B-143113, JUL. 19, 1960

B-143113, JUL. 19, 1960

TO CAPTAIN DOORN D. CHRISTIAN, QMC:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1959, REQUESTING THAT YOU BE RELIEVED OF AN INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $359.82 ARISING FROM OVERPAYMENTS OF LONGEVITY PAY FOR THE PERIOD NOVEMBER 16, 1951, TO JUNE 30, 1957. YOUR LETTER WILL BE CONSIDERED AS A CLAIM FOR THE AMOUNT COLLECTED FROM YOU IN LIQUIDATION OF SUCH INDEBTEDNESS.

THE RECORD SHOWS THAT YOU ENLISTED IN THE UNITED STATES NAVAL RESERVE ON MAY 3, 1945; THAT YOU WERE ON ACTIVE DUTY FROM MAY 28, 1945, TO JULY 23, 1946, AND REVERTED TO INACTIVE STATUS ON JULY 24, 1946; THAT YOU ENROLLED IN THE RESERVE OFFICERS' TRAINING CORPS PROGRAM AT THE UNIVERSITY OF DENVER ON SEPTEMBER 24, 1950; THAT ON MARCH 1, 1951, YOU WERE DISCHARGED FROM THE NAVAL RESERVE THE DISCHARGE PURPORTING TO BE EFFECTIVE SEPTEMBER 24, 1950, AND THAT YOU WERE COMMISSIONED A SECOND LIEUTENANT, UNITED STATES ARMY ON JULY 27, 1951. FOR LONGEVITY PAY PURPOSES THE DEPARTMENT OF THE ARMY INITIALLY CREDITED YOU WITH NAVAL RESERVE SERVICE FROM MAY 3, 1945, THROUGH JULY 26, 1951. HOWEVER, AT A LATER DATE IT WAS DETERMINED THAT YOU WERE NOT ENTITLED TO CREDIT FOR NAVAL RESERVE SERVICE FROM SEPTEMBER 24, 1950, TO JULY 26, 1951, AND YOUR ACCOUNT WAS CHARGED WITH OVERPAYMENTS OF PAY RESULTING FROM CREDIT FOR THAT PERIOD. IT IS REPORTED THAT THE DEBT SCHEDULE ESTABLISHED TO LIQUIDATE THE OVERPAYMENT OF $359.82 PROVIDED FOR A DEDUCTION FROM YOUR PAY OF $30 PER MONTH; THAT COLLECTION OF $240 WAS EFFECTED THROUGH MAY 31, 1959; THAT THE OVERPAYMENT HAD BEEN INCREASED TO $501.62 TO COVER THE PERIOD THROUGH JUNE 30, 1958, AND THAT THE ADDITIONAL OVERPAYMENT HAD NOT BEEN ENTERED FOR COLLECTION. ON THE BASIS OF THE SCHEDULED COLLECTION RATE IT WOULD APPEAR THAT THERE HAS BEEN WITHHELD FROM YOUR PAY THE SUM ($359.82) ENTERED FOR COLLECTION.

PARAGRAPH 19A, ARMY REGULATIONS 145-350, IN EFFECT AT THE TIME INVOLVED, PROVIDES THAT IN THE SENIOR DIVISION OF THE RESERVE OFFICERS' TRAINING CORPS PROGRAM BOTH THE BASIC COURSE AND THE ADVANCED COURSE ARE OF TWO YEARS' DURATION EXCEPT THAT THE ADVANCED COURSE MAY BE CURTAILED IN CERTAIN INSTANCES. PARAGRAPH 20B (1) OF THE SAME REGULATIONS PROVIDES THAT THE ADVANCED COURSE MAY BE CURTAILED WHEN THE STUDENT WILL BE ELIGIBLE FOR GRADUATION IN LESS THAN TWO ACADEMIC YEARS. THUS, IT WOULD APPEAR THAT YOU WERE ENROLLED IN THE ADVANCED COURSE. PARAGRAPH 17E, ARMY REGULATIONS 145-350, PROVIDES THAT ENLISTED MEMBERS THE NAVAL RESERVE SHOULD NOT BE FORMALLY ENROLLED IN THE ADVANCED COURSE OF THE SENIOR DIVISION UNLESS SEPARATED FROM THEIR RESERVE STATUS. SECTION FOUR OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1172, ALSO IN EFFECT AT THE TIME OF YOUR ENROLLMENT IN THE ROTC, PROVIDED THAT NO MEMBER OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA. ARTICLE H-6209, BUREAU OF NAVAL PERSONNEL MANUAL, IN EFFECT AT THE TIME, AUTHORIZED THE DISCHARGE OF ENLISTED RESERVISTS DESIRING TO ENLIST OR ACCEPT APPOINTMENT IN THE ARMY, NAVY, MARINE CORPS OR COAST GUARD. YOUR DISCHARGE WAS EFFECTED UNDER THAT PROVISION.

WHETHER OR NOT THE PROHIBITION CONTAINED IN SECTION FOUR OF THE NAVAL RESERVE ACT OF 1938 APPLIED TO THE ENROLLMENT BY AN ENLISTED MEMBER OF THE NAVAL RESERVE IN THE RESERVE OFFICERS' TRAINING CORPS PROGRAM, IT SEEMS CLEAR THAT YOUR ENROLLMENT DID NOT HAVE THE EFFECT, IN AND OF ITSELF, OF TERMINATING YOUR MEMBERSHIP IN THE NAVAL RESERVE AND RELIEVING YOU OF ANY OBLIGATION THAT MIGHT HAVE BEEN IMPOSED ON YOU BY REASON OF YOUR RESERVE STATUS. WHILE YOUR DISCHARGE DATED MARCH 1, 1951, PURPORTEDLY WAS EFFECTIVE SEPTEMBER 24, 1950, SINCE YOU ACTUALLY WERE IN THE NAVAL RESERVE FOR THE PERIOD SEPTEMBER 24, 1950, TO MARCH 1, 1951, IT IS CONSIDERED THAT YOU WERE A DE JURE MEMBER OF THAT ORGANIZATION DURING THAT PERIOD. THEREFORE, YOU ARE ENTITLED TO HAVE THAT PERIOD CONSIDERED AS NAVAL RESERVE SERVICE IN COMPUTING YOUR SERVICE FOR BASIC PAY PURPOSES. SEE 31 COMP. GEN. 3, AND PRECEDENTS CITED THEREIN. THERE IS, OF COURSE, NO LEGAL BASIS FOR CREDITING YOU WITH NAVAL RESERVE SERVICE SUBSEQUENT TO YOUR DISCHARGE.

ACCORDINGLY, YOUR BASIC PAY FOR THE PERIOD JULY 27, 1951, TO JUNE 30, 1958, WILL BE RECOMPUTED ON THE BASIS INDICATED ABOVE AND IF THE ACTUAL OVERPAYMENT WAS LESS THAN THE AMOUNT THAT HAS BEEN COLLECTED FROM YOU A SETTLEMENT FOR THE AMOUNT DUE WILL BE ISSUED IN YOUR FAVOR IN DUE COURSE BY OUR CLAIMS DIVISION. IT IS PRESUMED THAT ANY ADJUSTMENT THAT MAY BE INDICATED IN YOUR ACCOUNT FOR THE PERIOD SUBSEQUENT TO JUNE 30, 1958, WILL BE EFFECTED BY THE DISBURSING OFFICER HANDLING YOUR ACCOUNT UPON PRESENTATION OF THIS DECISION.