A-29607, APRIL 7, 1930, 9 COMP. GEN. 436

A-29607: Apr 7, 1930

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NAVY PAY - MISREPRESENTATION OF AGE - DISCHARGE AT REQUEST OF PARENT OR GUARDIAN WHEN THE DISCHARGE OF AN ENLISTED MAN OF THE NAVY WHO MISSTATED HIS AGE AT ENLISTMENT IS REQUESTED BY HIS PARENT OR GUARDIAN. " THE MAN IS NOT ENTITLED TO ANY PAY OR ALLOWANCES UNDER HIS CONTACT OF ENLISTMENT UNPAID AT THE TIME WHEN THE TRUE FACTS ARE ESTABLISHED. THE QUESTION OF "WHETHER ENLISTED MEN DISCHARGED FOR FRAUDULENT UNDER AGE ENLISTMENT ARE ENTITLED TO PAY BETWEEN THE DATE OF DISCOVERY OF THE FRAUD AND THE DATE OF DISCHARGE.'. THE STATUTES PARTICULARLY FOR CONSIDERATION IN THIS CONNECTION ARE AS FOLLOWS: NO MINOR UNDER THE AGE OF FOURTEEN YEARS SHALL BE ENLISTED IN THE NAVAL SERVICE. EXCEPT IN CASES WHERE SUCH CERTIFICATE IS UNOBTAINABLE.

A-29607, APRIL 7, 1930, 9 COMP. GEN. 436

NAVY PAY - MISREPRESENTATION OF AGE - DISCHARGE AT REQUEST OF PARENT OR GUARDIAN WHEN THE DISCHARGE OF AN ENLISTED MAN OF THE NAVY WHO MISSTATED HIS AGE AT ENLISTMENT IS REQUESTED BY HIS PARENT OR GUARDIAN, INASMUCH AS THE ACT OF MARCH 3, 1915, 38 STAT. 931, MAKES IT COMPULSORY UPON THE SECRETARY OF THE NAVY TO AVOID THE ENLISTMENT CONTRACT ON THE GROUND OF THE MISSTATEMENTS AND TO RELEASE HIM "UPON PAYMENT OF FULL COST OF FIRST OUTFIT," THE MAN IS NOT ENTITLED TO ANY PAY OR ALLOWANCES UNDER HIS CONTACT OF ENLISTMENT UNPAID AT THE TIME WHEN THE TRUE FACTS ARE ESTABLISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 7, 1930:

THE SECRETARY OF THE NAVY HAS SUBMITTED FOR DECISION, AS AFFECTING ACCOUNTS PENDING FOR PAYMENT BEFORE DISBURSING OFFICERS OF THE NAVY, THE QUESTION OF "WHETHER ENLISTED MEN DISCHARGED FOR FRAUDULENT UNDER AGE ENLISTMENT ARE ENTITLED TO PAY BETWEEN THE DATE OF DISCOVERY OF THE FRAUD AND THE DATE OF DISCHARGE.'

THE STATUTES PARTICULARLY FOR CONSIDERATION IN THIS CONNECTION ARE AS FOLLOWS:

NO MINOR UNDER THE AGE OF FOURTEEN YEARS SHALL BE ENLISTED IN THE NAVAL SERVICE; AND MINORS BETWEEN THE AGE OF FOURTEEN AND EIGHTEEN YEARS SHALL NOT BE ENLISTED FOR THE NAVAL SERVICE WITHOUT THE CONSENT OF THEIR PARENTS OR GUARDIANS. REVISED STATUTES, SECTIONS 1419, 1420, 1624 (ART.19), AS AMENDED BY ACTS MAY 12, 1879, 21 STAT. 3; SECTION 2, FEBRUARY 23, 1881, 21 STAT. 338; AND SECTION 2, ACT AUGUST 22, 1912, 37 STAT. 356, AND SET OUT IN SECTION 161, TITLE 34, U.S.C.

NO PART OF ANY APPROPRIATION FOR THE NAVAL SERVICE SHALL BE EXPENDED IN RECRUITING SEAMEN OR APPRENTICE SEAMEN UNLESS, IN CASE OF MINORS, A CERTIFICATE OF BIRTH OR A VERIFIED STATEMENT BY THE PARENTS, OR EITHER OF THEM, OR IN CASE OF THEIR DEATH A VERIFIED WRITTEN STATEMENT BY THE LEGAL GUARDIAN, BE FIRST FURNISHED TO THE RECRUITING OFFICER, SHOWING APPLICANT TO BE OF AGE REQUIRED BY NAVAL REGULATIONS, WHICH SHALL BE PRESENTED WITH THE APPLICATION FOR ENLISTMENT; EXCEPT IN CASES WHERE SUCH CERTIFICATE IS UNOBTAINABLE, ENLISTMENT MAY BE MADE WHEN THE RECRUITING OFFICER IS CONVINCED THAT OATH OF APPLICANT AS TO AGE IS CREDIBLE. ACT MARCH 3, 1915, 38 STAT. 931; ACT AUGUST 29, 1916, 39 STAT. 575; AS SET OUT IN SECTION 162, TITLE 34, U.S.C. BOYS BETWEEN THE AGES OF FOURTEEN AND EIGHTEEN YEARS MAY, UNDER SUCH LIMITATIONS * * * BE ENLISTED TO SERVE IN THE NAVY UNTIL THEY SHALL ARRIVE AT THE AGE OF TWENTY-ONE YEARS. SECTION 1418, REVISED STATUTES, AS AMENDED AND SET OUT IN TITLE 34, SECTION 182, U.S.C.

ANY OFFICER WHO KNOWINGLY ENLISTS INTO THE NAVAL SERVICE * * * ANY MINOR BETWEEN THE AGES OF FOURTEEN AND EIGHTEEN YEARS, WITHOUT THE CONSENT OF HIS PARENTS OR GUARDIAN, OR ANY MINOR UNDER THE AGE OF FOURTEEN YEARS, SHALL BE PUNISHED AS A COURT-MARTIAL MAY DIRECT. ARTICLE 19 OF THE ARTICLES FOR THE GOVERNMENT OF THE U.S. NAVY, AS SET OUT UNDER SECTION 1200, TITLE 34, U.S.C.

FRAUDULENT ENLISTMENT, AND THE RECEIPT OF ANY PAY OR ALLOWANCES THEREUNDER, IS HEREBY DECLARED AN OFFENSE AGAINST NAVAL DISCIPLINE AND MADE PUNISHABLE BY GENERAL COURT-MARTIAL * * *. ARTICLE 22 (B) OF ARTICLES FOR THE GOVERNMENT OF THE U.S. NAVY, OR ACT MARCH 3, 1893, 27 STAT. 716, AS SET OUT IN SECTION 1200 OF TITLE 34, U.S.C.

* * * WHEN IT IS AFTERWARDS FOUND, UPON EVIDENCE SATISFACTORY TO THE NAVY DEPARTMENT, THAT RECRUIT HAS SWORN FALSELY AS TO AGE, HE SHALL, UPON REQUEST OF EITHER PARENT, OR, IN CASE OF THEIR DEATH, BY THE LEGAL GUARDIAN, BE RELEASED FROM SERVICE IN THE NAVY, UPON PAYMENT OF FULL COST OF FIRST OUTFIT, UNLESS, IN ANY GIVEN CASE, THE SECRETARY, IN HIS DISCRETION, SHALL RELIEVE SAID RECRUIT OF SUCH PAYMENT. ACT MARCH 3, 1915, 38 STAT. 931.

* * * ENLISTED MEN UNDER THE AGE OF EIGHTEEN DISCHARGED ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN SHALL BE FURNISHED WITH TRANSPORTATION IN KIND FROM THE PLACE OF DISCHARGE TO THE RAILROAD STATION AT OR NEAREST TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, OR TO THEIR HOME IF THE DISTANCE THERETO IS NO GREATER THAN FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, BUT IF THE DIFFERENCE BE GREATER THEY MAY BE FURNISHED TRANSPORTATION IN KIND FOR A DISTANCE EQUAL TO THAT FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT. SECTION 126, ACT JUNE 3, 1916, 39 STAT. 217; SECTION 3, ACT FEBRUARY 28, 1919, 40 STAT. 1203; AND ACT SEPTEMBER 22, 1922, 42 STAT. 1021, AS SET OUT IN SECTION 895, TITLE 34, U.S. CODE.

* * * A MEMBER OF THE NAVY OR MARINE CORPS WHO WAS ENLISTED BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, BOTH DATES INCLUSIVE, AND WHO WAS DISCHARGED FOR FRAUDULENT ENLISTMENT ON ACCOUNT OF MISREPRESENTATION OF HIS AGE SHALL THEREAFTER BE HELD AND CONSIDERED TO HAVE BEEN HONORABLY DISCHARGED FROM THE NAVY OR MARINE CORPS ON THE DATE OF HIS ACTUAL SEPARATION THEREFROM, IF HIS SERVICE OTHERWISE WAS SUCH AS WOULD HAVE ENTITLED HIM TO A DISCHARGE UNDER HONORABLE CONDITIONS. NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THIS SECTION. * * *. ACT JANUARY 19, 1929, 45 STAT. 1084.

THE COMPTROLLER OF THE TREASURY IN DECISION OF JUNE 9, 1913, CONSTRUED THE PROVISION IN THE NAVAL APPROPRIATION ACT OF JUNE 24, 1910, 36 STAT. 608, WHICH IS SIMILAR TO THE QUOTED PROVISION FROM THE ACT OF MARCH 3, 1915, DIRECTING THE DISCHARGE ON THE REQUEST OF PARENT OR GUARDIAN OF A RECRUIT UNDER EIGHTEEN YEARS OF AGE, AND HELD:

THE ABOVE IS A SPECIAL ACT WHICH GOVERNS THE RELEASE OR DISCHARGE FROM THE NAVAL SERVICE OF BOYS UNDER THE CIRCUMSTANCES THEREIN DESCRIBED. THE SAID ACT DOES NOT CONTEMPLATE THAT THE ENLISTMENT OF THE BOYS WHO ARE RELEASED UNDER ITS TERMS SHALL BE CONSIDERED FRAUDULENT SO AS TO SUBJECT THEM TO THE PUNISHMENT AND PENALTIES FOR THAT OFFENSE. THE DECISIONS OF THIS OFFICE REGARDING FORFEITURE OF PAY ON ACCOUNT OF FRAUDULENT ENLISTMENTS HAVE THEREFORE NO APPLICATION TO SUCH CASES.

I AM THEREFORE OF OPINION THAT * * * AND * * * HAVING BEEN DISCHARGED UPON REQUEST OF THEIR PARENTS IN COMPLIANCE WITH SAID ACT ARE ENTITLED TO THEIR ACCRUED PAY TO TIME OF DISCHARGE, AND THAT THEREFORE THE CHARGING OF THE COST OF THEIR CLOTHING OUTFITS AGAINST SAID ACCRUED PAY WAS A REFUND OF THE COST OF THEIR CLOTHING OUTFITS.

THE RECOGNIZED RULE IS THAT A MINOR MORE THAN FOURTEEN YEARS OF AGE AT TIME OF ENLISTMENT, WHO IS ENLISTED IN THE NAVY ON HIS FALSE REPRESENTATION AS TO AGE, IS IN THE NAVAL SERVICE UNDER A VALID CONTRACT OF ENLISTMENT ENTIRELY BINDING ON HIM AND VOIDABLE ONLY ON THE PART OF THE GOVERNMENT, SUCH A CONTRACT, BY REASON OF THE CHANGE OF STATUS IT EFFECTS, NOT BEING VOIDABLE BY THE ENLISTED MAN ON THE GROUND OF HIS INFANCY AS IS THE USUAL RULE IN CONTRACTS. IN RE MORRISSEY (ARMY CASE 1890), 137 U.S. 157, 34 L.ED. 644; NAVY CASES: DILLINGHAM V. BOOKER (1908), 163 FED.REP. 696: UNITED STATES V. PENDLETON (1909), 167 FED.REP. 690; EX PARTE ROCK (1909), 171 FED.REP. 240.

EVIDENTLY, IT WAS TO MAKE THE DISCHARGE COMPULSORY, AT THE PARENT'S OR GUARDIAN'S REQUEST, OF MINORS WHOSE ENLISTMENT WAS FORBIDDEN WITHOUT THE PARENT'S OR GUARDIAN'S CONSENT THAT THE CITED PROVISION OF THE ACT OF MARCH 3, 1915, AND SIMILAR PROVISIONS IN PRIOR NAVY APPROPRIATION ACTS WERE ENACTED. SUCH PROVISIONS, HOWEVER, OBVIOUSLY ARE FOR THE SOLE BENEFIT OF THE PARENT OR GUARDIAN AND ARE IN RECOGNITION THAT THE GOVERNMENT SHOULD NOT DISTURB THE CONTROL OF THE PARENT OR GUARDIAN OVER HIS OR HER CHILD WITHOUT CONSENT. THE PROVISION WAS NOT INTENDED TO AND DOES NOT OPERATE TO GIVE ANY PRIVILEGE TO THE MINOR, HIS RIGHTS UNDER THE CONTRACT BEING JUST WHAT THEY WOULD BE WITHOUT SUCH A PROVISION OF LAW. IN RE MORRISSEY AND CASES CITED IN NOTE TO THAT CASE, 34 L.ED. 644; A-6092 (RECONSIDERATION), JULY 27, 1925.

WHETHER THE MINOR IS DISCHARGED FOR FRAUDULENT ENLISTMENT(MISREPRESENTATION OF AGE) UNDER SUCH A PROVISION OF LAW ON THE APPLICATION OF HIS PARENT OR GUARDIAN OR IS DISCHARGED IN THE DISCRETION OF THE SECRETARY OF THE NAVY AS UNDESIRABLE DUE TO HIS FRAUD, THE DISCHARGE IS A REPUDIATION OF THE CONTRACT BY THE GOVERNMENT ON THE GROUND OF A MATERIAL MISREPRESENTATION OF FACT BY THE ENLISTED MAN.

THE MAN HAVING NO RIGHTS UNDER HIS FRAUDULENT ENLISTMENT WHEN TERMINATED PURSUANT TO THIS ENACTMENT, NO PAY OR ALLOWANCES BECAME PAYABLE THEREUNDER, BUT ONLY SUCH RIGHTS ARISE AS THE CONGRESS HAS SPECIFICALLY GIVEN, THAT IS, (1) THE RIGHT OF THE UNITED STATES TO RECEIVE PAYMENT FOR THE FIRST OUTFIT (SUBJECT TO BE RELIEVED IN THE DISCRETION OF THE SECRETARY OF THE NAVY), AND (2) UNDER THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, THE RIGHT OF THE INDIVIDUAL TO RECEIVE TRANSPORTATION.

THE REEXAMINATION OF THE MATTER LEADS TO THE CONCLUSION THAT NO PAYMENTS ON ACCOUNT OF PAY AND ALLOWANCES UNDER THE CONTRACT OF ENLISTMENT ARE AUTHORIZED TO AN ENLISTED MAN AFTER THE FRAUDULENCY OF HIS ENLISTMENT IS DISCOVERED, WHERE THE CONTRACT OF ENLISTMENT IS AVOIDED BY THE GOVERNMENT EITHER ON ITS OWN INITIATIVE OR ON THE REQUEST OF PARENT OR GUARDIAN, BUT, IN THE CASE OF MEN DISCHARGED PURSUANT TO THE CITED ACT OF MARCH 3, 1915, AT REQUEST OF PARENT OR GUARDIAN, THE MAN MAY NOT BE RELEASED EXCEPT "UPON PAYMENT OF FULL COST OF FIRST OUTFIT, UNLESS, IN ANY GIVEN CASE, THE SECRETARY, IN HIS DISCRETION, SHALL RELIEVE SAID RECRUIT OF SUCH PAYMENT.'