B-123370, DECEMBER 28, 1955, 35 COMP. GEN. 371

B-123370: Dec 28, 1955

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PRIOR TO THE TERMINATION OF THE REENLISTMENT CONTRACT ON WHICH THE BONUS IS BASED. 1955: REFERENCE IS MADE TO LETTER DATED MARCH 22. THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET FORTH IN COMMITTEE ACTION NO. 115. WHO UPON REENLISTMENT WERE PAID A REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949. IF THE ELECTION MUST BE MADE DURING THE SAME CONTRACT OF ENLISTMENT IS THERE ANY TIME LIMIT WITHIN WHICH IT MUST BE MADE? 3. IF THE ANSWERS TO THE FOREGOING QUESTIONS ARE BOTH IN THE AFFIRMATIVE. (2) ANY MEMBER OF A UNIFORMED SERVICE IN ACTIVE FEDERAL SERVICE ON THE DATE OF ENACTMENT OF THIS AMENDATORY ACT WHO ELECTS TO BE COVERED BY SECTION 208 OF THIS ACT OF WHO IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION.

B-123370, DECEMBER 28, 1955, 35 COMP. GEN. 371

GRATUITIES - REENLISTMENT BONUS - ELECTION OF BENEFITS ENLISTED PERSONNEL WHO REENLIST AFTER JULY 16, 1954--- THE DATE OF THE ACT AMENDING THE REENLISTMENT BONUS PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949--- AND WHO ACCEPT A BONUS COMPUTED UNDER SECTION 207 OF THE ACT MAY, PRIOR TO THE TERMINATION OF THE REENLISTMENT CONTRACT ON WHICH THE BONUS IS BASED, ELECT TO RECEIVE THE GREATER BENEFITS UNDER SECTION 208, AND A RETROACTIVE ADJUSTMENT IN THE MEMBER'S PAY MAY BE MADE.

TO THE SECRETARY OF DEFENSE, DECEMBER 28, 1955:

REFERENCE IS MADE TO LETTER DATED MARCH 22, 1955, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION WITH RESPECT TO THE TIME ALLOWABLE TO ENLISTED PERSONNEL, REENLISTING ON OR AFTER JULY 16, 1954, TO ELECT TO BE PAID THE DIFFERENCE BETWEEN THE AMOUNT OF REENLISTMENT BONUS RECEIVED UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238, AND THE AMOUNT AUTHORIZED UNDER SECTION 208 OF THAT ACT AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C., SUPP. II, 239. THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET FORTH IN COMMITTEE ACTION NO. 115, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY ENLISTED MEMBERS, WHO UPON REENLISTMENT WERE PAID A REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, LATER ELECT EITHER DURING THE SAME CONTRACT OF ENLISTMENT OR A SUBSEQUENT CONTRACT OF ENLISTMENT TO BE PAID THE DIFFERENCE BETWEEN THE SUM RECEIVED AND THE SUM OF THE REENLISTMENT BONUS PRESCRIBED IN SECTION 208, SUPRA, IF OTHERWISE ENTITLED THERETO?

2. IF THE ELECTION MUST BE MADE DURING THE SAME CONTRACT OF ENLISTMENT IS THERE ANY TIME LIMIT WITHIN WHICH IT MUST BE MADE?

3. IF THE ANSWERS TO THE FOREGOING QUESTIONS ARE BOTH IN THE AFFIRMATIVE, MAY THE DATE OF DETERMINATION OF THE QUESTIONS BY THE COMPTROLLER GENERAL BE REGARDED AS THE COMMENCEMENT DATE OF THE TIME LIMIT FOR THOSE MEMBERS WHO REENLISTED BETWEEN 16 JULY 1954 (DATE OF APPROVAL OF PUBLIC LAW 506, 83D CONGRESS, 68 STAT. 488) AND THE DATE OF THE DETERMINATION?

TITLE II OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805 (37 U.S.C. 232-238), AS AMENDED BY THE ABOVE-CITED ACT OF JULY 16, 1954, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 207. (A) MEMBERS OF THE UNIFORMED SERVICES WHO ENLIST * * * WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION, OR WITHIN SUCH LESSER PERIOD OF TIME AS THE SECRETARY CONCERNED MAY DETERMINE FROM TIME TO TIME, SHALL BE PAID A LUMP SUM REENLISTMENT BONUS OF $40, $90, $160, $250, OR $360 UPON ENLISTMENT FOR A PERIOD OF TWO, THREE, FOUR, FIVE, OR SIX YEARS, RESPECTIVELY; AND, UPON ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME AMOUNTING TO MORE THAN SIX YEARS A LUMP SUM REENLISTMENT BONUS OF $360 SHALL BE PAID, AND, UPON THE COMPLETION OF SIX YEARS' ENLISTED SERVICE IN SUCH ENLISTMENT, FOR EACH YEAR THEREAFTER A LUMP SUM PAYMENT OF $60 SHALL BE MADE IN ADVANCE, SUBJECT TO THE LIMITATION THAT THE TOTAL AMOUNT PAID SHALL NOT EXCEED $1,440. * * *

(E) THIS SECTION DOES NOT APPLY TO---

(1) ANY PERSON WHO ORIGINALLY ENLISTS IN A UNIFORMED SERVICE AFTER THE DATE OF ENACTMENT ( JULY 16, 1954), OF THIS AMENDATORY ACT;

(2) ANY MEMBER OF A UNIFORMED SERVICE IN ACTIVE FEDERAL SERVICE ON THE DATE OF ENACTMENT OF THIS AMENDATORY ACT WHO ELECTS TO BE COVERED BY SECTION 208 OF THIS ACT OF WHO IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION;

(3) ANY PERSON WHO---

(A) WAS DISCHARGED OR RELEASED FROM ACTIVE DUTY FROM A UNIFORMED SERVICE NOT MORE THAN NINETY DAYS BEFORE THE DATE OF ENACTMENT OF THIS AMENDATORY ACT,

(B) REENLISTS IN THAT SERVICE WITHIN NINETY DAYS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY,

(C) ELECTS TO BE COVERED BY SECTION 208 OF THIS ACT, AND

(D) IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION; OR

(4) ANY PERSON COVERED BY CLAUSE (2) OR (3) WHO AT ANY TIME ELECTS, OR HAS ELECTED, TO BE COVERED BY SECTION 208 OF THIS ACT.

SEC. 208. (A) SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, A MEMBER OF A UNIFORMED SERVICE WHO REENLISTS IN THE REGULAR COMPONENT OF THE SERVICE CONCERNED WITHIN NINETY DAYS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY, AND WHO IS NOT COVERED BY SECTION 207 OF THIS ACT, IS ENTITLED TO A BONUS COMPUTED ACCORDING TO THE FOLLOWING TABLE:

TABLE REENLISTMENT COLUMN (1) TAKE COLUMN (2) MULTIPLY BY INVOLVED (1) FIRST --------------- MONTHLY BASIC PAY TO NUMBER OF YEARS SPECIFIED

WHICH THE MEMBER WAS IN REENLISTMENT CONTRACT,

ENTITLED AT THE TIME OR SIX, IF NONE SPECIFIED.

OF DISCHARGE. (2) (3) SECOND --------- ---- TWO-THIRDS OF THE NUMBER OF YEARS SPECIFIED

MONTHLY BASIC PAY TO IN REENLISTMENT CONTRACT,

WHICH THE MEMBER WAS OR SIX, IF NONE SPECIFIED.

ENTITLED AT THE TIME (3)

OF DISCHARGE. (4) THIRD --------------- ONE THIRD OF THE NUMBER OF YEARS SPECIFIED

MONTHLY BASIC PAY TO IN REENLISTMENT CONTRACT,

WHICH THE MEMBER WAS OR SIX, IF NONE SPECIFIED.

ENTITLED AT THE TIME (3)

OF DISCHARGE. (5) FOURTH (AND ONE SIXTH OF THE NUMBER OF YEARS SPECIFIED SUBSEQUENT). MONTHLY BASIC PAY TO IN REENLISTMENT CONTRACT,

WHICH THE MEMBER WAS OR SIX, IF NONE SPECIFIED.

ENTITLED AT THE TIME (3)

OF DISCHARGE. (5) FOOTNOTES FOR PRECEDING TABLE: (1) ANY REENLISTMENT WHEN A BONUS WAS NOT AUTHORIZED IS NOT COUNTED. (2) TWO THIRDS OF THE MONTHLY BASIC PAY IN THE CASE OF A MEMBER IN PAY GRADE E 1 AT THE TIME OF DISCHARGE. (3) ON THE SIXTH ANNIVERSARY OF AN INDEFINITE REENLISTMENT, AND ON EACH ANNIVERSARY THEREAFTER, THE MEMBER IS ENTITLED TO A BONUS EQUAL TO ONE-THIRD OF THE MONTHLY BASIC PAY TO WHICH HE IS ENTITLED ON THAT ANNIVERSARY DATE. (4) NO BONUS MAY BE PAID TO A MEMBER IN PAY GRADE E-1 OR E-2 AT THE TIME OF DISCHARGE. (5) NO BONUS MAY BE PAID TO A MEMBER IN PAY GRADE E-1, E 2, OR E-3 AT THE TIME OF DISCHARGE.

IN THE DISCUSSION APPEARING IN COMMITTEE ACTION NO. 115, MENTIONED ABOVE, IT IS STATED AS FOLLOWS:

IT WILL BE NOTED THAT THE ACT STATES THAT SECTION 207 DOES NOT APPLY TO ANY PERSON WHO AT ANY TIME ELECTS, OR HAS ELECTED, TO BE COVERED BY SECTION 208. IT DOES NOT STATE THAT A PAYMENT RECEIVED UNDER SECTION 207 PRECLUDES THE MEMBER FROM ELECTING PAYMENT UNDER SECTION 208 AT SOME SUBSEQUENT DATE.

ACCORDINGLY, A DETERMINATION IS REQUIRED OF THE QUESTION OF WHETHER OR NOT A TIME LIMIT EXISTS AFTER REENLISTMENT, DURING WHICH A MEMBER HAS THE OPTION OF CHANGING HIS MIND, ELECTING PAYMENT UNDER SECTION 208, AND RECEIVING A LEGAL PAYMENT OF THE DIFFERENCE BETWEEN THE AMOUNT RECEIVED UNDER SECTION 207 AND AN AMOUNT WHICH WOULD HAVE BEEN DUE UNDER SECTION 208.

THE ACCEPTANCE OF A REENLISTMENT BONUS COMPUTED UNDER THE PROVISIONS OF SECTION 207 IS NOT AN ELECTION AND SUBSECTION (E) OF THAT SECTION PLACES NO EXPRESS LIMIT UPON THE TIME WITHIN WHICH AN ELIGIBLE MEMBER MAY ELECT TO BE COVERED BY SECTION 208. THE STATUTE MUST BE TAKEN, AS CONTEMPLATING THAT THE ELECTION WILL BE MADE REASONABLY, AND IT IS OUR VIEW THAT IT WAS NOT INTENDED THAT SUCH ELECTIONS WOULD BE RECOGNIZED AS A BASIS FOR RETROACTIVE ADJUSTMENTS IN MEMBERS' PAY ACCOUNTS IF MADE AFTER THE COMPLETION AND TERMINATION OF THE REENLISTMENT CONTRACT WHOSE INCEPTION AND EXISTENCE GAVE RISE TO THE RIGHT OF ELECTION. IN OTHER WORDS, IT IS OUR VIEW THAT THE RIGHT OF ELECTION TO RECEIVE A REENLISTMENT BONUS UNDER SECTION 208 DOES NOT OUTLIVE THE CONTRACT ON WHICH IT IS BASED AND, HENCE, EXPIRES UPON THE MEMBER'S DISCHARGE FROM THE REENLISTMENT WITH RESPECT TO WHICH THE RIGHT OF ELECTION AROSE. THE FIRST QUESTION IS ANSWERED ACCORDINGLY AND THE SECOND QUESTION IS ANSWERED BY SAYING THAT THE MEMBER MAY MAKE THE ELECTION AT ANY TIME PROVIDED HE MAKES IT BEFORE THE TERMINATION OF THE REENLISTMENT CONTRACT INVOLVED. NO ANSWER TO QUESTION 3 APPEARS TO BE NECESSARY.