B-154729, DEC. 7, 1964, 44 COMP. GEN. 327

B-154729, DEC. 7, 1964, 44 COMP. GEN. 327

UNIFORMS - MILITARY PERSONNEL - OFFICERS - TEMPORARY - RESERVE APPOINTMENT WITHOUT INTERRUPTION OF ACTIVE DUTY AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS WHO WHEN HIS TEMPORARY APPOINTMENT AS A REGULAR COMMISSIONED OFFICER UNDER 34 U.S.C. 350A, AT WHICH TIME HE RECEIVED AN INITIAL UNIFORM ALLOWANCE OF $250, IS TERMINATED AND HE SIMULTANEOUSLY IS DISCHARGED AS AN ENLISTED MEMBER AND ACCEPTS A PERMANENT COMMISSION IN THE MARINE CORPS RESERVE IS NOT ENTITLED TO THE $100 ADDITIONAL ACTIVE DUTY ALLOWANCE PROVIDED BY 37 U.S.C. 416 (B), THE MEMBER UPON ACCEPTANCE OF A PERMANENT COMMISSION IN THE RESERVE WHEN HIS TEMPORARY REGULAR COMMISSION WAS TERMINATED CONTINUED ON AN UNINTERRUPTED ACTIVE DUTY CAREER THAT MAKES HIM INELIGIBLE TO RECEIVE AN EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE UPON INITIAL ENTRANCE ON DUTY AS A RESERVE OFFICER, PAYMENT OF SUCH AN ADDITIONAL ALLOWANCE WOULD BE IN EFFECT A DUPLICATE PARTIAL PAYMENT CONFERRING A LARGER INITIAL ALLOWANCE ON THE OFFICER THAN THAT PROVIDED FOR OTHER RESERVE OFFICERS.

TO MAJOR S. A. WEIMER, JR., UNITED STATES MARINE CORPS, DECEMBER 7, 1964:

BY FIRST INDORSEMENT DATED JULY 13, 1964, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER DATED JUNE 11, 1964, REQUESTING AN ADVANCE DECISION AS TO THE PROPER AMOUNT THAT MAY BE CREDITED TO THE PAY ACCOUNT OF CAPTAIN HARRY P. JONES, U.S. MARINE CORPS RESERVE, FOR ADDITIONAL ACTIVE DUTY UNIFORM ALLOWANCE DUE RESERVE OFFICERS, YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC-781 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER YOU STATE THAT CAPTAIN JONES HAD PREVIOUSLY SERVED AS AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS, AND ON JUNE 22, 1954, RECEIVED A TEMPORARY APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR MARINE CORPS UNDER THE PROVISIONS OF 34 U.S.C. 350A, AT WHICH TIME HE RECEIVED AN INITIAL UNIFORM ALLOWANCE OF $250. ON JULY 17, 1961, HIS TEMPORARY APPOINTMENT WAS TERMINATED AND HE WAS DISCHARGED AS AN ENLISTED MEMBER FOR THE CONVENIENCE OF THE GOVERNMENT TO ACCEPT AN APPOINTMENT AS AN OFFICER IN THE MARINE CORPS RESERVE, WHICH HE ACCEPTED ON JULY 18, 1961, AND WAS ASSIGNED TO EXTENDED ACTIVE DUTY. YOU STATE FURTHER THAT SINCE 37 U.S.C. 416 (B) PROVIDES IN PART THAT AN OFFICER IS ENTITLED TO NOT MORE THAN $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS, AND PARAGRAPHS 044150-044151 OF THE NAVY COMPTROLLER MANUAL DO NOT PRESCRIBE AN AMOUNT IN THE CIRCUMSTANCE OF CAPTAIN JONES' CASE, DOUBT EXISTS AS TO WHAT AMOUNT MAY BE CREDITED TO HIS ACCOUNT. ALSO, ON THE BASIS THAT 37 U.S.C. 416 (B), AS IMPLEMENTED BY THE REGULATIONS REFERRED TO ABOVE, ASSUMES THAT AN OFFICER IN THIS CATEGORY WOULD NOT BE ENTITLED TO THE ADDITIONAL UNIFORM ALLOWANCE, YOU QUESTION WHETHER OUR DECISIONS, B- 112407, DATED MARCH 29, 1963, 42 COMP. GEN. 550; SEPTEMBER 16, 1963, 43 COMP. GEN. 265; AND MAY 13, 1964, 43 COMP. GEN. 729, HAVE THE EFFECT OF NULLIFYING THE PROHIBITIONS CONTAINED IN PARAGRAPHS 044150-044151 OF THE NAVY COMPTROLLER MANUAL.

SECTIONS 415 (A) TO (C) AND 416 OF THE REVISED TITLE 37, UNITED STATES CODE, AS ENACTED BY THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, 76 STAT. 477, WERE PREVIOUSLY CONTAINED IN 37 U.S.C. 255 (1958 ED.). SECTION 255 CONTAINED THREE SUBSECTIONS AUTHORIZING UNIFORM ALLOWANCES TO OFFICERS OF A RESERVE COMPONENT AS FOLLOWS: SUBSECTION (A) AUTHORIZING AN INITIAL UNIFORM ALLOWANCE OF NOT TO EXCEED $200, SUBSECTION (B) A QUADRENNIAL MAINTENANCE UNIFORM ALLOWANCE OF NOT TO EXCEED $50 AND SUBSECTION (C) AN EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE OF NOT TO EXCEED $100. SECTION 415 (E) OF THE REVISED TITLE 37 WAS PREVIOUSLY CONTAINED IN 37 U.S.C. 256, WHICH PROVIDED THAT ENLISTED MEMBERS OF THE NAVY, MARINE CORPS, OR COAST GUARD ARE ENTITLED TO $250 AS A UNIFORM GRATUITY UPON INITIAL APPOINTMENT UNDER SECTION 5597 OF TITLE 10 OR UNDER SECTION 435 OF TITLE 14. THE REVISED SECTION 415 (E) PROVIDES FOR SUCH ENTITLEMENT UPON INITIAL APPOINTMENT AS A TEMPORARY OFFICER UNDER SECTION 5596 OR 5597 OF TITLE 10, OR SECTION 435 OF TITLE 14. THE NAVY REGULATIONS IMPLEMENTING THESE PROVISIONS, PERTAINING TO MARINE CORPS OFFICERS, ARE CONTAINED IN PARAGRAPH 044150, NAVY COMPTROLLER MANUAL. THEY SET THE INITIAL UNIFORM ALLOWANCE OF OFFICERS OF THE MARINE CORPS RESERVE GENERALLY AS $200, THE UNIFORM MAINTENANCE ALLOWANCE AS $50 AND THE EXTENDED ACTIVE DUTY ALLOWANCE OF $100. PARAGRAPH 044150-3, PROVIDES IN PERTINENT PART THAT OFFICERS OF THE MARINE CORPS RESERVE WHO ENTERED ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING ON OR AFTER JUNE 25, 1950, ARE ENTITLED, FOR EACH TIME OF SUCH ENTRY OR RE-ENTRY ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF MORE THAN 90 DAYS' DURATION, TO A SUM OF $100 AS REIMBURSEMENT FOR ADDITIONAL UNIFORMS AND EQUIPMENT REQUIRED ON SUCH DUTY, EXCEPT THAT SUCH ALLOWANCE IS NOT PAYABLE TO OFFICERS IN VARIOUS CATEGORIES, INCLUDING, AN OFFICER ENTERING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WITHIN 2 YEARS AFTER COMPLETING A PREVIOUS PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING FOR WHICH AN ACTIVE DUTY UNIFORM ALLOWANCE WAS PAID, AND AN OFFICER ENTERING ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WITHIN 2 YEARS FOLLOWING SEPARATION FROM ACTIVE DUTY AS A REGULAR OFFICER OF THE ARMED FORCES. PARAGRAPH 044150-4, PROVIDES THAT UPON INITIAL TEMPORARY APPOINTMENT AS A COMMISSIONED OR WARRANT OFFICER IN THE REGULAR MARINE CORPS UNDER THE ACT OF JULY 24, 1941 (10 U.S.C. 5597), OR THE OFFICER PERSONNEL ACT OF 1947 (34 U.S.C. 3C (F) (1946 ED., SUPP. I) (, AN ENLISTED MEMBER WILL BE PAID AN INITIAL UNIFORM ALLOWANCE OF $250.

WE HELD IN THE DECISION OF MARCH 29, 1963, THAT THE PROVISO CONTAINED IN 37 U.S.C. 255 (A) (1958 ED.) TO THE EFFECT THAT ANY INDIVIDUAL WHO SERVED ON ACTIVE DUTY AS AN OFFICER OF A REGULAR COMPONENT OF THE ARMED FORCES MAY NOT BE QUALIFIED FOR ENTITLEMENT UNDER THAT SECTION BY DUTY PERFORMED WITHIN 2 YEARS AFTER SEPARATION FROM SUCH REGULAR COMPONENT, RELATED TO ALL THREE TYPES OF UNIFORM ALLOWANCES. HENCE, UNDER SUCH STATUTORY PROVISIONS, AN OFFICER SEPARATED FROM A REGULAR COMPONENT AND APPOINTED AN OFFICER IN THE RESERVE DID NOT BECOME ENTITLED TO THE EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE OF $100 UNTIL AFTER A PERIOD OF 2 YEARS FROM DATE OF HIS RESERVE APPOINTMENT. HOWEVER, UPON RECODIFICATION AS 37 U.S.C. 415 AND 416, THIS 2-YEAR LIMITATION WAS CONTAINED IN 37 U.S.C. 415 ONLY, PERTAINING TO THE INITIAL UNIFORM ALLOWANCE OF $200, AND WE HELD THAT UNDER THE PROVISIONS OF 37 U.S.C. 416, A RESERVE OFFICER TRANSFERRED FROM THE REGULAR SERVICE NEED NOT WAIT 2 YEARS TO BECOME ENTITLED TO THE EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE OF $100. IN THE DECISION OF SEPTEMBER 16, 1963, WE HELD THAT THE PROVISO FORMERLY CONTAINED IN SECTION 255 (C) OF TITLE 37 (1958 ED.) AND UPON RECODIFICATION, CONTAINED IN 37 U.S.C. 416 (B) WHICH PROVIDES THAT THE EXTENDED ACTIVE DUTY UNIFORM ALLOWANCE OF $100 WAS NOT PAYABLE TO ANY OFFICER ENTERING ON ACTIVE DUTY WITHIN 2 YEARS AFTER COMPLETING A PREVIOUS PERIOD OF ACTIVE DUTY OF MORE THAN 90 DAYS' DURATION WAS CONSIDERED TO BE APPLICABLE ONLY TO NON-REGULAR OFFICER SERVICE AND, THEREFORE, DID NOT APPLY TO AN OFFICER WHO ENTERED ON A TOUR OF ACTIVE DUTY AS A RESERVE OFFICER WITHIN 2 YEARS AFTER COMPLETING A PERIOD OF ACTIVE DUTY IN A REGULAR COMPONENT. THIS DECISION, HOWEVER, WAS NOT CONCERNED WITH INDIVIDUALS WHO HELD TEMPORARY APPOINTMENTS IN THE REGULAR MARINE CORPS. IN THIS REGARD IT MAY BE NOTED THAT SINCE THE REVISED PROVISIONS WERE MADE EFFECTIVE NOVEMBER 1, 1962 (SEE SECTION 15 OF THE ABOVE ACT OF SEPTEMBER 7, 1962, 37 U.S.C. PREC. 101 NOTE) THEY WOULD HAVE NO APPLICATION PRIOR TO THAT DATE IN ANY EVENT.

UNLIKE REGULAR OFFICERS WITH PERMANENT TENURE, TEMPORARY OFFICERS APPOINTED FROM ENLISTED STATUS WERE AND ARE ENTITLED TO AN INITIAL UNIFORM GRATUITY IN THE SUM OF $250 UNDER EITHER THE ACT OF JULY 24, 1941, THE PROVISIONS OF SECTION 306 OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 20 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 627, 37 U.S.C. 256 (1958 ED.) OR 37 U.S.C. 415 (E). IN SUCH CIRCUMSTANCES IT APPEARS TO BE THE VIEW OF THE MARINE CORPS THAT PAYMENT OF THE $100 ADDITIONAL UNIFORM ALLOWANCE WAS NEVER INTENDED IN THE CASE OF A "TEMPORARY" OFFICER OF THE REGULAR MARINE CORPS WHO CONTINUES ON AN UNINTERRUPTED ACTIVE DUTY CAREER AFTER HAVING REVERTED TO HIS PERMANENT ENLISTED STATUS FROM WHICH HE WAS SIMULTANEOUSLY DISCHARGED TO ACCEPT AN APPOINTMENT TO A PERMANENT COMMISSION IN THE MARINE CORPS RESERVE.

IN B-73731, APRIL 9, 1948, WE CONSIDERED THE CASE OF AN ENLISTED MEMBER OF THE MARINE CORPS WHO WAS APPOINTED A TEMPORARY OFFICER OF THE REGULAR MARINE CORPS UNDER THE ACT OF JULY 24, 1941, AND SUBSEQUENTLY REVERTED TO HIS PERMANENT ENLISTED STATUS FROM WHICH HE WAS SIMULTANEOUSLY DISCHARGED TO ACCEPT AN APPOINTMENT TO A PERMANENT COMMISSION IN THE MARINE CORPS RESERVE AND CONTINUE ON EXTENDED ACTIVE DUTY. THE QUESTION AROSE AS TO WHETHER THE OFFICER WAS ENTITLED TO THE $100 ADDITIONAL UNIFORM GRATUITY UNDER THE PROVISIONS OF SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, UPON REPORTING FOR ACTIVE DUTY AS A RESERVE OFFICER, SINCE HE PREVIOUSLY HAD BEEN PAID A UNIFORM GRATUITY IN THE SUM OF $250 UNDER THE ACT OF JULY 24, 1941, WHEN HE WAS APPOINTED A TEMPORARY REGULAR OFFICER. ON THE BASIS THAT THE PURPOSE OF INITIAL UNIFORM ALLOWANCE PROVISIONS OF THE 1941 ACT WAS TO GRANT TO TEMPORARY OFFICERS THE COMBINED $150 AND $100 ALLOWANCES AUTHORIZED BY SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, IT WAS HELD, IN SUBSTANCE, THAT THE GRANTING OF THE $100 ALLOWANCE PROVIDED BY THE NAVAL RESERVE ACT TO AN OFFICER OF THE MARINE CORPS RESERVE WHO, WHILE A TEMPORARY OFFICER OF THE REGULAR MARINE CORPS, HAD ALREADY RECEIVED THE EXACT EQUIVALENT THEREOF AND FOR THE SAME PURPOSE WOULD CONSTITUTE A DUPLICATE PAYMENT NOT CONTEMPLATED BY THE LAW. SEE, ALSO, 28 COMP. GEN. 318, AT PAGE321. IN 32 COMP. GEN. 255, AT PAGE 258, IN ANSWER TO QUESTION 1, WE STATED THAT AN OFFICER OF THE NAVAL OR MARINE CORPS RESERVE, WHO HAD ENTERED ON ACTIVE DUTY ON OR AFTER JUNE 25, 1950, AND HAD RECEIVED UNIFORM ALLOWANCES OF $100 AND $150 UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, WAS NOT ENTITLED TO THE $100 PROVIDED BY SUBSECTION (C) OF SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 37 U.S.C. 255 (C) (1958 ED.). WE STATED THAT TO CONSTRUE SUBSECTION 243 (C) AS PROVIDING AN ADDITIONAL $100 TO SUCH OFFICERS WOULD RESULT IN THEIR RECEIVING AN AGGREGATE OF $350 EACH, INCIDENT TO ONE REPORTING FOR EXTENDED ACTIVE DUTY, WHEREAS ON AND AFTER THE EFFECTIVE DATE OF THE 1952 ACT, AN OFFICER COULD RECEIVE AN AGGREGATE OF NO MORE THAN $300 INCIDENT TO A SINGLE ENTRY ON ACTIVE DUTY.

AS IN THOSE CASES THERE IS NOT HERE INVOLVED ANY QUESTION WHETHER A RESTRICTION IMPOSED BY THE LAW ON THE PAYMENT OF AN ADDITIONAL UNIFORM ALLOWANCE TO INDIVIDUALS OTHERWISE ENTITLED TO THE ALLOWANCE RELATES TO A TOUR OF DUTY AS A REGULAR OR A RESERVE OFFICER. THE QUESTION INVOLVES THE INITIAL UNIFORM ALLOWANCE ENTITLEMENTS INTENDED BY THE STATUTE.

THERE HAS BEEN NO MATERIAL CHANGE IN THE LAW PROVIDING THE INITIAL UNIFORM ALLOWANCES FOR TEMPORARY MARINE CORPS AND NAVAL OFFICERS SINCE THE DECISION OF APRIL 9, 1948, AND THOSE REPORTED AT 28 COMP. GEN. 321 AND 32 COMP. GEN. 255. PRESUMABLY IF CONGRESS HAD INTENDED TO CHANGE THE LONGSTANDING APPLICATION OF THE LAW IN THAT RESPECT IT WOULD HAVE DONE SO IN UNMISTAKABLE LANGUAGE AND NOT THROUGH INDIRECTION BY THE DEVICE OF REARRANGING A TOUR-OF-DUTY RESTRICTION ON THE PAYMENT OF THE ADDITIONAL UNIFORM ALLOWANCE. ESPECIALLY WOULD THIS APPEAR TO BE SO SINCE PAYMENT OF THE ADDITIONAL $100 TO THOSE TEMPORARY OFFICERS NOT ONLY WOULD BE IN EFFECT A DUPLICATE PARTIAL PAYMENT OF THE ALLOWANCE BUT WOULD CONFER UPON THEM A LARGER INITIAL UNIFORM ALLOWANCE THAN IS PROVIDED FOR ANY OTHER RESERVE OFFICER UPON HIS INITIAL ENTRANCE ON ACTIVE DUTY AS A RESERVE OFFICER.

ACCORDINGLY, IT IS OUR VIEW THAT SINCE CAPTAIN JONES RECEIVED A $250 UNIFORM GRATUITY UPON HIS APPOINTMENT AS A TEMPORARY OFFICER HE IS NOT ENTITLED UNDER PRESENT STATUTORY PROVISIONS TO THE $100 ADDITIONAL UNIFORM ALLOWANCE UPON HIS INITIAL ENTRANCE ON ACTIVE DUTY AS A RESERVE OFFICER.