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for the convenience of the Government within three months of expiration of enlistment and the date of expiration of enlistment may be counted as service in computing longevity pay of an enlisted man under section 10 of the act of June 10, 1922, 42 Stat., 630.
The provision of section 10, applicable to the question, is:
In lieu of all .permanent additions to pay now authorized for enlisted men of the Navy and Coast Guard, they shall receive, as a permanent addition to their pay, an increase of 10 per centum on the base pay of their rating upon completion of the first four years of enlisted service, and an additional increase of 5 per centum for each four years' service thereafter, the total not to exceed 25 per centum.
This authorizes the counting for longevity of periods of exactly four years of completed service regardless of whether discharged or continued at the expiration date of said four-year periods or whether during the service comprising said four-year periods there has occurred one or more discharges.
The granting of a discharge within three months of expiration of term of enlistment was authorized by the following provision of the act of August 22, 1912, 37 Stat., 331:
That under such regulations as the Secretary of the Navy may prescribe, with the approval of the President, any enlisted man may be discharged at any time within three months before the expiration of his term of enlistment or extended enlistment without prejudice to any right, privilege, or benefit that he would have received, except pay and allowances for the unexpired period not served, or to which he would thereafter become entitled, had he served his full term of enlistment or extended enlistment.
This statute operates to preclude a discharge occurring within a certain prior time from having a different effect than if it, in fact, had occurred at the regular subsequent time as to rights contingent upon the discharge itself occurring, or, in other words, constituted a prior discharge within three months of expiration of term the equivalent of a discharge at the expiration of the term for the purpose of rights contingent upon the discharge itself, and which without the discharge were nonexistent. The statute specifically excepted, however, from its operation “pay and allowances for the unexpired period not served,” thus expressly guarding against said unserved period being counted as constructive service in said enlistment for the purposes of pay and allowances accruing for the time of actual service rendered in it-apart from, and independently of, the discharge itself.
The longevity service now authorized to be counted in an enlistment is for actual service only and is not dependent on the discharge or upon its taking place at the expiration of the four-year period to be counted for said longevity or at any other particular time. It is something received and to which a right exists independently of the date of the occurrence of the discharge, whether before the expiration of the term of the particular enlistment or otherwise. The discharge when it does, in fact, occur confers no added right for longevity, but, upon the other hand, by terminating the service the man is then rendering, the running of the existing right to it stops that of accumulating during said enlistment further actual service to be counted for the purpose.
You are therefore advised that the period intervening between the date of the actual discharge of a man for the convenience of the Government within three months of expiration of his term of enlistment and the date of the expiration of the term of his enlistment may not be counted by an enlisted man as service in the enlistment from which he is thus discharged in computing his longevity pay under section 10 of the act of June 10, 1922. See in this connection 2 Comp. Gen., 162–165.
APACHE, KIOWA, AND COMANCHE FUND, RIGHTS OF HEIRS. The preparation of a final roll of the Apache, Kiowa, and Comanche Indians
for the purpose of segregating and distributing the “ Apache, Kiowa, and Comanche fund,” accumulated under the act of June 6, 1900, 31 Stat., 676, is not a segregation of the "Apache, Kiowa, and Comanche 4 per cent fund" accumulated under the act of June 5, 1906, 34 Stat., 213, and certain later acts; and while the Indians named on such final roll may, while living, file individual applications for their pro rata shares under and subject to the provisions of the act of March 2, 1907, 34 Stat., 1221, as amended by the act of May 18, 1916, 39 Stat., 128, the heirs of such Indians are not entitled to make application for and receive any share of the latter
fund prior to its actual segregation. Comptroller General McCarl to the Secretary of the Interior, March 15, 1923:
I have your letter of February 16, 1923, requesting decision of a matter concerning two Indian tribal funds, (1) the fund carried on the books of the Treasury as the "Apache, Kiowa, and Comanche fund,” accumulated pursuant to the provisions of section 6 of the act of June 6, 1900, 31 Stat., 676, and (2) the fund carried on the books of the Treasury as the "Apache, Kiowa, and Comanche 4 per cent fund,” accumulated pursuant to the provisions of the acts of June 5, 1906, 34 Stat., 213, June 28, 1906, 34 Stat., 550, and March 27, 1908, 35 Stat., 49, a final roll having been prepared pursuant to the terms of the acts of May 25, 1918, 40 Stat., 591, and June 30, 1919, 41 Stat., 9, for segregation and distribution of (1) the "Apache, Kiowa, and Comanche fund," which raises a question as to (2) the “Apache, Kiowa, and Comanche 4 per cent fund,” which question is, in substance, as follows:
Whether the effect of the final roll prepared for the segregation and distribution of (1) the “Apache, Kiowa, and Comanche fund" is such as to create in the Indians thus enrolled a vested right in presenti to their pro rata shares in (2) the unsegregated “Apache, Kiowa, and Comanche 1 per cent fund,” so as to entitle their heirs to make application for and receive such pro rata shares prior to actual segregation vi? the latter fund, or a right in futuro operating
80 as to preclude the heirs of enrolled Indians from receiving such pro rata shares until after the actual segregation for distribution.
Prior to the act of May 25, 1918, 40 Stat., 591, pro rata shares in the tribal funds in question were withdrawn by individual Indians from time to time under the provisions of the act of March 2, 1907, 34 Stat., 1221, as amended by the act of May 18, 1916, 39 Stat., 128, as follows:
That the Secretary of the Interior is hereby authorized, in his discretion, from time to time, to designate any individual Indian belonging to any tribe or tribes whom he may deem to be capable of managing his or her affairs, and he may cause to be apportioned and allotted to any such Indian his or her pro rata share of any tribal or trust funds on deposit in the Treasury of the United States to the credit of the tribe or tribes of which said Indian is a member, and the amount so apportioned and allotted shall be placed to the credit of such Indian upon the books of the Treasury, and the same shall thereupon be subject to the order of such Indian: Provided, That no apportionment or allotment shall be made to any Indian until such Indian has first made an application therefor
That section two of the Act approved March second, nineteen hundred and seven (Thirty-fourth Statutes at Large, page twelve hundred and twenty-one), entitled "An Act providing for the allotment and distribution of Indian tribal funds," be, and the same is hereby amended so as to read as follows:
“That the pro rata share of any Indian who is mentally or physically incapable of managing his or her own affairs may be withdrawn from the Treasury in the discretion of the Secretary of the Interior and expended for the benefit of such Indian under such rules, regulations, and conditions as the said Secretary may prescribe:" Provided, That said funds of any Indian shall not be withdrawn from the Treasury until needed by the Indian and upon his application and when approved by the Secretary of the Interior.
The regulations of the Department of the Interior, Office of Indian Affairs, approved August 2, 1916, and entitled “Regulations for applications for tribal funds under act of March 2, 1907 (34 Stat. L. 1221), as amended by Indian appropriation act approved May 18, 1916 (Pub. No. 80)," provide, page 3, under the heading “ III. In General," as follows:
O. On November 6, 1908, the Secretary of the Interior decided, in effect, that the interest of an Indian in a pro rata share of a tribal fund does not vest in the Indian as inheritable property until after his application has been approved by the Secretary and an order signed by him segregating it from the tribal fund. Applications for shares of funds under this act may be made at any time, but in view of the Secretary's decision such applications should be forwarded to the Indian Office by the agent or superintendent as soon as they are completed and filed with him. Applications from those who are blind, decrepit, etc., must be made special by the agent and forwarded to the Indian Office as soon as possible.
E. In the event of the death of an applicant prior to the approval of his application by the Secretary the share to which he would be entitled, if living, will revert to the tribe. In case of the death of an applicant after approval of his application, and the signing of an order for the segregation of his share, but before payment is made, his share will descend to his legal heirs. Agents will make prompt report of the death of any individual whose application has been submitted, such report to be accompanied by a proper affidavit of heirship in accordance with Circular No. 588, as amended.
The steps necessary in the withdrawal of a pro rata share under the act of March 2, 1907, as amended by the act of May 18, 1916, are (a) the application of the Indian, (b) the approval of the application by the Secretary of the Interior, and (c) the signing of an order by the Secretary of the Interior setting aside the pro rata share of the applicant. The usual manner of accomplishing the matter is as follows:
In accordance with the provisions of the act of Congress approved March 2, 1907 (34 Stat. L., p. 1221), I hereby designate the Indian named in the above application to receive his pro rata share of the [named tribal fund) belonging to said tribe, now on deposit in the Treasury of the United States, available for such apportionment and allotment, with interest to date of settlement; and the said share amounting to approximately (named amount), is hereby apportioned and allotted, and I direct that payment therefor be made as applied for.
Two of the steps, (b) the approval of the application and (c) the setting aside, and allotting of the amount, though usually accomplished by the one certificate, are treated as separate matters as is clearly shown by paragraph “C” of the regulations hereinabove quoted.
The matter is such under the act of March 2, 1907, as amended by the act of May 18, 1916, that if the Indian applicant for his pro rata share of the tribal trust fund dies prior to the approval of the application and the setting aside or allotting of the amount thereof his right lapses and the rights of his heirs to his pro rata share do not attach as they would had the application been approved and the amount set aside and allotted prior to his death. 21 Comp. Dec., 806-807.
It is understood that no question is raised as to the segregation and distribution of the (1) "Apache, Kiowa, and Comanche fund" on the basis of the final roll prepared for the segregation and disposition of that fund, and also that no question is raised as to the finality of the tribe membership, as evidenced by the names registered on such final roll, for all tribal-fund distributions on and subsequent to the date of the approval of such final roll. See in this connection 2 Comp. Gen., 389.
The act of May 25, 1918, 40 Stat., 591, provides in part:
Sec. 28. That the Secretary of the Interior be, and he is hereby, authorized, under such rules and regulations as he may prescribe, to withdraw from the United States Treasury and segregate the common, or community funds of any Indian tribe which are, or may hereafter be, held in trust by the United States, and which are susceptible of segregation, so as to credit an equal share to each and every recognized member of the tribe except those whose pro rata shares have already been withdrawn under existing law, and to deposit the funds so segregated in banks to be selected by him, in the State or States in which the tribe is located, subject to withdrawal for payment to the individual owners or expenditure for their benefit under the regulations governing the use of other individual Indian moneys.
Provided, however, That the 1inds of any tribe shall not be segregated until the final rolls of said tribe are complete;
The act of June 30, 1919, 41 Stat., 9, provides in part:
That the Secretary of the Interior is hereby authorized, wherever in his discretion such action would be for the best interest of the Indians, to cause a final roll to be made of the membership of any Indian tribe; such rolls shall contain the ages and quantum of Indian blood, when approved by the said
Secretary are hereby declared to constitute the legal membership of the re spective tribes for the purpose of segregating the tribal funds as provided in section 28 of the Indian Appropriation Act approved May 25, 1918 (Fortieth Statutes at Large, pages 591 and 592), and shall be conclusive both as to ages and quantum of Indian blood;
As to the unsegregated tribal funds, the construction of the acts of May 25, 1918, and June 30, 1919, by the Interior Department has been that an Indian whose name appears on the final roll may
make individual application for and receive his pro rata share of (2) the "Apache, Kiowa, and Comanche 4 per cent fund,” under and subject to the provisions of the act of March 2, 1907, as amended by the act of May 18, 1916.
The act of March 2, 1907, as amended by the act of May 18, 1916, prior to the acts of May 25, 1918, and June 30, 1919, required first an application by the Indian and a determination, individually, that such Indian was a tribal member entitled to a pro rata share and was in the circumstances stated in the several acts, and then an approval of such application and a setting aside and allotting of such pro rata share. The acts of May 25, 1918, and June 30, 1919, are more extensive in their scope, in that the Secretary of the Interior is “authorized, under such rules and regulations as he may prescribe, to withdraw from the United States Treasury and segregate the common or community funds of any Indian tribe” susceptible of segregation, when the final rolls of any tribe are complete, and he is further authorized to cause a final roll to be made of the membership of any Indian tribe " wherever in his discretion such action would be for the best interest of the Indians." There appears no question but that the final roll once made, and after its approval by the Secretary of the Interior, constitutes the legal membership of the tribe for the segregation of not only the particular tribal fund considered for distribution at the time such final roll is made but for all other tribal funds susceptible of and subsequently segregated for distribution.
The order and time of segregation of any tribal fund is clearly in the discretion of the Secretary of the Interior and the approval of a final roll for, and the distribution pursuant thereto of a designated part of the tribal funds of a particular tribe is not a segregation, setting aside, or allotting of other tribal funds of a particular tribe not contemplated for segregation and distribution. It follows, therefore, that the right of an Indian included on the final roll, as to tribal funds not segregated, is an individual right to apply for his pro rata share of such tribal funds under and subject to the provisions of the act of March 2, 1907, as amended by the act of May 18, 1916. This right is no greater than the right of an applicant under the act of March 2, 1907, as amended by the act of May 18, 1916, prior to the acts of May 25, 1918, and June 30, 1919, which right lapsed if he died before approval of application and setting aside or allotting of the