B-94117, OCTOBER 2, 1950, 30 COMP. GEN. 133

B-94117, OCTOBER 2, 1950, 30 COMP. GEN. 133

PAY AND ALLOWANCES - SAVINGS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 - ENLISTMENTS AND EXTENSION OF ENLISTMENTS AN ENLISTED MEMBER OF THE ARMY WHO, ON THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WAS SERVING IN AN ENLISTMENT CONTRACT PRIOR TO JULY 1, 1946, AND EXTENDED AFTER THAT DATE, IS ENTITLED TO THE SAVED PAY BENEFITS OF SECTION 515 (B) WITH THE EXCEPTION OF THE BENEFITS OF THE SECOND PROVISO THEREOF, WHICH BENEFITS ARE LIMITED TO MEMBERS WHO ON THE EFFECTIVE DATE OF THE ACT ARE SERVING IN AN ENLISTMENT OR REENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946. AN ENLISTED MEMBER OF THE ARMY WHO, ON THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WAS SERVING IN AN ENLISTMENT OR EXTENSION OF AN ENLISTMENT WHICH WOULD EXTEND BEYOND JULY 1, 1952, AND WHICH WAS CONTRACTED OR EXTENDED AFTER JULY 1, 1946, BUT PRIOR TO THE DATE OF ENACTMENT OF THE ACT, MAY CONTINUE TO RECEIVE THE SAVED PAY BENEFITS OF SECTION 515 (B) UNTIL JULY 1, 1952, PROVIDED HE OTHERWISE IS ENTITLED THERETO, WITH THE EXCEPTION OF THE BENEFITS OF THE SECOND PROVISO OF THAT SECTION, WHICH BENEFITS ARE LIMITED TO MEMBERS WHO ON THE EFFECTIVE DATE OF THE ACT ARE SERVING IN AN ENLISTMENT OR REENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946. AN ENLISTED MEMBER OF THE ARMY WHO, ON THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WAS SERVING IN AN ENLISTMENT CONTRACTED PRIOR THERETO, AND WHO EXTENDED HIS ENLISTMENT SUBSEQUENT TO THE ENACTMENT OF THE ACT, MAY CONTINUE TO RECEIVE THE SAVED PAY BENEFITS OR SECTION 515 (B) ONLY UNTIL THE EXPIRATION OF THE PERIOD FOR WHICH HE ENLISTED PRIOR TO THE ENACTMENT OF THE ACT, PROVIDED HE OTHERWISE IS ENTITLED TO RECEIVE SUCH SAVED PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, OCTOBER 2, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 3, 1950, CONCERNING THAT PART OF DECISION OF NOVEMBER 30, 1949, B-90270, 29 COMP. GEN. 241, WHICH CONSIDERED THE QUESTION OF THE EXTENT TO WHICH ENLISTED MEMBERS OF THE ARMY WHO EXTENDED THEIR ENLISTMENTS AFTER JULY 1, 1946, PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 28, 1947, 61 STAT. 191, ARE ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 831. SAID SECTION 515 (B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(B) ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR ANY MEMBER WHOSE ENLISTMENT TERMINATED IN THE PERIOD BETWEEN THE DATE OF ENACTMENT AND THE EFFECTIVE DATE OF THIS ACT, BOTH DATES INCLUSIVE, AND WHO HAS ENTERED INTO A NEW ENLISTMENT WITHIN ONE MONTH OF SUCH TERMINATION SHALL NOT, PRIOR TO THE EXPIRATION OF THE ENLISTMENT OR REENLISTMENT DESCRIBED ABOVE, OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT: PROVIDED, THAT FOR THE PURPOSES OF THIS SUBSECTION, UNLESS OTHERWISE PROVIDED, THE COMPUTATION OF SUCH TOTAL COMPENSATION SHALL NOT INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, AND FOLLOWING THAT DATE WHICH IS THE LAST DAY OF THE SIXTH CALENDAR MONTH FOLLOWING THE MONTH IN WHICH THIS ACT IS ENACTED, SHALL NOT INCLUDE THE CONTRIBUTION BY THE GOVERNMENT, UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TO MONTHLY FAMILY ALLOWANCE (1) FOR A FATHER OR MOTHER DEPENDENT FOR SUBSTANTIAL SUPPORT OR (2) FOR A FATHER OR MOTHER DEPENDENT FOR CHIEF SUPPORT WHEN A MONTHLY FAMILY ALLOWANCE IS AUTHORIZED FOR A WIFE OR CHILD OF SUCH MEMBER OR (3) FOR A BROTHER OR SISTER DEPENDENT FOR CHIEF OR SUBSTANTIAL SUPPORT, BUT SHALL INCLUDE OTHER CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED: PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING PROVISO, IN THE CASE OF ANY MEMBER WHO, ON THE EFFECT DATE OF THIS ACT, IS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946, SUCH MEMBER SHALL NOT, PRIOR TO THE EXPIRATION OF SUCH ENLISTMENT OR REENLISTMENT OR JULY 1, 1952, WHICHEVER IS EARLIER, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT, THE COMPUTATION OF SUCH TOTAL COMPENSATION, FOR THE PURPOSE OF THIS PROVISO ONLY, NOT TO INCLUDE TRAVEL AND TRANSPORTATION ALLOWANCES, PER DIEM AND STATION ALLOWANCES, PAY OF COURT STENOGRAPHERS OF THE ARMY AND AIR FORCE, ENLISTMENT ALLOWANCE, OR REENLISTMENT BONUSES, BUT SHALL INCLUDE ALL CONTRIBUTIONS BY THE GOVERNMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED * * *.

IN THE SAID DECISION OF NOVEMBER 30, 1949, 29 COMP. GEN. 241, IT WAS POINTED OUT THAT THE ENLISTMENT ALLOWANCE STATUTE IN EFFECT IMMEDIATELY PRIOR TO JULY 1, 1946, AUTHORIZED ENLISTMENTS OR REENLISTMENTS IN THE REGULAR ARMY FOR PERIODS OF 18 MONTHS, 2 YEARS, OR 3 YEARS. ALSO IT WAS STATED IN THAT DECISION THAT THE SAVINGS PROVISION IN THE SECOND PROVISO OF SECTION 515 (B), SUPRA, IS APPLICABLE ONLY TO MEMBERS WHO ON OCTOBER 1, 1949, WERE "SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946," AND THAT IT WAS NOT READILY APPARENT, IN VIEW OF SUCH THREE-YEAR MAXIMUM ENLISTMENT PERIOD, HOW AN ENLISTED MAN OF THE ARMY MIGHT BE REGARDED ON OCTOBER 1, 1949, AS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946. IN YOUR PRESENT LETTER IT IS INDICATED THAT FOLLOWING THE PASSAGE OF THE ACT OF JUNE 28, 1947, 61 STAT. 191, 10 U.S.C. 628, ADMINISTRATIVE REGULATIONS WERE ISSUED BY THE DEPARTMENT OF THE ARMY WHICH AUTHORIZED EXTENSIONS OF ORIGINAL ENLISTMENTS TO PERIODS OF 3, 4, 5, OR 6 YEARS, AND THAT, CONSEQUENTLY, IN ADMINISTERING THE SAVINGS PROVISIONS OF SECTION 515 (B) SEVERAL QUESTIONS HAVE ARISEN ON WHICH A DECISION IS REQUESTED. THE QUESTIONS ARE AS FOLLOWS:

1. AN INDIVIDUAL WAS ENLISTED IN JUNE 1946, FOR THREE YEARS; IN MAY 1949, HE EXTENDED HIS ENLISTMENT TO SIX YEARS; IS THIS INDIVIDUAL ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B) FOR THE PERIOD OF EXTENSION OF ENLISTMENT?

2. A. AN INDIVIDUAL WAS ENLISTED IN JULY 1947, FOR TWO YEARS; IN JUNE 1949, HE EXTENDED HIS ENLISTMENT TO SIX YEARS; IS THIS INDIVIDUAL ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B) UNTIL 1 JULY 1952?

B. AN INDIVIDUAL WAS ENLISTED IN JULY 1948, FOR THREE YEARS; IN JULY 1949, HE EXTENDED HIS ENLISTMENT TO SIX YEARS; IS THIS INDIVIDUAL ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B) FOR THE PERIOD OF HIS ORIGINAL ENLISTMENT (THREE YEARS), OR UNTIL 1 JULY 1952?

3. AN INDIVIDUAL WAS ENLISTED IN JULY 1948, FOR THREE YEARS; IN DECEMBER 1949, SUBSEQUENT TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949, HE EXTENDED HIS ENLISTMENT TO SIX YEARS; IS THIS INDIVIDUAL ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B) FOR THE PERIOD OF HIS ORIGINAL ENLISTMENT (THREE YEARS), OR UNTIL 1 JULY 1952; OR DOES HE LOSE ENTITLEMENT TO SAVINGS IN DECEMBER 1949 AT THE TIME OF EXTENSION OF ENLISTMENT?

THE OBVIOUS PURPOSE OF THE SAVINGS PROVISIONS OF SUBSECTION (B) OF SECTION 515, SUPRA, IS TO INSURE THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO, PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE ACT, HAD OBLIGATED THEMSELVES TO SERVE IN SUCH SERVICES, EITHER BY ENLISTMENT, REENLISTMENT, OR EXTENSION OF ENLISTMENT, WOULD NOT SUFFER ANY IMMEDIATE REDUCTION BY REASON OF THE CAREER COMPENSATION ACT IN THE TOTAL COMPENSATION, AS THEREIN DEFINED, TO WHICH THEY WERE ENTITLED UNDER THE LAW IN EFFECT ON SEPTEMBER 30, 1949. IT WILL BE NOTED, HOWEVER, THAT THE FIRST PART OF THE SAVINGS PROVISIONS IN SECTION 515 (B), SUPRA, REFERS TO ANY MEMBER WHO ON THE EFFECT DATE OF THE ACT, THAT IS, ON OCTOBER 1, 1949,"IS SERVING IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT," WHEREAS THE ADDITIONAL BENEFITS AUTHORIZED UNDER THE SECOND PROVISO OF THE SAID SUBSECTION (B) ARE LIMITED TO ANY MEMBER WHO ON OCTOBER 1, 1949,"IS SERVING IN AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946.' IN 1945, AS A FURTHER INDUCEMENT TO OBTAIN PERSONNEL FOR THE ARMED FORCES, SECTION 9 (A) OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 541, WHICH AMENDED SECTION 101 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, PROVIDED THAT THE DEPENDENTS OF ENLISTED MEN OF THE REGULAR ARMY, ETC., MIGHT CONTINUE TO RECEIVE A MONTHLY FAMILY ALLOWANCE DURING, INTER ALIA,"A PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED BY SUCH ENLISTED MAN PRIOR TO JULY 1, 1946.' IT SEEMS APPARENT THAT THE PURPOSE OF THE SAID SECOND PROVISO IN SECTION 515 (B), SUPRA (WHICH WAS IN THE NATURE OF AN ADDITIONAL SAVINGS PROVISIONS FOR THOSE MEMBERS WHO WERE STILL SERVING ON OCTOBER 1, 1949, IN AN ENLISTMENT PERIOD CONTRACTED PRIOR TO JULY 1, 1946) WAS TO KEEP FAITH WITH THOSE ENLISTED MEN WHO HAD ENLISTED OR REENLISTED PRIOR TO JULY 1, 1946, WITH THE UNDERSTANDING OR PROMISE THAT THEY WOULD CONTINUE TO RECEIVE FAMILY ALLOWANCE BENEFITS FOR THEIR DEPENDENT OR DEPENDENTS UNTIL THE EXPIRATION OF THEIR ENLISTMENTS OR REENLISTMENTS WHICH HAD BEEN CONTRACTED PRIOR TO JULY 1, 1946. SINCE THE MAXIMUM PERIOD FOR WHICH A PERSON COULD HAVE ENLISTED IN THE ARMY DURING THE PERIOD INVOLVED PRIOR TO JULY 1, 1946, WAS THREE YEARS, ALL ENLISTMENTS OR REENLISTMENTS IN THE ARMY WHICH WERE CONTRACTED PRIOR TO JULY 1, 1946, WOULD HAVE EXPIRED BEFORE JUNE 30, 1949. WHILE THE ACT OF JUNE 28, 1947, AUTHORIZED THE SECRETARY OF THE ARMY TO ACCEPT "ORIGINAL ENLISTMENTS" AND ,REENLISTMENTS" IN THE ARMY FOR PERIODS IN EXCESS OF THREE YEARS, THERE WAS NO PROMISE TO CONTINUE FAMILY ALLOWANCES FOR ANY SUCH PERIODS AND IT IS AT LEAST EXTREMELY DOUBTFUL THAT SUCH PROVISION CONTEMPLATED OR AUTHORIZED ANY FURTHER EXTENSION OF FAMILY ALLOWANCE BENEFITS FOR MEN WHO HAD ENLISTED PRIOR TO JULY 1, 1946, BY PERMITTING EXTENSIONS OF SUCH ENLISTMENTS FOR PERIODS EXTENDING BEYOND THE MAXIMUM OF THREE YEARS COVERED BY THE "PROMISE" IN THE SAID ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945. THAT IS TO SAY, A PERSON WHO ENLISTED PRIOR TO JULY 1, 1946, COULD NOT BY EXTENDING THE PERIOD OF SUCH ENLISTMENT AFTER JULY 1, 1946, INCREASE HIS RIGHTS TO FAMILY ALLOWANCES BEYOND THOSE CONTEMPLATED BY THE SAID 1945 ACT. TO THE EXTENT THAT THE ANSWER TO QUESTION "A" IN DECISION OF AUGUST 5, 1946, 26 COMP. GEN. 83, MAY BE VIEWED AS INDICATING THAT AN ENLISTMENT CONTRACT MAY BE AMENDED RETROACTIVELY OR NUNC PRO TUNC TO OBTAIN INCREASED BENEFITS NOT OTHERWISE AUTHORIZED BY STATUTE, IT NO LONGER WILL BE FOLLOWED.

BOTH THE 1945 AND 1949 ACTS EXTENDED ALL FAMILY ALLOWANCE BENEFITS FOR A PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED PRIOR TO JULY 1, 1946, BUT NEITHER ACT PURPORTS TO AUTHORIZE A CONTINUANCE OF SUCH BENEFITS FOR THE PERIOD OF ANY "EXTENSION" THEREOF CONTRACTED AFTER JULY 1, 1946. FOLLOWS THAT THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT AN ENLISTED MEMBER OF THE ARMY WHO ENLISTED PRIOR TO JULY 1, 1946, AND "EXTENDED" HIS ENLISTMENT UNDER ADMINISTRATIVE REGULATIONS (FOLLOWING PASSAGE OF THE ACT OF JUNE 28, 1947) MAY BE CONSIDERED AS SERVING ON OCTOBER 1, 1949, IN "AN ENLISTMENT OR REENLISTMENT WHICH WAS CONTRACTED PRIOR TO JULY 1, 1946," WITHIN THE MEANING OF THE SECOND PROVISO IN SECTION 515 (B) OF THE 1949 ACT, SO AS TO ENTITLE CERTAIN CLASS B AND CLASS B-1 DEPENDENTS WHOSE FAMILY ALLOWANCE BENEFITS OTHERWISE TERMINATED ON APRIL 30, 1950, TO CONTINUE TO RECEIVE SUCH FAMILY ALLOWANCE BENEFITS AFTER THAT DATE. ACCORDINGLY, IN ANSWER TO YOUR FIRST QUESTION, SINCE THE ENLISTED PERSON INVOLVED WAS SERVING ON OCTOBER 1, 1949, IN AN ENLISTMENT CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT, HE IS ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISIONS OF SECTION 515 (B), EXCEPT THAT, SINCE HE WAS SERVING ON OCTOBER 1, 1949, IN AN "EXTENSION" OF AN ENLISTMENT EFFECTED AFTER JULY 1, 1946, HE IS NOT ENTITLED TO THE BENEFITS OF THE SECOND PROVISO OF THE SAID SECTION 515 (B).

BOTH OF THE INDIVIDUALS REFERRED TO IN QUESTION 2 WERE SERVING ON OCTOBER 1, 1949, IN ENLISTMENTS (OR EXTENSIONS OF ENLISTMENT) WHICH, AS CONTRACTED AND EXTENDED PRIOR TO THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT, EXTENDED BEYOND JULY 1, 1952. IT FOLLOWS THAT, IF OTHERWISE ENTITLED, THEY WILL CONTINUE TO BE ENTITLED TO THE BENEFITS OF SECTION 515 (B) UNTIL JULY 1, 1952, EXCEPTING, OF COURSE, THE BENEFITS OF THE SECOND PROVISO THEREOF. SEE THE ANSWER BELOW TO THE THIRD QUESTION.

THE MEMBER INVOLVED IN YOUR THIRD QUESTION WAS SERVING ON OCTOBER 1, 1949, IN AN ENLISTMENT WHICH WAS DUE TO EXPIRE IN JULY 1951. SECTION 515 (B) PROVIDES THAT SUCH A MEMBER SHALL NOT SUFFER ANY REDUCTION "PRIOR TO THE EXPIRATION OF THE ENLISTMENT OR REENLISTMENT DESCRIBED ABOVE," OR JULY 1, 1952, WHICHEVER IS EARLIER. THE ENLISTMENT "DESCRIBED ABOVE" IS AN ENLISTMENT "CONTRACTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT.' THE EVIDENT PURPOSE WAS TO CONTINUE THE BENEFITS OF THE SAVINGS PROVISIONS ONLY FOR THE PERIOD A MEMBER WAS OBLIGATED TO SERVE ON THE DATE OF ENACTMENT. THE ENLISTMENT "CONTRACTED PRIOR TO THE DATE OF ENACTMENT" PATENTLY WOULD NOT INCLUDE ON THE DATE OF ENACTMENT AN EXTENSION CONTRACTED THEREAFTER, AND THERE IS NO INDICATION OF LEGISLATIVE INTENT OR POLICY TO PERMIT A MEMBER TO EXTEND THE PERIOD OF BENEFITS BY VOLUNTARILY EXTENDING HIS ENLISTMENT AFTER THE DATE OF ENACTMENT. ON THE CONTRARY, THE INTENT TO BE GATHERED FROM THE LANGUAGE AS WELL AS THE GENERAL PURPOSE OF THE SECTION WOULD APPEAR TO BE THAT MEMBERS' RIGHTS IN THAT RESPECT SHOULD BE FIXED BY THEIR STATUS WHEN THE ACT BECAME LAW. THAT VIEW IS IN CONSONANCE WITH THE CONCLUSION REACHED IN ANSWERING YOUR SECOND QUESTION AND THE PRINCIPLES APPLIED IN ANSWERING THE FIRST QUESTION. ON THE OTHER HAND, THERE APPEARS NO INTENT THAT A MEMBER'S RIGHTS IN THAT RESPECT SHOULD BE DIMINISHED BY VOLUNTARY EXTENSION OF HIS ENLISTMENT AFTER THE DATE OF ENACTMENT. FOR SUCH REASONS, IT IS CONCLUDED THAT, IF OTHERWISE ENTITLED, THE MEMBER REFERRED TO IN YOUR THIRD QUESTION WILL CONTINUE TO BE ENTITLED TO THE BENEFITS OF SECTION 515 (B) UNTIL THE EXPIRATION IN JULY 1951 OF THE THREE-YEAR PERIOD FOR WHICH HE ENLISTED PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, BUT NOT BEYOND THAT DATE.