B-136765, AUGUST 14, 1958, 38 COMP. GEN. 126

B-136765: Aug 14, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS AN AVIATION CADET MAY HAVE THE AVIATION CADET SERVICE REGARDED AS ENLISTED SERVICE WITHIN THE MEANING OF SECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949. THE FACT THAT THE AIRMAN'S SERVICE AS AN OFFICER IN THE AIR FORCE WAS PRECEDED BY SERVICE AS AN OFFICER IN THE ARMY PRIOR TO THE ESTABLISHMENT OF THE AIR FORCE BY THE NATIONAL SECURITY ACT OF 1947 DOES NOT PRECLUDE THE SERVICE FROM BEING CONSIDERED IN THE SAME BRANCH UNDER SECTION 305 (A) OF THE NATIONAL SECURITY ACT AS THOUGH THE TRANSFER HAD NOT BEEN MADE. THE AIRMAN IS ENTITLED TO A REENLISTMENT BONUS FOR A FIRST REENLISTMENT. REQUESTS OUR DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON THE MILITARY PAY ORDER IN THE FAVOR OF AIRMAN FIRST CLASS RALPH M.

B-136765, AUGUST 14, 1958, 38 COMP. GEN. 126

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - AVIATION CADET SERVICE - ARMY OFFICERS TRANSFERRED TO AIR FORCE AN AIRMAN WHO REENLISTS IN THE AIR FORCE WITHIN NINETY DAYS AFTER RELEASE AS A COMMISSIONED OFFICER AND WHO, PRIOR TO COMMISSIONED SERVICE IN THE ARMY AND THE AIR FORCE, WAS AN AVIATION CADET MAY HAVE THE AVIATION CADET SERVICE REGARDED AS ENLISTED SERVICE WITHIN THE MEANING OF SECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239 (D), AND THE FACT THAT THE AIRMAN'S SERVICE AS AN OFFICER IN THE AIR FORCE WAS PRECEDED BY SERVICE AS AN OFFICER IN THE ARMY PRIOR TO THE ESTABLISHMENT OF THE AIR FORCE BY THE NATIONAL SECURITY ACT OF 1947 DOES NOT PRECLUDE THE SERVICE FROM BEING CONSIDERED IN THE SAME BRANCH UNDER SECTION 305 (A) OF THE NATIONAL SECURITY ACT AS THOUGH THE TRANSFER HAD NOT BEEN MADE; ACCORDINGLY, THE AIRMAN IS ENTITLED TO A REENLISTMENT BONUS FOR A FIRST REENLISTMENT.

TO LIEUTENANT W. E. BURLESON, DEPARTMENT OF THE AIR FORCE, AUGUST 14, 1958:

YOUR LETTER OF MAY 19, 1958, WITH ENCLOSURES, REQUESTS OUR DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON THE MILITARY PAY ORDER IN THE FAVOR OF AIRMAN FIRST CLASS RALPH M. LOWER, AF19006477, FOR REENLISTMENT BONUS. YOU EXPRESS DOUBT AS TO PAYMENT ON THE GROUND THAT SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. 239, MAY NOT BE APPLICABLE TO OFFICERS WHOSE ONLY STATUS PRIOR TO COMMISSIONED STATUS WAS THAT OF AN AVIATION CADET. ALSO, YOU EXPRESS DOUBT THAT THE PRINCIPLE STATED IN 28 COMP. GEN. 460, REGARDING ENLISTED MEMBERS TRANSFERRED TO THE AIR FORCE UNDER THE NATIONAL SECURITY ACT OF 1947, 5 U.S.C. 171 NOTE, APPLIED TO FORMER OFFICERS.

THE FILE SHOWS THAT THE MEMBER ENLISTED AS AN AVIATION CADET AUGUST 18, 1941, AND WAS DISCHARGED MARCH 16, 1942, TO ACCEPT A COMMISSION AS SECOND LIEUTENANT. HE CONTINUED ON ACTIVE DUTY AS A COMMISSIONED OFFICER UNTIL RELEASED THEREFROM NOVEMBER 30, 1957. HE REENLISTED IN THE AIR FORCE DECEMBER 5, 1957, AND HAS ELECTED AND IS NOW CLAIMING REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949. THAT SECTION CONTAINS THE FOLLOWING ROVISIONS:

(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 * * *.

(D)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), IF HE SERVED IN AN ENLISTED STATUS IN THAT SERVICE IMMEDIATELY BEFORE SERVING AS AN OFFICER. * * *

THE AIRMAN REFERS TO PARAGRAPHS 11403.B AND 10902, AIR FORCE MANUAL 173 20, SUBSTANTIATING HIS CLAIM. PARAGRAPH 11403.B, AIR FORCE MANUAL 173 20, CURRENT AT TIME OF AIRMAN'S ENLISTMENT, PROVIDES THAT AN OFFICER OF THE AIR FORCE, WHO REENLISTS IN THE REGULAR AIR FORCE ON OR AFTER JULY 16, 1954, WITHIN 90 DAYS AFTER DATE OF RELEASE FROM ACTIVE DUTY AS AN OFFICER, IS ENTITLED TO A REENLISTMENT BONUS IF HE SERVED IN AN ENLISTED STATUS IN THE AIR FORCE IMMEDIATELY PRIOR TO SERVICE AS AN OFFICER. THAT PROVISION IS BASED ON THE PROVISIONS OF SECTION 208 (D) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 239 (D). PARAGRAPH 10902 DEFINES THE GRADE OF AVIATION CADET AS " A SPECIAL AND SEPARATE ENLISTED GRADE," USING THE SAME LANGUAGE AS SECTION 1 OF THE ACT OF JUNE 3, 1941, 55 STAT. 239, 10 U.S.C. 291, WHICH CREATED THAT GRADE. THAT ACT ALSO PROVIDES THAT, UNDER REGULATIONS, CERTAIN PERSONS SUCH AS MR. LOWER "MAY ENLIST AS AVIATION CADETS.'

FROM THE LANGUAGE USED IN THE ACT OF JUNE 3, 1941, IT IS APPARENT THAT AN ARMY AVIATION CADET IS AN ENLISTED MAN AND THEREFORE MR. LOWER SERVED IN AN ENLISTED STATUS, WITHIN THE MEANING OF SECTION 208 (D) REFERRED TO ABOVE, IMMEDIATELY PRIOR TO HIS SERVICE AS AN OFFICER.

AS TO THE FURTHER QUESTION WHETHER THE AIRMAN IS ELIGIBLE FOR REENLISTMENT BONUS UNDER SECTION 208 (D) SINCE HIS SERVICE AS AN OFFICER OF THE AIR FORCE WAS IMMEDIATELY PRECEDED BY SERVICE AS AN OFFICER IN THE ARMY, IT WOULD APPEAR THAT UNDER SECTION 305 (A) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508, 5 U.S.C. 851, WHICH PROVIDES THAT ALL LAWS APPLICABLE WITH RESPECT TO ANY FUNCTION, ACTIVITY, PERSONNEL, ETC., TRANSFERRED UNDER THAT ACT, SHALL HAVE THE SAME EFFECT AS IF SUCH TRANSFER HAD NOT BEEN MADE, THE PRINCIPLE STATED IN 28 COMP. GEN. 460, WOULD BE EQUALLY APPLICABLE TO THIS CASE, EVEN THOUGH AT THE TIME OF TRANSFER TO THE AIR FORCE SERVICE WAS BEING PERFORMED AS AN OFFICER.

IT IS THEREFORE CONCLUDED THAT THE REENLISTMENT BONUS IS PAYABLE TO THE AIRMAN AS A FIRST REENLISTMENT UNDER THE PROVISIONS OF THE SAID SECTION 208. THE MILITARY PAY ORDER IS RETURNED FOR PAYMENT IF OTHERWISE CORRECT, SUBJECT TO THE EXCEPTION NOTED IN PARAGRAPH 11404B (2), AIR FORCE MANUAL 173-20, AND SECTION 208 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 239 (B), RELATING TO THOSE CASES WHERE TWENTY YEARS SERVICE WILL BE COMPLETED BEFORE THE EXPIRATION OF THE PERIOD FOR WHICH REENLISTED.