B-45992, JUNE 12, 1951, 30 COMP. GEN. 506

B-45992, JUNE 12, 1951, 30 COMP. GEN. 506

PAY - ACTIVE DUTY - NAVAL RESERVE OFFICERS - PERIODS SUBSEQUENT TO SEPARATION AND REVOCATION OF COMMISSION A NAVAL RESERVE OFFICER WHOSE COMMISSION WAS REVOKED BY THE SECRETARY OF THE NAVY UNDER AUTHORITY IN SECTION 14 (A) OF THE ACT OF JUNE 23, 1938, BECAUSE OF UNSATISFACTORY PERFORMANCE OF DUTY AND UNAUTHORIZED USE OF GOVERNMENT VEHICLES, AND WHO ALSO WAS RELEASED FROM ACTIVE DUTY PURSUANT TO AUTHORITY IN SECTIONS 5 AND 6 OF THE NAVAL RESERVE ACT OF 1938, IS NOT ENTITLED TO PAY AND ALLOWANCES AFTER THE EFFECTIVE DATE OF SEPARATION AND REVOCATION, IRRESPECTIVE OF THE REASON THEREFOR, IN VIEW OF THE PROVISIONS IN SECTION 7 OF THE NAVAL RESERVE ACT PERMITTING PAY AND ALLOWANCES TO NAVAL RESERVE OFFICERS ONLY WHEN EMPLOYED ON ACTIVE OR TRAINING DUTY OR IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.

DECISION BY ASSISTANT COMPTROLLER GENERAL YATES, JUNE 12, 1951:

REFERENCE IS MADE TO LETTER OF APRIL 4, 1951, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 14, 1950, WHICH DISALLOWED A CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE A LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE, SUBSEQUENT TO THE DATE OF HIS SEPARATION FROM THE SERVICE AND THE REVOCATION OF HIS COMMISSION PURSUANT TO ORDERS OF DECEMBER 31, 1943.

ORDERS FROM THE SECRETARY OF THE NAVY ADDRESSED TO THE OFFICER VIA THE CHIEF OF NAVAL PERSONNEL, DATED DECEMBER 31, 1943, PROVIDED, IN MATERIAL PART, AS FOLLOWS:

1. YOU WILL REPORT IMMEDIATELY FOR EXAMINATION TO THE MEDICAL OFFICER IN COMMAND, NAVAL DISPENSARY, NAVY DEPARTMENT, ARLINGTON ANNEX, ARLINGTON, VIRGINIA, TO DETERMINE YOUR PHYSICAL FITNESS FOR SEPARATION FROM THE U.S. NAVAL RESERVE. IF FOUND NOT PHYSICALLY QUALIFIED, THE REMAINDER OF THESE ORDERS IS SUSPENDED UNTIL YOU ARE OTHERWISE INFORMED BY THE BUREAU OF NAVAL PERSONNEL, AND THE EXAMINING MEDICAL OFFICER SHALL IMMEDIATELY ADVISE THE BUREAU OF NAVAL PERSONNEL WITH RECOMMENDATION REGARDING YOUR DISPOSITION. IF FOUND PHYSICALLY QUALIFIED, YOU WILL REGARD YOURSELF DETACHED; PROCEED TO YOUR HOME.

3. YOU COMMISSION AS A LIEUTENANT COMMANDER, E-V (S), IN THE U.S. NAVAL RESERVE IS HEREBY REVOKED EFFECTIVE UPON THE FIFTH DAY FOLLOWING YOUR DETACHMENT, PURSUANT TO PARAGRAPH ONE HEREOF, AND YOU ARE HEREBY DISCHARGED FROM THE U.S. NAVAL RESERVE EFFECTIVE THAT DATE. THIS ACTION IS TAKEN BECAUSE OF YOUR UNSATISFACTORY PERFORMANCE OF DUTY WHILE SERVING AS RESIDENT ASSISTANT SUPERVISOR OF SHIPBUILDING, AMERICAN SHIPBUILDING COMPANY, LORAIN, OHIO AND BECAUSE OF YOUR REPEATED UNAUTHORIZED USE OF A GOVERNMENT OWNED VEHICLE FOR YOUR OWN PERSONAL CONVENIENCE IN VIOLATION OF THE ORDERS OF THE SECRETARY OF THE NAVY AND OF THE COMMANDANT, NINTH NAVAL DISTRICT. ENDORSEMENTS ON SUCH ORDERS SHOW THAT THEY WERE DELIVERED TO THE OFFICER ON JANUARY 1, 1944; THAT ON THE SAME DAY HE WAS EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR THE REVOCATION OF HIS COMMISSION, AND THAT HE WAS DETACHED AT WASHINGTON, D.C., ON JANUARY 1, 1944.

IN THE OFFICER'S REQUEST FOR REVIEW HE ALLEGES THAT HIS SEPARATION FROM THE UNITED STATES NAVAL RESERVE UNDER THE ORDERS OF DECEMBER 31, 1943, WAS ILLEGAL, AND ON SUCH BASIS HE URGES THAT HE IS ENTITLED TO PAY AND ALLOWANCES FROM JANUARY 4, 1944, TO SEPTEMBER 20, 1944.

SECTION 14 (A) OF THE ACT OF JUNE 23, 1938, 52 STAT. 944, 951, PROVIDES IN PERTINENT PART AS FOLLOWS:

THE SECRETARY OF THE NAVY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, MAY HEREAFTER REVOKE THE COMMISSION OF ANY OFFICER ON THE ACTIVE LIST, INITIALLY COMMISSIONED AFTER THE DATE OF THIS ACT, WHO, AT THE DATE OF SAID REVOCATION HAS HAD LESS THAN SEVEN YEARS OF CONTINUOUS SERVICE AS A COMMISSIONED OFFICER OF THE LINE OF THE NAVY OR OF THE MARINE CORPS, AND EACH OFFICER WHOSE COMMISSION IS SO REVOKED SHALL BE DISCHARGED FROM THE NAVAL SERVICE. * * *

SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175, 1176, PROVIDES PERTINENT PART AS FOLLOWS:

* * * THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

SECTION 6 OF SAID ACT, 52 STAT. 1176, PROVIDES IN PERTINENT PART:

* * * THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY. * * * AND SECTION 7 OF SAID ACT, 52 STAT. 1176, AUTHORIZES PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO COMMISSIONED OFFICERS OF THE NAVAL RESERVE ONLY "WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY.'

THE SECRETARY OF THE NAVY, ACTING WITHIN HIS DISCRETION AND UNDER THE AUTHORITY GRANTED TO HIM IN THE ABOVE-QUOTED PROVISIONS OF SECTIONS 5 AND 6 OF THE NAVAL RESERVE ACT OF 1938, ISSUED THE ORDERS OF DECEMBER 31, 1943, BY WHICH THE OFFICER WAS RELEASED FROM ACTIVE DUTY IN THE U.S. NAVAL RESERVE EFFECTIVE JANUARY 6, 1944, AND IN VIEW OF THE ABOVE QUOTED PROVISION OF SECTION 7 OF SAID ACT, HE WAS NOT ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES AFTER JANUARY 6, 1944, IRRESPECTIVE OF THE REASON FOR HIS RELEASE FROM ACTIVE DUTY AND THE REVOCATION OF HIS COMMISSION. SEE DENBY V. BERRY, 263 U.S. 29. THEREFORE, SINCE IT APPEARS THAT ACTIVE-DUTY PAY AND ALLOWANCES HAVE BEEN PAID TO THE OFFICER THROUGH JANUARY 6, 1944, THE EFFECTIVE DATE OF HIS RELEASE FROM ACTIVE DUTY, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF HIS CLAIM.

ACCORDINGLY, FOR THE REASONS STATED HEREIN, THE DISALLOWANCE OF THE CLAIM BY THE SETTLEMENT OF JUNE 14, 1950, IS SUSTAINED.