MAY 15, 1922, 1 COMP. GEN. 668

MAY 15, 1922, 1 COMP. GEN. 668

LONGEVITY PAY - RETIREMENT - ENLISTED MEN OF ARMY CREDIT WILL BE ALLOWED IN COMPUTING LONGEVITY PAY UNDER THE ACT OF JUNE 4, 1920, 41 STAT., 761, OR IN COMPUTING SERVICE FOR RETIREMENT UNDER ACT MARCH 2, 1907, 34 STAT., 1217, FOR ALL PRIOR SERVICE IN THE ARMY UNDER ENLISTMENTS NOT FRAUDULENT IN THEIR INCEPTION, IRRESPECTIVE OF WHETHER TERMINATED BY DESERTION OR DISHONORABLE DISCHARGE. SERVICE UNDER A FRAUDULENT ENLISTMENT COMPLETED WITHOUT KNOWLEDGE OF THE FRAUD UPON THE PART OF THE GOVERNMENT CAN NOT THEREAFTER BE DENOMINATED LAWFUL SERVICE BY ACTION OF ANY EXECUTIVE OFFICER SO AS TO PERMIT CREDIT THEREFOR IN COMPUTING LONGEVITY INCREASE OF PAY UNDER ACT OF JUNE 4, 1920, 41 STAT., 761, OR IN COMPUTING SERVICE FOR RETIREMENT UNDER ACT OF MARCH 2, 1907, 34 STAT., 1217. 1 COMP. GEN., 511, ADHERED TO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MAY 15, 1922:

I HAVE RECEIVED BY YOUR INDORSEMENT OF APRIL 22, 1922, REQUEST FOR DECISION UPON QUESTIONS STATED AS FOLLOWS:

* * * WHETHER OR NOT THERE MAY BE COUNTED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY OF AN ENLISTED MAN UNDER THE ACT OF JUNE 4, 1920:

(A) A PERIOD OF SERVICE TERMINATED BY DESERTION AND NOT AGAIN RESUMED.

(B) A PERIOD OF SERVICE ENTERED BY FRAUDULENT ENLISTMENT, BUT OTHERWISE HONEST AND FAITHFUL, THE FRAUD REMAINING UNKNOWN TO THE GOVERNMENT WHILE THE ENLISTMENT IS CURRENT, BUT THE SERVICE ACCEPTED BY THE GOVERNMENT WHEN THE FRAUDULENT CHARACTER OF THE ENLISTMENT BECOMES KNOWN AT A LATER DATE.

(C) A PERIOD OF SERVICE TERMINATED BY DISHONORABLE DISCHARGE PURSUANT TO SENTENCE OF COURT-MARTIAL.

THE QUESTIONS ARISE IN CONNECTION WITH DECISION OF MARCH 15, 1922, 1 COMP. GEN., 511, IN THE CASE OF GEORGE WRIGHT, EIGHTIETH ORDNANCE COMPANY, AND IN WHICH WAS CONSIDERED A SOLDIER'S RIGHT TO CREDIT BOTH FOR LONGEVITY UNDER THE ACT OF JUNE 4, 1920, 41 STAT., 761, AND FOR RETIREMENT UNDER THE ACT OF MARCH 2, 1907, 34 STAT., 1217, UNDER ENLISTMENTS FRAUDULENT AT THEIR INCEPTION. IT WAS HELD THAT SERVICE UNDER A FRAUDULENT ENLISTMENT TERMINATED BY DISCHARGE ON DISCOVERY BY THE GOVERNMENT OF THE FRAUD OR TERMINATED BY EXPIRATION AND HONORABLE DISCHARGE, THE FRAUD NOT HAVING BEEN DISCOVERED BY THE GOVERNMENT WHILE THE ENLISTMENT WAS CURRENT, WAS NOT LAWFUL SERVICE WHICH MIGHT BE CREDITED FOR LONGEVITY INCREASE OF PAY OR FOR RETIREMENT. IT WAS ALSO HELD THAT THE CASE WAS OTHERWISE IF THE GOVERNMENT, UPON DISCOVERY OF THE FRAUD WHILE THE ENLISTMENT IS CURRENT, ELECTS TO HOLD THE OFFENDER TO THE CONTRACT OF ENLISTMENT.

WHERE THE ENLISTMENT IS NOT FRAUDULENT AT ITS INCEPTION QUESTIONS (A) AND (C) ARE ANSWERED IN THE AFFIRMATIVE. THE REASON OR CAUSE OF TERMINATION OF THE ENLISTMENT DOES NOT AFFECT THE LAWFUL SERVICE THERETOFORE RENDERED. SECTION 4-B OF THE ACT OF JUNE 4, 1920, GIVES THE ENLISTED MAN A RIGHT TO THE LONGEVITY INCREASE OF PAY THEREIN PROVIDED FOR ALL LAWFUL SERVICE; AND THE ACT OF MARCH 2, 1907, GIVES HIM A RIGHT TO COUNT FOR RETIREMENT THE SAME CHARACTER OF SERVICE.

HOWEVER, I CAN NOT CONCUR IN THE VIEW THAT SERVICES SHOULD BE COUNTED WHEN RENDERED UNDER A FRAUDULENT ENLISTMENT WHERE THE FRAUD WAS NOT DISCOVERED BY THE GOVERNMENT WHILE THE ENLISTMENT WAS CURRENT, NOTWITHSTANDING SERVICE THEREUNDER, IN IGNORANCE OF THE FRAUD, WAS DENOMINATED ,HONEST AND FAITHFUL," AND THE ENLISTMENT WAS TERMINATED BY AN HONORABLE DISCHARGE.

IT IS A FACT THAT THE LONGEVITY STATUTE AUTHORIZES THE INCREASE "FOR EACH FIVE YEARS OF ERVICE; " AND THE RETIREMENT STATUTE AUTHORIZES RETIREMENT "WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL," WITH A PROVISO "THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED; " AND NEITHER OF THE STATUTES QUALIFIES OR LIMITS THE TERM "SERVICE" OR "SERVE; " BUT IT DOES NOT FOLLOW THAT FRAUDULENT, I.E., ILLEGAL, SERVICE IS INCLUDED. THE TWENTY-EIGHTH (IN PART), FIFTY- FOURTH, FIFTY-FIFTH, AND SIXTIETH ARTICLES OF WAR, 41 STAT., 792, 800, PROVIDE:

ANY SOLDIER WHO, WITHOUT HAVING FIRST RECEIVED A REGULAR DISCHARGE, AGAIN ENLISTS IN THE ARMY, OR IN THE MILITIA WHEN IN THE SERVICE OF THE UNITED STATES, OR IN THE NAVY OR MARINE CORPS OF THE UNITED STATES, OR IN ANY FOREIGN ARMY, SHALL BE DEEMED TO HAVE DESERTED THE SERVICE OF THE UNITED STATES; AND, WHERE THE ENLISTMENT IS IN ONE OF THE FORCES OF THE UNITED STATES MENTIONED ABOVE, TO HAVE FRAUDULENTLY ENLISTED THEREIN.

ART. 54. FRAUDULENT ENLISTMENT.---ANY PERSON WHO SHALL PROCURE HIMSELF TO BE ENLISTED IN THE MILITARY SERVICE OF THE UNITED STATES BY MEANS OF WILFUL MISREPRESENTATION OR CONCEALMENT AS TO HIS QUALIFICATIONS FOR ENLISTMENT, AND SHALL RECEIVE PAY OR ALLOWANCES UNDER SUCH ENLISTMENT, SHALL BE PUNISHED AS A COURT-MARTIAL MAY DIRECT.

ART. 55. OFFICER MAKING UNLAWFUL ENLISTMENT.--- ANY OFFICER WHO KNOWINGLY ENLISTS OR MUSTERS INTO THE MILITARY SERVICE ANY PERSON WHOSE ENLISTMENT OR MUSTER IN IS PROHIBITED BY LAW, REGULATIONS, OR ORDERS SHALL BE DISMISSED FROM THE SERVICE OR SUFFER SUCH OTHER PUNISHMENT AS A COURT- MARTIAL MAY DIRECT.

ART. 60. ENTERTAINING A DESERTER.--- ANY OFFICER WHO, AFTER HAVING DISCOVERED THAT A SOLDIER IN HIS COMMAND IS A DESERTER FROM THE MILITARY OR NAVAL SERVICE OR FROM THE MARINE CORPS, RETAINS SUCH DESERTER IN HIS COMMAND WITHOUT INFORMING SUPERIOR AUTHORITY OR THE COMMANDER OF THE ORGANIZATION TO WHICH THE DESERTER BELONGS, SHALL BE PUNISHED AS A COURT- MARTIAL MAY DIRECT.

SECTION 1118, REVISED STATUTES, AS AMENDED, PROVIDES:

NO MINOR UNDER THE AGE OF SIXTEEN YEARS, OR INSANE OR INTOXICATED PERSON, NO DESERTER FROM THE MILITARY SERVICE OF THE UNITED STATES, AND NO PERSON WHO HAS BEEN CONVICTED OF A FELONY SHALL BE ENLISTED OR MUSTERED INTO THE MILITARY SERVICE.

IT WILL BE OBSERVED THAT FRAUDULENT ENLISTMENT IS DENOUNCED AS A CRIME PUNISHABLE AS A COURT-MARTIAL MAY DIRECT, AND AN OFFICER WHO KNOWINGLY ENLISTS A PERSON NOT QUALIFIED, OR AFTER DISCOVERY OF A DESERTER IN HIS COMMAND, FAILS TO TAKE THE STEPS DIRECTED, IS SUBJECT TO SEVERE PUNISHMENT.

IT MUST BE APPARENT THAT THE PURPOSE AND INTENT OF THE LAW IS TO DISCOURAGE FRAUDULENT ENLISTMENTS; AND WHETHER THE FRAUD IS DISCOVERED WHILE THE ENLISTMENT IS CURRENT AND THE MAN DISCHARGED BECAUSE OF THE FRAUD, OR IS DISCOVERED AFTER THE ENLISTMENT HAS TERMINATED BY HONORABLE DISCHARGE, IT IS UNLAWFUL SERVICE WHICH THE CONGRESS HAS SOUGHT TO PREVENT BY MOST STRINGENT PENAL STATUTES. IT IS INCONCEIVABLE THAT THE CONGRESS, UNDER STATUTE APPLICABLE TO ,SERVICE" (USED IN ITS ORDINARY AND USUAL SENSE) INTENDED TO RECOGNIZE AND REWARD UNLAWFUL SERVICE. SUCH A CONSTRUCTION WOULD DO VIOLENCE TO THE PLAINLY EXPRESSED POLICY OF CONGRESS WITH RESPECT TO FRAUDULENT ENLISTMENTS.

IT IS THEREFORE CONCLUDED THAT THE SERVICE CONTEMPLATED BY THE LONGEVITY AND THE RETIREMENT STATUTE IS LAWFUL SERVICE--- A SERVICE NOT TAINTED WITH FRAUD IN ITS INCEPTION; AND THAT THOSE STATUTES DO NOT AUTHORIZE THE INCLUSION OF SERVICE RENDERED UNDER A FRAUDULENT ENLISTMENT OTHER THAN AS INDICATED IN DECISION OF MARCH 15, 1922. QUESTION (B) IS THEREFORE ANSWERED IN THE NEGATIVE.

IT IS NOTED THAT QUESTION (B) SUGGESTS THE ACCEPTANCE OF THE UNLAWFUL SERVICE BY THE GOVERNMENT WHEN THE FRAUDULENT CHARACTER OF THE ENLISTMENT BECOMES KNOWN AT A LATER DATE AFTER EXPIRATION OF ENLISTMENT.

IN SO FAR AS ANY QUESTION ARISES WITH RESPECT TO THE FRAUDULENT ENLISTMENT, IT IS MAINLY WITH RESPECT TO PERMITTING FURTHER SERVICE AND PROSPECTIVE ONLY, AND NOT RETROSPECTIVE TO LEGALIZE THE SERVICE SO AS TO GIVE BENEFITS BECAUSE OF THE SERVICE. WHATEVER THERE MAY BE OF CONDONATION OF THE OFFENSE AFTER THE EXPIRATION OF THE ENLISTMENT ENTERED FRAUDULENTLY, AND PERMITTING THE OFFENDER TO AGAIN ENLIST IN THE ARMY, DOES NOT CONSTITUTE AN "ACCEPTANCE" OF THE UNLAWFUL SERVICE SO AS TO CHANGE ITS FRAUDULENT CHARACTER. NO STATUTE IS KNOWN WHICH AUTHORIZES ANY OFFICER OF THE GOVERNMENT TO RETROACTIVELY DENOMINATE THAT LAWFUL WHICH THE LAW ITSELF HAS DECLARED UNLAWFUL. AND SEE 22 OP.ATTY.GEN., 36.