B-96194, DECEMBER 4, 1950, 30 COMP. GEN. 222

B-96194, DECEMBER 4, 1950, 30 COMP. GEN. 222

ENLISTMENT ALLOWANCE OR REENLISTMENT BONUS - ELIGIBILITY REQUIREMENT THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO PAYMENT OF AN ENLISTMENT ALLOWANCE UNDER THE PAY READJUSTMENT ACT OF 1942 OR TO A REENLISTMENT BONUS UNDER THE CAREER COMPENSATION ACT OF 1949 IS CONTINGENT UPON THE ENLISTMENT OR REENLISTMENT OF SUCH MEMBERS BEING ACCOMPLISHED WITHIN THREE MONTHS FROM DATE OF DISCHARGE FROM THE SERVICE, SO THAT A MEMBER WHOSE ENLISTMENT OR REENLISTMENT IS NOT EFFECTED WITHIN THE THREE- MONTH PERIOD BECAUSE OF ADMINISTRATIVE DELAY MAY NOT RECEIVE SAID ALLOWANCE OR BONUS EVEN THOUGH THE ENLISTMENT OR REENLISTMENT IS ANTEDATED UNDER ADMINISTRATIVE REGULATIONS TO A DATE WITHIN THREE MONTHS FROM THE DATE THE MEMBER WAS DISCHARGED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, DECEMBER 4, 1950:

REFERENCE IS MADE TO LETTER FROM THE ACTING SECRETARY OF DEFENSE, DATED JUNE 13, 1950, REQUESTING A DECISION AS TO WHETHER PAYMENT OF ENLISTMENT ALLOWANCE UNDER THE PROVISIONS OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS SAVED BY SECTION 520 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 834, OR REENLISTMENT BONUS UNDER SECTION 207 OF THE LATTER ACT, 63 STAT. 811, MAY BE MADE TO INDIVIDUALS WHOSE ENLISTMENTS OR REENLISTMENTS, ALTHOUGH NOT IN FACT ACCOMPLISHED WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE OR SEPARATION FROM A PRIOR PERIOD OF SERVICE, ARE ANTEDATED TO A DATE WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE OR SEPARATION UNDER AUTHORITY OF PARAGRAPH 20, SR 615-105-1, WHICH READS AS FOLLOWS:

20. DATE OF ENLISTMENT, ANTEDATING ENLISTMENTS.--- A. EXCEPT AS HEREINAFTER SET FORTH, THE DATE OF ENLISTMENT IS THE DATE UPON WHICH THE OATH OF ENLISTMENT IS ADMINISTERED, AND IT MUST BE SHOWN ON THE ENLISTMENT RECORD ABOVE THE SIGNATURE OF THE OFFICER WHO ADMINISTERS THE OATH. ENLISTMENT WILL BE ANTEDATED WITHOUT PRIOR APPROVAL OF THE ADJUTANT GENERAL FOR ARMY ENLISTEES, OR THE CHIEF OF STAFF, UNITED STATES AIR FORCE, FOR AIR FORCE ENLISTEES. UNDER NO CIRCUMSTANCES WILL AN ENLISTMENT BE POSTDATED.

B. WHEN THE ENLISTMENT OF AN INDIVIDUAL IS DELAYED THROUGH NO FAULT OF HIS OWN, BUT FOR THE CONVENIENCE OF THE GOVERNMENT, AND IT APPEARS THAT HE HAS A WELL-FOUNDED CLAIM TO HAVE A PRIOR DATE RECORDED AS THE DATE OF ENLISTMENT, A FULL REPORT OF ALL THE FACTS, WITH RECOMMENDATIONS, WILL BE MADE TO THE ADJUTANT GENERAL FOR THE/1ARMY ENLISTEES, OR THE AIR ADJUTANT GENERAL, HEADQUARTERS, UNITED STATES AIR FORCE, ATTENTION: PERSONNEL RECORDS SERVICE, FOR AIR FORCE ENLISTEES.

IT IS STATED THAT THE BASIS FOR SUCH ANTEDATING OF ENLISTMENTS IS, IN PART, AN OPINION OF THE JUDGE ADVOCATE GENERAL DATED AUGUST 3, 1947, IN WHICH IT WAS HELD, IN EFFECT, THAT AN ENLISTMENT MAY BE ANTEDATED FOR THE PURPOSE OF GRANTING AN ENLISTMENT ALLOWANCE IN CASES WHERE THE APPLICANT FOR ENLISTMENT WAS ELIGIBLE FOR ACCEPTANCE AT TIME OF HIS ORIGINAL APPLICATION, BUT THROUGH NO FAULT OF HIS OWN WAS NOT ACTUALLY ENLISTED UNTIL A DATE SUBSEQUENT TO THREE MONTHS FROM THE DATE OF DISCHARGE FROM A PRIOR PERIOD OF SERVICE. IT APPEARS FROM THE ENCLOSURES FORWARDED WITH THE LETTER OF JUNE 13, 1950, THAT THE BASIC PURPOSE IN ANTEDATING AN ENLISTMENT IS TO ESTABLISH ELIGIBILITY FOR ENLISTMENT ALLOWANCE AND THAT IT IS CONTEMPLATED THAT ANTEDATING AN ENLISTMENT WOULD BE AUTHORIZED PRIMARILY IN THOSE CASES WHERE A WAIVER OF PHYSICAL DEFECT IS REQUIRED FOR ENLISTMENT, AND IN THOSE CASES WHERE THE PHYSICAL EXAMINATION DISCLOSES CONDITIONS WHICH REQUIRE FURTHER TESTS OR CONSULTATION BUT SUCH TESTS OR CONSULTATIONS LATER INDICATE THAT NO WAIVER IS REQUIRED, PROVIDED THE APPLICANT IS PHYSICALLY PRESENT AT A MILITARY INSTALLATION AND SUBJECT TO MILITARY CONTROL FROM THE DATE OF HIS APPLICATION FOR ENLISTMENT TO THE DATE HE ACTUALLY IS ENLISTED.

SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, LIKE SECTION 9 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 629, AUTHORIZED THE PAYMENT OF AN ENLISTMENT ALLOWANCE TO EVERY HONORABLY DISCHARGED ENLISTED MAN "WHO REENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF HIS DISCHARGE," AND SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, AUTHORIZES THE PAYMENT OF A REENLISTMENT BONUS TO MEMBERS OF THE UNIFORMED SERVICES WHO ENLIST UNDER THE CONDITIONS SET FORTH THEREIN "WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION, OR WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION, OR WITHIN SUCH LESSER PERIOD OF TIME AS THE SECRETARY CONCERNED MAY DETERMINE FROM TIME TO TIME.'

IN DECISION OF FEBRUARY 4, 1927, 6 COMP. GEN. 500, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN OF THE NAVY WHO WAS HONORABLY DISCHARGED ON MARCH 23, 1925, AND WAS REENLISTED ON JULY 7, 1925, UNDER CIRCUMSTANCES WHICH WERE REPORTED BY THE NAVY DEPARTMENT TO HAVE BEEN AS FOLLOWS:

THE RECORDS OF THE BUREAU SHOW THAT THE ABOVE-NAMED MAN WAS DISCHARGED FROM THE UNITED STATES NAVAL SERVICE ON 23 MARCH, 1925. ON 29 MAY, 1925, HE ADDRESSED A COMMUNICATION TO THE BUREAU RELATIVE TO HIS DESIRE TO REENLIST, STATING THAT HE APPLIED FOR REENLISTMENT AND WAS REJECTED BY THE RECRUITING OFFICE. UNDER DATE OF 15 JUNE, 1925, THE BUREAU INFORMED BENNETT THAT HE SHOULD APPLY AT A RECRUITING STATION FOR REENLISTMENT AND IF FOUND NOT PHYSICALLY QUALIFIED THAT A REJECTION REPORT BE SUBMITTED. BENNETT ACCORDINGLY APPLIED FOR REENLISTMENT AT THE RECRUITING STATION. CINCINNATI, OHIO, ON 19 JUNE, 1925, BUT WAS NOT REENLISTED DUE TO PHYSICAL DISABILITY, AND A WAIVER WAS SUBMITTED TO THE BUREAU. THE WAIVER WAS APPROVED AND RETURNED TO THE RECRUITING STATION AT CINCINNATI, OHIO, WITH THE RESULT THAT HE WAS REENLISTED AND HIS ENLISTMENT CONTRACT WAS SIGNED AND SWORN TO AS OF 7 JULY, 1925.

IT THERE WAS HELD, QUOTING THE SYLLABUS, THAT:

AN APPLICANT FOR REENLISTMENT IN THE NAVY IN CONTINUOUS SERVICE WHO WAS FOUND PHYSICALLY DISQUALIFIED FOR ENLISTMENT, THE DISQUALIFICATION THEREAFTER HAVING BEEN WAIVED BY THE NAVY DEPARTMENT, MAY NOT BE REGARDED FOR THE PURPOSES OF PAY, ENLISTMENT ALLOWANCE, ETC., AS HAVING REENLISTED PRIOR TO THE DATE HE FINALLY EXECUTED THE FORMAL CONTRACT OF ENLISTMENT AND TOOK THE OATH OF ALLEGIANCE.

SUCH DECISION WAS BASED IN PART UPON THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES IN IN RE GRIMLEY, 137 U.S. 147, 157,"THAT THE TAKING OF THE OATH OF ALLEGIANCE IS THE PIVOTAL FACT WHICH CHANGES THE STATUS FROM THAT OF CIVILIAN TO THAT OF SOLDIER," AND UNITED STATES V. UNION PACIFIC RAILROAD COMPANY, 249 U.S. 354, HOLDING THAT APPLICANTS FOR ENLISTMENT PROVISIONALLY ACCEPTED, BUT SUBJECT TO FINAL EXAMINATION AND NOT SWORN IN, ARE NOT "TROOPS OF THE UNITED STATES.' SUCH VIEW, IN PRINCIPLE, WAS ADHERED TO IN BILLINGS V. TRUESDELL, 321 U.S. 542, WHEREIN IT WAS HELD THAT UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, AS AMENDED, IT WAS NOT ENOUGH THAT A SELECTEE WAS ACCEPTED BY THE ARMY AFTER PHYSICAL EXAMINATION, OR THAT THE OATH WAS READ TO HIM AND THAT HE THEREUPON WAS INFORMED THAT HE WAS IN THE ARMY, TO MAKE HIM AN ENLISTED MAN OF THE ARMY SUBJECT TO TRIAL BY COURT MARTIAL.

THE RIGHT TO THE ENLISTMENT ALLOWANCE OR REENLISTMENT BONUS IS PREDICATED ON AN ENLISTMENT OR REENLISTMENT WITHIN A PERIOD OF THREE MONTHS FROM DATE OF DISCHARGE. THE STATUTES CONTAIN NO EXPRESS OR IMPLIED PROVISION EXTENDING THE PERIOD IN WHICH AN ENLISTMENT OR REENLISTMENT MAY BE ACCOMPLISHED UNDER CIRCUMSTANCES WHERE THE REENLISTMENT OR REENLISTMENT IS NOT EFFECTED WITH THE THREE-MONTH PERIOD BECAUSE OF ADMINISTRATIVE DELAY IN ACCOMPLISHING SUCH ENLISTMENT OR REENLISTMENT. IN SUCH CASES NEITHER THE ACCOUNTING OFFICERS NOR THE ADMINISTRATIVE OFFICERS ARE AUTHORIZED TO WAIVE SUCH THREE-MONTH LIMITATION FOR THE PURPOSE OF ESTABLISHING ELIGIBILITY OF A PARTICULAR INDIVIDUAL TO RECEIVE SUCH ALLOWANCES. ACCORDINGLY, I MUST ADVISE YOU THAT PAYMENT OF THE ENLISTMENT ALLOWANCE OR REENLISTMENT BONUS IS NOT AUTHORIZED UNLESS THE ENLISTMENT OR REENLISTMENT IS IN FACT EFFECTED WITHIN THREE MONTHS FROM DATE OF DISCHARGE.