B-54210, APRIL 8, 1946, 25 COMP. GEN. 700

B-54210: Apr 8, 1946

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AS FOLLOWS: THERE IS BEFORE THIS DEPARTMENT FOR CONSIDERATION THE QUESTION OF THE PROPRIETY OF PAYMENT OF THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 16 JUNE 1942 (56 STAT. 363 364). AN ENLISTED MAN ELIGIBLE FOR RETIREMENT APPLIED THEREFOR AND WAS GRANTED A RETIREMENT FURLOUGH OF 120 DAYS UNDER THE PROVISIONS OF SUBPARAGRAPH III. HIS REQUEST WAS APPROVED AND. IN A CASE WHERE AN ENLISTED MAN REENLISTED ON ONE DAY AND WAS DISCHARGED ON THE NEXT DAY TO ACCEPT AN APPOINTMENT AS A WARRANT OFFICER. THE COMPTROLLER OF THE TREASURY DENIED PAYMENT OF AN ENLISTMENT ALLOWANCE ON THE GROUND THAT SUCH REENLISTMENT WAS NOT BONA FIDE WITHIN THE MEANING OF THE THEN APPLICABLE STATUTE AUTHORIZING THE PAYMENT OF SUCH ALLOWANCE (27 COMP.

B-54210, APRIL 8, 1946, 25 COMP. GEN. 700

ENLISTMENT ALLOWANCE - REENLISTMENT AND IMMEDIATE REQUEST FOR RETIREMENT THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, MAY NOT BE PAID FOR AN ENLISTMENT ENTERED INTO BY AN ARMY ENLISTED MAN WHO, AFTER APPLICATION FOR RETIREMENT AND WHILE ON "RETIREMENT FURLOUGH," REQUESTED THAT HIS APPLICATION FOR RETIREMENT BE CANCELLED AND THAT HE BE DISCHARGED SO THAT HE COULD REENLIST PURSUANT TO THE ACT OF JUNE 1, 1945, BUT WHO, UPON REENLISTMENT, RESUBMITTED HIS APPLICATION FOR RETIREMENT EFFECTIVE UPON THE EXPIRATION OF THE UNCOMPLETED PORTION OF HIS "RETIREMENT FURLOUGH.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, APRIL 8, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 26, 1945, AS FOLLOWS:

THERE IS BEFORE THIS DEPARTMENT FOR CONSIDERATION THE QUESTION OF THE PROPRIETY OF PAYMENT OF THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 16 JUNE 1942 (56 STAT. 363 364), AS AMENDED, WITH PARTICULAR REFERENCE TO THE PROVISIONS OF SECTION 8 OF THE ACT OF 6 OCTOBER 1945 ( PUBLIC LAW 190, 79TH CONGRESS), IN THE CIRCUMSTANCES SET FORTH BELOW.

SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT OF 1 JUNE 1945 ( PUBLIC LAW 72, 79TH CONGRESS), PROVIDING FOR ENLISTMENT OR REENLISTMENT IN THE REGULAR ARMY, BUT PRIOR TO THE ENACTMENT OF THE ACT OF 6 OCTOBER 1945, SUPRA, AN ENLISTED MAN ELIGIBLE FOR RETIREMENT APPLIED THEREFOR AND WAS GRANTED A RETIREMENT FURLOUGH OF 120 DAYS UNDER THE PROVISIONS OF SUBPARAGRAPH III, AR 615-275, DATED 2 SEPTEMBER 1944. WHILE ON SUCH RETIREMENT FURLOUGH, HE REQUESTED THAT HIS APPLICATION FOR RETIREMENT BE CANCELLED AND THAT HE BE DISCHARGED AND REENLISTED UNDER THE PROVISIONS OF THE ACT OF 1 JUNE 1945, SUPRA, AND WAR DEPARTMENT CIRCULAR NO. 249, DATED 16 AUGUST 1945 (NOW SUPERSEDED BY WAR DEPARTMENT CIRCULAR NO. 310, DATED 6 OCTOBER 1945). HIS REQUEST WAS APPROVED AND, UPON REENLISTMENT, HE RESUBMITTED HIS APPLICATION FOR RETIREMENT WHICH, WHEN APPROVED, WOULD BE EFFECTIVE AT THE EXPIRATION OF HIS UNCOMPLETED RETIREMENT FURLOUGH.

THE QUESTION AS TO ELIGIBILITY FOR THE ENLISTMENT ALLOWANCE IN SUCH A CASE HAS BEEN CONSIDERED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY IN CONNECTION WITH THE DOUBT AT TO BONA FIDES OF THE REENLISTMENT. IN A CASE WHERE AN ENLISTED MAN REENLISTED ON ONE DAY AND WAS DISCHARGED ON THE NEXT DAY TO ACCEPT AN APPOINTMENT AS A WARRANT OFFICER, THE COMPTROLLER OF THE TREASURY DENIED PAYMENT OF AN ENLISTMENT ALLOWANCE ON THE GROUND THAT SUCH REENLISTMENT WAS NOT BONA FIDE WITHIN THE MEANING OF THE THEN APPLICABLE STATUTE AUTHORIZING THE PAYMENT OF SUCH ALLOWANCE (27 COMP. DEC. 747). IT APPEARS IN THE CASE NOW UNDER CONSIDERATION THAT THE PURPOSE OF THE DISCHARGE AND REENLISTMENT WERE TO ENABLE THE ENLISTED MAN CONCERNED TO RECEIVE THE ENLISTMENT ALLOWANCE AND POSSIBLY ALSO TO OBTAIN A REENLISTMENT FURLOUGH UNDER THE PROVISIONS OF THE WAR DEPARTMENT CIRCULARS CITED ABOVE, IN ADDITION TO THE BALANCE OF HIS RETIREMENT FURLOUGH, IT IS DOUBTFUL WHETHER AN ENLISTMENT ALLOWANCE WOULD BE PAYABLE UNDER THE RATIONALE OF THE CITED DECISION. HOWEVER, IT IS NOTED THAT, IN A SUBSEQUENT DECISION (2 COMP. GEN. 162, 166), CONCERNING THE CONDITIONS WHICH MUST BE MET IN ESTABLISHING A RIGHT TO AN ENLISTMENT ALLOWANCE, THE COMPTROLLER GENERAL OF THE UNITED STATES MADE NO REFERENCE TO GOOD FAITH IN CONNECTION WITH A REENLISTMENT AS ONE OF THE CONDITIONS PRECEDENT TO SUCH RIGHT.

IN VIEW OF THE DOUBT EXISTING IN THE CIRCUMSTANCES SET FORTH ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER THE ENLISTMENT ALLOWANCE IS PAYABLE IN THE PREMISES.

PUBLIC LAW 72, APPROVED JUNE 1, 1945, 59 STAT. 230, AUTHORIZES THE SECRETARY OF WAR DURING THE EXISTENCE OF THE PRESENT WAR TO ACCEPT ORIGINAL ENLISTMENTS OR REENLISTMENTS IN THE REGULAR ARMY OF, INTER ALIA, PERSONS SERVING IN THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, FOR A TERM OF SERVICE OF 3 YEARS OR FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER, WHICHEVER IS THE LONGER PERIOD. THE NEXT TO THE LAST PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED BY SECTION 8 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, PROVIDES AS FOLLOWS:

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 (55 STAT. 629) ( PUBLIC 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 (55 STAT. 629) PUBLIC LAW 215, SEVENTY SEVENTH CONGRESS) ARE HEREBY SUSPENDED:PROVIDED FURTHER, THAT AN ENLISTMENT IN A BRANCH OF THE REGULAR SERVICE WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE FROM ANY COMPONENT OF SUCH BRANCH, OTHER THAN ITS REGULAR ESTABLISHMENT AFTER NOT LESS THAN ONE YEAR'S CONTINUOUS ACTIVE SERVICE IN SUCH COMPONENT OR COMPONENTS IMMEDIATELY PRECEDING THE DATE OF DISCHARGE THEREFROM, SHALL BE CONSIDERED A REENLISTMENT FOR THE PURPOSE OF PAYMENT OF THE ENLISTMENT ALLOWANCE PROVIDED BY THIS SECTION; AND THE ENLISTMENT ALLOWANCE SHALL BE COMPUTED ON THE BASIS OF THE NUMBER OF FULL YEARS' CONTINUOUS ACTIVE SERVICE IMMEDIATELY PRECEDING THE DISCHARGE FROM SUCH COMPONENT.

SECTION 8 OF PUBLIC LAW 190, PROVIDED OCTOBER 6, 1945, 59 STAT. 541, FURTHER AMENDED THE SAID SECTION 10 BY INSERTING AFTER THE PARAGRAPH ABOVE QUOTED A NEW PARAGRAPH READING AS FOLLOWS:

SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, IS AMENDED BY INSERTING BEFORE THE LAST PARAGRAPH THEREOF A NEW PARAGRAPH READING AS FOLLOWS:

"THE AMOUNT OF THE ENLISTMENT ALLOWANCE PAYABLE TO PERSONS ENLISTED OR REENLISTED IN THE REGULAR MILITARY ESTABLISHMENT ON OR AFTER JUNE 1, 1945, OR IN THE REGULAR NAVAL ESTABLISHMENT ON OR AFTER FEBRUARY 1, 1945, SHALL BE COMPUTED AT THE RATE PRESCRIBED FOR ENLISTED MEN OF THE FIRST THREE GRADES. FOR THE PURPOSE OF DETERMINING THE ELIGIBILITY OF ANY PERSON ENLISTED OR REENLISTED IN THE REGULAR MILITARY ESTABLISHMENT ON OR AFTER JUNE 1, 1945, OR IN THE REGULAR NAVAL ESTABLISHMENT ON OR AFTER FEBRUARY 1, 1945, TO RECEIVE THE ENLISTMENT ALLOWANCE, AND IN COMPUTING THE AMOUNT THEREOF ALL CONTINUOUS ACTIVE FEDERAL SERVICE IN THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF (IF ENLISTED OR REENLISTED IN THE REGULAR MILITARY ESTABLISHMENT), OR IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR ANY RESERVE COMPONENT THEREOF (IF ENLISTED OR REENLISTED IN THE REGULAR NAVAL ESTABLISHMENT), WHETHER IN ENLISTED GRADES OR IN COMMISSIONED, COMMISSIONED WARRANT, OR WARRANT OFFICER GRADES, SHALL, IF HONORABLY PERFORMED SUBSEQUENT TO THE PAYMENT OF THE LAST PREVIOUS ENLISTMENT ALLOWANCE, BE CREDITED AS A PERIOD OF ACTIVE ENLISTED SERVICE. DETERMINING WHETHER ACTIVE FEDERAL SERVICE IS CONTINUOUS, ANY INTERRUPTIONS, OF NOT MORE THAN NINETY DAYS EACH, BETWEEN PERIODS OF SUCH SERVICE SHALL BE DISREGARDED.'

IN THE DECISION OF FEBRUARY 21, 1921, 27 COMP. DEC. 747, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT AN ENLISTED MAN OF THE ARMY WHO, AFTER HAVING COMPLETED THE 10 YEARS' ENLISTED SERVICE REQUIRED TO ESTABLISH ELIGIBILITY FOR APPOINTMENT AS A WARRANT OFFICER UNDER SECTION 4A OF THE ACT OF JUNE 4, 1920, 41 STAT. 761, WAS DISCHARGED AND IMMEDIATELY REENLISTED FOR THE SOLE PURPOSE OF FACILITATING HIS DISCHARGE AS AN ENLISTED MAN SO THAT HE COULD BE APPOINTED A WARRANT OFFICER MAY NOT BE REGARDED AS HAVING ENTERED INTO A BONA FIDE REENLISTMENT FOR A PERIOD OF 3 YEARS AS REQUIRED UNDER THE ENLISTMENT ALLOWANCE STATUTE, AND, THEREFOR THAT PAYMENT OF AN ENLISTMENT ALLOWANCE WAS NOT AUTHORIZED. THE DECISION OF AUGUST 31, 1922, 2 COMP. GEN. 162, 166, QUESTION AND ANSWER H, INVOLVED THE CASE OF A SOLDIER WHOSE ORGANIZATION HAD BEEN ORDERED OVERSEAS FOR OR TOUR OF FOREIGN DUTY AND AS HE HAD COMPLETED OVER TWO YEARS OF A THREE- YEAR ENLISTMENT TERM IT WAS NECESSARY, IN VIEW OF THE WAR DEPARTMENT POLICY OF SENDING ONLY SUCH SOLDIERS OVERSEAS AS HAVE TWO YEARS OR MORE YET TO SERVE, THAT HE BE DISCHARGED PRIOR TO THE EXPIRATION OF HIS ENLISTMENT TERM AND REENLISTED FOR A NEW THREE-YEAR TERM. IT WAS STATED IN THAT DECISION THAT THE ONLY REQUIREMENT OF THE STATUTE IS THAT THE SOLDIER BE HONORABLY DISCHARGED AND REENLIST WITHIN 3 MONTHS AFTER DISCHARGE, AND, THEREFORE, THAT THE ENLISTED MAN WAS ENTITLED TO THE ENLISTMENT ALLOWANCE MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH LAST DISCHARGED. AS POINTED OUT IN YOUR LETTER, THE SAID DECISION MAKES NO REFERENCE TO THE PRINCIPLE RELIED UPON IN 27 COMP. DEC. 747, THAT IS, THAT GOOD FAITH IS A CONDITION PRECEDENT TO ENTITLE AN ENLISTED MAN TO PAYMENT OF AN ENLISTMENT ALLOWANCE. HOWEVER, IT WILL BE NOTED THAT UNDER THE CIRCUMSTANCES APPEARING IN THAT CASE THERE WAS NO DOUBT BUT THAT THE REENLISTMENT WAS ENTERED INTO IN GOOD FAITH AND, HENCE, THERE WAS NO OCCASION OR NECESSITY FOR CONSIDERING OR DISCUSSING THE ELEMENT OF GOOD FAITH.

IN THE PRESENT CASE IT APPEARS THAT AN ENLISTED MAN ELIGIBLE FOR RETIREMENT MADE APPLICATION THEREFOR AND WAS GRANTED A 120 DAY "RETIREMENT FURLOUGH" AND, WHILE ON SUCH FURLOUGH, REQUESTED THAT HIS APPLICATION FOR RETIREMENT BE CANCELLED SO THAT HE COULD REENLIST UNDER THE PROVISIONS OF THE ACT OF JUNE 1, 1945; THAT SUCH REQUEST WAS GRANTED AND HE WAS DISCHARGED AND IMMEDIATELY REENLISTED--- PRESUMABLY FOR THE DURATION OF THE PRESENT WAR OR 3 YEARS, WHICHEVER SHOULD BE ONGER; AND THAT IMMEDIATELY FOLLOWING HIS REENLISTMENT HE RESUBMITTED HIS APPLICATION FOR RETIREMENT TO BE EFFECTIVE UNDER EXPIRATION OF THE UNCOMPLETED RETIREMENT FURLOUGH. UNDER SUCH CIRCUMSTANCES, IT WOULD APPEAR THAT AT THE TIME OF REENLISTMENT THE ENLISTED MAN HAD NO INTENTION OF REPORTING FOR ACTIVE DUTY UNDER THE CONTRACT OF ENLISTMENT, OR OTHERWISE. HOWEVER, INASMUCH AS THE MAN ACTUALLY REENLISTED WITHIN 3 MONTHS FROM DATE OF DISCHARGE AS PROVIDED IN THE ENLISTMENT ALLOWANCE STATUTE, THE QUESTION NOW ARISES AS TO WHETHER THE LAW CONTEMPLATES PAYMENT OF AN ENLISTMENT ALLOWANCE UNDER SUCH CIRCUMSTANCES.

THE CURRENT ENLISTMENT ALLOWANCE STATUTE, LIKE THAT CONSIDERED IN THE DECISION OF FEBRUARY 21, 1921, MERELY REQUIRES THAT THE ENLISTED MAN BE HONORABLY DISCHARGED AND REENLIST WITHIN 3 MONTHS FROM THE DATE OF DISCHARGE IN ORDER TO BE ENTITLED TO PAYMENT OF THE ENLISTMENT ALLOWANCE. WHILE A LITERAL APPLICATION OF THE STATUTE MIGHT BE VIEWED AS PERMITTING PAYMENT OF AN ENLISTMENT ALLOWANCE UNDER CONDITIONS SUCH AS THOSE APPEARING IN THE PRESENT CASE, IT IS A SETTLED RULE OF STATUTORY INTERPRETATION THAT LAWS ARE TO BE GIVEN A SENSIBLE CONSTRUCTION, AND A LITERAL APPLICATION OF A STATUTE WHICH WOULD LEAD TO ABSURD CONSEQUENCES IS TO BE AVOIDED WHENEVER A REASONABLE APPLICATION CAN BE GIVEN TO IT. BEACH V. UNITED STATES, 144 F.2D 533; PETERS V. FELBER, 152 P.2D 42; RUSSELL V. LUND, 39 A. 2D 337; LAMBURY V. YATES, 148 F.2D 137; ALSO THAT THE LITERAL MEANING OF A STATUTE NEED NOT BE FOLLOWED IF SO DOING WOULD ACHIEVE A RESULT CONTRARY TO ITS EVIDENT PURPOSE AND LEGISLATIVE INTENT. UNITED STATES V. AMERICAN TRUCKING ASSOCIATION, INC., 310 U.S. 534; UNITED STATES V. KATZ, 271 U.S. 354.

TO VIEW SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AS AUTHORIZING PAYMENT OF AN ENLISTMENT ALLOWANCE IN A CASE WHERE A PERSON MERELY COMPLIES WITH THE FORMALITY OF ENTERING INTO A CONTRACT OF ENLISTMENT WHEN HE FLAGRANTLY HAD NO INTENTION OF SERVING UNDER SUCH CONTRACT AND BEING ENTITLED AS A MATTER OF RIGHT TO RETIREMENT, CANNOT BE REQUIRED TO SERVE UNDER SUCH CONTRACT, NOT ONLY WOULD BE REPUGNANT TO THE EVIDENT LEGISLATIVE INTENT AND PURPOSE OF THE STATUTE BUT WOULD RESULT IN AN ABSURDITY. MANIFESTLY, THE PURPOSE OF AUTHORIZING THE PAYMENT OF AN ENLISTMENT ALLOWANCE UPON REENLISTMENT WAS TO INDUCE QUALIFIED AND EXPERIENCED MILITARY AND NAVAL PERSONNEL TO OBLIGATE THEMSELVES TO CONTINUE TO SERVE IN THE ACTIVE MILITARY AND NAVAL FORCES. WHILE THE LITERAL REQUIREMENT OF THE STATUTE IS MET WHEN THE MAN ACTUALLY REENLISTS, I BELIEVE THAT IT REASONABLY MAY BE CONCLUDED THAT THE STATUTE ALSO CONTEMPLATES THAT THE ENLISTMENT OR REENLISTMENT BE ENTERED INTO IN GOOD FAITH, THAT IS, AT LEAST WITH THE INTENTION AND EXPECTATION OF ACTUALLY SERVING THEREUNDER.

ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, I HAVE TO ADVISE THAT AN ENLISTMENT ALLOWANCE PROPERLY MAY NOT BE PAID UNDER THE CIRCUMSTANCES RELATED IN YOUR LETTER.