A-17039, FEBRUARY 4, 1927, 6 COMP. GEN. 500

A-17039: Feb 4, 1927

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ENLISTMENTS - NAVY - EFFECTIVE DATE AN APPLICANT FOR REENLISTMENT IN THE NAVY IN CONTINUOUS SERVICE WHO WAS FOUND PHYSICALLY DISQUALIFIED FOR ENLISTMENT. 1927: THERE WAS RECEIVED DECEMBER 17. THE COMPTROLLER GENERAL'S ATTENTION IS INVITED TO REFERENCE (B). WILL BE TAKEN ON REFERENCE (A). 1ST ENDORSEMENT. I WAS HONORABLY DISCHARGED ON 23 MARCH. WAS INFORMED THAT IT WOULD BE NECESSARY FOR ME TO OBTAIN WAIVER ON MY TEETH BEFORE I COULD BE REENLISTED. THE APPLICATION FOR THE WAIVER WAS MADE OUT AT THE RECRUITING STATION. I WAS TOLD THAT I WOULD BE INFORMED BY LETTER UPON RETURN OF THE WAIVER. I WAS REEXAMINED. ANOTHER REQUEST FOR A WAIVER WAS FORWARDED TO THE BUREAU. WAS REENLISTED ON THAT DATE.

A-17039, FEBRUARY 4, 1927, 6 COMP. GEN. 500

ENLISTMENTS - NAVY - EFFECTIVE DATE AN APPLICANT FOR REENLISTMENT IN THE NAVY IN CONTINUOUS SERVICE WHO WAS FOUND PHYSICALLY DISQUALIFIED FOR ENLISTMENT, THE DISQUALIFICATION THEREAFTER HAVING BEEN WAIVED BY THE NAVY DEPARTMENT, MAY NOT BE REGARDED FOR THE PURPOSES OF PAY, ENLISTMENT ALLOWANCE, ETC., AS HAVING REENLISTED PRIOR TO THE DATE HE FINALLY EXECUTED THE FORMAL CONTRACT OF ENLISTMENT AND TOOK THE OATH OF ALLEGIANCE.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 4, 1927:

THERE WAS RECEIVED DECEMBER 17, 1926, AN APPLICATION FROM THE COMMANDING OFFICER OF THE NAVAL AIR STATION, SAN DIEGO, CALIF., TOGETHER WITH AN INDORSEMENT OF THE CHIEF OF THE BUREAU OF NAVIGATION, AS FOLLOWS:

TO: COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON, D.C.

VIA: CHIEF OF THE BUREAU OF NAVIGATION. SUBJECT: BENNETT, ELZA 184-86- 86, SEA-10, U.S.N. CONTINUOUS SERVICE OF, REFERENCES: CLAIM NO. 0152,660 M -310, DATED 8 NOV. 1926.

(A) IN CASE OF SUBJECT NAMED MAN;

(B) BUNAV LTR. NAV-642-DMS OF 3 JULY, 1926. ENCLOSURES (HEREWITH):

(A) COPY OF REFERENCE (A);

(B) COPY OF REFERENCE (B).

1. THE COMPTROLLER GENERAL'S ATTENTION IS INVITED TO REFERENCE (B), WITH THE REQUEST THAT THIS STATION BE INFORMED AS TO WHAT RECONSIDERATION,IF ANY, WILL BE TAKEN ON REFERENCE (A). 1ST ENDORSEMENT. FROM: THE CHIEF OF THE BUREAU OF NAVIGATION. TO: THE COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE. SUBJECT: BENNETT, ELZA NO. 184-86-86, AVIATION MACHINIST MATE 3 CLASS, U.S.N.

REQUEST FOR RECONSIDERATION OF CLAIM.

1. FORWARDED, REQUESTING THAT BENNETT'S CLAIM FOR PAY AS SEAMAN 1 CLASS FROM 19 JUNE TO 6 JULY, 1925, AND FOR PAYMENT OF THE ENLISTMENT ALLOWANCE AUTHORIZED BY THE ACT OF 10 JUNE, 1922, ON REENLISTMENT, 7 JULY, 1925, BE GIVEN FURTHER CONSIDERATION.

IN A LETTER TO THE CHIEF OF THE BUREAU OF NAVIGATION DATED APRIL 19, 1926, BENNETT MADE INQUIRY WITH RESPECT TO HIS RIGHT TO REENLISTMENT ALLOWANCE AND HIS RIGHT TO TRANSFER TO THE FLEET NAVAL RESERVE UNDER LAWS IN EFFECT PRIOR TO JULY 1, 1925, STATING THE CIRCUMSTANCES OF HIS DISCHARGE AND REENLISTMENT AS FOLLOWS:

1. I WAS HONORABLY DISCHARGED ON 23 MARCH, 1925, FROM THE U.S.S. REINA MERCEDES, BY REASON OF EXPIRATION OF ENLISTMENT. ON ABOUT 30 MARCH, 1925, I APPLIED FOR REENLISTMENT AT THE NAVY RECRUITING STATION, CINCINNATI, OHIO, AND WAS INFORMED THAT IT WOULD BE NECESSARY FOR ME TO OBTAIN WAIVER ON MY TEETH BEFORE I COULD BE REENLISTED. THE APPLICATION FOR THE WAIVER WAS MADE OUT AT THE RECRUITING STATION, AND, AS FAR AS I KNOW, FORWARDED TO THE BUREAU ON THAT DATE. I WAS TOLD THAT I WOULD BE INFORMED BY LETTER UPON RETURN OF THE WAIVER. I RECEIVED NO INFORMATION REGARDING THE WAIVER AND ON 1 JUNE, 1925, I AGAIN INQUIRED AT THE RECRUITING STATION WITH REFERENCE TO SAME. I WAS REEXAMINED, AND ANOTHER REQUEST FOR A WAIVER WAS FORWARDED TO THE BUREAU. ON 6 JULY I RECEIVED A LETTER INFORMING ME THAT THE WAIVER HAD BEEN RECEIVED, AND I WENT TO THE RECRUITING STATION ON 7 JULY, 1925, AND WAS REENLISTED ON THAT DATE.

THE BUREAU OF NAVIGATION HAD PREVIOUSLY, ON JULY 16, 1925, AUTHORIZED THAT BENNETT BE CONSIDERED AS HAVING REENLISTED UNDER CONTINUOUS SERVICE, AND UPON RECEIPT OF THIS AUTHORIZATION AT THE RECEIVING SHIP, SAN FRANCISCO, CALIF., WHERE HIS PAY ACCOUNT HAS BEEN TAKEN UP BY PAYMASTER S. P. VAUGHN AS OF JULY 7, 1925, THERE WAS ENTERED IN THE ACCOUNT A CREDIT OF $100 ENLISTMENT ALLOWANCE, WHICH IMPROPER CREDIT, HOWEVER, WAS ADJUSTED BY THE PAYMASTER ON HIS ROLL FOR THE SUBSEQUENT QUARTER, PURSUANT TO A NOTATION CONTAINED IN THE ADMINISTRATIVE ANALYSIS OF HIS DISBURSING ACCOUNT FOR THE FIRST QUARTER, 1926, AS FOLLOWS:

CN-6681 ELZA BENNETT. CREDITED $100 ENLISTMENT ALLOWANCE. S. AND A. FORM 35I SHOWS DATE OF DISCHARGE FROM ORIGINAL ENLISTMENT AS 3/23/25. REENLISTED 7/7/25. NOT ENTITLED TO ENLISTMENT ALLOWANCE AS REENLISTMENT IS NOT WITHIN 3 MOS. FROM THE DATE OF DISCHARGE. (SEE PAGE B13, PAR. 5, P.B.I. REVISED 9/1/25) U.S. $100.00

BY LETTER DATED JUNE 5, 1926, THE BUREAU OF NAVIGATION REPORTED TO THIS OFFICE RELATIVE TO BENNETT'S DISCHARGE AND REENLISTMENT AS FOLLOWS:

1. THE RECORDS OF THE BUREAU SHOW THAT THE ABOVE-NAMED MAN WAS DISCHARGED FROM THE UNITED STATES NAVAL SERVICE ON 23 MARCH, 1925. ON 29 MAY, 1925, HE ADDRESSED A COMMUNICATION TO THE BUREAU RELATIVE TO HIS DESIRE TO REENLIST, STATING THAT HE APPLIED FOR REENLISTMENT AND WAS REJECTED BY THE RECRUITING OFFICE. UNDER DATE OF 15 JUNE, 1925, THE BUREAU INFORMED BENNETT THAT HE SHOULD APPLY AT A RECRUITING STATION FOR REENLISTMENT AND IF FOUND NOT PHYSICALLY QUALIFIED THAT A REJECTION REPORT BE SUBMITTED. BENNETT ACCORDINGLY APPLIED FOR REENLISTMENT AT THE RECRUITING STATION, CINCINNATI, OHIO, ON 19 JUNE, 1925, BUT WAS NOT REENLISTED DUE TO PHYSICAL DISABILITY, AND A WAIVER WAS SUBMITTED TO THE BUREAU. THE WAIVER WAS APPROVED AND RETURNED TO THE RECRUITING STATION AT CINCINNATI, OHIO, WITH THE RESULT THAT HE WAS REENLISTED AND HIS ENLISTMENT CONTRACT WAS SIGNED AND SWORN TO AS OF 7 JULY, 1925.

UNDER DATE OF JULY 3, 1926 (REFERENCE (B) IN APPLICATION FOR REVIEW), THE BUREAU ADVISED THE COMMANDING OFFICER OF THE NAVAL AIR STATION, SAN DIEGO, THAT THE RECORDS OF THE DEPARTMENT HAD BEEN CHANGED TO SHOW THE DATE OF REENLISTMENT OF BENNETT TO BE JUNE 19, 1925, INSTEAD OF JULY 7, 1925, IN ACCORDANCE WITH THE STATEMENT OF THE FORMER OFFICER IN CHARGE OF THE RECRUITING STATION AT CINCINNATI, OHIO, THAT BENNETT HELD HIMSELF IN READINESS TO PERFORM THE DUTIES OF AN ENLISTED MAN FROM JUNE 19, 1925. THIS ACTION IS SAID TO HAVE BEEN TAKEN UNDER AUTHORITY OF A MANUSCRIPT DECISION OF THE COMPTROLLER OF THE TREASURY DATED OCTOBER 7, 1905 (35 MS. COMP. DEC. 98), WHEREIN IT WAS HELD IN THE CASE OF CHIEF MACHINIST'S MATE KARL BRAUN, UNITED STATES NAVY, THAT AN ENLISTED MAN WHO IS FOUND PHYSICALLY DISQUALIFIED FOR REENLISTMENT, THE DISQUALIFICATION THEREFOR HAVING BEEN WAIVED BY THE DEPARTMENT, IS ENTITLED TO PAY FROM THE DATE OF EXAMINATION, PROVIDED HE PERFORMS SERVICES OR HOLDS HIMSELF IN READINESS TO PERFORM THE SERVICES OF AN ENLISTED MAN FROM SUCH DATE.

IN VIEW OF THE MANY PUBLISHED DECISIONS OF THE ACCOUNTING OFFICERS AND OF THE COURTS WHEREIN A CONTRARY PRINCIPLE HAS BEEN APPLIED IN RECENT YEARS THIS UNPUBLISHED, OBSOLETE, AND OVERRULED DECISION GIVES NO LEGAL SUPPORT FOR THE ACTION OF JULY 16, 1925.

THE BUREAU'S ACTION WAS MADE THE BASIS OF A CLAIM PRESENTED BY BENNETT, AUGUST 11, 1926, FOR THE PAY OF HIS RATING FROM JUNE 19, 1925, TO JULY 6, 1925, AND FOR $100 ENLISTMENT ALLOWANCE AUTHORIZED IN SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, TO BE PAID TO EVERY HONORABLY DISCHARGED ENLISTED MAN BELOW THE FIRST THREE GRADES WHO REENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF HIS DISCHARGE FROM A PERIOD OF FOUR YEARS' SERVICE.

THIS WAS THE CLAIM DISALLOWED IN SETTLEMENT 0152660 OF NOVEMBER 8, 1926; BENNETT, THE PERSON CONCERNED, HAS SUBMITTED NO APPLICATION TO THIS OFFICE FOR REVIEW OF THAT SETTLEMENT, AND THE SUBMISSION OF SUCH APPLICATION BY BENNETT'S COMMANDING OFFICER AND THE BUREAU OF NAVIGATION IS NOT ENTITLED TO CONSIDERATION UNDER GENERAL ACCOUNTING OFFICE REGULATIONS NO. 50 PROMULGATED APRIL 21, 1925. SEE IN THIS CONNECTION DECISION ADDRESSED TO THE PAYMASTER, UNITED STATES MARINE CORPS, OCTOBER 15, 1926, 62 MS. COMP. GEN. 518; THE LETTER ADDRESSED TO THE SECRETARY OF THE NAVY JANUARY 20, 1927, 65 ID. 605, RESPECTING THAT DECISION; AND SECTION 109 OF THE CRIMINAL CODE, 35 STAT. 1107.

IN THE "INSTRUCTIONS FOR RECRUITING OFFICERS OF UNITED STATES NAVY, 1926," UNDER THE SUBJECT ,ENLISTMENTS" THE TERMS "APPLICANT," "RECRUIT," AND "ENLISTED MAN" ARE DEFINED AS FOLLOWS:

48. AN "APPLICANT" IS ONE WHO IS APPARENTLY QUALIFIED BY REASON OF AGE, CITIZENSHIP, AND GENERAL PHYSICAL APPEARANCE, IS READY TO ENLIST, FILLS OUT THE APPLICATION BLANK, AND SUBMITS TO AN EXAMINATION * * *.

50. AN "APPLICANT" BECOMES AN "ACCEPTED APPLICANT" WHEN HE HAS BEEN PASSED BY THE MEDICAL OFFICER AND THE RECRUITING OFFICER.

51. AN ACCEPTED APPLICANT BECOMES A "RECRUIT" WHEN HE HAS BEEN SWORN IN.

52. A RECRUIT BECOMES AN "ENLISTED MAN" WHEN HE IS TAKEN UP ON THE BOOKS OF THE SUPPLY OFFICER AT THE TRAINING STATION OR RECEIVING SHIP AND IS OUTFITTED.

AND UNDER THE SUBJECT "WAIVERS" APPEARS THE FOLLOWING DIRECTION:

109. APPLICANTS FOR ENLISTMENT, WITH DEFECTIVE OR MISSING TEETH, WHO DO NOT MEET THE REQUIREMENTS FOR ENLISTMENT, SHOULD BE REJECTED OUTRIGHT, OR A WAIVER REQUESTED WHERE THE DEFECTS ARE MINOR AND CAN EASILY BE REMEDIED BY A NAVAL DENTAL OFFICER. IF THE APPLICANT DESIRES TO HAVE DENTAL WORK DONE IN ORDER TO FIT HIMSELF FOR ENLISTMENT, HE MUST HAVE IT DONE ENTIRELY UPON HIS OWN RESPONSIBILITY. * * *

IT IS ESTABLISHED IN THIS CASE THAT BENNETT WAS ON FIRST EXAMINATION REJECTED OUTRIGHT BECAUSE OF DEFECTIVE OR MISSING TEETH, IN ACCORDANCE WITH ABOVE INSTRUCTIONS, AND THAT HIS STATUS DURING THE INTERVAL BETWEEN THE DATE OF HIS SECOND EXAMINATION ON JUNE 19, 1925, AND JULY 7, 1925, WAS EITHER THAT OF AN "APPLICANT" OR A "REJECTED APPLICANT.'

IN A DECISION OF DECEMBER 18, 1912, 19 COMP. DEC. 367, THE COMPTROLLER OF THE TREASURY HAD FOR DECISION THE QUESTION OF WHETHER PVT. ALPHONSE WATERMOLEN, UNITED STATES MARINE CORPS, WAS ENTITLED TO PAY FOR THE PERIOD APRIL 22, 1909, DATE OF HIS APPLICATION AND EXAMINATION FOR ENLISTMENT, TO MAY 6, 1909, DATE ON WHICH HE EXECUTED THE FORMAL CONTRACT OF ENLISTMENT AND TOOK THE OATH OF ALLEGIANCE. AFTER A VERY CAREFUL REVIEW OF THE COURT DECISIONS AND OF EARLIER DECISIONS OF THE ACCOUNTING OFFICERS IT WAS HELD THE DATE FROM WHICH AN ENLISTED MAN IS ENTITLED TO PAY IS THE DATE OF THE FINAL ACT WHICH COMPLETES THE ENLISTMENT CONTRACT AND CHANGES HIS STATUS FROM THAT OF A CIVILIAN TO THAT OF A SOLDIER, AND THE SUPREME COURT OF THE UNITED STATES HAVING DETERMINED (IN RE GRIMLEY, 137 U.S. 147, 157),"THAT THE TAKING OF THE OATH OF ALLEGIANCE IS THE PIVOTAL FACT WHICH CHANGES THE STATUS FROM THAT OF CIVILIAN TO THAT OF SOLDIER," PRIVATE WATERMOLEN WAS NOT ENTITLED TO PAY FOR THE PERIOD PRIOR TO MAY 6, 1909, WHEN HE EXECUTED A FORMAL CONTRACT OF ENLISTMENT AND TOOK THE OATH OF ALLEGIANCE.

IN UNITED STATES V. UNION PACIFIC RAILROAD CO., 249 U.S. 354, AFFIRMING A DECISION BY THE COURT OF CLAIMS, 52 CT.CLS. 226, IN THE SAME CASE THIS DECISION OF THE COMPTROLLER OF THE TREASURY WAS CITED WITH APPROBATION AND FORMER DECISIONS OF THE ACCOUNTING OFFICERS AND OF THE COURTS, TO THE EFFECT THAT AN APPLICANT FOR ENLISTMENT WHO PRESENTS HIMSELF AT A RECRUITING STATION, TAKES THE PRELIMINARY STEPS FOR ENTERING THE MILITARY ESTABLISHMENT, AND IS ACCEPTED BY THE PROPER OFFICER BECOMES THEREBY AN ENLISTED MAN AND A PART OF THE MILITARY FORCES, WERE EXPRESSLY REJECTED.

MR. JUSTICE BRANDEIS, IN DELIVERING THE OPINION OF THE COURT, SAID:

* * * REJECTED APPLICANTS FOR ENLISTMENT ARE CLEARLY NOT "TROOPS OF THE UNITED STATES.' THEIR STATUS IS THAT OF CIVILIAN. THEY FORM NO PART OF THE MILITARY ESTABLISHMENT. THEY MAY GO WHERE THEY PLEASE AND DO WHAT THEY PLEASE, SUBJECT TO NO MORE INTERFERENCE BY THE MILITARY AUTHORITIES OF THE GOVERNMENT THAN IF THEY HAD NEVER BEEN, OR HAD NEVER SOUGHT TO BE, CONNECTED WITH THE ARMY * * *.

* * * APPLICANTS FOR ENLISTMENT WHO HAVE BEEN ACCEPTED PROVISIONALLY, BUT HAVE YET TO BE SUBJECTED TO THE FINAL EXAMINATION AT THE RECRUITING DEPOTS AND TO TAKE THE OATH BEFORE THEY BECOME A PART OF THE SOLDIERY OF THE NATION, ARE NOT "TROOPS OF THE UNITED STATES.' IT IS THE ACTUAL ENLISTMENT, THE OATH OF ALLEGIANCE, THAT CHANGES THE STATUS FROM A CIVILIAN TO SOLDIER. * * * SUCH APPLICANT IS THEN NOT EVEN A POTENTIAL SOLDIER * * *.

IN 5 CORPUS JURIS 298, THE FORMALITIES REQUISITE TO A VALID ENLISTMENT ARE DESCRIBED AS OLLOWS:

IN ORDER TO CONSTITUTE ONE A DULY ENLISTED MAN HE MUST SIGN THE PRESCRIBED APPLICATION AND THEN BE ACCEPTED AND SWORN INTO THE SERVICE, WHICH MAY PROPERLY BE DONE BY ANY COMMISSIONED OFFICER. IT IS HELD THAT THE TAKING OF THE OATH OF ALLEGIANCE IS THE PIVOTAL FACT WHICH CHANGES THE STATUS OF THE PARTY FROM THAT OF CIVILIAN TO THAT OF SOLDIER * * *.

IF THE VALUE OF COE V. UNITED STATES, 44 CT.CLS. 419, AS A PRECEDENT HAS NOT BEEN COMPLETELY DESTROYED BY THIS MORE RECENT RULING OF THE SUPREME COURT IN THE CASE OF UNITED STATES V. UNION PACIFIC RAILROAD CO., SUPRA, IT IS STILL NO AUTHORITY FOR THE ALLOWANCE OF BENNETT'S CLAIM, FOR IN THAT CASE THE APPLICANT FOR REENLISTMENT IN CONTINUOUS SERVICE SUCCESSFULLY PASSED THE PHYSICAL EXAMINATION AND WAS ACCEPTED FOR REENLISTMENT BY THE PROPER OFFICIALS WITHIN THE PERIOD PRESCRIBED FOR CONTINUOUS SERVICE, WHEREAS, IN THE CASE OF BENNETT, HE TWICE FAILED TO MEET THE PHYSICAL REQUIREMENTS AND WAS ONLY FINALLY ACCEPTED FOR REENLISTMENT ON JULY 7, 1925, AFTER EXPIRATION OF THE PRESCRIBED PERIOD, BY REASON OF THE WAIVER OF HIS DEFECTS BY THE NAVY DEPARTMENT.

THE CLAIM SETTLEMENT WAS CORRECT AND, SHOULD PROPER APPLICATION FOR ITS REVIEW BE PRESENTED, MUST BE SUSTAINED.