A-11053, SEPTEMBER 14, 1925, 5 COMP. GEN. 189

A-11053: Sep 14, 1925

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TRANSFER OF ENLISTED MEN OF THE NAVY TO THE FLEET NAVAL RESERVE WHEN AN ENLISTED MAN OF THE NAVY IS ABSENT WITHOUT LEAVE HE IS NOT RENDERING NAVAL SERVICE AND THE PERIOD SO ABSENT MAY NOT BE COUNTED IN COMPUTING THE 16 OR 20 YEARS' NAVAL SERVICE NECESSARY FOR TRANSFER TO THE FLEET NAVAL RESERVE. THE MAN IS CONFINED ON HIS SHIP OR AT HIS STATION AND THE TOTAL OF SUCH NONPERFORMANCE OF NAVAL DUTIES DOES NOT EXCEED THREE MONTHS IN ENLISTMENTS TOTALING FOUR YEARS. IT WAS HELD THAT THE FOLLOWING PERIODS DID NOT CONSTITUTE SERVICE WITHIN THE MEANING OF THE LAW REQUIRING 16 AND 20 YEARS' NAVAL SERVICE FOR TRANSFER: 1. IN YOUR LETTER IT IS STATED: IN THE ADMINISTRATION OF THE ABOVE PROVISIONS OF LAW IT HAS BEEN THE PRACTICE OF THIS DEPARTMENT TO COUNT ALL SERVICE BETWEEN DATE OF ENLISTMENT AND DATE OF TRANSFER TO THE FLEET NAVAL RESERVE AS "NAVAL SERVICE.

A-11053, SEPTEMBER 14, 1925, 5 COMP. GEN. 189

TRANSFER OF ENLISTED MEN OF THE NAVY TO THE FLEET NAVAL RESERVE WHEN AN ENLISTED MAN OF THE NAVY IS ABSENT WITHOUT LEAVE HE IS NOT RENDERING NAVAL SERVICE AND THE PERIOD SO ABSENT MAY NOT BE COUNTED IN COMPUTING THE 16 OR 20 YEARS' NAVAL SERVICE NECESSARY FOR TRANSFER TO THE FLEET NAVAL RESERVE. ABSENCE FROM DUTY WHILE UNDER ARREST BY CIVIL AUTHORITIES, OR WHILE IN ARREST AWAITING TRIAL BY COURT-MARTIAL, OR THE RESULT OF TRIAL AND SERVING SENTENCE OF A COURT-MARTIAL, MAY NOT BE COUNTED IN COMPUTING THE NAVAL SERVICE OF AN ENLISTED MAN OF THE NAVY FOR TRANSFER TO THE FLEET NAVAL RESERVE, WITH THE EXCEPTION THAT WHEN, AS THE RESULT OF TRIAL AND SERVING SENTENCE, THE MAN IS CONFINED ON HIS SHIP OR AT HIS STATION AND THE TOTAL OF SUCH NONPERFORMANCE OF NAVAL DUTIES DOES NOT EXCEED THREE MONTHS IN ENLISTMENTS TOTALING FOUR YEARS, SUCH TIME MAY BE COUNTED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 14, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 14, 1925, REQUESTING FURTHER CONSIDERATION OF THE REQUIREMENTS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 590, FOR TRANSFERS TO THE FLEET NAVAL RESERVE, THE SUBJECT OF DECISIONS OF AUGUST 13 AND OCTOBER 14, 1924 (D.M. 412), ISSUED TO THE AUDITING DIVISION OF THIS OFFICE FOR GUIDANCE IN THE AUDIT OF ACCOUNTS. IN THE DECISION OF OCTOBER 14, 1924, IT WAS HELD THAT THE FOLLOWING PERIODS DID NOT CONSTITUTE SERVICE WITHIN THE MEANING OF THE LAW REQUIRING 16 AND 20 YEARS' NAVAL SERVICE FOR TRANSFER:

1. TIME WHILE ON FURLOUGH WITHOUT PAY.

2. INACTIVE SERVICE OR TRAINING SERVICE AS A MEMBER OF THE NAVAL RESERVE FORCE.

AND EXCEPT AS TO MINORITY ENLISTMENTS:

3. TIME LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE RESULTING FROM THE MAN'S OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT;

4. ABSENCE WITHOUT LEAVE (INCLUDING DESERTION AND IMPRISONMENT WHILE IN CIVIL ARREST RESULTING IN SENTENCE AND WHILE SERVING SUCH SENTENCE);

5. NONPERFORMANCE OF DUTY BECAUSE IMPRISONED BOTH WHILE IN ARREST RESULTING IN COURT-MARTIAL SENTENCE AND WHILE SERVING SUCH SENTENCE.

IN YOUR LETTER IT IS STATED:

IN THE ADMINISTRATION OF THE ABOVE PROVISIONS OF LAW IT HAS BEEN THE PRACTICE OF THIS DEPARTMENT TO COUNT ALL SERVICE BETWEEN DATE OF ENLISTMENT AND DATE OF TRANSFER TO THE FLEET NAVAL RESERVE AS "NAVAL SERVICE," WITH THE EXCEPTION OF THE FOLLOWING:

(A) TIME WHILE ON FURLOUGH WITHOUT PAY.

(B) INACTIVE SERVICE OR TRAINING SERVICE AS A MEMBER OF THE NAVAL RESERVE FORCE.

(C) TIME LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE DUE TO A MAN'S OWN MISCONDUCT SINCE 29 AUGUST, 1916.

(D) ABSENCE WITHOUT LEAVE AND TIME WHILE CONFINED BY NAVAL OR CIVIL AUTHORITIES, WHEN SUCH ABSENCE OR CONFINEMENT EXCEEDS A TOTAL OF THREE MONTHS' TIME IN AN ENLISTMENT.

THIS PROCEDURE IS IN ACCORDANCE WITH THE PROCEDURE SUGGESTED BY YOU IN YOUR DECISION OF OCTOBER 14, 1924, FOR COMPUTATION OF "NAVAL SERVICE" FOR TRANSFER TO THE FLEET NAVAL RESERVE, EXCEPT THAT IT INCLUDES AS "NAVAL SERVICE: "

(A) ABSENCE WITHOUT LEAVE AND TIME IN CONFINEMENT BY NAVAL OR CIVIL AUTHORITIES WHEN SUCH TIME TOTALS LESS THAN THREE MONTHS IN AN ENLISTMENT; AND

(B) ALL SERVICE RENDERED AS A COMMISSIONED OR A WARRANT OFFICER IN THE NAVAL SERVICE.

IN DECISION OF OCTOBER 14, 1924, IT WAS SAID WITH RESPECT TO SERVICES AS A WARRANT OR COMMISSIONED OFFICER UNDER TEMPORARY COMMISSION OR WARRANT IN THE NAVY AND ACTIVE SERVICE OTHER THAN TRAINING AS AN OFFICER IN THE NAVAL RESERVE FORCE THAT THE ACT OF MAY 31, 1924, SPECIFICALLY AUTHORIZED THE COUNTING OF THIS SERVICE BETWEEN APRIL 6, 1917, AND DECEMBER 31, 1921, FOR LONGEVITY PAY PURPOSES "AND NO REASON IS APPARENT WHY SUCH SERVICE SHOULD NOT ALSO BE COUNTED AS ,NAVAL SERVICE" FOR PURPOSES OF TRANSFER TO THE FLEET NAVAL RESERVE.' THIS APPARENTLY HAS BEEN TAKEN AS SAID IN CONNECTION WITH THE DATES NAMED IN THE ACT OF MAY 31, 1924, BUT IT IS NOT TO BE SO LIMITED. SUCH SERVICE OTHER THAN BETWEEN THE DATES INDICATED IS NOT INCLUDED IN THE FIVE CLASSES OF CASES SPECIFICALLY NAMED IN THE DECISION OF OCTOBER 14, 1924, AND AT LEAST ONE OF THE FORMS OF SERVICE IS BY NECESSARY IMPLICATION INCLUDED IN THE SECOND CLASS WHICH DIRECTED THAT THERE SHOULD BE EXCLUDED INACTIVE SERVICE OR TRAINING SERVICE AS A MEMBER OF THE NAVAL RESERVE FORCE, NECESSARILY IMPLYING THAT ACTIVE SERVICE OTHER THAN FOR TRAINING IS INCLUDED WHETHER IN AN ENLISTED RATING OR AS A WARRANT OR COMMISSIONED OFFICER. IN ADDITION IT MAY BE STATED THAT IF ANY ENLISTED MAN HAD SERVICE AS A WARRANT OR COMMISSIONED OFFICER IN THE NAVAL SERVICE OTHER THAN IN THE NAVAL RESERVE FORCE OR UNDER A TEMPORARY WARRANT OR COMMISSION IN THE NAVY UNDER THE ACT OF MAY 22, 1917, 40 STAT. 84, SUCH SERVICE IS PROPERLY FOR INCLUSION FOR TRANSFER TO THE FLEET NAVAL RESERVE AND THIS STATEMENT INCLUDES WARRANT OR COMMISSIONED SERVICE IN THE NATIONAL NAVAL VOLUNTEERS AND THE NAVAL MILITIA IN THE ACTUAL SERVICE OF THE UNITED STATES AND EXCLUSIVE OF TRAINING SERVICE.

THE DIFFERENCES, THEREFORE, SEEM TO BE LIMITED TO THE LAST PARAGRAPH (A) QUOTED, AND THIS DIFFERENCE IS ONLY WHERE THE ABSENCE AS THEREIN DESCRIBED IS FOR THREE MONTHS OR LESS IN AN ENLISTMENT; THE NAVY DEPARTMENT VIEW AND PRACTICE HAVING BEEN TO IGNORE SUCH ABSENCES FOR THE PURPOSE OF TRANSFER. THE BASIS OF THIS VIEW IS STATED AS (1) THAT ABSENCE WITHOUT LEAVE IS AN OFFENSE AGAINST NAVAL DISCIPLINE, FOR WHICH ADEQUATE AND COMPLETE PUNISHMENT IS PROVIDED; (2) THAT THE DECISION EXCLUDING THIS SERVICE IS FOUNDED UPON DECISIONS OF THIS OFFICE HOLDING THAT THE ACT OF AUGUST 29, 1916, 39 STAT. 580, REQUIRING THE MAKING GOOD OF TIME LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE RESULTING FROM THE MAN'S OWN MISCONDUCT, INCLUDED IN THE TERM "MISCONDUCT," ABSENCE WITHOUT LEAVE, AND ABSENCE FROM DUTY IN ARREST, AND THESE DECISIONS HAVE NOW BEEN DEPARTED FROM; (3) THAT OTHER PROVISIONS OF THE ACT OF AUGUST 29, 1916, IN CLOSE RELATION TO THE PROVISION FOR TRANSFERS TO THE FLEET NAVAL RESERVE REFER SPECIFICALLY TO FOUR-YEAR ENLISTMENTS, AND THAT FOUR-YEAR ENLISTMENTS WERE IN THE CONSIDERATION OF CONGRESS WHEN PROVIDING FOR TRANSFERS AT THE EXPIRATION OF AN ENLISTMENT AFTER 16 YEARS' NAVAL SERVICE AND AFTER 20 YEARS' NAVAL ERVICE; (4) BY WAY OF ARGUMENT IT IS SUGGESTED THAT UNDER THE ORIGINAL ACT REQUIRING TRANSFERS AT EXPIRATION OF ENLISTMENT AFTER 16 YEARS' SERVICE THE HOLDING OF THIS OFFICE WOULD DENY TRANSFER TO A MAN WHO HAD BEEN ABSENT WITHOUT LEAVE ONE DAY DURING HIS PRIOR FOUR ENLISTMENTS OF FOUR YEARS EACH; AND (5) THAT THE DEPARTMENT HAS BEEN CONSTRUING THE ACT AS AUTHORIZING TRANSFERS AFTER FOUR OR FIVE FOUR-YEAR ENLISTMENTS, SUCH CONSTRUCTION NOT BEING QUESTIONED UNTIL THE DECISION OF AUGUST 13, 1924, AND THAT DECISION NECESSITATES A CHANGE OF PROCEDURE BASED UPON THE DEPARTMENT'S CONSTRUCTION OF THE LAW FOLLOWED FOR MANY YEARS.

THE DECISION OF OCTOBER 14, 1924, LIMITED ITS APPLICATION TO TRANSFERS MADE AFTER NOVEMBER 1, 1924, AND RECOGNIZED THAT THE DECISION CHANGED A PRACTICE WHICH HAD BEEN FOLLOWED PRIOR THERETO. SO FAR AS DIFFERENCE IN METHOD OF COMPUTING SERVICES IS CONCERNED THE DECISION DID NOT, AS STATED BY YOU,"AFFECT * * * MEN WHO HAVE BEEN * * * TRANSFERRED," AND THE QUESTION IS IMPORTANT ONLY AS TO TRANSFERS MADE SUBSEQUENT TO NOVEMBER 1, 1924. WITH RESPECT TO THE FIRST GROUND OF OBJECTION TO THE DECISION YOU STATE:

ABSENCE WITHOUT LEAVE OR OVER LEAVE HAS, FROM THE BEGINNING OF THE NAVY, BEEN CONSIDERED AN OFFENSE AGAINST NAVAL DISCIPLINE COGNIZABLE BY THE ARTICLES FOR THE GOVERNMENT OF THE NAVY AND FOR WHICH SPECIFIC PUNISHMENTS ARE PROVIDED TO BE ADMINISTERED EITHER BY THE COMMANDING OFFICER OF THE OFFENDER OR BY SENTENCE OF COURTS-MARTIAL. SUCH ABSENCE IS UNAUTHORIZED AND PUNISHMENT IS ADMINISTERED THEREFOR, AND THE MAN SHOULD NOT AND DOES NOT RECEIVE PAY DURING SUCH UNAUTHORIZED ABSENCE, BUT IT HAS NOT BEEN HELD THAT DURING SUCH ABSENCE A MAN IS NOT STILL IN THE NAVY AND PERFORMING NAVAL SERVICE.

I APPREHEND THAT THE SUGGESTION CONTAINED IN THIS PARAGRAPH THAT A MAN WHILE ABSENT WITHOUT LEAVE IS "PERFORMING NAVAL SERVICE" IS INADVERTENT. IT DOES NOT FOLLOW FROM THE FACT THAT THE MAN IS TO BE CONSIDERED AS STILL IN THE NAVY THAT HE IS PERFORMING NAVAL SERVICE. IT HARDLY REQUIRES DEMONSTRATION THAT A MAN WHILE COMMITTING THE CRIME OF ABSENCE WITHOUT LEAVE, FOR WHICH HE IS AMENABLE TO PUNISHMENT, IS NOT IN THE PERFORMANCE OF ANY DUTY. THE MERE RECITATION OF THE FACTS SHOWS HE IS NOT PERFORMING NAVAL SERVICE. GENERALLY, CONVICTION OF AN OFFENSE INFLICTS UPON THE CULPRIT CONSEQUENTIAL RESULTS IN ADDITION TO THE PENALTY CARRIED BY THE SENTENCE; IF IN ABSENCE WITHOUT LEAVE THERE IS NO SERVICE, THE PUNISHMENT IMPOSED FOR THE OFFENSE DOES NOT CONSTITUTE THE PERIOD SO ABSENT WITHOUT LEAVE SERVICE. IF THE ARGUMENT AS TO ABSENCE WITHOUT LEAVE FOR PERIODS LESS THAN THREE MONTHS IS OF ANY WEIGHT, IT IS RELATIVELY POTENT WITH RESPECT TO ABSENCE WITHOUT LEAVE IN EXCESS OF THREE MONTHS AND WITH RESPECT TO DESERTION. WHILE THE QUOTED PARAGRAPH DOES NOT DISTINGUISH BETWEEN ABSENCE WITHOUT LEAVE OR DESERTION OF LESS THAN THREE MONTHS AND MORE THAN THREE MONTHS, THE PRACTICE OF THE NAVY DEPARTMENT, AS HAS BEEN INDICATED, IS TO TREAT ABSENCE FOR THE LONGER PERIOD AS NOT NAVAL SERVICE TO BE COUNTED FOR THE PURPOSE OF TRANSFER. A DESERTER, AND EQUALLY A MAN ABSENT WITHOUT LEAVE, IS IN THE SERVICE UNTIL THE EXPIRATION OF HIS ENLISTMENT, WHETHER THE PERIOD OF ABSENCE IS GREATER OR LESS THAN THREE MONTHS. THE APPROPRIATENESS OF THE SUGGESTION IS NOT THEREFORE APPARENT. POSSIBLY IT HAS ITS ORIGIN IN THE REGULATIONS AND PRACTICE UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331, WHICH PROVIDES:

THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, WITH THE APPROVAL OF THE PRESIDENT, ANY ENLISTED MAN MAY BE DISCHARGED AT ANY TIME WITHIN THREE MONTHS BEFORE THE EXPIRATION OF HIS TERM OF ENLISTMENT OR EXTENDED ENLISTMENT WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT THAT HE WOULD HAVE RECEIVED, EXCEPT PAY AND ALLOWANCES FOR THE UNEXPIRED PERIOD NOT SERVED, OR TO WHICH HE WOULD THEREAFTER BECOME ENTITLED, HAD HE SERVED HIS FULL TERM OF ENLISTMENT OR EXTENDED ENLISTMENT: PROVIDED, THAT NOTHING IN THIS ACT SHALL BE HELD TO REDUCE OR INCREASE THE PAY AND ALLOWANCES OF ENLISTED MEN OF THE NAVY NOW AUTHORIZED PURSUANT TO LAW.

MEN DISCHARGED UNDER THE REGULATIONS MADE PURSUANT TO THIS STATUTE ARE, OF COURSE, ENTITLED TO CREDIT FOR A FULL ENLISTMENT OF FOUR YEARS FOR THE PURPOSE OF TRANSFER IF IN THE ENLISTMENT OR ENLISTMENTS TOTALING FOUR YEARS THERE WAS ACTUAL SERVICE OF THREE YEARS, NINE MONTHS. THIS STATUTE SETS UP NO GENERAL RULE THAT ALL SERVICE OF THREE YEARS AND NINE MONTHS SHALL COUNT AS FOUR YEARS' SERVICE. A DISCHARGE MUST COME WITHIN THE REGULATIONS MADE PURSUANT TO THE LAW, OTHERWISE THE LAW HAS NO APPLICATION.

THIS OFFICE HAS DETERMINED THAT ABSENCE WITHOUT LEAVE, ABSENCE WHILE IN ARREST BY CIVIL AUTHORITIES, IF CONVICTED, AND ABSENCE AWAITING TRIAL AND WHILE SERVING SENTENCE ARE NOT ,MISCONDUCT" WITHIN THE MEANING OF THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AND REQUIRED TO BE MADE GOOD BEFORE AN ENLISTMENT IS COMPLETED. THE DECISION GOES NO FURTHER, AND THE HOLDING DOES NOT REQUIRE AS A NECESSARY CONSEQUENCE THAT SUCH ABSENCE FROM DUTY BE TREATED AS SERVICE FOR ALL PURPOSES.

COMBINING THE THIRD AND FOURTH OF THE REASONS ADVANCED FOR MODIFICATION, THE SUGGESTION THAT A YEAR MAY BE WITHOUT STATUTORY AUTHORITY SOMETHING OTHER THAN 12 FULL CALENDAR MONTHS IS AT LEAST DOUBTFUL. TO CARRY THE SUGGESTION TO ITS UTMOST WITH A MINIMUM OF ACTUAL SERVICE OF THREE YEARS AND NINE MONTHS IN THE FOUR OR FIVE FOUR YEAR ENLISTMENTS, TRANSFERS WOULD BE ACCOMPLISHED IN 15 YEARS AND 18 YEARS 9 MONTHS, ALTHOUGH THE ELIGIBILITY FOR TRANSFER FIXED BY THE STATUTE IS 16 YEARS AND 20 YEARS. THE STATUTE HAS SPECIFICALLY PROVIDED, 39 STAT. 590:

* * * THAT FOR ALL PURPOSES OF THIS ACT A COMPLETE ENLISTMENT DURING MINORITY AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF ENLISTMENT BY SPECIAL ORDER OF THE SECRETARY OF THE NAVY SHALL BE CONSIDERED AS FOUR YEARS' SERVICE * * *.

THE PRECISE LANGUAGE ESTABLISHING ELIGIBILITY FOR TRANSFER REQUIRED THAT THE STATUTE SPECIFICALLY PROVIDE FOR EXCEPTIONS, AND IT HAS PROVIDED FOR TWO EXCEPTIONS, MINORITY ENLISTMENT AND ENLISTMENTS TERMINATED WITHIN THREE MONTHS OF EXPIRATION OF ENLISTMENT BY SPECIAL ORDER OF THE SECRETARY OF THE NAVY. DISCHARGES UNDER THE 1912 STATUTE ARE ALSO SPECIFICALLY PROVIDED.

SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, WITH RESPECT TO ENLISTED MEN IN THE SERVICE JULY 1, 1925, OR IN THE NAVAL RESERVE FORCE, WHO ENLIST IN THE NAVY AS THEREIN PROVIDED AND ARE THEREAFTER TRANSFERRED TO THE FLEET NAVAL RESERVE, PROVIDES:

* * * THAT FOR ALL PURPOSES OF THIS SECTION A COMPLETE ENLISTMENT DURING MINORITY SHALL BE COUNTED AS FOUR YEARS' SERVICE AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS THE FULL TERM OF SERVICE FOR WHICH ENLISTED.

UNDER A FAMILIAR RULE OF STATUTORY CONSTRUCTION THE SPECIFIC PROVISIONS FOR THESE EXCEPTIONS NEGATIVE THE EXISTENCE OF OTHERS; THAT IS, IN ALL OTHER CASES THAN THOSE SPECIFICALLY PROVIDED FOR THE PERIOD OF SERVICE FIXED BY THE STATUTE IS REQUIRED FOR TRANSFER; WERE IT OTHERWISE, THE SPECIFIC EXCEPTIONS PROVIDED WOULD BE USELESS. AN OPINION OF THE ATTORNEY GENERAL, 9 OP.ATTY.GEN. 437, MAY HERE BE APPROPRIATELY CITED THAT THE INTENT OF THE LAW IS NOT TO BE LEARNED BY ASCERTAINING THE THOUGHT THAT MAY HAVE BEEN IN THE MINDS OF THOSE WHO PASSED IT UNLESS THE SAME THOUGHT IS EXPRESSED IN THE LAW ITSELF. WERE THERE A DOUBT AS TO THE MEANING OF THE PHRASEOLOGY REQUIRING 16 AND 20 YEARS OF NAVAL SERVICE FOR ELIGIBILITY FOR TRANSFER TO THE FLEET NAVAL RESERVE, THE CONTEMPORANEOUS PRACTICAL CONSTRUCTION OF THE DEPARTMENT WOULD BE ENTITLED TO WEIGHT, BUT WHEN THE MEANING OF A STATUTE IS CLEAR IT CAN NOT BE AFFECTED BY DEPARTMENTAL PRACTICE. 20 OP.ATTY.GEN. 592, AND SEE ALSO 21 OP.ATTY.GEN. 410. IT WAS NOT UNTIL THE SERVICE OF ENLISTED MEN FOR LONGEVITY INCREASE AND ENLISTMENT ALLOWANCE UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, WAS REPORTED THAT THE PRACTICE OF THE DEPARTMENT IN THIS RESPECT WAS KNOWN.

THE SUPREME COURT HAS SAID WITH RESPECT TO THE CONTRACT OF ENLISTMENT AND ABSENCE WITHOUT LEAVE, IN UNITED STATES V. LANDERS, 92 U.S. 77, 79:

* * * THE CONTRACT IS AN ENTIRETY; AND, IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED * * *.

IF SERVICE IS "CRIMINALLY OMITTED," IT IS OMITTED; IT IS NOT SERVICE. IS NOT SERVICE FOR PAY AND ALLOWANCES AND, EQUALLY SO, IS NOT SERVICE FOR ATTENDANT BENEFITS. OBVIOUSLY, IF A MAN CRIMINALLY OMITS SERVICE AND IS NOT SERVING FOR PAY AND ALLOWANCES, HE IS NOT SERVING FOR LONGEVITY INCREASE, FOR ENLISTMENT ALLOWANCE PURPOSES, NOR FOR ELIGIBILITY FOR TRANSFER TO THE FLEET NAVAL RESERVE. WHAT IS TRUE OF ABSENCE WITHOUT LEAVE IS EQUALLY TRUE WHERE A MAN IS HELD IN ARREST BY CIVIL AUTHORITIES AND CONVICTED. HE IS NOT ENTITLED TO PAY FOR SUCH ABSENCE; HE RENDERS NO SERVICE TO THE UNITED STATES. SO, ALSO, WHERE A MAN IS WITHDRAWN FROM THE PERFORMANCE OF HIS NAVAL DUTIES TO SERVE A SENTENCE OF IMPRISONMENT IMPOSED BY A COURT-MARTIAL, HE IS NOT SERVING WHILE AWAITING TRIAL AND SERVING SENTENCE. IT SHOULD BE UNDERSTOOD, HOWEVER, THAT ABSENCE WHILE AWAITING TRIAL AND SERVING SENTENCE OF COURT-MARTIAL HAS NO APPLICATION TO SENTENCES OF CONFINEMENT ON SHIP OR AT STATION FOR MINOR INFRACTIONS; AND APPLICATION OF THIS QUALIFICATION, THE DEPARTMENT'S PRACTICE OF NOT EXCLUDING TIME WHILE CONFINED BY NAVAL AUTHORITIES WHEN SUCH CONFINEMENT DOES NOT EXCEED THREE MONTHS' TIME IN AN ENLISTMENT OR ENLISTMENTS TOTALING FOUR YEARS, IS APPARENTLY PROPER AND THE MOST PRACTICAL.

WITH RESPECT TO THE EXTREME CASE SUGGESTED, OF A MAN WHO IN FOUR 4 YEAR ENLISTMENTS WAS ABSENT WITHOUT LEAVE ONE DAY AND WHO UNDER THE CONSTRUCTION OF THE ACT MADE BY THIS OFFICE WOULD BE REQUIRED TO REENLIST, HIS CASE IS NO DIFFERENT THAN THAT OF A MAN WHO BY SUCCESSIVE ENLISTMENTS, EXTENSIONS, AND RETENTIONS UNDER SECTION 1422, REVISED STATUTES, HAD ACCUMULATED A SERVICE OF, SAY, 15 YEARS 11 MONTHS. THERE IS NO QUESTION HE WOULD NOT BE ELIGIBLE. HOWEVER INSIGNIFICANT THE DEFICIENCY IN SERVICE, AND FROM WHATEVER CAUSE IT MAY HAVE OCCURRED, THE ELIGIBILITY FOR TRANSFER WITH "TWENTY OR MORE YEARS' NAVAL SERVICE" OR "AFTER SIXTEEN YEARS' NAVAL SERVICE" DOES NOT EXIST, AND WHERE SUCH ELIGIBILITY DOES NOT EXIST NO LEGAL STATUS ENTITLING TO PAY CAN BE CREATED BY AN ATTEMPT TO TRANSFER THE MAN TO THE FLEET NAVAL RESERVE.

AS HAS BEEN STATED, THIS OFFICE HAS NOT QUESTIONED IN THIS RESPECT THE NAVY DEPARTMENT'S PROCEDURE AS TO TRANSFERS MADE PRIOR TO NOVEMBER 1, 1924, AND THE RULES FORMULATED IN DECISION OF OCTOBER 14, 1924 (AS HEREIN EXPLAINED), ARE APPLICABLE ONLY TO TRANSFERS MADE ON AND AFTER NOVEMBER 1, 1924.

IT MAY BE THAT APPROPRIATE REGULATIONS UNDER THE 1912 STATUTE FOR DISCHARGE WITHIN THREE MONTHS OF EXPIRATION OF ENLISTMENT COULD BE DRAWN TO RELIEVE FUTURE CASES OF HARDSHIP OR INCONVENIENCE IN CONNECTION WITH TRANSFERS TO THE FLEET NAVAL RESERVE, BUT THE EXISTING REGULATIONS WILL NOT PERMIT A CONSTRUCTION SUCH AS IS ASKED.