B-19904, OCTOBER 29, 1941, 21 COMP. GEN. 392

B-19904, OCTOBER 29, 1941, 21 COMP. GEN. 392

PAY - ADDITIONAL - OVER 12 MONTHS' SERVICE ENLISTED MEN OF THE REGULAR NAVY, THE MARINE CORPS, AND THE RESERVE AND RETIRED COMPONENTS THEREOF ON ACTIVE DUTY ARE ENTITLED, BY REASON OF THE VARIOUS ASSIMILATION STATUTES, TO THE BENEFITS OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, WHICH AUTHORIZES $10 ADDITIONAL PAY FOR, INTER ALIA, ENLISTED MEN OF THE REGULAR ARMY FOR EACH MONTH OF SERVICE IN EXCESS OF 12. ENLISTED MEN OF THE NAVAL OR MARINE CORPS RESERVE MUST HAVE HAD 12 MONTHS OF ACTIVE SERVICE, OTHER THAN TRAINING DUTY AS RESERVISTS, SUBSEQUENT TO AUGUST 27, 1940, UNDER STATUTORY PROVISIONS COMPARABLE TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, BEFORE THEY ARE ENTITLED TO THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 FOR EACH MONTH OF SERVICE IN EXCESS OF 12. MEMBERS OF THE FLEET RESERVE MUST HAVE HAD 12 MONTHS OF ACTIVE SERVICE SUBSEQUENT TO AUGUST 27, 1940, UNDER STATUTORY PROVISIONS COMPARABLE TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940--- AS DISTINGUISHED FROM SERVICE IN THE REGULAR NAVY PRIOR TO THEIR TRANSFER TO THE SAID RESERVE--- BEFORE THEY ARE ENTITLED TO THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 FOR EACH MONTH OF SERVICE IN EXCESS OF 12. RETIRED ENLISTED MEN OF THE REGULAR NAVY ARE MEMBERS OF THE REGULAR NAVY, AND WHEN RECALLED TO ACTIVE DUTY MAY COUNT THEIR SERVICE PRIOR TO AUGUST 19, 1941, IN DETERMINING THE DATE ON WHICH THEY ARE ENTITLED TO THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF AUGUST 18, 1941, FOR EACH MONTH OF SERVICE IN EXCESS OF 12. IN DETERMINING WHETHER AN ENLISTED MAN OF THE REGULAR NAVY OR MARINE CORPS HAS HAD 12 MONTHS' SERVICE WITHIN THE MEANING OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, AUTHORIZING $10 ADDITIONAL PAY FOR EACH MONTH OF SERVICE IN EXCESS OF 12, THERE MAY BE COUNTED NOT ONLY SERVICE IN HIS CURRENT ENLISTMENT BUT, ALSO, SERVICE IN A PRIOR ENLISTMENT. AFTER AN ENLISTED MAN ONCE HAS BECOME ENTITLED TO THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 FOR EACH MONTH OF SERVICE IN EXCESS OF 12, HIS RIGHT TO SUCH PAY CONTINUES DURING THE PERIOD SPECIFIED IN THE STATUTE WITHOUT REGARD TO WHETHER HIS SERVICE DURING SUCH PERIOD IS PERFORMED UNDER MORE THAN ONE ENLISTMENT. AN ENLISTED MAN OF THE REGULAR NAVY MAY COUNT PRIOR ACTIVE SERVICE IN THE NAVAL RESERVE IN DETERMINING WHETHER HE HAS HAD 12 MONTHS' SERVICE WITHIN THE MEANING OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, AUTHORIZING $10 ADDITIONAL PAY FOR EACH MONTH OF SERVICE IN EXCESS OF 12. TIME ABSENT IN A NONPAY STATUS MAY NOT BE COUNTED IN DETERMINING WHETHER ENLISTED MEN OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF ON ACTIVE DUTY HAVE HAD 12 MONTHS' SERVICE WITHIN THE MEANING OF SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, AUTHORIZING $10 ADDITIONAL PAY FOR EACH MONTH OF SERVICE IN EXCESS OF 12. THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 FOR EACH MONTH OF SERVICE IN EXCESS OF 12 MAY BE PRORATED FOR A FRACTION OF A MONTH'S SERVICE. SINCE THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 FOR EACH MONTH OF SERVICE IN EXCESS OF 12 IS, BY THE TERMS OF THE STATUTE, PAYABLE "IN ADDITION TO THE AMOUNTS OTHERWISE PAYABLE," IT SHOULD NOT BE ADDED TO THE BASE PAY FOR THE PURPOSE OF COMPUTING LONGEVITY PAY, AVIATION PAY, OR ONE-FOURTH ADDITIONAL PAY UNDER SECTION 1422, REVISED STATUTES, FOR DETENTION AFTER EXPIRATION OF ENLISTMENT. IN THE CASE OF A GENERAL COURT-MARTIAL PRISONER WHOSE PAY IS FORFEITED UNDER THE TERMS OF HIS SENTENCE, THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 FOR EACH MONTH OF SERVICE IN EXCESS OF 12 SHOULD NOT BE CREDITED. SINCE THE $10 ADDITIONAL PAY AUTHORIZED BY SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941, APPROVED AUGUST 18, 1941, TO BE PAID TO ENLISTED MEN OF THE REGULAR ARMY IS, BY THE TERMS OF THE STATUTE, PAYABLE FOR EACH MONTH OF MILITARY SERVICE IN EXCESS OF 12 RENDERED "AFTER THE DATE OF ENACTMENT" OF SAID STATUTE, THE STATUTE IS ALSO EFFECTIVE ONLY ON AND AFTER AUGUST 19, 1941, WITH RESPECT TO PERSONNEL OF THE REGULAR NAVY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, OCTOBER 29, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 4, 1941, AS FOLLOWS:

IT IS REQUESTED THAT A DECISION BE RENDERED AS TO WHETHER ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS AND THE RESERVE AND RETIRED COMPONENTS THEREOF ON ACTIVE DUTY ARE ENTITLED TO THE BENEFITS OF SECTION 8 OF THE ACT APPROVED AUGUST 18, 1941 ( PUBLIC LAW 213, 77TH CONGRESS), WHICH PROVIDES AS FOLLOWS:

"/A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES OF THE UNITED STATES FOR ACTIVE TRAINING AND SERVICE, UNDER SECTION 3 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 SHALL, IN ADDITION TO THE AMOUNTS OTHERWISE PAYABLE TO SUCH PERSON WITH RESPECT TO SUCH TRAINING AND SERVICE, BE ENTITLED TO RECEIVE THE SUM OF $10 FOR EACH MONTH OF SUCH TRAINING AND SERVICE IN EXCESS OF TWELVE. THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY (1) TO ANY ENLISTED PERSONNEL OF THE NATIONAL GUARD OF THE UNITED STATES OR OF ANY OTHER RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES ORDERED INTO THE ACTIVE MILITARY SERVICE UNDER THE AUTHORITY OF PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940, OR SECTION 37A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, FOR ANY SUCH SERVICE SO RENDERED BY ANY SUCH PERSONNEL IN EXCESS OF TWELVE MONTHS, AND (2) TO ANY ENLISTED PERSONNEL OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER THE DATE OF ENACTMENT OF THIS JOINT RESOLUTION, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS TWELVE MONTHS.

"/B) THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE ONLY DURING THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941.'

IF THE ABOVE PROVISION OF LAW IS HELD TO BE APPLICABLE TO THE NAVY AND MARINE CORPS, DECISION IS ALSO REQUESTED ON THE FOLLOWING QUESTIONS:

(A) IN THE CASE OF MEMBERS OF THE NAVAL OR MARINE CORPS RESERVE, EXCLUSIVE OF FLEET RESERVISTS, WILL INACTIVE DUTY OR ONLY ACTIVE DUTY BE INCLUDED IN DETERMINING THE DATE ON WHICH SUCH MEN COMPLETE THE 12 MONTHS' SERVICE?

(B) IN THE CASE OF MEMBERS OF THE NAVAL OR MARINE CORPS RESERVE, EXCLUSIVE OF FLEET RESERVISTS, WILL ACTIVE DUTY FOR TRAINING BE INCLUDED IN DETERMINING THE DATE ON WHICH SUCH MEN COMPLETE THE 12 MONTHS' SERVICE?

(C) ARE MEMBERS OF THE FLEET RESERVE AND RETIRED ENLISTED MEN ENTITLED TO COUNT SERVICE PRIOR TO TRANSFER TO THE FLEET RESERVE, OR ARE THEY REQUIRED TO SERVE 12 MONTHS' ACTIVE DUTY SUBSEQUENT TO THE DATE OF RECALL TO ACTIVE DUTY?

(D) IN THE CASE OF MEMBERS OF THE NAVAL OR MARINE CORPS RESERVE, IN DETERMINING THE 12 MONTHS' SERVICE, MAY ACTIVE DUTY PERFORMED PRIOR TO AUGUST 27, 1940, BE INCLUDED?

(E) IN DETERMINING THE 12 MONTHS' SERVICE OF ENLISTED MEN OF THE REGULAR NAVY OR MARINE CORPS, DOES "SERVICE" AS USED IN THE LAW APPLY ONLY TO CURRENT ENLISTMENT OR DOES IT INCLUDE SERVICE IN PRIOR ENLISTMENTS?

(F) AFTER ENLISTED MEN HAVE BECOME ENTITLED TO THE $10.00 ADDITIONAL PAY DOES THEIR RIGHT THERETO CONTINUE UPON DISCHARGE AND REENLISTMENT?

(G) MAY MEN WITH PRIOR ACTIVE SERVICE IN THE NAVAL RESERVE WHO ENLIST IN THE REGULAR NAVY INCLUDE SUCH PRIOR SERVICE IN DETERMINING THE DATE ON WHICH THEY COMPLETE THE 12 MONTHS' SERVICE?

(H) SHOULD TIME ABSENT IN A NONPAY STATUS BE DEDUCTED IN DETERMINING THE DATE ON WHICH ENLISTED MEN OF THE NAVY AND MARINE CORPS, AND THE RESERVE COMPONENTS THEREOF ON ACTIVE DUTY, COMPLETE THE INITIAL 12 MONTHS' SERVICE?

(I) IS THE LAW TO BE INTERPRETED LITERALLY SO AS TO ENTITLE AN ENLISTED MAN TO CREDIT OF $10.00 ONLY AFTER COMPLETION OF A FULL MONTH'S SERVICE IN EXCESS OF 12 MONTHS OR SHOULD THE LAW BE CONSTRUED TO AUTHORIZE A CREDIT AT THE RATE OF $10.00 PER MONTH, AND BE PRORATED FOR A FRACTIONAL PART OF A MONTH?

(J) IS THE $10.00 PER MONTH INCREASE CONSIDERED A FLAT INCREASE OR SHOULD IT BE ADDED TO THE BASE PAY AND INCLUDED IN COMPUTING LONGEVITY AND AVIATION INCREASES?

(K) IS THE $10.00 PER MONTH INCREASE INCLUDED IN COMPUTING ONE FOURTH ADDITIONAL PAY UNDER SECTION 1422 REVISED STATUTES?

(L) IN THE CASE OF GENERAL COURT-MARTIAL PRISONERS, WHOSE PAY IS FORFEITED UNDER THE TERMS OF THE SENTENCE, SHOULD THE $10.00 INCREASE BE CREDITED?

(M) ARE ENLISTED MEN OF THE REGULAR NAVY WHO COMPLETE 12 MONTHS' SERVICE PRIOR TO AUGUST 18, 1941, ENTITLED TO AN INCREASE OF $10.00 PER MONTH FROM AUGUST 18, 1941, OR AUGUST 19, 1941?

(N) IN VIEW OF THE WORDING OF PARAGRAPH (B) OF SECTION 8 OF PUBLIC LAW 213 APPROVED AUGUST 18, 1941, DOES PARAGRAPH (A) THEREOF BECOME INOPERATIVE IN CASE OF CHANGE FROM AN UNLIMITED EMERGENCY TO A LIMITED EMERGENCY OR WAR?

SECTION 12 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (APPROVED SEPTEMBER 16, 1940), 54 STAT. 895, FIXED NEW RATES OF PAY FOR ENLISTED MEN OF THE ARMY AND MARINE CORPS AND THE LAST SENTENCE THEREOF PROVIDES:

* * * ENLISTED MEN OF THE NAVY SHALL BE ENTITLED TO RECEIVE AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN SIMILAR GRADES IN THE ARMY AND MARINE CORPS.

SECTION 1612 OF THE REVISED STATUTES (34 U.S.C.A. 971) PROVIDES:

THE OFFICERS OF THE MARINE CORPS SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES, AND THE ENLISTED MEN SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND BOUNTY FOR REENLISTING, AS ARE OR MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE OFFICERS AND ENLISTED MEN OF LIKE GRADES IN THE INFANTRY OF THE ARMY.

IT HAS LONG BEEN HELD THAT THE PAY AND ALLOWANCES OF ENLISTED MEN OF THE MARINE CORPS, WHERE NOT OTHERWISE SPECIFICALLY PROVIDED FOR, ARE THE SAME AS THOSE PROVIDED FOR LIKE GRADES IN THE INFANTRY OF THE ARMY. REID V. UNITED STATES, 18 CT.1CLS. 625; BRISTOW V. UNITED STATES, 47 ID. 46; 4 COMP. DEC. 26; 27 ID. 550; 1 COMP. GEN. 335; 6 ID. 197.

SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 (APPROVED AUGUST 18, 1941), 55 STAT. 627, QUOTED IN YOUR LETTER, AUTHORIZES PAYMENT, DURING THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941, IN ADDITION TO AMOUNTS OTHERWISE PAYABLE, OF $10 PER MONTH, INTER ALIA, TO ANY ENLISTED PERSONNEL OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER AUGUST 18, 1941, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS 12 MONTHS. WHILE THIS ADDITIONAL PAYMENT WAS REFERRED TO IN THE CONGRESSIONAL DEBATES ON THE SERVICE EXTENSION ACT OF 1941 IN VARIOUS TERMS SUCH AS BONUS, BOUNTY, PAY, ETC., IT ACCRUES PERIODICALLY TO THOSE WITHIN THE TERMS OF THE ENACTMENT AND FOR THE PURPOSES OF THE PROVISIONS OF LAW LAST ABOVE QUOTED IS AN ITEM OF THE PAY OF ENLISTED MEN OF THE ARMY AND THEREFORE ACCRUES ALSO TO ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS.

SECTION 1 OF THE NAVAL RESERVE ACT OF 1938 (APPROVED JUNE 25, 1938), 52 STAT. 1175, CREATED AND ESTABLISHED AS A COMPONENT PART OF THE UNITED STATES NAVY A NAVAL RESERVE. SECTION 2 OF THE SAME ACT "CREATED AND ESTABLISHED AS A COMPONENT PART OF THE UNITED STATES MARINE CORPS, A MARINE CORPS RESERVE UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT SAID PROVISIONS TO THE MARINE CORPS) AS THOSE CONTAINED IN THIS ACT.' SECTION 7 OF THE ACT (52 STAT. 1176) PROVIDES THAT---

* * * ENLISTED MEN OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST, OR WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY * * * ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE * * *.

THE ACT OF AUGUST 29, 1916, 39 STAT. 591 (34 U.S.C.A. 433), PROVIDES:

THE SECRETARY OF THE NAVY IS AUTHORIZED IN TIME OF WAR OR WHEN A NATIONAL EMERGENCY EXISTS TO CALL ANY ENLISTED MAN ON THE RETIRED LIST INTO ACTIVE SERVICE FOR SUCH DUTY AS HE MAY BE ABLE TO PERFORM. WHILE SO EMPLOYED SUCH ENLISTED MEN SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WERE RECEIVING WHEN PLACED ON THE RETIRED LIST.

SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632 (37 U.S.C.A. 27), PROVIDES, IN PART, THAT---

* * * RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, * * * AND RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.

IN VIEW OF THE STATUTES CITED ABOVE, YOUR FIRST AND BASIC QUESTION IS ANSWERED IN THE AFFIRMATIVE. ACCORDINGLY YOUR QUESTION DESIGNATED (A) TO (N), INCLUSIVE, WILL BE CONSIDERED IN ORDER HEREINAFTER.

QUESTIONS (A) AND (B)

PARAPHRASING THOSE TERMS OF THE STATUTE WHICH ARE PARTICULARLY PERTINENT TO THESE QUESTIONS, THE LAW PROVIDES THAT EACH MEMBER OF A RESERVE COMPONENT ORDERED INTO ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 858, OR APPROPRIATE PROVISIONS OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, IS ENTITLED TO RECEIVE THE SUM OF $10 FOR EACH MONTH OF SUCH SERVICE IN EXCESS OF 12 MONTHS. CLEARLY, IT WAS NOT INTENDED BY THE STATUTE THAT EITHER INACTIVE SERVICE AS A MEMBER OF A RESERVE COMPONENT OR MERE TRAINING DUTY AS A RESERVIST WOULD BE INCLUDED IN COMPUTING THE 12 MONTHS' SERVICE WHICH AN ENLISTED MAN MUST HAVE HAD BEFORE BEING ENTITLED TO THE ADDITIONAL PAYMENT. THE STATUTE CONTEMPLATES THAT AN ENLISTED MAN OF A RESERVE COMPONENT SHALL HAVE HAD 12 MONTHS OF ACTIVE MILITARY SERVICE, OTHER THAN TRAINING DUTY AS A RESERVIST, SUBSEQUENT TO AUGUST 27, 1940, UNDER STATUTORY PROVISIONS COMPARABLE TO PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 858, BEFORE HE IS ENTITLED TO THE ADDITIONAL PAYMENT OF $10 MONTHLY.

QUESTIONS (A) AND (B) ARE ANSWERED ACCORDINGLY.

QUESTION (C)

ALL ENLISTED MEMBERS OF THE FLEET RESERVE HAD MORE THAN 1 YEAR'S SERVICE IN THE REGULAR NAVY ( ARTICLE H-9202, BUREAU OF NAVIGATION MANUAL) PRIOR TO THEIR ASSIGNMENT OR TRANSFER TO THE FLEET RESERVE, BUT IT IS NOT SUCH SERVICE THAT IS CONTEMPLATED BY THE PROVISION OF SECTION 8 (A) OF THE SERVICE EXTENSION ACT OF 1941, 55 STAT. 627, WHICH REQUIRES 12 MONTHS' SERVICE OF AN ENLISTED RESERVIST BEFORE HE IS ENTITLED TO THE MONTHLY PAYMENT OF $10. THE STATUTE CONTEMPLATES 12 MONTHS' ACTIVE MILITARY SERVICE BY A RESERVIST SUBSEQUENT TO AUGUST 27, 1940, UNDER STATUTES COMPARABLE TO PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, I.E., THOSE WHICH PERTAIN TO ORDERING RESERVISTS TO ACTIVE DUTY, AND THAT AN ENLISTED RESERVIST IS ENTITLED TO ADDITIONAL PAYMENT AT THE RATE OF $10 PER MONTH ONLY FOR PERIODS FOLLOWING 12 MONTHS' ACTIVE MILITARY SERVICE UNDER SUCH STATUTORY PROVISIONS.

AS TO RETIRED ENLISTED MEN OF THE REGULAR NAVY, THEY ARE MEMBERS OF THE REGULAR NAVY (AS RETIRED ENLISTED MEN OF THE REGULAR ARMY ARE MEMBERS OF THE REGULAR ARMY) AND AS SUCH ARE ENTITLED TO COUNT THEIR SERVICE PRIOR TO AUGUST 19, 1941, FOR THE PURPOSE OF THE ADDITIONAL PAYMENT AUTHORIZED BY THE CITED ACT.

QUESTION (C) IS ANSWERED ACCORDINGLY.

QUESTION (D)

AS THE ASSIMILATION IS TO PAY PROVIDED FOR THE ARMY, AND AS ENLISTED MEMBERS OF THE NATIONAL GUARD OR ENLISTED MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY ORDERED INTO THE SERVICE OF THE UNITED STATES UNDER THE TERMS OF PUBLIC RESOLUTION 96, OF AUGUST 27, 1940, ARE INCLUDED, ONLY SERVICE AFTER SUCH DATE MAY BE COUNTED BY THEM. IT SEEMS OBVIOUS THAT ENLISTED MEMBERS OF THE NAVAL OR MARINE CORPS RESERVE MAY NOT COUNT BY ASSIMILATION ACTIVE SERVICE PRIOR TO AUGUST 27, 1940, WHICH ENLISTED MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY MAY NOT COUNT. IT IS ONLY ACTIVE SERVICE AFTER AUGUST 27, 1940, THAT MAY BE COUNTED BY ENLISTED MEMBERS OF THE NAVAL OR MARINE CORPS RESERVE FOR THE PURPOSE OF THIS ADDITIONAL PAYMENT.

QUESTION (E)

TO PARAPHRASE THE STATUTE IN THIS CONNECTION, IT PROVIDES THAT EACH ENLISTED MEMBER OF THE REGULAR ARMY IS ENTITLED TO $10 PER MONTH, IN ADDITION TO AMOUNTS OTHERWISE PAYABLE, FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER AUGUST 18, 1941, AND AFTER HIS TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS 12 MONTHS. THE DISTINCTION BETWEEN THIS PROVISION FOR MEMBERS OF THE REGULAR ARMY AND THE PROVISION FOR THE RESERVE COMPONENTS OF THE ARMY IS APPARENT. THE PROVISION RESPECTING PERSONNEL ORDERED INTO ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, ETC., REFERS TO "ANY SUCH SERVICE SO RENDERED BY ANY SUCH PERSONNEL IN EXCESS OF 12 MONTHS," WHILE THE PROVISION REGARDING THE ENLISTED PERSONNEL OF THE REGULAR ARMY REFERS TO SERVICE RENDERED AFTER AUGUST 18, 1941, AND AFTER THE INDIVIDUAL'S TOTAL MILITARY SERVICE (RENDERED BEFORE OR AFTER SUCH DATE) EXCEEDS 12 MONTHS.

ACCORDINGLY, IN DETERMINING WHETHER AN ENLISTED MAN OF THE REGULAR NAVY OR MARINE CORPS HAS HAD 12 MONTHS' SERVICE WITHIN THE MEANING OF SECTION 8 (A) OF THE SERVICE EXTENSION ACT OF 1941, SERVICE IN A PRIOR ENLISTMENT MAY BE COUNTED. QUESTION (F)

SECTION 8 (B) OF THE SERVICE EXTENSION ACT OF 1941, 55 STAT. 628, PROVIDES AS FOLLOWS:

THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE ONLY DURING THE PERIOD OF THE UNLIMITED EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941.

AFTER AN ENLISTED MAN ONCE HAS BECOME ENTITLED TO THE INCREASE OF PAY AUTHORIZED UNDER SECTION 8 (A) HE IS ENTITLED TO CONTINUE TO RECEIVE THE INCREASE DURING THE PERIOD SPECIFIED IN THE STATUTE, SO LONG AS OTHER CONDITIONS REMAIN THE SAME, WITHOUT REGARD TO THE QUESTION WHETHER HIS SERVICE DURING SUCH PERIOD IS PERFORMED UNDER MORE THAN ONE ENLISTMENT. QUESTION (F) IS ANSWERED ACCORDINGLY.

QUESTION (G)

THE DISCUSSION IN CONNECTION WITH QUESTION (E), SUPRA, IS PERTINENT TO A CONSIDERATION OF THIS QUESTION. THE TOTAL NAVAL SERVICE OF AN ENLISTED MAN OF THE REGULAR NAVY MUST BE HELD TO INCLUDE PRIOR ACTIVE SERVICE AS A NAVAL RESERVIST. IN THIS CONNECTION SEE 2 COMP. GEN. 280, HOLDING THAT AN ENLISTED MAN OF THE REGULAR NAVY WAS ENTITLED TO CREDIT FOR ACTIVE DUTY SERVICE (OTHER THAN TRAINING) IN AN ENLISTED RATING AS A MEMBER OF THE NAVAL RESERVE FORCE IN COMPUTING HIS SERVICE FOR LONGEVITY PAY PURPOSES UNDER SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630.

ACCORDINGLY, QUESTION (G) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION (H)

IN A DECISION TO THE SECRETARY OF WAR, DATED OCTOBER 28, 1940, 20 COMP. GEN. 218, AT PAGE 223, IT WAS STATED THAT---

"SERVICE" HERETOFORE HAS BEEN CONSTRUED AS NOT INCLUDING TIME WHEN AN ENLISTED MAN IS ABSENT WITHOUT LEAVE, OR ABSENT BECAUSE OF DISEASE DUE TO HIS OWN MISCONDUCT AND WHEN CONFINED UNDER CERTAIN CIRCUMSTANCES. SEE 2 COMP. GEN. 162. ACCORDINGLY, THE 4 MONTHS' SERVICE NECESSARILY INCLUDES ONLY SERVICE THAT MAY BE COUNTED FOR PAY AND FOR COMPLETION OF ENLISTMENT. SEE B-12506 ( OCTOBER 3, 1940).

BASED UPON THE SAME REASONING YOUR QUESTION (H) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION (I)

IT IS SUFFICIENTLY APPARENT THAT THE PAYMENT IS TO BE MADE AT THE RATE OF $10 FOR EACH MONTH FOR WHICH IT IS OTHERWISE PAYABLE AND THAT THE MONTHLY PAYMENT AUTHORIZED BY SECTION 8 (A) MAY BE PRORATED FOR A FRACTION OF A MONTH'S SERVICE.

QUESTION (J)

THE STATUTE PROVIDES THAT AN ENLISTED MAN OTHERWISE QUALIFIED IN ACCORDANCE WITH ITS CONDITIONS SHALL, IN ADDITION TO THE AMOUNTS OTHERWISE PAYABLE TO SUCH PERSON WITH RESPECT TO SUCH TRAINING AND SERVICE, BE ENTITLED TO RECEIVE THE SUM OF $10 FOR EACH MONTH OF SUCH TRAINING AND SERVICE IN EXCESS OF 12. THIS LANGUAGE IS PLAIN THAT THE $10 IS SIMPLY TO BE ADDED TO AMOUNTS OTHERWISE PAYABLE TO AN ENLISTED MAN AFTER THE COMPUTATION OF SUCH OTHER AMOUNTS IS COMPLETED, AND, THAT IT SHOULD NOT BE ADDED TO THE BASE PAY FOR THE PURPOSE OF COMPUTING LONGEVITY OR AVIATION PAY.

QUESTION (K)

NO, FOR THE REASON STATED IN ANSWER TO QUESTION (J).

QUESTION (L)

IN VIEW OF THE ANSWER TO QUESTION (H) AND THE FACT THAT THE FORFEITURES ARE UNDERSTOOD TO BE TOTAL WITH THE EXCEPTION OF AMOUNTS NECESSARY FOR PAYMENT FOR CIVILIAN CLOTHES, TRANSPORTATION, AND A LIMITED PAYMENT OF MONEY, THE CASE IS NOT WITHIN THE STATUTE.

QUESTION (M)

THE GENERAL RULE IS THAT A STATUTE IS EFFECTIVE FROM AND AFTER ITS DATE UNLESS IT IS CLEAR FROM THE LANGUAGE OF THE STATUTE THAT A DIFFERENT EFFECTIVE DATE WAS INTENDED. 13 COMP. GEN. 265. HOWEVER, SECTION 8 (A) OF THE SERVICE EXTENSION ACT OF 1941, PROVIDES THAT THE MONTHLY INCREASE SHALL BE PAID TO ANY ENLISTED MAN OF THE REGULAR ARMY FOR EACH MONTH OF MILITARY SERVICE RENDERED BY HIM AFTER THE DATE OF ENACTMENT OF THE SAID ACT. THIS LANGUAGE REQUIRES A HOLDING THAT WITH RESPECT TO PERSONNEL OF THE REGULAR NAVY THE ACT IS EFFECTIVE ON AND AFTER AUGUST 19, 1941. SEE 7 COMP. GEN. 793, 794.

QUESTION (N)

THIS QUESTION IS BASED UPON CONDITIONS WHICH MAY NOT ARISE AND IT IS BELIEVED PROPER THAT NO DECISION WITH RESPECT THERETO SHOULD BE RENDERED AT THIS TIME.