B-174151 L/M, JUN 14, 1972

B-174151 L/M, JUN 14, 1972

PRECIS-UNAVAILABLE

LIEUTENANT R. A. NYE, SC, USNR, DEPARTMENT OF THE NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 14, 1971, FILE REFERENCE 7220 S&FD:710:JHP, FORWARDED TO THIS OFFICE BY FIRST ENDORSEMENT OF THE DIRECTOR, NAVY MILITARY PAY SYSTEM REQUESTING AN ADVANCE DECISION AS TO WHETHER EN3 AMELIO (N) DUCLOS, USN, 919 80 39, IS ELIGIBLE FOR A VARIABLE REENLISTMENT BONUS AND, IF HE IS ELIGIBLE FOR SUCH BONUS, THE CORRECT MANNER OF COMPUTING IT. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-1133 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ALSO, WE HAVE RECEIVED FROM THE NAVY MILITARY PAY SYSTEM COPIES OF FOUR EXTENSION OF ENLISTMENT AGREEMENTS EXECUTED BY MR. DUCLOS AND COPIES OF HIS PAY RECORDS FOR THE PERIOD HERE INVOLVED. IT APPEARS FROM THOSE RECORDS AND THE INFORMATION YOU HAVE PROVIDED THAT MR. DUCLOS ENLISTED IN THE NAVY ON FEBRUARY 25, 1965, FOR FOUR YEARS AND EXECUTED FOUR EXTENSIONS OF THAT ENLISTMENT TOTALING 40 MONTHS. UPON THE OPERATIVE DATE OF THE FOURTH EXTENSION MR. DUCLOS WOULD HAVE ACQUIRED SUFFICIENT OBLIGATED SERVICE TO ESTABLISH ELIGIBILITY FOR A REENLISTMENT BONUS AND A VARIABLE REENLISTMENT BONUS.

HOWEVER, ON JUNE 24, 1970, AT WHICH TIME MR. DUCLOS WAS ALREADY OBLIGATED TO TWO YEARS' SERVICE BY HIS THIRD AND FOURTH ENLISTMENT EXTENSIONS, MR. DUCLOS REENLISTED FOR A PERIOD OF TWO YEARS AND WAS PAID A REENLISTMENT BONUS OF $661.20 AND THE FIRST INSTALLMENT OF $1,322.40 OF TWO INSTALLMENTS OF A VARIABLE REENLISTMENT BONUS, TYPE 4, BASED ON THAT REENLISTMENT. ALSO INCIDENT TO HIS REENLISTMENT, THE THIRD AND FOURTH EXTENSION OF ENLISTMENTS EXECUTED BY MR. DUCLOS WERE CANCELED ON JUNE 24, 1970. THUS, IN EFFECT, MR. DUCLOS HAD SUBSTITUTED A TWO-YEAR REENLISTMENT FOR THE TOTAL OF TWO YEARS' SERVICE TO WHICH HE WAS ALREADY OBLIGATED BY HIS THIRD AND FOURTH EXTENSIONS OF ENLISTMENT.

MR. DUCLOS' REENLISTMENT OF JUNE 24, 1970, APPEARS TO HAVE BEEN IN VIOLATION OF THE REGULATIONS THEN IN EFFECT AS FOUND IN ARTICLE 1040300.7 OF THE BUREAU OF NAVAL PERSONNEL MANUAL, NAVPERS 15791B. THAT ARTICLE PROVIDED THAT MEMBERS WHO HAVE EXECUTED AGREEMENTS TO EXTEND THEIR ENLISTMENTS MAY BE DISCHARGED ONE YEAR OR LESS PRIOR TO THE DATE THE EXTENSION WOULD BECOME OPERATIVE AND REENLISTED PROVIDED THE TERM FOR WHICH THEY REENLIST IS GREATER BY AT LEAST ONE YEAR THAN THE TOTAL SERVICE OBLIGATION INCLUDING THE EXTENSION BEING CANCELLED.

ON DECEMBER 21, 1970, MR. DUCLOS WAS ADVISED BY THE CHIEF OF NAVAL PERSONNEL THAT HIS TWO-YEAR REENLISTMENT OF JUNE 24, 1970, WAS IN ERROR. PRESUMABLY THAT REENLISTMENT WAS VOIDED AND THE THIRD AND FOURTH EXTENSIONS OF ENLISTMENT WERE REINSTATED UNDER WHICH THE MEMBER CONTINUED TO SERVE.

THE VARIABLE REENLISTMENT BONUS IS AUTHORIZED BY 37 U.S.C. 308(G), WHICH PROVIDES IN PERTINENT PART:

"(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. ***"

SUBSECTION (A) OF SECTION 308 PROVIDES IN PART THAT A MEMBER OF A UNIFORMED SERVICE WHO VOLUNTARILY EXTENDS HIS ENLISTMENT FOR AT LEAST TWO YEARS IS, UNDER CERTAIN CIRCUMSTANCES, ENTITLED TO A REENLISTMENT BONUS.

PURSUANT TO 10 U.S.C. 509(A), UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, THE TERM OF ENLISTMENT OF A MEMBER OF AN ARMED FORCE MAY BE EXTENDED OR REEXTENDED WITH HIS WRITTEN CONSENT FOR ANY PERIOD BUT THE TOTAL OF SUCH EXTENSIONS OF AN ENLISTMENT MAY NOT EXCEED FOUR YEARS. SECTION 906 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO EXTENDS HIS ENLISTMENT UNDER 10 U.S.C. 509 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED AND, FOR THE PURPOSES OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS OR TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE, ALL SUCH EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION.

IN OUR DECISION 40 COMP. GEN. 14 (1960), WE HELD THAT A SERIES OF EXTENSIONS, CONSIDERED AS ONE CONTINUOUS EXTENSION, PLACES THE MEMBER IN EXACTLY THE SAME STATUS AS THOUGH HE HAD ORIGINALLY EXTENDED HIS ENLISTMENT FOR THE AGGREGATE OF ALL EXTENSIONS AND THE REENLISTMENT BONUS IS TO BE COMPUTED ON THE BASIS OF THE RATE OF PAY RECEIVED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE FIRST EXTENSION.

IN MR. DUCLOS' CASE HIS TWO-YEAR REENLISTMENT OF JUNE 24, 1970, WAS FOUND TO BE ERRONEOUS BY THE CHIEF OF NAVAL PERSONNEL AND, THEREFORE, APPARENTLY OF NO EFFECT. CONSEQUENTLY, MR. DUCLOS WAS NOT ENTITLED TO THE REENLISTMENT BONUS OR THE VARIABLE REENLISTMENT BONUS HE WAS PAID PURSUANT TO SUCH REENLISTMENT.

HOWEVER, BY COMBINING MR. DUCLOS' FOUR ENLISTMENT EXTENSIONS HE WOULD ACQUIRE AN AGGREGATE OF 40 MONTHS (3 1/3 YEARS) OF SERVICE UNDER SUCH EXTENSIONS AND THUS BECOME ENTITLED TO A REENLISTMENT BONUS TO BE COMPUTED BY MULTIPLYING THE MONTHLY BASIC PAY TO WHICH HE WAS ENTITLED THE DAY BEFORE THE EFFECTIVE DATE OF HIS FIRST ENLISTMENT EXTENSION BY 3 1/3. ALSO, IF ON THE EFFECTIVE DATE OF HIS FIRST ENLISTMENT EXTENSION MR. DUCLOS OTHERWISE MET THE REQUIREMENTS FOR A VARIABLE REENLISTMENT BONUS, HE IS ENTITLED TO SUCH BONUS USING AS A BASIS THE REENLISTMENT BONUS AS COMPUTED ABOVE.

IF THE TOTAL AMOUNT TO WHICH MR. DUCLOS IS ENTITLED AS OUTLINED ABOVE EXCEEDS THE TOTAL AMOUNT OF THE REENLISTMENT AND VARIABLE REENLISTMENT BONUSES HE WAS ERRONEOUSLY PAID ON JUNE 24, 1970, HE MAY BE PAID THE ADDITIONAL AMOUNT TO WHICH HE IS ENTITLED. IF THE CONVERSE IS THE CASE, THE OVERPAYMENT SHOULD BE RECOUPED.