B-44054, OCTOBER 1, 1945, 25 COMP. GEN. 313

B-44054, OCTOBER 1, 1945, 25 COMP. GEN. 313

PAY - SERVICE CREDITS - NAVAL RESERVE - PROHIBITION AGAINST CONCURRENT MEMBERSHIP IN MILITARY ORGANIZATIONS AS AFFECTING COUNTING OF SERVICE UNDER COMMISSION SINCE THE PROHIBITION IN THE NAVAL RESERVE ACTS AGAINST NAVAL RESERVISTS BEING MEMBERS OF A MILITARY ORGANIZATION HAS NO OPERATION TO AFFECT AN OFFICER'S DE JURE STATUS IN THE NAVAL RESERVE, ACQUIRED UPON ACCEPTANCE OF A COMMISSION IN THE NAVAL RESERVE WHILE STILL A MEMBER OF THE OFFICERS' RESERVE CORPS (25 COMP. GEN. 241,) THE OFFICER IS ENTITLED TO COUNT FOR PAY PURPOSES, AS A NAVAL RESERVE OFFICER ON ACTIVE DUTY, SERVICE IN THE NAVAL RESERVE FROM THE DATE HE ACCEPTED HIS COMMISSION THEREIN, REGARDLESS OF WHETHER HE PERFORMED, AFTER TERMINATION OF HIS OLD COMMISSION,"AN AFFIRMATIVE ACT" CONSTITUTING AN ACCEPTANCE BY CONDUCT OF HIS NEW COMMISSION. 24 COMP. GEN. 251, MODIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 1, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 28, 1945, AS FOLLOWS:

REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S DECISION, B- 44054, DATED SEPTEMBER 22, 1944, WHICH DENIED THE RIGHT OF COMMANDER EUGENE HENRY MOYLE, MC-V/S), USNR, TO COUNT FOR PAY PURPOSES CERTAIN INACTIVE SERVICE IN THE NAVAL RESERVE.

AT THE TIME OF RENDITION OF THE ABOVE-MENTIONED DECISION, NO EVIDENCE HAD BEEN PRESENTED BY THE NAVY DEPARTMENT CONCERNING THE PERFORMANCE OF SOME AFFIRMATIVE ACT BY COMMANDER MOYLE INDICATING HIS INTENTION TO ACCEPT SUCH COMMISSION SUBSEQUENT TO THE REMOVAL OF THE DISQUALIFICATION IN HIS CASE.

IN CONNECTION WITH THE ABOVE THERE IS FORWARDED HEREWITH AN UNDATED LETTER FROM THE BUREAU OF NAVAL PERSONNEL, WITH ENCLOSURE OF A CERTIFIED COPY OF AN ANNUAL FITNESS REPORT REQUIRED BY THE BUREAU OF NAVAL PERSONNEL OF ALL RESERVE OFFICERS ON INACTIVE DUTY, WHICH REPORT, IT WILL BE OBSERVED, WAS EXECUTED BY COMMANDER MOYLE ON JUNE 26, 1935.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT, ON THE BASIS OF THE ADDITIONAL EVIDENCE TRANSMITTED HEREWITH, THE BUREAU OF NAVAL PERSONNEL IS NOW AUTHORIZED TO CHANGE THE SERVICE RECORD OF COMMANDER MOYLE TO SHOW THAT LONGEVITY PAY SERVICE CREDIT OF THIS OFFICER IN THE U.S. NAVAL RESERVE WILL BEGIN AS OF JUNE 26, 1935.

IN THE DECISION OF SEPTEMBER 22, 1944, B-44054, 24 COMP. GEN. 251, REFERRED TO IN YOUR LETTER, IT WAS HELD, IN EFFECT, IN VIEW OF THE EXPRESS PROHIBITION CONTAINED IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1081, THAT "NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA," THAT THE ACCEPTANCE BY LIEUTENANT COMMANDER MOYLE OF A COMMISSION IN THE NAVAL RESERVE ON SEPTEMBER 13, 1934, WAS INEFFECTIVE BECAUSE HE THEN WAS A MEMBER OF THE MEDICAL CORPS RESERVE. HOWEVER, IT WAS POINTED OUT THAT SUCH CIRCUMSTANCES DID NOT INVALIDATE THE COMMISSION IN THE NAVAL RESERVE NOR PREVENT VALID ACCEPTANCE THEREOF, AFTER REMOVAL OF THE DISQUALIFICATION, EITHER BY FORMAL ACCEPTANCE OR ACCEPTANCE BY CONDUCT EVIDENCED BY "SOME AFFIRMATIVE ACT BY THE APPOINTEE INDICATING HIS INTENTION TO ACCEPT SUCH COMMISSION.' BUT IT WAS HELD THAT THE MERE RECEIPT BY THE OFFICER OF A LETTER FROM APPROPRIATE NAVAL AUTHORITY NOTIFYING HIM OF HIS ASSIGNMENT TO BASE HOSPITAL UNIT NO. 2, NEW YORK, NEW YORK,"FOR DUTY IN THE EVENT OF MOBILIZATION" PROPERLY COULD NOT BE CONSIDERED AN "AFFIRMATIVE ACT" ON THE PART OF THE OFFICER LEGALLY SUFFICIENT TO CONSTITUTE AN ACCEPTANCE BY CONDUCT OF SUCH COMMISSION IN THE NAVAL RESERVE.

IN THE MORE RECENT DECISION ADDRESSED TO YOU UNDER DATE OF AUGUST 31, 1945, B-44092, 25 COMP. GEN. 241, THERE WAS FURTHER CONSIDERED THE OPERATION OF THE PROVISIONS OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, SUPRA, AND THE LIKE PROVISION CONTAINED IN THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, WITH RESPECT TO CIRCUMSTANCES SIMILAR TO THOSE HERE INVOLVED, THAT IS, THE ACCEPTANCE OF A COMMISSION IN THE NAVAL RESERVE BY A PERSON THEN HOLDING A COMMISSION IN THE OFFICERS' RESERVE CORPS OF THE ARMY, AND IT WAS CONCLUDED THAT THE SAID PROHIBITION CONTAINED IN THE ABOVE-MENTIONED NAVAL RESERVE ACTS DID NOT PREVENT A VALID ACCEPTANCE OF THE APPOINTMENT IN THE NAVAL RESERVE, SINCE BOTH OFFICES ARE UNDER THE SAME APPOINTING POWER AND, IN SUCH CIRCUMSTANCE, THE APPOINTMENT TO THE SECOND OFFICE MAY BE VIEWED AS AN ACCEPTANCE OF RESIGNATION FROM THE FIRST OFFICE. IT WAS SAID IN THAT DECISION:

SINCE THE PRESIDENT HAS THE POWER OF APPOINTMENT AND DISCHARGE AS TO OFFICERS IN BOTH THE NAVAL RESERVE AND THE OFFICERS' RESERVE CORPS, I BELIEVE THE CONCLUSION IS WARRANTED THAT THE APPOINTMENT OF A MEMBER OF THE OFFICERS' RESERVE CORPS AS AN OFFICER IN THE NAVAL RESERVE IS TANTAMOUNT TO AN ACCEPTANCE OF THE OFFICER'S RESIGNATION FROM HIS COMMISSION IN THE OFFICERS' RESERVE CORPS, SO AS TO CONSTITUTE HIM A DE JURE OFFICER IN THE NAVAL RESERVE UNDER THE LAST APPOINTMENT.

APPLYING THE PRINCIPLES OF THE LATTER DECISION, IT NOW IS UNNECESSARY IN THE PRESENT CASE TO CONSIDER WHETHER THE EXECUTION OF AN ANNUAL FITNESS REPORT BY LIEUTENANT COMMANDER MOYLE, AS REQUIRED BY REGULATIONS OF THE NAVAL RESERVE, CONSTITUTED "AN AFFIRMATIVE ACT" ON HIS PART SUCH AS MIGHT BE CONSIDERED AS AN ACCEPTANCE BY CONDUCT OF THE COMMISSION IN THE NAVAL RESERVE AND YOU ARE ADVISED THAT, IRRESPECTIVE OF THAT MATTER, LIEUTENANT COMMANDER MOYLE IS ENTITLED TO CREDIT FOR SERVICE IN THE NAVAL RESERVE FROM SEPTEMBER 13, 1934--- THE DATE HE ACCEPTED THE COMMISSION IN THAT ORGANIZATION.

THE SAID PRIOR DECISION OF SEPTEMBER 22, 1944, IN THE PRESENT CASE IS MODIFIED ACCORDINGLY.