B-24480, JULY 29, 1942, 22 COMP. GEN. 69

B-24480, JULY 29, 1942, 22 COMP. GEN. 69

DESERTION - COAST GUARD ENLISTED MEN - EFFECT ON ENLISTMENT PERIOD THE PROVISION IN THE ACT OF JULY 30, 1937, TO THE EFFECT THAT AN ENLISTMENT IN THE COAST GUARD SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE SERVED TIME LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE, ETC., DOES NOT OPERATE TO EXTEND AUTOMATICALLY THE ENLISTMENT OF A DESERTER WHO IS NOT APPREHENDED, OR DOES NOT SURRENDER, UNTIL AFTER HIS ENLISTMENT HAS EXPIRED, SO THAT SUCH A DESERTER IS NOT IN THE SERVICE AFTER EXPIRATION OF HIS ENLISTMENT AND, HENCE, IS NOT ENTITLED TO BE FURNISHED CIVILIAN CLOTHING UPON DISCHARGE THEREAFTER "UNDER CONDITIONS OTHERWISE THAN ORABLE.'

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 29, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 18, 1942, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER, WITH ENCLOSURES, FROM THE COMMANDANT, U.S. COAST GUARD, DATED APRIL 9, 1942, WITH ACCOMPANYING CORRESPONDENCE, RELATIVE TO THE QUESTION OF THE AVAILABILITY OF COAST GUARD APPROPRIATIONS TO PURCHASE CIVILIAN CLOTHING FOR DISCHARGED ENLISTED MEN OF THE COAST GUARD UNDER THE CONDITIONS STATED IN THE ENCLOSED CORRESPONDENCE.

YOUR DECISION IS REQUESTED ON THE QUESTION SET FORTH IN PARAGRAPH 3 OF THE ENCLOSED LETTER FROM THE COMMANDANT, U.S. COAST GUARD, RELATIVE TO WHETHER OR NOT THE ENLISTMENT OF AN ENLISTED MAN OF THE U.S. COAST GUARD IS AUTOMATICALLY EXTENDED UNTIL THE ENLISTED MAN SHALL HAVE SERVED ANY TIME LOST IN EXCESS OF ONE DAY ON ACCOUNT OF UNAUTHORIZED ABSENCE FROM DUTY, UNDER THE ACT OF JULY 30, 1937 (50 STAT. 547; 14 U.S.C. 35 (A) (, AND, IF SO, WHETHER COAST GUARD APPROPRIATIONS MAY BE CONSIDERED LEGALLY AVAILABLE FOR THE PURCHASE OF CIVILIAN CLOTHING FOR SUCH ENLISTED MEN WHEN DISCHARGED UNDER CONDITIONS OTHER THAN HONORABLE.

THE LETTER OF THE COMMANDANT, UNITED STATES COAST GUARD, FORWARDED WITH THE ABOVE QUOTED SUBMISSION IS IN RELEVANT PART AS FOLLOWS:

SUBJECT: PURCHASE OF CIVILIAN CLOTHING FOR DISCHARGED ENLISTED MEN.

REFERENCE: (A) PREAUDITED CLAIM COVERING VOUCHER IN THE SUM OF $14.92, FAVOR OF B. GELBER AND SONS MERC. COMPANY, FILE REFERENCE F4 541.

(B) LETTER, CHIEF FINANCE OFFICER, COAST GUARD, TO GENERAL ACCOUNTING OFFICE, 22 FEBRUARY, 1942 (F4-541).

INCLOSURE: (A) REFERENCE (A).

1. REFERENCE (A) COVERS A PURCHASE OF CIVILIAN CLOTHING FOR AN ENLISTED MAN OF THE COAST GUARD WHO WAS DISCHARGED WITH A BAD-CONDUCT DISCHARGE IN ACCORDANCE WITH SENTENCE OF A GENERAL COURT, APPROVED BY THE JUDGE ADVOCATE GENERAL DECEMBER 3, 1941, A 12-1-41. THE VOUCHER COVERING THE PURCHASE OF THIS CLOTHING WAS PRESENTED TO THE GENERAL ACCOUNTING OFFICE FOR PREAUDIT, AND HAS BEEN RETURNED WITH ACTION TAKEN AS INDICATED ON THE PREAUDIT DIFFERENCE STATEMENT.

2. IN SUBMITTING THIS VOUCHER, ATTENTION WAS INVITED TO THE ACT OF JULY 30, 1937 (50 STAT. 547) WHICH PROVIDES IN PART AS FOLLOWS:

"THAT ALL PERSONS COMPOSING THE ENLISTED FORCE OF THE COAST GUARD SHALL BE ENLISTED FOR A TERM NOT TO EXCEED THREE YEARS, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, WHO SHALL PREPARE REGULATIONS GOVERNING SUCH ENLISTMENTS AND FOR THE GENERAL GOVERNMENT OF THE SERVICE: PROVIDED, THAT AN ENLISTMENT IN THE COAST GUARD SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN CONCERNED SHALL HAVE SERVED ANY TIME, IN EXCESS OF ONE DAY, LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE FROM DUTY, OR INJURY, SICKNESS, * * *.'

3. AS WILL BE SEEN FROM THE ACTION TAKEN ON THIS CLAIM, NO CONSIDERATION WAS GIVEN TO THE ABOVE-MENTIONED STATUTE. IT IS BELIEVED THAT THE ENLISTED MAN IN QUESTION, HAVING BEEN IN UNAUTHORIZED ABSENCE FOR A PERIOD OF TIME WHICH HAD NOT BEEN SERVED, HAD NOT COMPLETED HIS ENLISTMENT AND, AS A CONSEQUENCE, SHOULD HAVE BEEN REGARDED AS BEING IN SERVICE. IF THIS BELIEF IS CORRECT, THE PURCHASE OF CIVILIAN CLOTHING FOR HIM IN EXCHANGE FOR UNIFORM CLOTHING SURRENDERED BY HIM WAS PROPER.

4. AS THE POINT INVOLVED HAS NOT BEEN SETTLED IN THIS CASE, IT IS REQUESTED THAT A CLARIFYING DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER THE ENLISTMENT PERIOD OF ENLISTED MEN IS NOT AUTOMATICALLY EXTENDED TO MAKE GOOD TIME LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE AS PROVIDED IN THE STATUTE CITED, AND, IF SO, WHETHER THE PURCHASE OF CIVILIAN CLOTHING FOR SUCH ENLISTED PERSONS WHEN DISCHARGED UNDER CONDITIONS OTHERWISE THAN HONORABLE WOULD BE PROPER.

IN DISCUSSING THE LEGAL QUESTION PRESENTED, IT MAY BE WELL TO HAVE CONCRETELY IN VIEW THE FACTS IN THE PARTICULAR CASE WHICH PROMPTED THE SUBMISSION WHICH, BRIEFLY, ARE AS FOLLOWS: DAVID B. RUSSELL (205-187) SEAMAN 2C, ENLISTED IN THE COAST GUARD ON JULY 20, 1937, TO SERVE FOR THREE YEARS. HE DESERTED ON OR ABOUT OCTOBER 31, 1938, FROM THE COAST GUARD CUTTER PONTCHARTRAIN AND REMAINED A DESERTER UNTIL ON OR ABOUT AUGUST 14, 1941 (TWO YEARS, NINE MONTHS AND 14 DAYS LATER), WHEN HE SURRENDERED HIMSELF ON BOARD THE COAST GUARD CUTTER MINNEAPOLIS, HIS TERM OF ENLISTMENT HAVING EXPIRED BY LIMITATION ON JULY 19, 1940, ONE YEAR AND 26 DAYS BEFORE. HE WAS TRIED BY A COAST GUARD GENERAL COURT MARTIAL, FOUND GUILTY OF DESERTION AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE COAST GUARD, ON THE DATE TO BE DESIGNATED BY THE SECRETARY OF THE TREASURY.

EXECUTIVE ORDER NO. 8929, NOVEMBER 1, 1941, DIRECTED THAT THE COAST GUARD SHOULD FROM THAT DATE UNTIL FURTHER ORDERS OPERATE AS PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY. THE ORDER DIRECTED THAT ALL COAST GUARD PERSONNEL, WHILE SO SERVING, SHOULD BE SUBJECT TO THE LAWS ENACTED FOR THE GOVERNMENT OF THE NAVY, PROVIDED THAT:

* * * IN THE INITIATION, PROSECUTION, AND COMPLETION OF DISCIPLINARY ACTION, INCLUDING REMISSION OR MITIGATION OF PUNISHMENTS FOR ANY OFFENSE COMMITTED BY ANY OFFICER OR ENLISTED MAN OF THE COAST GUARD, THE JURISDICTION SHALL DEPEND UPON AND BE IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF THE DEPARTMENT HAVING JURISDICTION OF THE PERSON OF SUCH OFFENDER AT THE VARIOUS STAGES OF SUCH ACTION: PROVIDED, FURTHER, THAT ANY PUNISHMENT IMPOSED AND EXECUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH SHALL NOT EXCEED THAT TO WHICH THE OFFENDER WAS LIABLE AT THE TIME OF THE COMMISSION OF THE OFFENSE. CF. ACT, AUGUST 29, 1916, 39 STAT. 600, U.S.C., TITLE 14, SECTION 3.

UNDER DATE OF NOVEMBER 22, 1941, THE JUDGE ADVOCATE GENERAL OF THE NAVY REVIEWED THE DECISION OF THE COURT MARTIAL, WHICH APPARENTLY HAD BEEN RENDERED NOVEMBER 21, 1941. IN HIS REPORT HE REFERRED TO EXECUTIVE ORDER NO. 8929, SUPRA, AND CONCLUDED THAT IN VIEW THEREOF THAT PART OF THE SENTENCE WHEREIN THE DATE OF DISCHARGE FROM THE COAST GUARD WAS MADE CONTINGENT UPON THE DESIGNATION THEREOF BY THE SECRETARY OF THE TREASURY WAS WITHOUT EFFECT. OTHERWISE, HE CONCURRED IN THE FINDINGS, INVITING ATTENTION TO A RECOMMENDATION OF THE COMMANDANT OF THE UNITED STATES COAST GUARD THAT THE SENTENCE BE MITIGATED TO A BAD CONDUCT DISCHARGE. APPEARS FURTHER THAT THE ACTING SECRETARY OF THE NAVY ON NOVEMBER 29, 1941, APPROVED THE PROCEEDINGS, FINDINGS AND SENTENCE, SUBJECT TO MITIGATION OF THE DISHONORABLE DISCHARGE ADJUDGED BY THE COURT MARTIAL TO A BAD-CONDUCT DISCHARGE, AND IT WAS DIRECTED THAT RUSSELL BE DISCHARGED WITH A BAD-CONDUCT DISCHARGE AS SOON AS POSSIBLE. NO OTHER PUNISHMENT WAS ADJUDGED, AND ON DISCHARGE THE PURCHASE OF CIVILIAN CLOTHING HERE IN QUESTION WAS MADE FOR HIM. RUSSELL WAS DISCHARGED AS DIRECTED ON DECEMBER 8, 1941. IT HAS BEEN REPORTED THAT NO PAY ACCRUED TO HIM "FROM THE DATE OF DELIVERY"--- PRESUMABLY MEANING THE DATE OF HIS SURRENDER--- TO DATE OF DISCHARGE; THAT HE WAS WITHOUT FUNDS WHEN DISCHARGED; THAT THE ITEMS OF OUTER UNIFORM CLOTHING POSSESSED BY HIM WERE SURRENDERED BUT WERE IN SUCH WORN CONDITION THAT THEY COULD NOT BE SOLD (THE INFERENCE APPARENTLY INTENDED TO BE CONVEYED IS THAT HE WORE THE UNIFORM DURING THE TWO YEARS, NINE MONTHS AND 14 DAYS FROM DATE OF DESERTION TO DATE OF SURRENDER); THAT HE WAS WITHOUT OUTER CIVILIAN CLOTHING OF ANY KIND AND HAD NO FUNDS WITH WHICH TO PURCHASE THEM AND THAT IN VIEW OF THAT FACT "IT WAS CONSIDERED TO THE BEST INTEREST OF THE SERVICE THAT HE BE FURNISHED CIVILIAN CLOTHING.' SUCH CLOTHING WAS PURCHASED FROM B. GELBER AND SONS MERC. COMPANY, ST. LOUIS, MISSOURI, IN THE AMOUNT OF $14.92 AND FURNISHED TO RUSSELL.

A VOUCHER COVERING THE ABOVE AMOUNT WAS FORWARDED TO THIS OFFICE DECEMBER 16, 1941, FOR PREAUDIT, AND WAS RETURNED DECEMBER 26, 1941, WITHOUT CERTIFICATION "FOR THE REASON THAT IN ORDER TO BE ENTITLED TO CLOTHING ON DISCHARGE THE MAN MUST BE IN THE SERVICE WHEN DISCHARGED FOR BAD CONDUCT.' THE VOUCHER WAS RESUBMITTED FOR CONSIDERATION BY LETTER OF JANUARY 30, 1942,"WITH ATTENTION INVITED TO THE FACT THAT THIS MAN WAS IN THE SERVICE WHEN TRIED BY A NAVY GENERAL COURT MARTIAL, THE STATUTE OF LIMITATIONS NOT HAVING RUN IN HIS CASE.' THE VOUCHER WAS AGAIN RETURNED WITHOUT CERTIFICATION ON THE DATE OF FEBRUARY 7, 1942, THE DIFFERENCE STATEMENT BEING AS FOLLOWS:

THE RUNNING OF THE STATUTE OF LIMITATIONS IS NOT A POINT AT ISSUE IN CONSIDERING WHETHER A MAN IS IN THE SERVICE AS AFFECTING HIS RIGHT TO CLOTHING ALLOWANCES ON DISCHARGE FOR BAD CONDUCT AS THE RESULT OF DESERTION. SINCE THE DESERTER DID NOT GIVE HIMSELF UP UNTIL AFTER THE PERIOD OF ENLISTMENT WOULD HAVE EXPIRED HAD HE REMAINED IN THE SERVICE, AT THE TIME HE GAVE HIMSELF UP HE WAS NOT IN THE SERVICE. THE RUNNING OF THE STATUTE OF LIMITATIONS ONLY AFFECTS HIS LIABILITY FOR TRIAL AND PUNISHMENT AND DOES NOT EXTEND HIS PERIOD OF ENLISTMENT.

THE VOUCHER WAS SUBMITTED A THIRD TIME WITH A LETTER OF FEBRUARY 22, 1942, IN MATERIAL PART AS FOLLOWS:

THE ACT OF JULY 30, 1937 (50 STAT. 547) PROVIDES IN PART AS FOLLOWS:

"THAT ALL PERSONS COMPOSING THE ENLISTED FORCE OF THE COAST GUARD SHALL BE ENLISTED FOR A TERM NOT TO EXCEED THREE YEARS, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, WHO SHALL PREPARE REGULATIONS GOVERNING SUCH ENLISTMENTS AND FOR THE GENERAL GOVERNMENT OF THE SERVICE: PROVIDED, THAT AN ENLISTMENT IN THE COAST GUARD SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN CONCERNED SHALL HAVE SERVED ANY TIME, IN EXCESS OF ONE DAY, LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE FROM DUTY, OR INJURY, SICKNESS, * * *.'

SEAMAN 2C, DAVID B. RUSSELL'S ENLISTMENT WAS NOT COMPLETE UNTIL THE TIME ABSENT WITHOUT AUTHORITY IN EXCESS OF ONE DAY WAS MADE GOOD AND, AS A CONSEQUENCE, RUSSELL, AS WILL BE SEEN FROM THE LANGUAGE OF THE STATUTE QUOTED, WAS IN SERVICE AND SUBJECT TO SUCH DISPOSITION AS MIGHT HAVE BEEN MADE IN HIS CASE.

IN VIEW OF THE FOREGOING IT IS REQUESTED THAT THE STATEMENT MADE IN THE PREAUDIT DIFFERENCE STATEMENT BE RECONSIDERED AND THAT THE VOUCHER IN FAVOR OF B. GELBER AND SONS MERC. COMPANY BE CERTIFIED FOR PAYMENT.

THE VOUCHER WAS RETURNED WITHOUT CERTIFICATION WITH PREAUDIT DIFFERENCE STATEMENT OF APRIL 3, 1942, AS FOLLOWS:

THE RUNNING OF THE STATUTE OF LIMITATIONS IS NOT A POINT AT ISSUE IN CONSIDERING WHETHER A MAN IS IN THE SERVICE AS AFFECTING HIS RIGHT TO CLOTHING ALLOWANCE ON DISCHARGE FOR BAD CONDUCT AS THE RESULT OF DESERTION. SINCE THE DESERTER DID NOT GIVE HIMSELF UP UNTIL AFTER THE PERIOD OF HIS ENLISTMENT HAD EXPIRED HE WAS NOT IN THE SERVICE WHEN HE GAVE HIMSELF UP. THE STATUTE IS MERELY A BAR AGAINST TRIAL BY COURT MARTIAL FOR THE OFFENSE OF DESERTION AFTER EXPIRATION OF THE STATUTORY PERIOD AND DOES NOT OPERATE TO RETAIN THE MAN IN THE SERVICE BEYOND THE DATE OF EXPIRATION OF HIS ENLISTMENT.

WHILE IT MAY BE CONCEDED THAT THIS DIFFERENCE STATEMENT WAS NOT WHOLLY RESPONSIVE TO THE SUGGESTIONS IN THE LETTER OF FEBRUARY 22, THAT RUSSELL'S "ENLISTMENT WAS NOT COMPLETE UNTIL THE TIME ABSENT WITHOUT AUTHORITY IN EXCESS OF ONE DAY WAS MADE GOOD AND, AS A CONSEQUENCE, RUSSELL, AS WILL BE SEEN FROM THE LANGUAGE OF THE STATUTE QUOTED, WAS IN SERVICE AND SUBJECT TO SUCH DISPOSITION AS MIGHT HAVE BEEN MADE IN HIS CASE," IT WAS A CORRECT STATEMENT OF THE LAW.

THE ACT OF JULY 30, 1937, 50 STAT. 547, WAS, AS APPEARS FROM ITS TITLE," TO AMEND THE LAWS RELATING THE ENLISTMENTS IN THE COAST GUARD AND FOR OTHER PURPOSES.' THE ACT AMENDED "SECTION 1 OF THE ACT OF MAY 26, 1906, AS AMENDED (34 STAT. 200; U.S.C. 1934 EDITION, TITLE 14, SECTION 35).' U.S. CODE, TITLE 14, SECTION 35, AS IT STOOD BEFORE THE ENACTMENT OF JULY 30, 1937, WAS AS FOLLOWS:

ALL PERSONS COMPOSING THE ENLISTED FORCE OF THE COAST GUARD SHALL BE ENLISTED FOR A TERM NOT TO EXCEED THREE YEARS, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, WHO SHALL PREPARE REGULATIONS GOVERNING SUCH ENLISTMENTS AND FOR THE GENERAL GOVERNMENT OF THE SERVICE. NO PROVISION WAS MADE FOR REQUIRING AN ENLISTED MAN TO "MAKE GOOD" ANY TIME LOST FROM SERVICE FROM ANY CAUSE. THE AMENDMENT OF JULY 30, 1937, ADDED TO THE SECTION THE PROVISO---

THAT AN ENLISTMENT IN THE COAST GUARD SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN CONCERNED SHALL HAVE SERVED ANY TIME, IN EXCESS OF ONE DAY, LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE FROM DUTY, OR INJURY, SICKNESS, OR DISEASE, RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT, OR WHILE IN CONFINEMENT UNDER SENTENCE, OR WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE IF THE TRIAL RESULTS IN CONVICTION. OTHER ADDITIONS TO THE SECTION BY THE ACT OF JULY 30, 1937, AS AMENDED BY THE ACT OF JULY 11, 1941, 55 STAT. 584, 586, ARE NOT HERE IMPORTANT.

IN TRANSMITTING TO THE CONGRESS THE BILL ( H.R. 6916) AFTERWARDS ENACTED AS THE ACT OF JULY 30, 1937, THE ACTING SECRETARY OF THE TREASURY STATED IN A LETTER OF APRIL 30, 1937, TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES THAT--- THE PURPOSE OF THIS BILL IS TO MAKE MORE EFFICIENT THE ADMINISTRATION OF THE AFFAIRS OF THE COAST GUARD BY EXTENDING CERTAIN PRIVILEGES TO PERSONNEL OF THAT SERVICE WHICH ARE NOW ENJOYED BY THE PERSONNEL OF THE OTHER SERVICES. THE VARIOUS PROVISIONS, HEREINAFTER EXPLAINED, ARE PATTERNED AS FAR AS POSSIBLE AFTER THE LAWS RELATING TO THE NAVY. REPORT ON THE BILL BY THE COMMITTEE ON MERCHANT MARINE AND FISHERIES ( NO. 1224, 75TH CONGRESS, ST SESSION, JULY 14, 1937) WAS TO THE SAME EFFECT. THE LETTER AND THE REPORT EXPLAINED IN SUBSTANTIALLY THE SAME WORDS THAT--- SUBSECTION (A) OF THE FIRST SECTION OF THIS BILL (THE SECTION HERE UNDER CONSIDERATION) AMENDS EXISTING LAWS GOVERNING THE LENGTH OF THE TERM OF ENLISTMENT IN THE COAST GUARD, IN ORDER TO PROVIDE THAT AN ENLISTMENT SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN MAKES GOOD ANY TIME, IN EXCESS OF ONE DAY, LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE FROM DUTY * * *, ETC. THUS IT APPEARS THAT THE PURPOSE OF THE SECTION IN QUESTION WAS TO EQUALIZE THE COAST GUARD, IN SOME MEASURE, WITH OTHER RELATED MILITARY SERVICES, MORE PARTICULARLY THE NAVY.

U.S. CODE, TITLE 14, 147 PROVIDES IN PART THAT:

NO PERSON WHO HAS DESERTED FROM THE COAST GUARD SHALL AFTERWARD BE EMPLOYED IN SAID SERVICE * * * UNLESS HE SHALL HAVE DELIVERED HIMSELF ABOARD THE VESSEL FROM WHICH HE DESERTED, OR BEEN APPREHENDED AND THE DISABILITY SHALL HAVE BEEN REMOVED BY A BOARD OF COMMISSIONED OFFICERS OF THE SAID SERVICE CONVENED FOR A CONSIDERATION OF THE CASE, AND THE ACTION OF THE SAID BOARD SHALL HAVE BEEN APPROVED BY THE SECRETARY OF THE TREASURY (NOW SECRETARY OF THE NAVY). ( ITALICS SUPPLIED.)

IN AN OPINION TO THE THEN SECRETARY OF WAR, ATTORNEY GENERAL TAFT SAID:

* * * BY HIS CONTRACT OF ENLISTMENT THE SOLDIER ENGAGES TO SERVE IN THE ARMY FOR FIVE (NOW ALTERED BY STATUTE) YEARS FROM THE DAY ON WHICH HE ENLISTS, UNLESS SOONER DISCHARGED BY PROPER AUTHORITY. THIS ENGAGEMENT BINDS THE SOLDIER FOR A SPECIFIC TERM OF SERVICE, BEGINNING AT A CERTAIN TIME AND RUNNING THENCE CONTINUOUSLY DAY AFTER DAY UNTIL THE END IS REACHED, THE LAST DAY OF THE TERM BEING AS MUCH FIXED BY THE CONTRACT AS THE FIRST. 15 OP. ATTY. GEN. 152, 161. THE ATTORNEY GENERAL EXPRESSED THE OPINION THAT A STATUTORY PROVISION THAT A DESERTER UPON CONVICTION MIGHT BE LIABLE TO SERVE FOR AND DURING SUCH A PERIOD AS SHOULD, WITH THE TIME HE MIGHT HAVE SERVED PREVIOUS TO HIS DESERTION, AMOUNT TO THE FULL TERM OF HIS ENLISTMENT WAS NOT SELF OPERATING. HE SAID:

* * * IT DOES NOT OF ITSELF OPERATE TO EXTEND THE TERM OF SERVICE ORIGINALLY CONTRACTED, SO AS TO CONTINUE THE OFFENSE CORRESPONDINGLY AND THUS POSTPONE THE TIME WHEN THE LIMITATION BEGINS. IT COMES INTO PLAY ONLY AFTER A CONVICTION, WHICH MAY NEVER TAKE PLACE, INASMUCH AS, BEFORE THE ORDER FOR THE TRIAL HAS ISSUED, THE FULL PERIOD OF THE LIMITATION MAY HAVE ALREADY RUN AND BARRED THE PROSECUTION. THAT PROVISION IS THE ONLY ONE FALLING UNDER MY NOTICE WHICH IMPOSES A LIABILITY UPON THE DESERTER TO PERFORM SERVICE BEYOND THE TERM OF HIS ENLISTMENT; AND ENOUGH HAS BEEN SAID TO SHOW THAT IT DOES NOT, BY ITS OWN FORCE SIMPLY, PROLONG THE TERM OF SERVICE ORIGINALLY CONTRACTED, OR, WHAT IS THE SAME THING, PREVENT THE TERMINATION OF THE SOLDIER'S ENGAGEMENT AT THE TIME ORIGINALLY FIXED.

THUS IT SEEMS THAT IN OUR MILITARY SERVICE THE CONTRACT OF ENLISTMENT MUST IN ALL CASES, EVEN IN THAT OF DESERTION, BE REGARDED AS HAVING EXPIRED WHEN THE LAST DAY OF THE TERM OF ENLISTMENT THEREIN FIXED HAS ELAPSED. AND SINCE THE OBLIGATION TO SERVE DEPENDS ON THE CONTRACT, AND NECESSARILY CEASES THEREWITH, THE OFFENSE OF DESERTION ON GROUNDS ALREADY SET FORTH, MUST BE DEEMED TO TERMINATE AT THE SAME TIME. IN SHORT, THAT OFFENSE MAY BE VIEWED AS CONTINUING UP TO THE END OF THE TERM OF HIS ENGAGEMENT, BUT NOT BEYOND. ID. PAGE 162, 163. ALSO, SEE 16 OP. ATTY. GEN. 170 AND 396, WHEREIN ATTORNEY GENERAL DEVENS RESTATED, AMPLIFIED, AND REAFFIRMED THE ABOVE-CITED OPINION.

IN RE ZIMMERMAN, 30 FED. 176, INVOLVED THE CASE OF A SOLDIER WHO DESERTED AND EITHER SURRENDERED OR WAS APPREHENDED AFTER THE DATE OF EXPIRATION OF HIS TERM OF ENLISTMENT. IN A HABEAS CORPUS PROCEEDING TO OBTAIN HIS RELEASE FROM THE MILITARY AUTHORITIES, THE COURT SAID:

* * * HE IS NOT IN THE SERVICE, HIS TERM OF ENLISTMENT HAVING LONG SINCE EXPIRED, BUT HE IS HELD IN CUSTODY FOR TRIAL UPON A CHARGE FOR A GROSS MILITARY OFFENSE, ALLEGED TO HAVE BEEN COMMITTED WHEN HE WASDE FACTO IN ACTUAL SERVICE * * * ( ITALICS SUPPLIED.) LATER ENACTMENTS THAN THOSE UNDER CONSIDERATION IN THE ABOVE-QUOTED OPINIONS AND DECISIONS HAVE EMBODIED SOME CHANGES IN PHRASEOLOGY, BUT THERE HAS BEEN LITTLE, IF ANY, CHANGE IN SUBSTANCE AND EFFECT, AND NOTHING TO SUPPORT VIEWS OTHER THAN THEREIN EXPRESSED.

IT WOULD APPEAR FROM THE STATUTORY PROVISIONS, AND FROM THE ABOVE CITED CONSTRUCTIONS OF SIMILAR STATUTES, THAT THE ENLISTMENT PERIOD IN THE COAST GUARD IS NOT "AUTOMATICALLY EXTENDED" WHEN THE DESERTER IS NOT APPREHENDED, OR DOES NOT SURRENDER, UNTIL AFTER THE PERIOD OF HIS ENLISTMENT HAS EXPIRED. SUCH A MAN IS NO LONGER A MEMBER OF THE COAST GUARD, EITHER DE JURE OR DE FACTO, ALTHOUGH HE MAY BE PUNISHED FOR THE CRIME OF DESERTION.

IT FOLLOWS THAT THERE IS NO AUTHORITY FOR THE PURCHASE OF CIVILIAN CLOTHING FOR CONVICTED DESERTERS WHEN DISCHARGED FROM THE COAST GUARD AS SUCH,"UNDER CONDITIONS OTHERWISE THAN HONORABLE" WHO WERE APPREHENDED AND TRIED THEREFOR AFTER THE EXPIRATION OF THE ENLISTMENT FROM WHICH THEY DESERTED.