B-17103, JUNE 19, 1941, 20 COMP. GEN. 915

B-17103, JUNE 19, 1941, 20 COMP. GEN. 915

NAVAL RESERVE ENLISTED MEN - INVALID EXTENSIONS OF ENLISTMENT SINCE THE REGULATIONS GOVERNING EXTENSIONS OF ENLISTMENT IN THE NAVAL RESERVE DO NOT AUTHORIZE AN EXTENSION OR AN AGGREGATE OF EXTENSIONS OF ENLISTMENT FOR A PERIOD IN EXCESS OF 4 YEARS, AN AGREEMENT TO EXTEND AN ORIGINAL EXTENSION OF 4 YEARS FOR ANOTHER 4 YEARS IS UNAUTHORIZED. A NAVAL RESERVE ENLISTED MAN RETAINED ON ACTIVE DUTY BY REASON OF AN ILLEGAL EXTENSION OF ENLISTMENT WILL BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD ON AND AFTER THE EXPIRATION OF THE VALID EXTENSION OF ENLISTMENT IF, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, THE SECRETARY OF THE NAVY RATIFY HIS RETENTION ON ACTIVE DUTY DURING THE PRESENT EMERGENCY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JUNE 19, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 19, 1941, REQUESTING DECISION AS FOLLOWS:

ON FEBRUARY 16, 1933, NEIL GRAHAM SCHREINER, SEAMAN FIRST CLASS, O 1, U.S. NAVAL RESERVE, ENLISTED IN THE NAVAL RESERVE FOR A PERIOD OF FOUR YEARS. THIS ENLISTMENT WAS SUBSEQUENTLY EXTENDED FOR A PERIOD OF FOUR YEARS, AND ON DECEMBER 17, 1940, PRIOR TO THE EXPIRATION OF HIS ENLISTMENT AS ALREADY EXTENDED, SCHREINER EXECUTED ANOTHER AGREEMENT TO EXTEND HIS ENLISTMENT FOR AN ADDITIONAL TERM OF FOUR YEARS.

THE SECOND AGREEMENT UNDER WHICH SCHREINER AGREED TO EXTEND HIS ENLISTMENT FOR AN ADDITIONAL FOUR YEARS WAS COMPLETED BY HIS COMMANDING OFFICER, TO BE EFFECTIVE AS OF FEBRUARY 16, 1941. SCHREINER FIRST REPORTED FOR ACTIVE DUTY ON JANUARY 1, 1941, AND WAS ON ACTIVE DUTY WHEN THE SECOND AGREEMENT FOR EXTENSION OF ENLISTMENT BECAME EFFECTIVE AND IS AT THE PRESENT TIME SERVING ON ACTIVE DUTY.

WHILE ON ACTIVE DUTY AND UNTIL SUCH TIME AS HE IS DISCHARGED FROM HIS ENLISTMENT AS EXTENDED, SCHREINER, OF COURSE, WILL REMAIN SUBJECT TO NAVAL JURISDICTION, BUT THE QUESTION ARISES AS TO HIS RIGHT TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES OF HIS RATING FOR THE PERIOD ON AND AFTER FEBRUARY 16, 1941, UNDER THE CONDITIONS ABOVE STATED.

IN THIS CONNECTION ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1939 (52 STAT. 1176), AS AMENDED (34 U.S. CODE, SUP. V, SEC. 853C), TO THE EFFECT THAT, IN TIME OF WAR OR OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, ANY MEMBER OF THE NAVAL RESERVE MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY AND "MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST.'

YOUR DECISION IS REQUESTED ON THE QUESTION AS TO WHETHER CURRENT NAVAL APPROPRIATIONS MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO SCHREINER FOR THE PERIOD SUBSEQUENT TO FEBRUARY 15, 1941, UNDER THE CONDITIONS SET FORTH ABOVE, ASSUMING, OF COURSE, THAT HIS CONTINUED EMPLOYMENT ON ACTIVE DUTY ON AND AFTER FEBRUARY 16, 1941, IS AUTHORIZED.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, PROVIDES:

THE NAVAL RESERVE SHALL BE COMPOSED OF MALE CITIZENS OF THE UNITED STATES AND OF THE INSULAR POSSESSIONS OF THE UNITED STATES WHO HAVE ATTAINED THE AGE OF SEVENTEEN YEARS AND WHO, BY APPOINTMENT OR ENLISTMENT THEREIN UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY OR BY TRANSFER THERETO AS IN THIS ACT PROVIDED, OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS: * * *

A PROVISO IN SECTION 6 OF THE NAVAL RESERVE ACT OF 1938 IS:

THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY: * * *

SECTION 9 IS IN PART AS FOLLOWS:

THE SECRETARY OF THE NAVY SHALL PRESCRIBE ALL NECESSARY AND PROPER REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT, FOR THE RECRUITING, ORGANIZATION, GOVERNMENT, ADMINISTRATION, TRAINING, INSPECTION, AND MOBILIZATION OF THE NAVAL RESERVE, * * *

ARTICLE H-2504, BUREAU OF NAVIGATION MANUAL, PROVIDES:

(1) ENLISTMENTS AND REENLISTMENTS IN THE NAVAL RESERVE SHALL BE FOR TERMS OF 4 YEARS.

(2) ENLISTED MEN MAY BE PERMITTED TO EXTEND THEIR ENLISTMENTS FOR PERIODS OF 1, 2, 3, OR 4 YEARS UNDER THE SAME REGULATIONS AS PRESCRIBED FOR EXTENSIONS OF ENLISTMENTS IN THE REGULAR NAVY.

ARTICLE D-1006, BUREAU OF NAVIGATION MANUAL, PROVIDES:

(1) THE TERMS OF ENLISTMENT OF AN ENLISTED MAN MAY, BY HIS VOLUNTARY WRITTEN AGREEMENT, BE EXTENDED FOR THREE OF FOUR FULL YEARS FROM DATE OF EXPIRATION OF HIS THEN EXISTING TERM OF ENLISTMENT. ENLISTMENTS MAYBE EXTENDED FOR ONE YEAR ONLY FOR PURPOSE OF TRANSFER TO FLEET RESERVE. ENLISTMENTS MAY BE EXTENDED FOR TWO YEARS ONLY IN THE CASE OF MEN COMPLETING FIRST ENLISTMENT. (SEE ART. D-1010.) ( C.B.N.M. 10-12.)

OBVIOUSLY THE REGULATIONS DO NOT AUTHORIZE AN EXTENSION OR AN AGGREGATE OF EXTENSIONS OF ENLISTMENT OF MEMBERS IN THE NAVAL RESERVE FOR A PERIOD IN EXCESS OF 4 YEARS; THEREFORE, THE AGREEMENT OF SCHREINER ON DECEMBER 17, 1940, TO AGAIN EXTEND HIS ENLISTMENT FOR AN ADDITIONAL TERM OF 4 YEARS WAS NOT AUTHORIZED.

WHERE AN ENLISTED MAN IS RETAINED IN ACTUAL SERVICE BY REASON OF AN ILLEGAL EXTENSION, THE MAN IS CONSIDERED AS SERVING IN THE ENLISTMENT PURPORTED TO BE EXTENDED UNTIL ACTUALLY DISCHARGED. DECISION OF THE COMPTROLLER OF THE TREASURY, JUNE 6, 1914 (160 S. AND A. MEMORANDUM, PAGE 3255). HOWEVER, THE STATUS OF SCHREINER SUBSEQUENT TO FEBRUARY 15, 1941, IS AFFECTED BY PROVISIONS OF SECTION 5 OF THE NAVAL RESERVE ACT OF 1938 WHICH PROVIDES:

ANY MEMBER OF THE NAVAL RESERVE * * * MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; * * *

IF THE SECRETARY OF THE NAVY HAS THEREFORE RATIFIED SCHREINER'S RETENTION ON ACTIVE DUTY DURING THE EMERGENCY DECLARED BY THE PRESIDENT, AFTER EXPIRATION OF HIS FIRST EXTENSION OF ENLISTMENT FOR FOUR YEARS HE IS ENTITLED FOR THE PERIOD ON AND AFTER FEBRUARY 16, 1941, TO PAY AND ALLOWANCES AS PROVIDED FOR MEMBERS OF THE NAVAL RESERVE ON ACTIVE DUTY UNDER THE CURRENT NAVAL APPROPRIATION.