A-2274, JULY 19, 1924, 4 COMP. GEN. 94

A-2274: Jul 19, 1924

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WITHIN A PERIOD OF THREE MONTHS FROM HIS DISCHARGE IS ENTITLED ONLY TO THE REENLISTMENT GRATUITY BASED ON THREE YEARS' SERVICE. THEY WOULD OTHERWISE HAVE IF SERVING THE FULL TERM OF ENLISTMENT IS NOT APPLICABLE TO THE MARINE CORPS. 1924: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CORRECTNESS OF SETTLEMENT 016665. IN WHICH WAS ALLOWED CHARLES FLEMING $25 ENLISTMENT ALLOWANCE IN ADDITION TO $75 ENLISTMENT ALLOWANCE THERETOFORE PAID TO HIM BY A DISBURSING OFFICER. WAS HONORABLY DISCHARGED OCTOBER 24. THE ENLISTMENT ALLOWANCE IS CLAIMED FOR THIS LAST REENLISTMENT UNDER SECTION 9 OF THE ACT OF JUNE 10. IT HAS BEEN HELD THAT PERIODS DURING WHICH AN ENLISTED MAN IS UNDER ARREST. HE IS NOT "SERVING" AND THE TIME SO LOST IS NOT TO BE INCLUDED IN THE COMPUTATION OF HIS SERVICE FOR THE PURPOSE OF THE ENLISTMENT ALLOWANCE. 2 COMP.

A-2274, JULY 19, 1924, 4 COMP. GEN. 94

GRATUITIES - REENLISTMENT ALLOWANCE - MARINE CORPS ENLISTED MEN AN ENLISTED MAN OF THE MARINE CORPS DISCHARGED FOUR YEARS FROM THE DATE OF HIS ENLISTMENT WITHOUT MAKING UP FOUR DAYS WHILE UNDER CONFINEMENT AWAITING TRIAL BY SUMMARY COURT-MARTIAL DID NOT SERVE FOUR YEARS UNDER SUCH ENLISTMENT, AND UPON HIS REENLISTMENT ON OR AFTER JULY 1, 1922, AND WITHIN A PERIOD OF THREE MONTHS FROM HIS DISCHARGE IS ENTITLED ONLY TO THE REENLISTMENT GRATUITY BASED ON THREE YEARS' SERVICE. THE ACT OF AUGUST 22, 1912, 37 STAT. 331, AUTHORIZING THE DISCHARGE OF ENLISTED MEN OF THE NAVY WITHIN THREE MONTHS BEFORE THE EXPIRATION OF THEIR ENLISTMENT WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT, ETC., THEY WOULD OTHERWISE HAVE IF SERVING THE FULL TERM OF ENLISTMENT IS NOT APPLICABLE TO THE MARINE CORPS.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 19, 1924:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CORRECTNESS OF SETTLEMENT 016665, MARCH 11, 1924, IN WHICH WAS ALLOWED CHARLES FLEMING $25 ENLISTMENT ALLOWANCE IN ADDITION TO $75 ENLISTMENT ALLOWANCE THERETOFORE PAID TO HIM BY A DISBURSING OFFICER. HIS SERVICE HISTORY SHOWS HE REENLISTED IN THE MARINE CORPS OCTOBER 25, 1919, FOR A TERM OF FOUR YEARS, WAS HONORABLY DISCHARGED OCTOBER 24, 1923, UPON EXPIRATION OF THE TERM OF ENLISTMENT AS A CORPORAL AND THAT HE LOST FOUR DAYS, DECEMBER 13 TO 16, 1921, WHILE IN CONFINEMENT AWAITING TRIAL AND DISPOSITION OF HIS CASE BY A SUMMARY COURT-MARTIAL. REENLISTED NOVEMBER 5, 1923, AT PHILADELPHIA, PA., FOR A TERM OF FOUR YEARS. THE ENLISTMENT ALLOWANCE IS CLAIMED FOR THIS LAST REENLISTMENT UNDER SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, WHICH SO FAR AS HERE MATERIAL PROVIDES:

* * * ON AND AFTER JULY 1, 1922, 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 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.

IT HAS BEEN HELD THAT PERIODS DURING WHICH AN ENLISTED MAN IS UNDER ARREST, AWAITING TRIAL, SENTENCE, OR SERVING SENTENCE, HE IS NOT "SERVING" AND THE TIME SO LOST IS NOT TO BE INCLUDED IN THE COMPUTATION OF HIS SERVICE FOR THE PURPOSE OF THE ENLISTMENT ALLOWANCE. 2 COMP. GEN. 633. THE PRESENT CLAIM IS FILED UNDER DECISION OF NOVEMBER 23, 1923, 3 COMP. GEN. 330, THE CASE OF AN ENLISTED MAN OF THE NAVY WHOSE ENLISTMENT WAS, UNDER DECISIONS OF THIS OFFICE, AUTOMATICALLY EXTENDED BY ABSENCE WITHOUT LEAVE BUT WHO WAS DISCHARGED ON THE DATE HIS ENLISTMENT WAS ORIGINALLY DUE TO EXPIRE. IT WAS THERE HELD THAT THE TIME ABSENT, BUT LESS THAN THREE MONTHS, DURING WHICH HE WAS NOT HELD TO SERVICE SHOULD BE TREATED AS THE EQUIVALENT OF A DISCHARGE WITHIN THREE MONTHS BEFORE THE EXPIRATION OF ENLISTMENT UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331. THAT STATUTE 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.

THE PROVISION APPEARS IN THE APPROPRIATION FOR THE NAVY UNDER "PAY, MISCELLANEOUS.' IT IS IN TERMS APPLICABLE TO ENLISTED MEN OF THE NAVY AND NOT TO ENLISTED MEN OF THE NAVAL SERVICE. THE STATUTE AUTHORIZES REGULATIONS BY THE SECRETARY OF THE NAVY, WITH THE APPROVAL OF THE PRESIDENT, AND ANY RIGHTS ENLISTED MEN MAY HAVE ARE UNDER REGULATIONS MADE IN PURSUANCE OF THE LAW. ARTICLE 1686, NAVY REGULATIONS, PROVIDES FOR A DISCHARGE OF ENLISTED MEN WITHIN THREE MONTHS OF THE EXPIRATION OF ENLISTMENT IN ACCORDANCE WITH THE STATUTE AND CONTAINS THE FOLLOWING SENTENCE:

THE CONSTRUCTION TO BE PLACED ON THIS PROVISION IS THAT IT WILL WORK FOR THE BENEFIT OF THE GOVERNMENT AND NOT AS A CONVENIENCE TO THE ENLISTED MAN, AND THEN ONLY IN CASES WHERE REASONS FOR SUCH REQUEST ARE FULLY SET FORTH AND THE SERVICES OF THE MAN CAN BE SPARED.

ARTICLE 582 OF THE REGULATIONS APPLICABLE TO THE DISCHARGE OF ENLISTED MEN OF THE MARINE CORPS CONTAINS NO PROVISION FOR THE DISCHARGE OF ENLISTED MEN OF THAT CORPS WITHIN THREE MONTHS BEFORE EXPIRATION OF ENLISTMENT PURSUANT TO THE ACT OF AUGUST 22, 1912.

SUCH WAS ALSO TRUE IN THE NAVY REGULATIONS OF 1913 (SEE ART. 3601 AS AMENDED BY CNR-9), WHERE PROVISION IS MADE FOR DISCHARGE WITHIN THREE MONTHS OF EXPIRATION OF ENLISTMENT FOR MEN OF THE NAVY; AND SEE ARTICLE 4154 AS AMENDED BY CNR-5, RESPECTING DISCHARGE OF ENLISTED MEN OF THE MARINE CORPS, WHERE THE VARIOUS CONDITIONS UNDER WHICH A MAN MAY BE DISCHARGED BEFORE EXPIRATION OF ENLISTMENT ARE SET OUT IN DETAIL, AND NO PROVISION IS MADE FOR DISCHARGE WITHIN THREE MONTHS OF EXPIRATION OF ENLISTMENT.

THE UNIFORM AND LONG-CONTINUED PROCEDURE AS TO THE ACT OF AUGUST 22, 1912, BY THE DEPARTMENT CHARGED WITH ITS EXECUTION SUPPORTS THE CONSTRUCTION THAT THE LAW IN ITSELF DOES NOT PROVIDE FOR THE DISCHARGE OF ENLISTED MEN OF THE MARINE CORPS. THE RIGHT OF THE NAVY DEPARTMENT TO DISCHARGE ENLISTED MEN BEFORE THE EXPIRATION OF ENLISTMENT IS NOT QUESTIONED, BUT BEFORE AN ENLISTED MEN IS ENTITLED TO THE BENEFIT OF THE ACT OF AUGUST 22, 1912, HIS CASE MUST BE WITHIN THAT LAW.

THE ACT OF JUNE 4, 1920, 41 STAT. 836, PROVIDES:

SEC. 7. THAT HEREAFTER ENLISTMENTS IN THE NAVY AND IN THE MARINE CORPS MAY BE FOR TERMS OF TWO, THREE, OR FOUR YEARS, AND ALL LAWS NOW APPLICABLE TO FOUR-YEAR ENLISTMENTS SHALL APPLY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, TO ENLISTMENTS FOR A SHORTER PERIOD WITH PROPORTIONATE BENEFITS UPON DISCHARGE AND REENLISTMENT: PROVIDED, THAT HEREAFTER THE SECRETARY OF THE NAVY IS AUTHORIZED, IN HIS DISCRETION, TO ESTABLISH SUCH GRADES AND RATINGS AS MAY BE NECESSARY FOR THE PROPER ADMINISTRATION OF THE ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS.

WHILE THIS PROVISION HAS BEEN CONSTRUED IN CONNECTION WITH OTHER PROVISIONS OF LAW TO EXTEND TO ENLISTED MEN OF THE MARINE CORPS THE REENLISTMENT ALLOWANCE FOR HONORABLE DISCHARGE GRATUITY THERETOFORE PROVIDED FOR ENLISTED MEN OF THE NAVY, 27 COMP. DEC. 31, 37; 1 COMP. GEN. 489, 2 ID. 258, IT HAS NO APPLICATION TO THE PRESENT CASE. IT REQUIRES THAT ALL LAWS APPLICABLE TO FOUR-YEAR ENLISTMENTS IN THE MARINE CORPS SHALL BE APPLICABLE TO THE TWO AND THREE YEAR ENLISTMENTS THEREIN AUTHORIZED, BUT IT INDICATES NO PURPOSE THAT THE LAW APPLICABLE, RESPECTIVELY, TO ENLISTMENTS IN THE MARINE CORPS AND ENLISTMENTS IN THE NAVY SHALL HAVE AN INTERCHANGEABLE APPLICATION.

THE ACT OF AUGUST 22, 1912, NOT BEING APPLICABLE TO ENLISTED MEN OF THE MARINE CORPS IT FOLLOWS THAT ALLOWANCE OF THE CLAIM WAS IMPROPER, THE SETTLEMENT IS ACCORDINGLY REVERSED AND $25 IS CERTIFIED DUE THE UNITED STATES WHICH THE COMMANDANT OF THE MARINE CORPS WILL BE REQUESTED TO HAVE CHECKED ON THE PAY ROLL.