B-134022, DECEMBER 17, 1957, 37 COMP. GEN. 406

B-134022, DECEMBER 17, 1957, 37 COMP. GEN. 406

MILITARY PERSONNEL - UNDERAGE ENLISTMENTS - PAY RIGHTS - GRATUITY PAYMENT ALTHOUGH AN ENLISTED MEMBER OF THE NATIONAL GUARD WHO WAS RELEASED FROM DUTY WHEN IT WAS DETERMINED THAT HE WAS UNDER 17 YEARS OF AGE DID NOT HAVE A STATUS DURING HIS MILITARY SERVICE ENTITLING HIM TO ACCRUE PAY AND ALLOWANCES, HE MAY RETAIN THE PAY AND ALLOWANCES RECEIVED. A NATIONAL GUARD ENLISTED MEMBER WHO FALSELY STATES HIS AGE ON AN APPLICATION FOR ENLISTMENT HAS IN EFFECT A FRADULENT ENLISTMENT SO THAT HE MAY BE PAID THE $25 GRATUITY AUTHORIZED IN PARAGRAPH 8, ARMY REGULATIONS 35-1530, PROVIDED THAT A MEMBER'S UNIT COMMANDER DETERMINES THAT HE WOULD OTHERWISE BE WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS AND THAT THE PAY ORDER CONTAINS A NOTATION TO THAT EFFECT.

TO LIEUTENANT COLONEL C. O. LOGAN, DEPARTMENT OF THE ARMY, DECEMBER 17, 1957:

BY SECOND ENDORSEMENT DATED OCTOBER 3, 1957, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF AUGUST 29, 1957, PRESENTING FOR DECISION A MILITARY PAY ORDER STATED IN FAVOR OF MR. ENNIS L. HYMAN, NG 24 545 219, FOR PAY AND ALLOWANCES, INCLUDING A $25 DONATION INCIDENT TO HIS RELEASE FROM MILITARY CONTROL BY REASON OF MINORITY.

YOU STATE THAT MR. HYMAN WAS ORDERED TO 11 WEEKS ACTIVE DUTY TRAINING ON JUNE 1, 1957, AS AN ENLISTED MEMBER OF THE NATIONAL GUARD UNDER RESERVE ENLISTMENT PROGRAM. YOU FURTHER STATE THAT HE RECEIVED PAY AND ALLOWANCES THROUGH JUNE 30, 1957; THAT HE WAS ABSENT WITHOUT LEAVE FROM JULY 23 TO 31, 1957; AND THAT HE WAS RETURNED TO MILITARY CONTROL ON AUGUST 1, 1957. THE MILITARY PAY ORDER PROVIDES FOR THE DISCONTINUANCE OF ALL PAY AND ALLOWANCES ON AND AFTER JULY 29, 1957, THE DATE IT WAS DETERMINED THAT THE ENLISTED MAN WAS A MINOR, AND STATES THAT HE WAS RELEASED FROM MILITARY CONTROL PURSUANT TO LETTER ORDER NO. 8-6, HEADQUARTERS, FORT JACKSON, SOUTH CAROLINA, DATED AUGUST 1, 1957. A COPY OF THAT ORDER WAS NOT SUBMITTED HERE WITH YOUR REQUEST FOR ADVANCE DECISION. YOU QUOTE FROM A MESSAGE (COPY OF WHICH WAS ENCLOSED) FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED JULY 19, 1957, CONCERNING THE CASE OF RICHARD L. HICKS, WHEREIN IT IS STATED, IN PART, THAT "IN VIEW OF U.S. COURT OF APPEALS DECISION A MINOR UNDER 17 YEARS OF AGE IS INCAPABLE OF ENTERING INTO A VALID ENLISTMENT.' IN THAT CONNECTION, THE OFFICE OF THE CHIEF OF FINANCE HAS INFORMALLY ADVISED US THAT THE DECISION IN QUESTION HOLD THAT A MINOR UNDER 17 YEARS OF AGE IS NOT LEGALLY COMPETENT TO SERVE IN THE MILITARY SERVICE, WAS RENDERED BY THE UNITED STATES COURT OF MILITARY APPEALS, IN THE CASE OF UNITED STATES V. BLANTON, VOL. 7, NO. 27, PAGE 664 ( ADVANCE OPINIONS), DECIDED MARCH 15, 1957. THE MESSAGE PRESCRIBED THE PROCEDURE TO BE FOLLOWED IN RELEASING HICKS FROM MILITARY CONTROL AND STATED THAT HE WAS ENTITLED TO PAY AND ALLOWANCES ONLY UP TO THE DATE IT WAS DETERMINED THAT HIS ENLISTMENT WAS VOID, TRANSPORTATION IN KIND TO HOME OF RECORD, AND A GRATUITY PAYMENT OF $25.

ON THE BASIS OF THE COURT DECISION AND THE PROCEDURE PRESCRIBED IN THE MESSAGE, YOU ASK WHETHER MR. HYMAN IS ENTITLED TO RECEIVE PAY AND ALLOWANCES TO INCLUDE THE DATE PRIOR TO THE DATE MINORITY WAS DETERMINED, AND IF NOT, WHETHER HE MAY RETAIN THE PAY AND ALLOWANCES RECEIVED THROUGH JUNE 30, 1957. YOU ALSO ASK UNDER WHAT REGULATION THE $25 GRATUITY PAY IS TO BE GRANTED, IF AUTHORIZED.

THE MILITARY PAY ORDER CONTAINS THE STATEMENT "ENLISTMENT VOID PER PARA 5 AR 615-362.' PARAGRAPH 5 OF THE CITED REGULATIONS LISTS THE TYPE OF DOCUMENTS REQUIRED TO SUPPORT AN APPLICATION FOR DISCHARGE BECAUSE OF MINORITY. WHILE THE RECORD BEFORE US DOES NOT SHOW WHETHER AT ANY TIME DURING THE PERIOD OF HIS ACTIVE DUTY MR. HYMAN REACHED HIS 17TH BIRTHDAY, IT IS ASSUMED THAT HE HAD NOT, SINCE IT IS PROPOSED TO DISPOSE OF HIS CASE ALONG THE LINES OUTLINED IN THE HICK'S CASE, REFERRED TO IN THE ABOVE MESSAGE.

A PERSON MUST BE AT LEAST 17 YEARS OF AGE TO BE ELIGIBLE FOR ORIGINAL ENLISTMENT IN THE NATIONAL GUARD. SEE THE ACT OF AUGUST 10, 1956, 70A STAT. 604, 32 U.S.C. 313. WE KNOW OF NO AUTHORITY WHICH WOULD AUTHORIZE THE PAYMENT OF UNPAID PAY AND ALLOWANCES TO A PERSON UNDER 17 YEARS OF AGE FOR SERVICE PERFORMED PRIOR TO THE DATE A DETERMINATION WAS MADE THAT HIS ENLISTMENT WAS VOID. HAVING SERVED UNDER CIRCUMSTANCES WHICH DID NOT GIVE RISE TO A STATUS ENTITLING HIM TO PAY AND ALLOWANCES AND WHICH WERE THE RESULT OF HIS FALSE STATEMENT CONCERNING HIS AGE, NO RIGHT TO SUCH PAY AND ALLOWANCES COULD ACCRUE TO HIM. SEE IN THIS CONNECTION B-116598, JANUARY 27, 1954; B-117002, DECEMBER 10, 1953; AND B-96575, APRIL 5, 1951. HOWEVER, THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE NOT REQUIRED REFUND OF CORRECT AMOUNTS CURRENTLY PAID FOR SUCH SERVICE BEFORE DISCOVERY OF THE ACTUAL FACTS IN THE CASE. SEE B-8906, DATED MAY 23, 1940; A-80666, MARCH 31, 937; AND A-86592, JUNE 29, 1937. MR. HYMAN WAS NOT LEGALLY COMPETENT TO SERVE IN THE MILITARY SERVICE AND WHILE HE MAY RETAIN THE PAY AND ALLOWANCES RECEIVED BY HIM THROUGH JUNE 30, 1957, NO LEGAL RIGHT TO PAY AND ALLOWANCES ACCRUED AFTER THAT DATE.

WITH RESPECT TO THE $25 GRATUITY PAYMENT, SINCE IT APPEARS THAT MR. HYMAN FALSELY STATED HIS AGE ON AN APPLICATION FOR ENLISTMENT, THUS IN EFFECT CONSTITUTING A FRAUDULENT ENLISTMENT, HE COULD BE PAID SUCH GRATUITY UNDER THE PROVISIONS OF PARAGRAPH 8, ARMY REGULATIONS 35-1530, IN A SUM NOT EXCEEDING $25. SEE ALSO, TITLE III, PUBLIC LAW 85-117, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1958, 71 STAT. 313. HOWEVER, THE PAYMENT MAY BE MADE ONLY TO THOSE ENLISTED MEMBERS WHO "WOULD OTHERWISE BE WITHOUT FUNDS TO MEET THEIR IMMEDIATE NEEDS.' THE REGULATIONS REQUIRE A DETERMINATION BY THE MEMBER'S UNIT OR DETACHMENT COMMANDER AS TO THAT MATTER AND WHETHER PART OR ALL OF THE $25 IS NEEDED FOR THAT PURPOSE. ALSO IS REQUIRED THAT THE MILITARY PAY ORDER SUBSTANTIATING THE PAYMENT BEAR A NOTATION TO THE EFFECT THAT THE ENLISTED MEMBER IS WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS. THE MILITARY PAY ORDER SUBMITTED BY YOU DOES NOT CONTAIN SUCH NOTATION AND THERE IS NOTHING IN THE OTHER PAPERS SUBMITTED BY YOU WHICH SHOWS THAT THE REQUIREMENTS OF THE REGULATIONS HAVE BEEN MET IN OTHER RESPECTS.

ACCORDINGLY, ON THE PRESENT RECORD, NO ADDITIONAL AMOUNT IS PAYABLE TO MR. HYMAN AND THE MILITARY PAY ORDER AND ATTACHED PAPERS WILL BE RETAINED HERE.