B-144724, FEBRUARY 14, 1961, 40 COMP. GEN. 460

B-144724, FEBRUARY 14, 1961, 40 COMP. GEN. 460

MILITARY PERSONNEL - DEBT REMISSION AUTHORITY - NAVY ENLISTED MEMBERS HOLDING TEMPORARY OFFICER COMMISSIONS TO DENY TO ENLISTED MEMBERS OF THE NAVY, WHO ARE GIVEN TEMPORARY APPOINTMENTS AS LIMITED DUTY OFFICERS, DEBT REMISSION BENEFITS APPLICABLE TO ENLISTED PERSONNEL WHILE THEY ARE HOLDING SUCH TEMPORARY OFFICER COMMISSIONS WOULD "ABRIDGE THEIR RIGHTS OR BENEFITS" AS ENLISTED MEMBERS CONTRARY TO THE SPECIFIC PROTECTION GRANTED SUCH MEMBERS UNDER 10 U.S.C 5596 WHILE THEY ARE IN A DUAL OFFICER-ENLISTED STATUS; THEREFORE, IT IS PROPER FOR THE SECRETARY OF THE NAVY UNDER 10 U.S.C. 6161 TO REMIT DEBTS INCURRED BY NAVY MEMBERS EITHER DURING THEIR ENLISTED OR TEMPORARY OFFICER STATUS AND NOTWITHSTANDING THAT THE MEMBERS ARE SERVING AS TEMPORARY OFFICERS.

TO THE SECRETARY OF THE NAVY, FEBRUARY 14, 1961:

REFERENCE IS MADE TO LETTER DATED DECEMBER 27, 1960, FROM THE FORMER ASSISTANT SECRETARY OF THE NAVY (1PERSONNEL AND RESERVE FORCES) REQUESTING DECISION ON CERTAIN QUESTIONS CONCERNING THE APPLICABILITY OF 10 U.S.C. 6161--- WHICH AUTHORIZES THE SECRETARY OF THE NAVY, IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, TO REMIT OR CANCEL ANY PART OF AN ENLISTED MEMBER'S INDEBTEDNESS TO THE GOVERNMENT- - TO A MEMBER HOLDING A LIMITED DUTY OFFICER (TEMPORARY) COMMISSION UNDER THE APPOINTIVE AUTHORITY CONTAINED IN 10 U.S.C. 5596. THE SUBMISSION HAD BEEN ASSIGNED NO. SS-N- 550 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE LETTER INDICATES THAT SINCE 10 U.S.C. 5596 PROVIDES THAT "TEMPORARY APPOINTMENTS UNDER THIS SECTION DO NOT CHANGE THE PERMANENT, PROBATIONARY, OR ACTING STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS," ENLISTED MEMBERS WHO ARE TEMPORARY APPOINTED UNDER THE LIMITED DUTY OFFICER (1TEMPORARY) PROGRAM CONTINUE TO HOLD THEIR ENLISTED STATUS. THE QUESTIONS ARE AS FOLLOWS:

MAY THE SECRETARY OF THE NAVY REMIT THE INDEBTEDNESS TO THE UNITED STATES OF A MEMBER IN LDO (T) CATEGORY WHICH WAS INCURRED WHILE HE WAS SERVING IN HIS ENLISTED GRADE? COULD AN INDEBTEDNESS INCURRED AS A PERMANENT ENLISTED MEMBER WHILE SERVING AS AN LDO (T) BE REMITTED?

PUBLIC LAW 86-511, APPROVED JUNE 11, 1960, 74 STAT. 207, 10 U.S.C. 6161, AMENDED CHAPTER 561 OF TITLE 10, U.S. CODE, TO PROVIDE THAT THE SECRETARY OF THE NAVY SHALL HAVE THE SAME AUTHORITY TO REMIT INDEBTEDNESS OF ENLISTED MEMBERS AS THE SECRETARIES OF THE ARMY AND THE AIR FORCE HAVE, AS FOLLOWS:

IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, THE SECRETARY OF THE NAVY MAY HAVE REMITTED OR CANCELED ANY PART OF AN ENLISTED MEMBER'S INDEBTEDNESS TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES REMAINING UNPAID BEFORE, OR AT THE TIME OF, THAT MEMBER'S HONORABLE DISCHARGE.

THE REMISSION AND CANCELLATION OF DEBTS DUE THE UNITED STATES BY ARMY ENLISTED MEN UPON HONORABLE DISCHARGE WAS AUTHORIZED BY THE ACT OF MAY 22, 1928, 45 STAT. 698, 10 U.S.C. 875A. 39 COMP. GEN. 415. THAT ACT WAS AMENDED BY THE ACT OF JUNE 26, 1934, 48 STAT. 1222, NOW CODIFIED IN 10 U.S.C. 4837 (1ARMY) AND 10 U.S.C. 9837 (1AIR FORCE), SO AS TO PERMIT DEBT REMISSION OR CANCELLATION EITHER AT THE TIME OF DISCHARGE OR PRIOR THERETO.

SECTION 5596 OF TITLE 10 OF THE U.S.C. AUTHORIZES TEMPORARY APPOINTMENTS OF ENLISTED MEMBERS AS OFFICERS AND PROVIDES THAT SUCH TEMPORARY APPOINTMENTS WILL NOT CHANGE THEIR STATUS AS ENLISTED MEMBERS "OR ABRIDGE THEIR RIGHTS OR BENEFITS.' THE SAME PROVISIONS WERE CONTAINED IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, 55 STAT 604, 34 U.S.C. 350F (1952 USED.), AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS. WE HELD IN 23 COMP. GEN. 37 THAT THE PERIOD OF OFFICER SERVICE WHILE A NAVY MEMBER HELD A DUAL OFFICER- ENLISTED STATUS UNDER THE 1941 NAVY TEMPORARY PROMOTION LAW WAS CREDITABLE IN DETERMINING THE AMOUNT OF THE REENLISTMENT ALLOWANCE (BASED UPON PAST SERVICE). THAT CONCLUSION WAS PREMISED ON THE SAVINGS PROVISION CONTAINED IN THE 1941 LAW CONCERNING THE PRESERVATION OF RIGHTS, BENEFITS AND PRIVILEGES INCIDENT TO ENLISTED STATUS. THE TEMPORARY APPOINTMENT OF AN ENLISTED MEMBER TO OFFICER STATUS CREATES A DUAL OFFICER-ENLISTED STATUS WHICH CONTINUES WHILE ON ACTIVE DUTY AND, UNLIKE RETIRED UNLISTED MEMBERS, SUCH MEMBERS DO HAVE AN ACTIVE STATUS FROM WHICH THEY HAVE NOT BEEN "DISCHARGED.' CF. 39 COMP. GEN. 415.

THE ACT OF JUNE 11, 1960, QUOTED ABOVE, ADDING SECTION 6161 TO TITLE 10 U.S. CODE, IS BENEFICIAL LEGISLATION AND AS SUCH IS TO BE LIBERALLY CONSTRUED. IN VIEW OF THE PROVISION THAT NAVAL ENLISTED MEMBERS' APPOINTMENTS AS OFFICERS DO NOT "ABRIDGE THEIR RIGHTS OR BENEFITS" AS ENLISTED MEMBERS, IT IS OUR VIEW THAT DEBTS INCURRED WHILE SERVING ON ACTIVE DUTY AS ENLISTED MEMBERS OF THE NAVY MAY BE REMITTED BY THE SECRETARY OF THE NAVY EVEN WHILE THE DEBTORS ARE SERVING AS TEMPORARY OFFICERS; OTHERWISE SUCH APPOINTMENTS WOULD ABRIDGE THEIR ENLISTED RIGHTS AND BENEFITS. FOR THE SAME REASON THE REMISSION AUTHORITY MAY BE APPLIED TO DEBTS INCURRED BY ENLISTED MEMBERS WHILE SERVING AS TEMPORARY OFFICERS UNDER 10 U.S.C. 5596.