B-52344, MARCH 20, 1946, 25 COMP. GEN. 655

B-52344, MARCH 20, 1946, 25 COMP. GEN. 655

PAY - LONGEVITY - SERVICE CREDITS - CONCURRENT ENLISTED RESERVE CORPS SERVICE OF UNITED STATES MILITARY ACADEMY CADET WHILE UNDER SECTION 6 OF THE ACT OF AUGUST 24, 1912, AN ARMY OFFICER IS PROHIBITED FROM COUNTING PRIOR SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY FOR LONGEVITY PAY PURPOSES, SUCH SERVICE AS A CADET DOES NOT PRECLUDE THE COUNTING, FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OF A PERIOD OF CONCURRENT SERVICE AS A MEMBER OF THE ENLISTED RESERVE CORPS, INACTIVE.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. GEORGE DRAPER, U.S. ARMY, MARCH 20, 1946:

BY ENDORSEMENT OF SEPTEMBER 7, 1945, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF APRIL 20, 1945, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH, STATED IN FAVOR OF BARNEY A. DAUGHTRY, LIEUTENANT COLONEL, GSC, U.S. ARMY, COVERING DIFFERENCE IN LONGEVITY PAY BETWEEN MAJOR, FOURTH PAY PERIOD, 12 YEARS' SERVICE, AND MAJOR, FOURTH PAY PERIOD, 15 YEARS' SERVICE, FROM JUNE 1, 1942, TO JUNE 8, 1942, INCLUSIVE; BETWEEN LIEUTENANT COLONEL, FIFTH PAY PERIOD, 12 YEARS' SERVICE, AND LIEUTENANT COLONEL, FIFTH PAY PERIOD, 15 YEARS' SERVICE, FROM JUNE 9 TO JUNE 13, 1942, INCLUSIVE; BETWEEN LIEUTENANT COLONEL, FIFTH PAY PERIOD, 15 YEARS' SERVICE, AND LIEUTENANT COLONEL, FIFTH PAY PERIOD, 18 YEARS' SERVICE, FROM FEBRUARY 15, 1944, TO MARCH 31, 1945, INCLUSIVE.

BY ENDORSEMENT DATED AUGUST 1, 1945, THE ADJUTANT GENERAL'S OFFICE, WAR DEPARTMENT, ADVISED THE OFFICE OF THE FISCAL DIRECTOR THAT:

1. THE RECORDS OF THIS OFFICE SHOW THAT BARNEY AVANT DAUGHTRY ENLISTED AS PRIVATE, ENLISTED RESERVE CORPS, 25 AUG 1922, AND WAS DISCHARGED THEREFROM IN THE GRADE OF SERGEANT, EFFECTIVE 23 DEC 1923 DUE TO HAVING ENTERED UNITED STATED MILITARY ACADEMY.

2. HE WAS APPOINTED CADET, UNITED STATES MILITARY ACADEMY, 23 JULY 1923 AND SERVED AS SUCH TO 14 JUNE 1927 WHEN HE WAS APPOINTED SECOND LIEUTENANT, INFANTRY, REGULAR ARMY; ACCEPTED 14 JUNE 1927; ASSIGNED SERIAL NUMBER 1016902; PROMOTED FIRST LIEUTENANT, INFANTRY, REGULAR ARMY, 14 JUNE 1933; PROMOTED CAPTAIN, INFANTRY, REGULAR ARMY, 14 JUNE 1937; PROMOTED TO MAJOR, ARMY OF THE UNITED STATES, 31 JAN 1941; ACCEPTED 4 FEB 1941; PROMOTED LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, 19 JUNE 1942; ACCEPTED 22 JUNE 1942; PROMOTED TO MAJOR, INFANTRY, REGULAR ARMY, 14 JUNE 1944 AND IS NOW A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES ( MAJOR, INFANTRY, REGULAR ARMY).

3. HE HAS HAD ACTIVE COMMISSIONED SERVICE FROM 14 JUNE 1927 TO THE PRESENT DATE. THE ADDITIONAL PAY CLAIMED IS ON THE BASIS OF LONGEVITY CREDIT FOR THE PERIOD AUGUST 25, 1922, TO DECEMBER 23, 1923, DURING WHICH TIME THE OFFICER WAS A MEMBER OF THE ENLISTED RESERVE CORPS, INACTIVE.

SECTION 55 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 35 OF THE ACT OF JUNE 4, 1920, 41 STAT. 780, PROVIDES IN PART:

SEC. 55. THE ENLISTED RESERVE CORPS.--- THE ENLISTED RESERVE CORPS SHALL CONSIST OF PERSONS VOLUNTARILY ENLISTED THEREIN. THE PERIOD OF ENLISTMENT SHALL BE THREE YEARS, EXCEPT IN THE CASE OF PERSONS WHO SERVED IN THE ARMY, NAVY OR MARINE CORPS AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, WHO MAY BE ENLISTED FOR ONE YEAR PERIODS AND WHO, IN TIME OF PEACE, SHALL BE ENTITLED TO DISCHARGE WITHIN NINETY DAYS IF THEY MAKE APPLICATION THEREFOR. ENLISTMENTS SHALL BE LIMITED TO PERSONS ELIGIBLE FOR ENLISTMENT IN THE REGULAR ARMY WHO HAVE HAD SUCH MILITARY OR TECHNICAL TRAINING AS MAY BE PRESCRIBED BY REGULATIONS OF THE SECRETARY OF WAR. ALL ENLISTMENTS IN FORCE AT THE OUTBREAK OF WAR, OR ENTERED INTO DURING ITS CONTINUATION, WHETHER IN THE REGULAR ARMY OF THE ENLISTED RESERVE CORPS, SHALL CONTINUE IN FORCE UNTIL SIX MONTHS AFTER ITS TERMINATION UNLESS SOONER TERMINATED BY THE PRESIDENT.

SEC. 55B. RESERVISTS ON ACTIVE DUTY.--- MEMBERS OF THE ENLISTED RESERVE CORPS MAY BE PLACED ON ACTIVE DUTY, AS INDIVIDUALS OR ORGANIZATIONS, IN THE DISCRETION OF THE PRESIDENT, BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS NO RESERVIST SHALL BE ORDERED TO ACTIVE DUTY IN EXCESS OF THE NUMBER PERMISSIBLE UNDER APPROPRIATIONS MADE FOR THIS SPECIFIC PURPOSE, NOR FOR A LONGER PERIOD THAN FIFTEEN DAYS IN ANY ONE CALENDAR YEAR WITHOUT HIS OWN CONSENT. WHILE ON ACTIVE DUTY THEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS OTHER ENLISTED MEN OF LIKE GRADES AND LENGTH OF SERVICE.

SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, EFFECTIVE JUNE 1, 1942, 58 STAT. 729, PROVIDES:

THAT THE PAY READJUSTMENT ACT OF 1942 IS HEREBY AMENDED BY AMENDING SECTION 3A THEREOF, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942 ( PUBLIC LAW 785, SEVENTY-SEVENTH CONGRESS), TO READ AS FOLLOWS:

" SEC. 3A. IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTION 1, 3, 8, OR 9 OF THIS ACT, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTION UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT

SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 594, PROVIDES:

THAT HEREAFTER THE SERVICE OF A CADET WHO MAY HEREAFTER BE APPOINTED TO THE UNITED STATES MILITARY ACADEMY OR TO THE NAVAL ACADEMY SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.

BY REASON OF THE ABOVE PROVISION COLONEL DAUGHTRY IS NOT ENTITLED TO LONGEVITY CREDIT FOR ANY PORTION OF HIS SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY. THE LITERAL WORDING OF THE ACT OF SEPTEMBER 7, 1944, SUPRA, ENTITLES HIM ON AND AFTER JUNE 1, 1942, TO LONGEVITY CREDIT FOR THE ENTIRE PERIOD DURING WHICH HE WAS ENLISTED IN THE ENLISTED RESERVE CORPS. THERE IS NO DOUBT AS TO HIS RIGHT TO CREDIT FOR THE PORTION OF SUCH PERIOD PRECEDING HIS APPOINTMENT TO THE MILITARY ACADEMY. THE QUESTION HERE, AS INDICATED IN YOUR LETTER, IS WHETHER THE OFFICER IS ENTITLED TO SUCH CREDIT FOR THE PERIOD JULY 23, 1923, TO DECEMBER 23, 1923, DURING WHICH TIME HE WAS A CADET AT THE MILITARY ACADEMY PRIOR TO HIS DISCHARGE FROM THE ENLISTED RESERVE CORPS.

SECTION 55 OF THE NATIONAL DEFENSE ACT, SUPRA, DOES NOT, IN TERMS, PROHIBIT A MEMBER OF THE ENLISTED RESERVE CORPS FROM HAVING A STATUS IN SOME OTHER MILITARY OR NAVAL ORGANIZATION AND NO REGULATION HAS BEEN FOUND PROHIBITING SUCH DUAL STATUS. SEE DIGEST OF OPINION " SPJGA 1945/6967" DATED AUGUST 7, 1945, BULLETIN OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, AUGUST 1945, AT PAGE 366.

WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT REASONABLY APPEARS THAT COLONEL DAUGHTRY CONTINUED TO BE A MEMBER OF THE ENLISTED RESERVE CORPS UNTIL FORMALLY DISCHARGED THEREFROM ON DECEMBER 23, 1923. FOLLOWS THAT ON AND AFTER JUNE 1, 1942, HE IS ENTITLED TO LONGEVITY CREDIT, AS A MEMBER OF THE ENLISTED RESERVE CORPS, FOR THE PERIOD JULY 23, 1923, TO DECEMBER 23, 1923, DURING WHICH TIME HE WAS A MEMBER OF SAID CORPS NOTWITHSTANDING HIS PRIOR APPOINTMENT AS A CADET AT THE UNITED STATES MILITARY ACADEMY. COMPARE B-32883, APRIL 1, 1943; 23 COMP. GEN. 939.

PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.