B-24219, DECEMBER 19, 1942, 22 COMP. GEN. 548

B-24219, DECEMBER 19, 1942, 22 COMP. GEN. 548

TRAVEL AND ENLISTMENT ALLOWANCES - NAVY, MARINE CORPS, AND COAST GUARD ENLISTED MEN AND TEMPORARY OFFICERS NAVY AND MARINE CORPS ENLISTED MEN TEMPORARILY SERVING AS OFFICERS UNDER THE ACT OF JULY 24, 1941, MAY NOT BE PAID THE TRAVEL AND ENLISTMENT ALLOWANCES AUTHORIZED, RESPECTIVELY, BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AND PRIOR SIMILAR STATUTORY PROVISIONS, FOR ENLISTED MEN UPON THEIR DISCHARGE AND REENLISTMENT, REGARDLESS OF WHETHER THE NAVY DEPARTMENT CONSIDERS IT NECESSARY OR DESIRABLE TO DISCHARGE AND REENLIST SUCH TEMPORARY OFFICERS IN THEIR PERMANENT ENLISTED STATUS (DECISION OF MAY 7, 1942, 21 COMP. GEN. 991, AMPLIFIED); HOWEVER, CREDIT WILL BE ALLOWED IN DISBURSING OFFICERS' ACCOUNTS FOR SUCH PAYMENTS, OTHERWISE CORRECT, MADE PRIOR TO SAID DECISION. NAVY AND MARINE CORPS ENLISTED MEN WHO ARE TEMPORARILY SERVING AS OFFICERS UNDER THE ACT OF JULY 24, 1941, AND WHO HAVE BEEN DISCHARGED AND REENLISTED IN THEIR PERMANENT STATUS AS ENLISTED MEN FOR THE PURPOSE OF PERMITTING THEM TO RECEIVE, UNDER AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF THE STATUTE, THE GRATUITIES INCIDENT TO THE DISCHARGE AND REENLISTMENT OF ENLISTED MEN MAY CONTINUE TO BE PAID THE PAY AND ALLOWANCES AUTHORIZED FOR THE GRADE OR RANK HELD BY THEM AS TEMPORARY OFFICERS, IRRESPECTIVE OF WHETHER THE DISCHARGES AND REENLISTMENTS WERE AUTHORIZED. NAVY, MARINE CORPS, AND COAST GUARD ENLISTED MEN (OTHER THAN THOSE SERVING AS TEMPORARY OFFICERS UNDER THE ACT OF JULY 24, 1941) WHOSE ENLISTMENTS COULD HAVE BEEN INVOLUNTARILY EXTENDED FOR THE WAR PERIOD UNDER AUTHORITY OF THE ACT OF DECEMBER 13, 1941, BUT WHO VOLUNTARILY REENLISTED OR VOLUNTARILY EXTENDED THEIR ENLISTMENTS DURING THE PERIOD BETWEEN THE APPROVAL OF THE ACT OF AUGUST 18, 1941, AND THE EFFECTIVE DATE --- JUNE 1, 1942--- OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, ARE ENTITLED TO PAYMENT OF BOTH THE ENLISTMENT ALLOWANCE AUTHORIZED BY THE ACT OF JUNE 10, 1922, AND THE ADDITIONAL ENLISTMENT ALLOWANCE AUTHORIZED BY THE ACT OF AUGUST 18, 1941. NAVY, MARINE CORPS, AND COAST GUARD ENLISTED MEN (OTHER THAN THOSE SERVING AS TEMPORARY OFFICERS UNDER THE ACT OF JULY 24, 1941) WHO HAVE VOLUNTARILY REENLISTED OR VOLUNTARILY EXTENDED THEIR ENLISTMENTS ON OR AFTER JUNE 1, 1942--- THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942--- ARE ENTITLED TO ONLY THE SINGLE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE ACT AND NOT TO THE ADDITIONAL ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 2 OF THE ACT OF AUGUST 18, 1941--- THE PROVISIONS OF WHICH ARE SUSPENDED BY THE LATER ACT--- FOR REENLISTMENTS OR EXTENSIONS UNDER CERTAIN CONDITIONS DURING WAR OR NATIONAL EMERGENCY; HOWEVER, PAYMENTS, OTHERWISE CORRECT, OF THE ADDITIONAL ALLOWANCE WHICH WERE ACTUALLY MADE BETWEEN JUNE 1 AND JUNE 16, 1942--- THE DATE OF APPROVAL OF THE SAID PAY READJUSTMENT ACT--- WILL BE PASSED FOR CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 19, 1942:

CONSIDERATION HAS BEEN GIVEN THE MATTERS PRESENTED IN YOUR LETTER OF JULY 24, 1942, IN PART AS FOLLOWS:

REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF MAY 7, 1942, B-24219, RELATIVE TO THE PAY AND ALLOWANCES TO WHICH ENLISTED MEN ARE ENTITLED WHILE HOLDING TEMPORARY APPOINTMENTS AS WARRANT AND COMMISSIONED OFFICERS UNDER THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, 55 STAT. 603). THE DECISION HELD THAT SUCH ENLISTED MEN WERE NOT ENTITLED TO TRAVEL ALLOWANCE OR ENLISTMENT ALLOWANCE IF DISCHARGED AND REENLISTED AS AUTHORIZED IN THE BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 26-1942.

THE ACT APPROVED DECEMBER 13, 1941 (55 STAT. 799), PROVIDES:

"THAT IN TIME OF WAR ALL ENLISTMENTS IN THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD, AND IN THE RESERVE COMPONENTS THEREOF AS APPLICABLE, MAY BE EXTENDED BY THE SECRETARY OF THE NAVY FOR SUCH ADDITIONAL TIME AS HE MAY DEEM NECESSARY IN THE INTEREST OF NATIONAL DEFENSE: PROVIDED, THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: PROVIDED FURTHER, THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH THIS ACT SHALL, UNLESS THEY VOLUNTARILY EXTEND THEIR ENLISTMENTS, BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE TERMINATION OF THE CONDITION WHICH ORIGINALLY AUTHORIZED THEIR DETENTION.

"SEC. 2. IN TIME OF WAR THAT PORTION OF SECTION 1422 OF THE REVISED STATUTES (18 STAT. 484; 34 U.S.C. 201) WHICH READS AS FOLLOWS: "ALL PERSONS WHO SHALL BE SO DETAINED BEYOND THEIR TERMS OF ENLISTMENT OR WHO SHALL, AFTER THE TERMINATION OF THEIR ENLISTMENT, VOLUNTARILY REENTER TO SERVE UNTIL THE RETURN TO AN ATLANTIC OR PACIFIC PORT OF THE VESSEL TO WHICH THEY BELONG, AND THEIR REGULAR DISCHARGE THEREFROM, SHALL RECEIVE FOR THE TIME DURING WHICH THEY ARE SO DETAINED, OR SHALL SO SERVE BEYOND THEIR ORIGINAL TERMS OF ENLISTMENT, AN ADDITION TO ONE-FOURTH OF THEIR FORMER PAY- , SHALL BE SUSPENDED.'

ON DECEMBER 15, 1941, ALNAV 155-1941 WAS ISSUED TO THE NAVAL SERVICE AND READS 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 X NO 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.'

WITH REFERENCE TO THE FOREGOING, IT IS STATED IN THE DECISION OF MAY 7, 1942:

"OBVIOUSLY, TO DISCHARGE AN ENLISTED MAN WHO HAD BEEN TEMPORARILY WARRANTED OR COMMISSIONED UNDER THE ACT WOULD TERMINATE HIS PERMANENT STATUS CONTRARY TO THE PLAIN TERMS OF THE LAW. THE LAW CONTEMPLATES THAT HE WILL CONTINUE IN THE PERMANENT STATUS OCCUPIED WHEN TEMPORARILY WARRANTED OR COMMISSIONED AND A DISCHARGE AND REENLISTMENT WHILE A TEMPORARY OFFICER FOR THE SOLE PURPOSE OF ATTEMPTING TO CREATE A RIGHT TO ALLOWANCES, WHEN THE STATUTE SPECIFICALLY REQUIRES THAT THE PERMANENT STATUS SHALL NOT BE TERMINATED, IS WHOLLY WITHOUT AUTHORITY OF LAW. UNDER THE TERMS OF ALNAV 155 THE ONLY ELECTION THE MAN WOULD HAVE WOULD BE TO ACCEPT THE SUGGESTED PAYMENTS OR BE HELD TO SERVICE WITHOUT THE ADDITIONAL PAYMENTS. UNDER THE ACT OF DECEMBER 13, 1941, PUBLIC LAW 337, THE SECRETARY OF THE NAVY HAS DETERMINED THAT ALL ENLISTMENTS SHALL BE EXTENDED. HE CANNOT PROVIDE THAT IF THE MAN VOLUNTARILY EXTENDS HIS ENLISTMENT OR IMMEDIATELY REENLISTS HE SHALL RECEIVE THE ALLOWANCES PAYABLE ON DISCHARGE AND REENLISTMENT, BUT THAT IF HE DOES NOT VOLUNTARILY DO SO HE SHALL BE HELD TO SERVICE UNDER HIS CURRENT ENLISTMENT NOTWITHSTANDING.'

SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, PROVIDES:

"THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED.' ( ITALICS SUPPLIED.)

THE LANGUAGE EMPLOYED IN SECTION 7 (A), AS QUOTED ABOVE, SEEMS TO CLEARLY INDICATE THAT THE ACCEPTANCE BY AN ENLISTED MAN OF A TEMPORARY ENLISTMENT DID NOT OPERATE TO VACATE HIS ENLISTMENT STATUS NOR HIS RIGHT TO BE DISCHARGED AT THE EXPIRATION OF HIS CURRENT ENLISTMENT. IN HIS TESTIMONY BEFORE THE HOUSE COMMITTEE ON NAVAL AFFAIRS, MAY 13, 1941, ON THE BILL H.R. 4473, WHICH AFTERWARDS BECAME THE ACT OF JULY 24, 1941, SUPRA, ADMIRAL NIMITZ, THEN CHIEF OF THE BUREAU OF NAVIGATION (NOW BUREAU OF NAVAL PERSONNEL), STATED THAT A TEMPORARY APPOINTMENT OR PROMOTION WOULD NOT REQUIRE AN ENLISTED MAN TO SURRENDER ANY EQUITIES HE HAD IN HIS PERMANENT STATUS BUT THAT IT WOULD MERELY KEEP HIM FROM DRAWING DOUBLE PAY. ( HEARINGS ON H.R. 4473, AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS AND FOR OTHER PURPOSES, NO. 95, P. 1214.)

ONE OF THE RIGHTS ACCORDED TO AN ENLISTED MAN IS THAT OF DISCHARGE AT THE EXPIRATION OF ENLISTMENT, WITH BENEFIT OF REENLISTMENT AND GRATUITIES INCIDENT THERETO. IN PROPOSING THE LEGISLATION WHICH BECAME THE ACT OF MAY 24, 1941 ( PUBLIC LAW NO. 188), THE NAVY DEPARTMENT INTENDED, AS STATED BY ADMIRAL NIMITZ IN THE HEARING, THAT AN ENLISTED MAN TEMPORARILY APPOINTED TO OFFICER RANK SHOULD RECEIVE THE BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED AND ON THIS BASIS THE BUREAU OF NAVIGATION CIRCULAR LETTER NO. 26-42 WAS PROMULGATED TO THE SERVICE, PARAGRAPH 5 OF WHICH PROVIDED:

"DISCHARGE AND REENLISTMENT. WHILE HOLDING TEMPORARY APPOINTMENTS AS OFFICERS, PERSONNEL WILL CONTINUE TO BE DISCHARGED, REENLISTED, OR HAVE THEIR ENLISTMENTS EXTENDED TO THEIR PERMANENT STATUS IN ACCORDANCE WITH CURRENT DIRECTIVES GOVERNING OTHER ENLISTED PERSONNEL IN THE SAME BRANCH OF THE SERVICE.'

THE ADMINISTRATIVE REGULATIONS PROMULGATED TO THE SERVICE IN ALNAV 155 OF DECEMBER 15, 1941, PURSUANT TO THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, EXTENDED ONLY THE ENLISTMENTS OF THOSE ENLISTED MEN WHO DID NOT VOLUNTARILY EXTEND OR REENLIST UNDER THOSE PROVISIONS. THIS ACTION ON THE PART OF THE SECRETARY OF THE NAVY WAS CONSIDERED TO BE IN ACCORDANCE WITH LAW. THE DISCHARGE AND REENLISTMENT OF MEN HOLDING TEMPORARY APPOINTMENTS AS WARRANT AND COMMISSIONED OFFICERS OBVIOUSLY DID NOT SERVE TO VACATE THEIR PERMANENT STATUS. ON THE CONTRARY, IN ORDER TO STRICTLY COMPLY WITH THAT PROVISION OF THE ACT OF JULY 24, 1941,"AND THEIR RIGHTS, BENEFITS, PRIVILEGES AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER," IT APPEARS NECESSARY TO DISCHARGE AND REENLIST SUCH PERSONNEL IN ORDER THAT THEY MAY RECEIVE THE TRAVEL AND REENLISTMENT GRATUITIES WHICH WOULD OTHERWISE BE LOST TO THEM IN THEIR PERMANENT ENLISTED STATUS. MOREOVER, IT IS CONSIDERED THAT THE INSTRUCTIONS CONTAINED IN BUREAU OF NAVIGATION CIRCULAR LETTER NO. 26-42, TO THE EFFECT THAT SUCH ENLISTED MEN BE DISCHARGED FOR THE PURPOSE OF IMMEDIATE REENLISTMENT, WERE ALSO REQUIRED TO BE ISSUED UNDER THE TERMS OF THE ACT OF JULY 24, 1941, SUPRA.

THE INSTRUCTIONS IN ALNAV 155 AND IN BUREAU OF NAVIGATION CIRCULAR LETTER NO. 26-42 WERE ISSUED IN GOOD FAITH AND IN THE BELIEF THAT THEY WERE IN ACCORDANCE WITH THE LANGUAGE CONTAINED IN THE ACTS OF JULY 24, 1941, AND DECEMBER 13, 1941, AS HEREIN QUOTED. IT IS ALSO FELT THAT SINCE THE NAVY DEPARTMENT RECOMMENDED THE ENACTMENT OF THESE TWO ACTS, THE ADMINISTRATIVE INTERPRETATION AS TO THE INTENT THEREOF SHOULD BE GIVEN DUE WEIGHT. ENLISTED MEN HOLDING TEMPORARY WARRANTS AND COMMISSIONS EITHER HAVE EXTENDED THEIR ENLISTMENTS OR HAVE BEEN DISCHARGED AND IMMEDIATELY REENLISTED IN ACCORDANCE WITH THE NAVY DEPARTMENT'S INSTRUCTIONS. ACCORDINGLY, PENDING RECONSIDERATION OF THE DECISION OF MAY 7, 1942, ITS CONTENTS HAVE NOT BEEN OFFICIALLY RELEASED TO THE NAVAL SERVICE.

IN VIEW OF THE FOREGOING, RECONSIDERATION IS REQUESTED OF THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF MAY 7, 1942, B-24219, TO THE EXTENT IT HOLDS THAT A DISCHARGE AND REENLISTMENT WHILE HOLDING A TEMPORARY APPOINTMENT AS A WARRANT OR COMMISSIONED OFFICER UNDER THE ACT OF JULY 24, 1941, DOES NOT CREATE ANY RIGHT TO PAYMENT OF TRAVEL AND ENLISTMENT ALLOWANCES.

THE PROVISIONS FOR PAYMENT OF TRAVEL ALLOWANCE AND ENLISTMENT ALLOWANCE TO ENLISTED MEN OF THE NAVY AT THE TIME THE DECISION OF MAY 7, 1942, 21 COMP. GEN. 991, WAS RENDERED WERE CONTAINED, RESPECTIVELY, IN SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, AND SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, TOGETHER WITH A PROVISION MADE BY SECTION 2 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 629, FOR AN ADDITIONAL OR DOUBLE ENLISTMENT ALLOWANCE FOR REENLISTMENT WITHIN 24 HOURS AFTER DISCHARGE. NEW PROVISIONS FOR ENLISTMENT ALLOWANCE SUBSEQUENTLY WERE MADE BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, APPROVED JUNE 16, 1942, 56 STAT. 363, INFRA. AN EXAMINATION OF THESE STATUTES SHOWS THAT THE TRAVEL ALLOWANCE AND ENLISTMENT ALLOWANCES THEREIN AUTHORIZED WERE INTENDED FOR THE BENEFIT OF ENLISTED MEN SERVING AS SUCH AND HAVE NO APPLICATION TO OFFICERS. THE DECISION OF MAY 7, 1942, WAS LIMITED TO PERSONS SERVING AS TEMPORARY OFFICERS UNDER THE ACT OF JULY 24, 1941, PUBLIC LAW 188, 55 STAT. 603.

IT IS EVIDENT FROM THE ITALICIZED PORTION OF SECTION 7 (A) OF THAT ACT, 55 STAT. 604, AS QUOTED IN YOUR LETTER, THAT SUCH EMPHASIZED PROVISIONS ARE RELIED ON BY THE NAVY DEPARTMENT AS AUTHORITY FOR THE PAYMENTS IN QUESTION. BUT SUCH PROVISIONS WERE QUALIFIED BY THE TWO PROVISOS OF SECTION 7 (A), AS ORIGINALLY ENACTED, AS FOLLOWS:

* * * PROVIDED, THAT EXCEPT AS OTHERWISE PROVIDED HEREIN NO PERSON WHO SHALL ACCEPT A COMMISSION OR WARRANT UNDER SECTIONS 2 AND 3 OF THIS ACT SHALL, WHILE SERVING THEREUNDER, BE ENTITLED TO PAY OR ALLOWANCES EXCEPT AS PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED: PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN SO TEMPORARILY APPOINTED. THE FIRST OF THESE TWO PROVISIONS IS A CLEAR PROHIBITION AGAINST THE PAYMENT OF PAY AND ALLOWANCES TO ANY PERSON WHO SHALL ACCEPT A TEMPORARY COMMISSION OR WARRANT, EXCEPT THE PAY AND ALLOWANCES PROVIDED BY LAW FOR THE POSITION TEMPORARILY OCCUPIED. THE SECOND PROVISO SAVED THE TEMPORARY OFFICER FROM ANY "REDUCTION" IN THE PAY AND ALLOWANCES TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED, BUT IT DID NOT AUTHORIZE PAYMENT OF PAY OR ALLOWANCES AS AN ENLISTED MAN IN ADDITION TO HIS PAY AND ALLOWANCES AS AN OFFICER WHEN THOSE WERE GREATER. CF. 21 COMP. GEN. 1012. ANY DOUBT AS TO THIS WITH RESPECT TO THE FUTURE IS CLEARLY REMOVED BY THE ACT OF NOVEMBER 30, 1942, 56 STAT. 1023, PUBLIC LAW 777, WHICH AMENDS THE SAID SECOND PROVISO (SAVING CLAUSE) IN SECTION 7 (A) OF THE ACT OF JULY 24, 1941, TO READ, IN PART, AS FOLLOWS:

PROVIDED FURTHER, THAT NO PERSON TEMPORARILY APPOINTED UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT * * * ( ITALICS SUPPLIED.) ENLISTMENT ALLOWANCE AND TRAVEL ALLOWANCE AS FOR DISCHARGE AND REENLISTMENT CONSTITUTE NO PART OF THE PAY AND ALLOWANCES PROVIDED BY LAW FOR PERSONS TEMPORARILY SERVING AS OFFICERS. THEREFORE, REGARDLESS OF WHETHER THE NAVY DEPARTMENT CONSIDERS IT NECESSARY OR DESIRABLE TO DISCHARGE AND REENLIST SUCH PERSONS IN THEIR PERMANENT ENLISTED STATUS WHILE SERVING AS TEMPORARY OFFICERS, SUCH ADMINISTRATIVE ACTION MAY NOT BE RECOGNIZED AS LEGALLY AUTHORIZING PAYMENT OF ENLISTMENT ALLOWANCE OR TRAVEL ALLOWANCE. ACCORDINGLY, YOU ARE ADVISED THAT THERE APPEARS NO BASIS ON WHICH TO MODIFY THE CONCLUSION IN THE DECISION OF MAY 7, 1942, IN THAT RESPECT. HOWEVER, IN VIEW OF THE COLOR OF AUTHORITY FOR SUCH PAYMENTS IN THE FIRST PART OF SECTION 7 (A/--- WHEN READ IN CONJUNCTION WITH THE LANGUAGE OF THE SECOND PROVISO (SAVING CLAUSE) AS IT STOOD BEFORE THE AMENDMENT OF NOVEMBER 30, 1942--- AND THE ADMINISTRATIVE INTERPRETATION OF THE STATUTE IN THAT REGARD, CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED FOR SUCH PAYMENTS, OTHERWISE CORRECT, MADE PRIOR TO THE DECISION OF MAY 7, 1942. YOUR LETTER OF JULY 24, 1942, CONTINUES AS FOLLOWS:

SHOULD YOU ADHERE ON RECONSIDERATION TO THE BASIC DECISION OF MAY 7, 1942, CLARIFICATION AS TO THE STATUS OF ENLISTED MEN DISCHARGED AND REENLISTED WHILE HOLDING TEMPORARY WARRANTS AND COMMISSIONS IS DESIRED. SPECIFICALLY, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(A) IF IT IS CONSIDERED THAT THE ENLISTED MEN HOLDING TEMPORARY WARRANTS AND COMMISSIONS UNDER THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188), WERE ILLEGALLY DISCHARGED FOR THE PURPOSE OF PERMITTING THEM TO REENLIST AND RECEIVE THE GRATUITIES INCIDENT TO REENLISTMENT, MUST THE DISCHARGE AND SUBSEQUENT REENLISTMENT OF SUCH MEN BE CONSIDERED NULL AND VOID FOR PAY PURPOSES PARTICULARLY SO FAR AS CONCERNS PAYMENT OF TRAVEL ALLOWANCE AND ENLISTMENT ALLOWANCE, EVEN THOUGH THE DISCHARGE AND REENLISTMENT WERE MADE IN GOOD FAITH AND IN ACCORDANCE WITH THE ADMINISTRATIVE INTERPRETATION AND APPLICATION OF THE STATUTE?

(B) IF IT IS HELD, IN ANSWER TO (A) ABOVE, THAT THE ENLISTED MEN IN QUESTION HAVE BEEN ILLEGALLY DISCHARGED, SINCE THESE ENLISTED MEN ARE NOW SERVING AS TEMPORARY WARRANT OR COMMISSIONED OFFICERS, ARE THEY LEGALLY ENTITLED TO RECEIVE THE PAY AND ALLOWANCES AUTHORIZED BY LAW FOR THE GRADE OR RANK HELD BY THEM IN THEIR TEMPORARY WARRANT OR COMMISSIONED STATUS?

IN VIEW OF THE EXPRESS PROHIBITION CONTAINED IN THE FIRST PROVISO OF SECTION 7 (A) OF THE ACT OF JULY 24, 1941, SUPRA, IT MUST BE HELD, IN ANSWER TO QUESTION (A), THAT THE PAYMENT OF TRAVEL ALLOWANCE AND ENLISTMENT ALLOWANCE TO TEMPORARY OFFICERS WAS UNAUTHORIZED IRRESPECTIVE OF WHETHER THEIR DISCHARGES AND REENLISTMENTS AS IN THEIR ENLISTED STATUS WERE AUTHORIZED.

QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE IRRESPECTIVE OF WHETHER THE DISCHARGES AND REENLISTMENTS AS IN THEIR ENLISTED STATUS WERE AUTHORIZED.

THE CONCLUDING PART OF YOUR LETTER OF JULY 24, 1942, IS AS FOLLOWS:

AS ABOVE INDICATED, THE DECISION OF MAY 7, 1942, B-24219, HELD THAT UNDER THE ACT OF DECEMBER 13, 1941, THE SECRETARY OF THE NAVY HAS DETERMINED THAT ALL ENLISTMENTS SHALL BE EXTENDED AND THAT HE CANNOT PROVIDE THAT IF THE MAN VOLUNTARILY EXTENDS HIS ENLISTMENT OR IMMEDIATELY REENLISTS HE SHALL RECEIVE THE ALLOWANCES PAYABLE ON DISCHARGE AND REENLISTMENT, BUT THAT IF HE DOES NOT VOLUNTARILY DO SO HE SHALL BE HELD TO SERVICE.

THE LANGUAGE IN THE ACT OF DECEMBER 13, 1941, SUPRA, WITH RESPECT TO THE RIGHT OF THE SECRETARY OF THE NAVY TO RETAIN BEYOND THE NORMAL DATE OF EXPIRATION OF ENLISTMENT MEN WHO DID NOT VOLUNTARILY EXTEND THEIR ENLISTMENTS IS PERMISSIVE. ALNAV 155-1941, AS STATED ABOVE, REPRESENTS THE ADMINISTRATIVE ACTION TAKEN BY THE SECRETARY OF THE NAVY TO CARRY OUT THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, AND THE CONGRESS WAS IN A POSITION, WHEN IT CONSIDERED THE BILL S. 2025, WHICH AFTERWARDS BECAME THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942 ( PUBLIC LAW NO. 607 - 77TH CONGRESS), TO TAKE NOTICE OF SUCH ACTION IN CASE IT WAS CONTRARY TO THE INTENT OF CONGRESS. THE FACT THAT ACTION WAS TAKEN TO SUSPEND THAT PORTION OF THE ACT OF AUGUST 18, 1941, AUTHORIZING PAYMENT OF DOUBLE ENLISTMENT ALLOWANCE AND THE INCLUSION IN THE CITED ACT OF JUNE 16, 1942, SECTION 10, OF A PROVISION FOR THE PAYMENT OF A SINGLE ENLISTMENT ALLOWANCE DURING THE WAR AND FOR SIX MONTHS THEREAFTER, IS CONSIDERED PROOF THAT DISCHARGE AND REENLISTMENT BOTH PRIOR AND SUBSEQUENT TO JUNE 16, 1942, WAS CONTEMPLATED AND AUTHORIZED BY THE ACT OF DECEMBER 13, 1941.

IN ORDER TO PRECLUDE THE POSSIBILITY OF SUSPENSIONS BEING RAISED IN THE ACCOUNTS OF DISBURSING OFFICERS WHO CREDITED ENLISTMENT ALLOWANCES TO MEN DISCHARGED AND REENLISTED, OR WHO EXTENDED THEIR ENLISTMENTS IN ACCORDANCE WITH ALNAV 155-1941, FROM DECEMBER 13, 1941, TO JUNE 16, 1942, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER SUCH PAYMENTS WILL BE PASSED FOR CREDIT. TRAVEL ALLOWANCE AND SINGLE ENLISTMENT ALLOWANCE NOW AUTHORIZED BY LAW WILL BE CONTINUED, IN THE CASE OF MEN OTHER THAN THOSE TEMPORARILY WARRANTED OR COMMISSIONED, FROM JUNE 16, 1942, UNDER EXISTING INSTRUCTIONS.

THE ACT OF AUGUST 18, 1941, PUBLIC LAW 215, 55 STAT. 629, PROVIDES, IN PERTINENT PART:

* * * THAT ALL ENLISTMENTS HEREAFTER ENTERED INTO MAY BE EXTENDED BY THE SECRETARY OF THE NAVY FOR SUCH ADDITIONAL TIME AS HE MAY DEEM NECESSARY IN THE PUBLIC INTEREST IN TIME OF WAR, OR NATIONAL EMERGENCY DECLARED BY THE PRESIDENT, TO EXIST: PROVIDED FURTHER, THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: AND PROVIDED FURTHER, THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH THIS ACT SHALL, UNLESS THEY VOLUNTARILY EXTEND THEIR ENLISTMENTS, BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE DATE OF THE TERMINATION OF THE WAR OR NATIONAL EMERGENCY.

SEC. 2. DURING WAR, OR A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, AN ENLISTMENT ALLOWANCE, EQUAL IN AMOUNT TO THAT PROVIDED FOR ENLISTED MEN OF THE MARINE CORPS BY SECTION 9 OF THE ACT APPROVED JUNE 10, 1922 (42 STAT. 629; U.S.C., TITLE 37, SEC. 13), AND BY SECTION 10 OF THAT ACT FOR ENLISTED MEN OF THE NAVY AND COAST GUARD, AND TO BE IN ADDITION TO THE ENLISTMENT ALLOWANCE SO PROVIDED, SHALL BE PAID TO EVERY HONORABLY DISCHARGED ENLISTED MAN OF THE NAVY, MARINE CORPS, AND COAST GUARD WHO REENLISTS, WITHIN TWENTY-FOUR HOURS AFTER SUCH DISCHARGE, ON BOARD THE SHIP OR AT THE STATION, MARINE BARRACKS, OR OTHER NAVAL, MARINE CORPS, OR COAST GUARD ACTIVITY FROM WHICH HE WAS LAST DISCHARGED.

IT WILL BE NOTED THAT SECTION 1 OF THE ACT OF AUGUST 18, 1941, PROVIDED FOR THE INVOLUNTARY EXTENSION OF ENLISTMENTS, AS THEREIN AUTHORIZED, WITH RESPECT ONLY TO ENLISTMENTS ENTERED INTO AFTER THE DATE OF THAT ACT. THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, PUBLIC LAW 337, 55 STAT. 799, QUOTED IN YOUR LETTER, AUTHORIZE EXTENSIONS OF ENLISTMENTS IN TIME OF WAR WITHOUT REFERENCE TO THE DATE THAT THE CONTRACT OF ENLISTMENT WAS ENTERED INTO.

THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, PUBLIC LAW 607, WAS APPROVED JUNE 16, 1942, THE PROVISIONS THEREOF BECOMING EFFECTIVE AS OF JUNE 1, 1942, UNLESS SPECIFICALLY THEREIN OTHERWISE PROVIDED. THE FOURTH PARAGRAPH OF SECTION 10 OF SAID ACT PROVIDES:

AN ENLISTMENT ALLOWANCE EQUAL TO $50, MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED, SHALL BE PAID TO EVERY HONORABLY DISCHARGED ENLISTED MAN OF THE FIRST THREE GRADES WHO REENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF HIS DISCHARGE, AND AN ENLISTMENT ALLOWANCE OF $25, MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED, SHALL BE PAID TO EVERY HONORABLY DISCHARGED ENLISTED MAN OF THE OTHER GRADES WHO REENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF HIS DISCHARGE: PROVIDED, THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT AFFECT THE PROVISIONS OF THE ACT APPROVED AUGUST 18, 1941 ( PUBLIC LAW 215, SEVENTY-SEVENTH CONGRESS): PROVIDED FURTHER, THAT DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER THE PROVISIONS OF SECTION 2 OF THE ACT OF AUGUST 18, 1941 ( PUBLIC LAW 215, SEVENTY-SEVENTH CONGRESS) ARE HEREBY SUSPENDED.

THE FIRST SENTENCE OF THE QUOTED PARAGRAPH MAKES PROVISION FOR PAYMENT OF A SINGLE ENLISTMENT ALLOWANCE GENERALLY TO HONORABLY DISCHARGED ENLISTED MEN WHO REENLIST WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE. SECTION 2 OF THE ACT OF AUGUST 18, 1941, SUPRA, AUTHORIZES AN ADDITIONAL ENLISTMENT ALLOWANCE FOR REENLISTMENTS WITHIN 24 HOURS AFTER HONORABLE DISCHARGE BUT THE SECOND PROVISO OF THE QUOTED FOURTH PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SUSPENDS ,DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER" THE SAID PROVISION IN THE ACT OF AUGUST 18, 1941, FOR THE PAYMENT OF SUCH ADDITIONAL ENLISTMENT ALLOWANCE.

BY A HOUSE AMENDMENT TO S. 2025, 77TH CONGRESS, WHICH BECAME THE PAY READJUSTMENT ACT OF 1942, IT WAS PROPOSED TO AMEND THE SECOND PROVISO OF PARAGRAPH 4, SECTION 10, SO AS TO PROVIDE:

THAT DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER THE PROVISIONS OF THIS PARAGRAPH AND ALL OTHER LAWS (INCLUDING SAID PUBLIC LAW 215, 77TH CONGRESS) PROVIDING FOR ENLISTMENT ALLOWANCES SHALL BE SUSPENDED. CONFERENCE THE LANGUAGE OF THE SECOND PROVISO WAS CHANGED TO READ AS FINALLY ENACTED, AND THE MANAGERS ON THE PART OF THE HOUSE MADE THE FOLLOWING STATEMENT WITH REFERENCE TO THIS CHANGE:

SECTION 10 OF THE HOUSE AMENDMENT CONTAINED A PROVISION SUSPENDING DURING THE PRESENT WAR AND THE SIX MONTHS THEREAFTER THE PROVISIONS OF ALL LAWS PROVIDING FOR PAYMENT OF REENLISTMENT ALLOWANCES. THE SENATE BILL DID NOT CONTAIN SUCH A PROVISION. THE CONFERENCE AGREEMENT PROVIDES ONLY FOR A SUSPENSION OF SECTION 2 (PROVIDING FOR DOUBLE ENLISTMENT ALLOWANCES TO ENLISTED MEN OF THE NAVY, MARINE CORPS, OR COAST GUARD WHO REENLIST DURING THE WAR) OF THE ACT OF AUGUST 18, 1941. THE CONFEREES DEEMED IT INADVISABLE TO SUSPEND THE PROVISIONS OF ALL LAWS PROVIDING FOR REENLISTMENT ALLOWANCES, SINCE SUCH ACTION WOULD HINDER THE NAVY IN ITS EFFORTS TO SECURE REENLISTMENTS BY MEN WHOSE TERMS OF ENLISTMENT EXPIRE DURING THE WAR AND MIGHT RESULT IN THE NAVY'S BEING LEFT AT THE END OF THE WAR WITHOUT ADEQUATE PERSONNEL TO MAN THE SHIPS OF THE TWO-OCEAN NAVY WHICH THE CONGRESS HAS AUTHORIZED.

THE TERM "DURING THE PRESENT WAR," USED IN THE SECOND PROVISO OF THE FOURTH PARAGRAPH OF SECTION 10, MAY NOT REASONABLY BE INTERPRETED AS SYNONYMOUS WITH THE TERM "FROM THE COMMENCEMENT OF THE PRESENT WAR.' THAT MEANING HAD BEEN INTENDED, MORE SPECIFIC LANGUAGE UNDOUBTEDLY WOULD HAVE BEEN USED TO ACCOMPLISH THAT PURPOSE--- FOR EXAMPLE, LANGUAGE SIMILAR TO THAT USED IN SECTION 2 OF THE ACT, 56 STAT. 360, WITH REFERENCE TO SEA PAY. THE LANGUAGE IN SUCH PROVISO, WHEN CONSIDERED IN CONNECTION WITH THE LAST SENTENCE OF SECTION 19, 56 STAT. 369, STIPULATING THAT "THE PROVISIONS OF THIS ACT SHALL BECOME EFFECTIVE AS OF JUNE 1, 1942," REQUIRES THE CONCLUSION THAT THE SUSPENSION OF THE DOUBLE ENLISTMENT ALLOWANCE WAS INTENDED TO BECOME EFFECTIVE ON JUNE 1, 1942, AND THAT SUCH SUSPENSION WAS TO CONTINUE FROM THAT DATE, DURING THE WAR AND FOR SIX MONTHS THEREAFTER. MOREOVER, THE PROVISION AND ITS LEGISLATIVE HISTORY SHOW THAT NO CESSATION OF DISCHARGES AND VOLUNTARY REENLISTMENTS DURING THE WAR WAS INTENDED AND SUFFICIENTLY INDICATE THAT THE ACT OF DECEMBER 13, 1941, AUTHORIZING THE INVOLUNTARY EXTENSION OF ENLISTMENTS FOR THE WAR PERIOD DID NOT INTEND TO STOP DISCHARGES AND VOLUNTARY REENLISTMENTS (OR VOLUNTARY EXTENSIONS OF ENLISTMENT/--- FOR TERMS WHICH MIGHT EXTEND YEARS BEYOND THE WAR--- OR THE PAYMENT OF ENLISTMENT ALLOWANCES AS THEN PROVIDED BY LAW IN SUCH CASES. IT IS CONCLUDED, THEREFORE, WITH RESPECT TO REENLISTMENTS AND VOLUNTARY EXTENSIONS OF ENLISTMENT EFFECTIVE PRIOR TO JUNE 1, 1942, THAT THE APPLICABLE STATUTES AUTHORIZED PAYMENT OF BOTH THE SINGLE AND DOUBLE ENLISTMENT ALLOWANCE UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, AND SECTION 2 OF THE ACT OF AUGUST 18, 1941, ON THE SAME BASIS AS THOUGH THE ACT OF DECEMBER 13, 1941, HAD NOT AUTHORIZED THE INVOLUNTARY EXTENSION OF ENLISTMENTS IN TIME OF WAR. WHILE THE SUSPENSION OF THE ADDITIONAL OR DOUBLE ENLISTMENT ALLOWANCE BY THE PAY READJUSTMENT ACT OF 1942 WAS MADE EFFECTIVE AS OF JUNE 1, 1942, THAT ACT WAS NOT APPROVED UNTIL JUNE 16, 1942, AND DURING THE PERIOD JUNE 1 TO JUNE 16, THE EXISTING STATUTES THEN PROVIDED FOR PAYMENT OF BOTH ALLOWANCES. ACCORDINGLY, SUCH PAYMENTS AS WERE ACTUALLY MADE PRIOR TO THE DATE OF APPROVAL OF THE PAY READJUSTMENT ACT OF 1942 WILL BE PASSED FOR CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED TO THE EXTENT SUCH PAYMENTS ARE OTHERWISE CORRECT. ENLISTED MEN (NOT HOLDING TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941) WHO VOLUNTARILY REENLISTED OR WHOSE VOLUNTARY EXTENSIONS BECAME EFFECTIVE AFTER THE APPROVAL OF THE ACT OF AUGUST 18, 1941, AND PRIOR TO JUNE 1, 1942, AND WHO HAVE NOT BEEN PAID ENLISTMENT ALLOWANCE, ARE ENTITLED TO THE DOUBLE ALLOWANCE, IF THE STATUTORY CONDITIONS WERE MET, AND THOSE WHO SO REENLISTED OR EXTENDED THEIR ENLISTMENTS ON OR AFTER JUNE 1, 1942, ARE ENTITLED TO THE SINGLE ALLOWANCE PURSUANT TO SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942.