B-57700, OCTOBER 31, 1946, 26 COMP. GEN. 284

B-57700: Oct 31, 1946

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AS FOLLOWS: THERE IS ENCLOSED HEREWITH A LETTER FROM THE CHIEF OF NAVAL PERSONNEL. IT WILL BE OBSERVED FROM THE ENCLOSURES THAT DILLARD ENLISTED IN THE U.S. THAT HE WAS DISCHARGED THEREFROM ON JANUARY 17. IT IS THE VIEW OF THE NAVY DEPARTMENT THAT THE DISCHARGE OF DILLARD FROM THE U.S. FOR THE SOLE PURPOSE OF REENLISTING IN THE REGULAR NAVY WAS VALID AND THAT HE SHOULD ACCORDINGLY BE PERMITTED TO RETAIN THE MUSTERING OUT PAYMENT MADE TO HIM PURSUANT TO SAID DISCHARGE. SINCE THE MINIMUM PERIOD OF ENLISTMENT IN THE NAVY IS TWO YEARS ( R.S. 1418. IT IS CONSIDERED THAT DILLARD'S ENLISTMENT IN THE REGULAR NAVY ON JANUARY 18. TO SERVE DURING MINORITY WAS INVALID FOR THE REASON THAT HE WAS OVER 18 YEARS OF AGE AT THE TIME HE EXECUTED SUCH CONTRACT.

B-57700, OCTOBER 31, 1946, 26 COMP. GEN. 284

ENLISTMENT ALLOWANCE - MINORITY ENLISTMENT IN REGULAR NAVY FOLLOWING DISCHARGE DURING MINORITY FROM NAVAL RESERVE IN VIEW OF THE PROVISIONS OF SECTIONS 1418, 1419 AND 1420, REVISED STATUTES, RESPECTING MINORITY ENLISTMENTS IN THE REGULAR NAVY OF BOYS BETWEEN 14 AND 18 YEARS OF AGE UNDER CERTAIN CONDITIONS, THE ENLISTMENT OF A NAVAL RESERVIST IN THE REGULAR NAVY--- WHEN MORE THAN 18 BUT LESS THAN 21 YEARS OF AGE--- FOR THE REMAINDER OF HIS MINORITY (UNTIL 21 YEARS OF AGE) IMMEDIATELY FOLLOWING DISCHARGE FROM A LEGAL MINORITY ENLISTMENT IN THE NAVAL RESERVE DOES NOT CONSTITUTE A LEGAL ENLISTMENT IN THE REGULAR NAVY, SO AS TO AUTHORIZE PAYMENT OF THE ENLISTMENT ALLOWANCE PROVIDED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 31, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 3, 1946, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER FROM THE CHIEF OF NAVAL PERSONNEL, DATED APRIL 11, 1946, RELATIVE TO THE DISCHARGE OF PAUL FRANKLIN DILLARD, PHARMACIST'S MATE SECOND CLASS, U.S. NAVAL RESERVE, AND HIS SUBSEQUENT ENLISTMENT IN THE REGULAR NAVY.

IT WILL BE OBSERVED FROM THE ENCLOSURES THAT DILLARD ENLISTED IN THE U.S. NAVAL RESERVE ON DECEMBER 13, 1942, AT THE AGE OF 17 YEARS AND 6 MONTHS, TO SERVE DURING MINORITY OR UNTIL MAY 15, 1946, AND THAT HE WAS DISCHARGED THEREFROM ON JANUARY 17, 1946, FOR THE EXPRESS PURPOSE OF ENLISTING IN THE REGULAR NAVY. ON JANUARY 18, 1946,HE EXECUTED A CONTRACT OF ENLISTMENT TO SERVE IN THE REGULAR NAVY DURING MINORITY UNTIL MAY 15, 1946.

IT IS THE VIEW OF THE NAVY DEPARTMENT THAT THE DISCHARGE OF DILLARD FROM THE U.S. NAVAL RESERVE ON JANUARY 17, 1946, FOR THE SOLE PURPOSE OF REENLISTING IN THE REGULAR NAVY WAS VALID AND THAT HE SHOULD ACCORDINGLY BE PERMITTED TO RETAIN THE MUSTERING OUT PAYMENT MADE TO HIM PURSUANT TO SAID DISCHARGE. SINCE THE MINIMUM PERIOD OF ENLISTMENT IN THE NAVY IS TWO YEARS ( R.S. 1418, 1608; 34 U.S.C. 181), EXCEPT THAT MINORS UNDER THE AGE OF 18 MAY BE ENLISTED TO SERVE THEREIN UNTIL THEY SHALL ARRIVE AT THE AGE OF 21 YEARS ( R.S. 1418; 34 U.S.C. 182), IT IS CONSIDERED THAT DILLARD'S ENLISTMENT IN THE REGULAR NAVY ON JANUARY 18, 1946, TO SERVE DURING MINORITY WAS INVALID FOR THE REASON THAT HE WAS OVER 18 YEARS OF AGE AT THE TIME HE EXECUTED SUCH CONTRACT. NOTWITHSTANDING THE ILLEGALITY OF DILLARD'S REENLISTMENT, IT WOULD APPEAR THAT HE IS ENTITLED TO FULL PAY AND ALLOWANCES AS A DE FACTO ENLISTED MAN FOR THE PERIOD SUBSEQUENT TO HIS PURPORTED REENLISTMENT.

IN VIEW OF THE DOUBT INVOLVED IN THIS MATTER, THE NAVY DEPARTMENT REQUESTS AN EXPRESSION OF YOUR VIEWS AS TO WHETHER DILLARD IS ENTITLED TO RETAIN THE AMOUNT CREDITED TO HIM AS MUSTERING OUT PAY AND ENLISTMENT ALLOWANCE BY REASON OF HIS DISCHARGE FROM THE U.S. NAVAL RESERVE AND SUBSEQUENT ENLISTMENT IN THE REGULAR NAVY UNDER CONDITIONS SET FORTH IN THE ENCLOSURE.

IN THE LETTER OF APRIL 11, 1946, MENTIONED IN THE ABOVE-QUOTED LETTER, THE CHIEF OF NAVAL PERSONNEL STATES THAT UPON MR. DILLARD'S ENLISTMENT IN THE REGULAR NAVY ON JANUARY 18, 1946, HIS ACCOUNT WAS CREDITED WITH $150 ENLISTMENT ALLOWANCE AND THAT HE RECEIVED $100 MUSTERING-OUT PAY.

THE MINIMUM AGE FOR LEGAL ENLISTMENT IN THE NAVAL RESERVE IS 17 YEARS (SECTION 4 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1176). HENCE, MR. DILLARD'S ENLISTMENT IN THE NAVAL RESERVE ON DECEMBER 13, 1942, AT THE AGE OF 17 1/2 YEARS TO SERVE DURING MINORITY--- UNTIL MAY 15, 1946- - CONSTITUTED A LEGAL ENLISTMENT IN THE NAVAL RESERVE.

SECTION 1418, REVISED STATUTES, 34 U.S.C. 182, RESPECTING ENLISTMENTS IN THE REGULAR NAVY, PROVIDES AS FOLLOWS:

BOYS BETWEEN THE AGES OF FOURTEEN AND EIGHTEEN YEARS MAY, UNDER SUCH LIMITATIONS AS ARE CONTAINED IN SECTIONS 161 AND 162, BE ENLISTED TO SERVE IN THE NAVY UNTIL THEY SHALL ARRIVE AT THE AGE OF TWENTY-ONE YEARS.

SECTIONS 1419 AND 1420, REVISED STATUTES, 34 U.S.C. 161, PROVIDE THAT NO MINOR UNDER THE AGE OF 14 YEARS SHALL BE ENLISTED IN THE NAVAL SERVICE AND THAT NO MINORS BETWEEN THE AGES OF 14 AND 18 YEARS SHALL BE ENLISTED IN THE NAVAL SERVICE WITHOUT THE CONSENT OF THEIR PARENTS OR GUARDIANS. SECTION 162, TITLE 34, U.S. CODE, RELATES TO THE EVIDENCE REQUIRED TO ESTABLISH THE AGE OF MINORS ENLISTING IN THE NAVAL SERVICE.

SECTION 1 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 629, 34 U.S.C. 181, PROVIDES AS FOLLOWS:

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, THAT UPON THE PRESENTATION OF SATISFACTORY EVIDENCE AS TO HIS AGE AND UPON APPLICATION FOR DISCHARGE BY HIS PARENT OR GUARDIAN PRESENTED TO THE SECRETARY OF THE NAVY WITHIN NINETY DAYS AFTER THE DATE OF HIS ENLISTMENT, ANY MAN ENLISTED IN THE NAVAL SERVICE, INCLUDING THE MARINE CORPS, UNDER TWENTY-ONE YEARS OF AGE, WHO WAS ENLISTED WITHOUT THE WRITTEN CONSENT OF HIS PARENT OR GUARDIAN, IF ANY, SHALL BE DISCHARGED FOR HIS OWN CONVENIENCE: 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 4 OF THE ACT OF NOVEMBER 13, 1942, 56 STAT. 1019, AMENDING SECTION 5 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 887, HAD THE EFFECT OF TEMPORARILY SUPERSEDING THE FIRST PROVISO IN SECTION 1 OF THE ACT OF AUGUST 18, 1941, SUPRA, BY PROVIDING THAT, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, NO PERSON BETWEEN THE AGES OF 18 AND 21 YEARS SHALL BE DISCHARGED FROM SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES WHILE THIS ACT IS IN EFFECT BECAUSE SUCH PERSON ENTERED SUCH SERVICE WITHOUT THE CONSENT OF HIS PARENT OR GUARDIAN.

IT WILL BE NOTED THAT UNDER THE ACT OF AUGUST 18, 1941, SUPRA, THE STATUTORY ENLISTMENT PERIOD IS TWO, THREE, FOUR, OR SIX YEARS, OR FOR MINORITY. HOWEVER, WITH RESPECT TO MINORITY ENLISTMENTS, SECTIONS 1418, 1419, AND 1420, REVISED STATUTES, AUTHORIZE ONLY "MINORS BETWEEN THE AGES OF FOURTEEN AND EIGHTEEN YEARS" TO BE ENLISTED, WITH THE CONSENT OF THEIR PARENTS OR GUARDIANS, TO SERVE DURING MINORITY. HENCE, IT NECESSARILY FOLLOWS THAT A MINORITY ENLISTMENT BY A PERSON 20 YEARS AND 6 MONTHS OF AGE DOES NOT CONSTITUTE A LEGAL ENLISTMENT. ACCORDINGLY, AND SINCE SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, PRESCRIBING ENLISTMENT ALLOWANCE FOR ENLISTMENTS OR REENLISTMENTS IN THE REGULAR NAVY, CONTEMPLATES A LEGAL ENLISTMENT, PAYMENT OF AN ENLISTMENT ALLOWANCE IN THE PRESENT CASE IS NOT AUTHORIZED. IN THAT CONNECTION, THERE IS NOTED THE STATEMENT IN THE ENCLOSURE FROM THE CHIEF OF NAVAL PERSONNEL THAT THE INSTRUCTIONS IN EFFECT AT THE TIME OF THE ENLISTED MAN'S DISCHARGE FROM THE NAVAL RESERVE AND PURPORTED ENLISTMENT IN THE REGULAR NAVY, AS CONTAINED IN BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER NO. 224-45, JULY 31, 1945, AND ALNAV 453, DECEMBER 21, 1945, AUTHORIZED ENLISTMENTS IN THE REGULAR NAVY OF ENLISTED MEN OF THE NAVAL RESERVE. BUT IT IS NOT SUGGESTED THAT SUCH INSTRUCTIONS EITHER CONTEMPLATED OR PURPORTED TO AUTHORIZE COMMANDING OFFICERS TO ENLIST IN THE REGULAR NAVY FOR MINORITY ENLISTMENTS DISCHARGED PERSONNEL OF THE NAVAL RESERVE WHO HAD ATTAINED THEIR EIGHTEENTH BIRTHDAY. SEE CIRCULAR LETTER NO. 41-46, FEBRUARY 15, 1946, PARAGRAPH 4 (A) (1), RESPECTING THE ENLISTMENT OF NAVAL RESERVISTS IN THE REGULAR NAVY, TO THE EFFECT THAT MEN WHO REACH THEIR EIGHTEENTH BIRTHDAY ARE NOT LEGALLY ELIGIBLE FOR MINORITY ENLISTMENTS.

WITH RESPECT TO YOUR QUESTION RELATING TO MUSTERING-OUT PAY, SECTION 5 (B) OF THE MUSTERING-OUT PAY ACT OF 1944, 58 STAT. 10, AUTHORIZES THE SECRETARY OF THE NAVY, INSOFAR AS NAVAL PERSONNEL ARE CONCERNED, TO MAKE REGULATIONS, NOT INCONSISTENT WITH THE ACT, TO CARRY OUT ITS PROVISIONS AND PROVIDES THAT HIS DECISIONS SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL. HOWEVER, IT IS NOTED THAT SECTION 1 (A) OF THE SAID MUSTERING-OUT PAY ACT OF 1944, 58 STAT. 8, PROVIDES THAT EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR AND, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, WHO IS DISCHARGED OR RELIEVED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAY. ALSO, SECTION 2 (B) OF THAT ACT, AS AMENDED BY SECTION 7 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 538, 540, AUTHORIZES, INTER ALIA, PAYMENT OF MUSTERING-OUT PAY, IN THE AMOUNTS AND UNDER THE CONDITIONS PRESCRIBED THEREIN,"AT THE TIME OF DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT" IN THE REGULAR NAVAL ESTABLISHMENT. ADDITIONAL INFORMATION OBTAINED INFORMALLY FROM THE NAVY DEPARTMENT IS TO THE EFFECT THAT MR. DILLARD NO LONGER IS IN THE SERVICE. IF HIS FINAL DISCHARGE FROM THE SERVICE WAS UNDER CONDITIONS SUCH AS WOULD ENTITLE HIM TO MUSTERING-OUT PAY IT IS NOT NECESSARY TO CONSIDER WHETHER HIS SO-CALLED DISCHARGE ON JANUARY 17, 1946, DID OR DID NOT ENTITLE HIM TO MUSTERING-OUT PAY.