B-131318, MAY 28, 1957, 36 COMP. GEN. 788

B-131318: May 28, 1957

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MILITARY PERSONNEL - GRATUITIES - REENLISTMENT - ENLISTMENT AND IMMEDIATE PROMOTION - BONUS COMPUTATION A MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS IN ONE GRADE AND IS IMMEDIATELY PROMOTED TO A HIGHER GRADE IS ENTITLED TO HAVE THE ENLISTMENT AND PROMOTION CONSIDERED AS ONE TRANSACTION SO THAT THE REENLISTMENT BONUS WHICH IS PAYABLE ON THE BASIS OF THE "GRADE IN WHICH THE MEMBER IS ENLISTED" MAY BE COMPUTED ON THE PAY OF THE HIGHER GRADE. 1957: FURTHER REFERENCE IS MADE TO LETTER OF MARCH 29. REENLISTS IN ONE GRADE AND ON THE SAME DAY IS PROMOTED TO A HIGHER TEMPORARY OR PERMANENT ENLISTED GRADE IS ENTITLED UNDER SECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949. DISCUSSION OF THE MATTER IS SET FORTH IN COMMITTEE ACTION NO. 176 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE.

B-131318, MAY 28, 1957, 36 COMP. GEN. 788

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT - ENLISTMENT AND IMMEDIATE PROMOTION - BONUS COMPUTATION A MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS IN ONE GRADE AND IS IMMEDIATELY PROMOTED TO A HIGHER GRADE IS ENTITLED TO HAVE THE ENLISTMENT AND PROMOTION CONSIDERED AS ONE TRANSACTION SO THAT THE REENLISTMENT BONUS WHICH IS PAYABLE ON THE BASIS OF THE "GRADE IN WHICH THE MEMBER IS ENLISTED" MAY BE COMPUTED ON THE PAY OF THE HIGHER GRADE.

TO THE SECRETARY OF DEFENSE, MAY 28, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 29, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION WHETHER A MEMBER OF THE UNIFORMED SERVICES WHO, HAVING BEEN RELEASED FROM ACTIVE DUTY AS AN OFFICER, REENLISTS IN ONE GRADE AND ON THE SAME DAY IS PROMOTED TO A HIGHER TEMPORARY OR PERMANENT ENLISTED GRADE IS ENTITLED UNDER SECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, TO A REENLISTMENT BONUS COMPUTED ON THE BASIS OF THE PAY OF THE HIGHER ENLISTED GRADE. DISCUSSION OF THE MATTER IS SET FORTH IN COMMITTEE ACTION NO. 176 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, ENCLOSED WITH THE LETTER.

SECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. SUPP. IV, 239 (D), PROVIDES AS FOLLOWS:

AN OFFICER OF A UNIFORMED SERVICE WHO REENLISTS IN THAT SERVICE WITHIN NINETY DAYS AFTER HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER IS ENTITLED TO A BONUS COMPUTED ACCORDING TO THE TABLE IN SUBSECTION (A) OF THIS SECTION, IF HE SERVED IN AN ENLISTED STATUS IN THAT SERVICE IMMEDIATELY BEFORE SERVING AS AN OFFICER. FOR THE PURPOSE OF THIS SUBSECTION, THE MONTHLY BASIC PAY (OR APPROPRIATE FRACTION IF THE MEMBER RECEIVED A BONUS FOR A PRIOR REENLISTMENT) OF THE GRADE IN WHICH THE MEMBER IS ENLISTED (COMPUTED IN ACCORDANCE WITH THE CUMULATIVE YEARS OF SERVICE OF THE MEMBER) IS TO BE USED IN COLUMN 1 OF THE TABLE SET FORTH UNDER SUBSECTION (A) OF THIS SECTION INSTEAD OF THE MONTHLY BASIC PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER.

IN THE DISCUSSION APPEARING IN COMMITTEE ACTION NO. 176, MENTIONED ABOVE, IT IS STATED AS FOLLOWS:

A LITERAL INTERPRETATION OF SECTION 208 (D), SUPRA, REQUIRES THE CONCLUSION THAT COMPUTATION OF THE BONUS ON A HIGHER TEMPORARY OR PERMANENT GRADE IS ERRONEOUS SINCE THE SUBSECTION STATES "* * * THE MONTHLY BASIC PAY * * * OF THE GRADE IN WHICH THE MEMBER IS ENLISTED * * *.' HOWEVER, IT IS NOTED THAT THE ENLISTMENT IN ONE GRADE AND PROMOTION, TEMPORARY OR PERMANENT, TO A HIGHER GRADE ARE ACCOMPLISHED AT THE SAME TIME. THUS, THE MEMBER'S PAY AND ALLOWANCES FROM THE DAY OF REENLISTMENT ARE BASED ON THE HIGHER GRADE, AND AT LEAST FROM AN EQUITABLE VIEWPOINT HE IS ENTITLED TO A REENLISTMENT BONUS COMPUTED ON THE HIGHER GRADE. CONGRESSIONAL HEARINGS AND REPORTS ON THE BILL WHICH BECAME THE ACT OF 16 JULY 1954 DO NOT CLARIFY THE PURPOSE OF SECTION 208 (D) IN SO FAR AS THE PROBLEM UNDER DISCUSSION IS CONCERNED, OTHER THAN TO EMPHASIZE THE POINT THAT "THE BONUS IS COMPUTED BY EMPLOYING THE BASIC PAY OF THE GRADE IN WHICH THE OFFICER IS ENLISTED, RATHER THAN THE GRADE FROM WHICH HE WAS DISCHARGED, IN THE TABLE IN SUBSECTION (A).' SEE REPORT NO. 2098, HOUSE OF REPRESENTATIVES DATED 8 JULY 1954, AND SENATE REPORT NO. 1640, 25 JUNE 1954, BOTH ACCOMPANYING S. 3539.

THE COMMITTEE ACTION FURTHER STATES THAT IN ORDER TO ENCOURAGE REENLISTMENT OF HIGH CALIBER PERSONNEL, IT IS A COMMON PRACTICE OF THE DEPARTMENT OF THE ARMY TO ENLIST FORMER OFFICER AND WARRANT OFFICER PERSONNEL IN CERTAIN LOWER GRADES AND PROMOTE THEM THE SAME DAY TO A HIGHER TEMPORARY ENLISTED GRADE. IN THE MARINE CORPS, ALL ENLISTMENTS AND REENLISTMENTS ARE EFFECTED IN THE GRADE OF PRIVATE, AND THE MEMBERS, INCLUDING FORMER OFFICERS, ARE, WHEN AUTHORIZED BY REGULATIONS OR THE COMMANDANT OF THE MARINE CORPS, IMMEDIATELY PROMOTED TO A HIGHER ENLISTED GRADE. IT IS STATED THAT THE NAVY AND AIR FORCE REENLIST FORMER OFFICERS IN VARIOUS GRADES BUT DO NOT IMMEDIATELY PROMOTE THEM TO ANY HIGHER GRADE. IT IS POINTED OUT THAT IN A NUMBER OF INSTANCES ARMY DISBURSING OFFICERS HAVE COMPUTED THE REENLISTMENT BONUS BASED ON THE HIGHER TEMPORARY GRADE BUT THAT OUR OFFICE HAS WITHHELD CREDIT FOR SUCH PAYMENTS IN THE DISBURSING OFFICER'S ACCOUNTS.

THE ANSWER TO THE QUESTION PRESENTED DEPENDS UPON THE MEANING OF "THE GRADE IN WHICH THE MEMBER IS ENLISTED," AS USED IN SECTION 208 (D), WHEN CONSIDERED IN RELATION TO SUCH QUESTION. IT IS TRUE, THAT TECHNICALLY, AND FROM THE STANDPOINT OF FORM, THERE WOULD BE AN ENLISTMENT IN THE LOWER GRADE IN ANY CASE OF THE TYPE DESCRIBED. HOWEVER, WHERE THE PERSON SO ENLISTING IS IMMEDIATELY ADVANCED TO A HIGHER GRADE AND, HENCE, BECOMES FOR PAY AND OTHER PURPOSES AN ENLISTED MEMBER OF THE GRADE TO WHICH ADVANCED AT THE TIME OF ENLISTMENT, IT WOULD SEEM THAT THE ENLISTMENT AND ADVANCEMENT REASONABLY SHOULD BE VIEWED AS BEING, IN SUBSTANCE, PARTS OF ONE ENLISTMENT TRANSACTION WHEREBY THE PERSON BEING ENLISTED BECOMES A MEMBER OF THE UNIFORMED SERVICES OF THE HIGHER ENLISTED GRADE.

TO VIEW SUCH AN ENLISTMENT AND ADVANCEMENT TRANSACTION AS ACCOMPLISHING AN ENLISTMENT IN THE HIGHER GRADE IS, WE BELIEVE, IN FULL CONSONANCE WITH THE PURPOSE AND INTENT OF SECTION 208, AS INDICATED GENERALLY BY ITS LANGUAGE AND LEGISLATIVE HISTORY, PARTICULARLY WHEN IT IS CONSIDERED THAT IN ALL REENLISTMENT CASES NOT INVOLVING SERVICE AS AN OFFICER BETWEEN PERIODS OF ENLISTED SERVICE, THE REENLISTMENT BONUS PAYABLE UNDER THAT SECTION IS COMPUTED ON THE BASIC PAY TO WHICH THE MEMBER WAS ENTITLED AT THE TIME OF HIS DISCHARGE FROM HIS OLD ENLISTMENT. HENCE, IT IS CONCLUDED THAT A MEMBER WHO, FOLLOWING SERVICE AS AN OFFICER, REENLISTS IN ONE GRADE AND IS SIMULTANEOUSLY PROMOTED TO A HIGHER TEMPORARY OR PERMANENT GRADE, EFFECTIVE ON THE DATE OF REENLISTMENT, MAY BE CONSIDERED AS HAVING ENLISTED IN THE HIGHER GRADE FOR THE PURPOSE OF COMPUTING HIS REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 208.