B-16543, MAY 14, 1941, 20 COMP. GEN. 775

B-16543, MAY 14, 1941, 20 COMP. GEN. 775

ENLISTMENT ALLOWANCE - FLYING CADETS A FLYING CADET BEING AN ENLISTED MAN WHOSE ALLOWANCES--- OTHER THAN RATION ALLOWANCE--- ARE ASSIMILATED TO THOSE OF AN ENLISTED MAN OF THE SIXTH GRADE IS ENTITLED, UPON REENLISTMENT IN THE AIR CORPS WITHIN 3 MONTHS FROM THE DATE OF HIS DISCHARGE AS A FLYING CADET, TO THE ENLISTMENT ALLOWANCE PROVIDED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, FOR AN ENLISTED MAN OF THE SIXTH GRADE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. J. F. CONNELL, UNITED STATES ARMY, MAY 14, 1941:

THERE HAS BEEN RECEIVED BY FIRST INDORSEMENT FROM THE CHIEF OF FINANCE DATED APRIL 25, 1941, YOUR LETTER OF APRIL 1, 1941, AS FOLLOWS:

1. ENCLOSED HEREWITH VOUCHER IN FAVOR OF PRIVATE AUGUST DASKOVICH, AS NO. 6991382, AIR CORPS DETACHMENT, PORT COLUMBUS, COLUMBUS, OHIO, FOR ENLISTMENT ALLOWANCE OF $25.00 UNDER THE ACT OF JUNE 10, 1922, FOR ADVANCE DECISION AS TO PROPRIETY OF PAYMENT.

2. PRIVATE DASKOVICH ENLISTED AS A FLYING CADET ON JANUARY 2, 1940, WAS HONORABLY DISCHARGED AS A FLYING CADET ON FEBRUARY 10, 1941, BY REASON OF FLYING DEFICIENCY AND REENLISTED IN THE AIR CORPS ON MARCH 10, 1941.

3. IN VIEW OF PARAGRAPH 2, ARMY REGULATIONS 35-2580, DOUBT EXISTS AS TO LEGALITY OF PAYMENT.

4. VOUCHER HAS BEEN SUBMITTED TO ME AS A DISBURSING OFFICER OF THE UNITED STATES ARMY FOR PAYMENT UNDER THE PROVISIONS OF PARAGRAPH 9, ARMY REGULATIONS 35-2420, AND IS FORWARDED TO YOUR OFFICE IN ACCORDANCE WITH PARAGRAPH 23, FINANCE CIRCULAR B-1, DATED JULY 19, 1940.

SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, 10 U.S.C. 633, READS, IN PART, AS FOLLOWS:

* * * ON AND AFTER JULY 1, 1922, AN ENLISTMENT ALLOWANCE EQUAL TO $50 MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED, 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, 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. * * *

THE ACT OF JULY 11, 1919, 41 STAT. 109, PROVIDES AS FOLLOWS:

THE SECRETARY OF WAR IS HEREBY AUTHORIZED AND DIRECTED TO ESTABLISH AND MAINTAIN AT ONE OR MORE ESTABLISHED FLYING SCHOOLS COURSES OF INSTRUCTION FOR AVIATION STUDENTS.

AVIATION STUDENTS SHALL BE ENLISTED IN OR APPOINTED TO THE GRADE OF FLYING CADET, AIR SERVICE, WHICH GRADE IS HEREBY ESTABLISHED: PROVIDED, THAT THE TOTAL NUMBER OF FLYING CADETS SHALL NOT AT ANY TIME EXCEED ONE THOUSAND THREE HUNDRED. THE BASE PAY OF A FLYING CADET SHALL BE $75 PER MONTH, INCLUDING EXTRA PAY FOR FLYING RISK AS PROVIDED BY LAW. THE RATION ALLOWANCE OF A FLYING CADET SHALL NOT EXCEED $1 PER DAY, AND HIS OTHER ALLOWANCES SHALL BE THOSE OF A PRIVATE, FIRST- CLASS, AIR SERVICE.

UPON THE COMPLETION OF A COURSE PRESCRIBED FOR FLYING CADETS, EACH FLYING CADET, IF HE SO DESIRE, MAY BE DISCHARGED AND COMMISSIONED AS A SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORPS: PROVIDED, THAT THE SECRETARY OF WAR IS AUTHORIZED TO DISCHARGE AT ANY TIME ANY FLYING CADET WHOSE DISCHARGE SHALL HAVE BEEN RECOMMENDED BY A BOARD OF NOT LESS THAN THREE OFFICERS. ( ITALICS SUPPLIED.)

WHILE SECTION 21 OF THE ACT OF JUNE 10, 1922, 42 STAT. 633, PROVIDES THAT "NOTHING IN THIS ACT SHALL OPERATE TO CHANGE IN ANY WAY EXISTING LAWS, OR REGULATIONS MADE IN PURSUANCE OF LAW, GOVERNING PAY AND ALLOWANCES OF * * * FLYING CADETS," THIS PROVISION MUST BE CONSIDERED AS RELATING ONLY TO CHANGES IN THE PAY AND ALLOWANCES SPECIFICALLY FIXED FOR FLYING CADETS, AS SUCH, AND IS NOT TO BE UNDERSTOOD AS AFFECTING THE RIGHT OF A FLYING CADET TO THE ALLOWANCES (OTHER THAN RATION ALLOWANCE) OF A PRIVATE, FIRST-CLASS, AIR CORPS. IF SECTION 21 WERE CONSTRUED OTHERWISE, A FLYING CADET WOULD NOT, IN FACT, RECEIVE THE ALLOWANCES (OTHER THAN THE RATION ALLOWANCE) OF A PRIVATE, FIRST CLASS, AIR CORPS, INSOFAR AS SUCH ALLOWANCES ARE PROVIDED BY THE ACT OF JUNE 10, 1922, BUT WOULD RECEIVE THE ALLOWANCES PROVIDED FOR SUCH AN ENLISTED MAN BY A PRIOR ACT. THIS RESULT CLEARLY WAS NOT INTENDED BY SECTION 21.

A FLYING CADET BEING AN ENLISTED MAN (SEE ARMY REGULATIONS 615-160, DATED JULY 20, 1938) WHOSE ALLOWANCES (OTHER THAN THE RATION ALLOWANCE) ARE ASSIMILATED TO THOSE OF A PRIVATE, FIRST CLASS, AIR CORPS--- AN ENLISTED MAN OF THE SIXTH GRADE--- IF OTHERWISE WITHIN THE STATUTE, IS ENTITLED TO THE ENLISTMENT ALLOWANCE PROVIDED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, FOR AN ENLISTED MAN OF THE SIXTH GRADE.

IT APPEARS THE ENLISTED MAN IN THIS CASE WAS HONORABLY DISCHARGED AS A FLYING CADET ON FEBRUARY 10, 1941, AFTER SERVING MORE THAN 1 YEAR, AND REENLISTED IN THE AIR CORPS WITHIN 3 MONTHS FROM THE DATE OF HIS DISCHARGE AS A FLYING CADET AND IS ENTITLED TO AN ENLISTMENT ALLOWANCE IN THE AMOUNT OF $25. ACCORDINGLY, THE VOUCHER YOU HAVE SUBMITTED IS HEREWITH RETURNED AND PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT.

TO THE EXTENT THAT DECISION OF OCTOBER 7, 1922, A.D. 7161 (CITED IN PARAGRAPH 2, ARMY REGULATIONS 35-2580) IS IN CONFLICT WITH ANYTHING SAID HEREIN IT WILL NOT BE FOLLOWED HEREAFTER.