JULY 5, 1921, 1 COMP. GEN. 1

JULY 5, 1921, 1 COMP. GEN. 1

ENLISTMENT ALLOWANCE - ARMY, ENLISTED MEN THE PROVISION IN THE ACT OF JUNE 30, 1921, 42 STAT., 74, REPEALING THE PROVISION IN THE ACT OF JUNE 4, 1920, 41 STAT., 775, AUTHORIZING PAYMENT OF AN ENLISTMENT ALLOWANCE OF $90 TO ENLISTED MEN OF THE ARMY WHO ENLIST OR REENLIST FOR A PERIOD OF THREE YEARS, IS OPERATIVE ONLY WITH RESPECT TO MEN WHO ENLIST OR REENLIST ON OR AFTER JUNE 30, 1921, AND DOES NOT PRECLUDE PAYMENT OF THE ENLISTMENT ALLOWANCE TO MEN LAWFULLY ENLISTED OR REENLISTED IN THE PERIOD FROM JUNE 4, 1920, TO JUNE 29, 1921, INCLUSIVE, FOR A TERM OF THREE YEARS AND WHO HAVE BEEN OR HEREAFTER WILL BE HONORABLY DISCHARGED AND HAVE NOT YET BEEN PAID SUCH ALLOWANCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 5, 1921:

I HAVE YOUR LETTER OF JUNE 28, 1921, WORDED, IN PART, AS FOLLOWS:

THE ARMY APPROPRIATION BILL FOR THE FISCAL YEAR 1922 AS PASSED BY CONGRESS CONTAINS A PROVISION READING:

"THE PROVISIONS OF SECTION 27 OF THE ARMY REORGANIZATION ACT, APPROVED JUNE 4, 1920, PROVIDING AN ENLISTMENT ALLOWANCE, ARE HEREBY REPEALED.'

YOUR DECISION IS REQUESTED WHETHER THE FOREGOING PROVISION IN THE ARMY APPROPRIATION BILL WILL PRECLUDE PAYMENT OF THE ENLISTMENT ALLOWANCE TO MEN WHO MAY HAVE ENLISTED OR REENLISTED PRIOR TO THE DATE WHEN THE PROVISION MAY BECOME A LAW AND WHO HAVE NOT YET BEEN PAID THE ENLISTMENT ALLOWANCE, OR WHETHER IT OPERATES ONLY WITH RESPECT TO MEN WHO MAY ENLIST OR REENLIST ON OR AFTER THE DATE ON WHICH THE PROVISION MAY BECOME A LAW.

I WOULD THANK YOU FOR AN EARLY DECISION IN THIS CASE SO THAT INSTRUCTIONS MAY BE SENT TO DISBURSING OFFICERS OF THE ARMY.

THE PROVISION QUOTED BECAME A LAW ON JUNE 30, 1921, 42 STAT., 74.

IN SECTION 27 OF THE ARMY REORGANIZATION ACT OF JUNE 4, 1920, 41 STAT., 775, ARE THE FOLLOWING PROVISIONS:

HEREAFTER ORIGINAL ENLISTMENTS IN THE REGULAR ARMY SHALL BE FOR A PERIOD OF ONE OR THREE YEARS AT THE OPTION OF THE SOLDIER, AND REENLISTMENTS SHALL BE FOR A PERIOD OF THREE YEARS. EXISTING LAWS PROVIDING FOR THE PAYMENT OF THREE MONTHS' PAY TO CERTAIN SOLDIERS UPON REENLISTMENT ARE HEREBY REPEALED, AND HEREAFTER AN ENLISTMENT ALLOWANCE EQUAL TO THREE TIMES THE MONTHLY PAY OF A SOLDIER OF THE SEVENTH GRADE SHALL BE PAID TO EVERY SOLDIER WHO ENLISTS OR REENLISTS FOR A PERIOD OF THREE YEARS, PAYMENT OF THE ENLISTMENT ALLOWANCE FOR ORIGINAL ENLISTMENT TO BE DEFERRED UNTIL HONORABLE DISCHARGE.

THIS STATUTE REPEALED THE PROVISIONS IN THE ACT OF MAY 11, 1908, 35 STAT., 110, AUTHORIZING PAYMENT OF THREE MONTHS' PAY TO CERTAIN SOLDIERS UPON REENLISTMENT, BUT IT DID NOT DISTURB THE RIGHTS OF SUCH SOLDIERS WHOSE REENLISTMENT DATED PRIOR TO JUNE 4, 1920.

THIS STATUTE OF JUNE 4, 1920, PROVIDED FOR THE PAYMENT OF AN ENLISTMENT ALLOWANCE OF $90, BEING THREE TIMES THE MONTHLY PAY OF A SOLDIER OF THE SEVENTH GRADE, TO EVERY SOLDIER WHO THEREAFTER ENLISTED OR REENLISTED FOR A PERIOD OF THREE YEARS, PAYMENT OF THE ENLISTMENT ALLOWANCE FOR ORIGINAL ENLISTMENT TO BE DEFERRED UNTIL HONORABLE DISCHARGE. THE ONLY CONDITIONS NAMED IN THE LAW FOR THE PAYMENT OF SUCH ALLOWANCE IN THE CASE OF AN ORIGINAL ENLISTMENT ARE AN ENLISTMENT FOR A PERIOD OF THREE YEARS AND AN HONORABLE DISCHARGE. THE WORDS "HONORABLE DISCHARGE" ARE NOT LIMITED OR MODIFIED BY ANY OTHER WORD. IF THE ENLISTMENT WAS LAWFULLY MADE, PAYMENT OF THE ALLOWANCE IS AUTHORIZED WHEN THE ENLISTED MAN IS HONORABLY DISCHARGED REGARDLESS OF THE LENGTH OF THE PERIOD HE ACTUALLY SERVED. FOR THE LEGAL REQUIREMENTS AS TO ENLISTMENTS SEE 27 COMP. DEC., 626.

THIS VIEW OF THE LAW ACCORDS WITH THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. HOSMER, 9 WALLACE, 432. HOSMER WAS ENLISTED ON JULY 15, 1861, FOR A PERIOD OF THREE YEARS UNDER THE PRESIDENT'S PROCLAMATION OF MAY 3, 1861, 12 STAT., 1260, AND WAR DEPARTMENT GENERAL ORDERS, NO. 15, OF MAY 4, 1861, LEGALIZED BY SECTION 3 OF THE ACT OF AUGUST 6, 1861, 12 STAT., 326, AND WAS HONORABLY DISCHARGED JANUARY 5, 1863. SAID LEGALIZED ORDER NO. 15 PROVIDED THAT THE MEN ENLISTED IN THE VOLUNTEER FORCE UNDER THAT PLAN FOR A PERIOD OF THREE YEARS AND HONORABLY DISCHARGED SHOULD BE PAID, IN ADDITION TO THEIR PAY, TRAVEL ALLOWANCES, ETC., "THE SUM OF ONE HUNDRED DOLLARS.' THE SUPREME COURT DECIDED (QUOTING SYLLABUS) THAT THE ENLISTED MAN ,IS ENTITLED TO THE BOUNTY WHENEVER HONORABLY DISCHARGED; THOUGH HE MAY HAVE SERVED LESS THAN SIX MONTHS.'

THE ARMY APPROPRIATION ACT OF JUNE 30, 1921, 42 STAT., 74, PROVIDES:

THE SECRETARY OF WAR SHALL DISCHARGE FROM THE MILITARY SERVICE WITH PAY AND WITH THE FORM OF DISCHARGE CERTIFICATE TO WHICH THE SERVICE OF EACH, AFTER ENLISTMENT, SHALL ENTITLE HIM, ALL ENLISTED MEN UNDER THE AGE OF EIGHTEEN ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN, AND SHALL ALSO FURNISH TO EACH TRANSPORTATION IN KIND FROM THE PLACE OF DISCHARGE TO THE RAILROAD STATION AT OR NEAREST TO THE PLACE OF ACCEPTANCE FOR ENLISTMEMT, OR TO HIS HOME IF THE DISTANCE THERETO IS NO GREATER THAN FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMEMT, BUT IF THE DISTANCE BE GREATER HE MAY BE FURNISHED WITH TRANSPORTATION IN KIND FOR A DISTANCE EQUAL TO THAT FROM PLACE OF DISCHARGE TO PLACE OF ACCEPTANCE FOR ENLISTMENT; AND THE SECRETARY OF WAR IS DIRECTED UNDER SUCH REASONABLE REGULATIONS AS HE MAY PRESCRIBE TO GRANT APPLICATIONS FOR DISCHARGE OF ENLISTED MEN SERVING IN THE CONTINENTAL UNITED STATES WITHOUT REGARD TO THE PROVISIONS OF EXISTING LAW RESPECTING DISCHARGES UNTIL THE NUMBER IN THE ARMY HAS BEEN REDUCED TO 150,000 ENLISTED MEN, NOT INCLUDING THE PHILIPPINE SCOUTS. THE PROVISIONS OF THIS PARAGRAPH SHALL TAKE EFFECT IMMEDIATELY UPON THE APPROVAL OF THIS ACT.

THE PROVISIONS OF SECTION 27 OF THE ARMY REORGANIZATION ACT, APPROVED JUNE 4, 1920, PROVIDING AN ENLISTMENT ALLOWANCE, ARE HEREBY REPEALED.

THAT THE ARMY SHALL BE REDUCED BY THE SECRETARY OF WAR SO THAT THE SUM HEREIN APPROPRIATED SHALL DEFRAY THE ENTIRE COST OF THE PAY OF THE OFFICERS AND ENLISTED MEN OF THE LINE AND STAFF DURING THE FISCAL YEAR ENDING JUNE 30, 1922.

THE FORM OF ENLISTMENT CONTRACT, WHICH IS DULY SWORN TO AND SIGNED BY EACH RECRUIT ON ENLISTMENT, IS FOUND IN PARAGRAPH 855, ARMY REGULATIONS, 1913. UNDER THIS CONTRACT THE ENLISTED MAN AGREES TO SERVE FOR THE PERIOD AND UNDER THE CONDITIONS, PRESCRIBED BY LAW, UNLESS SOONER DISCHARGED BY PROPER AUTHORITY; AND ALSO AGREES TO ACCEPT FROM THE UNITED STATES SUCH BOUNTY, PAY, RATIONS, AND CLOTHING AS ARE OR MAY BE ESTABLISHED BY LAW.

THE ABOVE-QUOTED PROVISIONS OF THE ARMY APPROPRIATION ACT OF JUNE 30, 1921, BECAME EFFECTIVE ON JUNE 30, 1921, AND DO NOT DISTURB ANY RIGHTS AS TO THE ENLISTMENT ALLOWANCE ACQUIRED BY A SOLDIER UNDER AN ENLISTMENT ACCOMPLISHED IN PERIOD FROM JUNE 4, 1920, TO JUNE 29, 1921.

THIS COINCIDES WITH THE CONSTRUCTION GIVEN SECTION 9 OF THE ACT OF AUGUST 3, 1861, 12 STAT., 288, WHICH "ABOLISHED" THE BOUNTY FOR ENLISTMENTS AND REENLISTMENTS AT REMOTE AND DISTANT STATIONS AUTHORIZED BY SECTION 3 OF THE ACT OF JUNE 17, 1850, 9 STAT., 439. THE ACT OF 1850 PROVIDED THAT THE BOUNTY OR ALLOWANCE FOR SUCH ENLISTMENTS SHOULD BE PAID IN UNEQUAL INSTALLMENTS AT THE END OF EACH YEAR'S SERVICE, SO THAT THE SEVERAL AMOUNTS SHALL ANNUALLY INCREASE, AND THE LARGEST PAID AT THE EXPIRATION OF THE ENLISTMENT. IN SECTION 331, VOL. 1, DIGEST SECOND COMP. DEC., IT IS SAID:

ANY SOLDIER ENTITLED ON THE 2ND OF AUGUST, 1861, TO BOUNTY FOR REENLISTMENT AT A REMOTE AND DISTANT STATION UNDER THE LAW OF JUNE 17, 1850, DID NOT LOSE HIS RIGHT TO THAT BOUNTY BY THE ENACTMENT OF THE LAW OF AUGUST 3, 1861, ABOLISHING SUCH BOUNTY.

UNDER THAT DECISION AND DECISIONS IN SECTIONS 341 TO 344, VOL. 3, DIGEST SECOND COMP. DEC., IN CASES OF MEN SO ENLISTED PRIOR TO AUGUST 3, 1861, PAYMENT OF THE BOUNTY WAS MADE IN INSTALLMENTS FOR THEIR SERVICES AFTER AUGUST 3, 1861, UNTIL DATE OF DISCHARGE FROM SUCH ENLISTMENT.

YOUR SPECIFIC QUESTION IS ANSWERED AS FOLLOWS:

SAID ACT OF JUNE 30, 1921, OPERATES ONLY WITH RESPECT TO MEN WHO ENLIST OR REENLIST ON OR AFTER JUNE 30, 1921, AND DOES NOT PRECLUDE PAYMENT (FROM THE APPROPRIATION "PAY OF THE ARMY" AVAILABLE) OF THE ENLISTMENT ALLOWANCE TO MEN LAWFULLY ENLISTED OR REENLISTED IN PERIOD FROM JUNE 4, 1920, TO JUNE 29, 1921, FOR A TERM OF THREE YEARS, AND WHO HAVE BEEN OR HEREAFTER WILL BE HONORABLY DISCHARGED AND HAVE NOT YET BEEN PAID SUCH ALLOWANCE. WHEN SUCH MEN WERE ENLISTED OR REENLISTED THERE WAS IN FULL FORCE AND EFFECT A STATUTE WHICH DECLARED THAT SUCH ENLISTMENT ALLOWANCE---

SHALL BE PAID TO EVERY SOLDIER WHO ENLISTS OR REENLISTS FOR A PERIOD OF THREE YEARS, PAYMENT OF THE ENLISTMENT ALLOWANCE FOR ORIGINAL ENLISTMENT TO BE DEFERRED UNTIL HONORABLE DISCHARGE.

THIS EMPHATIC DECLARATION MUST BE REGARDED AS PART OF THE CONTRACT ENTERED INTO WHEN THE ENLISTMENT OR REENLISTMENT WAS ACCOMPLISHED, AND THAT PART OF THE CONTRACT IS FULFILLED WHEN AT THE TIME OF HIS HONORABLE DISCHARGE FROM AN ORIGINAL ENLISTMENT THE SOLDIER IS PAID THE ALLOWANCE.