Since the night work here involved recurs each biweekly pay period and is regularly scheduled in advance we are of the view that it is regularly scheduled work, notwithstanding that it is scheduled to recur every other week instead of on at least one day of each of two consecutive work weeks, and that night differential compensation is properly payable therefor. The decision in 36 Comp. Gen. 657 is amplified accordingly.

[B-138775]

Military Personnel-Retired Pay-Survivor Annuity Option Elections-Correction of Military Records-Subsequent to Member's Death

A right of a member of the uniformed services to elect a survivorship annuity under the Uniformed Services Contingency Option Act of 1953, which arises as a result of the correction of a military record, comes into existence when the correction is made and such right may not be exercised in advance; therefore, an annuity election made by a retired Naval Reserve officer when he was not eligible to make an election does not have any force and effect when, after the officer's death, his military records are corrected to retroactively place him on the disability retired list at the time of release from active duty.

To Commander R. A. Wilson, Department of the Navy, August 5, 1959:

By second endorsement dated February 17, 1959, the Comptroller of the Navy forwarded your letter of January 15, 1959 (XR:HWM :mb, L 16-4/1), requesting an advance decision relative to the effect of an election form executed by a member under the Uniformed Services Contingency Option Act of 1953 prior to the correction of his military records to show that his name was placed on the retired list by reason of physical disability on March 27, 1946. The request was assigned submission No. DO-N-401 by the Military Pay and Allowance Committee, Department of Defense.

In your letter you relate that Commander Crawford N. Baganz, 126398, MC, USNR (Retired) (Deceased) was released from active duty in the Naval Reserve on March 26, 1946, and was transferred to the Retired Reserve without pay on January 1, 1954. Although not in a pay status, on April 5, 1954, he executed an election form showing option 1 at one-half reduced retired pay under the terms of the Uniformed Services Contingency Option Act of 1953, 67 Stat. 501. It appears that such election was received by the Bureau of Naval Personnel on April 29, 1954. Commander Baganz died on December 21, 1955. Subsequently, the Secretary of the Navy, on August 2, 1957, approved the decision and recommendation of the Board for Correction of Naval Records that naval records be corrected to show that Commander Baganz' name "was placed on the retired list by reason of physical disability on 27 March 1946 with

the rank and pay of CDR." As of March 26, 1946, it is stated that Commander Baganz had completed 4 years, 1 month, and 18 days service for basic pay purposes.

You point out in your letter that since Commander Baganz was in the Retired Reserve on April 5, 1954, the date he executed his election form, and had not been awarded retired pay, it does not appear that he was eligible to make such election. However, you suggest that had he been alive on August 2, 1957, when his name was placed retroactively on the disability retired list by the Board for Correction of Naval Records, he might have had an opportunity by virtue of our decision in 36 Comp. Gen. 586, to elect annuity benefits within 30 days after his receipt of notice of the award of retired pay. In view of the foregoing, you ask if Commander Baganz' election is valid, and if valid, you further ask the effective date of such election for the purpose of computing and deducting costs.

Section 3(a) of the Uniformed Services Contingency Option Act of 1953, as amended by the act of April 29, 1954, 68 Stat. 64, 37 U.S.C. 372, provides, in pertinent part, that:

An active member may elect, prior to the completion of eighteen years of service which is creditable in the computation of active-duty pay in the uniformed service of which he is a member, to receive a reduced amount of any retired pay which may be awarded him as the result of service in his uniformed service in order to provide one or more of the annuities specified in section 4, payable after his death in a retired status to his widow, child, or children, if such widow, child, or children are living at the date of his retirement. Where the active member is awarded retired pay by his uniformed service for physical disability prior to the completion of the eighteen years of service, the election may be made at the time of retirement. member who has heretofore completed the eighteen years of service may make this election within one year after the effective date of this Act. *** A person who is a former member on the effective date of the Act [November 1, 1953], and who is thereafter awarded retired pay by a uniformed service may make the election at the time he is awarded that pay. [Italics supplied.]

In our decision of February 8, 1957, B-130010, 36 Comp. Gen. 586, referred to in your letter, the officer concerned was alive on the date of the correction of his records and exercised his election under the Contingency Option Act after notification of such retroactive award of retired pay. While we have recognized that a survivor's annuity election may be made contemporaneously with the correction of the records so that the member would be placed in the same position he would have been in had he been awarded retired pay in the ordinary way as of the effective date shown by the corrected record, any right to elect an annuity under the Contingency Option Act which arose as a result of a correction of a record came into existence when that correction was made and could not be exercised in advance of that time. Since Baganz died before the correction of his records, it was impossible for him to exercise the right to make an election under the corrected record. The election

form he executed on April 5, 1954, when he was not eligible to make such election, has no force or effect. Accordingly, your first question is answered in the negative, rendering unnecessary an answer to your second question.

[B-139704]

Military Personnel-Transportation-Dependentë—Dislocation Allowance-Commissioned as Officers

The transportation of dependents of naval aviation cadets who are commissioned as officers and ordered to active duty is considered a movement from home, or from place which ordered to active duty, to the first duty station so that payment of a dislocation allowance for such travel is specifically prohibited by paragraph 9003-3 of the Joint Travel Regulations, and the fact that aviation cadets serve in a special enlisted grade is no different from serving in any other capacity while training for appointment as commissioned officer for payment of transportation of dependents of newly appointed officers.

To the Secretary of the Navy, August 6, 1959:

Reference is made to letter of May 7, 1959, from the Assistant Secretary of the Navy, PDTATAC Control No. 59-17, questioning the propriety of audit exceptions taken by our Navy Audit Branch to dislocation allowance payments made incident to permanent changes of station of members who were commissioned as officers following aviation cadet status. The exceptions were taken on the basis that such changes of station constituted a move from home to first station upon appointment, in connection with which payment of a dislocation allowance is prohibited by paragraph 9003–3, Joint Travel Regulations.

Section 303 (c) of the Career Compensation Act of 1949, 63 Stat. 814, as amended by section 2(12) of the Career Incentive Act of 1955, 69 Stat. 21, 37 U.S.C. 253 (c), authorizes payment of a dislocation allowance, under regulations approved by the Secretary concerned, to a member of the uniformed services whose dependents are authorized to move and actually do move in connection with his permanent change of station, but provides further that a member is not entitled to payment of a dislocation allowance when ordered from home to first duty station or from last station to home. Paragraph 9003-3, Joint Travel Regulations, provides that such allowance will not be payable in connection with permanent change of station travel performed "from home or from place from which ordered to active duty to first permanent duty station upon appointment, call to active duty, enlistment, reenlistment, or induction.” Paragraph 3003-1 of the Joint Travel Regulations promulgated pursuant to the authority contained in the Career Compensation Act of 1949, 63 Stat. 802, 37 U.S.C. 231 note, defines the term permanent change of station as including the change from home, or

from the place from which ordered to active duty, to first station upon appointment, call to active duty, enlistment, etc. Paragraph 7000 of these regulations cites paragraph 3003–1 and provides that, with certain stated exceptions, members of the uniformed services are entitled to transportation of deperdents at Government expense upon a permanent change of station for travel performed from the old station to the new permanent station, or between points otherwise authorized. Enlisted members of the uniform services generally who qualify for appointment as commissioned officers upon successfully completing officer candidate school or similar training are discharged from the enlisted status held while under instruction and are appointed and ordered to active duty as officers. The regulations referred to above consistently have been interpreted as entitling such officers upon appointment and orders to active duty to transportation of their dependents at Government expense from the place where located not to exceed the cost from the place from which ordered to active duty or from home of record to the permanent station. Since this authorization for movement of dependents includes authority for their travel from home, it is considered that payment of a dislocation allowance incident to such movement is barred by the provision of section 2(12) of the act of March 31, 1955, 69 Stat. 18, 21, 37 U.S.C. 253 (c), expressly barring payment of this allowance to members when ordered from home to first duty station.

Section 6911 of Title 10 of the United States Code designates the grade of aviation cadet as a special enlisted grade in the naval service and provides for the procurement of naval aviation cadets by enlistment of male citizens in such special enlisted grade and by the transfer of qualified members of the naval service to such special enlisted grade. It further provides that aviation cadets, presumably those who fail to qualify for commissions by successfully completing the course of cadet training, may be transferred to another enlisted grade or rating in the naval service, released from active duty, or discharged. Thus, the status in the special enlisted grade, whether acquired by enlistment from civil life or by transfer, begins and ends with the period of aviation cadet training.

The Career Compensation Act of 1949, clearly contemplates issuance of regulations to entitle an officer commissioned directly from civil life and ordered to active duty to transportation of his dependents and household effects from his home to his duty station. The fact that a member has served for a time in some other status has not been regarded a sufficient ground to require discrimination against such member by denying him transportation of his dependents incident to his appointment and orders to active duty as an officer. We perceive no material difference between serving in a

special enlisted grade and serving in any other capacity while in training for appointment as a commissioned officer such as would warrant a change in the established procedure of furnishing a newly appointed officer transportation for his dependents from home, or from place from which ordered to active duty, to duty station. On this basis, the conclusion appears required that payment of the dislocation allowance to the officers here involved was not authorized and refund of such payments should be made.

Military Personnel

[B-139706]

Gratuities — Mustering-Out PayNavy Member Having Cadet Service During Enlistment Period

A discharge at the end of a four-year enlistment of a Navy member who served a portion of the enlistment term as a cadet at the Naval Academy before he resigned and reverted to the enlisted status is a discharge because of the expiration of a term of service, without any relation to the appointment or discharge from the Academy, and, therefore, a mustering-out payment under 38 U.S.C. 2101 is proper.

To Commander R. A. Wilson, Department of the Navy, August 6, 1959:

Reference is made to your letter of April 16, 1959, addressed to the Navy Audit Branch of our Office, requesting an advance decision as to the legality of payment of mustering-out pay to Norman L. Midkiff, 469 88 77, FT2, USN, incident to his service during the period January 29, 1955, through January 28, 1959, in the circumstances shown. See, in this connection, 31 U.S.C. 74.

Payment of mustering-out pay is authorized to be made to members of the Armed Forces who served on active duty on or after June 27, 1950, under the conditions specified, by Title V of the Veterans' Readjustment Assistance Act of 1952, 66 Stat. 688, 38 U.S.C. 1011, et seq. These provisions were repealed by section 14 (101) of the act of September 2, 1958, 72 Stat. 1273, and reenacted as 38 U.S.C. 2101-2105. Section 2101, Title 38, of the Code, provides that, except as provided in subsection (b) of such section, each member of the Armed Forces who shall have engaged in active service during the Korean conflict (on or after June 27, 1950, and prior to February 1, 1955, 38 U.S.C. 2007) and who is discharged or released from active service under honorable conditions, "shall be eligible to receive mustering-out payment." Section 2101 (b) (5), Title 38 of the Code, provides that no mustering-out payment shall be made to any member of the Armed Forces for any active service performed prior to the date of his "discharge" from such forces for the purpose of entering the United States Naval Academy. Sec