B-160096, MAR 7, 1973, 52 COMP GEN 572

B-160096, MAR 7, 1973, 52 COMP GEN 572

GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - TRAINING LEADING TO A COMMISSION - NAVAL ACADEMY PREPARATORY SCHOOL TRAINING THE VARIABLE REENLISTMENT BONUS PRESCRIBED BY 37 U.S.C. 308(G) AS AN ADDITIONAL INDUCEMENT TO FIRST-TERM ENLISTED PERSONNEL, WHO POSSESS MILITARY SKILLS IN CRITICALLY SHORT SUPPLY, TO REENLIST SO THE SKILLS ARE NOT LOST TO THE SERVICE, IS NOT PAYABLE TO AN ENLISTED MEMBER WHO WAS DISCHARGED AND REENLISTED WHILE UNDERGOING TRAINING IN THE NAVAL ACADEMY PREPARATORY SCHOOL (NAPS) PROGRAM - A PROGRAM WHICH WILL ULTIMATELY QUALIFY HIM FOR ADMISSION TO THE ACADEMY - AS THERE IS NO RELATIONSHIP BETWEEN AN ENLISTED MEMBER'S CRITICAL SKILL AND HIS SUCCESSFUL COMPLETION OF THE NAPS PROGRAM, AND THE FACT THAT A MEMBER WOULD REVERT TO ENLISTED SERVICE IN HIS CRITICAL SKILL IF HE DOES NOT SUCCESSFULLY COMPLETE THE PROGRAM PROVIDES NO BASIS TO PAY HIM A VARIABLE REENLISTMENT BONUS.

TO THE SECRETARY OF DEFENSE, MARCH 7, 1973:

FURTHER REFERENCE IS MADE TO LETTER DATED NOVEMBER 22, 1972, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER A VARIABLE REENLISTMENT BONUS MAY BE PAID UNDER THE CIRCUMSTANCES SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 466.

THERE WAS ENCLOSED A COPY OF COMMITTEE ACTION NO. 466 SETTING FORTH AND DISCUSSING THE FOLLOWING QUESTION:

IS AN ENLISTED MEMBER, HOLDING A CRITICAL SKILL AND OTHERWISE QUALIFIED, ENTITLED TO A VARIABLE REENLISTMENT BONUS IF HE IS DISCHARGED AND REENLISTED WHILE UNDERGOING TRAINING IN A PROGRAM SUCH AS THE NAVAL ACADEMY PREPARATORY SCHOOL?

THE COMMITTEE ACTION DISCUSSION RELATES THAT THE NAVAL ACADEMY PREPARATORY SCHOOL (NAPS) PROVIDES A FULL TIME COURSE OF INSTRUCTION, 9 MONTHS IN LENGTH, IN HIGH SCHOOL AND COLLEGE MATHEMATICS, SCIENCE AND ENGLISH SUBJECTS, WHICH IS DESIGNED TO AID OTHERWISE QUALIFIED ENLISTED MEMBERS WHO HAVE INDICATED A DESIRE TO COMPLETE THE COURSE AND HAVE DEMONSTRATED A POTENTIAL TO ATTEND AND GRADUATE FROM THE NAVAL ACADEMY AND SERVE AS AN OFFICER IN THE NAVAL SERVICE.

THE DISCUSSION CONTINUES BY SAYING THAT SUCCESSFUL COMPLETION OF THE COURSE OF INSTRUCTION AT NAPS DOES NOT IN ITSELF GUARANTEE QUALIFICATION FOR, OR ADMISSION TO, THE ACADEMY. ENLISTED MEMBERS WHO GRADUATE FROM A NAPS PROGRAM MERELY BECOME ELIGIBLE TO COMPETE WITH OTHER ENLISTED APPLICANTS FOR ADMISSION TO THE ACADEMY. THE SECRETARY OF THE NAVY MAY APPOINT ANNUALLY 85 ENLISTED MEMBERS OF THE REGULAR NAVY AND REGULAR MARINE CORPS TO THE ACADEMY AND THESE APPOINTMENTS ARE NORMALLY AWARDED TO GRADUATES OF THE NAVAL ACADEMY PREPARATORY SCHOOL. IT IS STATED FURTHER, THAT SHOULD A STUDENT BE DISENROLLED FROM NAPS FOR ANY REASON, OR SHOULD A GRADUATE NOT BE SELECTED FOR APPOINTMENT AS A MIDSHIPMAN, HE IS REASSIGNED TO THE REGULAR DUTIES OF HIS ENLISTED GRADE AND MILITARY SPECIALTY FOR THE REMAINDER OF HIS TERM OF ENLISTMENT.

THE DISCUSSION CITES AS HAVING POSSIBLE APPLICATION OUR DECISION 48 COMP. GEN. 624(1969), WHEREIN WE DENIED ENTITLEMENT TO A VARIABLE REENLISTMENT BONUS TO AN ENLISTED MEMBER WHO WAS DISCHARGED AND REENLISTED WHILE UNDER TRAINING IN AN "OFFICER CANDIDATE SCHOOL" PROGRAM, WHICH PROGRAM LEADS DIRECTLY TO A COMMISSION, BUT DOUBT IS EXPRESSED AS TO WHETHER THAT DECISION WOULD BAR PAYMENT IN THE PRESENT SITUATION. IN THIS REGARD, THE DISCUSSION POINTS OUT THAT WHILE A MEMBER UNDER TRAINING IN A NAPS PROGRAM IS IN FACT PARTICIPATING IN THE FIRST STEP OF A PROGRAM, THE ULTIMATE OBJECTIVE BEING THE MEMBER'S COMMISSIONING, THE NAPS PROGRAM IS UNLIKE AN OFFICER CANDIDATE SCHOOL PROGRAM, IN THAT SUCCESSFUL COMPLETION OF THE NAPS DOES NOT, IN ITSELF, LEAD DIRECTLY TO A COMMISSION NOR AUTOMATICALLY QUALIFY AN ENLISTED MEMBER FOR APPOINTMENT AS A COMMISSIONED OFFICER.

THE VARIABLE REENLISTMENT BONUS IS AUTHORIZED IN 37 U.S.C. 308(G), WHICH WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 547, AND CURRENTLY PROVIDES IN PERTINENT PART AS FOLLOWS:

(G) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE *** A MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) OF THIS SECTION UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS.***

THE LEGISLATIVE HISTORY OF SECTION 308(G) SHOWS THAT IT WAS ENACTED TO AUTHORIZE THE PAYMENT OF A VARIABLE REENLISTMENT BONUS AS AN ADDITIONAL INDUCEMENT TO FIRST-TERM ENLISTED PERSONNEL, WHO POSSESS MILITARY SKILLS WHICH ARE DEEMED TO BE IN CRITICALLY SHORT SUPPLY, TO REENLIST SO THAT SUCH SKILLS MAY CONTINUE TO BE UTILIZED AND NOT LOST TO THE SERVICE. ONE OF THE CONSIDERATIONS IN AUTHORIZING THIS SUBSTANTIAL BONUS WAS THE HIGH COST TO THE GOVERNMENT OF TRAINING A REPLACEMENT FOR SUCH A MEMBER WHO DOES NOT REENLIST, AN EXPENSE WHICH WOULD BE AVOIDED IF THE MEMBER REENLISTS TO CONTINUE SERVING IN THE CRITICAL RATING.

IN 48 COMP. GEN. 624(1969), WE HELD THAT AN ENLISTED MEMBER, HOLDING A CRITICAL MILITARY SKILL, WHO IS DISCHARGED AND REENLISTED WHILE UNDERGOING TRAINING IN AN OFFICER CANDIDATE SCHOOL PROGRAM IS NOT ENTITLED TO A VARIABLE REENLISTMENT BONUS INCIDENT TO THAT REENLISTMENT SINCE THE MEMBER REENLISTED FOR THE PURPOSE OF CONTINUING IN THAT PROGRAM RATHER THAN FOR THE PURPOSE OF CONTINUING TO SERVE IN HIS CRITICAL SKILL.

IN AN EARLIER DECISION, 47 COMP. GEN. 414(1968), WE CONSIDERED THE CASE OF AN ENLISTED MEMBER OF THE NAVY, ALSO SERVING ON ACTIVE DUTY IN A CRITICAL MILITARY SKILL, WHO WAS SELECTED TO ENTER THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM (NESEP), A COLLEGE TRAINING PROGRAM LEADING TO A BACCALAUREATE DEGREE AND APPOINTMENT AS A COMMISSIONED OFFICER UPON GRADUATION. WE SAID THAT MEMBERS WHO ARE REENLISTED IN ORDER TO MEET THE OBLIGATED SERVICE REQUIREMENTS FOR THAT TRAINING AND NOT FOR THE PURPOSE OF CONTINUING TO SERVE IN THE CRITICAL SKILL FOR WHICH THE BONUS IS INTENDED, ARE NOT ENTITLED TO RECEIVE THE BONUS SINCE THE GOVERNMENT WOULD STILL BE REQUIRED TO BEAR THE EXPENSE OF TRAINING A REPLACEMENT, AN EXPENSE WHICH THE BONUS WAS INTENDED TO ELIMINATE.

IN 49 COMP. GEN. 206(1969), INVOLVING A CASE WHERE AN ENLISTED MEMBER OF THE REGULAR ARMY, POSSESSING A CRITICAL MILITARY SKILL, KNOWING THAT HE HAD BEEN TENTATIVELY APPOINTED A RESERVE OFFICER, WAS DISCHARGED AND REENLISTED IN HIS ENLISTED GRADE PRIOR TO THE NORMAL EXPIRATION OF HIS TERM OF SERVICE FOR THE SOLE PURPOSE OF COLLECTING THE VARIABLE REENLISTMENT BONUS, WE HELD THAT WHERE IT IS OBVIOUS AT THE TIME OF SUCH REENLISTMENT THAT THE GOVERNMENT WOULD NOT RECEIVE THE BENEFITS FOR WHICH THE BONUS WAS INTENDED, NO ENTITLEMENT TO SUCH BONUS EXISTS.

IN CONTRAST TO THE ABOVE, IN 51 COMP. GEN. 3(1971), WE AUTHORIZED PAYMENT OF THE VARIABLE REENLISTMENT BONUS TO A MEMBER OF THE REGULAR MARINE CORPS WHO WAS REENLISTED IN ORDER TO ACQUIRE THE NECESSARY OBLIGATED SERVICE TO ENABLE HIM TO PARTICIPATE IN THE MARINE CORPS ASSOICATE DEGREE COMPLETION PROGRAM (MADCOP). WE SAID THEREIN THAT WHERE A MAJOR COURSE OF STUDY PURSUED IS REASONABLY RELATED TO THE MEMBER'S CRITICAL SKILL AND WHO, UPON COMPLETION OF THOSE STUDIES, WILL RESUME THE DUTIES PERFORMED BY HIM PRIOR TO ENTERING THE PROGRAM, A VARIABLE REENLISTMENT BONUS MAY BE PAID.

THUS, IN CASES WHERE AN ENLISTED MEMBER, DISCHARGED AND REENLISTED WHILE IN A TRAINING PROGRAM, IS NOT BEING REENLISTED FOR THE PURPOSE OF CONTINUING TO SERVE IN HIS CRITICAL SKILL UPON WHICH A VARIABLE REENLISTMENT BONUS IS TO BE BASED, BUT RATHER IS REENLISTED MERELY TO RETAIN A MILITARY STATUS WHICH IS REQUIRED FOR CONTINUED PARTICIPATION IN A TRAINING PROGRAM WHICH IN NO WAY RELATES TO HIS CRITICAL SKILL, PAYMENT OF A VARIABLE REENLISTMENT BONUS IS NOT AUTHORIZED.

IN THE PRESENT CASE, IT IS INDICATED THAT THERE IS NO RELATIONSHIP BETWEEN AN ENLISTED MEMBERS' CRITICAL MILITARY SKILL AND EITHER THE SUCCESSFUL COMPLETION OF A NAPS PROGRAM OR THE DESCRIBED COURSES OF STUDY PURSUED THEREUNDER. IT IS OUR VIEW, THEREFORE, THAT OUR DECISION 48 COMP. GEN. 624(1969) IS CONTROLLING IN THIS MATTER.

HIS SELECTION FOR THE NAPS PROGRAM IS FOR THE PURPOSE OF ULTIMATELY QUALIFYING HIM FOR A COMMISSION. HIS REENLISTMENT IS NOT FOR THE PURPOSE OF SERVING IN HIS CRITICAL SKILL. IN SUCH CIRCUMSTANCES WE ARE OF THE OPINION THAT THE FACT THAT HE WOULD REVERT TO ENLISTED SERVICE IN HIS CRITICAL SKILL IF HE DOES NOT SUCCESSFULLY COMPLETE THE PRESCRIBED COURSES DOES NOT PROVIDE A BASIS TO PAY HIM A VARIABLE REENLISTMENT BONUS. ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.