B-160096, MARCH 20, 1970, 49 COMP. GEN. 611

B-160096, MARCH 20, 1970, 49 COMP. GEN. 611

GRATUITIES -- REENLISTMENT BONUS -- CRITICAL MILITARY SKILLS -- TRAINING LEADING TO A COMMISSION -- REENLISTMENT PRIOR TO APPROVAL OF TRAINING THE ELIGIBILITY CRITERIA ESTABLISHED IN PARAGRAPH 7D(2) OF BUREAU OF NAVAL PERSONNEL INSTRUCTION 1133.18B, DATED DECEMBER 1968, TO THE EFFECT THAT PETTY NAVAL OFFICERS WHO REENLIST TO MEET THE MINIMUM SERVICE REQUIREMENTS FOR THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM (NESEP) OR FOR OTHER PROGRAMS LEADING TO COMMISSIONED STATUS ARE NOT ELIGIBLE FOR THE VARIABLE REENLISTMENT BONUS AUTHORIZED PURSUANT TO 37 U.S.C. 308(G), DOES NOT PRECLUDE THE ADDITIONAL ELIGIBILITY REQUIREMENT IN PARAGRAPH 7D(2), DEFERRING PAYMENT OF THE BONUS TO MEMBERS WHO REENLIST SUBSEQUENT TO APPLYING FOR NESEP TRAINING, PENDING THE RESULTS OF THEIR APPLICATION, AND PROVIDING FOR PAYMENT ONLY TO MEMBERS NOT SELECTED FOR TRAINING, AS THE SUBSECTION IS IN ACCORD WITH PARAGRAPH V.A. 6 OF THE DEPARTMENT OF DEFENSE INSTRUCTION NO. 1304.13, WHICH IMPLEMENTS 37 U.S.C. 308(G).

TO THE SECRETARY OF THE NAVY, MARCH 20, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 28, 1970, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS), REQUESTING A DECISION AS TO WHETHER IN VIEW OF A CONCLUSION REACHED IN DECISION OF MARCH 21, 1969, 48 COMP. GEN. 624, THE NAVY MAY CONTINUE TO RESTRICT PAYMENT OF THE VARIABLE REENLISTMENT BONUS IN THE MANNER SET FORTH IN PARAGRAPH 7D(2) OF BUREAU OF NAVAL PERSONNEL INSTRUCTION 1133.18B, DATED DECEMBER 19, 1968. YOUR REQUEST WAS ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. SS-N-1064.

PARAGRAPH 7D(2) OF BUREAU OF NAVAL PERSONNEL INSTRUCTION 1133.18B PROVIDES THAT:

VRB PAYMENTS FOR REENLISTMENTS CONTRACTED SUBSEQUENT TO NESEP APPLICATION BUT PRIOR TO SELECTION FOR SUCH TRAINING WILL BE HELD IN ABEYANCE PENDING RESULTS OF THE SECTION PROCESS. APPLICATIONS NOT SELECTED FOR TRAINING, AND OTHERWISE ELIGIBLE, MAY RECEIVE VRB. THOSE SELECTED FOR NESEP WILL NOT RECEIVE VRB.

THE ASSISTANT SECRETARY SAYS THAT IN ACCORDANCE WITH THOSE PROVISIONS THE NAVY IS NOT PAYING THE VARIABLE REENLISTMENT BONUS TO MEMBERS WHO ARE ELIGIBLE THEREFOR WHEN THEY REENLIST IN THE REGULAR NAVY AT THE EXPIRATION OF THEIR FIRST ENLISTMENT AND WHO, PRIOR TO REENLISTMENT, SUBMITTED AN APPLICATION FOR THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM (NESEP) WHICH HAS YET TO BE ACTED UPON BY THE NAVY WHEN THE REENLISTMENT OCCURS. ALSO HE SAYS THAT PAYMENT IS ONLY MADE TO SUCH MEMBERS WHEN THEY ARE NOT SELECTED FOR THE PROGRAM. HE EXPRESSES THE VIEW THAT IN THE LIGHT OF PARAGRAPH V.A. 6 OF DEPARTMENT OF DEFENSE INSTRUCTION NO. 1304.13, DATED AUGUST 15, 1968, AND THE INTENT OF THE CONGRESS AS EXPRESSED DURING THE LEGISLATIVE HEARINGS ON THE STATUTORY PROVISIONS INVOLVED, 37 U.S.C. 308(G), THE PERTINENT REGULATION IS VALID AND SHOULD CONTINUE TO BE THE POLICY AS IT RELATES TO ELIGIBILITY FOR THE BONUS, BUT THAT OUR DECISION OF MARCH 21, 1969, HAS CAUSED SOME DOUBT AS TO WHETHER THE RESTRICTION IS VALID.

IN A DECISION TO THE SECRETARY OF DEFENSE, DATED FEBRUARY 8, 1968, 47 COMP. GEN. 414, WE CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF A VARIABLE REENLISTMENT BONUS TO ENLISTED MEMBERS WHO HAVE BEEN SELECTED FOR COLLEGE TRAINING UNDER THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM OR OTHER SIMILAR PROGRAMS AND WHO ARE REENLISTED FOR THE PURPOSE OF MEETING THE OBLIGATED SERVICE REQUIREMENTS FOR SUCH TRAINING.

IN THE DECISION OF MARCH 21, 1969, WE ADVISED THE SECRETARY OF TRANSPORTATION THAT THE FEBRUARY 8, 1968, DECISION DOES NOT PRECLUDE A MEMBER FROM RECEIVING A VARIABLE REENLISTMENT BONUS IN AN OTHERWISE PROPER CASE IF HE REENLISTS BEFORE HE HAS BEEN SELECTED FOR SUCH TRAINING AND HIS REENLISTMENT IS IN FACT FOR THE PURPOSE OF SERVING IN THE SPECIALTY FOR WHICH THE BONUS IS AUTHORIZED. ON THE PREMISE THAT A MEMBER OTHERWISE ENTITLED TO A VARIABLE REENLISTMENT BONUS, WHO SUBMITS HIS APPLICATION FOR TRAINING LEADING TO A COMMISSION UNDER THE OFFICER CANDIDATE SCHOOL OR AVIATION CADET PROGRAM AND IS DISCHARGED UPON EXPIRATION OF ENLISTMENT AND REENLISTED PRIOR TO HIS SELECTION FOR SUCH TRAINING, IS OBLIGATED TO SERVE FOR THE PERIOD OF HIS REENLISTMENT CONTRACT, WE SAID THAT IT COULD NOT BE CONCLUDED THAT HIS REENLISTMENT WAS FOR THE SOLE PURPOSE OF MEETING THE OBLIGATED SERVICE REQUIREMENTS OF THE EDUCATIONAL PROGRAM AND SINCE HE BECAME ENTITLED TO THE BONUS AT THE TIME OF HIS REENLISTMENT HIS SUBSEQUENT SELECTION FOR SUCH OFFICER TRAINING WOULD NOT CHANGE HIS ENTITLEMENT.

SUBSECTION 308(G) OF TITLE 37, U.S. CODE, PROVIDES IN PERTINENT PART THAT, UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, A MEMBER OF A UNIFORMED SERVICE WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A REENLISTMENT BONUS UNDER SUBSECTION (A) OF THAT SECTION UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS. THE STATUTE DOES NOT BY ITS OWN TERMS CONFER ANY ENTITLEMENT TO THE VARIABLE REENLISTMENT BONUS. IT PERMITS THE ISSUANCE OF REGULATIONS AUTHORIZING ITS PAYMENT AND, WITH THE EXCEPTION OF THE CRITICAL MILITARY SKILL AND ENTITLEMENT TO THE REGULAR REENLISTMENT BONUS REQUIREMENTS OF THE STATUTE, ELIGIBILITY CRITERIA FOR ENTITLEMENT TO THE BONUS ARE LEFT TO ADMINISTRATIVE REGULATION.

IMPLEMENTING REGULATIONS PROMULGATED BY THE DEPARTMENT OF DEFENSE ARE CONTAINED IN DEPARTMENT OF DEFENSE INSTRUCTION NO. 1304.13, DATED AUGUST 15, 1968, AND DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. PARAGRAPH V.A. OF THE DEPARTMENT OF DEFENSE INSTRUCTION IS, IN PERTINENT PART, AS FOLLOWS: V. INDIVIDUAL ELIGIBILITY FOR RECEIPT OF AWARDS

A. VARIABLE REENLISTMENT BONUS. AN ENLISTED MEMBER IS ELIGIBLE TO RECEIVE A VARIABLE REENLISTMENT BONUS IF HE MEETS ALL THE FOLLOWING CONDITIONS:

6. MEETS SUCH ADDITIONAL ELIGIBILITY CRITERIA AS MAY BE PRESCRIBED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. PARAGRAPH 10911 OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES: 10911 VARIABLE REENLISTMENT BONUS (VRB)

A. ENTITLEMENT. *** MEMBERS IN CRITICAL SKILLS FOR WHICH BOTH PROFICIENCY PAY AND THE VRB ARE AUTHORIZED MAY RECEIVE BOTH PAYMENTS, PROVIDING ELIGIBILITY REQUIREMENTS FOR EACH ARE MET.

WITH REGARD TO THE NAVY, ELIGIBILITY CRITERIA FOR THE BONUS ARE PRESCRIBED IN BUREAU OF NAVAL PERSONNEL INSTRUCTION 1133, 18B, DATED DECEMBER 19, 1968, AND PARAGRAPH 7D THEREOF EXPRESSLY STIPULATES THAT PETTY OFFICERS REENLISTING TO MEET THE PRESCRIBED MINIMUM SERVICE REQUIREMENTS FOR THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM OR FOR OTHER PROGRAMS LEADING TO COMMISSIONED STATUS ARE NOT ELIGIBLE FOR THE VARIABLE REENLISTMENT BONUS FOR SUCH REENLISTMENT. SUPPLEMENTING THOSE PROVISIONS, SUBPARAGRAPH 7D(2) ESTABLISHES A FURTHER ELIGIBILITY REQUIREMENT BY DEFERRING PAYMENT OF THE BONUS TO OTHERWISE ELIGIBLE MEMBERS WHO REENLIST SUBSEQUENT TO THEIR APPLICATION FOR NESEP TRAINING, PENDING THE RESULTS ON THEIR APPLICATIONS, AND PROVIDES FOR PAYMENT ONLY TO MEMBERS NOT SELECTED FOR SUCH TRAINING.

WE FIND NOTHING IN THE LAW WHICH MAY BE VIEWED AS PRECLUDING THE ESTABLISHMENT OF AN ELIGIBILITY REQUIREMENT SUCH AS THAT CONTAINED IN SUBPARAGRAPH 7D(2) OF THE INSTRUCTION AND ITS ESTABLISHMENT APPEARS TO BE CLEARLY AUTHORIZED BY PARAGRAPH V.A.6 OF THE DEPARTMENT OF DEFENSE INSTRUCTION. IN OUR OPINION, THEREFORE, THE PROVISIONS OF SUBPARAGRAPH 7D(2) ARE NOT INVALID. THE DECISION OF MARCH 21, 1969, DID NOT INVOLVE A REGULATION SIMILAR TO PARAGRAPH 7D(2) AND IT IS NOT TO BE CONSIDERED AS REQUIRING A CHANGE IN THAT REGULATION.

YOUR QUESTION IS ANSWERED ACCORDINGLY.