B-137011, OCTOBER 27, 1958, 38 COMP. GEN. 333

B-137011: Oct 27, 1958

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MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - QUALIFICATION PERIOD A MEMBER OF THE UNIFORMED SERVICES WHO IS RETAINED IN THE SERVICE PAST THE EXPIRATION OF HIS ENLISTMENT FOR A PURPOSE OTHER THAN FOR THE RENDITION OF SERVICE. DOES NOT HAVE A SERVICE STATUS OR THE CONTINUITY OF SERVICE NECESSARILY FOR ELIGIBILITY FOR A REENLISTMENT BONUS UNDER SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949. THE ELIMINATION OF THE REQUIREMENT THAT A MEMBER OF THE UNIFORMED SERVICES MUST HAVE BEEN HONORABLY DISCHARGED IN ORDER TO QUALIFY FOR A REENLISTMENT BONUS AND THE CHANGE IN THE BASIS FOR REENLISTMENT BONUS ENTITLEMENT FROM PRIOR SERVICE TO FUTURE OBLIGATED SERVICE IN THE ENACTMENT OF SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949.

B-137011, OCTOBER 27, 1958, 38 COMP. GEN. 333

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - QUALIFICATION PERIOD A MEMBER OF THE UNIFORMED SERVICES WHO IS RETAINED IN THE SERVICE PAST THE EXPIRATION OF HIS ENLISTMENT FOR A PURPOSE OTHER THAN FOR THE RENDITION OF SERVICE, AND WHO REENLISTS MORE THAN THREE MONTHS AFTER THE DATE OF THE EXPIRATION OF HIS ENLISTMENT BUT WITHIN THREE MONTHS OF HIS ACTUAL DISCHARGE, DOES NOT HAVE A SERVICE STATUS OR THE CONTINUITY OF SERVICE NECESSARILY FOR ELIGIBILITY FOR A REENLISTMENT BONUS UNDER SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238 -239. THE ELIMINATION OF THE REQUIREMENT THAT A MEMBER OF THE UNIFORMED SERVICES MUST HAVE BEEN HONORABLY DISCHARGED IN ORDER TO QUALIFY FOR A REENLISTMENT BONUS AND THE CHANGE IN THE BASIS FOR REENLISTMENT BONUS ENTITLEMENT FROM PRIOR SERVICE TO FUTURE OBLIGATED SERVICE IN THE ENACTMENT OF SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238-239, PRECLUDE THE ISSUANCE OF REGULATIONS BY THE VARIOUS SERVICES WHICH REQUIRE AN HONORABLE DISCHARGE AS CONDITION PRECEDENT TO THE PAYMENT OF A REENLISTMENT BONUS. THE DISCHARGE OF A MEMBER OF THE UNIFORMED SERVICES WHO IS RETAINED IN THE SERVICE BEYOND THE EXPIRATION OF ENLISTMENT FOR PURPOSES OTHER THAN FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE RENDITION OF SERVICE RELATES BACK TO THE EXPIRATION OF ENLISTMENT SO THAT UPON REENLISTMENT OF THE MEMBER WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE THE FACT THAT HE WAS NOT IN A PAY STATUS AT THE TIME OF DISCHARGE DOES NOT MAKE HIM INELIGIBLE FOR A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239.

TO THE SECRETARY OF DEFENSE, OCTOBER 27, 1958:

REFERENCE IS MADE TO LETTER OF AUGUST 2, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), IN WHICH DECISION IS REQUESTED RELATIVE TO THE PAYMENT OF REENLISTMENT BONUS UNDER SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238 239, UNDER CIRCUMSTANCES DISCLOSED IN SEVERAL QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 222, MILITARY PAY AND ALLOWANCES COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTIONS ARE AS FOLLOWS:

1. MUST AN ENLISTED MEMBER REENLIST WITHIN 3 MONTHS, OR 90 DAYS AS APPROPRIATE, FROM THE DATE OF EXPIRATION OF HIS ENLISTMENT, AS DISTINGUISHED FROM DATE OF ACTUAL DISCHARGE, IN ORDER TO BE ENTITLED TO REENLISTMENT BONUS UNDER SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949 (37 U.S.C. 238-239), HIS RETENTION BEYOND DATE OF EXPIRATION OF ENLISTMENT NOT HAVING BEEN FOR THE PURPOSE OF RENDERING SERVICE?

2. MUST THE DISCHARGE PRECEDING THE REENLISTMENT IN THE REGULAR SERVICE CONCERNED BE UNDER HONORABLE CONDITIONS IN ORDER TO BE ENTITLED TO REENLISTMENT BONUS UNDER SECTIONS 207 AND 208?

3. DOES AN ENLISTED MEMBER RETAINED BEYOND EXPIRATION OF ENLISTMENT FOR ANY PURPOSE OTHER THAN RENDERING SERVICE FORFEIT REENLISTMENT BONUS UNDER SECTION 208 BECAUSE HE IS NOT ENTITLED TO BASIC PAY AT TIME OF ACTUAL DISCHARGE?

THE FOLLOWING EXAMPLES ARE SET FORTH IN THE COMMITTEE ACTION AS ILLUSTRATING THE APPLICATION OF THE POSSIBLE ANSWERS TO THE QUESTIONS PRESENTED:

EXAMPLE 1

MEMBER ENLISTED FOR 3 YEARS ON 6 APR. 53; AT EXPIRATION OF ENLISTMENT WAS CONFINED SERVING SENTENCE OF A GENERAL COURT-MARTIAL; WAS DISCHARGED WITH A BAD CONDUCT DISCHARGE ON 20 NOV. 56 PURSUANT TO SENTENCE OF A GENERAL COURT-MARTIAL WHILE HOLDING THE RANK OF PRIVATE, 268 DAYS LOST; NO SERVICE PERFORMED AFTER DATE OF EXPIRATION OF ENLISTMENT 5 APR. 56; ON 4 OCT. 56 THE SECRETARY CONCERNED WAIVED REGULATIONS PROHIBITING HIS REENLISTMENT AND AUTHORIZED SAME; REENLISTED ON 18 DEC. 56 FOR 2 YEARS; WAS HONORABLY DISCHARGED ON 3 FEB. 58 AT HIS REQUEST, FOR THE CONVENIENCE OF THE GOVERNMENT IN ORDER TO REENLIST, A CORPORAL, NO TIME LOST; REENLISTED ON 4 FEB. 58 FOR 6 EARS; AT TIME OF EACH REENLISTMENT ELECTED REENLISTMENT BONUS UNDER SECTION 208.

EXAMPLE 2

MEMBER REENLISTED FOR 6 YEARS ON 15 SEP. 50; AT EXPIRATION OF ENLISTMENT WAS AWAITING SPECIAL COURT-MARTIAL; BY COURT-MARTIAL ADJUDGED 28 SEP. 56, WAS SENTENCED TO BE DISCHARGED WITH A BAD CONDUCT DISCHARGE, TO FORFEIT $40 PER MONTH FOR TWO MONTHS, TO BE CONFINED AT HARD LABOR FOR A LIKE PERIOD AND TO BE REDUCED FROM STAFF SERGEANT TO PRIVATE; CONVENING AUTHORITY AND SUPERVISORY AUTHORITY APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR DISCHARGE AND REDUCTION, BUT SUSPENDED EXECUTION OF THE DISCHARGE UNTIL COMPLETION OF APPELLATE REVIEW; ON 26 DEC. 56, JUDGE ADVOCATE GENERAL OF THE NAVY APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR REDUCTION TO SERGEANT, WAS HONORABLY DISCHARGED ON 31 JAN. 57, A SERGEANT, NO TIME LOST, NO SERVICE PERFORMED AFTER NORMAL DATE OF EXPIRATION OF ENLISTMENT, 14 SEP. 56; REENLISTED FOR 6 YEARS ON 1 FEB. 57; ELECTED REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT.

EXAMPLE 3

SAME FACTS AS IN EXAMPLE 2 EXCEPT MEMBER WAS REDUCED TO PRIVATE AND ACCORDINGLY CLAIMED A BONUS UNDER SECTION 207 (NO ELECTION AS ENTITLEMENT UNDER SECTION 208 DID NOT EXIST).

EXAMPLE 4

MEMBER WAS SENTENCED TO CONFINEMENT AND DISHONORABLE DISCHARGE WHICH WAS EXECUTED ON 12 JUL. 7; HIS ENLISTMENT HAD NOT EXPIRED; ON 13 SEP. 57 MEMBER WAS RESTORED TO DUTY AND SINCE THE PUNITIVE DISCHARGE HAD BEEN EXECUTED HE WAS REENLISTED FOR 3 YEARS IN ACCORDANCE WITH CHAPTER 7, AIR FORCE MANUAL, 125-2, AND PARAGRAPH 28, AFM 39-9. HE WAS NOT ENTITLED TO BONUS UNDER SECTION 208 AS IT WAS HIS SECOND REENLISTMENT IN PAY GRADE E- 1. HE THEREFORE CLAIMED A BONUS UNDER SECTION 207.

SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, SET OUT THE METHODS BY WHICH REENLISTMENT BONUS MAY BE COMPUTED UNDER THAT ACT, TO ENLISTED MEMBERS WHO QUALIFY FOR SUCH BONUS. SECTON 207 PROVIDES FOR PAYMENT OF A FLAT SUM BASED ON THE LENGTH OF THE REENLISTMENT, THE PROPORTIONATE AMOUNT FOR EACH YEAR OF THE ENLISTMENT INCREASING WITH THE LENGTH OF SUCH TERM AS AN INDUCEMENT FOR LONGER ENLISTMENTS. SUCH SUM IS NOT DEPENDENT ON THE MEMBER'S GRADE OR BASIC PAY AT TIME OF DISCHARGE OR RELEASE FROM LAST ENLISTMENT. IT ALSO PROVIDES THAT REENLISTMENT MUST BE WITHIN THREE MONTHS FROM DATE OF DISCHARGE OR SEPARATION, OR WITHIN SUCH LESSER PERIOD OF TIME AS THE SECRETARY CONCERNED MAY DETERMINE. SECTION 208 PROVIDES FOR A BONUS TO BE COMPUTED ACCORDING TO A TABLE OF DISCHARGE OR RELEASE, MULTIPLIED BY THE NUMBER OF YEARS FOR WHICH REENLISTED. REENLISTMENT MUST BE WITHIN NINETY DAYS AFTER DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY. THE SECRETARY CONCERNED IS AUTHORIZED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF BOTH SECTIONS. IT IS TO BE NOTED THAT THE PHRASE LIMITING PAYMENT TO "EVERY HONORABLY DISCHARGED ENLISTED MAN" APPEARING IN PRIOR LEGISLATION ON THE SUBJECT HAS BEEN OMITTED FROM BOTH SECTIONS.

IN DECISION OF MAY 19, 1928, A-22565, OUR OFFICE CONSIDERED THAT SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, WHICH PROVIDED FOR PAYMENT OF ENLISTMENT ALLOWANCE UPON REENLISTMENT WITHIN A PERIOD OF THREE MONTHS FROM DATE OF DISCHARGE, CONTEMPLATED A CONTINUITY OF SERVICE WITHIN SUCH LIMITS. THEREFORE, IT WAS HELD THAT THE NAVY ENLISTED MAN THERE INVOLVED, WHO REENLISTED WITHIN THREE MONTHS FROM DATE OF ACTUAL DISCHARGE, WAS NOT ENTITLED TO AN ENLISTMENT ALLOWANCE BECAUSE HIS STATUS AT EXPIRATION OF ENLISTMENT WAS THAT OF A NAVAL PRISONER AND HIS RELEASE FROM PRISON AND DISCHARGE FROM THE SERVICE DID NOT GIVE HIM A SERVICE STATUS AFTER EXPIRATION OF ENLISTMENT. SINCE HE WAS NOT HELD FOR SERVICE AFTER EXPIRATION OF ENLISTMENT, HIS DISCHARGE, WHEN ISSUED, RELATED BACK TO DATE OF EXPIRATION OF ENLISTMENT AND, SINCE HIS REENLISTMENT WAS MORE THAN THREE MONTHS FROM THAT DATE, THERE WAS NOT THE CONTINUITY OF NAVAL SERVICE REQUIRED BY LAW.

SIMILAR LANGUAGE CONTAINED IN SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363-364, AS AMENDED, 37 U.S.C. 110 (1946 EDITION), REQUIRED NO CHANGE IN INTERPRETATION AND IT IS OUR VIEW THAT THE PROVISIONS CONTAINED IN THE PRESENT SECTIONS 207 AND 208 ALSO ARE SUBJECT TO THE SAME INTERPRETATION. ACCORDINGLY, OUR ANSWER TO QUESTION 1, IS IN THE AFFIRMATIVE.

AS INDICATED ABOVE, SECTIONS 207 AND 208 DO NOT CONTAIN ANY PROVISION THAT THE BONUS BE PAID ONLY TO HONORABLY DISCHARGED ENLISTED MEN. IN AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SECTIONS 207 AND 208 THERE HAS NOT BEEN FOUND A POSITIVE STATEMENT OF THE REASONS FOR THE OMISSION. WAS STATED ON THE FLOOR OF THE HOUSE, HOWEVER, DURING THE CONSIDERATION OF H.R. 5007 ( CAREER COMPENSATION ACT OF 1949) THAT:

A NEW PRINCIPLE FOR ENLISTMENT BONUS WAS RECOMMENDED BY THE HOOK COMMISSION AND INCORPORATED IN THIS BILL. THE AMOUNT OF BONUS WILL BE DETERMINED NOT ON THE PRIOR SERVICE BUT ON THE NUMBER OF YEARS FOR WHICH THE INDIVIDUAL IS REENLISTING * * *.

SEE REMARKS OF MR. HAVENNER, HOUSE OF REPRESENTATIVES, DATED JUNE 14, 1949, REPORTED ON PAGE 7666, VOLUME 95, CONGRESSIONAL RECORD, 81ST CONGRESS, ST SESSION. A SIMILAR STATEMENT RELATIVE TO SECTION 207 IS CONTAINED IN HOUSE OF REPRESENTATIVES REPORT NO. 779, 81ST CONGRESS, TO ACCOMPANY H.R. 5007. SUBSEQUENT AMENDMENTS OF SECTION 207, AND THE ENACTMENT OF SECTION 208, INDICATE THAT CONGRESS ADOPTED THE PRINCIPLE STATED ABOVE, AS THE BEST MEANS OF ENCOURAGING REENLISTMENTS. BOTH SECTIONS AUTHORIZE THE SECRETARY CONCERNED TO ISSUE REGULATIONS FOR THE ADMINISTRATION THEREOF.

THE MANIFEST PURPOSE OF PAYMENT OF AN ENLISTMENT ALLOWANCE OR BONUS UPON REENLISTMENT IS TO ENCOURAGE QUALIFIED AND EXPERIENCED PERSONNEL TO OBLIGATE THEMSELVES TO CONTINUE TO SERVE IN THE ACTIVE MILITARY OR NAVAL FORCES. UNDER THE 1922 AND 1942 PAY ACTS AN ENLISTMENT ALLOWANCE WAS PAYABLE TO HONORABLY DISCHARGED ENLISTED MEN UPON REENLISTMENT WITHIN THE SPECIFIED PERIOD, COMPUTED UPON THE YEARS OF SERVICE IN THE ENLISTMENT FROM WHICH LAST DISCHARGED. APPARENTLY IT WAS THE LEGISLATIVE VIEW THAT A MEMBER SHOULD NOT RECEIVE THE ALLOWANCE, COMPUTED UPON HIS PRIOR ENLISTMENT, UNLESS HIS SERVICE DURING THE ENLISTMENT WAS SUCH AS TO ENTITLE HIM TO AN HONORABLE DISCHARGE. IN ADOPTING THE NEW PRINCIPLES OF SECTION 207 OF THE 1949 ACT FOR PAYMENT OF A REENLISTMENT BONUS UPON REENLISTMENT, BASED UPON FUTURE OBLIGATED SERVICE--- THE PERIOD FOR WHICH THE MEMBER REENLISTS--- RATHER THAN PAST SERVICE, THE CONGRESS APPARENTLY CONSIDERED IT NO LONGER NECESSARY OR PROPER TO REQUIRE THAT THE MEMBER MUST HAVE BEEN HONORABLY DISCHARGED FROM HIS PRIOR SERVICE IN ORDER TO QUALIFY FOR THE BONUS. IN ANY EVENT, THERE IS NO SUCH STATUTORY REQUIREMENT UNDER SECTIONS 207 AND 208.

SINCE THERE IS NO STATUTORY REQUIREMENT THAT A MEMBER MUST HAVE BEEN HONORABLY DISCHARGED IN ORDER TO QUALIFY FOR THE BONUS AUTHORIZED BY THE FOREGOING SECTIONS, THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER SUCH REQUIREMENT MAY BE IMPOSED BY ADMINISTRATIVE REGULATIONS. IF IT SHOULD BE DETERMINED TO BE ADMINISTRATIVELY DESIRABLE TO REENLIST A MEMBER WHO WAS NOT HONORABLY DISCHARGED, SUCH A REGULATION, BY DEPRIVING HIM OF THE REENLISTMENT BONUS, WOULD, IN EFFECT, IMPOSE ON HIS REENLISTMENT AN ADMINISTRATIVE PENALTY INCIDENT TO HIS PRIOR SERVICE. IN PROVIDING THAT THE SECRETARIES CONCERNED COULD ISSUE REGULATIONS FOR THE ADMINISTRATION OF SECTIONS 207 AND 208, IT IS NOT BELIEVED THAT THE CONGRESS INTENDED TO GRANT ANY SUCH ADMINISTRATIVE AUTHORITY AND IT IS OUR VIEW THAT ANY SUCH REGULATION IS WITHOUT EFFECT. QUESTION 2 IS ANSWERED ACCORDINGLY.

RESPECTING YOUR THIRD QUESTION, WE HAVE STATED ABOVE THAT WHERE A MEMBER IS HELD BEYOND THE EXPIRATION OF HIS ENLISTMENT FOR PURPOSES OTHER THAN FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR RENDERING SERVICE, HIS DISCHARGE, WHEN ISSUED, RELATES BACK TO DATE OF EXPIRATION OF ENLISTMENT. IT THEREFORE FOLLOWS THAT SINCE AT DATE OF EXPIRATION OF ENLISTMENT, HE WOULD HAVE BEEN ENTITLED TO THE BASIC PAY OF HIS GRADE, IF NOT OTHERWISE FORFEITED, THE FACT THAT HE MAY NOT HAVE BEEN IN RECEIPT OF OR ENTITLED TO BASIC PAY AT DATE OF ACTUAL DISCHARGE, WOULD NOT RENDER HIM INELIGIBLE FOR BONUS UNDER SECTION 208, IF OTHERWISE QUALIFIED. THE QUESTION IS ANSWERED ACCORDINGLY.

ON THE BASIS OF THE FOREGOING ANSWERS, THE MEMBER IN EXAMPLE 1, WHO RECEIVED A BAD CONDUCT DISCHARGE, NOVEMBER 20, 1956, AFTER SERVING A COURT -MARTIAL SENTENCE OF CONFINEMENT, AND HAVING PERFORMED NO SERVICE AFTER EXPIRATION OF HIS ENLISTMENT, APRIL 5, 1956, IS NOT ENTITLED TO ANY REENLISTMENT BONUS UPON REENLISTMENT DECEMBER 18, 1956, FOR THE REASONS STATED IN ANSWER TO QUESTION 1. ON REENLISTMENT FEBRUARY 4, 1958, SUBSEQUENT TO HONORABLE DISCHARGE, FEBRUARY 3, 1958, THE MEMBER IS ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 208, AS FOR A FIRST REENLISTMENT. SEE 36 COMP. GEN. 454.

THE MEMBER IN EXAMPLE 2, WAS HONORABLY DISCHARGED AS A SERGEANT ON JANUARY 31, 1957, AND REENLISTED FEBRUARY 1, 1957. HOWEVER, SINCE HE PERFORMED NO SERVICE AFTER DATE OF EXPIRATION OF HIS PRIOR ENLISTMENT, SEPTEMBER 14, 1956, HIS RETENTION BEYOND THAT DATE HAVING BEEN FOR COURT- MARTIAL PROCEEDINGS WHICH RESULTED IN CONVICTION, THE SENTENCE HAVING BEEN CONFIRMED, IN PART, UPON APPELLATE REVIEW, HE WOULD NOT BE ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 208 FOR THE REASON COVERED IN THE ANSWER TO QUESTION 1.

EXAMPLE 3 REQUIRES THE SAME ANSWER AS TO ELIGIBILITY UNDER SECTION 207.

THE MEMBER IN EXAMPLE 4, HAVING BEEN DISHONORABLY DISCHARGED JULY 12, 1957, IN EXECUTION OF A COURT-MARTIAL SENTENCE, PRIOR TO EXPIRATION OF HIS TERM OF ENLISTMENT, AND HAVING BEEN RESTORED TO DUTY AND PERMITTED TO REENLIST ON SEPTEMBER 13, 1957, WOULD BE ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 207, SINCE HIS REENLISTMENT WAS WITHIN THREE MONTHS FROM THE DATE OF DISCHARGE, HIS DISHONORABLE DISCHARGE NOT BEING A BAR TO PAYMENT OF THE BONUS. SEE ANSWER TO QUESTION 2.