B-129522, NOVEMBER 29, 1956, 36 COMP. GEN. 439

B-129522: Nov 29, 1956

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REENLISTS WITHIN 3 MONTHS AFTER DISCHARGE BECAUSE OF MISREPRESENTATION OF HIS AGE MAY NOT HAVE THE FIRST ENLISTMENT CONSIDERED A VALID ENLISTMENT BY REASON OF THE SPECIAL STATUTES WHICH AUTHORIZE PAY AND ALLOWANCES AND SERVICE CREDIT FOR UNDERAGE ENLISTMENTS. 1956: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1. REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO PAY SERGEANT ROBERT J. YOU STATE THAT YOU HAVE PAID THE MEMBER A REENLISTMENT BONUS OF $319.80 COMPUTED ON THE BASIS THAT HIS ENLISTMENT OF SEPTEMBER 11. IS A "SECOND" REENLISTMENT WITHIN THE MEANING OF THE 1954 ACT. IT APPEARS THAT SERGEANT BERGERON WAS INDUCTED INTO THE UNITED STATES MARINE CORPS ON DECEMBER 4. AT WHICH TIME HE WAS UNDER THE ADMINISTRATIVE MINIMUM AGE FOR ENLISTMENT (17 YEARS).

B-129522, NOVEMBER 29, 1956, 36 COMP. GEN. 439

MILITARY PERSONNEL - MINORITY ENLISTMENTS - REENLISTMENT BONUS PAYMENTS A MEMBER OF THE UNIFORMED SERVICES WHO, UPON REACHING THE MINIMUM SERVICE AGE, REENLISTS WITHIN 3 MONTHS AFTER DISCHARGE BECAUSE OF MISREPRESENTATION OF HIS AGE MAY NOT HAVE THE FIRST ENLISTMENT CONSIDERED A VALID ENLISTMENT BY REASON OF THE SPECIAL STATUTES WHICH AUTHORIZE PAY AND ALLOWANCES AND SERVICE CREDIT FOR UNDERAGE ENLISTMENTS, NOR MAY THE FIRST ENLISTMENT BE CONSIDERED FOR REENLISTMENT BONUS PAYMENTS.

TO CAPTAIN L. W. HOPKINS, UNITED STATES MARINE CORPS, NOVEMBER 29, 1956:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1956, WITH ENCLOSURE, REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO PAY SERGEANT ROBERT J. BERGERON, 1261993, U.S. MARINE CORPS, THE DIFFERENCE BETWEEN THE AMOUNT OF REENLISTMENT BONUS AUTHORIZED FOR A "FIRST" REENLISTMENT AND THAT AUTHORIZED FOR A "SECOND" REENLISTMENT, UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. 239, INCIDENT TO HIS REENLISTMENT FOR THREE YEARS ON SEPTEMBER 11, 1956. YOU STATE THAT YOU HAVE PAID THE MEMBER A REENLISTMENT BONUS OF $319.80 COMPUTED ON THE BASIS THAT HIS ENLISTMENT OF SEPTEMBER 11, 1956, IS A "SECOND" REENLISTMENT WITHIN THE MEANING OF THE 1954 ACT.

IT APPEARS THAT SERGEANT BERGERON WAS INDUCTED INTO THE UNITED STATES MARINE CORPS ON DECEMBER 4, 1951, AT WHICH TIME HE WAS UNDER THE ADMINISTRATIVE MINIMUM AGE FOR ENLISTMENT (17 YEARS), AND THAT WHEN HIS CORRECT AGE WAS DISCOVERED HE WAS HONORABLY DISCHARGED FROM THE MARINE CORPS ON JUNE 13, 1952, UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 24, 1945, 59 STAT. 536 (10 U.S.C. 6292) AND PARAGRAPH 10274, MARINE CORPS MANUAL. UPON REACHING THE ADMINISTRATIVE MINIMUM AGE FOR ENLISTMENT, AND WITHIN 3 MONTHS FOLLOWING HIS DISCHARGE ON JUNE 13, 1952, SERGEANT BERGERON ENLISTED IN THE MARINE CORPS ON SEPTEMBER 11, 1952, FOR A PERIOD OF FOUR YEARS. HE WAS NOT PAID A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238, ON ACCOUNT OF SUCH "REENLISTMENT.'

SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (37 U.S.C. 238 (A) (, AUTHORIZES THE PAYMENT OF A LUMP-SUM REENLISTMENT BONUS TO MEMBERS OF THE UNIFORMED SERVICES WHO REENLIST IN THE REGULAR COMPONENT OF THEIR SERVICE WITHIN 3 MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION FROM ANY COMPONENT OF SUCH SERVICE. THE ACT OF SEPTEMBER 24, 1945, CITED ABOVE, AUTHORIZES THE SECRETARY OF THE NAVY, UNDER REGULATIONS PRESCRIBED BY HIM, TO DISCHARGE FROM THE NAVY OR MARINE CORPS, WITH PAY AND ALLOWANCES AND DISCHARGE CERTIFICATE FOUND APPROPRIATE FOR HIS SERVICE AFTER ENLISTMENT, ANY ENLISTED PERSON WHO SECURES ENLISTMENT BY REASON OF FALSE STATEMENT OF AGE ON HIS APPLICATION FOR ENLISTMENT AND THUS ENLISTS WHILE UNDER THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT. SECTION 202 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, 37 U.S.C. 223 (C), PROVIDES FOR THE INCLUSION IN THE COMPUTATION OF SERVICE FOR BASIC PAY PURPOSES ANY SERVICE PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES PRIOR TO THEIR ATTAINMENT OF 18 YEARS OF AGE.

SECTION 4 OF THE SELECTIVE SERVICE ACT OF 1948, AS AMENDED, 50 U.S.C. APP. 454, PROVIDES, AMONG OTHER THINGS, FOR THE VOLUNTARY INDUCTION INTO THE ARMED FORCES OF ANY PERSON BETWEEN THE AGES OF 18 AND 26 FOR A PERIOD OF 24 CONSECUTIVE MONTHS, UNLESS SOONER DISCHARGED, RELEASED, OR TRANSFERRED (SEE PARAGRAPH (C) (3) ( AND FOR THE VOLUNTARY INDUCTION OF ANY PERSON WHO HAS ATTAINED THE AGE OF 17 YEARS IF HE HAS THE WRITTEN CONSENT OF HIS PARENT OR GUARDIAN (SEE PARAGRAPH (C) (4) (, AND IT AUTHORIZES PAYMENT TO INDUCTEES OF THE SAME PAY, ALLOWANCES, AND OTHER BENEFITS AS PROVIDED BY LAW FOR OTHER ENLISTED MEN (SEE PARAGRAPH (E) ). THE ADMINISTRATIVE MINIMUM AGE FOR ENLISTMENT OF A MAN IN THE MARINE CORPS IS 17 YEARS AND THE DISCHARGE OF ANY PERSON WHO IS UNDER THAT AGE IS REQUIRED. SEE PARAGRAPH 10274, MARINE CORPS MANUAL.

IT UNIFORMLY HAS BEEN HELD THAT AN ENLISTMENT CONTRACT ENTERED INTO UNDER CIRCUMSTANCES INVOLVING THE CONCEALMENT OR MISREPRESENTATION BY THE ENLISTED PERSON OF FACTS OR INFORMATION WHICH, IF ORIGINALLY REVEALED, WOULD HAVE DISQUALIFIED HIM FROM ENLISTMENT IS VOIDABLE AT THE OPTION OF THE GOVERNMENT; THAT THE PERSON'S DISCHARGE CONSTITUTES AN AVOIDANCE OF THE CONTRACT OF ENLISTMENT; AND THAT HE IS ENTITLED ONLY TO SUCH RIGHTS AS ARE SPECIFICALLY AUTHORIZED BY STATUTE. 9 COMP. GEN. 436. WHILE THE CONGRESS HAS AUTHORIZED THE PAYMENT OF PAY AND ALLOWANCES TO SUCH A PERSON TO THE DATE OF DISCHARGE; TRANSPORTATION AND SUBSISTENCE TO HIS HOME; AND THE COUNTING OF SERVICE PRIOR TO THE ATTAINMENT OF 18 YEARS OF AGE FOR LONGEVITY PURPOSES, SUCH SPECIAL STATUTORY ENACTMENTS, STANDING ALONE, DO NOT VALIDATE AN ENLISTMENT WHICH HAS BEEN AVOIDED BY THE GOVERNMENT BECAUSE OF FRAUD IN ITS INCEPTION. HENCE, SUCH AN ENLISTMENT MAY NOT BE CONSIDERED AN "ENLISTMENT" FOR THE PURPOSE OF COMPUTING OR PAYING A REENLISTMENT BONUS UNDER EITHER SECTION 207 OR SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. ACCORDINGLY, YOU ARE AUTHORIZED TO CREDIT SERGEANT BERGERON'S PAY ACCOUNT WITH AN AMOUNT OF REENLISTMENT BONUS COMPUTED ON THE BASIS THAT HIS ENLISTMENT OF SEPTEMBER 11, 1956, WAS A "FIRST" REENLISTMENT WITHIN THE MEANING OF SECTION 208 OF THE CAREER COMPENSATION ACT, SUBJECT, OF COURSE, TO A DEDUCTION OF THE AMOUNT OF $319.80 ALREADY PAID TO HIM INCIDENT TO SUCH ENLISTMENT.