B-147774, FEBRUARY 1, 1962, 41 COMP. GEN. 503

B-147774, FEBRUARY 1, 1962, 41 COMP. GEN. 503

GRATUITIES - MUSTERING-OUT PAY - TEMPORARY REGULAR OFFICERS ACCEPTING RESERVE APPOINTMENTS WITHOUT SERVICE BREAK MARINE CORPS MEMBERS WHO HAVE PERMANENT ENLISTED STATUS WHILE SERVING AS TEMPORARY OFFICERS IN THE REGULAR MARINE CORPS UNDER 10 U.S.C. 5596 AND WHO ARE APPOINTED AS OFFICERS IN THE MARINE CORPS RESERVE AND CONTINUE ON ACTIVE DUTY WITHOUT A BREAK IN SERVICE, EITHER AS PERMANENT MARINE CORPS RESERVE OFFICERS, OR AS SUBSEQUENTLY APPOINTED PERMANENT REGULAR MARINE CORPS OFFICERS, ARE NOT CONSIDERED AS HAVING BEEN DISCHARGED OR RELEASED FROM ACTIVE DUTY FOR THE PURPOSE OF "APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES" TO BE ENTITLED TO MUSTERING-OUT PAY UNDER THE ONLY EXCEPTION PROVIDED IN 38 U.S.C. 2104 FOR PAYMENT OF MUSTERING-OUT PAY WHILE CONTINUING IN ACTIVE SERVICE WITHOUT ACTUAL RETURN TO CIVILIAN STATUS, AND NEITHER THE EXPIRATION OF THE MEMBER'S ENLISTMENT WHILE SERVING AS TEMPORARY OFFICER IN THE REGULAR MARINE CORPS NOR THE FACT THAT THE MEMBER MAY BE DISCHARGED THE DAY FOLLOWING THE APPOINTMENT IN THE RESERVE CORPS TO ACCEPT A REGULAR OFFICER APPOINTMENT UNDER 10 U.S.C. 5573A SERVES TO ENTITLE THE MEMBERS TO MUSTERING-OUT PAY.

TO THE SECRETARY OF DEFENSE, FEBRUARY 1, 1962:

BY LETTER DATED DECEMBER 8, 1961, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED DECISION AS TO WHETHER CERTAIN MEMBERS OF THE MARINE CORPS ARE ENTITLED TO MUSTERING-OUT PAY UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 296 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

UNDER A PROGRAM DEVELOPED WITHIN THE MARINE CORPS, MEMBERS SERVING AS TEMPORARY OFFICERS IN THE REGULAR MARINE CORPS UNDER THE PROVISIONS OF 10 U.S.C. 5596 WITH UNDERLYING PERMANENT STATUS AS ENLISTED MEMBERS ARE BEING SELECTED FOR PERMANENT APPOINTMENTS IN THE MARINE CORPS RESERVE WITH A VIEW TO LATER GIVING THEM PERMANENT APPOINTMENTS IN THE REGULAR MARINE CORPS. UPON SELECTION FOR OFFICER APPOINTMENT IN THE MARINE CORPS RESERVE, SUCH A MEMBER'S TEMPORARY OFFICER APPOINTMENT IS TERMINATED AND HE IS DISCHARGED FROM HIS ENLISTED STATUS THE SAME DATE "FOR THE CONVENIENCE OF THE GOVERNMENT TO ACCEPT APPOINTMENT AS A PERMANENT OFFICER IN THE MARINE CORPS RESERVE.' HE ACCEPTS SUCH APPOINTMENT THE NEXT DAY AND CONTINUES TO SERVE IN AN ACTIVE STATUS INDEFINITELY. ON THIS SET OF FACTS THE FOLLOWING QUESTIONS HAVE BEEN RAISED:

(1) MAY HIS DISCHARGE BE CONSIDERED A DISCHARGE FOR THE PURPOSE OF APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES WITHIN THE MEANING OF 38 U.S.C. 2104, SO AS TO ENTITLE HIM TO MUSTERING OUT PAYMENT?

(2) IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, WOULD THE ANSWER BE THE SAME IF HIS ENLISTMENT WOULD HAVE EXPIRED WHILE SERVING AS A TEMPORARY OFFICER IN THE REGULAR MARINE CORPS BUT FOR THE PROVISIONS OF 10 U.S.C. 5596 (F) WHICH REQUIRES HIS PERMANENT STATUS TO CONTINUE WITHOUT CHANGE?

(3) WOULD THE ANSWER TO QUESTIONS 1 AND 2 BE THE SAME IF, FOLLOWING ACCEPTANCE OF APPOINTMENT IN THE MARINE CORPS RESERVE, THE OFFICER IS DISCHARGED THE NEXT DAY TO ACCEPT APPOINTMENT AS AN OFFICER OF THE REGULAR MARINE CORPS PURSUANT TO 10 U.S.C. 5573A, WHICH APPOINTMENT HE ACCEPTS THE NEXT DAY?

SINCE 38 U.S.C. 2101 (B) (1) PROVIDES THAT NO MUSTERING-OUT PAY SHALL BE MADE TO ANY MEMBER WHOSE PAY GRADE IS HIGHER THAN 10-3 AT THE TIME OF RELEASE OR DISCHARGE, OR IF HE IS A COMMISSIONED OFFICER, UNLESS HE IS DISCHARGED OR RELEASED BEFORE JANUARY 31, 1958, THE MEMBERS INVOLVED, IF ENTITLED AT ALL, MAY ONLY BE CONSIDERED UNDER THE TERMS OF 38 U.S.C. 2104, WHICH PROVIDES IN PART, AS FOLLOWS:

* * * NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS CHAPTER MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS OF THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES.

IN 40 COMP. GEN. 622, WHERE WE CONSIDERED THE QUESTION WHETHER ENLISTED MEN WHO ARE APPOINTED TEMPORARY WARRANT OFFICERS AND RETAIN THEIR PERMANENT ENLISTED STATUS ARE ENTITLED TO RECEIVE MUSTERING-OUT PAY, WE HELD THAT UNDER 10 U.S.C. 5596 (F) THE ACCEPTANCE OF A TEMPORARY WARRANT OFFICER COMMISSION BY A NAVY ENLISTED MEMBER CANNOT ABRIDGE THE RIGHT HE HAD TO MUSTERING-OUT PAY AT THE SIMULTANEOUS TERMINATION OF SUCH COMMISSION AND PERMANENT ENLISTED STATUS UPON ACCEPTANCE OF A PERMANENT COMMISSION.

THE PRIMARY PURPOSE OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, 38 U.S.C. 2101, WAS TO AID MEMBERS OF THE ARMED FORCES IN THEIR READJUSTMENT TO CIVILIAN LIFE UPON THEIR DISCHARGE OR RELEASE FROM ACTIVE MILITARY SERVICE. THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 538, SECTION 7 (B) OF WHICH IS THE SOURCE OF THE PHRASE "OR, AT THE OPTION OF SUCH MEMBER, FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES," IN 38 U.S.C. 2104, HAD AS ITS GENERAL PURPOSE THE STIMULATION OF VOLUNTARY ENLISTMENTS IN THE REGULAR MILITARY AND NAVAL ESTABLISHMENTS OF THE UNITED STATES. THE LEGISLATIVE HISTORY OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 663, 38 U.S.C. 1601, DISCLOSES THAT THE CONGRESS CONSIDERED THE MUSTERING-OUT PAYMENT PROVISIONS OF THE ACT ( TITLE V, 66 STAT. 688) TO BE COMPARABLE IN INTENT AND PURPOSE TO THE PROVISIONS OF THE MUSTERING- OUT PAYMENT ACT OF 1944, AS AMENDED.

PRIOR TO THE 1945 AMENDMENT, MUSTERING-OUT PAYMENTS COULD BE RECEIVED BY ELIGIBLE PERSONNEL ONLY UPON PERMANENT SEPARATION FROM THE SERVICE OR UPON ULTIMATE RELIEF FROM ACTIVE DUTY IN THE ARMED FORCES, THAT IS, UPON THEIR RETURN TO CIVILIAN LIFE. THE 1945 AMENDMENT PERMITTED PAYMENT TO BE RECEIVED BY ELIGIBLE PERSONS IF THEY SO ELECTED WHEN THEY ENLISTED, REENLISTED, OR WERE APPOINTED IN THE REGULAR COMPONENTS OF THE ARMED FORCES AND SO PAYMENT OF MUSTERING-OUT PAY WAS ACCELERATED AND PERMITTED TO BE MADE WHERE THERE WAS AN ACTUAL SEPARATION FROM THE SERVICE AND A CONTINUATION OF SERVICE UNDER A NEW ENLISTMENT, REENLISTMENT, OR APPOINTMENT. THE ASPECT OF READJUSTMENT TO CIVILIAN LIFE WAS TO THAT EXTENT REMOVED AND, AS AN INDUCEMENT FOR RESERVISTS AND REGULARS TO MAKE THE MILITARY SERVICE A CAREER, MUSTERING-OUT PAYMENTS WERE ALLOWED EVEN THOUGH THE MEMBERS CONTINUED WITHOUT BREAK IN THEIR ACTIVE MILITARY SERVICE SO LONG AS THERE WAS AN ACTUAL SEPARATION OR MUSTERING OUT OF THE SERVICE IN WHICH THEY HAD BEEN SERVING.

THUS, IT WAS HELD THAT MEMBERS OF RESERVE COMPONENTS WHO, WHILE ACTUALLY SERVING ON ACTIVE DUTY UNDER THEIR RESERVE APPOINTMENTS, ENLISTED, REENLISTED OR ACCEPTED APPOINTMENTS AS OFFICERS IN THE REGULAR SERVICES WERE ENTITLED TO RECEIVE MUSTERING-OUT PAYMENTS, SINCE THE VACATION OF A RESERVE APPOINTMENT WAS TANTAMOUNT TO A DISCHARGE OR RELEASE FROM ACTIVE DUTY AS A RESERVIST. SEE 36 COMP. GEN. 283. COMPARE 36 COMP. GEN. 645 AND 37 COMP. GEN. 94. THE OPPOSITE SITUATION OF A REGULAR MEMBER UPON BEING APPOINTED IN THE RESERVE AND CONTINUING ON ACTIVE DUTY HAS NEVER BEEN CONSIDERED AS SATISFYING THE CONDITIONS OF THE STATUTE SO AS TO ENTITLE THE MEMBER TO MUSTERING-OUT PAY FOR THE REASON THAT THERE IS NO PERMANENT SEPARATION OR DISCHARGE FROM THE SERVICE FOR THE PURPOSE OF ENLISTING, REENLISTING, OR ACCEPTING APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES. THE NAVY COMPTROLLER MANUAL, 1044165-5-12--- WHICH PURSUANT TO ALNAV 39, EFFECTIVE AUGUST 20, 1956, IS APPLICABLE TO THE MARINE CORPS--- PROVIDES THAT MEMBERS DISCHARGED FROM THE REGULAR MARINE CORPS OR MARINE CORPS RESERVE WHO ARE IMMEDIATELY ENLISTED OR APPOINTED AS OFFICERS IN THE MARINE CORPS RESERVE AND IMMEDIATELY ASSIGNED TO ACTIVE DUTY ARE NOT ENTITLED TO MUSTERING-OUT PAY (ENTITLEMENT ACCRUES ONLY ON RELEASE FROM ACTIVE DUTY OR ON DISCHARGE AND ENLISTMENT OR APPOINTMENT IN A REGULAR BRANCH OF THE ARMED FORCES).

SINCE, IN EVERY INSTANCE, THE MEMBERS INVOLVED IN THE QUESTIONS HERE PRESENTED ARE BEING DISCHARGED FOR THE PURPOSE OF ACCEPTING APPOINTMENT AS OFFICERS IN THE MARINE CORPS RESERVE AND ARE THEN BEING CONTINUED ON ACTIVE DUTY WITHOUT BREAK IN SERVICE, EITHER AS A PERMANENT MARINE CORPS RESERVE OFFICER OR AS A SUBSEQUENTLY APPOINTED PERMANENT REGULAR MARINE CORPS OFFICER, THEY MAY NOT BE CONSIDERED AS HAVING BEEN DISCHARGED OR RELEASED FROM ACTIVE DUTY "FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES"--- THE ONLY EXCEPTION PROVIDED BY THE STATUTE FOR THE PAYMENT OF MUSTERING-OUT PAY WHILE CONTINUING IN THE ACTIVE SERVICE WITHOUT ACTUAL RETURN TO CIVILIAN LIFE. THE STATUS OF A MEMBER'S LAST CONTRACT OF ENLISTMENT AT THE TIME THE DESCRIBED DISCHARGE AND APPOINTMENT ACTIONS ARE TAKEN WOULD APPEAR TO HAVE NO SUCH BEARING IN THE MATTER AS WOULD PERMIT PAYMENT OF MUSTERING- OUT PAY. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE AND QUESTIONS 2 AND 3 IN THE AFFIRMATIVE. IN NONE OF THE STATED SITUATIONS IS THERE ENTITLEMENT TO MUSTERING-OUT PAY.