TRANSFERS WITHOUT INTERRUPTION OF UNIFORMED SERVICE MEMBERSHIP, OR LOSS OF PAY AND ALLOWANCES, OR OTHER MILITARY BENEFITS; THEREFORE, AN INTERSERVICE TRANSFER OF AN OFFICER FROM THE MARINE CORPS TO THE NAVAL RESERVE UNDER 10 U.S.C. 716 WILL NOT BE REGARDED AS TERMINATING THE OFFICER'S MEMBERSHIP IN THE UNIFORMED SERVICES AT ANY TIME DURING THE TRANSFER. A MARINE CORP OFFICER WHO, INCIDENT TO A TRANSFER TO THE NAVAL RESERVE UNDER THE INTERSERVICE TRANSFER AUTHORITY IN 10 U.S.C. 716, AND AN ORDERED PERMANENT CHANGE OF STATION, MOVES HIS DEPENDENTS FROM THE OLD PERMANENT STATION TO THE NEW MAY HAVE THE TRANSFER VIEWED AS INVOLVING TWO PERIODS OF SERVICE RATHER THAN AS A TERMINATION AND A NEW APPOINTMENT; THEREFORE, THE DEPENDENT MOVE IS NOT REGARDED AS INCIDENT TO TRAVEL FROM THE PLACE TO WHICH THE MEMBER WAS ORDERED TO DUTY TO THE FIRST DUTY STATION SO AS TO PRECLUDE RECEIPT OF A DISLOCATION ALLOWANCE BUT COMES UNDER PARAGRAPH 9003 -5 OF THE JOINT TRAVEL REGULATIONS WHICH CONTEMPLATES A DISLOCATION ALLOWANCE PAYMENT WHEN DEPENDENTS MOVE INCIDENT TO TRAVEL FROM THE LAST DUTY STATION IN ONE PERIOD OF SERVICE TO THE FIRST DUTY STATION IN ANOTHER PERIOD OF SERVICE UNDER PERMANENT CHANGE OF STATION ALLOWANCES.

TO THE SECRETARY OF THE NAVY, NOVEMBER 27, 1961:

REFERENCE IS MADE TO LETTER OF OCTOBER 10, 1961, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING FURTHER CONSIDERATION OF DECISION B 142506 OF MAY 16, 1960, WHICH DENIED AUTHORIZATION FOR PAYMENT OF A DISLOCATION ALLOWANCE TO LIEUTENANT HERBERT J. SCHNELL, JR., USN, FOR MOVEMENT OF HIS DEPENDENTS ON A PERMANENT CHANGE OF STATION FOLLOWING HIS TRANSFER FROM THE U.S. MARINE CORPS TO THE U.S. NAVAL RESERVE. THE REQUEST WAS ASSIGNED CONTROL NO. 61-15 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND NO SS-N-608 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN SUBMITTING THIS CASE TO US ORIGINALLY IT WAS REPORTED THAT THE OFFICER, A CAPTAIN, UNITED STATES MARINE CORPS RESERVE, ON DUTY AT MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, HAD REQUESTED AN INTERSERVICE TRANSFER FROM THE MARINE CORPS TO THE UNITED STATES NAVAL RESERVE. AS THE RESULT OF THIS REQUEST HE WAS TENDERED AN APPOINTMENT AS LIEUTENANT (JG) (PERMANENT) AND LIEUTENANT (TEMPORARY), U.S. NAVAL RESERVE, AND ADVISED THAT HIS RESIGNATION AS A MARINE CORPS OFFICER HAD BEEN ACCEPTED TO BE EFFECTIVE THE DATE PRECEDING THAT ON WHICH THE APPOINTMENT WOULD BE EXECUTED. HE WAS SEPARATED FROM THE MARINE CORPS SEPTEMBER 29, 1959, ACCEPTED HIS NAVAL RESERVE APPOINTMENT ON SEPTEMBER 30, 1959, AND BY ORDERS RECEIVED ON THAT DATE HE WAS ORDERED TO ACTIVE DUTY AT U.S. NAVAL AIR STATION, MIRAMAR, CALIFORNIA. SINCE NO QUESTION OF DUAL MEMBERSHIP COULD BE INVOLVED AND AN ACCEPTED RESIGNATION CLEARLY TERMINATES ALL CONNECTION WITH THE SERVICE INVOLVED, WE NECESSARILY HELD ON THAT PRESENTATION THAT SCHNELL'S SERVICE AS A MEMBER OF THE UNIFORMED SERVICES WAS TERMINATED UPON ACCEPTANCE OF HIS RESIGNATION FROM THE MARINE CORPS AND, THEREFORE, THAT PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO HIS ORDERS TO DUTY UNDER HIS NAVAL RESERVE APPOINTMENT WAS PROHIBITED BY PARAGRAPH 9003-3 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO TRAVEL PERFORMED FROM THE PLACE TO WHICH ORDERED TO DUTY TO FIRST DUTY STATION.

IN THE UNDER SECRETARY'S LETTER IT IS STATED THAT 10 U.S.C. 716 PROVIDES FOR INTERSERVICE TRANSFER OF OFFICERS AND REQUIRES THE SECRETARY OF DEFENSE TO ESTABLISH, BY REGULATIONS APPROVED BY THE PRESIDENT, POLICIES AND PROCEDURES FOR SUCH TRANSFERS. HE REFERS TO PARAGRAPH IV.C, DEPARTMENT OF DEFENSE DIRECTIVE 1300.5 DATED JANUARY 16, 1959 (THE STATUTORY REGULATIONS), WHICH PROVIDES THAT TERMINATION OF PRESENTLY HELD COMMISSIONS AND REAPPOINTMENT IN ANOTHER SERVICE WILL BE ACCOMPLISHED BY THE TWO SERVICES AFFECTED WITHOUT INTERRUPTION OF THE CONTINUITY OF THE OFFICER'S ACTIVE DUTY AND SAYS THAT PURSUANT TO THAT POLICY, LIEUTENANT SCHNELL RECEIVED PAY FOR SEPTEMBER 29, 1959, FROM THE MARINE CORPS AND FOR SEPTEMBER 30, 1959, FROM THE NAVY. ACCORDINGLY, THE UNDER SECRETARY ASKS:

1. WAS LIEUTENANT SCHNELL'S SERVICE AS A MEMBER OF THE UNIFORMED SERVICES TERMINATED AT ANY POINT DURING HIS INTERSERVICE TRANSFER?

2. IF THE ANSWER TO 1 IS IN THE NEGATIVE, CAN DISLOCATION ALLOWANCES BE PAID TO OFFICERS WHO RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH AN ORDERED PERMANENT CHANGE OF STATION ARISING FROM AN INTERSERVICE TRANSFER?

IF THE ANSWER TO QUESTION ONE IS AFFIRMATIVE THE UNDER SECRETARY REQUESTS ADVICE AS TO FOUR ADDITIONAL QUESTIONS AS FOLLOWS:

3. CAN LIEUTENANT SCHNELL BE PAID A DISLOCATION ALLOWANCE UPON A CHANGE OF RECORD BY THE BOARD FOR CORRECTION OF NAVAL RECORDS WHICH STATES THAT LIEUTENANT SCHNELL'S SERVICE AS A MEMBER OF THE UNIFORMED SERVICES WAS NOT TERMINATED DURING THE INTERSERVICE TRANSFER PROCEDURE?

4. CAN A CHANGE TO THE JOINT TRAVEL REGULATIONS BE PROMULGATED WHICH WOULD EXTEND ELIGIBILITY FOR PAYMENT OF A DISLOCATION ALLOWANCE TO OFFICERS WHOSE INTERSERVICE TRANSFER IS EFFECTED UNDER THE AUTHORITY OF 10 U.S.C. 716 AND WHO RELOCATE THEIR HOUSEHOLD DURING AN ORDERED PERMANENT CHANGE OF STATION ARISING FROM SUCH TRANSFER?

5. IN THE ABSENCE OF ANY OTHER POSSIBILITY OF PAYMENT OF A DISLOCATION ALLOWANCE UPON THE OCCASION OF LIEUTENANT SCHNELL'S INTERSERVICE TRANSFER, CAN HE BE PAID A LUMP SUM PAYMENT FOR ANY UNUSED LEAVE HE HAD ACCUMULATED DURING HIS SERVICE IN THE MARINE CORPS IN ACCORDANCE WITH PROVISIONS OF PARAGRAPH 1044170 NAVY COMPTROLLER MANUAL? (SEE PARAGRAPH IV.E. DOD DIRECTIVE 1300.5 OF 16 JANUARY 1959.)

6. WHAT CHANGES IN PROCEDURES EFFECTING AN INTERSERVICE TRANSFER UNDER 10 U.S.C. 716, IF ANY, ARE NECESSARY TO INSURE THAT THE TRANSFEREE'S SERVICE AS A MEMBER OF THE UNIFORMED SERVICE IS NOT TERMINATED DURING TRANSFER?

SECTION 716 OF TITLE 10 OF THE U.S.C. PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE PRESIDENT MAY, WITHIN AUTHORIZED STRENGTHS, TRANSFER ANY COMMISSIONED OFFICER WITH HIS CONSENT FROM THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS TO, AND APPOINT HIM IN, ANY OTHER OF THOSE ARMED FORCES. THE SECRETARY OF DEFENSE SHALL ESTABLISH BY REGULATIONS APPROVED BY THE PRESIDENT, POLICIES AND PROCEDURES FOR SUCH TRANSFERS AND APPOINTMENTS. NO OFFICER TRANSFERRED PURSUANT TO THIS AUTHORITY SHALL BE ASSIGNED PRECEDENT OR RELATIVE RANK HIGHER THAN THAT WHICH HE HELD ON THE DAY PRIOR TO SUCH TRANSFER.

IN THIS REGARD, IN ADDITION TO THE PROVISIONS OF PARAGRAPH IV.C, PARAGRAPH IV.E, DEPARTMENT OF DEFENSE DIRECTIVE 1300.5 PROVIDES THAT AN OFFICER TRANSFERRED FROM ONE SERVICE TO ANOTHER WILL BE CREDITED WITH THE UNUSED LEAVE TO HIS CREDIT AT THE TIME OF TRANSFER, AND WITH THE TOTAL MILITARY SERVICE WITH WHICH HE WAS CREDITED ON THE DATE PRIOR TO HIS TRANSFER.

SECTION 716 OF TITLE 10 OF THE U.S.C. WAS ENACTED AS A PART OF THE DEPARTMENT OF DEFENSE REORGANIZATION ACT OF 1958, 72 STAT. 514, 50 U.S.C. 401, AND WHILE ORDINARILY THE ACCEPTANCE OF A MEMBER'S RESIGNATION FROM A MILITARY SERVICE OPERATES TO TERMINATE HIS SERVICE AS A MEMBER OF THE UNIFORMED SERVICES, EVEN THOUGH FOLLOWED BY IMMEDIATE REENTRY INTO THE SAME OR A DIFFERENT MILITARY SERVICE, THE PURPOSES OF THAT ACT, AS STATED IN SECTION TWO, AND ITS LEGISLATIVE HISTORY, SUPPORT A CONCLUSION THAT THE INTERSERVICE TRANSFER AUTHORITY VESTED IN THE PRESIDENT BY 10 U.S.C. 716 IS BROAD ENOUGH TO AUTHORIZE SUCH TRANSFERS WITHOUT INTERRUPTION OF UNIFORMED SERVICE MEMBERSHIP, OR THE LOSS OF PAY AND ALLOWANCES OR OTHER MILITARY BENEFITS, NOTWITHSTANDING THE MECHANICS OF EFFECTING THE TRANSFER INVOLVE A RESIGNATION FROM ONE SERVICE AND AN APPOINTMENT IN THE NEW SERVICE. CF. 22 COMP. GEN. 873. ACCORDINGLY, BASED ON THE UNDER SECRETARY'S PREMISE AS WE UNDERSTAND IT THAT THE OFFICER'S INTERSERVICE TRANSFER WAS EFFECTED PURSUANT TO 10 U.S.C. 716, QUESTION ONE IS ANSWERED IN THE NEGATIVE.

WE AGREE WITH THE UNDER SECRETARY'S SUGGESTION THAT THE SITUATION OF OFFICERS TRANSFERRED FROM ONE MILITARY SERVICE TO ANOTHER PURSUANT TO 10 U.S.C. 716 MAY BE VIEWED AS INVOLVING TWO PERIODS OF SERVICE IN THE UNIFORMED SERVICES AND PARAGRAPH 9003-5 OF THE JOINT TRAVEL REGULATIONS CONTEMPLATES PAYMENT OF DISLOCATION ALLOWANCE WHEN TRAVEL IS PERFORMED FROM THE LAST DUTY STATION IN ONE PERIOD OF SERVICE TO FIRST DUTY STATION IN ANOTHER PERIOD OF SERVICE INCIDENT TO AN ORDERED PERMANENT CHANGE OF STATION BETWEEN THOSE STATIONS. ACCORDINGLY, QUESTION TWO IS ANSWERED IN THE AFFIRMATIVE TO THE EXTENT THAT THE INTERSERVICE TRANSFER IS EFFECTED PURSUANT TO 10 U.S.C. 716, AND IF OTHERWISE PROPER, LIEUTENANT SCHNELL MAY BE PAID A DISLOCATION ALLOWANCE INCIDENT TO HIS INTERSERVICE TRANSFER PERMANENT CHANGE OF STATION. HOWEVER, IN CASES, IF ANY, WHERE THE INTERSERVICE TRANSFER IS NOT EFFECTED PURSUANT TO 10 U.S.C. 716, OR SIMILAR STATUTORY PROVISIONS, THE DECISION OF MAY 16, 1960, WOULD BE FOR APPLICATION.

SINCE QUESTION ONE AS WE UNDERSTAND IT RELATES ONLY TO TRANSFERS PURSUANT TO 10 U.S.C. 716 AND IS ANSWERED IN THE NEGATIVE, NO REPLY APPEARS REQUIRED TO QUESTIONS THREE TO SIX.