B-110424, MARCH 19, 1953, 32 COMP. GEN. 397

B-110424: Mar 19, 1953

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SERVICE PERFORMED WHILE IN DE FACTO STATUS ALIEN WHO ENLISTED IN MARINE CORPS RESERVE AT TIME THE LAW REQUIRED THAT THE RESERVE BE COMPOSED OF "MALE CITIZENS OF THE UNITED STATES" AND WHO SERVED ON ACTIVE DUTY IS NOT ENTITLED. PERSON WHO ENLISTED IN MARINE CORPS RESERVE AND WAS DISCHARGED. WAS SUBSEQUENTLY ORDERED TO AND DID GO ON EXTENDED ACTIVE DUTY MAY BE CONSIDERED AS HAVING PERFORMED SUCH DUTY IN A DE FACTO STATUS AND IS ENTITLED. 1953: REFERENCE IS MADE TO LETTER OF THE ACTING SECRETARY OF DEFENSE. REQUESTING DECISION AS TO WHETHER MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO CREDIT FOR TIME SERVED IN A DE FACTO STATUS IN THE COMPUTATION OF CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES.

B-110424, MARCH 19, 1953, 32 COMP. GEN. 397

PAY - SERVICE CREDITS - ILLEGAL SERVICE; SERVICE PERFORMED WHILE IN DE FACTO STATUS ALIEN WHO ENLISTED IN MARINE CORPS RESERVE AT TIME THE LAW REQUIRED THAT THE RESERVE BE COMPOSED OF "MALE CITIZENS OF THE UNITED STATES" AND WHO SERVED ON ACTIVE DUTY IS NOT ENTITLED, UPON SUBSEQUENT LEGAL ENLISTMENT IN REGULAR MARINE CORPS, TO SERVICE CREDITS FOR PERIOD OF ILLEGAL SERVICE. PERSON WHO ENLISTED IN MARINE CORPS RESERVE AND WAS DISCHARGED, WITHOUT HAVING PERFORMED ANY ACTIVE DUTY, BUT WHO, NOTWITHSTANDING SUCH DISCHARGE, WAS SUBSEQUENTLY ORDERED TO AND DID GO ON EXTENDED ACTIVE DUTY MAY BE CONSIDERED AS HAVING PERFORMED SUCH DUTY IN A DE FACTO STATUS AND IS ENTITLED, UPON SUBSEQUENT ENLISTMENT IN REGULAR MARINE CORPS, TO COUNT SUCH SERVICE IN COMPUTING HIS CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE MARCH 19, 1953:

REFERENCE IS MADE TO LETTER OF THE ACTING SECRETARY OF DEFENSE, DATED JUNE 21, 1952, REQUESTING DECISION AS TO WHETHER MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO CREDIT FOR TIME SERVED IN A DE FACTO STATUS IN THE COMPUTATION OF CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES, WITHIN THE MEANING OF SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, AND "FOR FUTURE BENEFITS.'

SECTION 201 OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, PROVIDES FOR INCREASED PAY TO MEMBERS OF THE UNIFORMED SERVICES BY REASON OF THE COMPLETION OF DEFINITE PERIODS OF ,CUMULATIVE YEARS OF SERVICE.' SECTION 202 PROVIDES THAT IN THE COMPUTATION OF "CUMULATIVE YEARS OF SERVICE" THERE SHALL BE INCLUDED, INTER ALIA,"FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED * * * IN THE MARINE CORPS RESERVE * * *.' IT IS APPARENT THAT THESE PROVISIONS FOR INCREASED PAY BY REASON OF PRIOR SERVICE ARE INTENDED TO ACCOMPLISH THE SAME PURPOSE AS WAS DONE BY EARLIER STATUTES PROVIDING LONGEVITY PAY, WHICH HAS BEEN DEFINED AS REPRESENTING "A PERCENTUM INCREASE IN THE CURRENTLY ACCRUING BASE PAY WHICH ENLISTED MEN ARE ENTITLED TO RECEIVE AFTER COMPLETING A CERTAIN AMOUNT OF SERVICE.' B-51622, NOVEMBER 5, 1945. CONSIDERING THE SIMILARITY OF THE TWO STATUTES, IT IS CONSIDERED THAT PERTINENT DECISIONS RELATING TO LONGEVITY PAY ARE PROPERLY FOR CONSIDERATION HERE.

IN CONNECTION WITH THE REQUEST FOR DECISION, TWO EXAMPLES ARE GIVEN. THE FIRST, PRIVATE A, A CUBAN ALIEN, WITHOUT DISCLOSING THAT HE WAS AN ALIEN, WAS PURPORTEDLY ENLISTED IN THE MARINE CORPS RESERVE ON FEBRUARY 23, 1943, WAS ASSIGNED TO EXTENDED ACTIVE DUTY ON MAY 12, 1943, AND SERVED ON SUCH DUTY UNTIL HIS DISCHARGE ON JANUARY 11, 1946. THE LAW IN EFFECT ON FEBRUARY 23, 1943, THAT IS, SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176--- MADE APPLICABLE TO THE MARINE CORPS RESERVE BY SECTION 2 OF THE SAID ACT, 52 STAT. 1175--- PROVIDED THAT THE NAVAL RESERVE SHOULD BE COMPOSED OF "MALE CITIZENS OF THE UNITED STATES," ETC. PRIVATE A ENLISTED IN THE REGULAR MARINE CORPS ON NOVEMBER 29, 1946, WAS DISCHARGED ON NOVEMBER 28, 1949, ENLISTED ON NOVEMBER 29, 1949, 1949, WAS DISCHARGED ON NOVEMBER 29, 1950, REENLISTED ON NOVEMBER 30, 1950, AND IS STILL SERVING. APPARENTLY, THERE WAS NO STATUTORY BAR DURING THE PERIOD NOVEMBER 29, 1946, TO NOVEMBER 30, 1950, TO THE ENLISTMENT OF ALIENS IN THE REGULAR MARINE CORPS. THE QUESTION PRESENTED IS WHETHER PRIVATE IS ENTITLED, IN THE COMPUTATION OF HIS PAY AS A MEMBER OF THE REGULAR MARINE CORPS, TO INCLUDE IN HIS CUMULATIVE YEARS OF SERVICE CREDIT FOR THE PERIOD FEBRUARY 23, 1943, TO JANUARY 11, 1946.

THE ENLISTMENT OF PRIVATE A IN THE MARINE CORPS RESERVE WAS, IN EFFECT, PROHIBITED BY LAW. HIS SITUATION IN THAT RESPECT IS COMPARABLE TO THE CASE CONSIDERED IN DECISION OF THIS OFFICE DATED APRIL 6, 1944, B-40373, 23 COMP. GEN. 755, WHICH CONCLUDED THAT A PERSON WHO ENTERED INTO A CONTRACT OF ENLISTMENT IN THE NATIONAL GUARD BEFORE HE REACHED THE AGE OF EIGHTEEN--- THE MINIMUM AGE AUTHORIZED BY LAW--- AND WHO REMAINED IN THE SERVICE AFTER HE REACHED THAT AGE, COULD COUNT FOR LONGEVITY PAY PURPOSES ONLY THAT PORTION OF HIS SERVICE WHICH WAS SUBSEQUENT TO HIS REACHING THE AUTHORIZED STATUTORY AGE FOR ENLISTMENT. IRRESPECTIVE OF WHETHER PRIVATE A MAY BE VIEWED AS HAVING SERVED IN A DE FACTO STATUS, IT MAY BE CONCLUDED THAT THE CONGRESS INTENDED TO AUTHORIZE CREDIT AND INCREASE PAY FOR SERVICE PROHIBITED BY LAW. THAT IS, THE LAW MAY NOT BE APPLIED AS INTENDING TO REWARD THAT WHICH THE LAW PROHIBITS. IT IS HELD, ACCORDINGLY, THAT PRIVATE A IS NOT ENTITLED, IN THE COMPUTATION OF HIS CUMULATIVE YEARS OF SERVICE UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, TO INCLUDE THE LEGALLY PROHIBITED SERVICE IN THE MARINE CORPS RESERVE DURING THE PERIOD INDICATED ABOVE.

THE SECOND EXAMPLE GIVEN IS THAT OF PRIVATE B, A CITIZEN OF THE UNITED STATES, WHO ENLISTED IN THE MARINE CORPS RESERVE ON JUNE 23, 1948, AND WAS DISCHARGED THEREFROM ON JUNE 22, 1950, HAVING PERFORMED NO ACTIVE DUTY. NOTWITHSTANDING SUCH DISCHARGE, ORDERS WERE ISSUED ASSIGNING PRIVATE B TO EXTENDED ACTIVE DUTY EFFECTIVE JULY 24, 1950. PRIVATE B COMPLIED WITH SUCH ORDERS AND REMAINED ON ACTIVE DUTY UNTIL HIS RELEASE ON MARCH 30, 1952, AFTER WHICH IT WAS DISCOVERED THAT HE HAD BEEN DISCHARGED ON JUNE 22, 1950. PRIVATE B ENLISTED IN THE REGULAR MARINE CORPS ON APRIL 1, 1952, AND CURRENTLY IS SERVING IN THAT ENLISTMENT. THE QUESTION PRESENTED IS WHETHER HE IS ENTITLED, IN THE COMPUTATION OF HIS PAY UNDER THE LATTER ENLISTMENT, TO SERVICE CREDIT FOR THE PERIOD JULY 24, 1950, TO MARCH 30, 1952.

IN BENNETT V. UNITED STATES, 19 C.1CLS. 379, IT WAS HELD THAT STATUTORY PROVISIONS FOR LONGEVITY PAY INTENDED A REWARD FOR LONG CONTINUED ACTUAL SERVICE, AND THAT IT MATTERED NOT WHETHER AN OFFICER SERVED AS SUCH DE JURE OR DE FACTO. ALSO, SEE PALEN V. UNITED STATES, 19 C.CLS. 389. THE RULE LAID DOWN IN THE ABOVE TWO CASES WOULD APPLY WITH EQUAL FORCE IN THE CASE OF A DE FACTO ENLISTED STATUS, AND THERE ARE STATEMENTS IN BOTH CASES INDICATING THAT IT WOULD SO APPLY. ALSO, SEE A-31593, JULY 30, 1930.

IT REASONABLY APPEARS THAT PRIVATE B'S SERVICE FROM JUNE 24, 1950, TO MARCH 30, 1952, WAS PERFORMED IN GOOD FAITH IN THE BELIEF BY HIM AND BY HIS SUPERIOR OFFICERS THAT HE LEGALLY WAS OBLIGATED TO RENDER SUCH SERVICE. HOWEVER THAT MAY BE, AT LEAST SUCH SERVICE WAS NOT PROHIBITED BY LAW AND WAS RENDERED IN A DE FACTO ENLISTED STATUS. IT IS CONCLUDED, THEREFORE, THAT PRIVATE B IS ENTITLED, IN THE COMPUTATION OF HIS CUMULATIVE YEARS OF SERVICE FOR THE PURPOSE OF SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, TO INCLUDE THE PERIOD OF HIS SERVICE, JULY 24, 1950, TO MARCH 30, 1952, IN A DE FACTO STATUS IN THE MARINE CORPS RESERVE.

THE REFERENCE IN THE REQUEST FOR DECISION TO "FUTURE BENEFITS," BY REASON OF DE FACTO SERVICE, IS IN SUCH GENERAL TERMS THAT A DECISION THEREON MAY NOT BE RENDERED.