B-65492, JUNE 18, 1947, 26 COMP. GEN. 930

B-65492, JUNE 18, 1947, 26 COMP. GEN. 930

TRANSPORTATION; TRAVEL ALLOWANCE - NAVY ENLISTED MEN DISCHARGED FOR UNDERAGE ENLISTMENT NAVY ENLISTED MEN WHO WERE 17 YEARS OF AGE OR OVER AT THE TIME OF ENLISTMENT AND WHOSE ENLISTMENTS SUBSEQUENTLY WERE VOIDED BECAUSE OF FALSE STATEMENT OF AGE ARE NOT ENTITLED, UPON DISCHARGE, TO TRAVEL ALLOWANCE UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 21 OF THE ACT OF AUGUST 2, 1946; NOR IS TRANSPORTATION IN KIND AUTHORIZED UNDER THE ACT OF SEPTEMBER 24, 1945--- SUCH ACT BEING APPLICABLE ONLY IN THE CASE OF PERSONS WHO ENLIST UNDER THE AGE OF 17 YEARS--- OR OTHER LAW.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 18, 1947:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1947, REQUESTING DECISION ON A QUESTION SET FORTH IN A LETTER DATED APRIL 4, 1947, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

SUBJECT: ENLISTED MEN DISCHARGED FOR UNDERAGE.

1. SECTION 126 OF THE NATIONAL DEFENSE ACT, APPROVED 3 JUNE 1916, AS AMENDED (10 U.S.C. 752; 34 U.S.C. 895), WAS FURTHER AMENDED BY SECTION 21 OF THE ACT APPROVED 2 AUGUST 1946, PUBLIC LAW 604, 79TH CONGRESS, TO READ AS FOLLOWS:

"AN ENLISTED PERSON OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, INCLUDING RESERVE COMPONENTS THEREOF, UPON DISCHARGE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, RETIREMENT, OR RELIEF FROM ACTIVE DUTY, SHALL, UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE FOR PERSONNEL UNDER HIS JURISDICTION, RECEIVE A MONEY ALLOWANCE OF 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO HIS HOME, OR PLACE OF ACCEPTANCE FOR ACTIVE DUTY, OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, OR SUCH OTHER PLACE AS MAY BE DETERMINED TO BE MOST APPROPRIATE BY THE HEAD OF THE DEPARTMENT CONCERNED. FOR SEA TRAVEL INVOLVED IN TRAVEL BETWEEN PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY AND PLACE TO WHICH TRAVEL IS AUTHORIZED ONLY TRANSPORTATION IN KIND AND SUBSISTENCE ENROUTE SHALL BE ALLOWED.'

2. A TRAVEL ALLOWANCE LAW OF LIKE IMPORT HAS EXISTED FOR MANY YEARS; IN FACT, ALMOST SINCE THE FOUNDATION OF THE GOVERNMENT. SEE SECTIONS 1289 AND 1290, REVISED STATUTES; SECTION 126 OF THE NATIONAL DEFENSE ACT, APPROVED 3 JUNE 1916 (39 STAT. 217), AS AMENDED BY SECTION 3 OF THE ACT OF 28 FEBRUARY 1919 (40 STAT. 1203), AND OTHER SIMILAR PROVISIONS OF LAW. ALL OF THESE STATUTES PROVIDED FOR THE PAYMENT OF TRAVEL ALLOWANCE OR FURNISHING OF TRANSPORTATION IN KIND TO OFFICERS AND ENLISTED PERSONNEL WHEN DISCHARGED, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE. IT HAS BEEN CONSISTENTLY HELD THAT SUCH PROVISIONS WERE NOT ALL-INCLUSIVE FOR THE PAYMENT OF TRAVEL ALLOWANCE TO ENLISTED PERSONNEL DISCHARGED UNDER ANY AND ALL CIRCUMSTANCES.

3. SECTION 126 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED,WAS FURTHER AMENDED BY THE ACT OF 22 SEPTEMBER 1922 (42 STAT. 1021), WHICH AMENDMENT INCLUDED THE FOLLOWING PROVISO:

"THAT ENLISTED MEN UNDER THE AGE OF EIGHTEEN DISCHARGED ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN SHALL BE FURNISHED WITH TRANSPORTATION IN KIND FROM THE PLACE OF DISCHARGE TO THE RAILROAD STATION AT OR NEAREST TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, OR TO THEIR HOME IF THE DISTANCE THERETO IS NO GREATER THAN FROM THE FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, BUT IF THE DIFFERENCE BE GREATER THEY MAY BE FURNISHED TRANSPORTATION IN KIND FOR A DISTANCE EQUAL TO THAT FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT.'

IT WILL BE NOTED THAT THE LAW, AS THUS AMENDED, PROVIDES FOR FURNISHING "TRANSPORTATION IN IND" TO ENLISTED PERSONNEL "UNDER THE AGE OF EIGHTEEN DISCHARGED ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN.' HOWEVER, THIS PROVISO WAS OMITTED FROM THE AMENDMENT TO SECTION 126 OF THE NATIONAL DEFENSE ACT, AS CONTAINED IN SECTION 21 OF THE ACT APPROVED 2 AUGUST 1946, SUPRA.

4.IN 2 COMP. GEN. 612, IT WAS HELD THAT "THE GOVERNMENT MAY VOID A MINORITY ENLISTMENT FRAUDULENTLY ENTERED INTO AND WHEN SO VOIDED BY DISCHARGE FOR UNDERAGE, NO TRAVEL ALLOWANCE IS AUTHORIZED, OTHER THAN IN THE CASE OF "ENLISTED MEN UNDER THE AGE OF EIGHTEEN DISCHARGED ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN," " FOR WHOM EXPRESS PROVISION WAS MADE IN THE ACT OF 22 SEPTEMBER 1922, SUPRA, FOR TRANSPORTATION IN KIND TO BE FURNISHED UPON DISCHARGE.

5. IN CONNECTION WITH THE QUESTION AT ISSUE, IT IS PERTINENT TO POINT OUT THAT THE ACT APPROVED 24 SEPTEMBER 1945 (59 STAT. 536), PROVIDES FOR FURNISHING TRANSPORTATION IN KIND AND SUBSISTENCE UPON DISCHARGE IN THE CASE OF ENLISTED MEN WHO "SECURE ENLISTMENT BY REASON OF FALSE STATEMENT OF AGE ON THEIR APPLICATIONS FOR ENLISTMENT AND HAVE THEREFORE BEEN ENLISTED WHILE UNDER THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT.' THIS LEGISLATION IS LIMITED IN ITS APPLICATION, HOWEVER, TO THE CLASS OF PERSONNEL DEFINED THEREIN; I.E., THOSE WHO ENLIST WHILE ,UNDER THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT.'

6. IN VIEW OF PAST DECISIONS ON LAWS DEALING WITH THE PAYMENT OF TRAVEL ALLOWANCE, IT WOULD APPEAR THAT MEN WHO AT THE TIME OF ENLISTMENT WERE WITHIN THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT AND WHO ARE THEREAFTER DISCHARGED PRIOR TO ATTAINING THEIR MAJORITY BY REASON OF UNDERAGE, WHETHER OR NOT SUCH DISCHARGE WAS ON APPLICATION OF PARENT OR GUARDIAN, ARE NOT, SINCE THE PASSAGE OF THE ACT OF 2 AUGUST 1946, ENTITLED TO BE PAID EITHER A TRAVEL ALLOWANCE OR TO BE FURNISHED TRANSPORTATION IN KIND UPON DISCHARGE. SEE 9 COMP. DEC. 517; 14 ID. 116; 24 ID. 52; 2 COMP. GEN. 612; 9 ID. 436.

7. IN VIEW OF THE OMISSION OF THE PROVISION FOR FURNISHING TRANSPORTATION IN KIND TO ENLISTED MEN UNDER THE AGE OF EIGHTEEN, DISCHARGED ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN BY THE AMENDMENT OF SECTION 126 OF THE NATIONAL DEFENSE ACT OF 1916 CONTAINED IN SECTION 21 OF THE ACT OF 2 AUGUST 1946, SUPRA, IT IS RECOMMENDED THAT A DECISION BE REQUESTED OF THE COMPTROLLER GENERAL OF THE UNITED STATES AS TO WHETHER ENLISTED MEN NOT COMING WITHIN THE PROVISIONS OF THE ACT APPROVED 24 SEPTEMBER 1945 (59 STAT. 536), WHO ARE DISCHARGED BY REASON OF UNDERAGE ON OR AFTER 2 AUGUST 1946, MAY BE PAID TRAVEL ALLOWANCE AT THE TIME OF DISCHARGE. IN THE EVENT IT IS HELD THAT SUCH MEN ARE NOT ENTITLED TO THE PAYMENT OF TRAVEL ALLOWANCE, IT IS FURTHER RECOMMENDED THAT A DECISION BE REQUESTED AS TO WHETHER SUCH MEN MAY BE FURNISHED TRANSPORTATION IN KIND.

SECTION 1 OF THE ACT OF SEPTEMBER 24, 1945, 59 STAT. 536, IS AS FOLLOWS:

THAT THE SECRETARY OF THE NAVY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, MAY DISCHARGE OR RELEASE FROM THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF, WITH PAY AND ALLOWANCES AND DISCHARGE CERTIFICATE FOUND APPROPRIATE FOR THEIR SERVICE AFTER ENLISTMENT, ENLISTED PERSONS WHO HERETOFORE HAVE SECURED OR HEREAFTER MAY SECURE ENLISTMENT BY REASON OF FALSE STATEMENT OF AGE ON THEIR APPLICATIONS FOR ENLISTMENT AND HAVE THEREFORE BEEN ENLISTED WHILE UNDER THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT. WHEN SO DISCHARGED OR RELEASED SUCH ENLISTED PERSONS SHALL BE FURNISHED TRANSPORTATION IN KIND AND SUBSISTENCE FROM THE PLACE OF DISCHARGE TO THEIR HOME.'

AS STATED IN THE ABOVE-QUOTED LETTER, SECTION 1 OF SAID ACT OF SEPTEMBER 24, 1945, APPLIES ONLY TO ENLISTED MEN WHO HAVE ENLISTED WHILE UNDER THE MINIMUM STATUTORY OR ADMINISTRATIVE AGE LIMIT. THE MINIMUM ADMINISTRATIVE AGE LIMIT FOR ENLISTMENT IN THE NAVY IS UNDERSTOOD TO BE 17 YEARS, WHICH IS WITHIN THE STATUTORY AGE LIMIT FOR ENLISTMENTS IN BOTH THE REGULAR NAVY AND NAVAL RESERVE. SECTION 4, ACT OF JUNE 25, 1938, 52 STAT. 1176; 34 U.S.C. 161. THUS, THE ACT OF SEPTEMBER 24, 1945, APPLIES ONLY TO MEN WHO ENLIST UNDER THE AGE OF 17. AN ENLISTMENT UNDER THE AGE OF 18 BASED UPON A FALSE STATEMENT OF AGE IS REGARDED AS FRAUDULENT AMD MAY BE VOIDED BY THE GOVERNMENT. HOWEVER, IF SO VOIDED, NO RIGHT TO TRAVEL ALLOWANCE OR TRANSPORTATION IN KIND EXISTS, EXCEPT AS EXPRESSLY PROVIDED BY LAW. COMP. GEN. 612, 614; 24 ID. 900, 909. SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 21 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 856, QUOTED IN SAID LETTER OF APRIL 4, 1947, MAKES NO PROVISION FOR THE PAYMENT OF A TRAVEL ALLOWANCE OR THE FURNISHING OF TRANSPORTATION TO A MAN WHOSE ENLISTMENT IS VOIDED BECAUSE OF A FALSE STATEMENT OF AGE ON HIS APPLICATION FOR ENLISTMENT, AND THERE APPEARS TO BE NO AUTHORITY UNDER EXISTING LAW FOR THE PAYMENT OF A TRAVEL ALLOWANCE OR THE FURNISHING OF TRANSPORTATION IN KIND UNDER SUCH CIRCUMSTANCES TO A MAN WHO AT THE TIME OF HIS ENLISTMENT WAS 17 YEARS OF AGE OR OVER.