B-233, FEBRUARY 1, 1939, 18 COMP. GEN. 631

B-233, FEBRUARY 1, 1939, 18 COMP. GEN. 631

ENLISTMENT ALLOWANCE - NONCITIZEN REGULAR ARMY RESERVE ENLISTMENTS - APPLICABILITY OF NONCITIZENSHIP PAY PROHIBITION LEGISLATION ENLISTMENT ALLOWANCE BEING PAY BY ANOTHER NAME, AND THE ARMY STATUTES PROHIBITING THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF PERSONS NOT CITIZENS OF THE UNITED STATES HAVING BEEN DESIGNED TO PROHIBIT ENLISTMENT OF ALIENS, A SOLDIER ENLISTED IN THE REGULAR ARMY RESERVE UNDER THE ACT OF APRIL 25, 1938, 52 STAT. 221, WHO IS NOT A CITIZEN OF THE UNITED STATES, IS NOT ENTITLED TO THE PAY PROVIDED FOR MEN ENLISTED FOR THAT SERVICE, NOR MAY PAYMENT OF SUCH PAY BE AUTHORIZED BY ADVANCE DECISION ON PRESUMPTION OF CITIZENSHIP AND THEREBY THE NECESSARY AND PROPER ACTION IN THE SUBSEQUENT AUDIT OF THE ACCOUNTS BE FORESTALLED SHOULD IT BE FOUND THAT PAYMENTS WERE MADE TO PERSONS FOR WHOM THE APPROPRIATION IS SPECIFICALLY MADE NOT AVAILABLE BECAUSE OF NONCITIZENSHIP.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJ. H. M. DENNING, UNITED STATES ARMY, FEBRUARY 1, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 13, 1938, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH STATED IN FAVOR OF PRIVATE JOSEPH A. ZOLIO, 6139099 "RAR," INFANTRY, IN THE AMOUNT OF $8, COVERING ENLISTMENT ALLOWANCE FOR THE PERIOD JULY 27, 1938, TO NOVEMBER 26, 1938. YOU STATE YOU ARE IN DOUBT WHETHER PAYMENT IS AUTHORIZED IN VIEW OF THE FACT NO CERTIFICATE OF CITIZENSHIP WAS FURNISHED.

THE ACT OF APRIL 25, 1938, 52 STAT. 221, PROVIDES THAT---

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THERE SHALL BE ORGANIZED AND MAINTAINED AS A PART OF THE REGULAR ARMY AND IN ADDITION TO THE AUTHORIZED STRENGTH THEREOF OTHERWISE PROVIDED A REGULAR ARMY RESERVE. ANY PERSON WHO HAS SERVED IN THE REGULAR ARMY AND WHO HAS BEEN HONORABLY DISCHARGED THEREFROM, AND WHO IS LESS THAN THIRTY-SIX YEARS OF AGE MAY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE REENLISTED FOR THE REGULAR ARMY RESERVE. EACH SOLDIER THUS REENLISTED SHALL BE ENTITLED TO RECEIVE, DURING EACH YEAR OF HIS SERVICE IN THE REGULAR ARMY RESERVE, AN ENLISTMENT ALLOWANCE OF $24 PER ANNUM PAYABLE IN INSTALLMENTS UNDER SUCH REGULATIONS AND CONDITIONS AS THE PRESIDENT MAY PRESCRIBE. * * *

REGULATIONS IN PURSUANCE OF THIS STATUTE WERE PROMULGATED MAY 2, 1938, BY ARMY REGULATIONS NO. 155-5, EFFECTIVE JULY 1, 1938. QUALIFICATIONS FOR ENLISTMENT ARE SET OUT IN PARAGRAPH 5, AS FOLLOWS:

ELIGIBILITY.--- (A) ENLISTMENTS AND REENLISTMENTS IN THE REGULAR ARMY RESERVE WILL BE LIMITED TO UNMARRIED MEN LESS THAN THIRTY-SIX YEARS OF AGE WHOSE LAST DISCHARGE FROM THE REGULAR ARMY WAS ,HONORABLE" AFTER AT LEAST ONE YEAR OF CONTINUOUS SERVICE THEREIN, AND WHO ARE OTHERWISE QUALIFIED FOR REENLISTMENT IN THE REGULAR ARMY. THE REQUIRED PREVIOUS SERVICE IN THE REGULAR ARMY MUST HAVE TERMINATED NOT MORE THAN THREE YEARS BEFORE INITIAL ENLISTMENT IN THE REGULAR ARMY RESERVE. SUBSEQUENT REENLISTMENT IN THE REGULAR ARMY RESERVE WILL BE MADE ONLY WITHIN THREE MONTHS AFTER HONORABLE DISCHARGE THEREFROM, OR AFTER ADDITIONAL SERVICE IN THE REGULAR ARMY TERMINATED BY HONORABLE DISCHARGE.

THE DECLARATION OF THE APPLICANT AND OATH OF ENLISTMENT, SET OUT IN PARAGRAPH 8, REQUIRES AN AFFIRMATIVE STATEMENT THAT THE APPLICANT IS "UNMARRIED, A CITIZEN OF THE UNITED STATES, OF THE LEGAL AGE TO ENLIST," AND THE PLACE OF BIRTH MUST BE SWORN TO.

IT WAS HELD IN DECISION OF JANUARY 9, 1939, A-99797, THAT THE STATUTES PROHIBITING THE USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF PERSONS NOT CITIZENS OF THE UNITED STATES WERE DESIGNED TO PROHIBIT ENLISTMENT OF ALIENS, AND THAT UNDER THE LAW AND REGULATIONS A SOLDIER WHO WAS NOT A CITIZEN OF THE UNITED STATES, OR AN ALIEN WHO HAD NOT DECLARED HIS INTENTION TO BECOME A CITIZEN OF THE UNITED STATES WHILE SERVING IN HIS ENLISTMENT CURRENT AT THE TIME THE STATUTES WERE ENACTED, WAS NOT QUALIFIED FOR ENLISTMENT IN THE ARMY. UNDER THE CITED LAW AND REGULATIONS AN HONORABLY DISCHARGED SOLDIER NOT ELIGIBLE FOR REENLISTMENT IN THE REGULAR ARMY IS NOT ELIGIBLE FOR ENLISTMENT IN THE REGULAR ARMY RESERVE AND IT FOLLOWS THAT THE ENLISTMENT ALLOWANCE BEING PAY BY ANOTHER NAME A SOLDIER ENLISTED IN THE REGULAR ARMY RESERVE WHO IS NOT A CITIZEN OF THE UNITED STATES IS NOT ENTITLED TO THE PAY PROVIDED FOR MEN ENLISTED FOR THAT SERVICE.

TO ENTITLE TO PAY THE LAW REQUIRES THAT AN ENLISTED MAN BE A CITIZEN OF THE UNITED STATES, AND UNDER THE REGULATIONS A MAN NOT A CITIZEN MAY NOT BE ENLISTED IN THE REGULAR ARMY RESERVE. THE FACTS OF ENLISTMENT ARE MATTERS WITHIN THE JURISDICTION OF THE ARMY, AND THE EVIDENCE AS TO CITIZENSHIP TO BE REQUIRED BEFORE PAYMENT IS FOR ADMINISTRATIVE DETERMINATION. BUT, NOTWITHSTANDING, THE REQUIREMENTS AS TO EVIDENCE, IF IN THE AUDIT PAYMENTS ARE FOUND TO HAVE BEEN MADE TO NONCITIZENS, CREDIT FOR SUCH PAYMENTS CLEARLY CANNOT BE ALLOWED UNDER THE LAW. THIS OFFICE CANNOT THEREFORE AUTHORIZE PAYMENT BY ADVANCE DECISION ON PRESUMPTION OF CITIZENSHIP WHICH WILL FORESTALL NECESSARY AND PROPER ACTION IN THE AUDIT OF THE ACCOUNTS IF IT IS FOUND PAYMENTS HAVE BEEN MADE TO PERSONS FOR WHOM THE APPROPRIATION IS SPECIFICALLY MADE NOT AVAILABLE BECAUSE OF NONCITIZENSHIP.

DECISION MAY NOT BE RENDERED ON THE VOUCHER RETURNED HEREWITH ON THE EVIDENCE PRESENTED.