B-51047, SEPTEMBER 7, 1945, 25 COMP. GEN. 265

B-51047, SEPTEMBER 7, 1945, 25 COMP. GEN. 265

ENLISTMENT ALLOWANCE IN THE CASE OF ENLISTED MEN OF THE REGULAR ARMY HAVING PERMANENT STATUS BELOW THE THIRD GRADE WHO ARE REENLISTED IN THE REGULAR ARMY UNDER AUTHORITY OF THE ACT OF JUNE 1, 1945, AFTER THEIR HONORABLE DISCHARGE WHILE TEMPORARILY SERVING IN THE ARMY OF THE UNITED STATES AS NONCOMMISSIONED OFFICERS OF THE FIRST THREE GRADES, THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SHOULD BE COMPUTED ON THE BASIS OF THE RATE APPLICABLE TO THE FIRST THREE GRADES--- THE GRADES ACTUALLY HELD AT THE TIME OF DISCHARGE--- RATHER THAN THE LOWER RATE APPLICABLE TO THEIR PERMANENT GRADES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 7, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 11, 1945, AS FOLLOWS:

PLANNING IS IN PROGRESS AT THE PRESENT TIME TO RESUME RECRUITING FOR THE REGULAR ARMY, AT THE EARLIEST PRACTICABLE DATE, UNDER THE PROVISIONS OF THE ACT OF 1 JUNE 1945 ( P.L. 72--- 79TH CONGRESS).

THIS STATUTE AUTHORIZES THE ACCEPTANCE OF "ORIGINAL ENLISTMENTS OR REENLISTMENTS IN THE REGULAR ARMY OF MALE PERSONS WHO ARE HONORABLY SERVING IN THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, OR WHO WERE HONORABLY DISCHARGED THEREFROM NOT MORE THAN THREE MONTHS PRIOR TO THE DATE OF SUCH ORIGINAL ENLISTMENT OR REENLISTMENT.' REENLISTMENTS UNDER THIS STATUTE WILL, IF MADE WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE, ENTITLE A NUMBER OF THE MEN WHO REENLIST, OTHER REQUIREMENTS BEING MET, TO THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE ACT OF 16 JUNE 1942 (56 STAT. 359).

UNDER PRESENT REGULATIONS, NONCOMMISSIONED OFFICERS APPOINTED FOR OR DURING THE EMERGENCY, UNDER SPECIFIC AUTHORITY OF THE WAR DEPARTMENT, HOLD TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STAND IF THESE MEN ARE MEMBERS OF THE REGULAR ARMY, THEY MAINTAIN AT THE SAME TIME THEIR PERMANENT GRADE IN THE REGULAR ESTABLISHMENT. IN EFFECTING REENLISTMENT IN THESE CASES, THE QUESTION ARISES IN CONNECTION WITH THE PAYMENT OF THE ENLISTMENT ALLOWANCES AS TO THE GRADE ON WHICH THE ALLOWANCE, WHERE PAYABLE, SHOULD BE COMPUTED, I.E., THE PERMANENT GRADE IN REGULAR ARMY OR THE TEMPORARY GRADE IN THE ARMY OF THE UNITED STATES. ENCLOSED HEREWITH IS AN EXTRACT OF AN OPINION OF THE JUDGE ADVOCATE GENERAL, SPJGA 1945/6182, DATED 21 JUNE 1945, ON THIS SUBJECT IN ACCORDANCE WITH WHICH YOUR DECISION IS REQUESTED ON THE FOLLOWING SPECIFIC QUESTION:

IS THE ENLISTMENT ALLOWANCE, PAYABLE UNDER SECTION 10 OF THE ACT OF 16 JUNE 1942, SUPRA, IN THE CASE OF REGULAR ARMY ENLISTED MEN REENLISTING UNDER THE PROVISIONS OF THE ACT OF 1 JUNE 1945, SUPRA, TO BE COMPUTED ON THE PERMANENT GRADE HELD IN THE REGULAR ARMY OR ON TEMPORARY GRADE HELD IN THE ARMY OF THE UNITED STATES AT THE DATE OF DISCHARGE, WHERE REGULAR ARMY MEN HAVE BEEN APPOINTED TO TEMPORARY GRADES IN THE ARMY OF THE UNITED STATES DURING THE PRESENT EMERGENCY?

THE CONCLUSION OF THE JUDGE ADVOCATE GENERAL RESPECTING THE ABOVE MATTER IS SET FORTH IN HIS MEMORANDUM DATED JUNE 26, 1945, TO THE ADJUTANT GENERAL, AS FOLLOWS:

6. A. WITH REFERENCE TO THE QUESTION PRESENTED IN PARAGRAPH 8 OF YOUR MEMORANDUM, THIS OFFICE IS OF THE OPINION THAT A CORPORAL IN THE REGULAR ARMY WHO AT THE TIME OF DISCHARGE HOLDS A TEMPORARY NONCOMMISSIONED GRADE OF MASTER SERGEANT IN THE ARMY OF THE UNITED STATES IS ENTITLED, UPON REENLISTMENT IN THE REGULAR ARMY UNDER THE ACT OF 1 JUNE 1945, SUPRA, TO RECEIVE ENLISTMENT ALLOWANCE AT THE $50 PER YEAR RATE IF HE MEETS THE OTHER CONDITIONS SPECIFIED IN THE FOURTH PARAGRAPH OF SECTION 19, PAY READJUSTMENT ACT OF 1942 (56 STAT. 363), AS AMENDED (SEC. 8, ACT 7 SEP. 1944, PUBLIC LAW 421, 78TH CONG., 37 U.S.C., SUP. IV, 110). HOWEVER, IN VIEW OF THE FACT THAT SECTION 10 DOES NOT CONTAIN SPECIFIC PROVISIONS APPLICABLE TO A CASE IN WHICH A PERSON OCCUPIES TWO ENLISTED GRADES UPON DISCHARGE, IT IS RECOMMENDED THAT, BEFORE ANY PAYMENTS OF ENLISTMENT ALLOWANCE BASED UPON THE HIGHER GRADE ARE MADE, THE QUESTION BE SUBMITTED TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION.

PUBLIC LAW 72, APPROVED JUNE 1, 1945, 59 STAT. 230, QUOTED IN PART IN YOUR LETTER, READS AS FOLLOWS:

THAT, NOTWITHSTANDING THE PROVISIONS OF THE LAST PARAGRAPH OF SECTION 127A, OF THE NATIONAL DEFENSE ACT, AS AMENDED (54 STAT. 213), THE SECRETARY OF WAR IS AUTHORIZED, DURING THE EXISTENCE OF ANY WAR IN WHICH THE UNITED STATES IS PRESENTLY ENGAGED AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, TO ACCEPT ORIGINAL ENLISTMENTS OR REENLISTMENTS IN THE REGULAR ARMY OF MALE PERSONS WHO ARE HONORABLY SERVING IN THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, OR WHO WERE HONORABLY DISCHARGED THEREFROM NOT MORE THAN THREE MONTHS PRIOR TO THE DATE OF SUCH ORIGINAL ENLISTMENT OR REENLISTMENT: PROVIDED, THAT THE NUMBER OF THE ORIGINAL ENLISTMENTS OR REENLISTMENTS IN FORCE PURSUANT TO THIS ACT SHALL NOT EXCEED THE TOTAL ENLISTED PEACETIME STRENGTH OF THE REGULAR ARMY NOW OR HEREAFTER AUTHORIZED BY LAW. THE TERM OF SERVICE OF PERSONS ENLISTED OR REENLISTED UNDER AUTHORITY OF THIS ACT SHALL BE FOR THE DURATION OF ANY WAR IN WHICH THE UNITED STATES IS PRESENTLY ENGAGED AND FOR SIX MONTHS THEREAFTER OR FOR THREE YEARS, WHICHEVER IS THE LONGER PERIOD.

PARAGRAPH 4 OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 364, PROVIDES, IN PERTINENT PART THAT:

AN ENLISTMENT ALLOWANCE EQUAL TO $50, MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED, SHALL BE PAID TO EVERY HONORABLY DISCHARGED ENLISTED MAN OF THE FIRST THREE GRADES WHO REENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF HIS DISCHARGE, AND AN ENLISTMENT ALLOWANCE OF $25, MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH HE HAS LAST BEEN DISCHARGED, SHALL BE PAID TO EVERY HONORABLY DISCHARGED ENLISTED MAN OF THE OTHER GRADES WHO REENLISTS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF HIS DISCHARGE: PROVIDED, THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT AFFECT THE PROVISIONS OF THE ACT APPROVED AUGUST 18, 1941 ( PUBLIC LAW 215, SEVENTY-SEVENTH CONGRESS): PROVIDED FURTHER, THAT DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER THE PROVISIONS OF SECTION 2 OF THE ACT OF AUGUST 18, 1941 ( PUBLIC LAW 215, SEVENTY-SEVENTH CONGRESS) ARE HEREBY SUSPENDED.

WHILE ENLISTED MEN OF THE REGULAR ARMY WHO REENLIST IN THE REGULAR ARMY UNDER THE PROVISIONS OF PUBLIC LAW 72, SUPRA, APPEAR CLEARLY TO BE ENTITLED TO THE ENLISTMENT ALLOWANCE AUTHORIZED BY THE SAID PARAGRAPH 4 OF THE PAY READJUSTMENT ACT OF 1942, YOUR LETTER RAISES THE QUESTION AS TO THE PROPER RATE AT WHICH SUCH ALLOWANCE IS PAYABLE IN CASES WHERE SUCH ENLISTED MEN, OTHERWISE BELOW THE THIRD GRADE, HAVE BEEN APPOINTED TEMPORARILY DURING THE PRESENT EMERGENCY AS NONCOMMISSIONED OFFICERS OF THE FIRST THREE GRADES, AND ARE SERVING UNDER SUCH TEMPORARY APPOINTMENTS AT TIME OF DISCHARGE, INASMUCH AS ENLISTED MEN SO APPOINTED ARE REGARDED ADMINISTRATIVELY AS HOLDING CONCURRENTLY, BUT IN ABEYANCE, THEIR PERMANENT LOWER GRADES IN THE REGULAR ARMY. WHILE THE PARTICULAR REGULATION RESPECTING TEMPORARY APPOINTMENTS OF NONCOMMISSIONED OFFICERS IS NOT IDENTIFIED, IT IS ASSUMED THAT YOUR LETTER HAS REFERENCE TO PARAGRAPH 3A OF ARMY REGULATION 615-5, DATED JUNE 30, 1943, WHICH READS AS FOLLOWS:

3. TEMPORARY APPOINT.--- A. NONCOMMISSIONED OFFICERS APPOINTED FOR AND DURING AN EMERGENCY UNDER SPECIAL AUTHORIZATION OF THE WAR DEPARTMENT, BASED UPON SUCH INCREASED STRENGTH OF THE ARMY AS MAY BE AUTHORIZED BY LAW, EXCEPT THOSE EXEMPTED BY PARAGRAPH 8A, WILL BE TEMPORARY APPOINTMENTS. A TEMPORARY APPOINTMENT WILL NOT CONFER ANY RIGHTS OF PERMANENT TENURE AFTER THE TERMINATION OF THE EMERGENCY OR BEYOND SUCH DATE AS MAY BE DETERMINED BY THE WAR DEPARTMENT.

PARAGRAPH 4 OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AUTHORIZING PAYMENT OF THE ENLISTMENT ALLOWANCE, CONTAINS NO REQUIREMENT THAT THE RATE TO BE PAID AN ENLISTED MAN UPON REENLISTMENT SHALL BE DEPENDENT UPON THE CHARACTER OF THE APPOINTMENT UNDER WHICH HE WAS SERVING WHEN DISCHARGED, THAT IS, WHETHER SUCH APPOINTMENT WAS PERMANENT OR TEMPORARY. ON THE CONTRARY, IT IS SPECIFICALLY PROVIDED THEREIN THAT AN ALLOWANCE OF $50 IN THE CASE OF ENLISTED MEN "OF THE FIRST THREE GRADES" AND AN ALLOWANCE OF $25 IN THE CASE OF ENLISTED MEN "OF THE OTHER GRADES"- -- MULTIPLIED BY THE NUMBER OF YEARS SERVED IN THE ENLISTMENT FROM WHICH DISCHARGED--- SHALL BE PAID HONORABLY DISCHARGED ENLISTED MEN WHO REENLIST WITHIN THE PERIOD SPECIFIED. IN SPEAKING OF ENLISTED MEN "OF THE FIRST THREE GRADES" THE STATUTE UNQUESTIONABLY REFERS TO THE GRADE AT THE TIME OF DISCHARGE AND IT IS THE PAY GRADE ACTUALLY HELD AT THE TIME OF DISCHARGE AND NOT THE TEMPORARY OR PERMANENT NATURE OF THE APPOINTMENT UNDER WHICH THE ENLISTED MAN THEN WAS SERVING WHICH APPARENTLY WAS INTENDED TO GOVERN THE RATE OF ENLISTMENT ALLOWANCE TO BE PAID UPON REENLISTMENT. IT FOLLOWS THAT AN ENLISTED MAN OF THE REGULAR ARMY WHO IS HONORABLY DISCHARGED WHILE TEMPORARILY SERVING AS A NONCOMMISSIONED OFFICER OF ONE OF THE FIRST THREE GRADES IS "AN HONORABLY DISCHARGED ENLISTED MAN OF THE FIRST THREE GRADES" WITHIN THE MEANING OF THE STATUTE. WHILE YOUR LETTER STATES THAT SUCH ENLISTED MEN MAINTAIN THEIR PERMANENT GRADES IN THE REGULAR ARMY WHILE SERVING UNDER TEMPORARY APPOINTMENTS TO HIGHER NONCOMMISSIONED GRADES, IT IS NOTED THAT PARAGRAPH 3 OF ARMY REGULATION 61-5, SUPRA, CONTAINS NO EXPRESS PROVISION TO THAT EFFECT AND NO STATUTORY PROVISIONS HAVE BEEN CITED WHICH REQUIRE THE RETENTION OF THE PERMANENT GRADE UNDER SUCH CIRCUMSTANCES. HOWEVER THAT MAY BE, ANY DOUBT IN THE MATTER PROPERLY IS TO BE RESOLVED IN FAVOR OF PAYMENT ON THE BASIS OF THE NONCOMMISSIONED GRADE TEMPORARILY HELD AT THE TIME OF DISCHARGE--- THE GRADE IN WHICH THE ENLISTED MAN ACTUALLY SERVED AND UPON WHICH HIS ACTIVE-DUTY PAY, ALLOWANCES, OTHER BENEFITS, AND HIS RESPONSIBILITIES WERE BASED--- RATHER THAN A DORMANT PERMANENT GRADE WHICH HE MAY BE CONSIDERED TO HAVE RETAINED WHILE SO SERVING.

ACCORDINGLY, IN ANSWER TO YOUR SPECIFIC QUESTION, YOU ARE ADVISED THAT AN ENLISTMENT ALLOWANCE SHOULD BE COMPUTED ON THE BASIS OF THE TEMPORARY GRADE HELD AT THE DATE OF DISCHARGE.