B-152561, JANUARY 20, 1964, 43 COMP. GEN. 516

B-152561: Jan 20, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS CREDITABLE SERVICE IN DETERMINING COMPLETION OF 20 YEARS OF ACTIVE SERVICE UNDER 10 U.S.C. 1293 FOR RETIREMENT AS A WARRANT OFFICER. THE UNDERAGE ENLISTMENT IN THE REGULAR SERVICE WAS FRAUDULENT UNDER REGULATIONS THEN IN EFFECT. TO PROVIDE THAT ANY SERVICE CREDITABLE BUT FOR THE FACT THAT IT WAS PERFORMED UNDER AN ENLISTMENT BEFORE THE AGE PRESCRIBED BY LAW IS CREDITABLE SERVICE IN DETERMINING ELIGIBILITY FOR RETIREMENT AND COMPUTATION OF RETIRED PAY. 1964: REFERENCE IS MADE TO LETTER OF NOVEMBER 18. THE RECORD INDICATES THAT LIEUTENANT LEFTWICH WAS BORN ON FEBRUARY 3. HE WAS HONORABLY DISCHARGED FROM THAT ENLISTMENT ON AUGUST 8. ALSO WAS FRAUDULENT. HE WAS HONORABLY DISCHARGED ON DECEMBER 16.

B-152561, JANUARY 20, 1964, 43 COMP. GEN. 516

ENLISTMENTS - MINORITY - CREDITABLE SERVICE THE SERVICE IN BOTH THE COAST GUARD RESERVE AND REGULAR COAST GUARD UNDER FRAUDULENT MINORITY ENLISTMENTS PERFORMED BY A COMMISSIONED OFFICER SERVING UNDER A TEMPORARY APPOINTMENT AND HOLDING THE PERMANENT GRADE OF COMMISSIONED WARRANT OFFICER, W-2, IS CREDITABLE SERVICE IN DETERMINING COMPLETION OF 20 YEARS OF ACTIVE SERVICE UNDER 10 U.S.C. 1293 FOR RETIREMENT AS A WARRANT OFFICER, NOTWITHSTANDING THE MINORITY ENLISTMENT IN THE RESERVE VIOLATED 14 U.S.C. 302 (SUPP. I, 1940 ED.), AND THE UNDERAGE ENLISTMENT IN THE REGULAR SERVICE WAS FRAUDULENT UNDER REGULATIONS THEN IN EFFECT, 10 U.S.C. 1039, ADDED BY THE ACT OF AUGUST 25, 1961, TO PROVIDE THAT ANY SERVICE CREDITABLE BUT FOR THE FACT THAT IT WAS PERFORMED UNDER AN ENLISTMENT BEFORE THE AGE PRESCRIBED BY LAW IS CREDITABLE SERVICE IN DETERMINING ELIGIBILITY FOR RETIREMENT AND COMPUTATION OF RETIRED PAY, APPLYING NOT ONLY TO THE ACT GOVERNING THE ENLISTMENT IN THE RESERVE, BUT ALSO TO THE REGULATION UNDER WHICH THE MEMBER ENLISTED IN THE REGULAR SERVICE, THE REGULATION HAVING THE FORCE AND EFFECT OF LAW COMING WITHIN THE TERM "LAW" AS USED IN THE ACT, THE TERM BEING GENERIC RATHER THAN SPECIFIC.

TO THE SECRETARY OF THE TREASURY, JANUARY 20, 1964:

REFERENCE IS MADE TO LETTER OF NOVEMBER 18, 1963, AND ENCLOSURES FROM THE ASSISTANT SECRETARY OF THE TREASURY, SUBMITTING FOR ADVANCE DECISION THE QUESTION WHETHER, IN THE CIRCUMSTANCES SET FORTH BELOW, LIEUTENANT JAMES J. LEFTWICH, U.S. COAST GUARD, MAY BE PLACED ON THE RETIRED LIST OF THE COAST GUARD WITH APPROPRIATE PAY UNDER AUTHORITY OF 10 U.S.C. 1293 "UPON COMPLETION OF 20 YEARS ACTIVE SERVICE DURING NOVEMBER 1963?

THE RECORD INDICATES THAT LIEUTENANT LEFTWICH WAS BORN ON FEBRUARY 3, 1929. HE BEGAN HIS COAST GUARD SERVICE BY ENLISTING IN THE COAST GUARD RESERVE ON JULY 20, 1943, AT AGE 14, FALSIFYING HIS AGE AS 17 YEARS WITH PARENTAL KNOWLEDGE AND CONSENT. HE WAS HONORABLY DISCHARGED FROM THAT ENLISTMENT ON AUGUST 8, 1945, AS PHYSICALLY UNFIT.

HE REENLISTED ON DECEMBER 4, 1945 (PRIOR TO THE DATE THAT HE ATTAINED THE AGE OF 17), IN THE REGULAR COAST GUARD IN A SPECIAL TEMPORARY ENLISTMENT AS THEN AUTHORIZED IN 14 U.S.C. 206 (A) (1940 ED.), FOR 3 YEARS WITH A WAIVER OF DISABILITY. THIS ENLISTMENT, LIKE HIS PRIOR ENLISTMENT IN THE COAST GUARD RESERVE, ALSO WAS FRAUDULENT, HAVING BEEN PROCURED BY AGAIN FALSIFYING HIS AGE WITH PARENTAL KNOWLEDGE AND CONSENT. HE WAS HONORABLY DISCHARGED ON DECEMBER 16, 1948.

HE REENLISTED IN THE REGULAR COAST GUARD ON DECEMBER 17, 1948, AND HE HAS REMAINED ON ACTIVE DUTY CONTINUOUSLY TO DATE, SERVING SINCE JANUARY 1, 1962, IN THE COMMISSIONED GRADE OF LIEUTENANT UNDER AN APPOINTMENT FOR TEMPORARY SERVICE. LIEUTENANT LEFTWICH HAS HELD THE PERMANENT GRADE OF COMMISSIONED WARRANT OFFICER, W-2, IN THE U.S. COAST GUARD SINCE NOVEMBER 23, 1960, AND HE SEEKS TO BE RETIRED AS SOON AS HE HAS MET THE CONDITIONS PRESCRIBED IN 10 U.S.C. 1293.

AS PREVIOUSLY INDICATED, THE ENLISTMENT OF JULY 20, 1943, IN THE COAST GUARD RESERVE AND THE SPECIAL TEMPORARY ENLISTMENT IN THE REGULAR COAST GUARD ON DECEMBER 4, 1945, WERE FRAUDULENTLY PROCURED WITH PARENTAL ASSISTANCE BY MISREPRESENTING HIS AGE IN EACH INSTANCE. THE ENLISTMENT OF JULY 20, 1943, IN THE COAST GUARD RESERVE WAS IN VIOLATION OF THE PROVISIONS OF 14 U.S.C. 302 (SUPP. I, 1940 ED.), PROVIDING IN PERTINENT PART THAT THE COAST GUARD RESERVE "SHALL BE COMPOSED OF MALE CITIZENS OF THE UNITED STATES * * * BETWEEN THE AGES OF SEVENTEEN AND SIXTY-FOUR * * *.' HIS SERVICE IN THE COAST GUARD RESERVE THEREFORE WOULD NOT BE CREDITABLE FOR RETIREMENT PURPOSES EXCEPT THAT SECTION 1039, ADDED TO TITLE 10, U.S. CODE, BY THE ACT OF AUGUST 25, 1961, PUBLIC LAW 87-165, 75 STAT. 401, PROVIDES AS FOLLOWS:

FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, ENTITLEMENT TO RETIRED OR RETAINER PAY, AND YEARS OF SERVICE IN COMPUTING RETIRED OR RETAINER PAY OF A MEMBER OF THE ARMED FORCES, ANY SERVICE WHICH WOULD BE CREDITABLE BUT FOR THE FACT THAT IT WAS PERFORMED BY HIM UNDER AN ENLISTMENT OR INDUCTION ENTERED INTO BEFORE HE ATTAINED THE AGE PRESCRIBED BY LAW FOR THAT ENLISTMENT OR INDUCTION, SHALL BE CREDITED.

UNDER SECTION 2 OF THAT ACT THE ABOVE-QUOTED STATUTORY PROVISIONS ARE APPLICABLE TO SERVICE PERFORMED AND RETIREMENTS OR TRANSFERS TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE EFFECTED BEFORE AND AFTER THE DATE THAT LAW TOOK EFFECT. HENCE, THE SERVICE PERFORMED BY LIEUTENANT LEFTWICH IN THE COAST GUARD RESERVE UNDER HIS ENLISTMENT OF JULY 20, 1943, IS CREDITABLE SERVICE FOR RETIREMENT PURPOSES UNDER THE PROVISIONS OF 10 U.S.C. 1293, AS AMENDED.

THEREFORE, THE QUESTION PRESENTED IN THE LETTER OF NOVEMBER 18, 1963, IS DIRECTED ENTIRELY TO THE SERVICE PERFORMED BY LIEUTENANT LEFTWICH UNDER THE SPECIAL TEMPORARY ENLISTMENT OF DECEMBER 4, 1945. DOUBT IN THE MATTER ARISES BY REASON OF THE FACT THAT THERE IS NO MINIMUM AGE LIMITATION EXPRESSLY PRESCRIBED BY LAW WITH RESPECT TO ENLISTMENTS IN THE REGULAR COAST GUARD. IN THAT CONNECTION IT APPEARS THAT THE MATTER OF AGE QUALIFICATION FOR ENLISTMENT IN THE REGULAR COAST GUARD HAS BEEN GOVERNED EXCLUSIVELY BY ADMINISTRATIVE REGULATIONS AND DEPARTMENTAL INSTRUCTIONS ISSUED FROM TIME TO TIME. IT IS OUR UNDERSTANDING THAT IN DECEMBER 1945, WHEN LIEUTENANT LEFTWICH ENLISTED IN THE REGULAR COAST GUARD IN A SPECIAL TEMPORARY ENLISTMENT AS THEN AUTHORIZED BY 14 U.S.C. 206 (A) (1940 ED.), THE AGE QUALIFICATION FOR SUCH AN ENLISTMENT AS ESTABLISHED BY ADMINISTRATIVE REGULATIONS WAS FROM 17 YEARS TO 35 YEARS. ALSO, WE UNDERSTAND THAT UNDER APPLICABLE COAST GUARD REGULATIONS AND INSTRUCTIONS THEN IN EFFECT (ARTICLE 536, COAST GUARD REGULATIONS, 1940, AS AMENDED JULY 1941, AND ARTICLE 4083, RENUMBERED 4693, COAST GUARD PERSONNEL INSTRUCTIONS, 1934 ED., AS AMENDED AND IN EFFECT IN 1945) AN UNDERAGE ENLISTMENT WAS A FRAUDULENT ENLISTMENT, AND TIME SERVED UNDER SUCH A FRAUDULENT ENLISTMENT WHEN THE ENLISTMENT WAS COMPLETED BEFORE THE GOVERNMENT GAINED KNOWLEDGE OF THE FRAUD WAS NOT CREDITABLE TIME. THE RECORD DISCLOSES THAT THE COAST GUARD AUTHORITIES DID NOT LEARN OF LIEUTENANT LEFTWICH'S CORRECT BIRTH DATE UNTIL JUNE 1956. THUS, UNDER THE EXPRESS TERMS OF THE REGULATIONS AND INSTRUCTIONS ABOVE REFERRED TO, THE TIME SERVED BY HIM UNDER THE FRAUDULENT ENLISTMENT OF DECEMBER 4, 1945, WAS NOT CREDITABLE TIME.

SECTION 35 (A), TITLE 14, U.S.C. (1940 ED., SUPP. I), REFLECTING THE PERTINENT STATUTORY PROVISIONS THAT WERE IN FORCE IN DECEMBER 1945, PROVIDED IN PERTINENT PART AS FOLLOWS:

ALL PERSONS COMPOSING THE ENLISTED FORCE OF THE COAST GUARD SHALL BE ENLISTED FOR A TERM NOT TO EXCEED THREE (FOUR) YEARS, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, WHO SHALL PREPARE REGULATIONS GOVERNING SUCH ENLISTMENTS AND FOR THE GENERAL GOVERNMENT OF THE SERVICE. * * *.

IT IS APPARENT THAT THE COAST GUARD REGULATIONS ESTABLISHING THE AGE QUALIFICATIONS (17 YEARS TO 35 YEARS) FOR ENLISTMENTS IN THE REGULAR COAST GUARD IN DECEMBER 1945 WERE PROMULGATED AND ISSUED PURSUANT TO THE STATUTORY AUTHORIZATION CONTAINED IN 14 U.S.C. 35 (A) (1940 ED., SUPP. I) QUOTED ABOVE. THOSE REGULATIONS THEREFORE WERE STATUTORY AND HAD THE FORCE AND EFFECT OF LAW.

IN VIEW OF THE CLEAR INTENT AND PURPOSE OF PUBLIC LAW 87-165 (10 U.S.C. 1039) TO AUTHORIZE CREDIT FOR RETIREMENT AND COMPUTATION OF RETIRED PAY OF ALL SERVICE IN AN UNDERAGE ENLISTMENT OR INDUCTION OTHERWISE CREDITABLE, THE TERM "LAW" AS USED IN THE PHRASE "AGE PRESCRIBED BY LAW" BEING GENERAL IN NATURE AND BROAD IN ITS SCOPE IS GENERIC RATHER THAN SPECIFIC. ACCORDINGLY, THE PERIOD OF SERVICE PERFORMED BY LIEUTENANT LEFTWICH IN THE REGULAR COAST GUARD IN THE UNDERAGE ENLISTMENT OF DECEMBER 4, 1945, MAY BE INCLUDED IN DETERMINING HIS SERVICE CREDITABLE FOR RETIREMENT AS A WARRANT OFFICER UNDER AUTHORITY OF 10 U.S.C. 1293.