B-10512, JUNE 17, 1940, 19 COMP. GEN. 991

B-10512, JUNE 17, 1940, 19 COMP. GEN. 991

ENLISTMENT ALLOWANCE - NAVAL AND MARINE CORPS RESERVISTS NAVAL APPROPRIATIONS ARE NOT AVAILABLE FOR PAYMENT OF ENLISTMENT ALLOWANCE TO ENLISTED MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE WHO REENLIST WHILE ON ACTIVE DUTY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JUNE 17, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 24, 1940, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION AS TO WHETHER OR NOT NAVAL RESERVISTS ON ACTIVE DUTY ARE LEGALLY ENTITLED TO PAYMENT OF ENLISTMENT ALLOWANCE UPON REENLISTMENT.

SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938 (52 STAT. 1176; 34 U.S. CODE, SUP. V, SEC. 853D), PROVIDES:

"* * * ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF * * * ENLISTED MEN OF THE REGULAR NAVY: * * *"

SECTION 10 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922 (42 STAT. 630; 37 U.S.C. 16), PROVIDES, RELATIVE TO PAYMENT OF THE ENLISTMENT ALLOWANCE TO ENLISTED MEN OF THE NAVY, AS FOLLOWS:

"* * * AN ENLISTMENT ALLOWANCE EQUAL TO $50 MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED, BUT NOT TO EXCEED $200, 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 LAST BEEN DISCHARGED, BUT NOT TO EXCEED $100, 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. * * *"

A SIMILAR PROVISION FOR PAYMENT OF THE ENLISTMENT ALLOWANCE TO ENLISTED MEN OF THE MARINE CORPS IS CONTAINED IN SECTION 9 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922 (42 STAT. 629; 37 U.S. CODE 13).

WHILE THERE IS NO PROVISION OF LAW WHICH SPECIFICALLY AUTHORIZES PAYMENT OF THE ENLISTMENT ALLOWANCE TO ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY, IT NEVERTHELESS APPEARS FROM THE LANGUAGE EMPLOYED IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1176; 34 U.S. CODE, SUP. V, SEC. 853E) THAT CONGRESS INTENDED THE ENLISTMENT ALLOWANCE SHOULD BE PAID TO THOSE ENLISTED MEN OF THE NAVAL RESERVE WHO REENLIST WHILE ON ACTIVE DUTY UNDER THE SAME CONDITIONS IN ALL RESPECTS AS AUTHORIZED BY LAW FOR ENLISTED MEN OF THE REGULAR NAVY. THAT PART OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 CONSIDERED APPLICABLE TO THE QUESTION UNDER CONSIDERATION PROVIDES:

"* * * AND ENLISTED MEN OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST, OR WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY * * * ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE WHICH SHALL INCLUDE SERVICE IN THE NAVY, MARINE CORPS, COAST GUARD, NAVAL RESERVE FORCE, NAVAL MILITIA, NATIONAL NAVAL VOLUNTEERS, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, OR MARINE CORPS RESERVE * * *" ( ITALICS SUPPLIED.)

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT, UNDER THE AUTHORITY CONTAINED IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, AS QUOTED ABOVE, EXISTING NAVAL APPROPRIATIONS MAY BE CONSIDERED LEGALLY AVAILABLE BY THE NAVY DEPARTMENT FOR PAYMENT OF ENLISTMENT ALLOWANCE TO ENLISTED MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE WHO REENLIST WHILE ON ACTIVE DUTY.

IN DECISION OF THE COMPTROLLER OF THE TREASURY, MAY 31, 1917, TO THE SECRETARY OF THE NAVY, 81 MS. COMP. DEC. 989, IT WAS HELD AS TO THE NAVAL RESERVE FORCE UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 587, ET SEQ., THAT AN ENLISTED MAN OF THE NAVY WHO ENROLLED IN THE NAVAL COAST DEFENSE RESERVE, N.R.F., WITHIN LESS THAN A MONTH FOLLOWING HIS DISCHARGE FROM THE REGULAR NAVY AND WHO WAS ORDERED TO ACTIVE DUTY IMMEDIATELY UPON HIS ENROLLMENT, WAS NOT ENTITLED TO THE HONORABLE DISCHARGE GRATUITY PROVIDED BY SECTION 1573, REVISED STATUTES, AS AMENDED BY THE ACT OF AUGUST 22, 1912, 37 STAT. 331.

THE COMPTROLLER GENERAL IN DECISION OF JUNE 7, 1928, A-22278, CLAIM OF WILLIAM HENRY MILLER, HELD THAT AN ENROLLED MEMBER OF THE UNITED STATES NAVAL RESERVE (CREATED BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080) WHO ENROLLED IN THE UNITED STATES NAVAL RESERVE OCTOBER 9, 1923, WHO WAS CALLED TO ACTIVE DUTY OCTOBER 12, 1923, WHO SERVED CONTINUOUSLY ON ACTIVE DUTY TO THE EXPIRATION OF HIS ENROLLMENT OCTOBER 8, 1927, AND WHO REENROLLED IN THE UNITED STATES NAVAL RESERVE OCTOBER 9, 1927, AND WHO WAS RECALLED TO ACTIVE DUTY OCTOBER 9, 1927, WAS NOT ENTITLED TO THE REENLISTMENT ALLOWANCE PROVIDED BY SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630.

IN BOTH OF THESE PRIOR LAWS THERE WERE PROVISIONS THAT MEMBERS OF THE NAVAL RESERVE FORCE WHEN ON ACTIVE DUTY SHOULD RECEIVE THE SAME PAY, ALLOWANCES, GRATUITIES, AND OTHER EMOLUMENTS AS OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY OF THE CORRESPONDING RANK OR RATING AND OF THE SAME LENGTH OF SERVICE (ACT OF AUGUST 29, 1916); OR THE SAME PAY AND ALLOWANCES AS RECEIVED BY ENLISTED MEN OF THE REGULAR NAVY OF THE SAME GRADE OR RATING AND OF THE SAME LENGTH OF SERVICE (SECTION 11, ACT OF FEBRUARY 28, 1925, 43 STAT. 1083). THIS LATTER PHRASE IS PRACTICALLY THE SAME AS THAT CONTAINED IN THE NAVAL RESERVE ACT OF 1938, QUOTED BY YOU. THEREFORE, UNLESS THESE PRIOR DECISIONS ARE CLEARLY ERRONEOUS, THE MATTER WOULD SEEM TO BE SETTLED BY LONG CONTINUED PRACTICE THEREUNDER.

THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, WAS PRIMARILY A LAW APPLICABLE TO THE REGULAR NAVY AND THE OTHER FIVE SERVICES MENTIONED IN THE TITLE. WHERE THE RESERVES WERE INTENDED TO BE INCLUDED THEY WERE SPECIFICALLY MENTIONED, AS IN SECTIONS 3 AND 14 OF THE ORIGINAL ACT AND SECTION 20 AS THAT SECTION WAS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 782. THE PROVISIONS FOR REENLISTMENT ALLOWANCE ARE TO SECURE REENLISTMENTS IN THE REGULAR ESTABLISHMENTS.

THE NAVAL RESERVE ACT OF 1938, BY SECTION 1, ESTABLISHES A NAVAL RESERVE AS A COMPONENT PART OF THE UNITED STATES NAVY; BY SECTION 4 IT IS PROVIDED THAT, THE RESERVES SHALL BE COMPOSED OF CITIZENS AS THEREIN DESCRIBED WHO "OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS.'

SECTION 5 PROVIDES THAT:

ANY MEMBER OF THE NAVAL RESERVE * * * MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY. * * *

SAID SECTION 5 CONTAINS, ALSO, A PROVISION FOR RELEASE FROM ACTIVE DUTY BY THE SECRETARY OF THE NAVY EITHER IN TIME OF WAR OR IN TIME OF PEACE. SECTION 6 RESTRICTS DISCHARGES TO EXPIRATION OF TERM OF SERVICE, AT THE MAN'S OWN REQUEST, OR FOR FULL AND SUFFICIENT CAUSE, WITH A PROVISION SUBSTANTIALLY AS QUOTED BY YOU IN THE SECOND PARAGRAPH OF YOUR LETTER. THERE RUNS THROUGH THE ENTIRE ACT A DISTINCTION BETWEEN THE REGULAR NAVY AND THE NAVAL RESERVE. UNDER SECTION 205 THE SECRETARY OF THE NAVY MAY REQUIRE ANY PERSON THEREAFTER ENLISTED IN THE REGULAR NAVY TO OBLIGATE HIMSELF TO SERVE IN THE FLEET RESERVE OF THE NAVAL RESERVE FOR A PERIOD OF FOUR YEARS FOLLOWING THE EXPIRATION OF HIS ENLISTMENT IN THE REGULAR NAVY AND THE STATUTE SPECIFICALLY PROVIDES WHAT SHALL BE PAID TO PERSONS SO "TRANSFERRED" TO THE FLEET RESERVE. THE OBLIGATION TO SERVE ON ACTIVE DUTY BY MEN TRANSFERRED TO THE FLEET RESERVE UNDER SECTION 205 IS NOT MUCH, IF ANY, LESS THAN THE OBLIGATION OF MEMBERS OF THE ORGANIZED RESERVES TO SERVE ON ACTIVE DUTY.

AS WAS SAID BY THE COMPTROLLER OF THE TREASURY IN THE CITED DECISIONS OF MAY 31, 1917, WITH REFERENCE TO THE ACT OF AUGUST 29, 1916, THE ASSIMILATION PROVIDED IN SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 IS AS TO THE PAY AND ALLOWANCES RECEIVED FOR SERVICES, NOT FOR ENTRY INTO THE SERVICE. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.