B-66086, SEPTEMBER 3, 1947, 27 COMP. GEN. 149

B-66086, SEPTEMBER 3, 1947, 27 COMP. GEN. 149

FAMILY ALLOWANCE BENEFITS - DURATION OF ENTITLEMENT - EFFECT OF CONVERSION OF COAST GUARD SPECIAL TEMPORARY ENLISTMENT TO REGULAR ENLISTMENT AN ADMINISTRATIVE CONVERSION OF A COAST GUARD ENLISTED MAN'S SPECIAL TEMPORARY ENLISTMENT ENTERED INTO PRIOR TO JULY 1, 1946, FOR SIX YEARS UNDER THE AUTHORITY OF SECTION 6 (A) OF THE ACT OF APRIL 21, 1924, TO A REGULAR ENLISTMENT FOR THE UNEXPIRED PORTION OF SUCH TEMPORARY ENLISTMENT IS NOT TO BE REGARDED AS A DISCHARGE AND REENLISTMENT AFTER JUNE 30, 1946, SO AS TO AFFECT ENTITLEMENT, FOR THE ENTIRE PERIOD OF THE ENLISTMENT AS CONVERTED, TO THE FAMILY ALLOWANCE AUTHORIZED BY SECTION 9 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 DURING THE TERM OF AN ENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, SEPTEMBER 3, 1947:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1947, AS FOLLOWS:

SECTION 9 (A) OF THE " ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945" ( PUBLIC LAW 190-79TH CONG., ST SESS., APPROVED OCTOBER 6, 1945; 37 U.S.C., SUPP. V, SEC. 201) PROVIDES:

"THE DEPENDENT OR DEPENDENTS OF ANY ENLISTED MAN IN THE ARMY OF THE UNITED STATES, THE UNITED STATES NAVY, THE MARINE CORPS, OR THE COAST GUARD, INCLUDING ANY AND ALL RETIRED AND RESERVE COMPONENTS OF SUCH SERVICES, SHALL BE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE FOR ANY PERIOD DURING WHICH SUCH ENLISTED MAN IS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER JUNE 1, 1942, (1) DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND THE SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF ANY SUCH WAR OR (2) DURING A PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED BY SUCH ENLISTED MAN PRIOR TO JULY 1, 1946.'

THE RECORDS OF THE U.S. COAST GUARD SHOW THAT ONE HERMAN J. LENTZ (227 870) SKIC ENTERED INTO A SPECIAL TEMPORARY REENLISTMENT ON MAY 26, 1946 FOR A PERIOD OF SIX (6) YEARS. THE FAMILY ALLOWANCE BENEFITS AUTHORIZED UNDER THE PROVISIONS OF THE ABOVE-QUOTED LAW ARE IN EFFECT FOR THIS MAN ON BEHALF OF HIS LAWFUL WIFE AND SON, AND WILL SO CONTINUE UNTIL MAY 25, 1952, PROVIDED HIS PRESENT ENLISTMENT IS NOT SOONER TERMINATED.

THERE ARE TWO TYPES OF ENLISTMENT IN THE COAST GUARD. ARTICLE 531, REGULATIONS FOR THE UNITED STATES COAST GUARD, PROVIDES, IN PART, THAT " ENLISTMENTS IN THE COAST GUARD SHALL BE EITHER SPECIAL TEMPORARY ENLISTMENTS OR ENLISTMENTS IN THE REGULAR ESTABLISHMENT.' THE LATTER STATUS IS RESERVED FOR CAREER PERSONNEL AND OFFERS CERTAIN ADVANTAGES, SUCH AS RETIREMENT BENEFITS, NOT EXTENDED TO PERSONS WHOSE STATUS IS OBTAINED UNDER SPECIAL TEMPORARY ENLISTMENT. ARTICLE 553 (2) (C) OF THE ABOVE-MENTIONED REGULATIONS PROVIDES, AMONG OTHER REQUISITES, THAT TO QUALIFY FOR ENLISTMENT IN THE REGULAR ESTABLISHMENT A PERSON MUST HAVE COMPLETED SIX YEARS OF CONTINUOUS ACTIVE SERVICE.

THE RECORDS OF THE COAST GUARD SHOW THAT THE ABOVE-NAMED MAN ON OR ABOUT MAY 25, 1947 WILL HAVE COMPLETED SIX (6) YEARS SERVICE ON A SPECIAL TEMPORARY ENLISTMENT. HOWEVER, UNDER EXISTING REGULATIONS HE MAY ONLY BE ENLISTED IN THE REGULAR ESTABLISHMENT UPON BEING DISCHARGED FROM HIS SPECIAL TEMPORARY ENLISTMENT WHICH, AS PREVIOUSLY NOTED, WILL CONTINUE TO RUN UNTIL ABOUT MAY 25, 1952, UNLESS SOONER DISCHARGED.

THE COAST GUARD IS CONTEMPLATING A REVISION IN THE REGULATIONS WHICH WILL PERMIT IN LENTZ- CASE, AND SIMILAR CASES, THE CONVERTING OF A SPECIAL TEMPORARY ENLISTMENT TO AN ENLISTMENT IN THE REGULAR ESTABLISHMENT UPON THE COMPLETION OF SIX (6) YEARS CONTINUOUS ACTIVE SERVICE, WHERE THE INDIVIDUAL IS PHYSICALLY AND OTHERWISE QUALIFIED FOR CAREER STATUS IN THE COAST GUARD. THE CONSIDERATION TO THE GOVERNMENT SUPPORTING THE MODIFICATION OR CONVERSION OF THE ORIGINAL AGREEMENT, CHANGING IT FROM A SPECIAL TEMPORARY ENLISTMENT TO ONE IN THE REGULAR ESTABLISHMENT, WILL BE FOUND IN THE DECIDED IMPROVEMENT OF MORALE OF OF ENLISTED PERSONNEL AND THE INDUCEMENT OFFERED TO SUCH PERSONNEL EARLIER EARLIER TO SELECT THE SERVICE AS A PERMANENT CAREER. THE RETENTION OF QUALIFIED PERSONNEL IS OF THE UTMOST IMPORTANCE TO THE COAST GUARD AND WILL RESULT ALSO IN A MARKED DECREASE IN EXPENSE AND EFFORT IN RECRUITMENT ACTIVITIES.

IN ORDER TO PUT THE ABOVE PLAN INTO OPERATION, ASSURANCE MUST BE GIVEN THE INDIVIDUALS TO BE AFFECTED THEREBY THAT SUCH A CHANGEOVER IN ENLISTMENT STATUS WILL NOT RESULT IN A LATER DETERMINATION THAT THE CHANGE IN STATUS WAS IN FACT A DISCHARGE FROM ONE ENLISTMENT AND A REENLISTMENT IN THE COAST GUARD, TO THE EXTENT THAT FAMILY ALLOWANCE WOULD CONTINUE FOR THE DURATION OF THE WAR AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF THE WAR, BECAUSE OF AN ENLISTMENT EITHER ACTUALLY OR IMPLIEDLY ENTERED INTO SUBSEQUENT TO JUNE 30, 1946, UNDER THE PROVISIONS OF SECTION 9 (A) OF THE " ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945," SUPRA.

WE ARE OF THE OPINION THAT THE PLAN PROPOSED BY THE COAST GUARD, NAMELY TO CONVERT SPECIAL TEMPORARY ENLISTMENTS TO ENLISTMENTS IN THE REGULAR ESTABLISHMENT, WILL RESULT IN A CONTINUATION OF THE ENLISTMENT TO BE COVERED AND IS NOT SUSCEPTIBLE OF BEING INTERPRETED AS CAUSING A DISCONTINUANCE OF ONE ENLISTMENT AND THE CREATION OF A NEW ENLISTMENT. OTHER WORDS, THE BEGINNING, DURATION AND ENDING OF THE ENLISTMENT WILL CONTINUE IN THE SAME MANNER AND TO THE SAME EXTENT AS ORIGINALLY ENTERED INTO, NOTWITHSTANDING THE CONVERSION OF THE STATUS OF THE ENLISTMENT.

SINCE THE PAYMENT OF FAMILY ALLOWANCE IS INVOLVED IN THE QUESTION HEREIN PRESENTED, AN INDICATION OF YOUR APPROVAL IS REQUESTED BEFORE THE PLAN IS PUT INTO EFFECT.

IT THUS APPEARS THAT THE ENLISTED MAN ENTERED INTO A "SPECIAL TEMPORARY ENLISTMENT" IN THE COAST GUARD PRIOR TO JULY 1, 1946, FOR A PERIOD OF SIX YEARS AND, CONSEQUENTLY, HIS DEPENDENTS ARE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE DURING THE PERIOD OF SUCH ENLISTMENT UNDER THE PROVISIONS OF SECTION 9 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 541, QUOTED IN YOUR LETTER. HOWEVER, THE QUESTION ARISES AS TO WHETHER THIS OFFICE WOULD BE REQUIRED TO CONSIDER A SUBSEQUENT "CONVERSION" OF SUCH SPECIAL TEMPORARY ENLISTMENT TO A REGULAR ENLISTMENT IN THE REGULAR ESTABLISHMENT AS A DISCHARGE AND REENLISTMENT AFTER JUNE 30, 1946, SO AS TO LIMIT THE DEPENDENTS' RIGHT TO FAMILY ALLOWANCES TO THE PERIOD OF THE WAR AND SIX MONTHS THEREAFTER, INSTEAD OF THE ENTIRE PERIOD OF THE ENLISTMENT.

THE AUTHORITY FOR SPECIAL TEMPORARY ENLISTMENTS IN THE COAST GUARD IS CONTAINED IN SECTION 6 (A) OF THE ACT OF APRIL 21, 1924, 43 STAT. 196, 14 U.S.C. 206--- ENTITLED " AN ACT TO AUTHORIZE A TEMPORARY INCREASE OF THE COAST GUARD FOR LAW ENFORCEMENT"--- WHICH PROVIDES AS FOLLOWS:

(A) UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO APPOINT TEMPORARY WARRANT OFFICERS, AND TO MAKE SPECIAL TEMPORARY ENLISTMENTS, IN THE COAST GUARD. NO PERSON SHALL BE ENTITLED TO RETIREMENT BECAUSE OF HIS TEMPORARY APPOINTMENT OR ENLISTMENT UNDER THIS SECTION.

ARTICLE 552 OF THE REGULATIONS FOR THE GOVERNMENT OF THE UNITED STATES COAST GUARD, AS AMENDED BY CHANGES NOS. 49 AND 51, DATED AUGUST 17 AND DECEMBER 18, 1945, RESPECTIVELY, PROVIDES THAT A REENLISTMENT IN THE COAST GUARD SHALL BE EITHER A " SPECIAL TEMPORARY ENLISTMENT" OR A "REGULAR" ENLISTMENT, AND THAT SUCH REENLISTMENTS SHALL BE MADE FOR A PERIOD OF 2, 3, 4, OR 6 YEARS, AT THE OPTION OF THE MAN CONCERNED. PRESUMABLY, THE SAID REGULATION IS BASED UPON THE PROVISIONS OF SECTIONS 1 AND 3 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 629, THE FORMER SECTION PROVIDING THAT THEREAFTER ENLISTMENTS IN THE NAVY OR MARINE CORPS MAY BE FOR MINORITY OR TERMS OF 2, 3, 4, OR 6 YEARS, AND THE LATTER SECTION MAKING THE PROVISIONS OF SECTION 1 APPLICABLE TO PERSONNEL OF THE REGULAR COAST GUARD. CF. SECTION 1 OF THE ACT OF MAY 26, 1906, AS AMENDED, 14 U.S.C. 35, WHICH WAS FURTHER AMENDED BY SECTION 8 OF THE ACT OF JULY 11, 1941, 55 STAT. 586, TO PROVIDE FOR ENLISTMENTS IN THE COAST GUARD FOR A TERM NOT TO EXCEED 4 YEARS.

IN DECISION OF JULY 16, 1925, 5 COMP. GEN. 33, 36, IT WAS STATED WITH RESPECT TO SPECIAL TEMPORARY ENLISTMENTS AUTHORIZED FOR THE COAST GUARD UNDER THE SAID ACT OF APRIL 21, 1924, AS FOLLOWS:

* * * THE NEW FORM OF ENLISTMENT ESTABLISHED BY THE ACT OF APRIL 21, 1924, WAS CLEARLY DESIGNED TO EXCLUDE MEN OF LIMITED SERVICE FROM THE BENEFITS OF THE LIBERAL RETIREMENT PROVISIONS THAT ENLISTED MEN OF THE COAST GUARD HAVE; THE ENLISTMENT ALTHOUGH DENOMINATED "SPECIAL EMPORARY" IS AN ENLISTMENT IN THE COAST GUARD FOR THE USUAL TERM OF SERVICE. * * *

NO SEPARATE AND DISTINCT ENLISTED FORCE IN THE COAST GUARD WAS CREATED BY THE ACT OF APRIL 21, 1924; INCREASED APPROPRIATIONS WERE PROVIDED FOR INCREASING THE REGULAR FORCE BY OTHER ACTS AND A SPECIAL FORM OF ENLISTMENT WAS AUTHORIZED WHICH OPERATED TO DEPRIVE PERSONS IN SUCH AN ENLISTMENT OF RIGHTS TO RETIREMENT; PERSONS SERVING IN SUCH SPECIAL TEMPORARY ENLISTMENTS ARE MEMBERS OF THE REGULAR COAST GUARD WITHIN THE MEANING OF THE ACT OF JUNE 4, 1920.

THUS, IT HAS BEEN RECOGNIZED THAT THE SAID ACT OF APRIL 21, 1924, DID NOT CREATE A SEPARATE AND DISTINCT ENLISTED FORCE IN THE COAST GUARD AND THAT PERSONS SERVING UNDER SUCH TEMPORARY ENLISTMENTS ARE MEMBERS OF THE REGULAR COAST GUARD WITHIN THE MEANING OF THE ACT OF JUNE 4, 1920. CF. 5 COMP. GEN. 473; HILL V. UNITED STATES, 68 C.CLS. 740. SECTION 9 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 AUTHORIZES PAYMENT TO THE DEPENDENTS OF ANY ENLISTED MAN OF THE ARMED FORCES, INCLUDING THE COAST GUARD, OF A MONTHLY FAMILY ALLOWANCE DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND 6 MONTHS IMMEDIATELY FOLLOWING THE TERM OF ANY SUCH WAR, OR, DURING A PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED BY SUCH ENLISTED MAN PRIOR TO JULY 1, 1946. HENCE, THE DEPENDENTS OF THE ENLISTED MAN HERE INVOLVED ARE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE AT LEAST UNTIL MAY 25, 1952, BY VIRTUE OF THE SPECIAL TEMPORARY ENLISTMENT ENTERED INTO ON MAY 26, 1946. SINCE SPECIAL TEMPORARY ENLISTMENTS IN THE COAST GUARD ARE ENLISTMENTS IN THE REGULAR COAST GUARD, YOU ARE ADVISED THAT AN ADMINISTRATIVE PROCEDURE OR REGULATION UNDER WHICH SUCH A SPECIAL TEMPORARY ENLISTMENT IS MERELY "CONVERTED" INTO A "REGULAR" ENLISTMENT WITH RESPECT, ONLY, TO THE UNEXPIRED PORTION OF THE SPECIAL TEMPORARY ENLISTMENT, NO ACTUAL DISCHARGE AND REENLISTMENT BEING INVOLVED, WOULD NOT OPERATE TO DEFEAT THE PREEXISTING RIGHT OF THE ENLISTED MAN'S DEPENDENTS TO CONTINUE TO RECEIVE FAMILY ALLOWANCES FOR THE FULL TERM OF SUCH ENLISTMENT. CF. DECISION OF JULY 21, 1947, B-66166, 27 COMP. GEN. 23, TO THE SECRETARY OF THE NAVY.