B-33721, JULY 20, 1943, 23 COMP. GEN. 37

B-33721: Jul 20, 1943

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AT THE EXPIRATION OF HIS VOLUNTARY ENLISTMENT PERIOD A NAVY ENLISTED MAN WAS DETAINED IN THE SERVICE UNDER THE AUTHORITY IN THE ACT OF DECEMBER 13. THE AMOUNT OF WHICH IS BASED ON THE NUMBER OF YEARS SERVED IN THE ENLISTMENT FROM WHICH LAST DISCHARGED. WAS CONTINUED IN THE TEMPORARY WARRANT RANK TO WHICH HE WAS APPOINTED UNDER AUTHORITY OF THE ACT OF JULY 24. WHO WAS DISCHARGED AND REENLISTED AFTER REVOCATION OF HIS TEMPORARY APPOINTMENT AND REVERSION TO ENLISTED STATUS. THE CURRENT STATUTORY AUTHORITY FOR PAYMENT OF ENLISTMENT ALLOWANCE IS CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF JUNE 16. ARE HEREBY SUSPENDED. THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: AND PROVIDED FURTHER.

B-33721, JULY 20, 1943, 23 COMP. GEN. 37

ENLISTMENT ALLOWANCES - DETENTION OF NAVY ENLISTED MEN IN SERVICE AFTER ENLISTMENT PERIOD; TEMPORARILY PROMOTED NAVY ENLISTED MEN WHERE, AT THE EXPIRATION OF HIS VOLUNTARY ENLISTMENT PERIOD A NAVY ENLISTED MAN WAS DETAINED IN THE SERVICE UNDER THE AUTHORITY IN THE ACT OF DECEMBER 13, 1941, INVOLUNTARILY TO EXTEND ENLISTMENTS IN TIME OF WAR, THE PERIOD OF HIS DETENTION MAY BE INCLUDED, UPON SUBSEQUENT DISCHARGE AND VOLUNTARY REENLISTMENT, IN DETERMINING THE "THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED" WITHIN THE MEANING OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, FOR THE PURPOSE OF COMPUTING THE ENLISTMENT ALLOWANCE PAYABLE UNDER THAT SECTION FOR REENLISTMENT. IN COMPUTING ENLISTMENT ALLOWANCE UNDER SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, THE AMOUNT OF WHICH IS BASED ON THE NUMBER OF YEARS SERVED IN THE ENLISTMENT FROM WHICH LAST DISCHARGED, A NAVY ENLISTED MAN WHO, AFTER EXPIRATION OF THE SIX-YEAR PERIOD FOR WHICH HE HAD ENLISTED, WAS CONTINUED IN THE TEMPORARY WARRANT RANK TO WHICH HE WAS APPOINTED UNDER AUTHORITY OF THE ACT OF JULY 24, 1941, AND WHO WAS DISCHARGED AND REENLISTED AFTER REVOCATION OF HIS TEMPORARY APPOINTMENT AND REVERSION TO ENLISTED STATUS, MAY COUNT THE ENTIRE TIME SERVED IN THE TEMPORARY RANK AS TIME SERVED IN THE ENLISTMENT FROM WHICH DISCHARGED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 20, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 7, 1943 (REFERENCE NO. JAG:K:WJG:GB SO 4 3 345), REQUESTING DECISION WITH RESPECT TO THE ENLISTMENT ALLOWANCE AUTHORIZED TO BE PAID UNDER THE CIRCUMSTANCES STATED IN THE PARTICULAR QUESTIONS HEREINAFTER QUOTED.

THE CURRENT STATUTORY AUTHORITY FOR PAYMENT OF ENLISTMENT ALLOWANCE IS CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 363, 364, WHICH PROVIDES:

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: PROVIDED, THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT AFFECT THE PROVISIONS OF THE ACT APPROVED AUGUST 18, 1941 (1PUBLIC LAW 215, SEVENTY-SEVENTH CONGRESS): PROVIDED FURTHER, THAT DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER THE PROVISIONS OF SECTION 2 OF THE ACT OF AUGUST 18, 1941 ( PUBLIC LAW 215, SEVENTY-SEVENTH CONGRESS), ARE HEREBY SUSPENDED.

COMPARE THE LAST PARAGRAPH OF SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630; ALSO, SECTION 2 OF THE ACT OF JULY 12, 1921, 42 STAT. 139.

SECTION 1 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 629, PROVIDES:

THAT HEREAFTER ENLISTMENTS IN THE NAVY AND MARINE CORPS MAY BE FOR MINORITY OR TERMS OF TWO, THREE, FOUR, OR SIX YEARS, AND ALL LAWS NOW APPLICABLE TO FOUR-YEAR ENLISTMENTS SHALL APPLY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, TO ENLISTMENTS FOR A SHORTER OR LONGER PERIOD WITH PROPORTIONATE BENEFITS UPON DISCHARGE AND REENLISTMENT * * * PROVIDED FURTHER, THAT ALL ENLISTMENTS HEREAFTER ENTERED INTO MAY BE EXTENDED BY THE SECRETARY OF THE NAVY FOR SUCH ADDITIONAL TIME AS HE MAY DEEM NECESSARY IN THE PUBLIC INTEREST IN TIME OF WAR, OR NATIONAL EMERGENCY DECLARED BY THE PRESIDENT, TO EXIST: PROVIDED FURTHER, THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: AND PROVIDED FURTHER, THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH THIS ACT SHALL, UNLESS THEY VOLUNTARILY EXTEND THEIR ENLISTMENTS, BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE DATE OF THE TERMINATION OF THE WAR OR NATIONAL EMERGENCY.

SECTION 1 OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, PROVIDES:

THAT IN TIME OF WAR ALL ENLISTMENTS IN THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD, AND IN THE RESERVE COMPONENTS THEREOF AS APPLICABLE, MAY BE EXTENDED BY THE SECRETARY OF THE NAVY FOR SUCH ADDITIONAL TIME AS HE MAY DEEM NECESSARY IN THE INTEREST OF NATIONAL DEFENSE: PROVIDED, THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: PROVIDED FURTHER, THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH THIS ACT, SHALL UNLESS THEY VOLUNTARILY EXTEND THEIR ENLISTMENTS, BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE TERMINATION OF THE CONDITION WHICH ORIGINALLY AUTHORIZED THEIR DETENTION.

YOUR FIRST QUESTION IS STATED AS FOLLOWS:

(A) A MAN ORIGINALLY ENLISTED IN THE NAVY FOR SIX YEARS ON JANUARY 31, 1936; WHEN HIS ENLISTMENT EXPIRED ON MARCH 13, 1942, BY REASON OF LOST TIME, HE WAS DETAINED IN SERVICE UNDER AUTHORITY CONTAINED IN THE ACT OF DECEMBER 13, 1941 (55 STAT. 799); HE CONTINUED IN THIS STATUS UNTIL MARCH 23, 1943, WHEN HE WAS DISCHARGED AS YEOMAN FIRST CLASS AND VOLUNTARILY REENLISTED IN THE SAME RATING ON MARCH 24, 1943. IS THIS MAN ENTITLED TO REENLISTMENT ALLOWANCE OF $350.00 I.E., $50.00 FOR EACH YEAR SERVED IN THE ENLISTMENT PERIOD FROM WHICH LAST DISCHARGED?

IT WAS HELD IN A DECISION DATED DECEMBER 19, 1942, 22 COMP. GEN. 548, THAT THE ACT OF DECEMBER 13, 1941, SUPRA, AUTHORIZING THE INVOLUNTARY EXTENSION OF ENLISTMENTS FOR THE WAR PERIOD WAS NOT FOR THE PURPOSE OF STOPPING DISCHARGES AND VOLUNTARY REENLISTMENTS (OR VOLUNTARY EXTENSIONS OF ENLISTMENT), AND THAT ENLISTED MEN (NOT HOLDING TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941) WHO VOLUNTARILY REENLISTED OR WHOSE VOLUNTARY EXTENSIONS BECOME EFFECTIVE ON OR AFTER JUNE 1, 1942, ARE ENTITLED TO THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE ACT OF JUNE 16, 1942. IT IS CLEAR THAT UPON BEING HONORABLY DISCHARGED AFTER COMPLETING THE SIX-YEAR ENLISTMENT ENTERED INTO ON JANUARY 31, 1936, AND REENLISTING WITHIN THE THREE-MONTH PERIOD REQUIRED BY THE STATUTE, THE ENLISTED MAN REFERRED TO IN YOUR FIRST QUESTION WAS ENTITLED TO AN ENLISTMENT ALLOWANCE COMPUTED ON THE BASIS OF HAVING SERVED AT LEAST SIX YEARS IN THE PERIOD OF ENLISTMENT FROM WHICH HE LAST WAS DISCHARGED. HOWEVER, THE QUESTION ARISES AS TO WHETHER THE TIME IN EXCESS OF SIX YEARS WHICH HE ACTUALLY SERVED PRIOR TO HIS DISCHARGE WHILE DETAINED IN THE SERVICE PURSUANT TO THE ACT OF DECEMBER 13, 1941, MAY BE INCLUDED IN COMPUTING "THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF JUNE 16, 1942.

THE PURPOSE OF SECTION 1 OF THE SAID ACT OF DECEMBER 13, 1941, WAS TO VEST IN THE SECRETARY OF THE NAVY AUTHORITY TO EXTEND ENLISTMENTS IN ORDER TO RETAIN ENLISTED MEN IN THE NAVY IN TIME OF WAR. WHILE SERVING UNDER AN EXTENSION DIRECTED BY THE SECRETARY OF THE NAVY PURSUANT TO THAT STATUTE, AN ENLISTED MAN IS SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY AND UNLESS HE VOLUNTARILY EXTENDS HIS ENLISTED STATUS HE IS ENTITLED TO A DISCHARGE NOT LATER THAN SIX MONTHS AFTER THE TERMINATION OF THE CONDITION WHICH ORIGINALLY AUTHORIZED HIS DETENTION. THE EFFECT OF AN EXTENSION MADE UNDER THE STATUTE IS TO EXTEND AN ENLISTED MAN'S ENLISTMENT PERIOD BEYOND THE DATE ON WHICH IT OTHERWISE WOULD TERMINATE. IN OTHER WORDS, UNDER THE CIRCUMSTANCES STATED IN YOUR FIRST QUESTION THE MAN'S ENLISTMENT PERIOD WAS EXTENDED AND DID NOT TERMINATE UNTIL HE WAS DISCHARGED, AT WHICH TIME HE HAD SERVED SEVEN YEARS. ON SUCH BASIS, IT IS CONCLUDED THAT, FOR ENLISTMENT ALLOWANCE PURPOSES, THE PERIOD DURING WHICH AN ENLISTED MAN IS DETAINED IN THE SERVICE PURSUANT TO SECTION 1 OF THE ACT OF DECEMBER 13, 1941, MAY BE INCLUDED IN COMPUTING THE NUMBER OF YEARS AN ENLISTED MAN SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE LAST HAS BEEN DISCHARGED. IT FOLLOWS THAT AN ENLISTMENT ALLOWANCE BASED ON SEVEN YEARS' SERVICE IS AUTHORIZED UNDER THE CIRCUMSTANCES STATED IN YOUR FIRST QUESTION.

YOUR SECOND QUESTION IS AS FOLLOWS:

(B) A MAN REENLISTED AS CHIEF MACHINIST'S MATE ( PA), U.S.N., ON FEBRUARY 7, 1936, WAS TEMPORARILY APPOINTED A MACHINIST ON JANUARY 15, 1942, WHICH TEMPORARY APPOINTMENT WAS REVOKED ON FEBRUARY 11, 1943, WAS DISCHARGED ON FEBRUARY 19, 1943, AND REENLISTED ON FEBRUARY 20, 1943; HE HAD NO TIME LOST. IS THIS MAN ENTITLED TO REENLISTMENT ALLOWANCE (1) BASED ON EACH YEAR SERVED IN ENLISTMENT PERIOD, WHICH, ACCORDING TO RULING IN 22 (21) COMP. GEN. 991, EXTENDED FROM FEBRUARY 7, 1936, TO FEBRUARY 19, 1943, OR AN ALLOWANCE OF $350; OR (2) BASED ON EACH YEAR SERVED IN ENLISTMENT PERIOD BUT LIMITED TO A TOTAL OF SIX, OR AN ALLOWANCE OF $300; OR (3) BASED ON EACH YEAR SERVED IN ENLISTMENT PERIOD, EXCLUSIVE OF PERIOD OF SERVICE AS TEMPORARY WARRANT OFFICER, OR AN ALLOWANCE OF $250?

THE ENLISTED MAN'S TEMPORARY APPOINTMENT AS A MACHINIST APPARENTLY WAS MADE PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZING THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY. SECTION 7 (A) OF SAID ACT, 55 STAT. 604, CONTAINS THE FOLLOWING PROVISIONS:

THE PERMANENT, PROBATIONARY, OR ACTING APPOINTMENTS OF THOSE PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL NOT BE VACATED BY REASON OF SUCH TEMPORARY APPOINTMENTS, SUCH PERSONS SHALL NOT BE PREJUDICED THEREBY IN REGARD TO PROMOTION, ADVANCEMENT, OR APPOINTMENT IN ACCORDANCE WITH LAWS RELATING TO THE REGULAR NAVY OR MARINE CORPS, AND THEIR RIGHTS, BENEFITS, PRIVILEGES, AND GRATUITIES SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER: * * *

SECTION 10 OF SAID ACT, 55 STAT. 605, PROVIDES IN PART:

* * * UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL SHALL, UNLESS OTHERWISE PROVIDED HEREIN, REVERT TO THEIR PERMANENT GRADES, RANKS, OR RATINGS. * * *

UNDER THE SAID PROVISIONS OF SECTIONS 7 AND 10 OF THE ACT OF JULY 24, 1941, THE ENLISTED STATUS OF AN ENLISTED MAN COMMISSIONED OR WARRANTED UNDER THE TERMS OF SUCH ACT IS NOT TERMINATED UPON ACCEPTANCE OF THE TEMPORARY APPOINTMENT. UPON TEMPORARY APPOINTMENT AS A WARRANT OR COMMISSIONED OFFICER, AN ENLISTED MAN ASSUMES THE STATUS OF A TEMPORARY OFFICER IN WHICH HE PERFORMS ACTIVE SERVICE WHILE RETAINING IN ABEYANCE THE STATUS OF AN ENLISTED MAN IN WHICH NO SERVICE IS PERFORMED BUT WHICH IS SAVED TO HIM BY THE STATUTE AND TO WHICH HE IS TO REVERT UPON TERMINATION OF HIS TEMPORARY STATUS. IN THE CASE PRESENTED, THE MAN'S ENLISTED STATUS CONTINUED TO EXIST PAST THE SIX YEAR PERIOD FOR WHICH HE ENLISTED AND, IN EFFECT, HIS PERIOD OF ENLISTMENT WAS EXTENDED SO LONG AS HE SERVED IN HIS TEMPORARY RANK. HIS DISCHARGE ON FEBRUARY 19, 1943, AFTER REVOCATION OF HIS TEMPORARY APPOINTMENT AND REVERSION TO AN ACTIVE ENLISTED STATUS, WAS A DISCHARGE FROM THE ENLISTMENT PERIOD HE ENTERED INTO ON FEBRUARY 7, 1936, AS EXTENDED BY LAW TO INCLUDE THE TIME HE TEMPORARILY SERVED AS A WARRANT OFFICER, AND SUCH SERVICE WAS TIME SERVED IN THE ENLISTMENT PERIOD AS SO EXTENDED. CF. DECISION OF OCTOBER 8, 1921, 1 COMP. GEN. 194, 198, ANSWER TO QUESTION "/H).' ACCORDINGLY, UNDER THE CIRCUMSTANCES SET OUT IN YOUR SECOND QUESTION, THE ENLISTED MAN IS ENTITLED TO AN ENLISTMENT ALLOWANCE BASED ON SEVEN YEARS' SERVICE IN THE ENLISTMENT PERIOD FROM WHICH HE LAST WAS DISCHARGED.