B-141775, OCTOBER 17, 1966, 46 COMP. GEN. 322

B-141775, OCTOBER 17, 1966, 46 COMP. GEN. 322

GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - EXTENSION OF REENLISTMENT. A MEMBER OF THE UNIFORMED SERVICES PAID A REGULAR AND VARIABLE REENLISTMENT BONUS WHEN HE FIRST EXTENDED HIS ENLISTMENT FOR 2 YEARS, UPON ENTERING A SECOND 2-YEAR EXTENSION UNDER 10 U.S.C. 5539 THAT ENTITLES HIM TO AN ADDITIONAL FIRST REGULAR REENLISTMENT BONUS, COMPUTED ON THE BASIS OF A 4-YEAR ENLISTMENT LESS THE AMOUNT PAID FOR THE FIRST 2-YEAR EXTENSION, MAY BE PAID AN ADDITIONAL AMOUNT OF VARIABLE REENLISTMENT BONUS. THE PROVISION IN 10 U.S.C. 906/B), THAT ALL EXTENSIONS OF ENLISTMENT ARE CONSIDERED "ONE CONTINUOUS EXTENSION" ALSO APPLYING TO THE VARIABLE REENLISTMENT BONUS, THE MEMBER HAVING A CRITICAL SKILL WHEN HE FIRST EXTENDED HIS ENLISTMENT THAT QUALIFIED HIM FOR THE VARIABLE REENLISTMENT BONUS AUTHORIZED IN 37 U.S.C. 308/G) IS ENTITLED TO AN ADDITIONAL VARIABLE REENLISTMENT BONUS FOR THE SECOND- YEAR EXTENSION. GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - CHANGE EFFECT. NOTWITHSTANDING A MEMBER OF THE UNIFORMED SERVICES IS REMOVED FROM THE VARIABLE REENLISTMENT BONUS ELIGIBLE LIST, OR THAT THE APPLICABLE MULTIPLE FOR HIS RATING HAS BEEN INCREASED OR DECREASED, HE CONTINUES TO BE ENTITLED TO RECEIVE THE VARIABLE REENLISTMENT BONUS DURING THE PERIOD OF A SECOND 2-YEAR EXTENSION OF HIS REENLISTMENT IN VIEW OF THE FACT THAT THE RIGHT TO THE BONUS AUTHORIZED BY 37 U.S.C. 308/G) IS DEEMED TO VEST AT THE TIME OF THE FIRST REENLISTMENT AND THE EXTENSION OF AT LEAST 2 YEARS CONSTITUTES AN ENLISTMENT FOR REENLISTMENT PURPOSES.

TO THE SECRETARY OF DEFENSE, OCTOBER 17, 1966:

FURTHER REFERENCE IS MADE TO LETTER DATED AUGUST 16, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER A MEMBER OF THE REGULAR NAVY OR MARINE CORPS WHO ENTERS INTO A SECOND EXTENSION OF HIS ENLISTMENT IS ENTITLED TO AN ADDITIONAL AMOUNT OF VARIABLE REENLISTMENT BONUS IF HE WAS PAID A REGULAR AND A VARIABLE REENLISTMENT BONUS AT THE TIME HE FIRST EXTENDED HIS ENLISTMENT.

THE SPECIFIC QUESTION UPON WHICH DECISION IS REQUESTED IS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 383 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTION IS AS FOLLOWS:

IF A MEMBER OF HE REGULAR NAVY OR MARINE CORPS IS ENTITLED TO AN ADDITIONAL FIRST REGULAR REENLISTMENT BONUS UPON SECOND EXTENSION OF HIS ENLISTMENT UNDER 10 U.S.C. 5539, IS HE ALSO ENTITLED TO AN ADDITIONAL VARIABLE REENLISTMENT BONUS AT THAT TIME IF HE WAS PAID A REGULAR REENLISTMENT BONUS AND A VARIABLE REENLISTMENT BONUS WHEN HE FIRST EXTENDED HIS ENLISTMENT?

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 WHICH PROVIDES, IN PERTINENT PART AS FOLLOWS:

(G) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, OR THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, 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 * * *.

UNDER THE PROVISIONS OF 10 U.S.C. 5539/A) A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS "MAY EXTEND OR RE-EXTEND HIS ENLISTMENT BY WRITTEN AGREEMENT FOR LESS THAN ONE YEAR OR FOR A PERIOD OF ONE, TWO, THREE, OR FOUR FULL YEARS", BUT "THE TOTAL OF ALL SUCH EXTENSIONS OF AN ENLISTMENT MAY NOT EXCEED FOUR YEARS;, SUBSECTION (C) OF SECTION 5539 PROVIDES THAT WHEN A MEMBER IS DISCHARGED FROM AN ENLISTMENT THAT HAS BEEN EXTENDED UNDER THAT SECTION, HE HAS THE SAME RIGHTS, PRIVILEGES, AND BENEFITS THAT HE WOULD HAVE IF DISCHARGED AT THE SAME TIME FROM AN ENLISTMENT NOT SO EXTENDED. SECTION 906/B) OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS WHO EXTENDS HIS ENLISTMENT UNDER SECTION 5539 OF TITLE 10,"IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED;, SECTION 906/B) FURTHER PROVIDES THAT FOR THE PURPOSES OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS AND TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE,"ALL SUCH EXTENSIONS OF ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION;,

THE COMMITTEE ACTION DISCUSSION RELATES TO A MEMBER WHO EXTENDS HIS ENLISTMENT IN THE NAVAL SERVICE FOR 2 YEARS AND, ON THE EFFECTIVE DATE OF THE EXTENSION, IS PAID A FIRST REGULAR REENLISTMENT BONUS FOR A 2 YEAR ENLISTMENT AND, IN ADDITION, HE IS PAID A VARIABLE REENLISTMENT BONUS, MULTIPLE 3, FOR THIS EXTENSION. IT IS STATED THAT AT A LATER DATE THE MEMBER AGAIN EXTENDS HIS ENLISTMENT FOR 2 YEARS AND, WHEN THE SECOND EXTENSION GOES INTO EFFECT, THE MEMBER IS PAID AN ADDITIONAL FIRST REGULAR REENLISTMENT BONUS COMPUTED ON THE BASIS OF A 4-YEAR ENLISTMENT LESS THE AMOUNT PAID FOR THE FIRST 2-YEAR EXTENSION. THE QUESTION IS ASKED WHETHER HE ALSO IS ENTITLED "TO ADDITIONAL VARIABLE REENLISTMENT BONUS FOR THIS SECOND 2-YEAR EXTENSION COMPUTED BY MULTIPLYING THE ADDITIONAL FIRST ENLISTMENT BONUS BY THE VRB MULTIPLE APPLICABLE AT THE TIME OF FIRST EXTENSION?" THE COMMITTEE ALSO POSES THE QUESTION WHETHER THE ANSWER WOULD BE DIFFERENT "IF THE MEMBER'S RATING HAS BEEN REMOVED FROM THE VRB ELIGIBLE LIST OR THE APPLICABLE MULTIPLE FOR HIS RATING HAD BEEN INCREASED OR DECREASED?"

INSOFAR AS HERE APPLICABLE, SECTION 308/A) OF TITLE 37, U.S. CODE, PROVIDES, AMONG OTHER THINGS, THAT A MEMBER OF A UNIFORMED SERVICE "WHO VOLUNTARILY EXTENDS HIS (FIRST) ENLISTMENT FOR AT LEAST TWO YEARS" IS ENTITLED TO A FIRST REENLISTMENT BONUS COMPUTED BY MULTIPLYING THE MONTHLY BASIC PAY TO WHICH ENTITLED AT THE TIME OF DISCHARGE OR RELEASE (EXTENSION OF ENLISTMENT) BY THE NUMBER OF YEARS SPECIFIED IN THE REENLISTMENT CONTRACT. IN OUR DECISION OF JULY 18, 1960, 40 COMP. GEN. 14, CITED IN THE COMMITTEE ACTION DISCUSSION, WE HELD (IN ANSWER TO QUESTION 2) THAT THE 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 THE EXTENSIONS AND THE REENLISTMENT BONUS IS COMPUTED ON THE BASIS OF THE RATE OF PAY RECEIVED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE FIRST EXTENSION. WE ALSO HELD IN THAT DECISION (ANSWER TO QUESTION 3) THAT, IF A REENLISTMENT BONUS IS PAID FOR EXTENSIONS AGGREGATING 2 YEARS AND A SUBSEQUENT EXTENSION IS MADE AGGREGATING 3 OR 4 YEARS, AN APPROPRIATE REENLISTMENT BONUS IS PAYABLE COMPUTED ON THE LONGER PERIOD BUT THE PREVIOUS BONUS PAID FOR THE SHORTER PERIOD MUST BE DEDUCTED, ONLY ONE BONUS BEING AUTHORIZED FOR THE AGGREGATE OF THE EXTENSIONS, THE LAW REQUIRING THAT THEY BE "CONSIDERED ONE CONTINUOUS EXTENSION;,

THE STATUTORY AUTHORITY FOR PAYMENT OF THE VARIABLE REENLISTMENT BONUS, QUOTED ABOVE, PRESCRIBES TWO REQUIREMENTS WHICH MUST BE MET IN ORDER TO ESTABLISH ELIGIBILITY---/1) DESIGNATION OF THE MEMBER AS HAVING A CRITICAL MILITARY SKILL AND (2) ENTITLEMENT OF THE MEMBER TO A FIRST REENLISTMENT BONUS COMPUTED UNDER SECTION 308/A) OF TITLE 37. REGULATIONS ISSUED BY THE SECRETARY OF DEFENSE AS REQUIRED IN SUBSECTION (G) OF SECTION 308 ARE CONTAINED IN DEPARTMENT OF DEFENSE DIRECTIVE 1304.10, DATED DECEMBER 18, 1965. PARAGRAPH III C OF THAT DIRECTIVE PROVIDES IN PART:

THE ADDITIONAL REENLISTMENT BONUS TO BE PAID SHALL BE CALCULATED BY MULTIPLYING THE REGULAR REENLISTMENT BONUS (UNDER SUBSECTION (A) OF REFERENCE (A/) BY 1, 2, 3 OR 4. THE MULTIPLIER TO BE USED WILL BE DETERMINED BY THE DEGREE OF CRITICALITY OF SHORTAGE DESCRIBED IN B; ABOVE.

IN PRESCRIBING REQUIREMENTS FOR ELIGIBILITY FOR THE VARIABLE REENLISTMENT BONUS THE SAME DIRECTIVE PROVIDES IN PART IN PARAGRAPH III E 3, THAT "THE REENLISTMENT OR EXTENSION OF ENLISTMENT MUST BE A FIRST REENLISTMENT OR EXTENSION FOR WHICH A REENLISTMENT BONUS IS PAYABLE UNDER REFERENCE (A);,

THE LEGISLATIVE HISTORY OF SUBSECTION (G) OF SECTION 308 OF TITLE 37 DISCLOSES THAT THE PRIMARY PURPOSE OF THE NEW VARIABLE REENLISTMENT BONUS IS TO PROVIDE A STRONG REENLISTMENT INCENTIVE TO FIRST-TERM ENLISTED PERSONNEL WHOSE SKILLS ARE CRITICALLY REQUIRED BY THE MILITARY DEPARTMENTS. UNDER THE PLAIN LANGUAGE OF THE LAW, A MEMBER WHO IS OTHERWISE ENTITLED TO A REENLISTMENT BONUS UPON HIS FIRST REENLISTMENT IS ALSO ENTITLED TO BE PAID "AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS;, WE FIND NOTHING IN THAT LAW OR IN ITS LEGISLATIVE HISTORY WHICH WOULD REQUIRE THE CONCLUSION THAT THE EXTENSION OF ENLISTMENT PROVISION IN 37 U.S.C. 906/B/---PROVIDING THAT ALL EXTENSIONS OF ENLISTMENT ARE CONSIDERED "ONE CONTINUOUS EXTENSION" IN DETERMINING ENTITLEMENT TO A REENLISTMENT BONUS---IS NOT APPLICABLE IN DETERMINING ENTITLEMENT TO AN ADDITIONAL VARIABLE REENLISTMENT BONUS UPON A SECOND 2-YEAR EXTENSION. HAD CONGRESS INTENDED TO LIMIT THE PAYMENT OF A VARIABLE REENLISTMENT BONUS TO ONLY THE FIRST 2-YEAR EXTENSION, WE BELIEVE APPROPRIATE LANGUAGE WOULD HAVE BEEN USED TO ACCOMPLISH THAT PURPOSE.

IN VIEW OF THE ABOVE AND IN THE LIGHT OF THE SITUATION DESCRIBED IN COMMITTEE ACTION NO. 383, IT IS OUR VIEW THAT A MEMBER WHO OTHERWISE QUALIFIES FOR AND IS PAID A VARIABLE REENLISTMENT BONUS WHEN HE FIRST EXTENDS HIS ENLISTMENT IS ENTITLED TO AN ADDITIONAL VARIABLE ON FIRST EXTENDS HIS ENLISTMENT IS ENTITLED TO AN ADDITIONAL VARIABLE REENLISTMENT BONUS FOR HIS SECOND 2-YEAR EXTENSION COMPUTED ON THE BASIS INDICATED IN THE COMMITTEE ACTION, LESS THE AMOUNT PAID FOR THE FIRST 2-YEAR EXTENSION. SEE THE ANSWER TO QUESTION 3 OF DECISION OF JULY 18, 1960, 40 COMP. GEN. 14. THE QUESTION PRESENTED IS ANSWER IN THE AFFIRMATIVE.

WITH RESPECT TO THE QUESTION WHETHER THE ANSWER WOULD BE DIFFERENT "IF THE MEMBER'S RATING HAS BEEN REMOVED FROM THE VRB ELIGIBLE LIST OR THE APPLICABLE MULTIPLE FOR HIS RATING HAD BEEN INCREASED OR DECREASED" IT IS OUR VIEW THAT THE ANSWER WOULD NOT BE DIFFERENT. SINCE THE RIGHT TO RECEIVE A VARIABLE REENLISTMENT BONUS UNDER 37 U.S.C. 308/G) IS DEEMED TO VEST AT THE TIME OF REENLISTMENT, AND SINCE AN EXTENSION OF AN ENLISTMENT FOR AT LEAST 2 YEARS CONSTITUTES AN ENLISTMENT FOR REENLISTMENT BONUS PURPOSES, IT IS OUR VIEW THAT A MEMBER, WHO OTHERWISE QUALIFIED FOR AND WAS ENTITLED TO RECEIVE A VARIABLE REENLISTMENT BONUS AT THE POINT OF HIS FIRST 2-YEAR EXTENSION, CONTINUES TO BE ENTITLED TO SUCH BONUS (SUBJECT, OF COURSE, TO THE STATUTORY PROVISION CONCERNING INSTALLMENTS) DURING THE PERIOD OF HIS SECOND 2-YEAR EXTENSION, NOTWITHSTANDING THE CHANGED CONDITIONS INDICATED IN THE QUESTION THAT MIGHT EXIST AT THE TIME OF THE SECOND 2 YEAR EXTENSION COMPARE THE ANSWER TO QUESTION 2 IN OUR DEVICISON OF JANUARY 4, 1966, 45 COMP. GEN. 379, AND SEE THE ANSWER TO QUESTION 2 IN DECISION OF JULY 18, 1960, 40 COMP. GEN. 14.