B-121690, OCTOBER 22, 1956, 36 COMP. GEN. 332

B-121690, OCTOBER 22, 1956, 36 COMP. GEN. 332

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - REVOCATION OF SECTION 208 ELECTIONS ENLISTED MEN OF THE UNIFORMED SERVICES WHO ELECTED TO RECEIVE REENLISTMENT BONUS PAYMENTS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AND WHO, NOTWITHSTANDING THE RELIEF GRANTED BY THE ACT OF JUNE 29, 1956, WOULD RECEIVE SMALLER PAYMENTS ON FUTURE REENLISTMENTS BECAUSE OF SUCH ELECTION, MAY, WITHIN 60 DAYS FROM THE DATE OF THIS DECISION, CANCEL OR WITHDRAW THEIR ELECTIONS AND MAKE A REELECTION TO BE COVERED BY SECTION 207 OF THE 1949 ACT; HOWEVER, ANY REENLISTMENT ENTERED INTO AFTER OCTOBER 1, 1949, FOR WHICH AN ENLISTMENT ALLOWANCE IN LIEU OF A SMALLER REENLISTMENT BONUS WAS PAID, MUST BE CONSIDERED AS ONE OF THE FOUR ENLISTMENTS FOR WHICH A BONUS MAY BE PAID UNDER SECTION 207.

TO THE SECRETARY OF DEFENSE, OCTOBER 22, 1956:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 24, 1956, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON THREE QUESTIONS, RELATING TO PAYMENT OF REENLISTMENT BONUS, SET FORTH IN COMMITTEE ACTION NO. 152, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY CERTAIN SERVICEMEN WHO PRIOR TO MARCH 30, 1955, THE DATE OF 34 COMP. GEN. 483, ELECTED IN GOOD FAITH TO RECEIVE A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, RATHER THAN UNDER SECTION 207 THEREOF, NOW REFUND THE DIFFERENCE BETWEEN THE REENLISTMENT BONUS AUTHORIZED BY THE LATTER SECTION AND THE SUM OF THE BONUS RECEIVED UNDER THE PROVISIONS OF SECTION 208 AND MAKE A REELECTION TO BE COVERED BY SECTION 207?

2. IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE AFFIRMATIVE, MAY THE MEMBERS CONCERNED BE GRANTED A PERIOD OF SIXTY DAYS FROM THE DATE OF THE DECISION TO BE RENDERED BY THE COMPTROLLER GENERAL WITHIN WHICH TO MAKE SUCH REELECTION?

3. DOES THE RESTRICTION IN THE SECOND PROVISO OF SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949 REQUIRE THAT AN ENLISTMENT ENTERED INTO AFTER 1 OCTOBER 1949 FOR WHICH AN ENLISTMENT ALLOWANCE WAS PAID BE COUNTED AS ONE OF THE FOUR ENLISTMENTS SPECIFIED IN SAID PROVISO?

THE FOLLOWING EXCERPT FROM COMMITTEE ACTION NO. 152 SHOWS THE CIRCUMSTANCES INVOLVED IN THE FIRST QUESTION:

THE PERSONNEL CONCERNED WERE THOSE WHO WERE REFERRED TO IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 116 AS FOLLOWS:

" THE EFFECT OF THE ASSISTANT COMPTROLLER GENERAL'S DECISION

(34 COMP. GEN. 483) WILL BE PARTICULARLY SEVERE IN THOSE CASES INVOLVING

SERVICEMEN WITH SUBSTANTIAL PRIOR SERVICE WHO ELECTED IN GOOD FAITH

TO RECEIVE A BONUS UNDER SECTION 208 RATHER THAN SECTION 207 OF THE

ACT PRIOR TO THE DATE OF THE DECISION ( MARCH 30, 1955). FOR EXAMPLE,

AN ENLISTED MAN REENLISTED IN OCTOBER 1949 FOR THREE YEARS AND RECEIVED

AN ALLOWANCE OF $150. HE SUBSEQUENTLY REENLISTED IN OCTOBER 1952 FOR

ANOTHER THREE YEARS AND WAS PAID A BONUS OF $90. IN MARCH 1955 HE

WAS DISCHARGED FOR THE PURPOSE OF REENLISTING FOR A PERIOD OF 6 YEARS,

REFUNDED $17.50 OF HIS PREVIOUS BONUS, AND, AS HE WAS IN PAY GRADE

E-7 WITH NEARLY 14 YEARS SERVICE, RECEIVED A BONUS UNDER SECTION 208

OF $978.44. AS A RESULT OF THE DECISION, HE WILL NOW BE CALLED ON TO

REFUND $489.22 OF THE AMOUNT PAID, AND BECAUSE HE ELECTED TO BE

PAID UNDER SECTION 208 HE WILL RECEIVE LITTLE OR NOTHING WHEN HE AGAIN

REENLISTS, SINCE HE WILL THEN HAVE NEARLY 20 YEARS SERVICE. IF HE HAD

BEEN PAID UNDER SECTION 207, HE WOULD HAVE RECEIVED $360 IN MARCH

AS OPPOSED TO $489.22 UNDER SECTION 208) AND COULD HAVE CONTINUED TO

RECEIVE BONUSES UNTIL HE HAD 30 YEARS SERVICE OR RECEIVED A TOTAL OF

$1,440, WHICH WOULD HAVE BEEN GREATLY TO HIS ADVANTAGE DURING THE NEXT

10 YEARS.'

THE FOREGOING EXAMPLE WAS CONSIDERED IN 34 COMP. GEN. 715 AND IN CONNECTION THEREWITH THE ASSISTANT COMPTROLLER GENERAL STATED ON PAGE 718:

" WE WILL NOT INSIST ON HOLDING MEMBERS TO ELECTIONS SO MADE PRIOR

TO THE DATE OF OUR DECISION OF MARCH 30, 1955, AND WILL GIVE THEM

A REASONABLE TIME AFTER THE PRESENT DATE TO MAKE NEW ELECTIONS IN ORDER

THAT APPROPRIATE ADJUSTMENTS MAY BE MADE.'

THE SPECIFIC QUESTIONS PRESENTED HERE WERE INADVERTENTLY OMITTED FROM MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 126 AND CONSEQUENTLY THE REPLY THERETO IN B-117232, B-121690, 28 DECEMBER 1955, WHICH HELD THAT MEMBERS WHO ELECTED AND WERE PAID REENLISTMENT BONUSES ON THE BASIS OF ERRONEOUS COMPUTATIONS WOULD BE ALLOWED 30 DAYS AFTER THE END OF THE SECOND SESSION OF THE 84TH CONGRESS TO DISAVOW SUCH ELECTIONS IN THE EVENT THE PROPOSED RELIEF LEGISLATION WAS NOT ENACTED, DID NOT INCLUDE THE PERSONNEL NOW UNDER DISCUSSION. FURTHER, IT IS NOTED THAT THE RELIEF LEGISLATION ENACTED BY CONGRESS DID NOT (AS WAS ORIGINALLY THOUGHT) PLACE MEMBERS BENEFITED BY THE ACT IN THE SAME POSITION THEY HELD BEFORE ELECTION OF SECTION 208 BENEFITS, BECAUSE FOR SUBSEQUENT REENLISTMENTS THEY WOULD RECEIVE THE BONUS BASED ON THIRD, FOURTH, AND SUBSEQUENT REENLISTMENTS RATHER THAN SECOND, THIRD OR FOURTH. THUS, DEPARTMENTAL INSTRUCTIONS WHICH TURNED OUT TO BE ERRONEOUS DUE TO THE 30 MARCH 1955 DECISION, SUPRA, CONTINUED TO PENALIZE FINANCIALLY MEMBERS WHO ELECTED UNDER SECTION 208, DESPITE THE RELIEF ACT OF 29 JUNE 1956. CONSEQUENTLY, IT IS CONSIDERED REASONABLE TO CONCLUDE THAT QUESTION ONE BE ANSWERED IN THE AFFIRMATIVE.

IN THE LIGHT OF THIS DISCUSSION AND THE ENACTMENT OF PUBLIC LAW 626, 84TH CONGRESS, APPROVED JUNE 29, 1956, 70 STAT. 373, 37 U.S.C. 239, WHICH VALIDATED PAYMENTS OF REENLISTMENT BONUS MADE UNDER SECTION 208 OF THE CAREER COMPENSATION ACT TO THOSE MEMBERS WHO ELECTED, AND WERE PAID, SUCH BONUS ON THE BASIS OF COMPUTATIONS WHICH WE HELD TO BE ERRONEOUS IN OUR DECISION OF MARCH 30, 1955, 34 COMP. GEN. 483, NO COMPELLING REASON IS PERCEIVED FOR NOT ALLOWING THE MEMBERS HERE INVOLVED 60 DAYS AFTER THE PRESENT DATE WITHIN WHICH TO CANCEL OR WITHDRAW THEIR ELECTIONS TO BE COVERED BY SECTION 208. HENCE, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, AS AMENDED, 37 U.S.C. 238, AUTHORIZES THE PAYMENT OF A LUMP-SUM REENLISTMENT BONUS TO CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO, FOLLOWING ACTIVE DUTY OF THE NATURE SPECIFIED IN THAT SECTION,"ENLIST" IN THE REGULAR COMPONENT WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION. SUCH SECTION ALSO PROVIDES THAT " NO REENLISTMENT BONUS SHALL BE PAID FOR MORE THAN FOUR ENLISTMENTS ENTERED INTO AFTER THE EFFECTIVE DATE OF THIS SECTION," THAT IS, AFTER OCTOBER 1, 1949. IT FURTHER PROVIDES THAT A MEMBER (OF A CLASS WITHIN ITS PROVISIONS) WHO "REENLISTS", WITHIN THREE MONTHS AFTER BEING DISCHARGED FROM AN ENLISTMENT ENTERED INTO PRIOR TO THE DATE OF ENACTMENT OF THE ACT ( OCTOBER 12, 1949) IS ENTITLED TO RECEIVE AN ENLISTMENT ALLOWANCE, UNDER THE PROVISIONS OF THE LAW IN EFFECT IMMEDIATELY PRIOR TO THAT DATE, OR THE REENLISTMENT BONUS, WHICHEVER IS THE GREATER AMOUNT.

IN OUR DECISION OF JUNE 29, 1955, 34 COMP. GEN. 715, INTERPRETING SECTION 208 OF THE CAREER COMPENSATION ACT, WE CONCLUDED THAT---

* * * IT IS APPARENT THAT A MEMBER WHO RECEIVED AN ENLISTMENT ALLOWANCE FOR A REENLISTMENT AFTER OCTOBER 1, 1949, IN EFFECT RECEIVED THE (REENLISTMENT) BONUS PLUS SOMETHING ELSE, THAT IS, THE AMOUNT BY WHICH THE ALLOWANCE EXCEEDED THE AMOUNT WHICH WOULD HAVE BEEN PAYABLE AS BONUS EXCEPT FOR A SAVING PROVISION, * * *

WE ADHERE TO THAT CONCLUSION AND IT WOULD SEEM TO FOLLOW THAT A REENLISTMENT ENTERED INTO AFTER OCTOBER 1, 1949, REWARDED BY AN ENLISTMENT ALLOWANCE IN LIEU OF A SMALLER REENLISTMENT BONUS SHOULD BE CONSIDERED AS ONE OF THE FOUR ENLISTMENTS ENTERED INTO AFTER OCTOBER 1, 1949, FOR WHICH REENLISTMENT BONUSES MAY BE PAID UNDER SECTION 207 OF THE CAREER COMPENSATION ACT. QUESTION 3, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE.