B-177173, JAN 11, 1973, 52 COMP GEN 416

B-177173, JAN 11, 1973, 52 COMP GEN 416

GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - REENLISTMENT FOR RETRAINING PURPOSES A REENLISTMENT THAT WAS NOT FOR THE PURPOSE OF CONTINUING THE USE OF THE CRITICAL SKILL A MEMBER OF THE UNIFORMED SERVICES HELD AT THE TIME OF HIS REENLISTMENT BUT WAS FOR THE PURPOSE OF RETRAINING THE MEMBER DOES NOT CREATE ENTITLEMENT TO THE VARIABLE REENLISTMENT BONUS PROVIDED BY 37 U.S.C. 308(G) AS THE MILITARY SERVICE WILL NOT RECEIVE THE EXACT BENEFIT INTENDED FROM THE BONUS SINCE IT WILL NEITHER HAVE THE CONTINUED USE OF THE CRITICAL SKILL POSSESSED BY THE MEMBER NOR AVOID THE NECESSITY OF TRAINING A REPLACEMENT IN THE SKILL. THEREFORE, WHEN IT IS KNOWN AT THE TIME OF REENLISTMENT THAT A MEMBER WILL NOT CONTINUE TO UTILIZE THE CRITICAL SKILL UPON WHICH PAYMENT OF THE VARIABLE REENLISTMENT BONUS IS BASED, PAYMENT MAY NOT BE AUTHORIZED, AND THIS IS SO EVEN IF THE SKILL IS NOT A CRITICAL ONE.

TO MAJOR F. D. BRADY, UNITED STATES MARINE CORPS, JANUARY 11, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14, 1972, CD WSD 7220/4, FORWARDED TO THIS OFFICE BY HEADQUARTERS UNITED STATES MARINE CORPS LETTER DATED OCTOBER 3, 1972, CD-WMM 7220, REQUESTING AN ADVANCE DECISION AS TO WHETHER CORPORAL ROBERT W. CHASTAIN, XXX-XX-XXXX, USMC, IS ELIGIBLE FOR A VARIABLE REENLISTMENT BONUS INCIDENT TO HIS REENLISTMENT IN THE MARINE CORPS ON JUNE 6, 1972. THE REQUEST HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1172 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU INDICATE THE FACTS IN THIS CASE TO BE ESSENTIALLY AS FOLLOWS. PRIOR TO HIS REENLISTMENT CORPORAL CHASTAIN WAS QUALIFIED AND SERVING IN MILITARY OCCUPATIONAL SPECIALTY (MOS) 0351(ANTITANK ASSAULTMAN), A SKILL DESIGNATED AS CRITICAL UNDER MARINE CORPS REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 308(G) AND FOR WHICH A VARIABLE REENLISTMENT BONUS, MULTIPLE 2, IS AUTHORIZED. ON APRIL 27, 1972, CORPORAL CHASTAIN AGREED TO REENLIST FOR 6 YEARS AND REQUESTED THAT HE BE REASSIGNED TO DUTY IN OCCUPATIONAL FIELD 21(ARMAMENT REPAIR) UPON HIS REENLISTMENT.

ON JUNE 2, 1972, MARINE CORPS HEADQUARTERS AUTHORIZED HIS PERMANENT CHANGE OF STATION IMMEDIATELY AFTER REENLISTMENT AND DIRECTED THAT HIS MOS BE CHANGED AND THAT HE BE ASSIGNED ON-THE-JOB TRAINING IN OCCUPATIONAL FIELD 21 LEADING TO MOS 2111(INFANTRY WEAPON REPAIRMAN), A NONCRITICAL SKILL, UPON REPORTING TO HIS NEW COMMAND. ON AUGUST 28, 1972, THESE INSTRUCTIONS WERE MODIFIED TO THE EXTENT OF DIRECTING THAT CORPORAL CHASTAIN BE ASSIGNED ON-THE-JOB TRAINING LEADING TO MOS 2131(ARTILLERY WEAPON REPAIRMAN), A CRITICAL SKILL FOR WHICH A VARIABLE REENLISTMENT BONUS, MULTIPLE 2, IS AUTHORIZED. AS YOU INDICATE, IT WAS KNOWN BEFORE CORPORAL CHASTAIN'S REENLISTMENT THAT HE WAS NOT BEING REENLISTED FOR THE PURPOSE OF CONTINUED USE OF HIS SERVICE IN MOS 0351, THE CRITICAL SKILL WHICH HE HELD AT THE TIME OF HIS REENLISTMENT.

YOU STATE THAT OTHER THAN THE QUESTION REGARDING HIS MOS, CORPORAL CHASTAIN MET THE ELIGIBILITY REQUIREMENTS FOR A VARIABLE REENLISTMENT BONUS AT THE TIME OF HIS REENLISTMENT, JUNE 6, 1972.

YOU INDICATE THAT EVEN THOUGH CORPORAL CHASTAIN HAD A CRITICAL MOS (0351) AT THE TIME OF HIS REENLISTMENT AND, AFTER RETRAINING, WILL PERFORM SERVICE IN AN MOS (2131) ALSO DESIGNATED AS CRITICAL AT THE SAME SKILL LEVEL, YOU ARE UNCERTAIN AS TO HIS ENTITLEMENT TO A VARIABLE REENLISTMENT BONUS SINCE IT APPEARS THAT THE MARINE CORPS WILL NOT RECEIVE THE EXACT BENEFIT INTENDED FROM SUCH BONUS. IT IS YOUR VIEW THAT THE MARINE CORPS WILL NEITHER HAVE THE CONTINUED USE OF CORPORAL CHASTAIN'S SERVICE IN THE CRITICAL SKILL WHICH HE ALREADY POSSESSES NOR WILL IT AVOID THE NECESSITY OF TRAINING A REPLACEMENT IN THAT SKILL.

IN THIS REGARD YOU INDICATE THAT WHILE THIS OFFICE HAS HELD IN 46 COMP. GEN. 322(1966) AND 48 ID. 624(1969) THAT ENTITLEMENT TO A VARIABLE REENLISTMENT BONUS VESTS IN THE MEMBER AT THE TIME OF REENLISTMENT, WE HAVE ALSO HELD THAT THERE IS NO ENTITLEMENT TO SUCH A BONUS WHERE IT SEEMS OBVIOUS AT THE TIME OF ENLISTMENT THAT THE GOVERNMENT WILL NOT RECEIVE THE BENEFIT FOR WHICH THE BONUS WAS INTENDED. 47 COMP. GEN. 414(1968), AND 49 ID. 206(1969).

THE LETTER FROM MARINE CORPS HEADQUARTERS TRANSMITTING YOUR LETTER HERE INDICATES THAT THE MARINE CORPS VARIABLE REENLISTMENT BONUS PROGRAM IS DESIGNED TO RETAIN QUALIFIED PERSONNEL IN CRITICAL SKILL AREAS WITH A RESULTING DECREASE IN REPLACEMENT TRAINING COSTS AND TIME. AFTER DISCUSSING CERTAIN POLICY GUIDELINES AND THE NEED FOR FLEXIBILITY IN IMPLEMENTING THE PROGRAM, THE LETTER STATES, IN PART, AS FOLLOWS:

WITHIN THESE BASIC GUIDELINES, THERE IS A NEED FOR FLEXIBILITY BASED ON OUR MANPOWER NEEDS. THIS FLEXIBILITY IS NEEDED BECAUSE OF THE TIME LAG WHICH OCCURS BETWEEN THE IDENTIFICATION OF A CHANGE IN CRITICALITY OF A SKILL AND APPROVAL OF A RECOMMENDED CHANGE TO OUR VRB PROGRAM BY THE DEPARTMENT OF DEFENSE, AND THUS ALLOWS US TO BE MORE RESPONSIVE IN MEETING CHANGING CRITICAL SKILL REQUIREMENTS. WE CONSIDER OUR POLICY IN THIS REGARD TO BE WITHIN THE SPIRIT OF THE VRB PROGRAM; THAT IS, WE CONSIDER IT A VALID EFFORT TO RETAIN CAREERISTS IN CRITICAL SKILLS WHILE REDUCING TRAINING COSTS AND TIME.

WE PERMIT PAYMENT OF A VRB TO AN ELIGIBLE MARINE WHO REENLISTS INTO ANOTHER VRB-ELIGIBLE SKILL AREA THAT IS MORE CRITICAL THAN THE SKILL FOR WHICH HE WAS ORIGINALLY TRAINED IN CASES WHERE HE POSSESSES THE APTITUDE FOR THE MORE CRITICAL SKILL, AND WHERE THE SHORTAGE OF PERSONNEL WITH THE NECESSARY APTITUDE IS MORE ACUTE. AT NO TIME, HOWEVER, WILL A VRB BE AUTHORIZED THAT IS OF A HIGHER MULTIPLE THAN THAT SPECIFIED FOR THE MEMBER'S PREVIOUS MOS. FOR EXAMPLE, A MARINE FOR WHOSE MOS A VRB MULTIPLE OF 2 IS AUTHORIZED AND WHO REENLISTS FOR AN MOS AUTHORIZED A MULTIPLE OF 4, WOULD RECEIVE ONLY THE MULTIPLE 2 FOR HIS "OLD" MOS.

ADDITIONALLY, IN A FEW SPECIFIC CASES, A MARINE WHO REENLISTS FOR AN MOS WITH A VRB MULTIPLE EQUAL TO THAT AUTHORIZED FOR HIS PREVIOUS MOS IS PAID A VRB IF HE IS OTHERWISE QUALIFIED AND IF THE NEW MOS IS MORE CRITICAL AT THE TIME OF REENLISTMENT THAN HIS PREVIOUS MOS. THIS SITUATION HAS OCCURRED DUE TO THE TIME LAG MENTIONED ABOVE. IN MOST CASES THE RETRAINING INVOLVED IS ACCOMPLISHED BY ON-THE-JOB TRAINING WHICH ENTAILS NO ADDITIONAL COST.

THE VARIABLE REENLISTMENT BONUS IS AUTHORIZED BY 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.***.

IN OUR DECISION 47 COMP. GEN. 414(1968), TO WHICH YOU REFER, WE NOTED THAT DEPARTMENT OF DEFENSE ADMINISTRATIVE REGULATIONS THEN IN EFFECT, AND ISSUED PURSUANT TO 37 U.S.C. 308(G), CONTEMPLATED PAYMENT OF THE VARIABLE REENLISTMENT BONUS ONLY TO A MEMBER WHO POSSESSES A MILITARY SKILL IN CRITICALLY SHORT SUPPLY, AS AN INDUCEMENT TO REENLIST FOR THE PURPOSE OF RETAINING THE USE OF HIS SERVICE IN SUCH SPECIALTY WHICH, AS WE INDICATED, WAS PRECISELY THE INTENT OF CONGRESS IN AUTHORIZING THE VARIABLE REENLISTMENT BONUS. THAT REMAINS OUR VIEW. (SIMILAR DEPARTMENT OF DEFENSE REGULATIONS ARE NOW FOUND IN DOD DIRECTIVES 1304.14 AND 1304.15 DATED SEPTEMBER 3, 1970.)

IN THAT DECISION WE ALSO STATED THAT WE RECOGNIZE THAT 37 U.S.C. 308(G) DOES NOT SPECIFICALLY PROVIDE THAT ENTITLEMENT TO THE VARIABLE REENLISTMENT BONUS SHALL EXIST ONLY IF THE MEMBER IS REENLISTED FOR THE PURPOSE OF UTILIZING THE CRITICALLY DESIGNATED MILITARY SKILL WHICH HE POSSESSES. AND, WE HAVE RECOGNIZED THAT REGULATIONS MAY NOT CURTAIL THE BONUS AFTER ENTITLEMENT HAS VESTED BY REQUIRING THAT THE MEMBER CONTINUE TO SATISFACTORILY PERFORM HIS DUTIES IN THE SPECIALTY FOR WHICH IT WAS AUTHORIZED. 45 COMP. GEN. 379(1966).

IN 47 COMP. GEN. 414 WE ALSO NOTED THAT THE LEGISLATIVE HISTORY SHOWS THAT THE ONLY PURPOSE IN AUTHORIZING THE BONUS WAS AS AN INDUCEMENT TO FIRST-TERM ENLISTED MEMBERS POSSESSING A CRITICALLY NEEDED MILITARY SKILL TO REENLIST SO THAT SUCH SKILL WOULD NOT BE LOST TO THE SERVICE AND THE TRAINING OF A REPLACEMENT REQUIRED. IN EFFECT, WE SAID THAT THE BONUS IS A FORM OF ADDITIONAL COMPENSATION FOR INDIVIDUALS SERVING IN THE CRITICAL MILITARY SKILLS AND, WHILE PAYMENT OF THE BONUS IS NOT AFFECTED BY SUBSEQUENT DUTY CHANGES, THE REENLISTMENT MUST BE FOR THAT PURPOSE. THUS, IN THAT DECISION WE HELD THAT ENLISTED MEMBERS WHO HAD BEEN SELECTED FOR COLLEGE TRAINING LEADING TO COMMISSIONING AS OFFICERS WHO REENLISTED FOR THE PURPOSE OF MEETING THE OBLIGATED SERVICE REQUIREMENTS FOR SUCH TRAINING WERE NOT ENTITLED TO THE VARIABLE REENLISTMENT BONUS. SEE ALSO 48 COMP. GEN. 624(1969).

AS YOU INDICATE, ENTITLEMENT TO THE VARIABLE REENLISTMENT BONUS VESTS IN THE MEMBER AT THE TIME HE IS REENLISTED, PROVIDED THAT THE REQUIREMENTS FOR SUCH BONUS ARE MET. 45 COMP. GEN. 379, 46 ID. 322, 47 ID. 414, AND 48 ID. 624. HOWEVER, AS INDICATED ABOVE, ONE OF THE PRIMARY REQUIREMENTS WHICH MUST BE MET IS THAT THE MEMBER BE REENLISTED FOR THE PURPOSE OF SERVING IN THE CRITICAL MILITARY SKILL WHICH HE POSSESSES AT THE TIME OF REENLISTMENT AND UPON WHICH THE BONUS IS BASED.

THUS, IN 49 COMP. GEN. 206(1969), TO WHICH YOU REFER, WE HELD THAT AN ENLISTED MEMBER WHO WAS DISCHARGED, REENLISTED AND WITHIN A FEW DAYS APPOINTED A RESERVE OFFICER ON ACTIVE DUTY WAS NOT ENTITLED TO A REENLISTMENT BONUS SINCE THE REENLISTMENT WAS NOT ENTERED INTO WITH A BONA FIDE INTENTION OF SERVING THEREUNDER AND THE GOVERNMENT RECEIVED NO BENEFIT FROM THE REENLISTMENT.

IN 51 COMP. GEN. 3(1971), WE RECOGNIZED THAT IN SOME INSTANCES FURTHER TRAINING OF MEMBERS POSSESSING CRITICAL SKILLS MAY BE DESIRABLE IN THOSE SKILLS AFTER REENLISTMENT. IN THAT DECISION WE AUTHORIZED PAYMENT OF THE VARIABLE REENLISTMENT BONUS TO A MEMBER WHO WAS REENLISTED TO ACQUIRE THE NECESSARY OBLIGATED ACTIVE DUTY REMAINING TO ENABLE HIM TO PARTICIPATE IN A PROGRAM WHEREBY HE WOULD ATTEND A JUNIOR COLLEGE TO OBTAIN AN ASSOCIATE DEGREE MAJORING IN A COURSE OF STUDY REASONABLY RELATED TO HIS SKILL AND WHICH WOULD ENHANCE HIS SKILL. HOWEVER, IT WAS CONTEMPLATED THERE THAT UPON COMPLETION OF SUCH SCHOOLING HE WOULD RESUME HIS REGULAR DUTY IN THE SAME SKILL IN WHICH HE PERFORMED PRIOR TO HIS ASSIGNMENT TO THE PROGRAM.

IN THE INSTANT CASE, HOWEVER, IT WAS CLEARLY KNOWN AT THE TIME CORPORAL CHASTAIN REENLISTED THAT UPON REENLISTING AND REPORTING TO HIS NEW COMMAND HIS MILITARY OCCUPATIONAL SPECIALTY WAS TO BE CHANGED AND HE WAS TO BE TRAINED IN A NEW SKILL AND NOT UTILIZED IN THE CRITICAL SKILL WHICH HE POSSESSED AT THE TIME OF REENLISTMENT AND UPON WHICH HIS VARIABLE REENLISTMENT BONUS WAS TO BE BASED.

HENCE, THE MARINE CORPS WILL NO LONGER HAVE THE BENEFIT OF CORPORAL CHASTAIN'S SERVICES IN THE CRITICAL SKILL UPON WHICH THE BONUS IS TO BE BASED AND IT WILL BE NECESSARY TO TRAIN A REPLACEMENT FOR HIM IN THAT SKILL AT ADDITIONAL EXPENSE TO THE GOVERNMENT. THUS, THE VERY THING THE VARIABLE REENLISTMENT BONUS WAS INSTITUTED TO AVOID WOULD RESULT.

THEREFORE, IT IS OUR VIEW THAT IN CASES SUCH AS THIS WHERE IT IS KNOWN AT THE TIME OF REENLISTMENT THAT THE MEMBER IS NOT TO BE UTILIZED IN THE CRITICAL SKILL WHICH HE POSSESSES AND UPON WHICH THE VARIABLE REENLISTMENT BONUS IS BASED, THE PURPOSE OF THE BONUS IS DEFEATED AND NO ENTITLEMENT TO IT ACCRUES. THAT IS OUR VIEW WHETHER OR NOT THE NEW SKILL IN WHICH THE MEMBER IS TO BE TRAINED AND SERVE IS A CRITICAL SKILL.

ACCORDINGLY, PAYMENT TO CORPORAL CHASTAIN OF A VARIABLE REENLISTMENT BONUS IN THE DESCRIBED CIRCUMSTANCES IS NOT AUTHORIZED.

CONCERNING THE COMMENTS IN HEADQUARTERS U.S. MARINE CORPS LETTER OF OCTOBER 3, 1972, WHILE WE RECOGNIZE THAT SOME DEGREE OF FLEXIBILITY MAY BE NECESSARY IN ADMINISTERING THE VARIABLE REENLISTMENT BONUS PROGRAM, IT WOULD APPEAR THAT SUCH FLEXIBILITY SHOULD BE LIMITED TO THE AUTHORITY TO DETERMINE WHICH SKILLS ARE CRITICAL AND FIXING THE APPROPRIATE MULTIPLIER FOR EACH SKILL, AND TO ADJUST THOSE DETERMINATIONS ACCORDING TO THE NEEDS OF THE SERVICE. IF, AS INDICATED IN THE LETTER, THERE IS A TIME LAG BETWEEN THE IDENTIFICATION OF A CHANGE IN CRITICALITY OF A SKILL AND APPROVAL OF A RECOMMENDED CHANGE TO THE BONUS PROGRAM BY THE DEPARTMENT OF DEFENSE, WE BELIEVE THIS IS A MATTER WHICH SHOULD BE RESOLVED ADMINISTRATIVELY. AS WE HAVE INDICATED ABOVE, IT IS OUR VIEW THAT SUCH FLEXIBILITY DOES NOT PROVIDE A LEGAL BASIS FOR AUTHORIZING A BONUS FOR A MEMBER WHO REENLISTED FOR THE PURPOSE OF TRAINING AND SERVING IN SOME NEW SKILL OTHER THAN THE CRITICAL SKILL WHICH HE HELD AT THE TIME OF REENLISTMENT AND UPON WHICH THE BONUS IS BASED. THIS IS OUR VIEW WHETHER OR NOT THE NEW SKILL FOR WHICH HE IS TO BE TRAINED AND SUBSEQUENTLY SERVE IN IS CRITICAL.