B-46506, MARCH 3, 1945, 24 COMP. GEN. 641

B-46506, MARCH 3, 1945, 24 COMP. GEN. 641

NAVY ENLISTED MEN SERVING AS TEMPORARY OFFICERS - STATUS DURING TERMINAL LEAVE; TRAVEL ALLOWANCE UPON DISCHARGE OR TRANSFER TO FLEET NAVAL RESERVE WHILE, AS CONTEMPLATED BY SECTION 10 OF THE ACT OF JULY 24, 1941, NAVY ENLISTED MEN TEMPORARILY APPOINTED AS OFFICERS UNDER AUTHORITY OF THAT ACT MUST BE REGARDED AS REVERTING TO THEIR PERMANENT ENLISTED STATUS UPON RELIEF FROM ACTIVE DUTY UNDER THEIR TEMPORARY APPOINTMENTS, TEMPORARY OFFICERS RELIEVED FROM ALL ACTIVE DUTY UNDER THEIR TEMPORARY APPOINTMENTS AND ORDERED HOME WITH A VIEW TO DISCHARGE FROM THE NAVAL SERVICE OR TRANSFER TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF THEIR LEAVE WHICH ACCRUED DURING THEIR TEMPORARY APPOINTMENTS MAY BE CONTINUED IN THE DUTY STATUS OF TEMPORARY OFFICERS UNTIL THE EXPIRATION OF THE ACCRUED LEAVE. IN VIEW OF THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, CONTEMPLATING THAT NAVY ENLISTED PERSONNEL HOLDING TEMPORARY OFFICER RANK UNDER AUTHORITY OF THAT ACT WILL REVERT TO THEIR PERMANENT ENLISTED STATUS UPON RELIEF FROM ALL ACTIVE DUTY UNDER THEIR TEMPORARY APPOINTMENTS, A TEMPORARY OFFICER DETACHED FROM THE ASSIGNED DUTIES OF HIS TEMPORARY RANK AND ORDERED HOME WITH A VIEW TO TERMINATION OF HIS TEMPORARY APPOINTMENT AND CONCURRENT DISCHARGE FROM THE NAVAL SERVICE, OR TRANSFER TO THE FLEET NAVAL RESERVE, IN HIS PERMANENT STATUS IS ENTITLED TO TRAVEL ALLOWANCE AS AN ENLISTED MAN FOR TRAVEL TO HIS HOME, AND NOT TO MILEAGE AS AN OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 3, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 26, 1944, REQUESTING DECISION ON A QUESTION PRESENTED IN A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED DECEMBER 15, 1944, AS FOLLOWS: REF: (A) ACT OF SEPTEMBER 22, 1922, (40 STAT. 1203; 34 U.S.C.

895). (B) ACT OF JULY 24, 1941, AS AMENDED. (C)

PUBLIC LAW 798, 77TH CONGRESS, APPROVED DECEMBER 14,

1942.

(D) SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED

BY SECTION 7 OF PUBLIC LAW 421, 78TH CONGRESS. (E) PAR 6

OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942

(56 STAT. 366). (F) SECTION 12 OF THE PAY READJUSTMENT ACT

OF 1942, AS AMENDED

BY SECTION 9 OF PUBLIC LAW 421, 78TH CONGRESS. ENCL: (A) SAMPLE COPY OF ORDERS DIRECTING TERMINATION OF TEMPORARY

APPOINTMENT; TRANSFER TO FLEET RESERVE AND RELIEF FROM

ACTIVE DUTY.

(B) SAMPLE COPY OF ORDERS DIRECTING RELEASE FROM ACTIVE DUTY AND

DISCHARGE FROM REGULAR NAVY.

(C) SAMPLE COPY OF ORDERS DIRECTING RELEASE FROM ACTIVE DUTY AND

DISCHARGE FROM THE NAVAL RESERVE.

1. IN CONNECTION WITH DEMOBILIZATION OF CERTAIN NAVY PERSONNEL HAVING DUAL ENLISTED AND TEMPORARY OFFICER STATUS, WHO ARE NO LONGER PHYSICALLY QUALIFIED TO PERFORM ALL THE DUTIES OF EITHER THEIR PERMANENT RATING OR TEMPORARY RANK, THE ORDERS NOTED AS ENCLS (A) TO (C) HAVE BEEN DEVISED TO EFFECT, IN THE MOST EXPEDITIOUS MANNER AND WITH THE LEAST PAPER WORK, THE REVOCATION OF THE TEMPORARY APPOINTMENT, RELEASE FROM ACTIVE DUTY, DISCHARGE FROM THE NAVAL SERVICE, OR TRANSFER TO THE FLEET RESERVE AND RETIRED LIST IN PERMANENT STATUS. SECTION 10 OF REF (B) PROVIDED, INTER ALIA, THAT ENLISTED MEN APPOINTED TO WARRANT OR COMMISSIONED RANK PURSUANT TO AUTHORITY CONTAINED IN SECTION 2 THEREOF, MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, SUBJECT TO THE LIMITATION EXPRESSED THEREIN, AND UPON THE TERMINATION OF THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE SUBJECT TO THE LIMITATION EXPRESSED THEREIN, AND UPON THE TERMINATION OF THEIR TEMPORARY STATUS SHALL, UNLESS RETIRED AS PROVIDED IN SECTION 8, REVERT TO THEIR PERMANENT RATING. THEREFORE, IN THE CASES CITED HEREIN, THE INDIVIDUAL CONCERNED WILL BE, TO ALL INTENTS AND PURPOSES, AN OFFICER OF THE REGULAR NAVY OR NAVAL RESERVE IN THE INTERVAL BETWEEN DATE OF DETACHMENT FROM LAST PERMANENT DUTY STATION AND EFFECTIVE DATE OF TERMINATION OF TEMPORARY APPOINTMENT. TRANSFER TO THE FLEET RESERVE IN PERMANENT STATUS UPON REVOCATION OF TEMPORARY APPOINTMENT IS ONE OF THE RIGHTS, BENEFITS AND PRIVILEGES RESERVED TO THE MAN UNDER THE SAVING CLAUSE IN SECTION 7 (A) OF REF (B).

2. IN VIEW OF THE DUAL STATUS OF THE PERSONNEL INVOLVED, IT IS RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER SUCH TEMPORARY OFFICERS ARE ENTITLED TO MILEAGE AND THE PLACE TO WHICH MILEAGE IS PAYABLE. FOR INFORMATION PURPOSES, IT IS POINTED OUT THAT AN ENLISTED MAN OF THE REGULAR NAVY IS NOT ELIGIBLE FOR TRANSFER DIRECT TO THE RETIRED LIST EXCEPT UPON HIS OWN APPLICATION AFTER COMPLETION OF 30 YEARS ACTIVE SERVICE (34 U.S. CODE, 431, 432). IN OTHER CASES, ENLISTED MEN OF THE REGULAR NAVY, AFTER COMPLETION OF A PRESCRIBED PERIOD OF ACTIVE SERVICE, ARE ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE, AND FURTHER TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY, AFTER COMPLETION OF 30 YEARS SERVICE (ACTIVE AND INACTIVE), OR, OF FOUND PHYSICALLY DISQUALIFIED, AT ANY TIME SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE (34 U.S. CODE, 854B, C AND E). ENLISTED MEN OF THE NAVAL RESERVE ARE ENTITLED TO TRANSFER TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE WITH PAY, UNDER THE CONDITIONS SET FORTH IN 34 U.S. CODE, 855K AND I. THERE ARE NO OTHER PROVISIONS OF LAW AUTHORIZING RETIREMENT OF ENLISTED MEN OF THE NAVAL SERVICE. IN ORDER TO BETTER ILLUSTRATE THE POINTS INVOLVED UNDER THE SEVERAL TYPES, HYPOTHETICAL PLACES OF ENLISTMENT, OF HOME, AND RELEASE FROM ACTIVE DUTY, WILL BE USED:

(A) A TEMPORARY OFFICER WHO WAS LAST ACCEPTED FOR ENLISTMENT IN THE REGULAR NAVY AT QUEENSTOWN, IRELAND, HIS HOME ADDRESS AS STATED IN SHIPPING ARTICLES WAS NORFOLK, VA., (THE PLACE WHERE HIS WIFE RESIDED); PURSUANT TO DIRECTIVE CONTAINED IN ENCL (A), HE WAS DETACHED FROM DUTY AT RECEIVING SHIP, SAN FRANCISCO, CALIF., AND PROCEEDED TO BOSTON, MASS. THE DISTANCE FROM SAN FRANCISCO, CALIF., TO NEW YORK, PORT OF EMBARKATION FOR QUEENSTOWN, IS 3171 MILES, AND TO BOSTON, 3282 MILES. IS THE OFFICER ENTITLED TO MILEAGE NOT TO EXCEED MILEAGE PAYABLE FROM SAN FRANCISCO, CALIF., TO NEW YORK?

(B) A TEMPORARY OFFICER WHO WAS LAST ACCEPTED FOR ENLISTMENT IN THE REGULAR NAVY AT KEY WEST, FLA., HOME ADDRESS (HOME OF PARENTS) AS STATED IN SHIPPING ARTICLES IS JACKSONVILLE, FLA.; PURSUANT TO DIRECTIVE CONTAINED IN ENCL (B) HE WAS DETACHED FROM NAVAL CONVALESCENT HOSPITAL, ASHEVILLE, N.C., WHERE HE HAD BEEN UNDERGOING TREATMENT SINCE SEPTEMBER 10, 1944, PROCEEDED TO KEY WEST, FLA. IS THE OFFICER ENTITLED TO MILEAGE FROM ASHEVILLE, N.C., TO KEY WEST, FLA. ?

(C) A TEMPORARY OFFICER WHO WAS ACCEPTED FOR ENLISTMENT IN THE NAVAL RESERVE AT SEATTLE, ASH., ORDERS TO ACTIVE DUTY WERE ADDRESSED TO JUNEAU, ALASKA, PLACE OF EMPLOYMENT AND ADDRESS OF RECORD, AND PURSUANT TO DIRECTIVE CONTAINED IN ENCL (C), IS DETACHED FROM DUTY AT SUBMARINE CHASER TRAINING CENTER, MIAMI, FLA., AND PROCEEDS TO JUNEAU. IS HE ENTITLED TO MILEAGE FOR ALL LAND AND WATER TRAVEL FROM MIAMI, FLA., TO JUNEAU, ALASKA, PROVIDED WATER TRAVEL BETWEEN UNITED STATES AND ALASKA IS NOT PERFORMED BY GOVERNMENT VESSEL?

(D) A TEMPORARY OFFICER WHO REPORTED TO HIS LOCAL DRAFT BOARD AT HAGERSTOWN, MD., FOR DELIVERY TO INDUCTION STATION ( NAVY RECRUITING STATION) BALTIMORE, MD., AT WHICH PLACE, IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS, HE ELECTED TO ENLIST IN THE NAVAL RESERVE AS A SELECTIVE VOLUNTEER IN LIEU OF BEING INDUCTED INTO REGULAR NAVY, WAS IMMEDIATELY PLACED ON ACTIVE DUTY. THE OFFICER ACCEPTED TEMPORARY APPOINTMENT AT SUBMARINE CHASER TRAINING CENTER, NEW LONDON, CONN., AND ORDERS TO ACTIVE DUTY IN COMMISSIONED STATUS WERE ADDRESSED TO AND RECEIVED BY HIM AT THAT ACTIVITY. PURSUANT TO DIRECTIVE CONTAINED IN ENCL (B), OFFICER WAS DETACHED FROM DUTY AT BALTIMORE, MD. IS SUCH OFFICER ENTITLED, UNDER THE PROVISIONS OF REF (E), TO BE PAID MILEAGE WITHOUT REGARD TO PERFORMANCE OF TRAVEL FROM BALTIMORE, MD., TO:

(1) NEW LONDON, CONN.,

(2) HAGERSTOWN, MD. ?

(E) A TEMPORARY OFFICER WHO REPORTED TO LOCAL DRAFT BOARD AT CHARLESTON, S.C., (PLACE OF TEMPORARY EMPLOYMENT FOR DELIVERY TO INDUCTION STATION ( NAVY RECRUITING STATION AT THAT PLACE), ENLISTED IN THE NAVAL RESERVE AS SELECTIVE VOLUNTEER, AND ON SHIPPING ARTICLES GAVE NEWBERRY, C., AS HIS HOME ADDRESS. THE OFFICER ACCEPTED TEMPORARY APPOINTMENT AS AN OFFICER AT NAVY YARD, CHARLESTON, S.C., AND ORDERS TO ACTIVE DUTY IN OFFICER STATUS WERE ADDRESSED TO AND RECEIVED AT, THAT ACTIVITY. PURSUANT TO DIRECTIVE CONTAINED IN ENCL (C), THE OFFICER WAS DETACHED FROM NAVY YARD, CHARLESTON, S.C., AND PROCEEDED TO NEWBERRY, S.C. IS SUCH OFFICER ENTITLED, UNDER THE PROVISIONS OF REF (D), TO MILEAGE FROM CHARLESTON, S.C., TO NEWBERRY, S.C., HOME OF RECORD?

THE ACT OF JULY 24, 1941, 55 STAT. 603, 604, 605, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 2. (A) AS USED IN THIS ACT, THE WORDS "TEMPORARILY APPOINTED" SHALL BE INTERPRETED TO MEAN ALSO "TEMPORARILY PROMOTED" OR "TEMPORARILY ADVANCED IN RANK," AS THE CASE MAY BE.

(B) THE FOLLOWING PERSONNEL MAY BE TEMPORARILY APPOINTED TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS, NOT ABOVE LIEUTENANT IN THE NAVY AND CAPTAIN IN THE MARINE CORPS:

(1) COMMISSIONED WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(2) WARRANT OFFICERS OF THE REGULAR NAVY AND MARINE CORPS.

(3) FIRST-CLASS PETTY OFFICERS AND ABOVE IN THE REGULAR NAVY AND PLATOON OR STAFF SERGEANTS AND ABOVE IN THE REGULAR MARINE CORPS, INCLUDING ENLISTED MEN OF THOSE GRADES ON THE RETIRED LIST ON ACTIVE DUTY.

(4) ENLISTED MEN OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE ON ACTIVE DUTY IN THE GRADES HEREIN SPECIFIED FOR ENLISTED MEN OF THE REGULAR NAVY OR MARINE CORPS. * * * * * * * *

SEC. 7. (A) THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASONS OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED * * *. * * * *

SEC. 10. PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL SHALL, UNLESS OTHERWISE PROVIDED HEREIN,REVERT TO THEIR PERMANENT GRADES, RANKS, OR RATINGS * * *.

SEC. 11. THE PROVISIONS OF THIS ACT, EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAME THERETO SHALL APPLY TO---

(A) PERSONNEL OF THE NAVAL RESERVE (EXCEPT THE FLEET RESERVE) AND THE MARINE CORPS RESERVE (EXCEPT THE FLEET MARINE CORPS RESERVE) IN LIKE MANNER AND TO THE SAME EXTENT AND WITH THE SAME RELATIVE CONDITIONS IN ALL RELATIVE RESPECTS AS ARE PROVIDED FOR PERSONNEL OF THE REGULAR NAVY AND MARINE CORPS, BUT THIS SHALL NOT BE CONSTRUED TO AUTHORIZE THE TEMPORARY APPOINTMENT OF THE PERSONNEL THEREOF TO RANKS OR GRADES IN THE REGULAR NAVY OR MARINE CORPS.

WHILE SECTION 10 OF THE ACT PROVIDES THAT PERSONS APPOINTED OR ADVANCED TO TEMPORARY RANKS IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY, IT PROVIDES FURTHER THAT, WITH CERTAIN EXCEPTIONS, THEY SHALL REVERT TO THEIR PERMANENT GRADES, RANKS, OR RATINGS UPON THE TERMINATION OF THEIR TEMPORARY STATUS. THIS REVERSION TO PERMANENT STATUS NECESSARILY FOLLOWS WHEN THE TEMPORARY STATUS IS TERMINATED BY A REVOCATION OF THE APPOINTMENT BY DIRECTION OF THE PRESIDENT, AT THE EXPIRATION OF THE PERIOD SPECIFIED IN THE ACT, OR WHEN, FOR ANY REASON THE OFFICER HAS BEEN RELEASED FROM THE PERFORMANCE OF ALL ACTIVE DUTY UNDER CIRCUMSTANCES WHERE NO FURTHER PERFORMANCE OF ACTIVE DUTY IN THE TEMPORARY RANK IS CONTEMPLATED.

EACH OF THE SAMPLE COPIES OF ORDERS SUBMITTED, ENCLOSURES (A) TO (C), UNDER WHICH IT IS PROPOSED TO DISCHARGE--- OR TRANSFER TO THE FLEET NAVAL RESERVE--- THE OFFICERS INVOLVED, APPEARS TO CONTEMPLATE THE COMPLETE DETACHMENT OF THE OFFICER FROM ALL ASSIGNED DUTIES IN THE TEMPORARY RANK AND TO DIRECT HIM TO PROCEED TO HIS HOME WITH A VIEW TO TERMINATION OF THE TEMPORARY APPOINTMENT AT HIS HOME, FOLLOWING THE EXPIRATION OF LEAVE OF ABSENCE FOR THE PERIOD STATED IN THE ORDERS, WITH A CONCURRENT DISCHARGE FROM THE NAVAL SERVICE OR TRANSFER TO THE FLEET NAVAL RESERVE, AS THE CASE MAY BE, IN THE PERMANENT ENLISTED STATUS TO WHICH HE WAS REQUIRED TO REVERT UNDER THE PROVISIONS OF SECTION 10 OF THE ACT. ASSUMING THAT THE LEAVE OF ABSENCE SO GRANTED ACCRUED DURING THE PERIOD WHILE SERVING IN THE CAPACITY OF A TEMPORARY OFFICER, THERE WOULD APPEAR TO BE NO REASON TO QUESTION THE ADMINISTRATIVE AUTHORITY TO CONTINUE THE DUTY STATUS AS A TEMPORARY OFFICER UNTIL TERMINATION OF THE ACCRUED LEAVE. HOWEVER, SINCE THE STATUTE REQUIRED THAT THESE TEMPORARY OFFICERS REVERT TO THEIR PERMANENT ENLISTED STATUS UPON TERMINATION OF THEIR TEMPORARY APPOINTMENTS, THERE APPEARS TO BE NO AUTHORITY TO PAY THEM MILEAGE AS OFFICERS INCIDENT TO THEIR RELEASE FROM ACTIVE DUTY AND DISCHARGE FROM THE NAVAL SERVICE, OR TRANSFER TO THE FLEET NAVAL RESERVE, UNDER THE CONDITIONS SPECIFIED IN THE SAMPLE COPIES OF ORDERS AND AS SET FORTH IN YOUR LETTER. A DIFFERENT CONCLUSION WOULD GIVE SUCH TEMPORARY OFFICERS UPON DISCHARGE OR TRANSFER TO THE FLEET NAVAL RESERVE, IN THE STATUS OF ENLISTED MEN, THE RIGHTS AND BENEFITS PROVIDED BY THE MILEAGE LAWS FOR OFFICERS RELEASED FROM ACTIVE DUTY OR DISCHARGED FROM THE NAVAL SERVICE IN THE STATUS OF OFFICERS. IN VIEW OF THE REQUIREMENT OF THE STATUTE THAT THESE TEMPORARY OFFICERS REVERT TO THEIR PERMANENT STATUS UPON TERMINATION OF THE TEMPORARY APPOINTMENTS, IT REASONABLY APPEARS THAT THE STATUTE CONTEMPLATES THAT EXCEPT WHEN ELIGIBLE FOR RETIREMENT UNDER SECTION 8 THEREOF, THEY WILL REVERT TO THEIR PERMANENT STATUS AS ENLISTED MEN UPON BEING RELEASED FROM ALL ACTIVE DUTY AS TEMPORARY OFFICERS AND, CONSEQUENTLY, THE TRAVEL ALLOWANCE TO WHICH THEY WILL BE ENTITLED INCIDENT TO DISCHARGE FROM THE NAVAL SERVICE, OR TRANSFER TO THE FLEET NAVAL RESERVE, WILL BE THAT PROVIDED BY LAW FOR ENLISTED MEN.