B-13048, OCTOBER 28, 1940, 20 COMP. GEN. 218

B-13048, OCTOBER 28, 1940, 20 COMP. GEN. 218

PAY - ENLISTED MEN - SELECTIVE TRAINEES, REGULAR ARMY PERSONNEL, AND NATIONAL GUARDSMEN IN FEDERAL SERVICE IN DETERMINING THE TIME WHEN A MEMBER OF THE NATIONAL GUARD OF THE SEVENTH GRADE INDUCTED INTO THE FEDERAL SERVICE UNDER THE ACT OF AUGUST 27, 1940, HAS HAD 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT PERIOD SO AS TO BE ENTITLED TO PAY AT THE RATE OF $30 PER MONTH, INSTEAD OF $21, UNDER THE TERMS OF SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE 1 OF 1940, SERVICE IN THE NATIONAL GUARD BEFORE INDUCTION INTO TH FEDERAL SERVICE SHOULD BE COUNTED. A MEMBER OF THE NATIONAL GUARD OF THE SEVENTH GRADE WHO ENLISTED THEREIN AFTER DISCHARGE FROM A PRIOR REGULAR ARMY OR NATIONAL GUARD ENLISTMENT WOULD BE ENTITLED, UPON INDUCTION INTO THE FEDERAL SERVICE UNDER THE ACT OF AUGUST 27, 1940, TO PAY OF $30 PER MONTH, INSTEAD OF $21 EVEN THOUGH HIS COMBINED SERVICE UNDER THE TWO ENLISTMENTS IS LESS THAN 4 MONTHS, SINCE THE EXCEPTION IN SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, MERELY LIMITS MONTHLY PAY TO $21 FOR THE FIRST MONTHS OF SERVICE DURING THE FIRST ENLISTMENT PERIOD. A SELECTIVE TRAINEE INDUCTED INTO THE SERVICE OF THE UNITED STATES UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHO HAS HAD PRIOR ENLISTED SERVICE IN THE REGULAR ARMY WHETHER MORE OR LESS THAN 4 MONTHS, IS NOT SERVING IN HIS FIRST ENLISTMENT PERIOD AND, HENCE, IS NOT LIMITED TO MONTHLY PAY OF $21 BY SECTION 12 (A) OF SAID ACT WHICH FIXES MONTHLY PAY AT $21 FOR THE FIRST 4 MONTHS OF SERVICE DURING THE FIRST ENLISTMENT PERIOD. IN VIEW OF THE TERMS OF SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, EFFECTIVE OCTOBER 1, 1940, EITHER A SELECTIVE TRAINEE INDUCTED INTO FEDERAL SERVICE UNDER THAT ACT, OR A MEMBER OF THE NATIONAL GUARD INDUCTED INTO FEDERAL SERVICE UNDER THE ACT OF AUGUST 27, 1940, MUST HAVE COMPLETED 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT PERIOD BEFORE HE IS ENTITLED TO MONTHLY PAY OF MORE THAN $21 IRRESPECTIVE OF PROMOTION DURING THAT PERIOD. UNDER SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AN ENLISTED MAN OF EITHER THE REGULAR ARMY OR THE NATIONAL GUARD WITH LESS THAN 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT, WHO WAS PROMOTED PRIOR TO OCTOBER 1, 1940, THE EFFECTIVE DATE OF SAID SECTION OR BEFORE INDUCTION INTO FEDERAL SERVICE WILL NOT BE ENTITLED TO PAY AT A GREATER RATE THAN $21 PER MONTH FROM OCTOBER 1, 1940, OR DATE OF INDUCTION IF AFTER OCTOBER 1, 1940, UNTIL HE HAS COMPLETED 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT PERIOD. MEMBERS OF THE NATIONAL GUARD HOLDING GRADES ABOVE THE SEVENTH GRADE WHEN INDUCTED INTO FEDERAL SERVICE UNDER THE ACT OF AUGUST 27, 1940, ARE NOT REQUIRED BY SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO SERVE THE FIRST 4 MONTHS WITH MONTHLY PAY OF $21 IF THEY HAVE HAD MORE THAN 4 MONTHS' SERVICE IN THE NATIONAL GUARD. IN COMPUTING THE "4 MONTHS' SERVICE" REQUIRED BY SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS A CONDITION PRECEDENT TO PAYING ENLISTED MEN MORE THAN $21 PER MONTH THERE SHOULD BE INCLUDED ONLY SERVICE THAT MAY BE COUNTED FOR PAY AND FOR COMPLETION OF ENLISTMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 28, 1940:

I HAVE YOUR LETTER OF OCTOBER 19, 1940, AS FOLLOWS:

THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940 ( PUBLIC, NO. 783, 76TH CONGRESS), PROVIDES IN SECTION 12A THAT THE MONTHLY BASE PAY OF ENLISTED MEN OF THE 7TH GRADE SHALL BE $30,"EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, AND THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL BE $21.' THERE ARE A NUMBER OF QUESTIONS WHICH HAVE ARISEN WITH REFERENCE TO THIS PROVISION ON WHICH YOUR DECISION IS RESPECTFULLY REQUESTED.

THE PRINCIPAL QUESTIONS PRESENTED RELATIVE TO THIS MATTER ARE AS FOLLOWS:

"1. WHAT CONSTITUTES "THEIR FIRST ENLISTMENT PERIOD FOR MEMBERS OF THE NATIONAL GUARD AND SELECTIVE TRAINEES INDUCTED INTO FEDERAL SERVICE UNDER THE ACT OF AUGUST 27, 1940 ( PUBLIC RESOLUTION, NO. 96, 76TH CONGRESS), AND THE ACT OF SEPTEMBER 16, 1940 ( PUBLIC NO. 783, 76TH CONGRESS), RESPECTIVELY?

"2. ON WHAT BASIS IS THE "FOUR MONTHS' SERVICE" COMPUTED?

UNDER THESE TWO GENERAL QUESTIONS THERE ARE LISTED BELOW SEVERAL MORE DETAILED AND SPECIFIC QUESTIONS RELATIVE TO THESE POINTS:

"A. IF A MEMBER OF THE NATIONAL GUARD IN THE 7TH GRADE HAS HAD MORE THAN FOUR MONTHS' NON-FEDERAL SERVICE IN THE NATIONAL GUARD PRIOR TO INDUCTION INTO FEDERAL SERVICE, WILL HE BE PAID AT THE RATE OF $21 PER MONTH FOR THE FIRST FOUR MONTHS AFTER INDUCTION, OR AFTER OCTOBER 1, 1940, IF INDUCTED PRIOR THERETO, AS THE CASE MAY BE, OR WILL HE BE CONSIDERED AS HAVING SERVED FOR FOUR MONTHS AND BE ENTITLED TO $30 PER MONTH?

"B. IF A/MEMBER OF THE NATIONAL GUARD IN THE 7TH GRADE HAS HAD LESS THAN FOUR MONTHS' NON-FEDERAL SERVICE IN THE NATIONAL GUARD PRIOR TO INDUCTION INTO FEDERAL SERVICE, OR PRIOR TO OCTOBER 1, 1940, AS THE CASE MAY BE, WILL HE BE ADVANCED FROM $21 TO $30 PER MONTH UPON COMPLETION OF FOUR MONTHS' SERVICE, INCLUDING HIS NON-FEDERAL SERVICE, OR WILL HE HAVE TO SERVE FOUR MONTHS FROM THE TIME OF INDUCTION BEFORE HE WILL BE ENTITLED TO $30 PER MONTH?

"C. IF A MEMBER OF THE NATIONAL GUARD IN THE 7TH GRADE HAS HAD COMBINED SERVICE IN THE REGULAR ARMY AND THE NATIONAL GUARD NOT IN FEDERAL SERVICE, AMOUNTING TO LESS THAN FOUR MONTHS, PRIOR TO INDUCTION, OR TO OCTOBER 1, 1940, AS THE CASE MAY BE, WILL HE BE CONSIDERED AS IN IN HIS FIRST ENLISTMENT, PLACING HIM IN THE $21 PER MONTH CLASS, OR WILL HE BE ENTITLED TO $30 PER MONTH FROM THE DATE OF INDUCTION, OR FROM OCTOBER 1, 1940, AS THE CASE MAY BE?

"D. IF A MEMBER OF THE NATIONAL GUARD IN THE 7TH GRADE HAS HAD PREVIOUS SERVICE IN THE REGULAR ARMY AND/OR THE NATIONAL GUARD IN FEDERAL SERVICE, WILL HE BE CONSIDERED AS IN HIS FIRST ENLISTMENT WHEN HE IS INDUCTED AND DRAW $21 UNTIL HE COMPLETES FOUR MONTHS' SERVICE, OR WILL HE BE ENTITLED TO $30 PER MONTH FROM THE DATE OF INDUCTION, OR FROM OCTOBER 1, 1940 AS THE CASE MAY BE?

"E. IF IT IS HELD IN QUESTIONS A, B, C, AND D THAT ENLISTED MEN OF THE 7TH GRADE MUST SERVE FOUR MONTHS AFTER INDUCTION OR AFTER OCTOBER 1, 1940, AS THE CASE MAY BE, BEFORE BEING PAID $30 PER MONTH, WILL THIS APPLY TO MEMBERS OF THE NATIONAL GUARD IN THE 7TH GRADE WHO COMPLETE THEIR ENLISTMENTS AND REENLIST IN THE ARMY AFTER INDUCTION, BUT BEFORE THE EXPIRATION OF THE FOUR MONTHS' PERIOD, OR SHOULD THE REENLISTMENT BE COUNTED AS A SECOND ENLISTMENT, ENTITLING THEM TO $30 PER MONTH?

"F. IF A SELECTIVE TRAINEE, WHEN INDUCTED INTO THE ARMY OF THE UNITED STATES, HAS HAD PREVIOUS FEDERAL SERVICE OF LESS THAN ONE ENLISTMENT, FOR EXAMPLE, TWO MONTHS' SERVICE OR TWO YEARS' SERVICE, SHOULD HE BE CONSIDERED AS IN HIS FIRST ENLISTMENT PLACING HIM IN THE $21 PER MONTH CLASS, OR WOULD HE IN EITHER CASE BE ENTITLED TO $30 PER MONTH FROM DATE OF INDUCTION?

"G. IF EITHER A SELECTIVE TRAINEE OR A MEMBER OF THE NATIONAL GUARD IN THE 7TH GRADE, WHEN INDUCTED, SUBSEQUENT TO OCTOBER 1, 1940, IS PROMOTED TO A HIGHER GRADE BEFORE COMPLETING THE PERIOD NECESSARY FOR HIM TO SERVE BEFORE BEING ENTITLED TO $30 PER MONTH, WILL HE BE ENTITLED TO THE PAY OF THE HIGHER GRADE AT DATE OF PROMOTION OR MUST HE COMPLETE THE FOUR MONTHS' SERVICE BEFORE RECEIVING THE HIGHER PAY?

"H.IF AN ENLISTED MAN OF THE REGULAR ARMY WITH LESS THAN FOUR MONTHS' SERVICE PRIOR TO OCTOBER 1, 1940, OR A MEMBER OF THE NATIONAL GUARD INDUCTED PRIOR TO OCTOBER 1, 1940, HAS BEEN PROMOTED FROM THE SEVENTH GRADE PRIOR TO OCTOBER 1, 1940, IS HE, ON OCTOBER 1, 1940, ENTITLED TO THE PAY OF THE GRADE TO WHICH PROMOTED OR SHOULD HE BE REDUCED TO $21 PER MONTH UNTIL HE COMPLETES FOUR MONTHS' SERVICE?

"I. ARE MEMBERS OF THE NATIONAL GUARD, HOLDING GRADES ABOVE THE 7TH GRADE WHEN INDUCTED, REQUIRED TO SERVE THE FIRST FOUR MONTHS AT $21?

"J. IN COMPUTING "FOUR MONTHS' SERVICE," SHOULD THE PERIOD BE CONSIDERED AS FOUR CALENDAR MONTHS FROM THE DATE OF INDUCTION OR FROM OCTOBER 1, 1940, AS THE CASE MAY BE, OR SHOULD THE TIME TO BE COUNTED BE ONLY THAT WHICH MAY BE COUNTED FOR COMPLETION OF ENLISTMENT OR FOR PAY PURPOSES?

IN SUBMITTING THESE QUESTIONS FOR YOUR DECISION, CONSIDERATION HAS BEEN GIVEN TO YOUR TWO DECISIONS OF OCTOBER 3, 1940, B-12506, IN WHICH SOMEWHAT SIMILAR QUESTIONS PRESENTED BY THE SECRETARY OF THE NAVY WERE CONSIDERED. IT IS NOT CLEAR, HOWEVER, WHETHER THE CONCLUSIONS THEREIN REACHED ARE ENTIRELY APPLICABLE TO THE ARMY. IN VIEW OF THE FACT THAT THE PROVISIONS OF LAW IN QUESTION BECAME EFFECTIVE OCTOBER 1, 1940, IT IS REQUESTED THAT YOUR DECISION IN THE PREMISES BE EXPEDITED.

WITH RESPECT TO THE GENERAL QUESTIONS UPON WHICH ARE BASED THE SUBORDINATE QUESTIONS, SUPRA, SECTION 2 OF JOINT RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, PROVIDES:

ALL NATIONAL GUARD, RESERVE, AND RETIRED PERSONNEL ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE FOREGOING SPECIAL AUTHORITY, SHALL FROM THE DATES ON WHICH THEY ARE RESPECTIVELY REQUIRED BY SUCH ORDER TO REPORT FOR DUTY IN SUCH SERVICE, BE SUBJECT TO THE RESPECTIVE LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, AND PRIVILEGES, AND DISCHARGE OF SUCH PERSONNEL IN SUCH SERVICE TO THE SAME EXTENT IN ALL PARTICULARS AS IF THEY HAD BEEN ORDERED INTO SUCH SERVICE UNDER EXISTING GENERAL STATUTORY AUTHORIZATIONS.

SECTIONS 3 (D) AND 4 (C) OF THE ACT OF SEPTEMBER 16, 1940, PUBLIC, NO. 783, ARE AS FOLLOWS:

WITH RESPECT TO THE MEN INDUCTED FOR TRAINING AND SERVICE UNDER THIS ACT THERE SHALL BE PAID, ALLOWED, AND EXTENDED THE SAME PAY, ALLOWANCES, PENSIONS, DISABILITY, AND DEATH COMPENSATION, AND OTHER BENEFITS AS ARE PROVIDED BY LAW IN THE CASE OF OTHER ENLISTED MEN OF LIKE GRADES AND LENGTH OF SERVICE OF THAT COMPONENT OF THE LAND OR NAVAL FORCES TO WHICH THEY ARE ASSIGNED, AND AFTER TRANSFER TO A RESERVE COMPONENT OF THE LAND OR NAVAL FORCES AS PROVIDED IN SUBSECTION (C) THERE SHALL BE PAID, ALLOWED AND EXTENDED WITH RESPECT TO THEM THE SAME BENEFITS AS ARE PROVIDED BY LAW IN LIKE CASES WITH RESPECT TO OTHER MEMBERS OF SUCH RESERVE COMPONENT. MEN IN SUCH TRAINING AND SERVICE AND MEN WHO HAVE BEEN SO TRANSFERRED TO RESERVE COMPONENTS SHALL HAVE AN OPPORTUNITY TO QUALIFY FOR PROMOTION.

NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO REPEAL, AMEND, OR SUSPEND THE LAWS NOW IN FORCE AUTHORIZING VOLUNTARY ENLISTMENT OR REENLISTMENT IN THE LAND AND NAVAL FORCES OF THE UNITED STATES, INCLUDING THE RESERVE COMPONENTS THEREOF.

SECTION 12 OF THE SAID ACT ESTABLISHES RATES OF PAY FOR THE REGULAR ARMY AND THE REGULAR MARINE CORPS OF THE UNITED STATES AND THE EXCEPTION THEREIN AS TO PAY OF ENLISTED MEN WITH LESS THAN 4 MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD FIXES THE PAY OF ALL ENLISTED MEN WITH LESS THAN 4 MONTHS OF SERVICE DURING THEIR FIRST ENLISTMENT, OR FOR SUCH PART OF THE 4 MONTHS AS REMAINS AFTER OCTOBER 1, 1940, AT $21 PER MONTH IRRESPECTIVE OF THE ENLISTED GRADE TO WHICH ADVANCED. THE PURPOSE OF THE PROVISION WAS TO EQUALIZE THE PAY OF ENLISTED MEN OF THE ARMY AND MARINE CORPS WITH THE PAY RECEIVED BY ENLISTED MEN OF THE NAVY AND COAST GUARD. SEE HEARINGS BEFORE THE COMMITTEE ON MILITARY AFFAIRS, UNITED STATES SENATE, SEVENTY-SIXTH CONGRESS, ON S. 4164, AT PAGES 335 AND 342, TESTIMONY OF GENERAL MARSHALL, AND PAGE 363, ET SEQ., TESTIMONY OF REAR ADMIRAL NIMITZ. THE PURPOSE WAS NOT TO SET UP ANOTHER BASIS FOR DISPARITY BETWEEN THE PAY OF ENLISTED MEN WITH LESS THAN 4 MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD, AND THE LANGUAGE WHEN CAREFULLY EXAMINED, MAKES THIS CLEAR. THE EXCEPTION WITH RESPECT TO THE 4 MONTHS' SERVICE IS NOT AS TO ENLISTED MEN OF THE SEVENTH GRADE, BUT IS AS TO ALL ENLISTED MEN REGARDLESS OF GRADE. THAT THIS WAS THE INTENT IS FURTHER EMPHASIZED BY THE CLAUSE FOLLOWING WHICH MAKES THE EXCEPTION APPLICABLE, ALSO, TO "ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED," ETC. THIS WAS THE BASIS FOR THE HOLDING IN THE DECISIONS OF OCTOBER 3, 1940, TO THE SECRETARY OF THE NAVY. SEE, ALSO, B- 12866, OCTOBER 22, 1940, TO THE SECRETARY OF THE NAVY.

IT IS TO BE OBSERVED THAT THE EXCEPTION APPLIES TO ENLISTED MEN WITH LESS THAN 4 MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD. THE TERM "ENLISTMENT PERIOD" RELATES TO THE CONTRACT OF ENLISTMENT. IF, THEREFORE, A MAN CONTRACTED TO SERVE A STATUTORY PERIOD AND WAS SEPARATED FROM THE SERVICE BEFORE THE EXPIRATION OF 4 MONTHS THEREOF, ANY SERVICE THEREAFTER UNDER ANOTHER ENLISTMENT WOULD NOT BE SERVICE DURING HIS FIRST ENLISTMENT PERIOD WITHIN THE MEANING OF THE EXCEPTION IN SECTION 12 (A) OF THE ACT, AND THE EXCEPTION WILL NOT APPLY TO HIM WITH RESPECT TO SERVICE, UNDER SUCH SECOND ENLISTMENT UNLESS HE COMES WITHIN THAT PART OF THE EXCEPTION RELATING TO MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR UNFITNESS REQUIRES THE $21 RATE OF PAY.

THE ARMY OF THE UNITED STATES CONSISTS OF, AMONG OTHER COMPONENTS, THE NATIONAL GUARD OF THE UNITED STATES AND THE NATIONAL GUARD WHEN IN THE SERVICE OF THE UNITED STATES. SEE SECTION 1 OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 2. SECTION 58 OF THE SAME ACT, 32 U.S.C. 4 (A) CONSTITUTES THE NATIONAL GUARD OF THE UNITED STATES A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES TO CONSIST OF, AMONG OTHERS, THE FEDERALLY RECOGNIZED NATIONAL GUARD UNITS AND ORGANIZATIONS AND THE OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NATIONAL GUARD OF THE SEVERAL STATES AND TERRITORIES WHO SHALL HAVE BEEN APPOINTED, ENLISTED, AND APPOINTED, OR ENLISTED, AS THE CASE MAY BE, IN THE NATIONAL GUARD OF THE UNITED STATES AS IN THAT ACT PROVIDED. THE NATIONAL GUARD OF THE VARIOUS STATES AND TERRITORIES IS A PART OF THE MILITIA CONTEMPLATED BY THE FEDERAL CONSTITUTION. ARTICLE I, SECTION 8, CLAUSES 15 AND 16, AND ARTICLE II, SECTION 2, CLAUSE 1. SECTIONS 101 AND 111 OF THE NATIONAL DEFENSE ACT, 32 U.S.C. 82 AND 81, RESPECTIVELY, CONTEMPLATE THAT THIS ORGANIZATION--- THIS FORCE--- WILL GO INTO THE SERVICE OF THE UNITED STATES FULLY ORGANIZED, THE APPOINTMENTS TO THE VARIOUS OFFICES OR GRADES THEN EXISTING, WHETHER IN A COMMISSIONED, WARRANT, OR ENLISTED STATUS, TO CONTINUE UNTIL CHANGED BY PROPER AUTHORITY. SECTION 111 OF THE ACT CONTAINS THE FOLLOWING PROVISION:

* * * THE ORGANIZATION OF SAID UNITS EXISTING AT THE DATE OF THE ORDER INTO ACTIVE FEDERAL SERVICE SHALL BE MAINTAINED INTACT INSOFAR AS PRACTICABLE.

* * * UPON BEING RELIEVED FROM ACTIVE DUTY IN THE MILITARY SERVICE OF THE UNITED STATES ALL INDIVIDUALS AND UNITS SHALL THEREUPON REVERT TO THEIR NATIONAL GUARD STATUS. THE NATIONAL GUARD BEING A COMPLETE FORCE, WHEN INDUCTED INTO THE SERVICE OF THE UNITED STATES, THE BASE PAY OR PAY GRADES OF THE ENLISTED MEMBERS THEREOF SHOULD BE ASCERTAINED BY TREATING THEIR NATIONAL GUARD SERVICE AS SERVICE WITHIN THE PROVISION FOR BASE PAY.

WITH THIS PRELIMINARY DISCUSSION YOUR VARIOUS QUESTIONS ARE ANSWERED AS FOLLOWS:

A. AS THE MEMBER OF THE NATIONAL GUARD OF THE SEVENTH GRADE HAD MORE THAN 4 MONTHS' SERVICE IN THE NATIONAL GUARD NOT IN FEDERAL SERVICE HE IS NOT AN ENLISTED MAN WITH LESS THAN 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT PERIOD AND WILL BE ENTITLED TO $30 PER MONTH, NOT $21.

B. THE MEMBER'S SERVICE IN THE NATIONAL GUARD BEFORE INDUCTION INTO THE SERVICE OF THE UNITED STATES SHOULD BE COUNTED WITH HIS SERVICE AFTER INDUCTION TO COMPLETE HIS 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT PERIOD. HE WILL NOT BE REQUIRED TO SERVE 4 MONTHS AFTER INDUCTION INTO THE SERVICE OF THE UNITED STATES WHERE HE HAS HAD A PORTION OF THE REQUIRED SERVICE BY AN ENLISTMENT IN THE NATIONAL GUARD PRIOR THERETO, AND THE SERVICE IN THE NATIONAL GUARD PRIOR TO INDUCTION SHOULD BE INCLUDED. SEE, ALSO, ANSWER TO QUESTION A. C. IF THE MEMBER HAD SERVED IN THE REGULAR ARMY, IT MUST HAVE BEEN IN AN ENLISTMENT IN THE REGULAR ARMY. THEREAFTER AND BEFORE 4 MONTHS' SERVICE HE WAS DISCHARGED AND ENLISTED IN THE NATIONAL GUARD AND THE COMBINED SERVICE IN THE REGULAR ARMY AND IN THE NATIONAL GUARD BEFORE INDUCTION EQUALS LESS THAN 4 MONTHS, THE CASE WOULD BE MOST UNUSUAL. HOWEVER, IF THE MAN ENLISTED IN THE REGULAR ARMY AND WAS DISCHARGED THEREFROM BEFORE HE ENLISTED IN THE NATIONAL GUARD, HIS ENLISTMENT IN THE NATIONAL GUARD IN WHICH HE WAS SERVING WHEN INDUCTED INTO THE SERVICE OF THE UNITED STATES WOULD NOT BE HIS FIRST ENLISTMENT. HENCE, HE WOULD BE ENTITLED TO $30 PER MONTH. D. IF THE MAN HAD PREVIOUS SERVICE EITHER IN THE REGULAR ARMY OR IN THE NATIONAL GUARD UNDER A CONTRACT OF ENLISTMENT WHICH WAS TERMINATED AND HE THEREAFTER ENLISTED IN THE NATIONAL GUARD AND WAS SERVING IN THAT ENLISTMENT WHEN INDUCTED INTO THE SERVICE OF THE UNITED STATES, HE WAS NOT, AFTER INDUCTION, SERVING IN HIS FIRST ENLISTMENT PERIOD AND HE WOULD BE ENTITLED TO $30 PER MONTH.

E. IN VIEW OF THE ABOVE ANSWERS TO QUESTIONS A, B, C, AND D, THIS QUESTION REQUIRES NO FURTHER ANSWER.

F. A SELECTIVE TRAINEE WHO HAS HAD PRIOR SERVICE IN THE REGULAR ARMY OF THE UNITED STATES UNDER A CONTRACT OF ENLISTMENT IS NOT SERVING IN HIS FIRST ENLISTMENT WHEN INDUCTED INTO THE SERVICE OF THE UNITED STATES UNDER THE ACT OF SEPTEMBER 16, 1940, AND, ACCORDINGLY, IF HE IS AN ENLISTED MAN OF THE SEVENTH GRADE HE WOULD BE ENTITLED TO THE $30 PER MONTH.

G. BOTH A SELECTIVE TRAINEE, AND A MEMBER OF THE NATIONAL GUARD MUST HAVE COMPLETED THE 4 MONTHS' SERVICE IN THEIR FIRST ENLISTMENT BEFORE THEY ARE ENTITLED TO MORE THAN $21 PER MONTH, IRRESPECTIVE OF PROMOTION DURING THAT PERIOD, AND IF PROMOTED BEFORE THE COMPLETION OF 4 MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT SUCH PROMOTION WILL NOT ENTITLE THEM TO INCREASED PAY UNTIL THEY HAVE COMPLETED 4 MONTHS' SERVICE.

H. IF AN ENLISTED MAN, EITHER OF THE REGULAR ARMY OR OF THE NATIONAL GUARD, WITH LESS THAN 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT WAS PROMOTED PRIOR TO OCTOBER 1, 1940, OR BEFORE INDUCTION AS THE CASE MAY BE, THEN FROM OCTOBER 1, 1940, OR FROM THE DATE OF INDUCTION IF SUBSEQUENT TO OCTOBER 1, 1940, THE MAN WILL BE ENTITLED TO RECEIVE ONLY $21 PER MONTH, THE RATE OF PAY ESTABLISHED FOR ALL ENLISTED MEN WITH LESS THAN 4 MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD. THERE BEING NO SAVINGS CLAUSE WITH RESPECT TO THIS PAY IN THE ACT THE MAN'S PAY SHOULD BE ADJUSTED TO $21 PER MONTH FOR THE PERIOD FROM OCTOBER 1, 1940, OR FROM DATE OF INDUCTION IF AFTER OCTOBER 1, 1940, AS THE CASE MAY BE, UNTIL HE HAS COMPLETED 4 MONTHS' SERVICE DURING HIS FIRST ENLISTMENT PERIOD.

I. IF THE QUESTION RELATES TO ENLISTED MEMBERS OF THE NATIONAL GUARD WHO HAVE SERVED MORE THAN 4 MONTHS IN THE NATIONAL GUARD, THE ANSWER IS "NO.'

J. "SERVICE" HERETOFORE HAS BEEN CONSTRUED AS NOT INCLUDING TIME WHEN AN ENLISTED MAN IS ABSENT WITHOUT LEAVE, OR ABSENT BECAUSE OF DISEASE DUE TO HIS OWN MISCONDUCT AND WHEN CONFINED UNDER CERTAIN CIRCUMSTANCES. SEE 2 COMP. GEN. 162. ACCORDINGLY, THE 4 MONTHS' SERVICE NECESSARILY INCLUDES ONLY SERVICE THAT MAY BE COUNTER FOR PAY AND FOR COMPLETION OF ENLISTMENT. SEE B-12506.