A-5717, DECEMBER 17, 1924, 4 COMP. GEN. 539

A-5717: Dec 17, 1924

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THE RULES APPLICABLE TO CONTINUOUS-SERVICE PAY FOR ENLISTED MEN OF THE REGULAR ARMY ARE APPLICABLE TO SUCH DRAFTED MEMBERS OF THE NATIONAL GUARD. WILL NOT BE DISTURBED. 1924: THERE IS FOR CONSIDERATION THE CORRECTNESS OF DECISION OF OCTOBER 31. PROVIDES THAT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD IN THE SERVICE OF THE UNITED STATES UNDER THE TERMS OF THAT SECTION SHALL HAVE THE SAME PAY AND ALLOWANCES AS OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY OF THE SAME GRADES AND THE SAME PRIOR SERVICE. IT WAS HELD: THE ENLISTMENT PERIOD OF ENLISTED MEN OF THE ORGANIZED MILITIA OR NATIONAL GUARD IN WHICH SERVING WHEN DRAFTED INTO FEDERAL SERVICE IS DETERMINED BY DIVIDING PREVIOUS CONTINUOUS SERVICE BY THREE.

A-5717, DECEMBER 17, 1924, 4 COMP. GEN. 539

ARMY PAY, CONTINUOUS-SERVICE - MEMBERS OF NATIONAL GUARD DRAFTED INTO THE FEDERAL SERVICE AS SECTION 111 OF THE ACT OF JUNE 3, 1916, 39 STAT. 211, REQUIRED THAT MEMBERS OF THE NATIONAL GUARD DRAFTED INTO THE FEDERAL SERVICE RECEIVE THE SAME PAY AND ALLOWANCES AS OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY OF THE SAME GRADE AND SAME PRIOR SERVICE, THE RULES APPLICABLE TO CONTINUOUS-SERVICE PAY FOR ENLISTED MEN OF THE REGULAR ARMY ARE APPLICABLE TO SUCH DRAFTED MEMBERS OF THE NATIONAL GUARD. SETTLED ACCOUNTS, HOWEVER, INVOLVING CONTINUOUS-SERVICE PAY OF NATIONAL GUARDSMEN WHILE IN THE REGULAR ARMY UNDER THE DRAFT OF AUGUST 5, 1917, WILL NOT BE DISTURBED.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 17, 1924:

THERE IS FOR CONSIDERATION THE CORRECTNESS OF DECISION OF OCTOBER 31, 1924, IN REGARD TO COMPUTING THE CONTINUOUS-SERVICE INCREASE OF PAY OF AN ENLISTED MAN OF THE NATIONAL GUARD DRAFTED INTO THE FEDERAL SERVICE.

SECTION 111 OF THE ACT OF JUNE 3, 1916, 39 STAT. 211, PROVIDES THAT OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD IN THE SERVICE OF THE UNITED STATES UNDER THE TERMS OF THAT SECTION SHALL HAVE THE SAME PAY AND ALLOWANCES AS OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY OF THE SAME GRADES AND THE SAME PRIOR SERVICE.

IN THE DECISION OF AUGUST 18, 1917, 24 COMP. DEC. 121, IT WAS HELD:

THE ENLISTMENT PERIOD OF ENLISTED MEN OF THE ORGANIZED MILITIA OR NATIONAL GUARD IN WHICH SERVING WHEN DRAFTED INTO FEDERAL SERVICE IS DETERMINED BY DIVIDING PREVIOUS CONTINUOUS SERVICE BY THREE, THE INTEGER IN THE QUOTIENT REPRESENTING THE NUMBER OF ENLISTMENT PERIODS ALREADY SERVED.

THIS APPEARS TO HAVE BEEN BASED SOLELY UPON THE PROVISION OF THE ACT OF MAY 11, 1908, 35 STAT. 110./*

* * * THAT THE PRESENT ENLISTMENT PERIOD OF MEN NOW IN SERVICE SHALL BE DETERMINED BY THE NUMBER OF YEARS CONTINUOUS SERVICE THEY HAVE HAD AT THE DATE OF APPROVAL OF THIS ACT, UNDER EXISTING LAWS, COUNTING THREE YEARS TO AN ENLISTMENT * * *.

THE ACT OF MAY 11, 1908, PRESCRIBED THE BASIS OF DETERMINATION OF THE ENLISTMENT PERIOD IN WHICH AN ENLISTED MAN OF THE REGULAR ARMY WAS SERVING ON THAT PARTICULAR DATE, FOR CONTINUOUS-SERVICE PAY PURPOSES. THE PERIOD OF CONTINUOUS SERVICE WAS DIVISIBLE BY THREE, WHICH WAS THE NUMBER OF YEARS STATED BY THE ACT TO CONSTITUTE AN ENLISTMENT. BETWEEN THE PASSAGE OF THAT ACT AND AUGUST 5, 1917, THE DATE THE NATIONAL GUARD WAS DRAFTED INTO THE FEDERAL SERVICE, OTHER LEGISLATION WAS ENACTED WHICH AFFECTED THE CONDITIONS UNDER WHICH ENLISTED MEN OF THE REGULAR ARMY RECEIVED CONTINUOUS-SERVICE PAY, NAMELY, THE ACT OF AUGUST 24, 1912, 37 STAT. 590, WHICH PROVIDED THAT COMMENCING NOVEMBER 1, 1912, ALL ENLISTMENTS IN THE REGULAR ARMY SHOULD BE FOR SEVEN YEARS, FOUR OF WHICH SHOULD BE ACTIVE SERVICE AND THREE WITH THE RESERVES, AND

* * * THAT FOR ALL ENLISTMENTS HEREAFTER ACCOMPLISHED UNDER THE PROVISIONS OF THIS ACT, FOUR YEARS SHALL BE COUNTED AS AN ENLISTMENT PERIOD IN COMPUTING CONTINUOUS-SERVICE PAY * * *.

THE ACT OF JUNE 3, 1916, 39 STAT. 185-186, PROVIDES THAT COMMENCING NOVEMBER 1, 1916, ALL ENLISTMENTS IN THE REGULAR ARMY SHALL BE FOR SEVEN YEARS, THREE ON ACTIVE DUTY AND FOUR WITH THE RESERVES, AND

* * * THAT IN ALL ENLISTMENTS HEREAFTER ACCOMPLISHED UNDER THE PROVISIONS OF THIS ACT, THREE YEARS SHALL BE COUNTED AS AN ENLISTMENT PERIOD IN COMPUTING CONTINUOUS-SERVICE PAY: * * *.

THE DECISION OF MARCH 5, 1920, 26 COMP. DEC. 715, RESULTING FROM A CONSIDERATION OF THOSE LAWS STATES THAT:

IN DETERMINING THE ENLISTMENT PERIOD OF ENLISTED MEN OF THE ARMY FOR PURPOSES OF CONTINUOUS-SERVICE PAY, EACH THREE YEARS OR FOUR YEARS OF CONTINUOUS SERVICE SHALL BE COUNTED AS ONE ENLISTMENT, ACCORDING TO THE LENGTH OF REGULAR ENLISTMENT PERIODS FOR THE PURPOSES OF CONTINUOUS SERVICE PAY PRESCRIBED BY THE STATUTE IN FORCE WHEN THE ENLISTMENT WAS ENTERED INTO, WITHOUT REGARD TO LENGTH OF TIME ACTUALLY SERVED IN ANY PARTICULAR ENLISTMENT UNDER ACTS AUTHORIZING ENLISTMENTS FOR SHORTER PERIODS OR AUTHORIZING DISCHARGES PRIOR TO THE EXPIRATION OF REGULAR ENLISTMENTS, PROVIDED THE MEN REMAIN CONTINUOUSLY IN THE SERVICE WITHIN THE MEANING OF THE ACT OF MAY 11, 1908, 35 STAT. 109.

IT IS EVIDENT THAT IT WAS THE INTENTION OF CONGRESS AS EXPRESSED IN THE ACT OF JUNE 3, 1916, THAT WHENEVER THE NATIONAL GUARD WAS DRAFTED INTO THE FEDERAL SERVICE IT SHOULD BE ON A PARITY WITH THE REGULAR ARMY IN REGARD TO PAY AND ALLOWANCES ACCORDING TO GRADES AND THE SAME PRIOR SERVICE. THE NATIONAL GUARD WHEN DRAFTED INTO THE FEDERAL SERVICE COULD THEREFORE RECEIVE NO GREATER BENEFITS OR RIGHTS AS TO PAY AND ALLOWANCES THAN THE MILITARY ORGANIZATION OF WHICH IT BECAME A PART. IF CONSIDERATION WERE CONFINED TO THE PROVISIONS OF THE ACT OF MAY 11, 1908, TO THE ENTIRE EXCLUSION OF THE SUBSEQUENT ACTS OF AUGUST 24, 1912, AND JUNE 3, 1916, GREATER BENEFITS WOULD ACCRUE TO THE NATIONAL GUARDSMEN BY MAKING THEIR CONTINUOUS NATIONAL GUARD SERVICE ON AUGUST 5, 1917, DIVISIBLE ONLY BY THREE AS AN ENLISTMENT PERIOD, WHEREAS A REGULAR ARMY MAN WOULD NECESSARILY HAVE TO HAVE HIS ENLISTMENT PERIOD FOR CONTINUOUS-SERVICE PAY PURPOSES DETERMINED ON THE BASIS OF THREE OR FOUR YEARS ACCORDING TO THE ACT EFFECTIVE DURING THE PERIOD OF HIS MILITARY SERVICE. THE NECESSITY FOR A COMMON BASIS OF COMPUTATION IS APPARENT IF THERE IS TO BE EQUALITY OF PAY AND ALLOWANCES WHEN RENDERING IDENTICAL SERVICE IN THE FEDERAL FORCES. THEREFORE THE METHOD PRESCRIBED IN 26 COMP. DEC. 715, WILL BE APPLIED FROM THE DATE HEREOF IN ALL UNSETTLED ACCOUNTS INVOLVING CONTINUOUS-SERVICE PAY OF NATIONAL GUARDSMEN WHILE IN THE REGULAR ARMY UNDER DRAFT OF AUGUST 5, 1917.

THE DECISION OF OCTOBER 31, 1924, IN THE CASE OF LINUS W. OSBORNE, FORMERLY PRIVATE, CO. E, 146TH INFANTRY, IS CORRECT AND IS ADHERED TO.