B-142704, MARCH 21, 1961, 40 COMP. GEN. 531

B-142704, MARCH 21, 1961, 40 COMP. GEN. 531

MILITARY PERSONNEL - RETIRED PAY SERVICE CREDITS - UNDERAGE ENLISTMENTS A MINOR'S LEGAL CAPACITY TO ENTER INTO A CONTRACT OF ENLISTMENT MUST BE DETERMINED ON THE BASIS OF THE LAW IN EFFECT AT THE TIME OF HIS ENLISTMENT OR ATTEMPTED ENLISTMENT IN THE UNIFORMED SERVICES, AND A MILITARY STATUS ONCE VALIDLY ATTAINED IS NOT AFFECTED BY A CHANGE IN THE MINIMUM AGE FOR ENLISTMENT; ACCORDINGLY, IF AN ENLISTMENT CONTRACT WAS VOID DUE TO ENLISTMENT WHILE UNDER THE MINIMUM AGE AND THAT AGE WAS LOWERED OR ABOLISHED BEFORE THE MEMBER REACHED SUCH AGE, THE TIME SERVED AFTER THE MEMBER REACHED THE NEW MINIMUM AGE OR FROM THE EFFECTIVE DATE OF THE STATUTE EFFECTING THE CHANGE, IF THE MEMBER WAS OVER THE NEW AGE ON SUCH DATE, MAY BE COUNTED FOR RETIREMENT PURPOSES, PROVIDED THAT NO ACTION WAS TAKEN BY THE GOVERNMENT TO AVOID THE ENLISTMENT CONTRACT IF ENTERED INTO WITHOUT THE WRITTEN CONSENT OF THE MEMBER'S PARENT OR GUARDIAN. THE MINIMUM STATUTORY AGES FOR ENLISTMENT IN THE VARIOUS COMPONENTS OF THE ARMY ARE: CHART SERVICE PERIOD AGE REGULAR ARMY -------- JUNE 3, 1916-1MAY 31, 1945 ----- --- NONE EXCEPT ENLISTMENTS UNDER ACT OF MAY 18, 1917 -------------------------- 18 YEARS. JUNE 1, 1945-1JUNE 30, 1947 -------- 17 YEARS. NATIONAL GUARD --- -- JUNE 3, 1916-1JUNE 27, 1947 -------- 18 YEARS. JUNE 28-30, 1947 ------------------- 17 YEARS. ENLISTED RESERVE CORPS --------------- JUNE 3, 1916-1JUNE 3, 1920 --------- 18 YEARS. JUNE 4, 1920-1MAY 21, 1945 --------- NONE JUNE 1, 1945-1JUNE 30, 1947 -------- 17 YEARS. ARMY OF THE UNITED STATES (UNDER THE ACT OF MAY 14, 1940). ---- AUG. 18, 1941-1JULY 25, 1947 -------- 18 YEARS. IN VIEW OF THE INTRODUCTION IN THE PRESENT SESSION OF CONGRESS OF LEGISLATION WHICH WOULD VALIDATE FOR RETIREMENT AND RETIRED PAY PURPOSES THE UNDERAGE SERVICE WHICH WAS HELD NOT TO BE CREDITABLE FOR RETIREMENT OR RETIRED PAY PURPOSES, 39 COMP. GEN. 860, ACTION WILL NOT BE PRESSED TO DISCONTINUE OR REDUCE PAYMENTS OF RETIRED PAY BEING MADE TO MEMBERS PRESENTLY ON THE RETIRED LIST SOLELY BECAUSE THEY HAVE BEEN ERRONEOUSLY CREDITED WITH UNDERAGE "SERVICE" IN DETERMINING THEIR ELIGIBILITY FOR RETIREMENT OR IN COMPUTING THEIR RETIRED PAY.

TO THE SECRETARY OF DEFENSE, MARCH 21, 1961:

REFERENCE IS MADE TO LETTER OF JANUARY 12, 1961, FROM THE FORMER ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING CONSIDERATION OF CERTAIN MATTERS RELATING TO OUR DECISION, 39 COMP. GEN. 860, DATED JUNE 22, 1960, IN VIEW OF REPRESENTATIONS CONTAINED IN COMMITTEE ACTION NO. 278 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, ATTACHED TO HIS LETTER.

THE COMMITTEE ACTION PRESENTS TWO QUESTIONS FOR DECISION WHICH ARE AS FOLLOWS:

1. IN DETERMINING WHETHER AN INDIVIDUAL IS TO BE DENIED MINORITY SERVICE FOR RETIREMENT PURPOSES UNDER COMPTROLLER GENERAL DECISION B 142704, 22 JUNE 1960, IS THE MINIMUM STATUTORY AGE FOR ENLISTMENT IN EFFECT AT THE TIME OF ENLISTMENT THE PROPER CRITERIA FOR MAKING SUCH A DETERMINATION?

2. WHAT ARE THE MINIMUM STATUTORY AGES FOR ENLISTMENT FOR THE VARIOUS COMPONENTS OF THE ARMY FROM 3 JUNE 1916 TO 30 JUNE 1947?

A MINOR'S LEGAL CAPACITY TO ENTER INTO A CONTRACT OF ENLISTMENT MUST BE DETERMINED ON THE BASIS OF THE PROVISIONS OF LAW WHICH WERE IN EFFECT AT THE TIME OF HIS ENLISTMENT OR ATTEMPTED ENLISTMENT IN THE ARMY. AS TO THE MATTER OF A CHANGE IN THE STATUTORY AGE, WE HAVE FOUND NO STATUTORY PROVISION EFFECTING ANY CHANGE IN THE MINIMUM AGE FOR ENLISTMENT WHICH PURPORTS TO DEPRIVE A MINOR OF A MILITARY STATUS ONCE VALIDLY ATTAINED. IF THE ENLISTMENT CONTRACT WAS VOID DUE TO ENLISTMENT WHILE UNDER THE MINIMUM AGE FOR ENLISTMENT AND THAT AGE WAS LOWERED OR ABOLISHED BEFORE THE PERSON CONCERNED REACHED SUCH AGE, IT IS BELIEVED PROPER TO COUNT FOR RETIREMENT PURPOSES THE TIME SERVED AFTER REACHING THE NEW MINIMUM AGE OR FROM THE EFFECTIVE DATE OF THE STATUTE EFFECTING THE CHANGE IF HE WAS OVER THE NEW AGE ON THE EFFECTIVE DATE OF THE STATUTE, PROVIDED, OF COURSE, NO ACTION WAS TAKEN BY THE GOVERNMENT TO AVOID THE ENLISTMENT CONTRACT, IF ENTERED INTO WITHOUT THE WRITTEN CONSENT OF PARENT OR GUARDIAN. SEE, IN THIS CONNECTION THE ANSWERS TO QUESTIONS 1 AND 2 IN THE DECISION OF JUNE 22, 1960, 39 COMP. GEN. 860.

QUESTION NO. 1 IS ANSWERED ACCORDINGLY.

IT IS STATED IN THE DISCUSSION ACCOMPANYING THE QUESTIONS CONTAINED IN THE COMMITTEE ACTION THAT THE MINIMUM STATUTORY AGE FOR ENLISTMENT IN THE REGULAR ARMY WAS NOT CLEARLY DEFINED BY STATUTE EXCEPT FOR THE PERIOD FROM MARCH 2, 1899, TO JUNE 2, 1916, WHEN SECTION 1116, REVISED STATUTES, DEFINED THE MINIMUM AGE FOR THE REGULAR ARMY AS 16 YEARS OF AGE, AND THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY RENDERED AN OPINION ON AUGUST 24, 1960, THAT THERE WAS NO MINIMUM STATUTORY AGE FOR REGULAR ARMY ENLISTMENTS OF MALE PERSONS BETWEEN JUNE 3, 1916, AND JULY 1, 1947. SUCH CONCLUSION APPARENTLY WAS BASED ON THE PROVISIONS OF SECTION 27 OF THE NATIONAL DEFENSE ACT (1916), 10 U.S.C. 628 (1946 USED.), REQUIRING APPLICANTS FOR ENLISTMENT UNDER 18 YEARS OF AGE TO HAVE PARENTAL CONSENT.

THE MINIMUM STATUTORY AGE FOR ENLISTMENT IN THE REGULAR ARMY HAS VARIED OVER THE YEARS. SECTION 116, REVISED STATUTES, PROVIDED AGE LIMITS FOR ORIGINAL ENLISTMENTS IN THE ARMY BETWEEN THE AGES OF 16 AND 35 YEARS. SECTION 1117, REVISED STATUTES, PROVIDED THAT NO PERSON UNDER THE AGE OF 21 YEARS SHOULD BE ENLISTED OR MUSTERED INTO THE MILITARY SERVICE OF THE UNITED STATES WITHOUT THE WRITTEN CONSENT OF HIS PARENTS OR GUARDIAN. SECTION 1118, REVISED STATUTES, PROVIDED THAT NO MINOR UNDER THE AGE OF 16 YEARS COULD BE ENLISTED IN THE MILITARY SERVICE.

SECTION 4 OF THE ACT OF MARCH 2, 1899, 30 STAT. 978, 10 U.S.C. 621, CONTAINED THE FOLLOWING PROVISO:

THE LIMITS OF AGE FOR ORIGINAL ENLISTMENTS IN THE ARMY SHALL BE 18 AND 35 YEARS.

THIS PROVISO IS ASSERTED TO HAVE REPEALED BY NECESSARY IMPLICATION THE MINIMUM AGE LIMIT OF 16 YEARS PREVIOUSLY EMBODIED IN SECTIONS 1116 AND 1118, REVISED STATUTES. SEE DISCUSSION ON THIS POINT IN EX PARTE BEAVER, 271 F. 493. SINCE THERE IS AN IRRECONCILABLE REPUGNANCY BETWEEN THE TWO PROVISIONS, IT IS OUR VIEW THAT SUCH PROVISO DID REPEAL SECTIONS 1116 AND 1118 TO THE EXTENT OF THAT REPUGNANCY. LIETZ V. FLEMMING, 264 F.2D 311.

SECTION 27 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 10 U.S.C. 627 (1940 USED.), RELATING TO ENLISTMENTS IN THE REGULAR ARMY, CONTAINED A PROVISO STATING:

THAT NO PERSON UNDER THE AGE OF EIGHTEEN YEARS SHALL BE ENLISTED OR MUSTERED INTO THE MILITARY SERVICE OF THE UNITED STATES WITHOUT THE WRITTEN CONSENT OF HIS PARENTS OR GUARDIANS, PROVIDED THAT SUCH MINOR HAS SUCH PARENTS OR GUARDIANS ENTITLED TO HIS CUSTODY AND CONTROL.

IT APPEARS CLEAR THAT SECTION 27 ABOVE SUPERSEDED SECTION 1117, REVISED STATUTES, WITH ITS 21-YEAR AGE LIMITATION FOR CONSENT ENLISTMENTS. SEE EX PARTE BEAVER, ABOVE. AS TO ITS EFFECT ON SECTION 4 OF THE 1899 ACT, WHILE THE BEAVER CASE ASSERTS THAT IT REPEALED BY NECESSARY IMPLICATION THE MINIMUM AGE LIMITATION (18 YEARS) PRESCRIBED BY THAT ACT, NO CASE HAS BEEN FOUND WHICH HAS CONSIDERED AND EXPRESSLY RULED ON THE QUESTION WHETHER SECTION 27 HAD THE EFFECT OF RESTORING OR REVIVING THE 16-YEAR MINIMUM PRESCRIBED BY SECTIONS 1116 AND 1118 OF THE REVISED STATUTES. WHILE THE BEAVER CASE CONTAINS NO FIRM RULING ON THIS MATTER, THE COURT POINTED OUT THAT SOME CASES DECIDED AFTER ENACTMENT OF SECTION 27, HAVE HELD THAT A MINOR OVER 16 BUT UNDER 18, MIGHT HAVE ENTERED INTO A VALID ENLISTMENT CONTRACT IN THE ARMY, THUS, IN EFFECT, HOLDING THAT 16 YEARS WAS THE STATUTORY MINIMUM AGE FOR ENLISTMENT AT THAT TIME. SEE FOR EXAMPLE, HOSKINS V. PELL, 239 F. 279, AND EX PARTE RUSH, 246 F. 172. HOWEVER, NEITHER OF THOSE CASES NOR OTHER SIMILAR CASES WHICH HAVE BEEN FOUND (EXCEPT THE BEAVER CASE) CONSIDERED THE 1899 ACT. IN SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT ANY AUTHORITATIVE CASE HAS ESTABLISHED THAT THE MINIMUM AGE WAS 16 AT ANY TIME AFTER 1899.

IT IS THE VIEW OF THIS OFFICE THAT WHETHER OR NOT SECTION 27 OF THE 1916 ACT IS TO BE REGARDED AS REPEALING BY IMPLICATION THE PROVISO AS TO AGE IN SECTION 4 OF THE 1899 ACT, THE FORMER COULD NOT BE VIEWED AS REVIVING THE MINIMUM AGE OF 16. IT IS EXPRESSLY PROVIDED IN SECTION 12, REVISED STATUTES, NOW CONTAINED IN 1 U.S.C. 108, THAT:

WHENEVER AN ACT IS REPEALED, WHICH REPEALED A FORMER ACT, SUCH FORMER ACT SHALL NOT THEREBY BE REVIVED UNLESS IT SHALL BE EXPRESSLY SO PROVIDED.

IT HAS BEEN HELD THAT THIS SECTION APPLIES TO REPEALS BY IMPLICATION AS WELL AS BY EXPRESS LANGUAGE AND THAT IT CHANGED THE COMMON LAW RULE THAT THE REPEAL OF A REPEALING ACT REVIVES THE FORMER ACT. BENDER V. UNITED STATES, 93 F.2D 814.

THUS, IT APPEARS THAT THE LAW IN EFFECT AFTER THE ENACTMENT OF SECTION 27 OF THE NATIONAL DEFENSE ACT PERMITTED ENLISTMENTS UNDER THE AGE OF 18 IN THOSE CASES WHERE THE MINOR COULD SECURE THE CONSENT OF HIS PARENTS OR GUARDIAN. A LEGAL EFFECT OF SUCH STATUTORY PROVISIONS WAS TO ABOLISH THE MINIMUM AGE FOR ENLISTMENT. THE SUPREME COURT OF THE UNITED STATES APPEARS TO SUPPORT THE VIEW THAT, WHERE THERE IS A MINIMUM AGE FOR ENLISTMENT, THE ENLISTMENT OF A PERSON OVER THAT AGE BUT OF AN AGE REQUIRING PARENTAL CONSENT IS VOIDABLE, NOT VOID, IN THE ABSENCE OF SUCH CONSENT. IN RE MORRISSEY, 137 U.S. 159. THE SAME CONCLUSION APPEARS TO BE REQUIRED IN A SIMILAR SITUATION WHERE THE MINIMUM AGE HAS BEEN ABOLISHED. BEING VOIDABLE AND NOT VOID, THE TIME SERVED UNDER SUCH ENLISTMENTS WHICH HAVE NOT BEEN AVOIDED BY THE GOVERNMENT FOR MINORITY MAY BE CREDITED FOR ALL PURPOSES INCLUDING ELIGIBILITY FOR RETIREMENT.

SECTION 58 OF THE NATIONAL DEFENSE ACT, 39 STAT. 197, 32 U.S.C. 4 (1946 USED.), PROVIDED THAT THE NATIONAL GUARD SHALL CONSIST OF THE REGULARLY ENLISTED MILITIA "BETWEEN THE AGES OF EIGHTEEN AND FORTY FIVE.' IN 1916, THE JUDGE ADVOCATE GENERAL OF THE ARMY HELD THAT THIS PROVISION IS CONTROLLING AND LIMITS THE AGES FOR QUALIFICATION AS THEREIN SPECIFIED. SEE SECTION 1261, DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-1940, PAGE 632. THE AGE IS 18, THEREFORE, CONSTITUTED THE MINIMUM STATUTORY ENLISTMENT AGE FOR THE NATIONAL GUARD UNTIL ENACTMENT OF SECTION 7 OF THE ACT OF JUNE 28, 1947, 61 STAT. 192, CHANGED THAT AGE TO 17 YEARS.

SECTION 55 OF THE NATIONAL DEFENSE ACT, 39 STAT. 195, 10 U.S.C. 421 (1946 USED.), PROVIDED THAT NO MAN SHALL BE ENLISTED IN THE ENLISTED RESERVE CORPS UNLESS HE SHALL BE BETWEEN THE AGES OF 18 AND 45 YEARS. THAT SECTION AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 780, PROVIDED THAT ENLISTMENTS SHALL BE LIMITED TO PERSONS ELIGIBLE FOR ENLISTMENT IN THE REGULAR ARMY.

SECTIONS 1 AND 2 OF THE ACT OF MAY 18, 1917, 40 STAT. 76, 77, PROVIDED, AMONG OTHER THINGS, FOR THE RAISING OF ALL ORGANIZATIONS OF THE REGULAR ARMY TO THE MAXIMUM LEGAL STRENGTH AUTHORIZED BY LAW, BY VOLUNTARY ENLISTMENT, IF POSSIBLE, OTHERWISE BY SELECTIVE DRAFT. SECTION 7 OF THAT ACT PROVIDED THAT THE QUALIFICATIONS AND CONDITIONS FOR VOLUNTARY ENLISTMENTS UNDER THAT ACT SHALL BE THE SAME AS PRESCRIBED BY EXISTING LAW FOR ENLISTMENTS IN THE REGULAR ARMY EXCEPT THAT RECRUITS ,MUST BE BETWEEN THE AGES OF EIGHTEEN AND FORTY YEARS * * * AT THE TIME OF THEIR ENLISTMENT.' SECTION 2 OF THAT ACT ALSO PROVIDED FOR THE DRAFT, BASED UPON LIABILITY FOR MILITARY SERVICE, OF ALL MALE CITIZENS AND MALE PERSONS RESIDING IN THE UNITED STATES, NOT ALIEN ENEMIES, WHO HAD DECLARED THEIR INTENTION TO BECOME CITIZENS, BETWEEN THE AGES OF 21 AND 45. THE AGE OF 21 WAS REDUCED TO 18 BY SECTION 1 OF THE ACT OF AUGUST 31, 1918, 40 STAT. 955.

THE ACT OF MAY 14, 1940, 54 STAT. 213, 10 U.S.C. 634 (1940 EDITION), AMENDED SECTION 127A OF THE ACT OF JUNE 3, 1916, AS ADDED BY THE ACT OF JUNE 4, 1920, TO PROVIDE THAT ALL ENLISTMENTS IN THE MILITARY SERVICE SHALL BE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, STATING THAT ELIGIBILITY FOR SUCH ENLISTMENT "SHALL BE LIMITED TO PERSONS NOT LESS THAN EIGHTEEN YEARS OF AGE.' SUCH PROVISIONS WERE APPLICABLE ONLY "1IN TIME OF WAR OR OTHER EMERGENCY DECLARED BY CONGRESS.' WAR WAS DECLARED BY JOINT RESOLUTION OF DECEMBER 8, 1941, 55 STAT. 795. THIS ACTION MADE THE PROVISIONS OF THE ACT OF MAY 14, 1940, EFFECTIVE AS OF DECEMBER 8, 1941, AND THEY CONTINUED IN EFFECT UNTIL THE WAR WAS TERMINATED BY SECTION 3 OF JOINT RESOLUTION OF JULY 25, 1947, 61 STAT. 452. WHILE THE 1940 ACT DID NOT BECOME FULLY EFFECTIVE UNTIL DECEMBER 8, 1941, ENLISTMENTS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THAT ACT WERE AUTHORIZED BY SECTION 10 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 628, 50 U.S.C. 360.

SECTION 3 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT DATED OCTOBER 6, 1945, AMENDED THE ACT OF JUNE 1, 1945, 50 U.S.C. APP. 1531 (1946 EDITION), TO AUTHORIZE ENLISTMENTS IN THE REGULAR ARMY OF QUALIFIED PERSONS "NOT LESS THAN SEVENTEEN YEARS OF AGE" AND INCLUDED A PROVISO THAT "NO PERSON UNDER THE AGE OF EIGHTEEN YEARS SHALL BE ENLISTED WITHOUT THE WRITTEN CONSENT OF HIS PARENTS OR GUARDIANS.' THE EFFECT OF THIS ACT WAS TO PROVIDE A REGULAR ARMY MINIMUM STATUTORY ENLISTMENT AGE OF 17 YEARS FROM JUNE 1, 1945, THE AMENDMENT BEING EFFECTIVE FROM THAT DATE. THE AUTHORITY GRANTED WAS TO TERMINATE ON JUNE 30, 1947. HOWEVER, EFFECTIVE JULY 1, 1947, THE ACT OF JUNE 28, 1947, 61 STAT. 191 (NOW CONTAINED IN 10 U.S.C. 3256), PROVIDED THE SAME MINIMUM STATUTORY AND CONSENT ENLISTMENT AGES AS WERE CONTAINED IN THE 1945 ACT.

WITH RESPECT TO THOSE INDUCTED INTO THE ARMY DURING WORLD WARS I AND II BY REASON OF THEIR REGISTERING WHILE UNDER THE LAWFUL AGE REQUIRING REGISTRATION, ATTENTION IS INVITED TO THE FACT THAT THE REGISTRATION AND DRAFTING OF MEN BETWEEN THE AGES MENTIONED IN THE ACT OF MAY 18, 1917, AS AMENDED BY THE ACT OF AUGUST 31, 1918, CITED ABOVE, WAS "BASED ON LIABILITY TO MILITARY SERVICE" OF PERSONS BETWEEN THOSE AGES AS PROVIDED IN SECTION 2 OF THAT ACT, AS SO AMENDED. SINCE MEN WHO WERE UNDER THE MINIMUM AGES THERE PRESCRIBED WERE NEITHER REQUIRED TO REGISTER NOR PERFORM MILITARY SERVICE, IT IS OUR VIEW THAT PERSONS WHO INDUCED THE GOVERNMENT TO DRAFT THEM INTO THE ARMY BY MISSTATING THEIR AGES AT THE TIME THEY REGISTERED FOR THE DRAFT (EITHER FALSELY OR IN GOOD FAITH) ACQUIRED NO GREATER RIGHTS THAN MINORS WHO ENLISTED IN THE ARMY BY MISSTATING THEIR AGES AT THAT TIME. NO LANGUAGE HAS BEEN FOUND IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, 50 U.S.C. APP. 302, WHICH WARRANTS A DIFFERENT CONCLUSION WITH RESPECT TO PERSONS WHO REGISTERED AND WERE INDUCTED INTO THE MILITARY FORCES WHILE THEY WERE UNDER THE MINIMUM AGES PRESCRIBED IN THAT ACT, AS AMENDED. COMPARE BLANTON V. UNITED STATES, 7 U.S.C.M.A. 664, 23 C.M.R. 128. SECTION 3 (A) OF THAT ACT PROVIDED THAT, WITHIN THE LIMITS OF THE QUOTA THERE PRESCRIBED, ANY PERSON BETWEEN THE AGES OF EIGHTEEN AND THIRTY SIX "SHALL BE AFFORDED AN OPPORTUNITY TO VOLUNTEER FOR INDUCTION" FOR THE TRAINING AND SERVICE PRESCRIBED IN SUBSECTION (B).

FROM THE FOREGOING, IT IS CONCLUDED THAT FOR THE PERIOD JUNE 3, 1916, TO JUNE 30, 1947, THE MINIMUM STATUTORY AGES FOR ENLISTMENT FOR THE VARIOUS COMPONENTS OF THE ARMY WERE AS FOLLOWS: FOR THE REGULAR ARMY FOR THE PERIOD JUNE 3, 1916, TO MAY 31, 1945, NONE, EXCEPT FOR ENLISTMENTS UNDER THE ACT OF MAY 18, 1917, AS AMENDED FOR WHICH THE MINIMUM AGE WAS 18 YEARS; FOR THE PERIOD JUNE 1, 1945, TO JUNE 30, 1947, 17 YEARS; FOR THE NATIONAL GUARD FOR THE PERIOD JUNE 3, 1916, TO JUNE 27, 1947, 18 YEARS, FOR THE PERIOD JUNE 28 TO 30, 1947, 17 YEARS; FOR THE ENLISTED RESERVE CORPS FROM JUNE 3, 1916, TO JUNE 3, 1920, 18 YEARS, FROM JUNE 4, 1920, TO MAY 31, 1945, NONE, AND FROM JUNE 1, 1945, TO JUNE 30, 1947, 17 YEARS. STATED ABOVE, THE MINIMUM AGE FOR ENLISTMENT IN THE ARMY OF THE UNITED STATES PROVIDED BY THE ACT OF MAY 14, 1940, AS AMENDED, EFFECTIVE FROM AUGUST 18, 1941, WAS 18 YEARS. SUCH AGE CONTINUED FOR THE DURATION OF THE WAR OR EMERGENCY WHICH ENDED ON JULY 25, 1947. THE PAY AND ALLOWANCE COMMITTEE DISCUSSION EMPHASIZES THE ADMINISTRATIVE DIFFICULTIES WHICH WILL BE ENCOUNTERED IN THE GENERAL APPLICATION OF OUR DECISION OF JUNE 22, 1960. WE RECOGNIZE THAT THE CONCLUSIONS THERE REACHED MAY WORK HARDSHIP IN INDIVIDUAL CASES AND THAT THE APPLICATION OF THE DECISION MAY BE CONSIDERED HARSH, PARTICULARLY TO UNDERAGE ENLISTMENTS DURING WARTIME WHEN SUCH ENLISTMENTS MAY HAVE BEEN MOTIVATED BY PATRIOTISM. HOWEVER, UNLESS AND UNTIL THE CONGRESS ENACTS LEGISLATION CHANGING THE EXISTING LAW, WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT UNDERAGE SERVICE IN THESE TYPES OF CASES CANNOT BE COUNTED FOR RETIREMENT PURPOSES.

WE NOTE THAT AT LEAST TWO BILLS, H.R. 4537 AND H.R. 4775, HAVE BEEN INTRODUCED DURING THE PRESENT SESSION OF CONGRESS WHICH WOULD VALIDATE, FOR RETIREMENT AND RETIRED PAY PURPOSES, THE UNDERAGE SERVICE WHICH IS NOW QUESTIONED. WE WOULD HAVE NO OBJECTION TO THE ENACTMENT BY THE CONGRESS OF LEGISLATION DESIGNED TO ACCOMPLISH THAT PURPOSE. PENDING CONGRESSIONAL CONSIDERATION OF SUCH PROPOSED LEGISLATION, AT LEAST UNTIL ADJOURNMENT OF THE PRESENT SESSION OF CONGRESS, WE WILL NOT PRESS FOR ACTION TO DISCONTINUE OR REDUCE PAYMENTS OF RETIRED PAY BEING MADE TO MEMBERS PRESENTLY ON THE RETIRED LIST SOLELY BECAUSE THEY HAVE BEEN CREDITED WITH UNDERAGE "SERVICE" IN DETERMINING THEIR ELIGIBILITY FOR RETIREMENT OR IN COMPUTING THEIR RETIRED PAY.