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[B-101631]

Discharges and Dismissals—Retroactive

The discharge of a Marine Corps Reservist who enlisted as an aviation cadet in the United States Air Force may not be retroactively dated so as to effect the discharge of the enlisted man prior to the actual date of his discharge, notwithstanding the Marine Corps Manual provides that upon enlistment of an enlisted reservist in another branch of the regular service such reservist will be discharged effective the day prior to such enlistment. The enlistment of a member of the Marine Corps Reserve as an aviation cadet in the United States Air Force does not affect his de jure status as a member of said Reserve, and therefore such member is entitled to credit for basic pay purposes for service in the Marine Corps until his final discharge therefrom and to pay and allowances for active duty performed in said Corps subsequent to his discharge from the l'nited States Air Force.

Assistant Comptroller General Yates to Captain M. O. Sadler, U. S. Marine Corps, July 5, 1951:

By endorsement of the Commandant of the Marine Corps, dated February 26, 1951, there was received your letter of February 14, 1951, with enclosures, requesting decision as to whether Bernard G. Terry (601420) is entitled to be credited, for basic pay purposes as private, first class, United States Marine Corps Reserve, with time served subsequent to August 11, 1949, under his enlistment of December 23, 1917, in the Marine Corps Reserve, it appearing that he enlisted as an aviation cadet in the United States Air Force on August 12, 1949, and that on December 18, 1950, he was given a discharge from the Marine Corps Reserve purporting to be effective as of August 11, 1919, because of his Air Force enlistment. Also, question is presented as to Terry's right to active-duty pay for the period November 8, 1930, to December 18, 1950, under Marine Corps active-duty orders of October 13, 1950.

The record in the case shows that Terry enlisted in the United States Marine Corps on April 29, 1916, was discharged therefrom on May 5, 1947, and enlisted in the United States Marine Corps Reserve on December 23, 1917. While in an inactive status in the Marine Corps Reserve, he enlisted in the United States Air Force as an aviation cadet on August 12, 1919, and was discharged therefrom on October 13, 1949, by reason of elimination from flying training. Apparently without knowledge of the enlistment in the Air Force, the Director, Eleventh Marine Corps Reserve District, on October 13, 1950, issued orders assigning Terry to extended active duty. The enlisted man entered on such duty on November 8, 1950. Subsequently, upon receipt of information as to his enlistment in the Air Force, Terry was discharged from the Marine Corps Reserve on December 18, 1950, such discharge purporting to be effective as of August

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11, 1949. He was paid $70 on December 6, 1950, apparently as a portion of pay and allowances for the period beginning November 8, 1950.

In view of the provision in section 4 of the Naval Reserve Act of 1938, 52 Stat. 1176, as amended, to the effect that no member of the Naval Reserve "shall be a member of any other naval or military organization except the Naval Militia” and in view of the construction placed on such provision by this Office in 23 Comp. Gen. 173 and 25 Comp. Gen. 241, you express doubt as to the effect of the retroactive discharge of December 18, 1950.

. Section 4 of the Naval Reserve Act of 1938, supra, provides in part:

That no officer or man of the Naval Reserve shall be a member of any other naval or military organization except the Naval Militia Section 6 of the above act, 52 Stat. 1176, provides in part:

That officers and enlisted men of the Naval Reserve on active duty shall be subject to separation therefrom in the same manner as may be provided by or in pursuance of law for the separation of officers and enlisted men of the Regular Navy

The above provisions of sections 4 and 6 are made applicable to the Marine Corps Reserve by section 2 of the said act, 52 Stat. 1175.

Paragraph 10356, Marine Corps Manual, 1949, provides :

Upon receipt of official notification of the enlistment of an enlisted reservist in the Regular Army, Navy, Coast Guard or Air Force, the director, Marine Corps Reserve district, or the commanding officer concerned will effect the discharge of the reservist as of the day prior to such enlistment, and forward the discharge certificate to his new organization, if known, otherwise to the Commandant of the Marine Corps with a statement as to reason for non-delivery.

In 23 Comp. Gen. 173, cited in your letter, it was held that the prohibition in section 4 of the Naval Reserve Act of 1938, supra, against Naval Reservists becoming members of other naval or military organizations disqualified a Naval Reserve officer for enlistment in the National Guard, and hence, that such enlistment did not divest him of his status as a Naval Reserve officer. In 25 Comp. Gen. 241, also cited in your letter, it was held that the appointment of a member of the Officers' Reserve Corps as a Naval Reserve officer—the President having the power of appointment and of discharge as to both officeswas tantamount to the acceptance of the officer's resignation from the Officers' Reserve Corps, and hence, that the above prohibition did not operate to prevent his becoming a de jure officer of the Naval Reserve upon his appointment therein. Such latter decision, involving officer status only, is not applicable here.

In the present case, but for the above-quoted provisions of the Marine Corps Manual and the retroactive feature of the discharge of December 18, 1950, issued in accordance therewith, there would appear to be no doubt that Terry's enlistment in the Air Force did not affect his de jure status as a member of the Marine Corps Reserve, 23 Comp. Gen. 173, supra. Moreover, regardless of the matter of statutory prohibition against membership in other naval or military organizations, it would appear to be axiomatic that, during a period of war or national emergency, an enlisted man of the Marine Corps Reserve could not, merely by enlisting in another naval or military organization, cause himself to be separated from the Marine Corps Reserve and thus relieve himself of the obligation of active service therein. It follows that Terry's enlistment of August 12, 1949, in the Air Force did not, of itself, affect his Marine Corps Reserve status.

There remains the question of the retroactive effect, if any, of the discharge of December 18, 1950. The said discharge purportedly was effective as of August 11, 1949. However, Terry actually performed active service in the Marine Corps Reserve subsequent to that date and since he was a de jure member of that organization when such active service was performed, the terms of the discharge in effect denying de jure status during such active service, and prior thereto, would appear to be contrary to law and to fact. Compare Digest of Opinions

. of The Judge Advocate General of the Army, 1912-40, page 378, reporting a case in which it was held that a discharge certificate is merely evidence of a discharge and, hence, that the issuance of a certificate showing an enlisted man to have been discharged on a date when he was not in fact discharged would be improper. The conclusion appears to be required, therefore, that Terry's discharge from the Marine Corps Reserve was not effective prior to December 18, 1950.

Accordingly, the enclosures received with your letter are returned herewith and you are advised that you are authorized to credit Terry with active duty pay and allowances from November 8 to December 18, 1950-less any amount already paid to him for such period—on the basis of service in the Marine Corps from April 29, 1946, to May 5, 1947, and service in the Marine Corps Reserve from December 23, 1947, to December 18, 1950.

[B-103157]

Savings Bonds-Purchase by Pay Roll Deductions—Use of Blanket Form of Receipt for Portion of Salary Represented by Payment in Bonds

The proposed use of a blanket form of receipt for salary and release from claim in the purchase of United States Savings. Bonds by an employee in the name of another person through pay roll deductions will furnish adequate acquittance to

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the Government for payment to the employee of the portion of his salary repre-
sented by the payment in bonds and eliminate the receipt for salary now required
each time a bond is issued. 21 Comp. Gen. 942, modified.
Comptroller General Warren to the Secretary of Agriculture, July
5, 1951:

Reference is made to letter of March 1, 1951, from the Acting Director of Finance, submitting for the consideration of this Office an employee suggestion proposing that existing procedures which require an employee to execute a form of receipt for salary and release from claim, “Receipt for Salary Payment in United States Savings Bonds", each time a bond is issued in the name of a person other than the employee in accordance with the employee's previously furnished authorization, be amended to authorize the use of a blanket form of receipt for salary and release from claim, same title as above, such document to remain in effect until the authorization is either changed or terminated.

A careful study of the matter indicates that the suggestion is a meritorious one and that a saving to the Government would result in the adoption of the proposed form, and inasmuch as the procedure involving its use appears to furnish adequate acquittance to the Government for payment to the employee of that portion of his salary represented by payment in bonds, this Office will not object to the use by the Department of the suggested form. Treasury Department Form No. 2254 would accomplish the same result by eliminating the words “to me” from the end of the second sentence of the employee's statement of authorization and adding to the last sentence thereof the following: “and I hereby release the Federal Government from any claim for deductions from my salary made pursuant to this authorization."

21 Comp. Gen. 942 is modified accordingly.

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[B-104080]

Classification-Position Reallocations—Salary Rates

The Civil Service Commission is authorized under the Classification Act of 1949 to promulgate a regulation saving to employees salaries attached to positions reallocated downward, where the employees occupied positions on the effective date of Title VI of the act-establishing basic compensation schedules—which immediately prior to such date were subject to the Classification Act of 1923, as amended, and which were initially allocated to any of the grades of the Classification Act of 1949 and thereafter reduced so long as such employees remain in the same positions which they occupied on the effective date of Title VI of the act.

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Comptroller General Warren to the Chairman, United States Civil Service Commission, July 6, 1951:

Reference is made to your letter of June 14, 1951, requesting a decision as to whether, under section 802 (a) (7) of the Classification Act of 1949, 63 Stat. 969, the Civil Service Commission is authorized to promulgate a proposed regulation, quoted in your letter, as follows:

Employees who on the effective date of Title VI of the Classification Act of 1949 occupied positions (1) which immediately prior to such date were subject to the Classification Act of 1923, as amended, (2) which were initially allocated to any of the grades of the Classification Act of 1949 in the manner prescribed therein, and (3) which thereafter are reduced below such grade, may continue to receive the same rates of basic compensation which they received on the effective date of the action taken to reduce the grade of such position, so long as they remain in the same positions which they occupied on the effective date of Title VI.

(1) The rate of basic compensation of a subsequent appointee to such position shall be fixed in accordance with the other applicable provisions in this subpart.

The stated purpose of the proposed regulation is to save to a large group of employees the existing salaries attached to their positions which are to be reallocated downward.

Section 802 (a) (7) of the Classification Act provides, among other things, that the rate of basic compensation to be received by any officer or employee to whom the act applies shall be governed by regulations issued by the Civil Service Commission in conformity with the act when his position is changed from one grade to another grade. In view of such provision, this Office would not object to otherwise proper payments of salary in accordance with the proposed regulation to employees falling within the purview thereof.

[B-104255]

Appropriations-Working Capital Funds-Establishment

The Nary Management Fund, 1951, established by section 406 of the National Security Act, as amended, is an appropriation within the meaning of the term any appropriations as used in section 405 of the act establishing the Working Capital Funds by the transfer thereto of unexpended balances of any appropriations of the military departments not carried to the surplus fund of the Treasury, provided no deficiency is incurred in any of the appropriations as a result of such transfer.

Acting Comptroller General Yates to the Secretary of Defense, July 9, 1951:

Reference is made to letter dated June 25, 1951, from the Assistant Secretary of Defense (Comptroller), requesting a decision as to the propriety of the proposed transfer of thirty million dollars

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