B-37827, DECEMBER 11, 1943, 23 COMP. GEN. 419

B-37827, DECEMBER 11, 1943, 23 COMP. GEN. 419

TRAVEL AND ENLISTMENT ALLOWANCES - NAVY ENLISTED MEN PROMOTED TO TEMPORARY WARRANT OFFICERS A NAVY ENLISTED MAN WHO, IN GOOD FAITH AND WITHOUT KNOWLEDGE OF HIS PRIOR APPOINTMENT AS TEMPORARY WARRANT OFFICER UNDER THE ACT OF JULY 24, 1941, EXTENDED HIS ENLISTMENT DURING THE INTERVENING PERIOD BETWEEN THE DATE OF ISSUANCE OF THE TEMPORARY APPOINTMENT AND THE DATE OF ACTUAL ACCEPTANCE THEREOF, MAY ELECT TO RECEIVE EITHER THE PAY AND ALLOWANCES, INCLUDING REENLISTMENT AND TRAVEL ALLOWANCES, OF HIS ENLISTED GRADE UP TO THE DATE HE ACTUALLY ACCEPTED THE TEMPORARY APPOINTMENT, OR THE PAY AND ALLOWANCES OF HIS TEMPORARY GRADE OR RANK FROM THE DATE OF HIS APPOINTMENT THERETO AS AUTHORIZED BY SECTION 5 OF THE ACT OF JUNE 30, 1942. 21 COMP. GEN. 991; 22 ID. 548, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 11, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 19, 1943, REQUESTING DECISION RELATIVE TO THE LEGALITY OF THE CANCELLATION OF DISCHARGES AND REENLISTMENTS OR EXTENSIONS OF ENLISTMENTS EFFECTED DURING THE PERIOD INTERVENING BETWEEN THE ISSUANCE OF TEMPORARY APPOINTMENTS UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AND THE ACTUAL ACCEPTANCE THEREOF, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT THE ENLISTMENT OF CLIFTON BREWER, CSK ( PA), U.S. NAVY, EXPIRED ON APRIL 12, 1943, AT WHICH TIME HE ENTERED INTO AN AGREEMENT EFFECTIVE APRIL 13, 1943, TO EXTEND HIS ENLISTMENT, FOR A PERIOD OF THREE YEARS. ACCORDINGLY, HE WAS CREDITED WITH REENLISTMENT AND TRAVEL ALLOWANCES IN THE AMOUNT OF $217.30. IN THE MEANTIME, UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, SUPRA, BREWER HAD BEEN APPOINTED A TEMPORARY ACTING PAY CLERK ON MARCH 15, 1943, NOTICE OF SUCH APPOINTMENT PRESUMABLY NOT HAVING BEEN RECEIVED BY HIM UNTIL SOME TIME AFTER THE EXPIRATION OF HIS ENLISTMENT AND HIS EXTENSION THEREOF ON APRIL 12, 1943. HE IS STATED TO HAVE ACCEPTED THE APPOINTMENT AS ACTING PAY CLERK ON APRIL 21, 1943, AND, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, HE WAS ENTITLED TO THE PAY AND ALLOWANCES OF SUCH TEMPORARY GRADE FROM MARCH 15, 1943, THE DATE HE WAS APPOINTED THERETO.

IN DECISION OF MAY 7, 1942, 21 COMP. GEN. 991, ADHERED TO IN DECISION OF DECEMBER 19, 1942, 22 COMP. GEN. 548, IT WAS HELD THAT ENLISTED MEN SERVING AS TEMPORARY OFFICERS UNDER THE ACT OF JULY 24, 1941, SUPRA, WERE NOT ENTITLED TO THE REENLISTMENT AND TRAVEL ALLOWANCES AUTHORIZED BY LAW FOR ENLISTED MEN, UNDER CERTAIN CONDITIONS, INCIDENT TO THEIR DISCHARGE AND REENLISTMENT OR EXTENSION OF ENLISTMENT. APPARENTLY, APPLYING THAT DECISION TO THE FACTS OF THE CASE HERE CONSIDERED CHECK AGE WAS REQUESTED AGAINST BREWER'S ACCOUNT FOR THE AMOUNT OF THE REENLISTMENT AND TRAVEL ALLOWANCES CREDITED HIM.

WITH A VIEW TO PERMITTING BREWER TO RECEIVE CREDIT FOR SERVICE IN THE ENLISTMENT PERIOD WHICH EXPIRED ON APRIL 12, 1943, FOR THE PURPOSE OF COMPUTING HIS REENLISTMENT ALLOWANCE UPON HIS ULTIMATE DISCHARGE AND REENLISTMENT, THIS OFFICE IS REQUESTED TO PASS UPON THE LEGALITY OF THE CANCELLATION OF BREWER'S AGREEMENT TO EXTEND HIS ENLISTMENT (ALREADY EFFECTIVE) AND TO TREAT THE ORIGINAL ENLISTMENT AS AUTOMATICALLY EXTENDED UNDER THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, SO AS TO RESTORE HIM AND OTHER ENLISTED MEN CONCERNED TO THEIR ENLISTED STATUS AS OF THE DAY THEIR ENLISTMENT EXPIRED.

THE ESTABLISHED RULE IS THAT DISCHARGES ONCE VALIDLY ISSUED BY COMPETENT AUTHORITY MAY NOT BE REVOKED UNLESS THEY WERE PROCURED THROUGH FRAUD OR MISREPRESENTATION. SEE DECISION DATED JUNE 15, 1943, B-34483; 4 COMP. GEN. 260; ID. 773 AND THE AUTHORITIES CITED THEREIN. ALSO, SEE LAWS RELATING TO THE NAVY, ANNOTATED, 1929, PAGE 109, ET SEQ. NOR, AS A GENERAL PROPOSITION, MAY AGREEMENTS TO EXTEND ENLISTMENTS BE CANCELED SUBSEQUENT TO THE EFFECTIVE DATE OF SUCH AGREEMENT. SEE ARTICLE D-1006 (3), BUREAU OF NAVAL PERSONNEL MANUAL. HOWEVER, THERE WOULD APPEAR TO BE NO OCCASION OR NECESSITY FOR SUCH ATTEMPTED CANCELLATIONS WHERE THE REENLISTMENT OR EXTENSION OF ENLISTMENT WAS ACCOMPLISHED IN GOOD FAITH ON THE PART OF THE ENLISTED MAN PRIOR TO THE RECEIPT OF NOTICE OF HIS TEMPORARY APPOINTMENT EVEN THOUGH SUBSEQUENT TO THE DATE ON WHICH SUCH TEMPORARY APPOINTMENT WAS MADE BY THE PRESIDENT.

SECTION 5 OF THE ACT OF JUNE 30, 1942, SUPRA, PROVIDES:

SEC. 5. PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.

THE PRIMARY, IF NOT THE ONLY, PURPOSE OF SAID SECTION 5 WAS TO PERMIT THE PAYMENT RETROACTIVELY OF THE HIGHER PAY AND ALLOWANCES TO PERSONNEL FOR THE PERIOD INTERVENING BETWEEN THE ISSUANCE OF THEIR TEMPORARY APPOINTMENTS TO A HIGHER GRADE OR RANK AND THEIR ACTUAL ACCEPTANCE THEREOF, IT APPEARING THAT THE NAVY DEPARTMENT FAVORED SUCH LEGISLATION BECAUSE OF THE LAPSE OF TIME GENERALLY OCCURRING WITH RESPECT TO APPOINTMENTS AND ACCEPTANCES THEREOF BY PERSONNEL ASSIGNED TO SEA OR FOREIGN SERVICE. SUCH PROVISION IN EFFECT EXTENDED AND SUPPLEMENTED THE ACT OF MARCH 4, 1913, 37 STAT. 892, WHICH MADE SIMILAR PROVISION FOR OFFICERS OF THE REGULAR NAVY ADVANCED IN RANK OR GRADE. SEE 22 COMP. GEN. 1107, 1108. IT WAS STATED IN DECISION OF JANUARY 2, 1925, 4 COMP. GEN. 577, 578, WITH RESPECT TO THE SAID ACT OF MARCH 4, 1913, THAT SUCH LEGISLATION IS BENEFICIAL IN NATURE AND DOES NOT OPERATE RETROSPECTIVELY SO AS TO ENFORCE A REDUCTION OR FORFEITURE OF PAY AND ALLOWANCES ACTUALLY RECEIVED OVER THE PERIOD BETWEEN THE DATE THE APPOINTMENT WAS ISSUED AND THE DATE OF ACCEPTANCE THEREOF. ALSO, SEE DECISION OF OCTOBER 11, 1929, A -28980, ADDRESSED TO YOU.

ASSUMING THAT ON THE EFFECTIVE DATE OF THE EXTENSION OF HIS ENLISTMENT BREWER HAD NO KNOWLEDGE OF HIS TEMPORARY APPOINTMENT, HE MAY ELECT TO RECEIVE THE PAY AND ALLOWANCES, INCLUDING REENLISTMENT AND TRAVEL ALLOWANCES, OF HIS ENLISTED GRADE UP UNTIL THE DATE HE ACTUALLY ACCEPTED HIS TEMPORARY APPOINTMENT--- APRIL 21, 1943--- RATHER THAN ACCEPT THE BENEFITS OF SECTION 5 OF THE ACT OF JUNE 30, 1942, SUPRA. OF COURSE, HE MAY NOT RETAIN THE PAY AND ALLOWANCES OF HIS ENLISTED GRADE, IN WHOLE OR IN PART, AND AT THE SAME TIME RECEIVE THE PAY AND ALLOWANCES OF HIS TEMPORARY RANK OR GRADE. SEE SECTION 7 OF THE ACT OF JULY 24, 1941, 55 STAT. 604, SUPRA. ..END :