A-7563, JUNE 10, 1925, 4 COMP. GEN. 1026

A-7563: Jun 10, 1925

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REENLISTMENT ALLOWANCE - NAVY ABSENCE WITHOUT LEAVE ON THE PART OF AN ENLISTED MAN OF THE NAVY IS NOT ABSENCE DUE TO MISCONDUCT WITHIN THE PURVIEW OF THE ACT OF AUGUST 29. AGREEMENT TO EXTEND A FOUR-YEAR ENLISTMENT IN WHICH THERE WAS AN ABSENCE WITHOUT LEAVE FOR TWO DAYS. HE IS ONLY ENTITLED TO A REENLISTMENT ALLOWANCE AS FOR 3 YEARS OF SERVICE. 3 COMP. BY WHICH WAS DISALLOWED HIS CLAIM FOR $50 ADDITIONAL ENLISTMENT ALLOWANCE ON EXTENSION OF ENLISTMENT JANUARY 27. THE CLAIM WAS DISALLOWED FOR THE FOLLOWING REASONS: THE RECORDS SHOW THAT CLAIMANT WAS ABSENT OVER LEAVE TWO DAYS FROM HIS ENLISTMENT. WAS PAID $150 ENLISTMENT ALLOWANCE ON EXTENSION OF ENLISTMENT AT $50 PER EACH FULL YEAR OF SERVICE IN THE SAID ENLISTMENT.

A-7563, JUNE 10, 1925, 4 COMP. GEN. 1026

GRATUITIES, REENLISTMENT ALLOWANCE - NAVY ABSENCE WITHOUT LEAVE ON THE PART OF AN ENLISTED MAN OF THE NAVY IS NOT ABSENCE DUE TO MISCONDUCT WITHIN THE PURVIEW OF THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, AND DOES NOT AUTOMATICALLY EXTEND THE LENGTH OF THE ENLISTMENT PERIOD. AGREEMENT TO EXTEND A FOUR-YEAR ENLISTMENT IN WHICH THERE WAS AN ABSENCE WITHOUT LEAVE FOR TWO DAYS, ACCORDINGLY BECOMES EFFECTIVE FOUR YEARS FROM THE DATE OF THE ORIGINAL ENLISTMENT AND ENTITLES THE ENLISTED MAN TO A REENLISTMENT ALLOWANCE OF $50 MULTIPLIED BY THE NUMBER OF WHOLE YEARS FOR ACTUAL SERVICE DURING THAT ENLISTMENT PERIOD; I.E., AS THE ENLISTED MAN ONLY SERVED 3 YEARS 11 MONTHS AND 28 DAYS, HE IS ONLY ENTITLED TO A REENLISTMENT ALLOWANCE AS FOR 3 YEARS OF SERVICE. 3 COMP. GEN. 330, MODIFIED.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 10, 1925:

CHARLES A. FREE, SK, FIRST CLASS, UNITED STATES NAVY, REQUESTED OCTOBER 23, 1924, REVIEW OF SETTLEMENT 038861, OCTOBER 6, 1924, BY WHICH WAS DISALLOWED HIS CLAIM FOR $50 ADDITIONAL ENLISTMENT ALLOWANCE ON EXTENSION OF ENLISTMENT JANUARY 27, 1923. THE CLAIM WAS DISALLOWED FOR THE FOLLOWING REASONS:

THE RECORDS SHOW THAT CLAIMANT WAS ABSENT OVER LEAVE TWO DAYS FROM HIS ENLISTMENT, JANUARY 27, 1919, TO JANUARY 26, 1923, DATE OF EXTENSION OF ENLISTMENT, HAVING 3 YEARS 11 MONTHS AND 28 DAYS' ACTIVE DUTY DURING THE ENLISTMENT. HE HAD THREE FULL YEARS' SERVICE, AND WAS PAID $150 ENLISTMENT ALLOWANCE ON EXTENSION OF ENLISTMENT AT $50 PER EACH FULL YEAR OF SERVICE IN THE SAID ENLISTMENT. HE HAS BEEN PAID ALL THE ENLISTMENT ALLOWANCE TO WHICH HE IS ENTITLED.

THIS ACTION WAS IN ACCORDANCE WITH 2 COMP. GEN. 633, AND 162, 166. THE LATTER CASE, CONSTRUING THE ARMY LAW, SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, IN THE PORTION MATERIAL HERE IDENTICAL WITH THE NAVY LAW CONTAINED IN SECTION 10 OF THE SAME ACT, IT WAS SAID:

THE ENLISTMENT ALLOWANCE FIXED IN THE STATUTE IS TO BE "MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGE.' A YEAR IS THE UNIT OF SERVICE, AND NOTHING LESS THAN A YEAR IS TO BE INCLUDED IN THE COMPUTATION.

THE ENLISTMENT ALLOWANCE MAY NOT, THEREFORE, BE PRO RATED FOR FRACTIONAL PARTS OF YEARS SERVED IN THE ENLISTMENT FROM WHICH LAST DISCHARGED. THE FOREGOING IS THE GENERAL RULE.

IN AN APPLICATION OF THIS HOLDING TO A DISCHARGE ON EXPIRATION OF ENLISTMENT NOTWITHSTANDING ABSENCE WITHOUT LEAVE FOR 2 MONTHS AND 20 DAYS DURING THE ENLISTMENT AND NOT MADE GOOD, IT WAS HELD THAT THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, WHICH REQUIRES THE MAKING GOOD OF TIME LOST IN EXCESS OF 1 DAY BECAUSE OF "INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS AND ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT" INCLUDED IN THE TERM "MISCONDUCT" ABSENCE WITHOUT LEAVE; THAT THE ENLISTMENT WAS AUTOMATICALLY EXTENDED 2 MONTHS AND 20 DAYS BEYOND THE DATE OF ORIGINAL EXPIRATION, BUT THAT IN THAT CASE THE DISCHARGE ON THE ORIGINAL DATE OF EXPIRATION WAS A DISCHARGE WITHIN 3 MONTHS BEFORE EXPIRATION OF ENLISTMENT UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331, AND THAT UNDER THE LAST-NAMED ACT AUTHORIZING DISCHARGE WITHIN 3 MONTHS OF EXPIRATION OF ENLISTMENT "WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT THAT HE WOULD HAVE RECEIVED * * * HAD HE SERVED HIS FULL TERM OF ENLISTMENT OR EXTENDED ENLISTMENT," THE CLAIMANT WAS ENTITLED TO ENLISTMENT ALLOWANCE ON REENLISTMENT WITHIN 3 MONTHS FROM DATE OF ACTUAL DISCHARGE AS FOR SERVING A COMPLETE ENLISTMENT. 3 COMP. GEN. 330.

CLAIMANT SUGGESTS IN HIS REQUEST FOR REVIEW THAT AS UNDER THAT DECISION HE WOULD HAVE BEEN ENTITLED TO THE ENLISTMENT ALLOWANCE FOR AN ADDITIONAL YEAR HAD HE BEEN DISCHARGED AND REENLISTED, UNDER THE TERMS OF THE ACT OF AUGUST 22, 1912, 37 STAT. 331, PROVIDING THAT ENLISTED MEN WHO EXTEND ENLISTMENTS AS THEREIN PROVIDED "SHALL BE ENTITLED TO AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES IN ALL RESPECTS AS THOUGH REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON EXPIRATION OF THEIR TERM OF ENLISTMENT" HIS CLAIM IS ALLOWABLE.

CLAIMANT'S ENLISTMENT WAS EXTENDED FROM JANUARY 26, 1923, DATE OF EXPIRATION; HE WAS NOT DISCHARGED. IF THEREFORE AN ABSENCE WITHOUT LEAVE IN EXCESS OF ONE DAY OPERATES TO AUTOMATICALLY EXTEND THE TERM OF ENLISTMENT OF A MAN IN THE NAVY, THE EXTENSION COULD NOT HAVE BECOME EFFECTIVE UNTIL JANUARY 29, 1923. THE AGREEMENT ENTERED INTO JANUARY 3, 1923, WAS TO EXTEND THE ENLISTMENT FOR TWO "FULL YEARS FROM THE DATE OF ITS EXPIRATION ON JANUARY 26, 1923, NAMELY, UNTIL JANUARY 26, 1925.' THE ENLISTMENT AND EXTENSION THUS TOTAL SIX YEARS, NOT SIX YEARS AND TWO DAYS. THE DIRECTION OF THE STATUTE THAT THE ENLISTMENT ALLOWANCE SHALL BE "MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED" CAN NOT BE MADE EFFECTIVE IN SUCH A SITUATION, AND THE HOLDING IN 3 COMP. GEN. 330, IS FOR FURTHER CONSIDERATION.

THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, PROVIDES:

HEREAFTER NO OFFICER OR ENLISTED MAN IN THE NAVY OR MARINE CORPS IN ACTIVE SERVICE WHO SHALL BE ABSENT FROM DUTY ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT, SHALL RECEIVE PAY FOR THE PERIOD OF SUCH ABSENCE, THE TIME SO ABSENT AND THE CAUSE THEREOF TO BE ASCERTAINED UNDER SUCH PROCEDURE AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT AN ENLISTMENT SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT.

MISCONDUCT ONLY IS NOT PENALIZED BY THIS STATUTE. SO FAR AS MISCONDUCT IS CONCERNED, IT IS ABSENCE "FROM DUTY ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN * * * MISCONDUCT" THAT IS PENALIZED, AND IT IS ONLY SUCH ABSENCE WHICH AUTOMATICALLY EXTENDS AN ENLISTMENT. THE TIME SO ABSENT AND THE CAUSE THEREOF, IT WILL BE NOTED, ARE TO BE ASCERTAINED UNDER SUCH PROCEDURE AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY. THIS LATTER REQUIREMENT HAS NO APPLICATION TO AN ABSENCE WITHOUT LEAVE, BUT IS IMPORTANT WHERE INJURY, SICKNESS, OR DISEASE RESULTS IN ABSENCE FROM DUTY AND THE CAUSE OF THE INJURY, SICKNESS, OR DISEASE AND THE TIME SUCH INJURY, SICKNESS, OR DISEASE INCAPACITATED THE MAN FOR DUTY MUST BE ASCERTAINED.

ON FURTHER CONSIDERATION IT APPEARS THAT ABSENCE WITHOUT LEAVE IS NOT WITHIN THE LANGUAGE, MEANING, OR INTENT OF THE ACT OF AUGUST 29, 1916, AND DOES NOT UNDER THAT STATUTE HAVE THE EFFECT OF AUTOMATICALLY EXTENDING THE ENLISTMENT OF A MAN SO ABSENT. DECISIONS TO THE CONTRARY ARE MODIFIED ACCORDINGLY.

APPLYING THE FOREGOING TO THE PRESENT CASE, DURING CLAIMANT'S ENLISTMENT OF FOUR YEARS, JANUARY 27, 1919, TO JANUARY 26, 1923, HE SERVED 3 YEARS 11 MONTHS AND 28 DAYS. THE ENLISTMENT ALLOWANCE FOR CLAIMANT'S GRADE AT $50 EACH YEAR SERVED AMOUNTS TO THREE TIMES $50, OR $150. HE HAS BEEN PAID THIS AMOUNT AND THE SETTLEMENT DISALLOWING HIS CLAIM FOR AN ADDITIONAL AMOUNT IS ACCORDINGLY SUSTAINED.