B-144727, JANUARY 25, 1961, 40 COMP. GEN. 428

B-144727, JANUARY 25, 1961, 40 COMP. GEN. 428

MILITARY PERSONNEL - NAVAL RESERVE - DUAL ENLISTMENTS IN DIFFERENT SERVICES ALTHOUGH AN ENLISTMENT IN THE NAVAL RESERVE PRIOR TO DISCHARGE FROM AN ARMY ENLISTMENT WAS IN VIOLATION OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, WHICH PROVIDED THAT NO MEMBER OF THE NAVAL RESERVE SHOULD BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA, THE MEMBER'S ACTION, AFTER HIS DISCHARGE FROM THE ARMY, IN NOTIFYING THE COMMANDANT OF THE NAVAL DISTRICT CONCERNED OF HIS CHANGE OF ADDRESS AND HIS SUBSEQUENT TOUR OF ACTIVE DUTY IN THE NAVAL RESERVE MAY BE CONSTRUED AS A RATIFICATION BY THE MEMBER OF HIS ENLISTMENT CONTRACT AS OF THE DATE OF NOTIFICATION OF CHANGE OF ADDRESS, AND, THEREFORE, THE MEMBER MAY BE CREDITED FOR LONGEVITY PAY PURPOSES WITH SERVICE AS AN ENLISTED MEMBER OF THE NAVAL RESERVE FROM AND AFTER THE DATE OF SUCH NOTIFICATION.

TO THE SECRETARY OF THE NAVY, JANUARY 25, 1961:

REFERENCE IS MADE TO LETTER OF DECEMBER 28, 1960, FROM THE FORMER ASSISTANT SECRETARY OF THE NAVY (1PERSONNEL AND RESERVE FORCES) REQUESTING DECISION WHETHER AN ENLISTED MEMBER SERVING IN THE ARMY OR IN THE AIR FORCE, WHO ENTERS INTO AN ENLISTMENT IN THE NAVAL RESERVE PRIOR TO HIS DISCHARGE FROM THE OTHER SERVICE, MAY COUNT FOR LONGEVITY PAY PURPOSES THE TIME INTERVENING BETWEEN HIS ARMY OR AIR FORCE DISCHARGE AND UNTIL HIS INTENT TO PARTICIPATE IN THE NAVAL RESERVE PROGRAM IS SHOWN. IT IS STATED THAT, SINCE SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853B (1946 USED.), CONTAINS THE PROHIBITION AGAINST NAVAL RESERVISTS BEING MEMBERS OF ANOTHER MILITARY ORGANIZATION, IT IS QUESTIONED WHETHER AN ENLISTMENT CONTRACT IN THE NAVAL RESERVE WHICH WAS ENTERED INTO WHILE SERVING IN ANOTHER BRANCH OF THE MILITARY SERVICE IS A VALID CONTRACT. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N-549 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FOLLOWING ACTUAL CASE IS CITED TO PROVIDE SPECIFIC DETAILS AS TO THE TYPE OF SITUATION BEING ENCOUNTERED:

A MEMBER WHILE SERVING UNDER AN ENLISTMENT IN THE U.S. ARMY ENTERED INTO ON 11 MARCH 1946, REENLISTED IN THE NAVAL RESERVE ON 23 JULY 1947, PRIOR TO HIS DISCHARGE FROM THE ARMY ON 9 AUGUST 1947. UPON HIS REENLISTMENT IN THE NAVAL RESERVE HE WAS ORDERED TO INACTIVE DUTY. ON 3 AUGUST 1948, HE ADVISED THE COMMANDANT OF THE NAVAL DISTRICT OF HIS CHANGE OF ADDRESS, WHICH WAS CONSTRUED BY THE BUREAU OF NAVAL PERSONNEL AS INDICATING INTENT TO PARTICIPATE IN THE NAVAL RESERVE PROGRAM. ORDERS FOR HIS RECALL IN THE NAVY WERE ISSUED ON 13 OCTOBER 1950 AND HE REPORTED FOR ACTIVE DUTY ON 30 OCTOBER 1950. A STATEMENT OF SERVICE ISSUED BY THE BUREAU OF NAVAL PERSONNEL ON 23 JANUARY 1958 INCLUDES AS CREDITABLE SERVICE THE MEMBER'S ARMY SERVICE FOR THE PERIOD 11 MARCH 1946 TO 9 AUGUST 1947 AND NAVAL RESERVE SERVICE FOR THE PERIOD 3 AUGUST 1948 TO 8 JANUARY 1952. IT IS INDICATED THEREON THAT "1IN ACCORDANCE WITH PL 732-75TH CONGRESS AND 23 COMP. GEN. 173, THE PERIOD SUBSEQUENT TO 9 AUGUST 1947 AND PRIOR TO 3 AUGUST 1948 IS NOT CREDITABLE FOR BASIC PAY SINCE PERSON ENLISTED IN THE NAVAL RESERVE ON 27 JULY 1947 WHILE STILL A MEMBER OF THE ARMY. UNDER SUCH CIRCUMSTANCES SERVICE IN THE NAVAL RESERVE MAY NOT BE CREDITED FOR PAY PURPOSES UNTIL SUCH TIME AS INTENT TO PARTICIPATE IN THE RESERVE PROGRAM IS SHOWN. SUCH INTENT WAS NOT SHOWN UNTIL 3 AUGUST 1948 WHEN MEMBER INFORMED THE COMMANDANT OF THE EIGHTH NAVAL DISTRICT OF A CHANGE OF ADDRESS.'

THE REQUEST FOR DECISION CONTAINS THE FOLLOWING QUESTIONS:

IN THE ABOVE CASE, WHEN SHOULD THE MEMBER'S NAVAL RESERVE SERVICE BECOME EFFECTIVE AS CREDITABLE SERVICE FOR LONGEVITY PURPOSES:

A. COMMENCING THE DATE FOLLOWING MEMBER'S ARMY DISCHARGE ON 9 AUGUST 1947?

B. COMMENCING THE DATE HE SHOWED INTENT TO PARTICIPATE IN THE RESERVE PROGRAM? COULD SUCH INTENT BE EVIDENCED BY AN ACTION SUCH AS NOTIFICATION OF CHANGE OF ADDRESS, AS IN THE ABOVE CASE, OR WOULD ATTENDANCE AT DRILLS BE REQUIRED?

C. COMMENCING THE DATE HE REPORTED FOR ACTIVE DUTY IN THE NAVAL RESERVE, ON 30 OCTOBER 1950?

D. A DATE OTHER THAN ANY OF THE ABOVE?

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDED THAT NO MEMBER OF THE NAVAL RESERVE SHOULD BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA, AND SIMILAR PROVISION WAS MADE IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081. IT WAS HELD IN DECISION OF SEPTEMBER 6, 1943, 23 COMP. GEN. 173, THAT A NAVAL RESERVE OFFICER WHO ENLISTED IN THE NATIONAL GUARD, IN VIOLATION OF THE PROHIBITION IN THE NAVAL RESERVE ACT OF 1925 AGAINST MEMBERS OF THE NAVAL RESERVE BECOMING MEMBERS OF OTHER MILITARY ORGANIZATIONS, DID NOT BECOME THEREBY A DE JURE MEMBER OF THE NATIONAL GUARD AND THAT, THEREFORE, THE SUBSEQUENT TERMINATION OF HIS NAVAL RESERVE SERVICE DID NOT OPERATE TO ENTITLE HIM TO COUNT FOR LONGEVITY PAY PURPOSES SERVICE IN THE NATIONAL GUARD AFTER THE DATE OF TERMINATION OF HIS NAVAL RESERVE SERVICE UNLESS HE THEREAFTER RATIFIED OR AFFIRMED HIS ENLISTMENT IN THE NATIONAL GUARD. OTHER WORDS, IT WAS HELD THAT AFTER THE TERMINATION OF HIS NAVAL RESERVE SERVICE IT MUST BE ESTABLISHED THAT HE FORMALLY RATIFIED OR AFFIRMED SUCH ENLISTMENT CONTRACT OR THAT HE PERFORMED SOME AFFIRMATIVE ACT INDICATING HIS INTENTION TO RATIFY OR AFFIRM THAT CONTRACT.

THE DECISION OF SEPTEMBER 6, 1943, WAS AMPLIFIED BY DECISION OF SEPTEMBER 1, 1944, 24 COMP. GEN. 175, THE CASE THERE CONSIDERED BEING THAT OF THE IDENTICAL NAVAL RESERVE OFFICER MENTIONED ABOVE. IT WAS THERE SET FORTH THAT HIS COMMISSION IN THE NAVAL RESERVE FORCE WAS TERMINATED ON AUGUST 24, 1926; THAT HE ATTENDED THREE NATIONAL GUARD DRILLS DURING EACH OF THE MONTHS OF AUGUST AND SEPTEMBER 1926, AND TWO DRILLS DURING OCTOBER 1926; AND THAT HE WAS DISCHARGED FROM THE NATIONAL GUARD ON DECEMBER 8, 1926. IT WAS HELD THAT, IN THE CIRCUMSTANCES, THE ACT OF REMAINING IN THE NATIONAL GUARD, PERFORMING THE DUTIES REQUIRED AND RECEIVING PAY THEREFOR, SUBSEQUENT TO THE REMOVAL OF THE DISQUALIFICATION, SHOULD BE REGARDED AS TANTAMOUNT TO THE RATIFICATION OF HIS ENLISTMENT IN THE NATIONAL GUARD AFTER AUGUST 24, 1926; AND THAT, ON SUCH BASIS, HE WAS ENTITLED TO COUNT FOR LONGEVITY PAY PURPOSES SERVICE IN THE NATIONAL GUARD FROM AUGUST 25, 1926, TO DECEMBER 8, 1926.

IN THIS SPECIFIC CASE MENTIONED IN THE LETTER OF DECEMBER 28, 1960, IT APPEARS THAT ON AUGUST 3, 1948, THE MEMBER ADVISED THE COMMANDANT OF THE NAVAL DISTRICT OF HIS CHANGE OF ADDRESS AND SO FAR AS THE RECORD DISCLOSES PRIOR THERETO HE HAD PERFORMED NO AFFIRMATIVE ACT INDICATING HIS INTENTION TO RATIFY OR AFFIRM HIS ENLISTMENT CONTRACT IN THE NAVAL RESERVE. IT ALSO APPEARS THAT HE SERVED ON ACTIVE DUTY IN THE NAVAL RESERVE FROM OCTOBER 30, 1950, TO JANUARY 8, 1952. IT IS OUR VIEW THAT SUCH ACTION PROPERLY MAY BE CONSTRUED AS A RATIFICATION BY THE MEMBER OF HIS ENLISTMENT CONTRACT AS OF AUGUST 3, 1948. ACCORDINGLY, HE MAY BE CREDITED FOR LONGEVITY PAY PURPOSES WITH SERVICE AS AN ENLISTED MAN OF THE NAVAL RESERVE FROM AND AFTER AUGUST 3, 1948. SEE DECISION OF APRIL 9, 1945, B- 44924; COMPARE 24 COMP. GEN. 251.