Recruiting Service of the United States Navy, 1940). Op JAGN 1952/134. 24 December 1952. § 19.1. Generally. The Commandant of the Marine Corps requested authority to discharge for the convenience of the government a marine sergeant who had enlisted in the Marines while on the Army temporary disability retired list without disclosing his Army status. Subsequent to being placed on the temporary disability retired list, he enlisted in the Marine Corps Reserve. He was honorably discharged from the Marine Corps Reserve to enlist in the regular Marine Corps and did enlist in the Marine Corps for a period of six years. At the time of the inquiry he was still being carried on the Army temporary disability retired list. Held: Since the subject enlisted man was not legally in the Marine Corps Reserve, nor subsequently a legal member of the Marine Corps, he need not be given a discharge of any sort. The Commandant of the Marine Corps has authority to cancel his enlistment in the Marine Corps in accordance with par 10332-3 of the Marine Corps Manual, 1949. The enlisted man retained his status as a member of the Regular Army in spite of his status on the Army temporary disability retired list (sec 102(b) of Career Compensation Act of 1949 (63 Stat 804, 37 USC 231); sec 302 of Army Organization Act of 1950 (64 Stat 268, 10 USC 1c); JAGA 1952/8218, 15 Dec 1952; JAGA 1951/3808, 11 June 1951; and other authorities). As there was no evidence that appropriate authorities in the Department of the Army ever concurred in the enlisted man's enlistment in the Marine Corps Reserve or the Marine Corps, he never vacated his Army status and remained a member of the Regular Army (JAG:II:1:LRH:CTC:eab, 14 December 1951, to Commandant, Marine Corps; JAGA 1952/3741, 7 August 1952). His purported enlistment in the Marine Corps Reserve and subsequently in the Marine Corps was therefore contrary to statute and regulation and was accordingly illegal and void. (Citing sec 4 of the Naval Reserve Act of 1938 (52 Stat 1176); par 5452-4 (now 5452-3) of the Marine Corps Manual, 1949; JAG:II:1:LRH:CTC:vdh of 18 December 1951 to Under Secretary of Navy; and other authorities). Op JAGN 1953/180. 31 December 1953. Constructive enlistment by receipt of pay and allowances and performance of duties by one erroneously given a discharge, see ACM 8288, Reid, COURTS-MARTIAL § 49.1. § 19.3. Oath of enlistment. While warrant officers assigned and serving on active duty as adjutants, assistant adjutants, acting adjutants or personnel adjutants may administer the oath of office (JAGA 1952/9728, 29 Dec 1952), they are not authorized to administer the oath of enlistment (JAGA 1951/6727, 15 Nov 1951). With respect to oaths of enlistment the pertinent statute (Act of 5 May 1950, 64 Stat 146, 50 USC 737) prescribes the form of the oath of enlistment and states that such oath "may be taken before any officer." This language has been construed to read "must be taken before a commissioned officer." This construction is consistent with the construction placed upon the language "may be taken before any officer who is authorized either by the laws of the United States, or by the local municipal law, to administer oaths" in sec 1758, Revised Statutes (5 USC 18) with respect to oaths of office in that the word "may" in the latter provision is also construed to mean "must." With respect to the term "officer," it should be noted that it is used in sec 1758, supra, in its nonmilitary sense and includes civil notaries as well as other persons who are authorized by law to administer oaths, as warrant officers when acting as assistant adjutants, acting adjutants, or personnel adjutants, have been specifically authorized to administer oaths for the purpose of military administration (UCMJ, Art 136), by operation of the provisions of sec 1758, Revised Statutes, supra, they are also authorized to administer oaths of office. The Act of 22 May 1950 (64 Stat 187; 10 USC 19) which authorizes commissioned officers, whether or not on active duty, to administer oaths of office is another instance of statutory authority to administer such oaths similar to that contained in UCMJ, Art 136, supra. However, that Act may not be construed as exclusive so as to bar warrant officers now administering oaths of office as such a construction would be repugnant to the provisions of sec 1758, supra, in that it would exclude persons otherwise eligible thereunder. JAGA 1953/1660. 18 February 1953. § 21. Eligibility and Qualifications § 21.9. Aliens; non-citizen American nationals. Four aliens inducted under the provisions of the Universal Military Training and Service Act (62 Stat 607), as amended (50 USC Appx 451), were re-enlisted from AUS to RA for a period of three years due to an administrative oversight in not noting the provisions of SR 615-120-15 under which such aliens were not eligible for enlistment in the Regular Army. Prior to their enlistments, discharges were accomplished under the provisions of AR 615–365. Held that: an enlistment inadvertently made in contravention of statutes or regulations, is not void but merely voidable at the instance of the government. (Citing JAGA 1953/2743, 27 Mar 1953 and cases cited therein.) - in the event of a determination that the enlistments be voided, the aliens must be discharged administratively to terminate their enlistments. (Citing JAGA 1950/4581, 9 Aug 1950.) such aliens may not be restored to their status as inductees in the Army of the United States unless it is determined that their discharges were procured by fraud, since it appears that they were effectively discharged after induction. (Citing JAGA 1952/5898, 4 August 1952; JAGA 1952/2635, 27 March 1952.) JAGA 1953/ 4552, 10 June 1953. § 25. Minors § 25.5. Consent by parent or guardian to enlistment. An enlisted man, who was born on 4 October 1935, had enlisted in the Regular Army on 26 March 1953. In accordance with subpar 3a (4), SR 615-105-1, 6 Jun 1952, requiring written consent of "parents or guardian" to the enlistment of an applicant seventeen years of age, his grandfather executed DD Form 373 (Consent, Declaration of Parent or Legal Guardian). It appeared that both the father and mother of the boy were living. Held: A person standing "in loco parentis" to a minor whose parents are living or who has a legal guardian may not be considered as the minor's "parents or guardian" for the purpose of consenting to his enlistment in the Regular Army under the provisions of the first section of the Act of 28 June 1947 (61 Stat 191), as amended (10 USC 628). Furthermore, the enlisted man in question must be discharged from the military service if his parents properly apply therefor under the provisions of Section II, AR 615-362, 7 Apr 1952, unless further inquiry discloses that his grandfather was his legal guardian at the time of his enlistment. JAGA 1953/5324. 26 June 1953. § 29. Extension of Term of Enlistment or Service; § 29.1. Generally. The permanent enlisted status of enlisted persons accepting appointments as warrant and commissioned officers must be considered as extended for the period they serve under the temporary appointments, although the expired enlistment contract, in the strict sense, is not properly considered as extended. In this connection, 14 USC 365 authorizes extensions of enlistment by voluntary written agreements. 14 USC 367(a) (4) authorizes detention of enlisted men beyond term of enlistment during a period of war or national emergency. This latter section, to the extent that it authorizes involuntary detention beyond term of enlistment during a period of national emergency, is considered suspended by the Act of 27 July 1950, as amended (10 USC 628, note), which empowers the President, until 1 July 1953, to extend enlistments for a limited period of time. (Citing 21 Comp Gen 991; 22 Comp Gen 548.) Op CCCG 1952-8. 14 November 1952. § 29.21. Retention for hospitalization or medical treatment or examination. See Op JAGN 1954/192, PAY AND ALLOWANCES § 83.5. § 31. Time Lost from Enlistment § 31.5. Time spent in confinement. The enlisted member in question, who was initially confined on 15 May 1951, was tried by court-martial, convicted and sentenced on 16 June 1951, to, inter alia, confinement at hard labor for twentyfour months. The convening authority approved the sentence on 25 July 1951. On 30 July 1952 the Court of Military Appeals reversed and ordered a rehearing. On 21 October 1952 the enlisted member was sentenced upon a rehearing to six months' confinement at hard labor, and the sentence was approved and ordered executed on 14 November 1952. The member remained in confinement from 15 May 1951 until 19 September 1952, and a question arose concerning the "time lost" which he had to make good in concluding the term of his enlistment. The Act of 4 June 1920 (41 Stat 809), as amended (10 USC 629), which was formerly AW 107, provides that: "Every soldier . . . who was confined for more than one day under sentence, or while awaiting trial and disposition of his case, if trial results in conviction, shall be liable to serve, after his return to a full duty status, for such period as shall, with the time he may have served prior to such . . . confinement . . amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army reserve." The Uniform Code of Military Justice provides that "all rights, privileges, and property affected by an executed portion of a court-martial sentence which has been set aside or disapproved shall be restored unless a . . rehearing is ordered and such executed portion is included in a sentence imposed upon the rehearing" (Art 75(a)). Further, any period of confinement included in a sentence of a court-martial shall begin to run from the date the sentence is adjudged by the court-martial (UCMJ, Art 57(b)). Held that: because the charges which had been pending against the enlisted member were finally disposed of by conviction, the "trial resulted in a conviction" within the meaning of the Act of 4 Jun 1920, supra, and the entire period during which he was in confinement, subject to the exceptions hereafter noted, falls within the term "time lost" within the meaning of that Act. art 75(a), supra, is construed as requiring that any portion of a sentence adjudged upon a rehearing that has been executed or served is to be credited to the accused, and if any executed or served portion of the original sentence is not included in the approved sentence, adjudged upon the rehearing, the accused must be restored to all rights, privileges, and property affected by that portion of the original executed or served sentence that is not included in the approved sentence adjudged upon the rehearing. (See Legal and Legislative Basis, MCM, 1951, pp 128, 129.) Thus, the member in question cannot be required to make good that portion of time during which he was in confinement from 16 June 1951, the date of his original trial and conviction, to 30 July 1952, the date the rehearing was ordered, that exceeds the six months' sentence adjudged at the rehearing. -in addition, the member is entitled, under the provisions of AR 600-340, 22 May 1951, to be credited with good conduct abatement of his sentence to confinement. Thus, any time which he may have accrued in this manner during the first six months of his confinement subsequent to the first trial proceedings may not be counted as "time lost" under the Act of 4 Jun 1920, supra. (See JAG 220.7191, 13 Sep 1927; Dig. Op JAG 1912-40, sec 250(2); AW 107; JAGA 1948/6550, 8 Sep 1948; CSJAGA 1948/ 8260, 9 Dec 1948; JAGA 1948/8661, 11 Feb 1949.) JAGA 1953/ 2025. 26 March 1953. § 33.1. Generally. § 33. Re-enlistment An enlisted man was discharged from the Regular Army on 18 December 1952, and a Department of Defense form and a special order indicated that the enlisted man was re-enlisted in the Regular Army for a period of three years on 18 December 1952, placing him in a dual status of having completed one enlistment period and having entered into a new enlistment period on the same date. Opinion was requested as to whether the Department of Defense form accomplished at the time of the re-enlistment could be corrected to show the date of re-enlistment as of 19 December 1952, notwithstanding the fact that the oath was actually accomplished on 18 December. The question also arose as to whether the re-enlistment bonus authorized by sec 207, Career Compensation Act of 1949 (63 Stat 811, ML 1949, App C), as amended (37 USC 238), could be paid. The discharge was under the provisions of AR 615-360, 23 Jan 1952, by reason of expiration of term of service, which regulation provides that such a discharge "is effective at 2400 hours on the date of notice of discharge." The Career Compensation Act, supra, provides for payment of a re-enlistment bonus to members of the uniform services who re-enlist "within three months from the date of their discharge or separation" (sec 207). Held: Since the enlisted man was validly enlisted on 18 December such date may not be "corrected" to show an enlistment occurring on the subsequent day. The opinion has consistently been expressed that records may be changed to show true facts, but may not be changed when such records correctly reflect the true facts, as here (CSJAGA 1948/8400, 24 Nov 1948; CSJAGA 1950/1495, 6 March 1950; JAGA 1952/9593, 31 Dec 1952, and cases therein cited). However, the provision of AR 615-360, supra, that the effective date of discharge shall be 2400 hours in cases such as the one here, may be waived, and the discharge of the man in question may be considered as having been effective at the exact time of notice to him on 18 Dec 1952, and thereafter, on the same day, his enlistment became effective at the exact moment he subscribed to the oath for the re-enlistment. Held also: Re-enlistment on the date of discharge is "within three months from the date of discharge" as that term is used in sec 207, Career Compensation Act of 1949, supra, and thus the enlisted man in question is entitled to the re-enlistment bonus. While the general rule is that a period of time, expressed as within a specified time after or from a given day or date, is computed by excluding the given first date or day and including the last day or date (62 CJ 990), such rule applies only in those cases wherein a determination is to be made of the final day upon which an act must be accomplished. In cases wherein consideration has been given to the initial date for action to be taken, the word "within" has been interpreted to mean "not later than" (Storing v. Stustman, 56 ND 531, 218 NW 223; Jensen et al v. Nelson, 236 Iowa 569, 19 NW2d 596; Davies v. Miller, 130 US 284, 32 L ed 932, 9 S Ct 560). While the Career Compensation Act, supra, is of no assistance in the inter |