The minimum strength of a headquarters company as well as of other companies, since July 1, 1921, is such as may have been prescribed pursuant to the provisions of the national defense act as amended June 4, 1920, and 60 per cent of the actual enlisted strength, that strength being not less than that prescribed for Federal recognition, must have attended before the officers qualify for pay for attendance at drills, etc. Decision of February 24, 1922..

The papers received with your letter are returned herewith.

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 service;" 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 (6) is therefore answered in the negative.

It is noted that question (6) 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.



The “ dependent child or children” of Army officers for whom the act of May

18, 1920, 41 Stat., 604, authorizes transportation on permanent change of station, include, in addition to dependent children of the officer's own blood, any legally adopted dependent child or children irrespective of the date of adoption, but the term does not include grandchildren of the officer, 27 Comp. Dec., 579, overruled in part.

Comptroller General McCarl to the Secretary of War, May 15, 19:22:

I have your letter of April 6, 1922, requesting reconsideration of decision of the Comptroller of the Treasury, December 27, 1920, 27 Comp. Dec., 579, on section 12 of the act of May 18, 1920, 41 Stat., 604, where it was held, page 583, with respect to the phrase “dependent child or children,” for whom transportation is authorized on permanent change of station of officers and of certain noncommissioned officers, that:

The term as used in the act includes an unmarried person (the officer's offspring or a child legally adopted by him prior to May 18, 1920), under 18 years of age, or of any age if abnormal or insane. It does not include a stepchild, nor a child (either of his own blood or legally adopted) who is married or has attained the age of 18 years. It includes a grandchild as a dependent child if the parents of the grandchild are dead and the officer maintains the relationship of parent.

It is to be observed that there is no authority to reconsider the ruling of the former Comptroller of the Treasury in so far as payments, claims, and accounts have been made and settled in accordance therewith.

You transmit an opinion of the Acting Judge Advocate General of the Army to the effect that (1) the date fixed in that decision prior to which legal adoption must have occurred is unsupported by the law, and further (2) that if grandchildren are included so also are stepchildren, as the obligation of the grandfather and of the stepfather is because they stand in loco parentis respectively to the grandchild and the stepchild.

I agree that if legally adopted children are included in the law (and they are) the law does not require the fixing of a date prior to which adoption must have taken place, and the requirement of the decision that the adoption shall have been prior to May 18, 1920, will hereafter not be followed.

I can not agree, however, that stepchildren are included in the law. Section 12 seems to have been carefully drawn; its provisions are applicable to the wife and dependent child or children only; and the question is: Who is the dependent child of an officer or noncommissioned officer ?

It is suggested that in determining the question it should be recognized that the statute is “remedial” and that it should have a liberal construction to advance the remedy of the conditions the relief of which was being legislated for. Under this view every statute increasing the emoluments or perquisites of members of the Army would be a remedial statute and entitled to liberal construction.

The statute is not remedial; it grants a right to officers and certain noncommissioned officers to have transported at the expense of the United States on permanent change of station certain specific

7920°—22—Vol. 1— 44

[ocr errors]

ally described persons bearing to such officer or noncommissioned officer the relationship of wife or dependent child..

A dependent child of his own blood is clearly included; as is a legally adopted dependent child subsequent to such adoption and without reference to when the adoption became effective. If an officer be legally liable for the necessaries of a grandchild it nevertheless does not broaden the class of those who are termed children in the enactment. The enactment does not embrace all who are dependent on the officer, but limits its benefits to a certain relationship, and as to children, that relationship does not embrace grandchildren. So much of the decision of the Comptroller of the T'reasury, December 27, 1920, 27 Comp. Dec., 579, as included grandchildren within the benefits of the act will not be hereafter followed.

Your questions are answered accordingly.

PUBLIC UTILITY CONTRACTS. The fact that rates for certain public utilities are fixed by State or municipal

laws or regulations does not authorize the informal execution of contracts therefor, and, in the absence of statutory exceptions, the requirements of

section 3744, Revised Statutes, must be complied with. Comptroller General McCarl to the Secretary of the Interior, May 16, 1922:

I have your letter of May 3, 1922, as follows:

The Reclamation Service of this department, in pursuance of the act of June 17, 1902, 32 Stat., 388, and acts amendatory thereof or supplementary thereto, has occasion to enter into formal contracts with municipalities and publicservice corporations organized under State law whose rates for service rendered are fixed by legislation, either Federal, State, or municipal, or by competent regulation ; for instance, a contract entered into with a telephone company for telephone service.

Your opinion is requested whether a signature to a usual form of application by a person duly authorized on behalf of the United States for such purpose will be sufficient, and not require a formal contract, as required under section 3744 of the Revised Statutes, appropriate reference to said applicatiou being made on vouchers to the schedule of rates or tariffs fixed by said laws or regulations.

Section 3744, Revised Statutes, provides :

It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally, on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof.

That section specifically requires that contracts for the War, Navy, and Interior Departments “shall be reduced to writing and signed by the contracting parties with their names at the end thereof.” As this section is mandatory, having been held to be so by a long line of court decisions, as well as decisions of this office, any other method of contracting would be a violation of its provisions, unless exceptions thereto are made by law, as has been done in some instances with respect to the War and Navy Departments,

« ForrigeFortsett »