B-5467, AUGUST 18, 1939, 19 COMP. GEN. 229

B-5467, AUGUST 18, 1939, 19 COMP. GEN. 229

ENLISTMENT ALLOWANCE - SUBSEQUENT TO JULY 1, 1939 - EXTENSIONS OF ENLISTMENT PRIOR TO JULY 1, 1939, WITH DISCHARGE AFTER SAID DATE MERE SUSPENSION OF A LAW FOR A LIMITED PERIOD DOES NOT OPERATE AS A PERMANENT REPEAL OF THE LAW. AS IT IS CLEAR THAT THE INTENTION OF THE CONGRESS TO ANNUALLY SUSPEND THE OPERATION OF THE PERMANENT LAW AS CONTAINED IN THE ACT OF JUNE 10, 1922, 42 STAT. 629, FOR THE PAYMENT OF ENLISTMENT ALLOWANCES EXTENDED ONLY DURING THE 6 FISCAL YEARS BEGINNING JULY 1, 1933, AND ENDING JUNE 30, 1939, AND THE LANGUAGE OF THE APPROPRIATION " MARINE CORPS, PAY, MARINE CORPS," AND CONTAINED IN THE NAVY APPROPRIATION ACT OF MAY 25, 1939, PUBLIC, NO. 90, 53 STAT. 774, IS SIMILAR TO AND AS BROAD IN EFFECT AS THE ANALOGOUS PROVISION IN THE APPROPRIATION FOR THE FISCAL YEAR ENDING JUST PRIOR TO THE SUSPENSION, THE APPROPRIATION FOR THE FISCAL YEAR 1940 IS AVAILABLE FOR PAYMENT OF ENLISTMENT ALLOWANCES TO THE EXTENT OTHERWISE PROVIDED FOR BY THE PERMANENT LAW OF 1922. ALL EXTENSIONS OF ENLISTMENTS MADE PRIOR TO JULY 1, 1939, WITH DISCHARGE THEREFROM AFTER JULY 1, 1939, AND REENLISTMENT WITHIN 3 MONTHS OF DISCHARGE, MUST BE TREATED, FOR ENLISTMENT ALLOWANCE PURPOSES, AS THE ENLISTED PERIOD FROM WHICH THE ENLISTED MAN WAS LAST DISCHARGED, AND NO PART OF THE ORIGINAL ENLISTMENT WHICH WAS EXTENDED PRIOR TO JULY 1, 1939, MAY BE ADDED THERETO FOR THAT PURPOSE, EXCEPT, THAT IN THE CASE OF TWO SUCCESSIVE 1-YEAR EXTENSIONS, THE PERIOD OF SERVICE UNDER ONE OF WHICH WAS ENTIRELY PRIOR TO JULY 1, 1939, THE ENLISTED PERIOD IS TO BE CONSIDERED AS THOUGH THE FIRST EXTENSION HAD BEEN FOR A PERIOD OF 2 YEARS. A MARINE CORPS ENLISTED MAN IN THE FIRST PAY GRADE WHO ENLISTED FOR 4 YEARS ON AUGUST 5, 1934; EXTENDED HIS ENLISTMENT FOR 1 YEAR; WAS DISCHARGED AUGUST 4, 1939; AND REENLISTED WITHIN 3 MONTHS, HAVING SERVED ONLY 1 YEAR, FOR ENLISTMENT ALLOWANCE PURPOSES, IN THE ENLISTMENT PERIOD FROM WHICH LAST DISCHARGED, IS ENTITLED TO AN ENLISTMENT ALLOWANCE FOR 1 YEAR OR $50. A MARINE CORPS ENLISTED MAN IN THE FIRST PAY GRADE WHO ENLISTED FOR 4 YEARS ON AUGUST 5, 1933; EXTENDED HIS ENLISTMENT FOR 1 YEAR; AGAIN EXTENDED HIS ENLISTMENT FOR 1 YEAR; WAS DISCHARGED AUGUST 4, 1939; AND REENLISTED WITHIN 3 MONTHS, SHOULD BE CONSIDERED, FOR ENLISTMENT ALLOWANCE PURPOSES, AS HAVING EXTENDED HIS ENLISTMENT ORIGINALLY FOR 2 YEARS, AND AS HAVING SERVED 2 YEARS IN THE ENLISTMENT FROM WHICH LAST DISCHARGED AND THEREFORE ENTITLED TO ENLISTMENT ALLOWANCE FOR 2 YEARS OR $100.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 18, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 9, 1939, REQUESTING DECISION UPON QUESTIONS SET FORTH IN A LETTER FROM THE PAYMASTER, UNITED STATES MARINE CORPS, DATED AUGUST 8, 1939, AS FOLLOWS:

SUBJECT: RESUMPTION OF PAYMENT OF ENLISTMENT ALLOWANCE.

1. CONGRESS HAS PLACED NO RESTRICTION ON THE PAYMENT OF ENLISTMENT ALLOWANCE FOR THE FISCAL YEAR BEGINNING JULY 1, 1939.

2. THIS OFFICE DESIRES TO ISSUE INSTRUCTIONS TO THE DISBURSING OFFICERS OF THE PAYMASTERS DEPARTMENT OF THE MARINE CORPS TO RESUME PAYMENTS OF THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629.

3. THE QUESTION ARISES AS TO WHAT ENLISTMENT ALLOWANCE IS PROPERLY PAYABLE IN THE FOLLOWING CASES:

(A) AN ENLISTED MAN IN THE FIRST PAY GRADE ENLISTED FOR FOUR (4) YEARS ON AUGUST 5, 1934. HE SUBSEQUENTLY EXTENDED HIS ENLISTMENT FOR A PERIOD OF ONE (1) YEAR AND WAS DISCHARGED AUGUST 4, 1939. REENLISTS WITHIN THREE (3) MONTHS.

(B) AN ENLISTED MAN IN THE FIRST PAY GRADE ENLISTED FOR FOUR (4) YEARS ON AUGUST 5, 1934. HE SUBSEQUENTLY EXTENDED HIS ENLISTMENT FOR ONE (1) YEAR AND AGAIN EXTENDED HIS ENLISTMENT FOR A PERIOD OF ONE (1) YEAR, TOTAL EXTENSIONS TWO (2) YEARS. HE WAS DISCHARGED AUGUST 4, 1939. REENLISTED WITHIN THREE MONTHS.

4. IT IS RECOMMENDED THAT AN ADVANCE DECISION BE REQUESTED OF THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE ABOVE-CITED CASES.

THE BASIC LAW PROVIDING FOR PAYMENT OF THE ENLISTMENT ALLOWANCE TO ENLISTED MEMBERS OF THE ARMY AND MARINE CORPS IS CONTAINED IN SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, WHICH PROVIDES, INSOFAR AS MATERIAL, AS FOLLOWS:

* * * ON AND AFTER JULY 1, 1922, 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. * * *

PAYMENT OF THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 9 OF THE ACT OF JUNE 10, 1922, WAS FIRST SUSPENDED AS ONE OF THE ECONOMY PROVISIONS BY SECTION 18 OF THE TREASURY-POST OFFICE APPROPRIATION ACT FOR THE FISCAL YEAR BEGINNING JULY 1, 1933, APPROVED MARCH 3, 1933, 47 STAT. 1219, WHICH PROVIDED IN PART AS FOLLOWS:

SO MUCH OF SECTIONS 9 AND 10 OF THE ACT ENTITLED " AN ACT TO READJUST THE PAY AND ALLOWANCES OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED JUNE 10, 1922 ( U.S.C., TITLE 37, SECS. 13 AND 16), AS PROVIDES FOR THE PAYMENT OF ENLISTMENT ALLOWANCE TO ENLISTED MEN FOR REENLISTMENT WITHIN A PERIOD OF THREE MONTHS FROM DATE OF DISCHARGE IS HEREBY SUSPENDED AS TO REENLISTMENTS MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1934.

THE SUSPENSION WAS CONTINUED FOR THE FISCAL YEAR 1935 BY SECTION 24 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MARCH 28, 1934, 48 STAT. 523; FOR THE FISCAL YEAR 1936 IN THE TREASURY-POST OFFICE APPROPRIATION ACT UNDER " COAST GUARD," APPROVED MAY 14, 1935, 49 STAT. 226; FOR THE FISCAL YEAR 1937, UNDER THE SAME ENTITLED ACT AND HEADING, JUNE 23, 1936, 49 STAT. 1837; FOR THE FISCAL YEAR 1938, IN THE SECOND DEFICIENCY ACT FOR 1937, UNDER NON-MILITARY ACTIVITIES (OF THE WAR DEPARTMENT) SUBHEADED " CORPS OF ENGINEERS," APPROVED MAY 28, 1937, 50 STAT. 232; AND FOR THE FISCAL YEAR ENDING JUNE 30, 1939, BY A PROVISION CONTAINED IN SECTION 402, PUBLIC RESOLUTION NO. 122, APPROVED JUNE 21, 1938, 52 STAT. 819.

IT IS CLEAR AND SEEMS TO BE RECOGNIZED THAT THE INTENTION OF THE CONGRESS TO ANNUALLY SUSPEND THE OPERATION OF THE PERMANENT LAW AS CONTAINED IN THE ACT OF JUNE 10, 1922, FOR THE PAYMENT OF THE ENLISTMENT ALLOWANCES EXTENDED ONLY DURING THE SIX FISCAL YEARS BEGINNING JULY 1, 1933, AND ENDING JUNE 30, 1939, THERE APPEARING NO IMPLICATION THAT THE CONGRESS INTENDED TO REPEAL PERMANENTLY THE SUBSTANTIVE LAW. MERE SUSPENSION OF A LAW FOR A LIMITED PERIOD DOES NOT OPERATE AS A PERMANENT REPEAL OF THE LAW.

THE PROVISION CONTAINED IN THE ACT OF MAY 25, 1939, PUBLIC, NO. 90, 76TH CONGRESS, 53 STAT. 775, MAKING APPROPRIATIONS FOR THE NAVY DEPARTMENT AND THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1940, UNDER THE HEADING " MARINE CORPS, PAY, MARINE CORPS," IS AS FOLLOWS:

PAY OF ENLISTED MEN, ACTIVE LIST: FOR PAY AND ALLOWANCES OF NONCOMMISSIONED OFFICERS, MUSICIANS, AND PRIVATES, AS PRESCRIBED BY LAW, * * * IN ALL $9,927,991;

THIS LANGUAGE IS SIMILAR TO AND AS BROAD IN EFFECT AS THE ANALOGOUS PROVISION CONTAINED IN THE ACT OF JUNE 30, 1932, 47 STAT. 438, 439, MAKING APPROPRIATION FOR THE MARINE CORPS FOR THE FISCAL YEAR ENDING JUNE 30, 1933, WHICH COVERED A PERIOD WHEN THERE WAS NO SUSPENSION OF PAYMENTS OF ENLISTMENT ALLOWANCES OTHERWISE PAYABLE TO ENLISTED MEMBERS OF THE MARINE CORPS. IT IS CLEAR, THEREFORE, FROM THE LANGUAGE CONTAINED IN THE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1940, THAT THE APPROPRIATION IS AVAILABLE FOR PAYMENT FOR THE ENLISTMENT ALLOWANCES TO MEMBERS OF THE MARINE CORPS TO THE EXTENT OTHERWISE PROVIDED BY THE BASIC PROVISION CONTAINED IN SECTION 9 OF THE ACT OF JUNE 10, 1922, HEREINBEFORE QUOTED.

THE ACT OF AUGUST 22, 1912, 37 STAT. 331 (SEE ALSO ACT OF APRIL 25, 1917, 40 STAT. 38) (34 U.S.C. 184) PROVIDES:

THAT THE TERM OF ENLISTMENT OF ANY ENLISTED MAN IN THE NAVY MAY, BY HIS VOLUNTARY WRITTEN AGREEMENT, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY WITH THE APPROVAL OF THE PRESIDENT, BE EXTENDED FOR A PERIOD OF EITHER ONE, TWO, THREE, OR FOUR FULL YEARS FROM THE DATE OF EXPIRATION OF THE THEN EXISTING FOUR-YEAR TERM OF ENLISTMENT, AND SUBSEQUENT TO SAID DATE SUCH ENLISTED MEN AS EXTEND THE TERM OF ENLISTMENT AS AUTHORIZED IN THIS SECTION SHALL BE ENTITLED TO AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES IN ALL RESPECTS AS THOUGH REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON EXPIRATION OF THEIR TERM OF ENLISTMENT, AND SUCH EXTENSION SHALL NOT OPERATE TO DEPRIVE THEM UPON DISCHARGE AT THE TERMINATION THEREOF OF ANY RIGHT, PRIVILEGE, OR BENEFIT TO WHICH THEY WOULD BE ENTITLED AT THE EXPIRATION OF A FOUR-YEAR TERM OF ENLISTMENT.

ENLISTMENT ALLOWANCE IS PAYABLE ONLY FOR COMPLETED YEARS OF SERVICE. COMP. GEN. 166.

THE FORMER COMPTROLLER GENERAL HELD IN DECISION OF FEBRUARY 23, 1923, 18 MS. COMP. GEN. 1123, 1125 (SEE ALSO 7 COMP. GEN. 439) THAT REENLISTMENT ALLOWANCE WAS PAYABLE ON THE EXTENSION OF ENLISTMENT ONLY IF THE EXTENSION EQUALED AN ENLISTMENT PERIOD AS AUTHORIZED BY LAW; THAT AS SECTION 7 OF THE ACT OF JUNE 4, 1920, 41 STAT. 836 (SEE ALSO SECTION 19, ACT OF MARCH 4, 1925, 43 STAT. 1276) AUTHORIZED ENLISTMENTS FOR 2, 3, OR 4 YEARS, AN ENLISTMENT ALLOWANCE WAS PAYABLE ON EXTENSION FOR ANY OF THESE PERIODS AS FOR DISCHARGE AND REENLISTMENT; BUT THAT IF THE EXTENSION WAS FOR BUT 1 YEAR, NOT THE EQUIVALENT OF A STATUTORY ENLISTMENT PERIOD, NO REENLISTMENT ALLOWANCE WAS PAYABLE BUT THE YEAR (IF NOT FURTHER EXTENDED) WAS TO BE ADDED TO THE ENLISTMENT SO EXTENDED AND UPON DISCHARGE AND REENLISTMENT WITHIN 3 MONTHS, REENLISTMENT ALLOWANCE WAS PAYABLE FOR THE TOTAL YEARS OF SERVICE IN THE ORIGINAL ENLISTMENT AND THE 1-YEAR EXTENSION. THESE DECISIONS ARE NOT, HOWEVER, FOR APPLICATION HERE. THE ACT OF 1912 PROVIDES THAT ON EXTENSION OF ENLISTMENT THE ENLISTED MAN SHALL RECEIVE "THE SAME PAY AND ALLOWANCES IN ALL RESPECTS AS THOUGH REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON EXPIRATION OF THEIR TERM OF ENLISTMENT.' WHILE THE LAW PROVIDING PAYMENT OF ENLISTMENT ALLOWANCE WAS SUSPENDED, WHETHER THE MAN'S EXTENSION WAS FOR 1, 2, 3, OR 4 YEARS, NO REENLISTMENT ALLOWANCE WAS PAYABLE, AS NONE WAS PAYABLE WHEN THE MAN WAS DISCHARGED AND REENLISTED WITHIN 3 MONTHS. TO INCLUDE A 1-YEAR EXTENSION AS A PART OF THE ENLISTMENT EXTENDED WOULD THUS GIVE A BENEFIT WHICH WOULD NOT HAVE ACCRUED TO THE MAN HAD HE BEEN DISCHARGED AND REENLISTED WITHIN 3 MONTHS, AND ON EXTENDING HIS ENLISTMENT HE IS ENTITLED ONLY TO WHAT HE WOULD HAVE RECEIVED HAD HE BEEN REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON EXPIRATION OF HIS TERM OF ENLISTMENT. OBVIOUSLY THE REVIVAL OF THE LAW DOES NOT GIVE HIM A RIGHT TO ENLISTMENT ALLOWANCE FOR AN ENLISTMENT EXTENDED (EQUIVALENT TO A DISCHARGE FOR PURPOSES OF PAY ON REENLISTMENT) WHEN THE LAW PROVIDING FOR PAYMENT OF AN ENLISTMENT ALLOWANCE WAS SUSPENDED. ACCORDINGLY, FOR THE PURPOSE OF THE PRESENT CONSIDERATION ALL EXTENSIONS MADE PRIOR TO JULY 1, 1939, WITH DISCHARGE THEREFROM AFTER JULY 1, 1939, AND REENLISTMENT WITHIN 3 MONTHS OF DISCHARGE MUST BE TREATED AS THE ENLISTED PERIOD FROM WHICH THE ENLISTED MAN WAS LAST DISCHARGED, NO PART OF THE ORIGINAL ENLISTMENT WHICH WAS EXTENDED PRIOR TO JULY 1, 1939, BEING PROPER FOR ADDING THERETO. ACCORDINGLY, THE ENLISTED MAN REFERRED TO IN YOUR QUESTION (A) SERVED 1 YEAR IN THE ENLISTMENT PERIOD FROM WHICH LAST DISCHARGED AND IF OF THE FIRST GRADE WOULD BE ENTITLED TO AN ENLISTMENT ALLOWANCE OF 1 YEAR OR $50. YOUR QUESTION (B) IS ANSWERED BY SAYING THAT THE TWO 1-YEAR EXTENSIONS ARE TO BE TREATED AS THOUGH AN ORIGINAL EXTENSION FOR 2 YEARS AND THE MAN WOULD BE ENTITLED TO ENLISTMENT ALLOWANCE AS HAVING SERVED 2 YEARS IN THE ENLISTMENT FROM WHICH LAST DISCHARGED OR $100 IF OF THE FIRST PAY PERIOD.