B-57734, AUGUST 5, 1946, 26 COMP. GEN. 83

B-57734: Aug 5, 1946

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IS NOT AUTHORIZED SUBSEQUENT TO THE PERIOD OF THE PRESENT WAR AND SIX MONTHS THEREAFTER IN THE CASE OF AN ENLISTED MAN WHO. IS DISCHARGED FROM A ONE-YEAR. WAS DISCHARGED ON OR BEFORE JUNE 30. AS FOLLOWS: MANY REQUESTS ARE BEING RECEIVED BY THE ADJUTANT GENERAL FOR MEN WHO ARE SERVING UNDER AN ENLISTMENT CONTRACT OF ONE YEAR. AN OPINION WAS REQUESTED FROM THE JUDGE ADVOCATE GENERAL AS TO WHETHER THERE IS ANY VALID LEGAL METHOD OR METHODS (SHORT OF NEW LEGISLATION). BY WHICH THE WAR DEPARTMENT MAY DISCHARGE AN ENLISTED MAN WHO IS SERVING. WAS AS FOLLOWS: "IT IS THE OPINION OF THIS OFFICE THAT THE SECRETARY OF WAR MAY PROPERLY PROMULGATE APPROPRIATE REGULATIONS AUTHORIZING THE DISCHARGE OF AN ENLISTED MAN WHO IS SERVING UNDER AN ENLISTMENT CONTRACT OF ONE YEAR.

B-57734, AUGUST 5, 1946, 26 COMP. GEN. 83

FAMILY ALLOWANCE BENEFITS - ENLISTMENTS, ETC., UNDER ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 PAYMENT OF THE FAMILY ALLOWANCE AUTHORIZED BY SECTION 9 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 FOR ARMY ENLISTED MEN'S DEPENDENTS DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER OR DURING AN ENLISTMENT OR REENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946, IS NOT AUTHORIZED SUBSEQUENT TO THE PERIOD OF THE PRESENT WAR AND SIX MONTHS THEREAFTER IN THE CASE OF AN ENLISTED MAN WHO, AT HIS OWN REQUEST, IS DISCHARGED FROM A ONE-YEAR, EIGHTEEN-MONTH OR TWO-YEAR ENLISTMENT, ENTERED INTO PRIOR TO JULY 1, 1946, FOR THE PURPOSE OF IMMEDIATELY REENLISTING FOR THREE YEARS, SHOULD THE TERM OF THE REENLISTMENT EXTEND BEYOND SUCH WARTIME PERIOD. THE FAMILY ALLOWANCE AUTHORIZED BY SECTION 9 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 FOR ARMY ENLISTED MEN'S DEPENDENTS DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER OR DURING AN ENLISTMENT OR REENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946, MAY NOT BE PAID SUBSEQUENT TO THE PERIOD OF THE PRESENT WAR AND SIX MONTHS THEREAFTER IN THE CASE OF AN ENLISTED MAN WHO, AT HIS OWN REQUEST, WAS DISCHARGED ON OR BEFORE JUNE 30, 1946, FROM A THREE-YEAR ENLISTMENT PRIOR TO THE NORMAL EXPIRATION THEREOF FOR THE PURPOSE OF IMMEDIATELY REENLISTING FOR A PERIOD OF THREE YEARS, SHOULD THE TERM OF THE REENLISTMENT EXTEND BEYOND SUCH WARTIME PERIOD. WHERE ARMY ENLISTED MEN VOLUNTARILY EXTEND THEIR ONE-YEAR, EIGHTEEN MONTH OR TWO-YEAR ENLISTMENTS, ENTERED INTO PRIOR TO JULY 1, 1946, TO THE MAXIMUM OF THREE YEARS AUTHORIZED BY SECTION 3 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945--- TIME SERVED IN THE ORIGINAL ENLISTMENT TO BE CREDITED ON THE AMENDED ENLISTMENT--- THE FAMILY ALLOWANCE AUTHORIZED BY SECTION 9 (A) OF SAID ACT FOR DEPENDENTS DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER OR DURING AN ENLISTMENT OR REENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946, MAY BE PAID TO THE END OF SUCH AN ENLISTMENT, AS EXTENDED, EVEN THOUGH THE TERM THEREOF EXTEND BEYOND THE WARTIME PERIOD.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 5, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 6, 1946, AS FOLLOWS:

MANY REQUESTS ARE BEING RECEIVED BY THE ADJUTANT GENERAL FOR MEN WHO ARE SERVING UNDER AN ENLISTMENT CONTRACT OF ONE YEAR, EIGHTEEN MONTHS, OR TWO YEARS, ENTERED INTO UNDER THE PROVISIONS OF SECTION 3, OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 ( PUBLIC LAW 190--- 79TH CONGRESS), APPROVED 6 OCTOBER 1945, TO BE DISCHARGED FOR THE PURPOSE OF IMMEDIATELY REENLISTING FOR A PERIOD OF THREE YEARS. IN CONSIDERING THE PROBLEMS INVOLVED IN THE MATTER, AN OPINION WAS REQUESTED FROM THE JUDGE ADVOCATE GENERAL AS TO WHETHER THERE IS ANY VALID LEGAL METHOD OR METHODS (SHORT OF NEW LEGISLATION),BY WHICH THE WAR DEPARTMENT MAY DISCHARGE AN ENLISTED MAN WHO IS SERVING, PURSUANT TO PUBLIC LAW 190--- 79TH CONGRESS, UNDER AN ENLISTMENT CONTRACT FOR ONE YEAR, OR FOR EIGHTEEN MONTHS, OR FOR TWO YEARS, AND IMMEDIATELY THEREAFTER ENLIST SUCH AN INDIVIDUAL UNDER A THREE YEAR ENLISTMENT CONTRACT AND YET PERMIT HIM TO BE, DURING SUCH ENLISTMENT CONTRACT, WITHIN THE FULL ALLOWABLE SCOPE OF THE BENEFITS OF SECTION 9, OF THE ACT OF 6 OCTOBER 1945, SUPRA, OR, AS A VETERAN AFTER COMPLETING SUCH ENLISTMENT CONTRACT, TO BE ELIGIBLE FOR THE BENEFITS OF SECTION 11 OF THE SAME ACT.

THE OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL ON 15 FEBRUARY 1946, SPJGA 1946/1931, WAS AS FOLLOWS:

"IT IS THE OPINION OF THIS OFFICE THAT THE SECRETARY OF WAR MAY PROPERLY PROMULGATE APPROPRIATE REGULATIONS AUTHORIZING THE DISCHARGE OF AN ENLISTED MAN WHO IS SERVING UNDER AN ENLISTMENT CONTRACT OF ONE YEAR, EIGHTEEN MONTHS, OR TWO YEARS, ENTERED INTO UNDER THE PROVISIONS OF SECTION 3 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 (ACT 6 OCT 1945, PUBLIC LAW 190, 79TH CONG.), AND PROVIDING FOR SUCH ENLISTED MAN'S IMMEDIATE REENLISTMENT UNDER SUCH ACT FOR A THREE YEAR PERIOD.

"IT IS THE FURTHER OPINION OF THIS OFFICE THAT, UNDER THE PROVISIONS OF SECTION 9 OF THE MENTIONED ACT, THE DEPENDENTS OF AN ENLISTED MAN SO DISCHARGED AND REENLISTED PRIOR TO 1 JULY 1946 WOULD BE ENTITLED TO RECEIVE THE FAMILY ALLOWANCE DURING THE WAR AND SIX MONTHS THEREAFTER, OR DURING THE PERIOD OF SUCH ENLISTMENT, WHICHEVER IS THE LONGER. SIMILARLY, IF SUCH ENLISTED MAN IS, OR BECOMES, AN ENLISTED MAN OF THE FIRST THREE GRADES, HE MAY EXERCISE THE OPTION AUTHORIZED IN THE MENTIONED SECTION DURING THE SAME PERIODS OF TIME. HOWEVER, IN THE EVENT THAT AN ENLISTED MAN IS SO DISCHARGED AND REENLISTED ON OR AFTER 1 JULY 1946, IT IS BELIEVED THAT THE BENEFITS OF THE MENTIONED SECTION 9 WOULD BE AVAILABLE TO HIM AND HIS DEPENDENTS ONLY DURING THE WAR AND SIX MONTHS THEREAFTER.

"IT IS ALSO THE OPINION OF THIS OFFICE THAT AN ENLISTED MAN SO DISCHARGED AND REENLISTED WOULD NOT BE BENEFITED BY THE SPECIAL PROVISIONS OF SECTION 11 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, SUPRA, DURING HIS NEW THREE YEAR ENLISTMENT.'

A FURTHER OPINION WAS THEN REQUESTED AS TO WHETHER THERE IS ANY VALID LEGAL METHOD OR METHODS (SHORT OF NEW LEGISLATION), BY WHICH AN ENLISTED MAN WHO IS SERVING, PURSUANT TO THE ACT OF 6 OCTOBER 1945, SUPRA, UNDER AN ENLISTMENT CONTRACT FOR ONE YEAR, OR FOR EIGHTEEN MONTHS, OR FOR TWO YEARS, MAY, AT HIS REQUEST, HAVE HIS CURRENT ENLISTMENT CONTRACT EXTENDED TO A THREE-YEAR ENLISTMENT CONTRACT, AND THEREBY PERMIT HIM TO BE, DURING SUCH REVISED ENLISTMENT CONTRACT, WITHIN THE FULL ALLOWABLE SCOPE OF THE BENEFITS OF SECTION 9 OF THE ACT OF 6 OCTOBER 1945, SUPRA, AND AS A VETERAN AFTER COMPLETING SUCH ENLISTMENT CONTRACT, TO BE ELIGIBLE FOR THE BENEFITS OF SECTION 11 OF THE SAME ACT.

THE JUDGE ADVOCATE GENERAL HELD IN THIS INSTANCE, SPJGA 1946/2443, 27 MARCH 1946, THAT:

"IT IS THE OPINION OF THIS OFFICE THAT AN ENLISTED MAN WHO IS SERVING UNDER AN ENLISTMENT CONTRACT OF ONE YEAR, EIGHTEEN MONTHS, OR TWO YEARS, ENTERED INTO UNDER THE PROVISIONS OF SECTION 3 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 (ACT 6 OCT. 1945, PUBLIC LAW 190, 79TH CONG.), MAY, AT HIS REQUEST, BE PERMITTED BY THE WAR DEPARTMENT TO HAVE HIS CURRENT ENLISTMENT CONTRACT EXTENDED TO A THREE YEAR ENLISTMENT CONTRACT.

"SUCH EXTENSION MAY BE ACCOMPLISHED, IT IS BELIEVED, BY THE VOLUNTARY EXECUTION BY THE ENLISTED MAN CONCERNED OF THE OATH AND CERTIFICATE OF ENLISTMENT ON W.D., A.G.O. FORM NO. 21, MODIFIED TO READ IN PERTINENT PART AS FOLLOWS:

" "1I * * *, A CITIZEN OF THE UNITED STATES, DO HEREBY ACKNOWLEDGE THIS - ---- DAY OF ---------- 19 ---, TO HAVE VOLUNTARILY EXTENDED MY ENLISTMENT OF THE ----- DAY OF ---------- 19---, AS A SOLDIER IN THE REGULAR MARY OF THE UNITED STATES OF AMERICA, TO A PERIOD OF THREE YEARS FROM THE LAST MENTIONED DATE * * *.'

"IT IS THE FURTHER OPINION OF THIS OFFICE THAT AN ENLISTED MAN WHO ACCOMPLISHES THE EXTENSION OF HIS ENLISTMENT IN THE MANNER HEREIN SET FORTH WILL BE IN THE SAME POSITION WITH RESPECT TO HIS ENTITLEMENT TO THE BENEFITS OF SECTIONS 9 AND 11 OF THE MENTIONED ACT AS IF HE HAD ORIGINALLY CONTRACTED TO SERVE FOR A THREE YEAR PERIOD.

"THE VIEWS SET FORTH IN THE PRECEDING PARAGRAPHS OF THIS COMMENT ARE NOT ENTIRELY FREE FROM DOUBT. FOR THIS REASON, AND IN VIEW OF THE NOVELTY AND IMPORTANCE OF THE MATTER UNDER CONSIDERATION, IT IS SUGGESTED THAT CONSIDERATION BE GIVEN TO OBTAINING APPROPRIATE AMENDMENTS TO THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, SUPRA, WHICH WOULD REMOVE THE NECESSITY FOR PERMITTING ENLISTMENTS TO BE EXTENDED. IN ANY EVENT, IT IS BELIEVED THAT THE VIEWS OF THE COMPTROLLER GENERAL SHOULD BE OBTAINED WITH RESPECT TO AN ENLISTED MAN'S ENTITLEMENT TO THE BENEFITS OF THE MENTIONED SECTION 9, AND THOSE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS AS TO AN ENLISTED MAN'S ENTITLEMENT TO THE BENEFITS OF THE MENTIONED SECTION 11.'

IN VIEW OF THE ACTION SUGGESTED BY THE JUDGE ADVOCATE GENERAL IN THE LATTER OPINION WITH REFERENCE TO THE ENLISTED MAN'S ENTITLEMENT TO THE BENEFITS OF SECTION 9 OF THE ACT OF 6 OCTOBER 1945, SUPRA, A DECISION ON THE FOLLOWING SPECIFIC QUESTION IS RESPECTFULLY REQUESTED:

"IS AN ENLISTED MEN ENTITLED TO THE BENEFITS OF SECTION 9 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 ( PUBLIC LAW 190--- 79TH CONGRESS), APPROVED 6 OCTOBER 1945, IF,

"A. HAVING ENLISTED FOR ONE YEAR, EIGHTEEN MONTHS, OR TWO YEARS HE IS, AT HIS REQUEST, PERMITTED BY THE WAR DEPARTMENT TO HAVE HIS CURRENT ENLISTMENT CONTRACT EXTENDED TO A THREE YEAR ENLISTMENT CONTRACT;

"B. HAVING ENLISTED FOR ONE YEAR, EIGHTEEN MONTHS, OR TWO YEARS, HE IS, AT HIS REQUEST, DISCHARGED FROM HIS CURRENT ENLISTMENT CONTRACT FOR THE PURPOSE OF IMMEDIATELY REENLISTING FOR A PERIOD OF THREE YEARS;

"C. HAVING ENLISTED FOR THREE YEARS, HE IS, AT HIS REQUEST, DISCHARGED FROM HIS CURRENT ENLISTMENT CONTRACT ON OR BEFORE 30 JUNE 1946, FOR THE PURPOSE OF IMMEDIATELY REENLISTING FOR A PERIOD OF THREE YEARS?

THE PERTINENT SECTIONS OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 538, 541 ( PUBLIC LAW 190, APPROVED OCTOBER 6, 1945), ARE AS FOLLOWS:

"THAT NOTWITHSTANDING THE LIMITATIONS CONTAINED IN ANY OTHER PROVISION OF LAW, THE SECRETARY OF WAR IS AUTHORIZED AND DIRECTED TO ACCEPT ORIGINAL ENLISTMENTS AND REENLISTMENTS IN THE REGULAR ARMY FOR PERIODS OF EIGHTEEN MONTHS OR TWO OR THREE YEARS, AT THE OPTION OF THE PERSONS SO ENLISTED, FROM AMONG QUALIFIED MALE PERSONS NOT LESS THAN SEVENTEEN YEARS OF AGE, INCLUDING PERSONS IN ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES OR ANY COMPONENT THEREOF * * *. NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY RIGHT TO REENLISTMENT IN THE REGULAR ARMY UNDER ANY OTHER PROVISION OF LAW. ANY QUALIFIED AND ACCEPTABLE MEMBER OF THE ARMY OF THE UNITED STATES, OR OF ANY COMPONENT THEREOF, WHO HAS PERFORMED ACTIVE SERVICE THEREIN FOR A PERIOD OF NOT LESS THAN SIX MONTHS, SHALL, UPON HIS APPLICATION, BE ACCEPTED FOR AN ENLISTMENT PERIOD OF ONE YEAR PLUS THE PERIOD OF ANY FURLOUGH GRANTED AT THE BEGINNING OF SUCH ENLISTMENT. NO PERSON WHO IS SERVING UNDER AN ENLISTMENT CONTRACTED ON OR AFTER JUNE 1, 1945, SHALL BE ENTITLED, BEFORE THE EXPIRATION OF THE PERIOD OF SUCH ENLISTMENT, TO ENLIST FOR AN ENLISTMENT PERIOD WHICH WILL EXPIRE BEFORE THE EXPIRATION OF THE ENLISTMENT PERIOD FOR WHICH HE IS SO SERVING.'

SEC. 9. (A) SECTION 101 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, IS AMENDED TO READ AS FOLLOWS:

"SEC. 101. THE DEPENDENT OR DEPENDENTS OF ANY ENLISTED MAN IN THE ARMY OF THE UNITED STATES, THE UNITED STATES NAVY, THE MARINE CORPS, OR THE COAST GUARD, INCLUDING ANY AND ALL RETIRED AND RESERVE COMPONENTS OF SUCH SERVICES, SHALL BE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE FOR ANY PERIOD DURING WHICH SUCH ENLISTED MAN IS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER JUNE 1, 1942, (1) DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND THE SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF ANY SUCH WAR OR (2) DURING A PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED BY SUCH ENLISTED MAN PRIOR TO JULY 1, 1946.'

IT IS ASSUMED THAT YOUR QUESTIONS ARE BASED ON THE PREMISE THAT THE PERIOD OF THE WAR AND SIX MONTHS THEREAFTER, WHICH IS THE BASIC PERIOD FOR WHICH THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, IS TO REMAIN IN EFFECT, WILL EXPIRE SOMETIME PRIOR TO THE COMPLETION OF THE ENLISTMENT PERIODS CONTRACTED FOR UNDER THE CIRCUMSTANCES STATED IN SUCH QUESTIONS, AND THE ANSWERS THERETO SHOULD BE READ ACCORDINGLY.

PERSONNEL ENLISTING OR REENLISTING UNDER THE SAID ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 ARE SAVED THE BENEFITS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, SUPRA, AT LEAST FOR THE PERIOD OF ANY SUCH ENLISTMENT OR REENLISTMENT ENTERED INTO PRIOR TO JULY 1, 1946. EXCEPT IN THOSE CASES WHERE AN ENLISTMENT OR REENLISTMENT ENTERED INTO ON OR AFTER JUNE 1, 1945, WAS COMPLETED PRIOR TO JULY 1, 1946, BY REASON OF THE EXPIRATION OF THE TERM OF SERVICE, THE MAXIMUM PERIOD FOR WHICH SUCH BENEFITS ARE SAVED TO A PARTICULAR INDIVIDUAL IN THREE YEARS UNLESS, OF COURSE, THE PERIOD OF THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER HAS NOT THEN EXPIRED. ACCORDINGLY, ANY PROCEDURE WHICH WOULD HAVE THE EFFECT OF FURTHER EXTENDING THE EFFECTIVE PERIOD OF SUCH ACT WOULD BE UNAUTHORIZED. SINCE THAT WOULD BE THE EFFECT OF WHAT IS PROPOSED IN YOUR QUESTIONS B AND C, IN THAT THE PERSONNEL REFERRED TO THEREIN WOULD BE GIVEN THE BENEFITS OF THE ACT FOR A LONGER PERIOD THAN WOULD HAVE BEEN POSSIBLE HAD THEIR ORIGINAL ENLISTMENTS OR REENLISTMENTS BEEN FOR THE MAXIMUM PERIOD OF THREE YEARS, THOSE QUESTIONS ARE ANSWERED IN THE NEGATIVE. THIS, OF COURSE, WOULD NOT APPLY TO A REENLISTMENT PRIOR TO JULY 1, 1946, ENTERED INTO UPON DISCHARGE FROM A PRIOR ENLISTMENT WHICH HAD THERETOFORE NORMALLY EXPIRED.

WITH RESPECT TO WHAT IS PROPOSED IN YOUR QUESTION A, IT DOES NOT APPEAR THAT THERE IS ACTUALLY CONTEMPLATED SUCH AN EXTENSION OF AN ENLISTMENT AS IS AUTHORIZED BY THE ACT OF AUGUST 22, 1912, 37 STAT. 331, FOR NAVAL PERSONNEL--- FOR WHICH, SO FAR AS THIS OFFICE IS AWARE, THE WAR DEPARTMENT HAS NO LEGISLATIVE AUTHORITY--- BUT RATHER AN AMENDMENT TO THE ENLISTMENT CONTRACT VOLUNTARILY ENTERED INTO BY THE ENLISTED MAN TO CHANGE THE TERM OF SERVICE UNDER SUCH ENLISTMENT FROM A SHORTER PERIOD TO THE MAXIMUM PERIOD OF THREE YEARS AUTHORIZED BY THE STATUTE, THE TIME SERVED IN THE ORIGINAL ENLISTMENT TO BE CREDITED ON THE AMENDED ENLISTMENT PERIOD. SUCH ACTION WOULD NOT OPERATE TO GIVE THE ENLISTED MAN ANY GREATER BENEFITS THAN THOSE CONTEMPLATED AND PROVIDED BY THE STATUTE, AND NO OBJECTION IS PERCEIVED TO SUCH PROCEDURE. ACCORDINGLY, YOUR QUESTION A IS ANSWERED IN THE AFFIRMATIVE.