A-4497, SEPTEMBER 4, 1924, 4 COMP. GEN. 260

A-4497: Sep 4, 1924

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NAVY PAY - CANCELLATION OF EXECUTED DISCHARGE AN ATTEMPTED REVOCATION OR CANCELLATION OF A VALID EXECUTED DISCHARGE IS INEFFECTIVE TO RESTORE A FORMER ENLISTED MAN OF THE NAVY TO A DUTY STATUS. PROVIDING FOR THE REENLISTMENT OF CERTAIN ENLISTED MEN OF THE NAVY UNTIL THEY HAVE SERVED 16 YEARS IN ORDER TO QUALIFY THEM FOR TRANSFER TO THE FLEET NAVAL RESERVE. 1924: THERE IS BEFORE THIS OFFICE THE QUESTION OF THE RIGHT OF SERERO VELASQUEZ TO PAY AS A NATIVE FIREMAN. WHICH WAS PAID TO HIM ON THE PAY ROLLS OF THE RECEIVING SHIP AT CAVITE IN THE SECOND QUARTER. HIS ACCOUNT WAS TAKEN UP FOR PAY AS OF JANUARY 19. YOU ARE AUTHORIZED AND DIRECTED TO TAKE UP THE ABOVE NAMED MAN'S AMOUNT ON THE PATIENTS' ROLL OF THIS HOSPITAL.

A-4497, SEPTEMBER 4, 1924, 4 COMP. GEN. 260

NAVY PAY - CANCELLATION OF EXECUTED DISCHARGE AN ATTEMPTED REVOCATION OR CANCELLATION OF A VALID EXECUTED DISCHARGE IS INEFFECTIVE TO RESTORE A FORMER ENLISTED MAN OF THE NAVY TO A DUTY STATUS, BUT WHERE SUCH ENLISTED MAN RETURNED TO DUTY UPON RECEIPT OF NOTICE THAT HIS DISCHARGE BY MEDICAL SURVEY HAD BEEN CANCELED HE MAY RETAIN THE PAY RECEIVED FROM THE DATE OF HIS ACTUAL RETURN TO DUTY. THE ACT OF JULY 1, 1922, 42 STAT. 800, PROVIDING FOR THE REENLISTMENT OF CERTAIN ENLISTED MEN OF THE NAVY UNTIL THEY HAVE SERVED 16 YEARS IN ORDER TO QUALIFY THEM FOR TRANSFER TO THE FLEET NAVAL RESERVE, DID NOT GIVE THEM A VESTED RIGHT TO BE RETAINED IN THE SERVICE OVER ALL CIRCUMSTANCES AND DID NOT RENDER VOID A DISCHARGE FOR PHYSICAL DISABILITY BEFORE THE COMPLETION OF THE 16 YEARS OF SERVICE.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 4, 1924:

THERE IS BEFORE THIS OFFICE THE QUESTION OF THE RIGHT OF SERERO VELASQUEZ TO PAY AS A NATIVE FIREMAN, THIRD CLASS, UNITED STATES NAVY (INSULAR FORCE), WHICH WAS PAID TO HIM ON THE PAY ROLLS OF THE RECEIVING SHIP AT CAVITE IN THE SECOND QUARTER, 1924, BY LIEUT. J. M. EASTER (S.C.), UNITED STATES NAVY.

HIS ACCOUNT WAS TAKEN UP FOR PAY AS OF JANUARY 19, 1923, UNDER THE FOLLOWING ORDER OF THE COMMANDING OFFICER OF THE UNITED STATES NAVAL HOSPITAL, CANACAO, P.I., DATED AUGUST 27, 1923.

IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN ENCLOSURE (A), YOU ARE AUTHORIZED AND DIRECTED TO TAKE UP THE ABOVE NAMED MAN'S AMOUNT ON THE PATIENTS' ROLL OF THIS HOSPITAL, FROM THE DATE OF HIS DISCHARGE OF 18 JANUARY, 1923, UNTIL THE PRESENT DATE, AND PAY HIM FULL PAY DURING THIS PERIOD.

IT APPEARS THAT JANUARY 18, 1923, VELASQUEZ WAS GIVEN AN HONORABLE DISCHARGE AS THE RESULT OF A MEDICAL SURVEY, ORIGIN IN LINE OF DUTY, AND NOT THE RESULT OF OWN MISCONDUCT. THE PHYSICAL DISABILITY IS STATED TO HAVE BEEN A CATARACT ON THE LEFT EYE. AT THE TIME OF DISCHARGE HE WAS SERVING IN HIS FOURTH ENLISTMENT PERIOD ON JUNE 30, 1922, AND ON THAT DATE HAD TO HIS CREDIT OVER 12 YEARS' SERVICE, AND WOULD, HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THAT ENLISTMENT ON SEPTEMBER 20, 1925, HAVE COMPLETED 16 YEARS OF SERVICE.

THE ACT OF JULY 1, 1922, 42 STAT. 799, PROVIDED AS ONE OF THE METHODS TO REDUCE THE ENLISTED PERSONNEL OF THE NAVY TO 86,000 MEN:

* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING * * * MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE: * * * PROVIDED FURTHER, THAT NO ENLISTED MEN OF THE NAVY SHALL BE TRANSFERRED TO THE FLEET NAVAL RESERVE UNLESS THEY HAVE COMPLETED SIXTEEN OR TWENTY YEARS' SERVICE AFTER THE NAVY IS REDUCED TO THE NUMBER OF ENLISTED MEN APPROPRIATED FOR IN THIS ACT, AND IN NO EVENT AFTER JANUARY 1, 1923.

VELASQUEZ'S SERVICE PLACED HIM IN THE CLASS HERE DESCRIBED, BUT HE WAS NOT ELIGIBLE FOR TRANSFER TO THE FLEET NAVAL RESERVE UNDER THE ABOVE PROVISION AS HE WAS NOT A CITIZEN OF THE UNITED STATES. WHATEVER RIGHT TO TRANSFER IS GIVEN IS "IN THE DISCRETION OF THE SECRETARY OF THE NAVY.'

THE ACT OF JULY 1, 1922, ON PAGE 800, CONTAINED ANOTHER PROVISION IN THE MATTER OF TRANSFER TO THE FLEET NAVAL RESERVE:

* * * THAT ENLISTED MEN WHO HAVE SERVED FOR MORE THAN TWELVE BUT LESS THAN SIXTEEN YEARS SHALL BE PERMITTED TO REENLIST AND CONTINUE SERVING, UNLESS SOONER DISCHARGED BY SENTENCE OF A COURT-MARTIAL, UNTIL THEY HAVE COMPLETED SIXTEEN YEARS' SERVICE, WHEREUPON THEY SHALL, UPON THEIR OWN APPLICATION BE PERMITTED TO TRANSFER TO THE FLEET NAVAL RESERVE * * *.

THE LATTER PROVISION, WHEN READ IN CONNECTION WITH THE FORMER QUOTED ONE, CLEARLY INDICATES IT WAS INTENDED TO PROVIDE FOR THAT CLASS OF MEN WHO WERE NOT ELIGIBLE FOR TRANSFER UNDER THE FORMER PROVISION, VIZ, MEN WHO HAD OVER 12 YEARS OF SERVICE ON JUNE 30, 1922, BUT WHO WOULD NOT HAVE HAD 16 YEARS OF SERVICE TO THEIR CREDIT AT THE EXPIRATION OF THAT ENLISTMENT.

ON JULY 3, 1923, THE JUDGE ADVOCATE GENERAL OF THE NAVY RENDERED AN OPINION TO THE CHIEF OF THE BUREAU OF NAVIGATION, IN VELASQUEZ'S CASE, WHICH MAKES NO REFERENCE TO THE FIRST QUOTED PROVISION FROM THE ACT OF JULY 1, 1922, BUT CONSIDERS THE SECOND PROVISION ONLY, AND HOLDS THAT UNDER THIS PROVISION VELASQUEZ HAD, IN EFFECT, A VESTED RIGHT TO BE KEPT IN THE SERVICE AND TO BE REENLISTED UNTIL HE HAD ROUNDED OUT 16 YEARS OF SERVICE, AND THAT HE COULD NOT BE DISCHARGED REGARDLESS OF PHYSICAL OR OTHER DISQUALIFICATIONS, EXCEPT MISCONDUCT SUCH AS WOULD WARRANT HIS DISCHARGE FROM THE SERVICE BY SENTENCE OF A COURT MARTIAL. THE OPINION FURTHER HOLDS THAT BECAUSE OF ELIGIBILITY FOR NATURALIZATION UNDER THE ACT OF MAY 9, 1918, 40 STAT. 542, THE EXISTING NONCITIZENSHIP WAS NO BAR TO THE APPLICATION OF THE PROVISIONS OF THE ACT OF JULY 1, 1922, SHOULD HE BECOME A CITIZEN BEFORE APPLICATION FOR TRANSFER. THE OPINION ACCORDINGLY HELD THAT THE ACT OF JULY 1, 1922, WAS VIOLATED IN DISCHARGING VELASQUEZ ON JANUARY 18, 1923, THROUGH MEDICAL SURVEY DISCHARGE, AND THAT THE DISCHARGE SHOULD BE CANCELED AS HAVING BEEN ILLEGALLY ISSUED.

IN ACCORDANCE WITH THIS OPINION THE BUREAU OF NAVIGATION DIRECTED THE CANCELLATION OF THE MEDICAL SURVEY DISCHARGE, NOTIFIED VELASQUEZ TO REPORT TO THE NAVAL AUTHORITIES, AND DIRECTED THAT HE BE PAID FOR THE PERIOD FROM JANUARY 19, 1923, AT THE RATE OF PAY IN RECEIPT OF ON JANUARY 18, 1923.

THE LANGUAGE CONSTRUED BY THE JUDGE ADVOCATE GENERAL WAS A PROVISO ATTACHED TO A MANDATORY REQUIREMENT THAT THE ENLISTED PERSONNEL OF THE NAVY BE REDUCED TO 86,000 MEN. NEITHER THE LEGISLATION AS A WHOLE, NOR THE PARTICULAR PROVISO CONSTRUED, WARRANTS THE CONCLUSION THAT THE INTENT WAS TO INCREASE OR EXTEND THE RIGHTS OF ANY ENLISTED MAN. THE PURPOSE OF THE PROVISO WAS IN A SENSE TO OPERATE AS A SAVING CLAUSE IN CONNECTION WITH THE REDUCTION AND THE MEANS TO ACCOMPLISH THE REDUCTION THEREIN PRESCRIBED AS TO ENLISTED MEN OF SUBSTANTIAL SERVICE, WHO BY DISCHARGE BEFORE EXPIRATION OF TERM, OR WITH THE DISCONTINUANCE OF RECRUITING THEREIN DIRECTED, COULD NOT REENLIST TO COMPLETE 16 YEARS OF SERVICE AND WHO WOULD THUS LOSE THE PRIVILEGE OF APPLYING FOR TRANSFER TO THE FLEET NAVAL RESERVE, WITH THE RETAINER PAY AUTHORIZED, AND ULTIMATE TRANSFER TO THE RETIRED LIST. THERE IS NO INTENDMENT THAT THE BLIND, THE HALT, AND THE LAME SHALL BE CONTINUED ON THE ACTIVE LIST OF THE NAVY UNTIL THEY HAVE COMPLETED 16 YEARS OF SERVICE WITH A RIGHT TO TRANSFER TO THE FLEET NAVAL RESERVE. NOR DOES THE ACT OF AUGUST 29, 1916, 39 STAT. 587 ET SEQ., ESTABLISHING THE NAVAL RESERVE FORCE, NOR ANY OF ITS AMENDMENTS INDICATE THAT THAT FORCE SHOULD BE COMPOSED OF DECREPITS UNFIT FOR ACTIVE SERVICE. IN FACT, THE CONTRARY IS CLEARLY IMPLIED BY THE FOLLOWING, QUOTED FROM 39 STAT. 587:

THE NAVAL RESERVE FORCE SHALL BE COMPOSED OF CITIZENS OF THE UNITED STATES WHO, BY ENROLLING UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY OR BY TRANSFER THERETO AS IN THIS ACT PROVIDED, OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY, DECLARED BY THE PRESIDENT: PROVIDED, THAT CITIZENS OF THE INSULAR POSSESSIONS OF THE UNITED STATES MAY ENROLL IN THE NAVAL AUXILIARY RESERVE.

THERE ARE OTHER PROVISIONS IN THE LAWS APPLICABLE TO THE NAVAL RESERVE FORCE INDICATING THAT IT SHOULD BE COMPOSED OF PHYSICALLY FIT MEMBERS. THE PROVISION FOR TRANSFER OF ENLISTED MEN OF THE NAVY AFTER 16 AND 20 YEARS OF SERVICE TO THE FLEET NAVAL RESERVE WAS NOT INTENDED TO PROVIDE A FORM OF RETIREMENT FOR PHYSICALLY UNFIT ENLISTED MEN OF THE NAVY WHO HAD HAD THAT SERVICE. IT IS NOT NECESSARY AT THIS TIME TO INQUIRE WHETHER THE TRANSFER OF A PHYSICALLY UNFIT ENLISTED MAN TO THE FLEET NAVAL RESERVE IS ILLEGAL, BUT THE MATTER IS ONE FOR INQUIRY BY THE NAVAL AUTHORITIES BEFORE SUCH A QUESTION ARISES IN THE AUDIT OF THE ACCOUNTS.

THE DISCHARGE OF VELASQUEZ WAS ISSUED BY AN AUTHORIZED OFFICER PURSUANT TO NAVY REGULATIONS AND OPERATED TO SEPARATE HIM FROM THE NAVY. HE COULD NOT BE RESTORED TO THE NAVY EXCEPT BY ANOTHER ENLISTMENT. AN ATTEMPTED REVOCATION OR CANCELLATION OF A VALID, EXECUTED DISCHARGE IS INEFFECTIVE TO RESTORE A MAN TO THE NAVY. 4 OP.ATTY.GEN. 274; 13 ID. 16; MIMMACK V. UNITED STATES, 97 U.S., 427; BLAKE V. UNITED STATES, 103 U.S. 227; 2 WINTHROP, MILITARY LAW AND PRECEDENTS, 848. VELASQUEZ IS NOT ENTITLED TO PAY AS AN ENLISTED MAN OF THE NAVY JANUARY 18 TO AUGUST 27, 1923.

FROM AUGUST 27, 1923, VELASQUEZ OCCUPIED THE STATUS OF A MAN WHO, WITHOUT FORMAL ENLISTMENT BUT WITH THE ACQUIESCENCE OF THE NAVAL AUTHORITIES, HAS RESUMED SERVICE IN THE NAVY. HE WORE THE UNIFORM, WAS FED, ARMED, AND PRESUMABLY HAS PERFORMED DUTY AND BEEN PAID AS AN ENLISTED MAN. HE IS THEREFORE ENTITLED TO RETAIN SO MUCH OF THE AMOUNT PAID HIM FOR SAID PERIOD SUBSEQUENT TO AUGUST 27, 1923, AS HE WOULD HAVE BEEN ENTITLED TO HAD HE FORMALLY ENLISTED ON THAT DATE.