B-149039, JUN. 25, 1962

B-149039, JUN. 25, 1962

TO LIEUTENANT HERSCHEL H. MOORE, USN:

REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED HERE ON MAY 21, 1962, REQUESTING REVIEW OF SETTLEMENT DATED MAY 14, 1962, WHICH DISALLOWED YOUR CLAIM FOR MUSTERING-OUT PAY BELIEVED TO BE DUE BY REASON OF YOUR DISCHARGE FROM THE NAVY ON JULY 9, 1942.

INFORMATION CONTAINED IN OUR FILES INDICATES THAT YOU WERE ATTACHED TO THE U.S.S. PENNSYLVANIA ON FOREIGN SERVICE FROM DECEMBER 7, 1941, TO JULY 7, 1942, AND THAT ON JULY 9, 1942, DATE OF COMPLETION OF YOUR TERM OF SERVICE, YOU WERE HONORABLY DISCHARGED FROM THE NAVY. YOU REENLISTED ON THE FOLLOWING DAY AND SINCE THAT DATE YOU HAVE HAD CONTINUOUS ACTIVE SERVICE IN THE NAVY. IN LETTER OF AUGUST 10, 1961, ADDRESSED TO THE U.S. NAVY COMPTROLLER, NAVY DEPARTMENT, WASHINGTON 25, D.C., YOU PRESENTED A CLAIM FOR MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE ON JULY 9, 1942, STATING THAT YOU HAVE NOT RECEIVED A MUSTERING-OUT PAYMENT SUBSEQUENT TO THAT DATE. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM ON THE GROUND THAT SINCE YOUR DISCHARGE WAS NOT FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE NAVY, PAYMENT OF THE MUSTERING-OUT PAY WAS PRECLUDED BY SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT 9. YOU NOW ASSERT THAT ALL ELIGIBLE PERSONNEL OF ANY OF THE SERVICES UPON DISCHARGE WERE PAID UNDER THE MUSTERING-OUT PAYMENT ACT OF 1944 AND THAT SUCH PAYMENTS DID NOT PRECLUDE THEIR REENLISTMENT.

SECTION 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 38 U.S.C. 691 (C) (1940 ED., SUPP. IV), CONTAINED THE FOLLOWING PROVISO:

"PROVIDED, THAT NO MEMBER OF THE ARMED FORCES SHALL RECEIVE MUSTERING-OUT PAYMENT UNDER THIS ACT MORE THAN ONCE, AND SUCH PAYMENT SHALL ACCRUE AND THE AMOUNT THEREOF SHALL BE COMPUTED AS THE TIME OF DISCHARGE FOR THE PURPOSE OF EFFECTING A PERMANENT SEPARATION FROM THE SERVICE OR OF ULTIMATE RELIEF FROM ACTIVE SERVICE.'

IT IS CLEAR THAT UNDER THAT PROVISO YOUR RIGHTS MUST BE DETERMINED ON THE BASIS OF WHETHER YOUR DISCHARGE ON JULY 9, 1942, WAS FOR THE PURPOSE OF EFFECTING YOUR PERMANENT SEPARATION FROM THE NAVAL SERVICE.

PRIOR TO YOUR DISCHARGE, THERE WAS ENACTED A LAW (ACT OF DECEMBER 13, 1941, 55 STAT. 799) WHICH AUTHORIZED THE SECRETARY OF THE NAVY (IN THE TIME OF WAR) TO EXTEND ENLISTMENTS IN THE NAVAL FORCES FOR SUCH ADDITIONAL TIME AS HE MIGHT DEEM NECESSARY IN THE INTERESTS OF NATIONAL DEFENSE AND ON THAT AUTHORITY THE SECRETARY OF THE NAVY ISSUED ALNAV 155-1941, DATED DECEMBER 15, 1941, WHICH PROVIDED, AS FOLLOWS:

"ENLISTMENTS OF MEN IN REGULAR NAVY MARINE CORPS AND COAST GUARD WHO DO NOT VOLUNTARILY EXTEND OR REENLIST AND ALL ENLISTMENTS OF MEN IN RESERVE COMPONENTS THEREOF ARE HEREBY EXTENDED IN ACCORDANCE WITH ACT APPROVED DECEMBER 13 1941 FOR A PERIOD NOT LATER THAN SIX MONTHS AFTER TERMINATION OF WAR X MEN SO DETAINED NOT ENTITLED TO ENLISTMENT ALLOWANCE CHANGE PRESENT LAW GOVERNING PAYMENT ENLISTMENT ALLOWANCE MEN WHO VOLUNTARILY REENLIST OR EXTEND ENLISTMENT IN REGULAR NAVY MARINE CORPS AND COAST GUARD X PROVISIONS SECTION 1422 REVISED STATUTES SUSPENDED EFFECTIVE DECEMBER 13 1941"

THUS, UNDER THE LAW AND REGULATIONS THEN IN EFFECT, YOUR RETENTION ON ACTIVE NAVAL SERVICE DURING THE WAR PERIOD WAS MANDATORY. THE FACT THAT YOU REENLISTED UPON THE EXPIRATION OF YOUR TERM OF NAVAL SERVICE WAS IMMATERIAL SO FAR AS YOUR OBLIGATION TO RENDER FURTHER ACTIVE SERVICE AFTER YOUR DISCHARGE WAS CONCERNED. IN THE CIRCUMSTANCES, IT IS CONCLUDED THAT YOU WERE DISCHARGED NOT FOR THE PURPOSE OF PERMANENTLY AND EFFECTIVELY SEPARATING YOU FROM THE NAVAL SERVICE BUT MERELY TO PERMIT YOU TO REENLIST ON THE FOLLOWING DAY. WE MUST HOLD, THEREFORE, THAT YOUR DISCHARGE DOES NOT COME WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISO SO AS TO ENTITLE YOU TO MUSTERING-OUT PAY.

SUBSEQUENT TO THE PERIOD OF HOSTILITIES, THE ABOVE-QUOTED PROVISO WAS AMENDED IN ORDER TO ENCOURAGE CONTINUED MILITARY SERVICE BY THE PERSONNEL CONCERNED AFTER EXPIRATION OF THEIR TERMS OF SERVICE. THAT AMENDMENT, SECTION 7 (B) OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 540, AUTHORIZED THE PAYMENT OF MUSTERING-OUT PAY UPON DISCHARGE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT. SINCE SECTION 7 (C) OF THAT ACT PROVIDED THAT SECTION 7 (B) WAS TO BE EFFECTIVE ONLY WITH RESPECT TO ENLISTMENTS, REENLISTMENTS, AND APPOINTMENTS IN THE NAVAL ESTABLISHMENT ON OR AFTER FEBRUARY 1, 1945, THE AMENDMENT IS NOT APPLICABLE IN YOUR CASE.

THE INFORMATION FURNISHED TO YOU BY THE LONG BEACH NAVAL STATION THAT A TEMPORARY OFFICER ACCEPTING A PERMANENT COMMISSION IS PAID MUSTERING-OUT PAY, AS STATED IN YOUR RECENT LETTER, APPEARS TO BE IRRELEVANT IN DETERMINING YOUR ENTITLEMENT TO MUSTERING-OUT PAY ON THE BASIS OF YOUR COMMISSIONED SERVICE INASMUCH AS THE FILE DOES NOT DISCLOSE THAT YOU WERE PERMANENTLY COMMISSIONED IN THE REGULAR NAVY AT ANY TIME.