A-19282, AUGUST 4, 1927, 7 COMP. GEN. 91

A-19282, AUGUST 4, 1927, 7 COMP. GEN. 91

GRATUITIES, ENLISTMENT ALLOWANCE - LEAVE OF ABSENCE AN ENLISTED MAN IN THE NAVY DISCHARGED WITHIN THREE MONTHS OF EXPIRATION OF ENLISTMENT UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331, WHO LOST TIME FOR ABSENCE WITHOUT LEAVE OR OVER LEAVE, DID NOT SERVE THE FULL PERIOD OF HIS ENLISTMENT AND TIME SO LOST MAY NOT BE CONSIDERED AS "TIME RVED," BY REASON OF DISCHARGE UNDER SAID ACT OF 1912, IN DETERMINING SERVICE FOR ENLISTMENT-ALLOWANCE PURPOSES. AN ENLISTED MAN IN THE NAVY HELD IN THE SERVICE BEYOND DATE OF EXPIRATION OF HIS ENLISTMENT FOR A PERIOD EQUAL TO TIME LOST BECAUSE OF ABSENCE WITHOUT LEAVE OR OVER LEAVE, OR OTHER CAUSES, IS ENTITLED TO ENLISTMENT ALLOWANCE BASED ON HIS ACTUAL SERVICE BETWEEN DATE OF ENLISTMENT AND DATE OF DISCHARGE. AN ENLISTED MAN IN THE NAVY, ENLISTED FOR MINORITY, WHO LOST NOT EXCEEDING THREE MONTHS' TIME BECAUSE OF ABSENCE DUE TO MISCONDUCT, WHICH THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, REQUIRES SHALL BE MADE GOOD BEFORE THE ENLISTMENT SHALL BE REGARDED AS COMPLETE, AND WHO IS DISCHARGED ON THE DAY PRECEDING HIS 21ST BIRTHDAY UNDER PROVISIONS OF THE ACT OF AUGUST 22, 1912, 37 STAT. 331, IS ENTITLED TO ENLISTMENT ALLOWANCE BASED ON HIS FULL TERM OF ENLISTMENT AS IF HE HAD SERVED TO THE EXPIRATION OF ENLISTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 4, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 20, 1927, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH PROPOSED CHANGE IN SECTION B OF THE "INSTRUCTIONS FOR CARRYING INTO EFFECT THE JOINT SERVICE PAY BILL, ACT OF 10 JUNE, 1922," WITH THE REQUEST FOR AN EXPRESSION OF YOUR VIEWS AS TO WHETHER THESE INSTRUCTIONS, IN SO FAR AS THEY INVOLVE DISBURSEMENTS, ARE IN CONFORMITY WITH LAW.

YOUR DECISION IS ALSO RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS, WHICH ARE RAISED BY REASONS OF YOUR DECISION OF JULY 6, 1927 (A-18920), VIZ:

(1) IS AN ENLISTED MAN WHO IS GIVEN A DISCHARGE WITHIN THREE MONTHS OF THE DATE OF EXPIRATION OF HIS ENLISTMENT AND WHO LOST TIME BECAUSE OF ABSENCE WITHOUT LEAVE OR ABSENCE OVER LEAVE ENTITLED TO ENLISTMENT ALLOWANCE BASED ON THE FULL PERIOD OF HIS ENLISTMENT PROVIDED THE PERIOD BETWEEN DATE OF DISCHARGE AND DATE OF EXPIRATION OF ENLISTMENT PLUS THE TIME LOST DOES NOT EXCEED THREE MONTHS?

(2) IS AN ENLISTED MAN ENTITLED TO ENLISTMENT ALLOWANCE BASED ON THE FULL TERM OF HIS ENLISTMENT IN CASES WHERE HELD BEYOND DATE OF EXPIRATION OF ENLISTMENT FOR A PERIOD EQUAL TO THE TIME LOST BECAUSE OF ABSENCE WITHOUT LEAVE OR ABSENCE OVER LEAVE?

(3) IS A MAN WHO ENLISTS FOR MINORITY AND IS DISCHARGED ON THE DAY PRECEDING HIS 21ST BIRTHDAY, ENTITLED TO ENLISTMENT ALLOWANCE BASED ON HIS FULL TERM OF ENLISTMENT IF HE HAS LOST TIME BECAUSE OF ABSENCE DUE TO MISCONDUCT FOR A PERIOD NOT TO EXCEED THREE MONTHS?

PARTICULAR ATTENTION IS INVITED TO PARAGRAPH 5 OF THE ENCLOSED LETTER, FROM WHICH IT WILL BE SEEN THAT YOUR DECISION REFERRED TO ABOVE (A-18920, JULY 6, 1927) HAS THE EFFECT OF OVERRULING DETAILED INSTRUCTIONS ON THE SUBJECT OF ENLISTMENT ALLOWANCE APPEARING ON PAGES B14 AND B15 OF THE "PAY BILL INSTRUCTIONS.' IN THIS CONNECTION THE NAVY DEPARTMENT FURTHER REQUESTS THAT YOU AUTHORIZE ALL PAYMENTS OF ENLISTMENT ALLOWANCE CREDITED IN ACCORDANCE WITH THE INSTRUCTIONS AS CONTAINED IN THE "PAY BILL INSTRUCTIONS" TO BE PASSED IN THE ACCOUNTS OF DISBURSING OFFICERS TO AND INCLUDING JULY 15, 1927.

THE DECISION OF JULY 6, 1927, CONCERNED THE AMOUNT OF ENLISTMENT ALLOWANCE DUE LESLIE T. BRENNAN, YEOMAN FIRST CLASS, UNITED STATES NAVY, UPON HIS REENLISTING ON JUNE 14, 1926. THE RECORD SHOWED THAT HE ENLISTED JUNE 12, 1922, FOR FOUR YEARS AND WAS DISCHARGED JUNE 11, 1926, AND THAT HE WAS ABSENT WITHOUT LEAVE FOR ONE DAY DURING THAT ENLISTMENT. UNDER THE LAW, ACT OF JUNE 10, 1922, 42 STAT. 630, UPON REENLISTING ON JUNE 14, 1922, HE WAS ENTITLED TO AN ALLOWANCE OF $50 FOR EACH FULL YEAR SERVED IN THE ENLISTMENT FROM WHICH LAST DISCHARGED, BUT IN COMPUTING SERVICE FOR THAT PURPOSE TIME ABSENT FROM DUTY WITHOUT LEAVE IS NOT SERVICE, AND HAVING BEEN ABSENT FOR ONE DAY HE WAS ENTITLED TO CREDIT FOR THREE FULL YEARS ONLY.

THE PROPOSED CHANGES IN THE INSTRUCTIONS RELATE TO COMPUTATION OF TIME TO ASCERTAIN THE NUMBER OF FULL YEARS SERVED WHEN A MAN IS DISCHARGED WITHIN THREE MONTHS OF THE DATE OF EXPIRATION OF ENLISTMENT UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331, AND ARE AS FOLLOWS:

PAGE B14, PARAGRAPH 5 (B), SUBPARAGRAPH (A), NOW READS AS FOLLOWS:

"COMPUTE TIME INTERVENING BETWEEN DATE OF ENLISTMENT AND DATE OF DISCHARGE AND DEDUCT THEREFROM ALL TIME LOST AS SPECIFIED ABOVE.'

THIS SENTENCE SHOULD BE CHANGED TO READ AS FOLLOWS:

"COMPUTE TIME INTERVENING BETWEEN DATE OF ENLISTMENT AND DATE OF DISCHARGE, AND DEDUCT THEREFROM ALL TIME LOST DUE TO SICKNESS, DISEASE, OR INJURY RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS OR OTHER MISCONDUCT.'

THE FOLLOWING SHOULD BE ADDED TO PAGE B15 DIRECTLY AFTER THE SENTENCE READING "REENLISTMENT ALLOWANCE PAYABLE UNDER (A) 3 FULL YEARS, OR 3 TIMES $25 OR $50: "

"THESE EXAMPLES DO NOT APPLY IN CASES OF TIME LOST BECAUSE OF ABSENCE WITHOUT LEAVE OR BECAUSE OF ABSENCE OVER LEAVE.

"WHEN AN ENLISTED MAN IS DISCHARGED ON THE NORMAL DATE OF EXPIRATION OF ENLISTMENT AND HAS LOST TIME BECAUSE OF ABSENCE WITHOUT LEAVE OR ABSENCE OVER LEAVE THE PERIOD OF SUCH ABSENCE MAY NOT BE COUNTED IN COMPUTING TIME SERVED FOR PURPOSES OF ENLISTMENT ALLOWANCE.

"EXAMPLES

"/1) ENLISTED JULY 10, 1922, FOR FOUR YEARS; DISCHARGED JULY 9, 1926--- TIME LOST BECAUSE OF ABSENCE WITHOUT LEAVE, 30 DAYS; ENLISTMENT ALLOWANCE PAYABLE FOR 3 FULL YEARS, OR 3 TIMES $25, OR $50.'

THE "TIME LOST AS SPECIFIED ABOVE" IN THE INSTRUCTIONS INCLUDES TIME LOST ON ACCOUNT OF:

ABSENCE WITHOUT LEAVE (INCLUDING OVERLEAVE, DESERTION, AND IMPRISONMENT WHILE IN CIVIL ARREST RESULTING IN SENTENCE AND WHILE SERVING SAID SENTENCE).

SICKNESS, DISEASE, OR INJURY RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS OR OTHER MISCONDUCT.

FURLOUGH WITHOUT PAY.

IF A RESERVE, INACTIVE DUTY.

NONPERFORMANCE OF DUTY BECAUSE IMPRISONED BOTH WHILE IN ARREST RESULTING IN COURT-MARTIAL SENTENCE AND WHILE SERVING SAID SENTENCE.

"TIME LOST DUE TO SICKNESS, DISEASE, OR INJURY RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS OR OTHER MISCONDUCT" AUTOMATICALLY EXTENDS THE ENLISTMENT, AND THE DISCHARGE BEFORE EXPIRATION OF ENLISTMENT UNDER THE ACT OF 1912 IS WITH RESPECT TO SUCH EXTENDED NLISTMENT; THE PROPOSED CHANGE IN INSTRUCTIONS EXCLUDES FROM COMPUTATION ALL OTHER OF THE DESCRIBED PERIODS OF ABSENCE AS A PART OF THE THREE MONTHS' REDUCTION OF THE ENLISTMENT PERIOD UNDER THE ACT OF 1912.

SAID ACT OF AUGUST 22, 1912, 37 STAT. 331, SO FAR AS IS HERE APPLICABLE, PROVIDES:

THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, WITH THE APPROVAL OF THE PRESIDENT, ANY ENLISTED MAN MAY BE DISCHARGED AT ANY TIME WITHIN THREE MONTHS BEFORE THE EXPIRATION OF HIS TERM OF ENLISTMENT OR EXTENDED ENLISTMENT WITHOUT PREJUDICE TO ANY RIGHT, PRIVILEGE, OR BENEFIT THAT HE WOULD HAVE RECEIVED, EXCEPT PAY AND ALLOWANCES FOR THE UNEXPIRED PERIOD NOT SERVED, OR TO WHICH HE WOULD THEREAFTER BECOME ENTITLED, HAD HE SERVED HIS FULL TERM OF ENLISTMENT OR EXTENDED ENLISTMENT. * * *

IT IS ONLY TIME BETWEEN THE DATE OF ACTUAL DISCHARGE AND THE DATE ON WHICH THE ENLISTMENT IS DUE TO EXPIRE THAT MAY BE COUNTED AS "TIME SERVED" UNDER THE ACT OF 1912. THAT ACT IN NO WAY AFFECTS TIME NOT SERVED (THAT IS, TIME LOST) IN THE ENLISTMENT PRIOR TO DATE OF DISCHARGE; TIME LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE DUE TO MISCONDUCT THE MAN IS REQUIRED UNDER THE LAW (ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717) TO MAKE GOOD AND AUTOMATICALLY EXTENDS HIS ENLISTMENT TO THE EXTENT OF TIME SO LOST. 4 COMP. GEN. 1026. FOR EXAMPLE, IF A MAN SERVING IN AN ENLISTMENT FOR FOUR YEARS HAS SO LOST ONE MONTH'S TIME AND IS DISCHARGED UNDER THE ACT OF 1912 ONE MONTH BEFORE HIS ENLISTMENT WAS ORIGINALLY DUE TO EXPIRE, THE TIME BETWEEN DATE OF SUCH DISCHARGE AND DATE OF EXPIRATION OF HIS ENLISTMENT AS EXTENDED BY REASON OF TIME SO LOST IS TWO MONTHS. IF HE HAD SERVED TO DATE OF EXPIRATION OF HIS EXTENDED ENLISTMENT, HE WOULD HAVE SERVED FOUR FULL YEARS, I.E., THE TIME ABSENT WOULD BE DEDUCTED IN THE COMPUTATION. THE 1912 LAW GIVES HIM RIGHT TO CREDIT FOR SERVICE THAT WOULD HAVE ACCRUED HAD HE SERVED TO EXPIRATION OF ENLISTMENT. BUT IN THE SAME CASE IF, IN ADDITION TO THE MONTH LOST DUE TO MISCONDUCT, THE MAN HAD LOST TIME DUE TO ABSENCE WITHOUT LEAVE OR OTHER CAUSES, WHICH DOES NOT AFFECT THE DURATION OF HIS ENLISTMENT, HE WOULD HAVE SERVED LESS THAN FOUR FULL YEARS. IT IS THUS APPARENT THAT TIME LOST NOT DUE TO HIS CONDUCT CANNOT, BY REASON OF DISCHARGE UNDER SAID ACT OF 1912, BE CONSIDERED AS TIME SERVED FOR ENLISTMENT ALLOWANCE PURPOSES.

THE PROVISION OF THE ACT OF AUGUST 22, 1912, APPLIES ONLY TO THE PERIOD FROM DATE OF THE EARLY DISCHARGE TO THE LEGAL DATE OF EXPIRATION OF ENLISTMENT, AND DOES NOT AFFECT TIME LOST (NOT SERVED, AND WHICH THE MAN IS NOT REQUIRED TO MAKE GOOD) DURING THE PERIOD OF ENLISTMENT PRIOR TO ACTUAL DATE OF DISCHARGE, AND THEREFORE AN ENLISTED MAN DISCHARGED WITHIN THREE MONTHS OF EXPIRATION OF HIS ENLISTMENT WHO LOST TIME BECAUSE OF ABSENCE WITHOUT LEAVE OR ABSENCE OVER LEAVE, DID NOT SERVE THE FULL PERIOD OF HIS ENLISTMENT, AND TIME SO LOST MAY NOT BE CONSIDERED AS "TIME SERVED" IN DETERMINING SERVICE FOR ENLISTMENT ALLOWANCE PURPOSES.

THE ENLISTMENT ALLOWANCE IS BASED ON FULL YEARS OF SERVICE IN THE ENLISTMENT FROM WHICH LAST DISCHARGED. THE ENLISTED MAN IS ENTITLED TO DISCHARGE ON DATE HIS ENLISTMENT IS DUE TO EXPIRE. THE LAW ALSO CONTEMPLATES SITUATIONS ARISING WHERE IT IS NOT PRACTICABLE TO DISCHARGE A MAN ON DATE OF EXPIRATION OF HIS ENLISTMENT. SEE SECTION 1422, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 3, 1875, 18 STAT. 484; 15 COMP. DEC. 883; 20 ID. 37. SERVICE THUS RENDERED AFTER DATE OF EXPIRATION OF ENLISTMENT, WHETHER OR NOT ENTITLING TO THE ADDITIONAL PAY THEREIN PROVIDED, IS SERVICE IN THE ENLISTMENT, AND A MAN THUS HELD BEYOND DATE OF EXPIRATION OF ENLISTMENT IS ENTITLED TO ENLISTMENT ALLOWANCE BASED ON THE FULL TERM OF HIS SERVICE UNDER SUCH ENLISTMENT, SUBJECT TO THE DEDUCTIONS INDICATED.

THE PROVISION IN THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, REQUIRING TIME LOST ON ACCOUNT OF MISCONDUCT TO BE MADE GOOD BEFORE THE ENLISTMENT SHALL BE REGARDED AS COMPLETE APPLIES TO ALL ENLISTMENTS AND IF THE MAN WHO ENLISTS FOR MINORITY LOSES TIME BECAUSE OF ABSENCE DUE TO MISCONDUCT AS PRESCRIBED THEREIN HIS ENLISTMENT IS AUTOMATICALLY EXTENDED TO THE EXTENT OF TIME SO LOST. ACCORDINGLY, A MAN WHO ENLISTS FOR MINORITY AND WHO HAS LOST NOT EXCEEDING THREE MONTHS' TIME BECAUSE OF ABSENCE DUE TO MISCONDUCT MAY BE DISCHARGED ON THE DAY PRECEDING HIS 21ST BIRTHDAY UNDER THE PROVISIONS OF THE ACT OF 1912 AND BE ENTITLED TO ENLISTMENT ALLOWANCE BASED ON HIS FULL TERM ENLISTMENT AS IF HE HAD SERVED TO EXPIRATION OF ENLISTMENT, BUT SUBJECT TO DEDUCTION FOR OTHER ABSENCES NOT COUNTED AS SERVICE FOR THE PURPOSE OF ENLISTMENT ALLOWANCE.

YOUR QUESTIONS ARE ANSWERED ACCORDINGLY, AND AS THE PROPOSED CHANGES IN INSTRUCTIONS CONFORM TO THE LAW AS CONSTRUED IN 4 COMP. GEN. 1026, AND SUBSEQUENT DECISIONS, THERE APPEARS NO REASON WHY THEY MAY NOT BE PROMULGATED. CREDIT FOR PAYMENTS OF ENLISTMENT ALLOWANCE MADE UNDER EXISTING INSTRUCTIONS PRIOR TO JULY 15, 1927, WILL BE PASSED IN THE ACCOUNTS OF DISBURSING OFFICERS.