B-16640, MAY 21, 1941, 20 COMP. GEN. 801

B-16640, MAY 21, 1941, 20 COMP. GEN. 801

PAY - LIMITATIONS - FIRST FOUR MONTHS IN INITIAL ENLISTMENT SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY DOES NOT CONSTITUTE SERVICE IN A PRIOR ENLISTMENT NOR MAY IT BE COUNTED AS SERVICE IN A CURRENT ENLISTMENT IN THE ARMY FOR PURPOSES OF DETERMINING WHETHER THE ENLISTED MAN IS SERVING IN THE FIRST 4 MONTHS OF AN INITIAL ENLISTMENT PERIOD AND SO LIMITED TO $21 PER MONTH BASE PAY UNDER THE TERMS OF SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. ROSS H. ROUTH, U.S. ARMY, MAY 21, 1941:

THERE HAS BEEN RECEIVED BY FIRST INDORSEMENT OF THE CHIEF OF FINANCE, DATED MAY 5, 1941, YOUR LETTER OF APRIL 24, 1941 (WITH ENCLOSURES), AS FOLLOWS:

1. THE INCLOSED VOUCHER IS A CLAIM FOR DIFFERENCE IN PAY BETWEEN THAT OF AN ENLISTED MAN ($21 BASE RATE) AND THAT OF A PRIVATE AND CORPORAL (PAY OF GRADE) WITH OVER FOUR MONTHS' SERVICE, FOR THE PERIOD SEPTEMBER 25, 1940, TO JANUARY 24, 1941, INCLUSIVE. THE ENLISTED MAN CONCERNED SERVED AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY FROM JULY 13, 1938, TO FEBRUARY 7, 1939, AND BELIEVES THAT THIS PRIOR SERVICE ENTITLES HIM TO RECEIVE THE PAY OF HIS GRADE AS A PRIVATE ($30 BASE PAY) FOR THE PERIOD OCTOBER 1, 1940, TO OCTOBER 10, 1940, AND AS A CORPORAL FOR THE PERIOD OCTOBER 11, 1940, TO JANUARY 24, 1941, ON WHICH DATE HE COMPLETED FOUR MONTHS' SERVICE IN HIS CURRENT ENLISTMENT.

2. THE ENLISTED MAN CONCERNED WAS PAID AS AN ENLISTED MAN ($21 BASE PAY) DURING THE PERIOD OCTOBER 1, 1940, TO JANUARY 24, 1941, INCLUSIVE, AND HAS SUBMITTED THE INCLOSED VOUCHER COVERING DIFFERENCE IN PAY BETWEEN THE $21 RATE AND THE PAY OF HIS GRADE AS AUTHORIZED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

3. IN VIEW OF THE LEGAL QUESTIONS INVOLVED IN CLAIMS OF THIS NATURE, IT IS REQUESTED THAT AN ADVANCE DECISION BE RENDERED AS TO THE LEGALITY OF PAYMENT IN THIS CASE.

4. I AM A DISBURSING OFFICER AND THE VOUCHER SUBMITTED HEREWITH HAS BEEN PRESENTED TO ME FOR PAYMENT.

SECTION 12 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 895, READS, IN PERTINENT PART, AS FOLLOWS:

SEC. 12. (A) THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL BE AS FOLLOWS: ENLISTED MEN OF THE FIRST GRADE, $126; ENLISTED MEN OF THE SECOND GRADE, $84; ENLISTED MEN OF THE THIRD GRADE, $72; ENLISTED MEN OF THE FOURTH GRADE, $60; ENLISTED MEN OF THE FIFTH GRADE, $54; ENLISTED MEN OF THE SIXTH GRADE, $36; ENLISTED MEN OF THE SEVENTH GRADE, $30; EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR, AND THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL BE $21. * * *

(F) THE PROVISIONS OF THIS SECTION SHALL BE EFFECTIVE ON AND AFTER OCTOBER 1, 1940. THEREAFTER ALL LAWS AND PARTS OF LAWS INSOFAR AS THE SAME ARE INCONSISTENT HEREWITH OR IN CONFLICT WITH THE PROVISIONS HEREOF ARE HEREBY REPEALED.

IT WAS HELD IN DECISION OF OCTOBER 28, 1940, 20 COMP. GEN. 218, THAT THE EXCEPTION IN THE ABOVE-QUOTED PROVISION WITH RESPECT TO THE 4 MONTHS' SERVICE REFERS NOT ONLY TO ENLISTED MEN OF THE SEVENTH GRADE BUT TO ALL ENLISTED MEN REGARDLESS OF GRADE. ALSO, IN THAT DECISION IT WAS HELD THAT A SELECTIVE TRAINEE INDUCTED INTO THE SERVICE OF THE UNITED STATES UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHO HAS HAD PRIOR ENLISTED SERVICE IN THE REGULAR ARMY, WHETHER MORE OR LESS THAN 4 MONTHS, IS NOT SERVING IN HIS FIRST ENLISTMENT PERIOD AND, HENCE, IS NOT LIMITED TO MONTHLY PAY OF $21 BY SECTION 12 (A) OF THE SAID ACT WHICH FIXES MONTHLY PAY AT $21 FOR THE FIRST 4 MONTHS OF SERVICE DURING THE FIRST ENLISTMENT PERIOD.

UNDER THE TERMS OF SECTION 12 (A), SUPRA, AND THE DECISIONS OF THIS OFFICE (SEE 20 COMP. GEN. 218; ID. 251; ID. 420; ID. 493), AN ARMY ENLISTED MAN (OTHER THAN ONE IN A RESERVE COMPONENT HOLDING A GRADE ABOVE THE SEVENTH WHEN ORDERED INTO THE ACTIVE SERVICE OF THE UNITED STATES) MAY NOT RECEIVE BASE PAY OF MORE THAN $21 PER MONTH UNLESS HE HAS (1) SERVED IN A PRIOR ENLISTMENT, OR (2) HAS HAD NOT LESS THAN 4 MONTHS' SERVICE IN HIS FIRST ENLISTMENT PERIOD. OBVIOUSLY, SERVICE IN THE NAVAL ACADEMY AS MIDSHIPMAN FROM JULY 13, 1938, TO FEBRUARY 7, 1939, IS NOT SERVICE IN THE ENLISTMENT PERIOD IN WHICH THE MAN IS NOW SERVING IN THE ARMY. MIDSHIPMEN ARE PRIMARILY STUDENTS WHO HAVE BEEN APPOINTED MIDSHIPMEN FOR THE PURPOSE OF PURSUING A COURSE OF STUDY TO FIT THEM FOR COMMISSIONS AS OFFICERS OF THE NAVY. IN DECISION OF ASSISTANT COMPTROLLER OF THE TREASURY DATED DECEMBER 6, 1920, 27 COMP. DEC. 521, IT WAS PROPERLY STATED THAT THE TERM " ENLISTMENT" HAS A WELL DEFINED MEANING, WHICH EXCLUDES APPOINTMENT IN THE NAVAL ACADEMY.'

FOR THE REASONS STATED ABOVE THE ENLISTED MAN IN THIS CASE IS NOT IN A SECOND ENLISTMENT IN THE ARMY AND, WITHOUT DECIDING WHETHER IN ANY EVENT ENLISTED SERVICE IN THE NAVY MAY BE COUNTED FOR THIS PURPOSE, IS NOT ENTITLED TO COUNT MIDSHIPMAN SERVICE IN THE NAVAL ACADEMY AS SERVICE IN HIS FIRST ARMY ENLISTMENT PERIOD. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER WHICH IS RETAINED IN THIS OFFICE, BUT THE TRANSCRIPT OF HIS SCHOLASTIC RECORD IN THE NAVAL ACADEMY IS RETURNED HEREWITH.