B-20934, NOVEMBER 19, 1941, 21 COMP. GEN. 460

B-20934: Nov 19, 1941

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WAS DISCHARGED UPON HIS OWN APPLICATION MADE MORE THAN 20 DAYS AFTER HIS ACCEPTANCE FOR ACTIVE DUTY IS ENTITLED TO THE LUMP SUM ALLOWANCE WHICH IS PAYABLE UNDER SECTION 30 OF THE NATIONAL DEFENSE ACT. 1941: THERE WAS RECEIVED BY FIRST INDORSEMENT DATED OCTOBER 1. THERE IS TRANSMITTED HEREWITH. WAS ACCEPTED FOR ACTIVE DUTY AT FORT MACARTHUR. 1941 AND WAS HONORABLY DISCHARGED AT CAMP CALL AN. PARAGRAPH 31B (1) AR 155-5 PROVIDES FOR PAYMENT OF $3.00 PER MONTH FOR EACH MONTH ENLISTED MEN IN THIS CATEGORY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE. CORPORAL JACOBY WAS PAID $87.00 ON VOUCHER NO. 110. WHICH WAS RECEIVED AT THIS STATION ON MAY 12. ARE NOT QUALIFIED FOR ACTIVE DUTY WITHIN THE INTENT OF PARAGRAPH 31B (1).

B-20934, NOVEMBER 19, 1941, 21 COMP. GEN. 460

REGULAR ARMY RESERVISTS - LUMP SUM PAYMENT FOR TIME ON RESERVE LIST A REGULAR ARMY RESERVIST WHO, ON ACCOUNT OF CONDITIONS OF DEPENDENCY NOT EXISTING AT THE TIME HE ENTERED ON ACTIVE DUTY OR WITHIN 20 DAYS THEREAFTER, WAS DISCHARGED UPON HIS OWN APPLICATION MADE MORE THAN 20 DAYS AFTER HIS ACCEPTANCE FOR ACTIVE DUTY IS ENTITLED TO THE LUMP SUM ALLOWANCE WHICH IS PAYABLE UNDER SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED, TO REGULAR ARMY RESERVISTS FOR TIME ON THE RESERVE LIST IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY. 20 COMP. GEN. 898, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. J. R. BERRIOS, U.S. ARMY, NOVEMBER 19, 1941:

THERE WAS RECEIVED BY FIRST INDORSEMENT DATED OCTOBER 1, 1941, YOUR LETTER OF SEPTEMBER 23, 1941, AS FOLLOWS:

1. THERE IS TRANSMITTED HEREWITH, THE FINAL STATEMENT OF JOHN D. JACOBY, 6554307, CORPORAL, D.E.M.L. DETACHMENT, CASC 1953, A REGULAR ARMY RESERVIST WHO ENLISTED IN THE REGULAR ARMY RESERVE ON SEPTEMBER 2, 1938; WAS ACCEPTED FOR ACTIVE DUTY AT FORT MACARTHUR, CALIFORNIA, FEBRUARY 10, 1941 AND WAS HONORABLY DISCHARGED AT CAMP CALL AN, CALIFORNIA ON APRIL 12, 1941.

2. PARAGRAPH 31B (1) AR 155-5 PROVIDES FOR PAYMENT OF $3.00 PER MONTH FOR EACH MONTH ENLISTED MEN IN THIS CATEGORY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE, NOT TO EXCEED $150.00, SUCH PAYMENT TO BE MADE WHEN ACCEPTED FOR ACTIVE SERVICE. ACCORDINGLY, CORPORAL JACOBY WAS PAID $87.00 ON VOUCHER NO. 110, ACCOUNT OF THE UNDERSIGNED FOR MARCH 1941.

3. SECTION III, CIRCULAR NO. 42, WAR DEPARTMENT DATED MARCH 15, 1941, WHICH WAS RECEIVED AT THIS STATION ON MAY 12, 1941, COPY INCLOSED, PROVIDES THAT " MEMBERS OF THE REGULAR ARMY RESERVE, WHO, UPON BEING ORDERED TO ACTIVE DUTY, REQUEST DISCHARGE ON ACCOUNT OF DEPENDENTS, ARE NOT QUALIFIED FOR ACTIVE DUTY WITHIN THE INTENT OF PARAGRAPH 31B (1), AR 155-5, AND ARE THEREFORE NOT ENTITLED TO RECEIVE THE ADDITIONAL PAYMENT PROVIDED FOR IN THAT PARAGRAPH.'

4. THE CERTIFICATE OF DISCHARGE ( WD, AGO FORM 55) ISSUED TO THIS SOLDIER SHOWS HE WAS DISCHARGED BY REASON OF DEPENDENCY UNDER SECTION V, AR 615- 360 AND LETTER, HEADQUARTERS NINTH CORPS AREA, DATED APRIL 8, 1941 (COPY ENCLOSED), AFTER HAVING SERVED OVER TWO MONTHS.

5.IN VIEW OF YOUR DECISION, B-16981, PUBLISHED IN FINANCE BULLETIN NO. 73, 1941, THIS OFFICE IS IN DOUBT AS TO WHETHER OR NOT PRIVATE JACOBY IS REQUIRED TO REFUND TO THE UNITED STATES THE AMOUNT OF $87.00 PAID TO HIM UNDER THE REGULATION CITED IN PARAGRAPH 2, SUPRA, AND SUCH AMOUNT CHARGED AGAINST HIM ON THE FINAL STATEMENT FOR SETTLEMENT UNDER THE PROVISIONS OF PARAGRAPH 5 D, AR 35-2440.

6. THE CASE IS THEREFORE SUBMITTED REQUESTING AN ADVANCE DECISION.

7. THE UNDERSIGNED IS THE DISBURSING OFFICER TO WHOM THIS VOUCHER HAS BEEN SUBMITTED FOR PAYMENT.

THAT PORTION OF THE DECISION OF THIS OFFICE REFERRED TO IN THE FIFTH PARAGRAPH OF YOUR LETTER, 20 COMP. GEN. 898 (B-16981, DATED JUNE 16, 1941), WHICH IS PARTICULARLY PERTINENT TO THE QUESTION YOU PRESENT IS AS FOLLOWS:

SUBPARAGRAPH 31B (1), ARMY REGULATIONS 155-5, QUOTED BY YOU IN CONNECTION WITH YOUR THIRD QUESTION, IS BASED ON THAT PART OF SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WHICH READS AS FOLLOWS:

"* * * MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION * * *. IN ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE, BUT NOT TO EXCEED $150. * * *"

YOU STATE THAT ACTION WAS TAKEN IN SECTION III, WAR DEPARTMENT CIRCULAR NO. 42, DATED MARCH 15, 1941, WHICH WAS SPECIFICALLY DESIGNED TO PROHIBIT PAYMENT OF THE ADDITIONAL ALLOWANCE OF $3 PER MONTH IN THE CASE OF MEMBERS OF THE REGULAR ARMY RESERVE WHO REQUEST DISCHARGE ON ACCOUNT OF DEPENDENCY WITHIN 20 DAYS AFTER ENTRY INTO ACTIVE MILITARY SERVICE. SECTION III OF THE CITED CIRCULAR READS AS FOLLOWS:

"III--- PAY AND ALLOWANCES FOR REGULAR ARMY RESERVISTS DISCHARGED ON ACCOUNT OF DEPENDENTS.--- IN ORDER TO CLARIFY THE INTENT OF PARAGRAPH 31B (1), AR 155-5, THE FOLLOWING INSTRUCTIONS ARE PUBLISHED FOR THE INFORMATION AND GUIDANCE OF ALL CONCERNED:

"MEMBERS OF THE REGULAR ARMY RESERVE, WHO, UPON BEING ORDERED TO ACTIVE DUTY, REQUEST DISCHARGE ON ACCOUNT OF DEPENDENTS, ARE NOT QUALIFIED FOR ACTIVE DUTY WITHIN THE INTENT OF PARAGRAPH 31B (1), AR 155-5, AND ARE THEREFORE NOT ENTITLED TO RECEIVE THE ADDITIONAL PAYMENT PROVIDED FOR IN THAT PARAGRAPH.'

WHILE NO MENTION IS MADE IN THE ABOVE-QUOTED SECTION OF THE 20-DAY PERIOD REFERRED TO IN THE LAST PARAGRAPH OF YOUR LETTER, SECTION 3 (E) OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, SPECIFIES THAT ANY RESERVIST OF THE ARMY BELOW THE RANK OF CAPTAIN WHO IS ORDERED INTO ACTIVE MILITARY SERVICE PURSUANT TO THE SAID RESOLUTION AND WHO HAS ANY PERSON OR PERSONS DEPENDENT SOLELY UPON HIM FOR SUPPORT, ETC., MAY RESIGN OR SHALL BE DISCHARGED UPON HIS OWN REQUEST MADE WITHIN 20 DAYS OF THE DATE OF HIS ENTRY INTO ACTIVE MILITARY SERVICE. THE SO CALLED ENLISTMENT ALLOWANCE WAS PROVIDED AS AN ELEMENT OF COMPENSATION FOR REGULAR ARMY RESERVISTS ORDERED TO ACTIVE DUTY OF INDEFINITE DURATION DURING A NATIONAL EMERGENCY, AND UNDOUBTEDLY IT WAS CONTEMPLATED THAT THE GOVERNMENT WOULD HAVE THE BENEFIT OF THEIR SERVICE FOR A SUBSTANTIAL PERIOD OF ACTIVE DUTY. HENCE, IF A RESERVIST MAKE APPLICATION FOR DISCHARGE WITHIN THE 20-DAY PERIOD UNDER THE TERMS SPECIFIED IN SECTION 3 (E), SUPRA, IT WOULD APPEAR PROPER TO CONSIDER THAT THERE HAS BEEN NO SUBSTANTIAL COMPLIANCE WITH THE PROVISION THAT HE BE "FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY" WHICH IS A STATUTORY CONDITION TO PAYMENT OF THE ALLOWANCE INVOLVED.

ACCORDINGLY, YOU ARE ADVISED THAT WHERE A MEMBER OF THE REGULAR ARMY RESERVE IS DISCHARGED, UNDER THE PROVISIONS OF SECTION 3 (E) OF PUBLIC RESOLUTION NO. 96, UPON HIS OWN APPLICATION MADE WITHIN 20 DAYS OF THE DATE OF HIS ENTRY INTO ACTIVE MILITARY SERVICE, BECAUSE HE HAS SOME PERSON OR PERSONS DEPENDENT SOLELY UPON HIM FOR SUPPORT, HE IS NOT ENTITLED TO PAYMENT OF THE ALLOWANCE IN QUESTION.

IT IS REASONABLY EVIDENT THAT SECTION III OF WAR DEPARTMENT CIRCULAR NO. 42, DATED MARCH 15, 1941, WAS INTENDED BY THE WAR DEPARTMENT TO OPERATE AS A PROHIBITION AGAINST PAYMENT OF THE ADDITIONAL ALLOWANCE OF $3 PER MONTH TO ANY REGULAR ARMY RESERVIST WHO, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 (E) OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 860, REQUESTS HIS DISCHARGE WITHIN 20 DAYS OF HIS ENTRY INTO ACTIVE MILITARY SERVICE ON THE BASIS THAT HE HAS SOME PERSON OR PERSONS DEPENDENT SOLELY UPON HIM FOR SUPPORT. HOWEVER, NEITHER THE SAID SECTION III OF WAR DEPARTMENT CIRCULAR NO. 42, NOR THE DECISION OF THIS OFFICE (20 COMP. GEN. 898), PURPORTS TO AFFECT CASES INVOLVING MEMBERS OF THE REGULAR ARMY RESERVE WHO ARE DISCHARGED UNDER THE PROVISIONS OF SECTION V ( DEPENDENCY), ARMY REGULATIONS NO. 615 360, UNDER APPLICATIONS MADE MORE THAN 20 DAYS AFTER ENTRY ON ACTIVE DUTY.

THERE IS ATTACHED TO THE PAPERS A CERTIFIED COPY OF THE APPLICATION OF CORPORAL JACOBY FOR DISCHARGE BECAUSE OF DEPENDENTS, DATED APRIL 4, 1941, UNDER THE PROVISIONS OF SECTION V, ARMY REGULATIONS 615-360, AND THE CERTIFICATE OF DISCHARGE SHOWS HE WAS DISCHARGED UNDER THE PROVISIONS OF SECTION V, ARMY REGULATIONS NO. 605-360. PARAGRAPHS 40 AND 42 (A) UNDER THE SAID SECTION V PROVIDE AS FOLLOWS:

AUTHORITY.--- WHEN BY REASON OF DEATH OR DISABILITY OF A MEMBER OF THE FAMILY OF AN ENLISTED MAN, OCCURRING AFTER HIS ENLISTMENT, MEMBERS OF HIS FAMILY BECOME DEPENDENT UPON HIM FOR CARE OR SUPPORT, HE MAY, IN THE DISCRETION OF THE SECRETARY OF WAR, BE DISCHARGED FROM THE SERVICE OF THE UNITED STATES. SEC. 29, ACT JUNE 4, 1920 (41 STAT. 775; U.S.C. 10; 652; SEC. 230, M.L., 1929).

EVIDENCE REQUIRED.--- A. THE FOLLOWING EVIDENCE IS REQUIRED: AFFIDAVITS SHOWING---

(1) THAT THE ENLISTED MAN'S PRESENCE AT HOME IS NECESSARY FOR THE SUPPORT OR CARE OF MEMBERS OF HIS FAMILY, AND

(2) THAT THIS CONDITION HAS ARISEN DUE TO DEATH OR DISABILITY OCCURRING IN SOLDIER'S FAMILY SINCE HIS ENLISTMENT.

THE FOREGOING PROVISIONS ARE EXPRESSLY MADE APPLICABLE TO MEMBERS OF THE REGULAR ARMY RESERVE ON ACTIVE DUTY BY PARAGRAPH 16 (B) OF ARMY REGULATIONS NO. 155-5, WHICH IS AS FOLLOWS:

WHEN ON ACTIVE DUTY THE DISCHARGE OF A MEMBER OF THE REGULAR ARMY RESERVE WILL BE GOVERNED BY THE PROVISIONS OF ARMY REGULATIONS APPLICABLE TO ENLISTED MEN OF THE REGULAR ARMY.

IT APPEARS THAT SINCE CORPORAL JACOBY WAS DISCHARGED ON HIS APPLICATION MADE MORE THAN 20 DAYS AFTER HIS ACCEPTANCE FOR ACTIVE DUTY -- FEBRUARY 10, 1941--- IN ACCORDANCE WITH SECTION V OF ARMY REGULATIONS NO. 615-360, THE DISCHARGE MUST HAVE BEEN GRANTED BECAUSE OF CONDITIONS OF DEPENDENCY NOT EXISTING AT THE TIME HE ENTERED ON ACTIVE DUTY OR WITHIN 20 DAYS THEREAFTER.

ACCORDINGLY, YOU ARE ADVISED THAT CORPORAL JACOBY IS NOT REQUIRED TO REFUND THE PAYMENT MADE TO HIM IN MARCH, 1941, UNDER THE PROVISIONS OF PARAGRAPH 31B (1), ARMY REGULATIONS NO. 155-5, MERELY BECAUSE OF HIS DISCHARGE ON APRIL 12, 1941, UNDER THE PROVISIONS OF SECTION V, ARMY REGULATIONS NO. 615-360.