B-142704, JUNE 22, 1960, 39 COMP. GEN. 860

B-142704, JUNE 22, 1960, 39 COMP. GEN. 860

MILITARY PERSONNEL - UNDERAGE ENLISTMENTS - PAY, ETC., ENTITLEMENT THE ENLISTMENT INTO THE MILITARY SERVICE OF AN INDIVIDUAL PRIOR TO REACHING THE AGE OF 17--- THE MINIMUM STATUTORY AGE FOR ENLISTMENT WITH PARENTAL CONSENT--- DOES NOT GIVE THE INDIVIDUAL ANY MILITARY STATUS; HOWEVER, IF THE INDIVIDUAL CONTINUES TO PERFORM MILITARY DUTIES AFTER THE AGE OF 17, HE IS REGARDED AS ENTERING A VOIDABLE MILITARY STATUS ON HIS 17TH BIRTHDAY, NO PARENTAL CONSENT BEING SHOWN. NEITHER AN INDIVIDUAL WHO IS UNDER THE MINIMUM STATUTORY AGE AT THE TIME OF ENLISTMENT, AND WHEN THE ENLISTMENT IS TERMINATED BY THE GOVERNMENT BECAUSE OF MINORITY, NOR AN INDIVIDUAL WHO IS UNDER THE MINIMUM STATUTORY AGE AT THE TIME OF ENLISTMENT AND BETWEEN THAT AGE AND 18 AT TIME OF TERMINATION MAY BE REGARDED AS HAVING SERVED IN A MILITARY STATUS DURING THE PERIODS PRIOR TO THE TIME THEIR ENLISTMENTS WERE TERMINATED SO THAT THEY ARE ENTITLED ONLY TO SUCH BENEFITS AS ARE SPECIALLY PROVIDED BY LAW; THEREFORE, WHILE SUCH MINORITY SERVICE IS CREDITABLE UNDER THE ACT OF JUNE 19, 1948, FOR BASIC PAY AND FOR RETIRED PAY TO THE EXTENT THAT SUCH COMPUTATION IS BASED ON BASIC PAY PAID PRIOR TO RETIREMENT WHICH INCLUDES MINORITY SERVICE, NO AUTHORITY EXISTS FOR CREDIT OF SUCH SERVICE IN DETERMINING THE PERCENTAGE FACTOR FOR USE IN COMPUTING RETIRED PAY, WHERE SUCH PERCENTAGE IS BASED ON YEARS OF ACTIVE SERVICE, OR IN DETERMINING ELIGIBILITY FOR RETIREMENT. A MILITARY STATUS CANNOT BE ATTAINED BY ENLISTING IN THE ARMY OR AIR FORCE BEFORE THE AGE OF 17 YEARS, AND IT IS IMMATERIAL WHETHER THE ENLISTEE CONTINUES IN THE SERVICE BEYOND THAT AGE SO FAR AS COUNTING TIME BEFORE ATTAINING SUCH AGE IS CONCERNED, SO THAT AN INDIVIDUAL WHO ENLISTS IN THE ARMY OR AIR FORCE BEFORE THE AGE OF 17 YEARS AND WHOSE ENLISTMENT IS NOT TERMINATED FOR MINORITY MAY HAVE THE SERVICE BEFORE THE THE AGE OF 17 YEARS COUNTED ONLY TO THE EXTENT AUTHORIZED BY LAW, I.E., FOR BASIC PAY PURPOSES AND FOR RETIRED PAY PURPOSES SO FAR AS THE RETIRED PAY IS BASED ON BASIC PAY PAID PRIOR TO RETIREMENT, BUT NOT FOR COMPUTING THE PERCENTAGE FACTOR BASED ON YEARS OF ACTIVE SERVICE FOR USE IN COMPUTING RETIRED PAY AND NOT FOR DETERMINING ELIGIBILITY FOR RETIREMENT. WHEN THE GOVERNMENT TERMINATES THE ENLISTMENT OF A MEMBER BECAUSE OF MINORITY PRIOR TO THE TIME THE MEMBER BECOMES 18 YEARS OF AGE, SUCH AN ENLISTMENT IS VOID; THEREFORE, UNDER THE DE FACTO RULE THE MEMBER IS ENTITLED TO RETAIN THE PAY AND ALLOWANCES RECEIVED BEFORE DETERMINATION OF MINORITY BUT NO PAY AND ALLOWANCES ACCRUE TO THE MEMBER AFTER THE DATE OF MINORITY DETERMINATION AND UNTIL RELEASE FROM MILITARY CONTROL. ALTHOUGH THE ENLISTMENT OF A MINOR, WHO IS UNDER THE STATUTORY AGE OF 17, WITHOUT PARENTAL CONSENT, IS NOT, IN ITSELF, REGARDED ADMINISTRATIVELY AS A FRAUDULENT ENLISTMENT, SUCH ENLISTMENT IS BASED ON A FALSE STATEMENT AND IS VIEWED AS CONSTITUTING A FRAUDULENT ENLISTMENT WITHIN THE MEANING OF THE LAWS RELATING TO PAYMENT OF THE GRATUITY "TO EACH PERSON DISCHARGED FOR FRAUDULENT ENLISTMENT; " AND, THEREFORE, PERSONS WHOSE ENLISTMENTS ARE TERMINATED BY THE GOVERNMENT PRIOR TO THEIR 18TH BIRTHDAYS MAY BE GIVEN A DONATION, NOT EXCEEDING $25, UPON RELEASE FROM MILITARY CONTROL. A PERSON WHOSE ENLISTMENT IN THE ARMY OR THE AIR FORCE WHILE UNDER THE MINIMUM STATUTORY ENLISTMENT AGE IS TERMINATED BY THE GOVERNMENT DUE TO MINORITY MAY BE REGARDED AS A "REJECTED APPLICANT" WITHIN THE MEANING OF TRAVEL AND TRANSPORTATION PROVISIONS OF SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949 TO BE ENTITLED TO TRANSPORTATION IN KIND UPON RELEASE FROM MILITARY CONTROL. A PERSON WHO ENLISTS IN THE ARMY OR THE AIR FORCE WHILE UNDER THE MINIMUM STATUTORY ENLISTMENT AGE AND WHOSE ENLISTMENT IS TERMINATED BY THE GOVERNMENT DUE TO MINORITY IS LEGALLY LIABLE FOR ANY INDEBTEDNESS DUE THE UNITED STATES AT THE TIME OF RELEASE FROM MILITARY CONTROL. IF AN UNDERAGE ENLISTMENT IN THE ARMY OR THE AIR FORCE IS NOT TERMINATED BY THE GOVERNMENT AND THE PERSON IS PERMITTED TO SERVE THE FULL PERIOD OF HIS ENLISTMENT, INCLUDING TIME AFTER ATTAINING THE MINIMUM STATUTORY ENLISTMENT AGE OF 17 YEARS, HE IS ENTITLED TO PAY AND ALLOWANCES TO THE DATE OF DISCHARGE, INCLUDING TRAVEL ALLOWANCES FROM LAST STATION AS PROVIDED BY LAW. THE PROVISIONS OF 10 U.S.C. 3816 AND 8816, WHICH PERMIT THE DISCHARGE WITH PAY OF A PERSON WHO ENLISTS BEFORE THE AGE OF 18 YEARS WITHOUT THE CONSENT OF HIS PARENTS OR GUARDIAN, APPLY ONLY TO THOSE PERSONS UNDER AGE 18 YEARS WHO ARE AUTHORIZED TO ENLIST IN ANY EVENT, THAT IS, THOSE PERSONS WHO HAVE ATTAINED THE AGE OF 17 YEARS, AND THEN ONLY WHERE THE PARENTS OR GUARDIAN REQUEST THE MINOR'S RELEASE, AND IN NO EVENT MAY THE DISCHARGE OF A MINOR WHO IS UNDER THE AGE OF 17 YEARS BE ACCOMPLISHED WITH PAY REGARDLESS OF WHETHER THE PARENTS OR GUARDIAN REQUEST SUCH DISCHARGE. AN ENLISTMENT IN THE ARMY OR THE AIR FORCE PRIOR TO ATTAINMENT OF THE MINIMUM STATUTORY AGE OF 17 YEARS IS VOID, BUT THE PROCEDURE TO BE FOLLOWED IN RELEASING THE MEMBER FROM MILITARY CONTROL, AND IN ISSUING (OR CANCELLING) DISCHARGE CERTIFICATES IS AN ADMINISTRATIVE MATTER WHETHER OR NOT THE GOVERNMENT TERMINATES THE ENLISTMENT FOR MINORITY OR ISSUES AN HONORABLE DISCHARGE UNDER OTHER CIRCUMSTANCES; HOWEVER, NO RIGHTS ACCRUE TO THE ENLISTEE AS A RESULT OF DISCHARGE OF MINOR. WHILE THE BLANTON DECISION, 7 U.S.C.M.A. 664, 23 C.M.R. 128, WHICH HELD THAT A MINOR BELOW THE STATUTORY AGE UPON ENLISTMENT COULD NOT ACHIEVE A MILITARY STATUS AND THAT SUCH ENLISTMENT WOULD BE VOID, HAS RESULTED IN A CHANGE IN ADMINISTRATIVE PRACTICES REGARDING THE ISSUANCE OF DISCHARGES, NO NEW CONCEPTS WERE ADDED BY THAT DECISION TO EXISTING LAW WITH RESPECT TO PAY AND ALLOWANCES; THEREFORE, ALL IMPROPER PAYMENTS INCIDENT TO SUCH ENLISTMENTS WILL BE QUESTIONED.

TO THE SECRETARY OF DEFENSE, JUNE 22, 1960:

REFERENCE IS MADE TO LETTER OF APRIL 21, 1960, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN CONCERNING UNDERAGE ENLISTMENTS IN THE ARMY AND AIR FORCE AND THE MONETARY AND OTHER BENEFITS WHICH PROPERLY ACCRUE INCIDENT TO SERVICE UNDER SUCH AN ENLISTMENT. THE QUESTIONS, TOGETHER WITH A DISCUSSION PERTAINING THERETO, ARE CONTAINED IN COMMITTEE ACTION NO. 264 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN COMMITTEE ACTION NO. 264 THERE IS DISCUSSED THE RELATIONSHIP OF VARIOUS STATUTES, REGULATIONS OF THE SEVERAL ARMED SERVICES AND COURT, AND OTHER DECISIONS PERTINENT TO THE EFFECT OR CREDITABILITY OF ACTIVE DUTY TIME SERVED WHILE THE MEMBER WAS BELOW THE STATUTORY OR ADMINISTRATIVE AGE FOR ENLISTMENT IN (1) THOSE CASES WHERE THE SERVICE WAS TERMINATED BY THE GOVERNMENT FOR MINORITY AND (2) WHERE SUCH SERVICE WAS NOT SO TERMINATED. BROADLY CONSIDERED, THE QUESTIONS SUBMITTED APPEAR TO RELATE TO THE MATTER OF WHETHER THE ENLISTMENT CONTRACT OF A MEMBER WHO WAS UNDER THE MINIMUM STATUTORY AGE AT THE TIME OF HIS ENLISTMENT IS TO BE REGARDED AS ABSOLUTELY VOID OR AS MERELY VOIDABLE.

THE QUESTIONS PRESENTED WILL BE ANSWERED IN THE ORDER PRESENTED. QUESTION 1 IS AS FOLLOWS:

1. MAY AN UNDERAGE ENLISTMENT IN THE ARMY OR THE AIR FORCE WHICH IS TERMINATED BY THE GOVERNMENT BECAUSE OF MINORITY BE CREDITED FOR BASIC PAY PURPOSES, ELIGIBILITY FOR RETIREMENT, OR RETIREMENT PAY:

A. IF THE INDIVIDUAL WAS UNDER THE MINIMUM STATUTORY AGE AT THE TIME OF ENLISTMENT AND DISCHARGE?

B. IF THE INDIVIDUAL WAS UNDER THE MINIMUM STATUTORY AGE AT THE TIME OF ENLISTMENT AND BETWEEN THAT AGE AND 18 AT THE TIME OF DISCHARGE?

IN THE DISCUSSION ACCOMPANYING THE SUBMISSION, REFERENCE IS MADE TO THE FACT THAT THE PRESENT MINIMUM ADMINISTRATIVE AGE FOR ENLISTMENT IN ANY OF THE ARMED SERVICES IS SEVENTEEN AND THAT WHERE A MAN IS OVER SEVENTEEN BUT LESS THAN EIGHTEEN, HE MUST HAVE THE CONSENT OF HIS PARENT OR GUARDIAN TO QUALIFY FOR ENLISTMENT. WITH RESPECT TO THE MINIMUM STATUTORY AGES FOR ENLISTMENT, HOWEVER, THE SERVICES DIFFER, THE NAVY AND MARINE CORPS HAVING A MINIMUM STATUTORY AGE FOR ENLISTMENT OF FOURTEEN YEARS (10 U.S.C. 5533) AND THE ARMY, THE NATIONAL GUARD AND THE AIR FORCE, AN AGE OF SEVENTEEN YEARS. (10 U.S.C. 3256, 32 U.S.C. 313, 10 U.S.C. 8256). THE CASE OF UNITED STATES V. BLANTON, 7 U.S.C.M.A. 664, 23 C.M.R. 128, IS CITED IN THE DISCUSSION AS POSSIBLY ESTABLISHING A RULE FIXING A BASIS FOR DIFFERENTIATION BETWEEN A VOID ENLISTMENT AND ONE WHICH IS MERELY VOIDABLE.

THE BLANTON CASE HELD THAT A MINOR BELOW THE STATUTORY AGE WHEN HE ENLISTED COULD NOT ACHIEVE MILITARY STATUS AS A MEMBER OF THE ARMY AND NOT HAVING SUCH STATUS COULD NOT, WHILE STILL BELOW THAT AGE, BE COURT MARTIALED FOR DESERTION. THE COURT SAID THAT ENLISTMENT IS PREDOMINANTLY A MATTER OF STATUS AND NOT OF CONTRACT AND THAT CONGRESS HAVING SET A MINIMUM AGE LIMIT FOR ENLISTMENT, NO ONE COULD ACHIEVE THE STATUS OF ARMY MEMBERSHIP WHO WAS BELOW THAT AGE AND THAT SUCH ENLISTMENT WOULD BE VOID AND OF NO EFFECT.

WHILE IT IS NOT POSSIBLE TO RECONCILE ALL THE DECISIONS OF THE COURTS AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS TO WHETHER UNDERAGE ENLISTMENTS ARE ABSOLUTELY VOID OR MERELY VOIDABLE, IT APPEARS THAT IN MOST OF THE CASES HOLDING SUCH AN ENLISTMENT TO BE VOIDABLE ONLY THE MINOR ENLISTEE WAS OVER THE MINIMUM STATUTORY AGE AT THE TIME OF ENLISTMENT. SUCH ENLISTMENTS ARE VALID UNLESS AVOIDED BY THE GOVERNMENT, IN WHICH EVENT THEY ARE RENDERED VOID FROM THEIR INCEPTION AND THE PERSON CONCERNED IS ENTITLED ONLY TO SUCH RIGHTS AS ARE SPECIFICALLY AUTHORIZED BY STATUTE.

IN THE CASE OF HOSKINS V. PELL, 239 F. 279, IT WAS STATED:

OUR CONCLUSION IS THAT STATUTES ABOVE SET OUT SUFFICIENTLY SHOW THAT IT WAS THE INTENTION OF THE LAWMAKERS TO NEGATIVE THE COMPETENCY OF A MINOR UNDER 16 YEARS OF AGE TO ACQUIRE THE STATUS OF A SOLDIER BY ENLISTING FOR MILITARY SERVICE, AND TO DEPRIVE HIS ATTEMPT TO DO SO OF THE EFFECT OF SUBJECTING HIM TO MILITARY AUTHORITY. IT IS NOT DENIED THAT SUCH AN ENLISTMENT MAY BE VALIDATED BY THE MINOR'S CONTINUANCE IN THE SERVICE UNTIL HE REACHES THE AGE WHICH QUALIFIED HIM FOR ENLISTMENT. EX PARTE HUBBARD (C.C.) 182 F. 76.

IN THE LATTER CASE THE COURT STATED THAT THE MINOR'S CONTINUED SERVICE AFTER REACHING THE STATUTORY AGE OF 16 WAS THE EQUIVALENT OF AN ENLISTMENT AFTER HE REACHED THAT AGE. THE SAME CONCLUSION WAS REACHED IN 23 COMP. GEN. 755, 761, WHERE IT WAS HELD THAT AN INDIVIDUAL WHO ENLISTED IN THE STATE NATIONAL GUARD BEFORE HE HAD REACHED THE STATUTORY AGE OF EIGHTEEN WAS NOT AUTHORIZED TO COUNT SUCH PURPORTED ENLISTED SERVICE FOR LONGEVITY PAY PURPOSES, BUT THAT WHERE HE REMAINS OR IS RETAINED IN THE SERVICE AFTER REACHING THAT AGE, HE MAY COUNT FOR LONGEVITY PAY PURPOSES THE PERIOD SUBSEQUENT TO REACHING THE STATUTORY AGE, IT BEING CONCLUDED THAT HIS REMAINING IN THE NATIONAL GUARD AFTER REACHING THE AGE AT WHICH HE WOULD BE ELIGIBLE FOR ENLISTMENT WAS EQUIVALENT TO AN ENLISTMENT IN THE REGULAR MANNER AT THAT TIME. WHERE, AS HERE, THE MINIMUM STATUTORY AGE FOR ENLISTMENT IS 17 YEARS AND PARENTAL CONSENT IS REQUIRED FOR ENLISTMENT OF A PERSON 17 YEARS OF AGE, ENLISTMENT PRIOR TO ATTAINING THAT AGE CREATES NO MILITARY STATUS. HOWEVER, IF HE CONTINUES TO PERFORM MILITARY DUTIES AFTER REACHING THAT AGE, HE IS REGARDED AS ENTERING A VOIDABLE MILITARY STATUS ON HIS 17TH BIRTHDAY, NO PARENTAL CONSENT BEING SHOWN.

THE CONCLUSION REACHED BY THE COURT IN THE BLANTON CASE IS CONSISTENT WITH THE VIEWS EXPRESSED ABOVE AND WE AGREE WITH SUCH CONCLUSION. COMP. GEN. 406.

APPLYING THE FOREGOING TO THE FACTS INVOLVED IN QUESTION 1, IT WILL BE SEEN THAT NEITHER OF THE PERSONS THERE MENTIONED MAY BE REGARDED AS HAVING SERVED IN A MILITARY STATUS DURING THE PERIODS PRIOR TO THE TIME THEIR ENLISTMENTS WERE TERMINATED BY THE GOVERNMENT. HENCE, THEY ARE ENTITLED ONLY TO SUCH BENEFITS AS ARE SPECIFICALLY PROVIDED BY LAW IN SUCH CIRCUMSTANCES.

THE ACT OF MARCH 6, 1946, PUBLIC LAW 309, 79TH CONGRESS, 60 STAT. 32, 37 U.S.C. 233, MENTIONED IN THE COMMITTEE DISCUSSION PROVIDED AS FOLLOWS:

THAT ANY SERVICE WHICH WOULD BE CREDITABLE, FOR THE PURPOSE OF COMPUTING LONGEVITY PAY, OR FOR OTHER PAY PURPOSES, OF MEMBERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE, OR OF ANY OF THE RESERVE COMPONENTS THEREOF, EXCEPT FOR THE FACT THAT SUCH SERVICE WAS, OR SHALL BE, PERFORMED PRIOR TO THE ATTAINMENT OF THE AGE OF EIGHTEEN YEARS, SHALL, UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE, BE CREDITED NOTWITHSTANDING SUCH FACT.

SEC. 2. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE FROM JUNE 1, 1942, AND SHALL CEASE TO BE IN EFFECT SIX MONTHS AFTER TERMINATION OF THE PRESENT WAR.

THE ACT OF JUNE 19, 1948, 37 U.S.C. 103B ( SUPP. II, 1946 EDITION), AMENDED THE ACT OF MARCH 6, 1946, SUPRA, AND ITS PROVISIONS ARE NOW INCLUDED IN SECTION 202 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (C). WITH RESPECT TO THE PURPOSE AND SCOPE OF SUCH PROVISIONS OF LAW, IT IS STATED IN H. REPORT NO. 2107, TO ACCOMPANY S. 1790, THE BILL WHICH BECAME THE ACT OF JUNE 19, 1948, THAT PUBLIC LAW 309, 79TH CONGRESS, WAS ENACTED TO NEGATE A RULING OF THE COMPTROLLER GENERAL (PRESUMABLY 23 COMP. GEN. 839) THAT, SINCE STATUTES THEN EXISTING PRECLUDED A PERSON UNDER EIGHTEEN YEARS OF AGE (STATUTORY MINIMUM) FROM BECOMING A LAWFUL MEMBER OF THE ORGANIZED MILITIA OR NATIONAL GUARD, UNDERAGE SERVICE COULD NOT BE COUNTED FOR LONGEVITY PURPOSES. SUCH AMENDMENT EXTENDED THE COVERAGE OF THE 1946 ACT TO INCLUDE THE AIR FORCE AND REMOVED THE LIMITATION ON THE PERIOD OF ITS EFFECTIVENESS, THUS MAKING IT PERMANENT LEGISLATION.

SUCH LEGISLATION PROVIDES FOR ITS IMPLEMENTATION UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE.

THE REGULATIONS OF THE ARMED SERVICES AUTHORIZE CREDIT FOR SERVICE PERFORMED PRIOR TO THE AGE OF EIGHTEEN IN THE COMPUTATION OF BASIC PAY. PARAGRAPHS 1-44 AND 1-53B, ARMY REGULATIONS 37-104, RESPECTIVELY, PROVIDE:

SERVICE PRIOR TO ATTAINMENT OF 18 YEARS OF AGE WILL BE INCLUDED IN COMPUTING BASIC PAY UNLESS SUCH SERVICE UNDER A FRAUDULENT ENLISTMENT HAS BEEN REPUDIATED BY THE GOVERNMENT.

SERVICE PERFORMED UNDER AN ENLISTMENT WHICH HAS BEEN REPUDIATED BY THE GOVERNMENT FOR FRAUD IN ITS INCEPTION--- OTHER THAN CONCEALMENT OF AGE (MINORITY/--- AND TERMINATED BY A DISCHARGE FOR FRAUDULENT ENLISTMENT MAY NOT BE COUNTED IN THE COMPUTATION OF BASIC PAY, NOTWITHSTANDING THE FACT THAT PART OR ALL OF THE SERVICE MAY HAVE BEEN PERFORMED PRIOR TO ATTAINMENT OF THE AGE OF 18 YEARS. ( ITALICS SUPPLIED.)

PARAGRAPH 10403, AIR FORCE MANUAL 173-20, PROVIDES:

ALL SERVICE HERETOFORE OR HEREAFTER PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES PRIOR TO THE ATTAINMENT OF 18 YEARS OF AGE SHALL BE INCLUDED IN THE COMPUTATION OF BASIC PAY.

PARAGRAPHS 10409 A (3) AND B., AIR FORCE MANUAL 173-20, AUTHORIZE CREDIT IN COMPUTATION OF BASIC PAY FOR:

(3) ALL SERVICE PERFORMED PRIOR TO DISCHARGE FOR MINORITY UNDER THE PROVISION OF AFR 39-12.

B. PERIOD NOT COUNTED: SERVICE PERFORMED UNDER AN ENLISTMENT WHICH WAS TERMINATED BY DISCHARGE FOR FRAUDULENT ENLISTMENT UNDER THE PROVISIONS OF AFR 39-21 MAY NOT BE COUNTED IN THE COMPUTATION OF BASIC PAY, NOTWITHSTANDING THE FACT THAT PART OR ALL OF THE SERVICE MAY HAVE BEEN PERFORMED PRIOR TO ATTAINMENT OF THE AGE OF 18 YEARS. ( AIRMEN DISCHARGED BECAUSE OF MINORITY OR NON-CONSENT OF PARENTS OR GUARDIANS ARE NOT DISCHARGED UNDER AFR 39-21 UNLESS OTHER MORE SERIOUS MISREPRESENTATIONS ALSO EXIST.)

UNDER THE ABOVE CITED AND QUOTED PROVISIONS OF LAW AND REGULATIONS, IT IS CLEAR THAT THE PERSONS MENTIONED IN QUESTION 1 MAY BE CREDITED WITH TIME SERVED DURING AN UNDERAGE ENLISTMENT FOR BASIC PAY PURPOSES.

CONCERNING THE COMPUTATION OF RETIRED PAY, IT APPEARS THAT INSOFAR AS SUCH COMPUTATION IS BASED ON THE BASIC PAY THE MEMBER INVOLVED WAS BEING PAID PRIOR TO RETIREMENT, SUCH MINORITY SERVICE SO CREDITABLE FOR BASIC PAY PURPOSES NECESSARILY WILL BE INCLUDED IN THE COMPUTATION OF RETIRED PAY. SUCH SERVICE MAY NOT BE CREDITED IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING RETIRED PAY WHERE SUCH PERCENTAGE IS BASED ON YEARS OF ACTIVE SERVICE.

WITH RESPECT TO THE CREDITING OF SUCH SERVICE IN DETERMINING ELIGIBILITY FOR RETIREMENT WHERE THE ENLISTMENT WAS VOID OR HAS BEEN AVOIDED BY THE GOVERNMENT, IT APPEARS THAT APPLICABLE STATUTES AND REGULATIONS DO NOT PROVIDE FOR THE CREDITING OF SUCH UNDERAGE SERVICE IN DETERMINING ELIGIBILITY FOR RETIREMENT. SEE IN THIS CONNECTION 10 U.S.C. 1201, 1208, 3914, 8914 AND 8925. COMPARE 36 COMP. GEN. 439.

QUESTION 1 IS ANSWERED ACCORDINGLY.

QUESTION 2.

MAY SERVICE RENDERED PRIOR TO THE MINIMUM STATUTORY AGE IN THE ARMY OR THE AIR FORCE BE CREDITED FOR BASIC PAY PURPOSES, ELIGIBILITY FOR RETIREMENT, OR RETIREMENT PAY, IF THE INDIVIDUAL CONTINUES IN SERVICE BEYOND THAT AGE AND THE ENLISTMENT IS NOT TERMINATED FOR MINORITY?

SINCE A PERSON CANNOT ATTAIN A MILITARY STATUS BY ENLISTING IN THE ARMY OR AIR FORCE BEFORE HE IS 17 YEARS OF AGE, IT IS IMMATERIAL WHETHER HE CONTINUES IN THE SERVICE BEYOND THAT AGE, AS FAR AS COUNTING TIME BEFORE ATTAINING SUCH AGE IS CONCERNED. QUESTION 2 IS ANSWERED BY SAYING THAT SUCH UNDERAGE SERVICE MAY BE COUNTED TO THE SAME EXTENT AS INDICATED IN THE ANSWER TO QUESTION 1.

QUESTION 3.

IF THE SERVICE REFERRED TO ABOVE IS DEEMED NOT CREDITABLE DUE TO THE INDIVIDUALS "INCAPACITY TO ENTER A VALID ENLISTMENT" ARE THEY---

A. ENTITLED TO RECEIVE FULL PAY AND ALLOWANCES THROUGH THE DATE OF THE DETERMINATION OF MINORITY OR THROUGH THE DATE THEY ARE RELEASED FROM MILITARY CONTROL?

B. ENTITLED TO BE PAID ANY UNPAID PAY AND ALLOWANCES WHICH ACCRUED PRIOR TO THE DATE OF DETERMINATION OF MINORITY OR RELEASE FROM MILITARY CONTROL, BUT ARE NOT CLAIMED UNTIL LATER?

C. IF THE ANSWERS TO QUESTIONS A AND B ARE IN THE NEGATIVE, ARE THEY ENTITLED TO RETAIN PAY AND ALLOWANCES RECEIVED PRIOR TO THE DATE THE DETERMINATION WAS MADE THAT THEY WERE MINORS AT TIME OF ENTRANCE ON ACTIVE DUTY?

D. IF THE ANSWERS TO QUESTIONS A AND B ARE ANSWERED IN THE NEGATIVE, MAY THESE PERSONS BE GIVEN A DONATION, NOT EXCEEDING $25.00 UPON RELEASE FROM MILITARY CONTROL?

E. MAY TRANSPORTATION IN KIND BE FURNISHED TO THEM UPON RELEASE FROM MILITARY CONTROL?

F. ARE THEY LEGALLY LIABLE FOR ANY INDEBTEDNESS DUE THE UNITED STATES AT THE TIME OF RELEASE FROM MILITARY CONTROL?

QUESTIONS A THROUGH F ARE SIMILAR TO QUESTIONS 1 THROUGH 6 (RELATING TO PERSONS JUDICIALLY DETERMINED TO BE MENTALLY INCOMPETENT) CONSIDERED IN OUR DECISION TO YOU DATED MAY 4, 1960, 39 COMP. GEN. 742. THE ENLISTMENTS DISCUSSED IN THAT DECISION WERE HELD TO BE VOID. FOR THE REASONS THERE STATED IT IS CONCLUDED THAT THE ANSWERS TO QUESTIONS A THROUGH C, E AND F SHOULD BE THE SAME AS THE ANSWERS TO QUESTIONS 1 THROUGH 3, 5 AND 6 IN THAT DECISION INSOFAR AS THE QUESTIONS HERE INVOLVED RELATE TO PERSONS WHOSE ENLISTMENTS WERE TERMINATED BY THE GOVERNMENT PRIOR TO THEIR 18TH BIRTHDAYS. ACCORDINGLY, QUESTIONS A THROUGH C ARE ANSWERED BY SAYING THAT NO PAY AND ALLOWANCES MAY BE PAID AFTER THE DATE OF DETERMINATION OF MINORITY, BUT THAT PAY AND ALLOWANCES ALREADY RECEIVED MAY BE RETAINED. QUESTIONS E AND F ARE ANSWERED IN THE AFFIRMATIVE. CONCERNING QUESTION D, WHILE IT APPEARS THAT THE LEGAL STATUS OF MINORS AND MENTALLY INCOMPETENT PERSONS IS SIMILAR IN MANY RESPECTS, A GROWN MINOR IS AS AWARE THAT HE IS TELLING THE TRUTH OR A FALSEHOOD AS AN ADULT WHO IS NOT MENTALLY INCOMPETENT. HENCE, IT IS BELIEVED THAT PAYMENT OF A DONATION NOT EXCEEDING $25 UPON RELEASE FROM MILITARY CONTROL SHOULD BE GOVERNED BY THE RULES APPLICABLE TO MINORS WHO ARE NOT MENTALLY INCOMPETENT. ALTHOUGH THE ENLISTMENT OF A MINOR WHO IS UNDER THE STATUTORY AGE OF 17, WITHOUT PARENTAL CONSENT, IS NOT, IN ITSELF, REGARDED ADMINISTRATIVELY AS A FRAUDULENT ENLISTMENT (SEE DEPARTMENT OF DEFENSE DIRECTIVE NO. 1332.14, JANUARY 14, 1959), SUCH ENLISTMENT IS BASED ON A FALSE STATEMENT AND IS VIEWED, IN EFFECT, AS CONSTITUTING A FRAUDULENT ENLISTMENT WITHIN THE MEANING OF THE LAWS RELATING TO PAYMENT OF THE GRATUITY "TO EACH PERSON DISCHARGED FOR FRAUDULENT ENLISTMENT.' 37 COMP. GEN. 406. QUESTION D IS ANSWERED IN THE AFFIRMATIVE AS TO PERSONS WHOSE ENLISTMENTS WERE TERMINATED BY THE GOVERNMENT PRIOR TO THEIR 18TH BIRTHDAYS.

IF A MINORITY ENLISTMENT IS NOT TERMINATED BY THE GOVERNMENT AND THE PERSON CONCERNED IS PERMITTED TO SERVE THE FULL PERIOD OF HIS ENLISTMENT INCLUDING TIME AFTER ATTAINING THE AGE OF 17, HE IS ENTITLED TO PAY AND ALLOWANCES TO THE DATE OF DISCHARGE, INCLUDING TRAVEL ALLOWANCES FROM LAST STATION AS PROVIDED BY LAW.

QUESTION 4.

IS THE OPERATION OF 10 U.S.C. 3816 AND 8816 ( CODIFIED) RESTRICTED TO THE CASE IN WHICH THE MINOR'S PARENTS REQUEST HIS RELEASE OR, NOTWITHSTANDING THE COURT OF MILITARY APPEALS DECISION ( UNITED STATES V. BLANTON--- 9499, 7 USCMA 664, 23 CMR 128, 15 MARCH 1957), MAY THE FOREGOING SECTIONS BE CONSTRUED TO COVER THE CASE OF A MINOR UNDER THE AGE OF 17, REGARDLESS OF WHETHER MEMBER'S PARENTS HAVE REQUESTED RELEASE?

THE PROVISIONS OF 10 U.S.C. 3816 AND 8816 WERE DERIVED FROM THE ACT OF JUNE 28, 1947, 61 STAT. 191, PROVIDING INTER ALIA, A MINIMUM STATUTORY AGE FOR ENLISTMENT OF 17 YEARS, THAT NO PERSON UNDER THE AGE OF 18 YEARS SHALL BE ENLISTED WITHOUT THE CONSENT OF HIS PARENTS OR GUARDIAN, AND THAT THE SECRETARY OF WAR SHALL, UPON THE APPLICATION OF THE PARENTS OR GUARDIAN, DISCHARGE ANY SUCH PERSON WHO ENLISTED WITHOUT THEIR WRITTEN CONSENT, WITH PAY. SINCE THE DISCHARGE IS PREFACED UPON THE APPLICATION OF THE PARENTS OR GUARDIAN OF A REGULAR ENLISTED MEMBER UNDER 18 YEARS OF AGE WHO ENLISTED WITHOUT THE WRITTEN CONSENT OF HIS PARENTS OR GUARDIAN, AND SINCE ONLY PERSONS 17 YEARS OF AGE OF THE GROUP UNDER THE AGE OF 18 ARE AUTHORIZED TO ENLIST IN ANY EVENT, IT IS CONCLUDED THAT THE CITED SECTIONS COVER ONLY 17-YEAR AGE GROUP CASES. IN SUCH CASES THE OPERATION OF THOSE STATUTORY PROVISIONS IS RESTRICTED TO SITUATIONS WHERE THE PARENTS OR GUARDIAN REQUEST THE MINOR'S RELEASE. IN NO EVENT MAY THE DISCHARGE BE ACCOMPLISHED WITH PAY IF THE MINOR IS UNDER 17, REGARDLESS OF WHETHER THE PARENTS OR GUARDIAN REQUESTS SUCH DISCHARGE. QUESTION 4 IS ANSWERED ACCORDINGLY.

QUESTION 5.

MAY UNDERAGE SERVICE BE COUNTED IN COMPUTATION OF BASIC PAY IF THE SERVICE WAS RENDERED:

A. IN AN ENLISTMENT WHICH WAS TERMINATED BECAUSE OF MINORITY?

B. PRIOR TO THE MINIMUM STATUTORY AGE IN A CASE WHERE SERVICE CONTINUED BEYOND THAT AGE AND WAS NOT TERMINATED BECAUSE OF MINORITY?

BASED ON THE ANSWERS TO QUESTIONS 1 AND 2, QUESTIONS 5 A AND B ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 6.

WHERE A MEMBER OF THE ARMY OR AIR FORCE ENLISTS UNDER THE MINIMUM STATUTORY AGE AND IS HONORABLY DISCHARGED WHILE STILL UNDER THAT AGE, CAN SUCH ENLISTMENT BE HELD VOID AND THE PURPORTED DISCHARGE CERTIFICATE RECALLED AND CANCELED?

A. IF THE IMPEDIMENT IS NOT DISCOVERED UNTIL AFTER THE HONORABLE DISCHARGE UNDER OTHER PROVISIONS?

B. IF THE DISCHARGE WAS EFFECTED, UPON DISCOVERY OF THE IMPEDIMENT, BECAUSE OF MINORITY?

IN THE COMMITTEE DISCUSSION IT IS STATED THAT THE ARMY AND AIR FORCE AS A RESULT OF THE BLANTON DECISION HAVE ADOPTED A POLICY OF RELEASING PERSONNEL UNDER THE STATUTORY AGE LIMIT FROM MILITARY CONTROL WITHOUT DISCHARGE CERTIFICATES. THE POLICY IS STATED TO BE BASED UPON THE PREMISE THAT SUCH A RELEASE DOES NOT CONSTITUTE A DISCHARGE SINCE THE ENLISTMENT IS VOID. THE GRANTING OF DISCHARGES IS AN ADMINISTRATIVE FUNCTION AND THE BROAD AND COMPREHENSIVE POWERS WITH WHICH THE SECRETARIES OF THE MILITARY SERVICE DEPARTMENTS ARE VESTED INCLUDE, GENERALLY, THE AUTHORITY TO PRESCRIBE THE CONDITIONS UNDER WHICH DISCHARGES SHALL BE GRANTED AND WHETHER A FORMAL DISCHARGE CERTIFICATE SHALL BE ISSUED.

IT IS OUR VIEW, AS STATED ABOVE, THAT SUCH MINORITY ENLISTMENTS ARE VOID. WHAT PROCEDURES THE SERVICES FOLLOW IN ISSUING (OR CANCELING) DISCHARGE CERTIFICATES IN SUCH CIRCUMSTANCES IS AN ADMINISTRATIVE MATTER. THIS IS SO WHETHER OR NOT THE GOVERNMENT TERMINATES THE ENLISTMENT FOR MINORITY OR ISSUES AN HONORABLE DISCHARGE UNDER OTHER CIRCUMSTANCES. RIGHTS ACCRUE AS A RESULT OF SUCH DISCHARGE.

QUESTIONS 6A AND B ARE ANSWERED ACCORDINGLY.

QUESTION 7.

FOR ANY ADMINISTRATIVE PURPOSE TO WHICH THE ANSWERS TO THE FOREGOING QUESTIONS MAY PROPERLY APPLY IN THE ARMY OR IN THE AIR FORCE, MAY THE BLANTON DECISION BE CONSIDERED TO BE EFFECTIVE AS OF ITS DATE, AND IF SO, SHOULD IT BE APPLIED PROSPECTIVELY FROM 15 MARCH 1957?

THE BLANTON DECISION, IN OUR VIEW, DID NOT EFFECT ANY SUBSTANTIAL CHANGE IN THE LAW WITH RESPECT TO UNDERAGE ENLISTMENTS. WHILE THE DECISION APPEARS TO HAVE RESULTED IN A CHANGE IN ADMINISTRATIVE PRACTICES REGARDING THE ISSUANCE OF DISCHARGES, NO NEW CONCEPTS WERE ADDED BY THAT CASE TO EXISTING LAW WITH RESPECT TO PAY AND ALLOWANCES. PAYMENTS WHICH APPEAR TO HAVE BEEN MADE CONTRARY TO THE VIEWS EXPRESSED HEREIN, WHICH ARE ENCOUNTERED IN THE EXERCISE OF OUR AUDIT RESPONSIBILITIES, WILL BE QUESTIONED. QUESTION 7 IS ANSWERED ACCORDINGLY.