B-94059, APR 21, 1950

B-94059, APR 21, 1950

PRECIS-UNAVAILABLE

COLONEL J. A. MILTON, FINANCE OFFICER:

BY LETTER DATED MARCH 24, 1950, THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, REFERRED TO THIS OFFICE YOUR LETTER OF DECEMBER 21, 1949 (FILE EWCF WTM/CVR 016.1), TOGETHER WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER ENLISTMENT ALLOWANCE IS PAYABLE TO PETER KOLB, JR., MASTER SERGEANT, AFR 3432439, INCIDENT TO HIS REENLISTMENT ENTERED INTO ON SEPTEMBER 1, 1949.

IT APPEARS FROM THE ENCLOSURES RECEIVED WITH YOUR LETTER THAT KOLB ENLISTED ON JULY 31, 1941; THAT HE WAS DISCHARGED ON AUGUST 6, 1942; THAT HE ACCEPTED AN APPOINTMENT AS WARRANT OFFICER, JUNIOR GRADE, ON AUGUST 17, 1942; THAT HE WAS DISCHARGED AS CHIEF WARRANT OFFICER ON MAY 23, 1943; THAT HE ENTERED ON ACTIVE DUTY AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES, ON MAY 24, 1943; THAT HE WAS RELIEVED FROM ACTIVE DUTY ON AUGUST 31, 1949, REENLISTING (IN THE UNITED STATES AIR FORCE) THE FOLLOWING DAY, AND THAT HE WAS RETIRED EFFECTIVE NOVEMBER 1, 1949, PURSUANT TO SECTION I, ARMY REGULATIONS 615-395 AND PARAGRAPH 13, SPECIAL ORDERS NO. 202, DATED OCTOBER 17, 1949, ISSUED BY THE DEPARTMENT OF THE AIR FORCE. YOU STATE THAT KOLB HAD MORE THAN 30 YEARS OF SERVICE AT THE TIME OF HIS REENLISTMENT, SEPTEMBER 1, 1949, AND THAT HE MADE APPLICATION FOR RETIREMENT AT THAT TIME. IN VIEW OF A DECISION OF THIS OFFICE DATED APRIL 8, 1946, 25 COMP.GEN. 700, DOUBT IS EXPRESSED AS TO WHETHER PAYMENT OF ENLISTMENT ALLOWANCE IS AUTHORIZED. IN CONNECTION WITH THE MATTER, THE DIRECTOR OF FINANCE HAS STATED IN HIS LETTER OF MARCH 24, 1950, THAT THERE ALSO APPEARS TO BE FOR CONSIDERATION THE FACT THAT THE FORMER OFFICER WAS REQUIRED TO REENLIST IN ORDER TO BE RETIRED AS AN ENLISTED MAN.

SECTION I OF ARMY REGULATIONS 615-395, DATED DECEMBER 8, 1947, PROVIDES FOR THE RETIREMENT OF ENLISTED MEN AFTER 30 YEARS' SERVICE AS AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 2, 1907, 10 U.S.C. 947, READING AS FOLLOWS:

"WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST: PROVIDES, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY AND MARINE CORPS SHALL BE CREDITED."

SUCH PROVISIONS ARE MADE APPLICABLE BY SECTION 305(A) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508, TO PERSONNEL OF THE UNITED STATES AIR FORCE.

THE MANIFEST PURPOSE OF GRANTING AN ALLOWANCE UPON REENLISTMENT IS TO INDUCE QUALIFIED AND EXPERIENCED MILITARY AND NAVAL PERSONNEL TO OBLIGATE THEMSELVES TO FURTHER EXTENDED ENLISTED SERVICE. IN THE DECISION OF APRIL 8, 1946, SUPRA, WHICH YOU CITE, IT WAS HELD THAT THE ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, COULD NOT BE PAID INCIDENT TO AN ENLISTMENT ENTERED INTO BY AN ARMY ENLISTED MAN WHO WAS ELIGIBLE FOR RETIREMENT BE CANCELLED AND THAT HE BE DISCHARGED SO THAT HE COULD REENLIST PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 1, 1945, 59 STAT. 230, BUT WHO, UPON REENLISTMENT, RESUBMITTED HIS APPLICATION FOR RETIREMENT EFFECTIVE UPON THE EXPIRATION OF THE UNCOMPLETED PORTION OF HIS RETIREMENT FURLOUGH. IT WILL BE NOTED THAT SUCH DECISION FOLLOWED THE PRINCIPLE SET FORTH IN A DECISION OF A COMPTROLLER OF THE TREASURY, DATED FEBRUARY 21, 1921, 27 COMP.DEC. 747, THAT ENLISTMENT ALLOWANCE IS NOT PAYABLE INCIDENT TO AN ENLISTMENT WHICH IS NOT ENTERED INTO IN GOOD FAITH, THAT IS, NOT ENTERED INTO WITH THE INTENTION OF SERVING THEREUNDER, THE ENLISTMENT IN THAT CASE HAVING BEEN ENTERED INTO FOR THE PURPOSE OF ATTAINING ELIGIBILITY FOR APPOINTMENT AS A WARRANT OFFICER.

IN THE PRESENT CASE, IT IS STATED THAT AT THE TIME OF REENLISTMENT, SEPTEMBER 1, 1949, MR. KOLB HAD OVER 30 YEARS OF SERVICE AND, HENCE, HE WAS ELIGIBLE FOR RETIREMENT AS AN ENLISTED MAN UNDER THE ABOVE-QUOTED ACT OF MARCH 2, 1907. SINCE HE APPLIED FOR RETIREMENT AT THE TIME OF REENLISTMENT, IT IS OBVIOUS THAT IN ENTERING INTO SUCH REENLISTMENT, HE DID NOT HAVE THE INTENTION OF SERVING ON EXTENDED ACTIVE DUTY AS OBTAINING A STATUS IN WHICH HE WOULD BE ELIGIBLE FOR RETIREMENT. ACCORDINGLY, IN VIEW OF THE RULE THAT ENLISTMENT ALLOWANCE UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND PRIOR SIMILAR STATUTES, IS NOT PAYABLE UNLESS THE REENLISTMENT IS ENTER INTO WITH THE INTENTION AND EXPECTATION OF ACTUALLY SERVING THEREUNDER ON EXTENDED ACTIVE DUTY, THE PROPOSED PAYMENT IS NOT AUTHORIZED.