B-138438, MAR 31, 1959

B-138438: Mar 31, 1959

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YOU STATE THAT SERGEANT ELLIS WAS DISCHARGED FROM AN ENLISTED STATUS IN THE REGULAR ARMY ON JUNE 28. HE WAS COMMISSIONED IN THE REGULAR ARMY AND SERVED ON ACTIVE DUTY AS A REGULAR ARMY OFFICER UNTIL DISCHARGED ON APRIL 17. YOUR QUESTION IS AS TO WHETHER. SERGEANT ELLIS MAY BE CONSIDERED TO HAVE SERVED IN AN ENLISTED STATUS IMMEDIATELY BEFORE SERVING AS AN OFFICER WITHIN THE MEANING OF SECTION 208(D). IS TO AUTHORIZE A REENLISTMENT BONUS FOR A MEMBER WHO IS RELEASED FROM ACTIVE DUTY AS AN OFFICER. ONLY IF HE WAS SERVING ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THAT SERVICE IMMEDIATELY PRIOR TO ENTERING UPON THE TOUR OF ACTIVE DUTY AS AN OFFICER WHICH PRECEDED HIS LATEST ENLISTMENT. ALTHOUGH CADETS OF THE MILITARY ACADEMY AND MIDSHIPMEN OF THE NAVAL ACADEMY HAVE BEEN HELD TO HAVE OFFICER STATUS FOR CERTAIN PURPOSES.

B-138438, MAR 31, 1959

PRECIS-UNAVAILABLE

MAJOR R. E. ELLIS, FC; DEPARTMENT OF THE ARMY:

IN YOUR LETTER OF DECEMBER 5, 1958, FORWARDED HERE BY INDORSEMENT OF THE FIELD DIVISION, OFFICE CHIEF OF FINANCE, UNITED STATES ARMY, DATED JANUARY 13, 1959, YOU REQUEST DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON THE ENCLOSED MILITARY PAY ORDER IN FAVOR OF SERGEANT ALBERT M. ELLIS, FOR A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 208(D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239, INCIDENT TO HIS ENLISTMENT ON APRIL 18, 1958, IN THE REGULAR ARMY.

YOU STATE THAT SERGEANT ELLIS WAS DISCHARGED FROM AN ENLISTED STATUS IN THE REGULAR ARMY ON JUNE 28, 1940, TO ACCEPT AN APPOINTMENT TO THE UNITED STATES MILITARY ACADEMY, AND THAT HE SERVED AS A CADET FROM JULY 1, 1940, TO MAY 31, 1943. ON JUNE 1, 1943, HE WAS COMMISSIONED IN THE REGULAR ARMY AND SERVED ON ACTIVE DUTY AS A REGULAR ARMY OFFICER UNTIL DISCHARGED ON APRIL 17, 1958. HE ENLISTED IN THE REGULAR ARMY THE FOLLOWING DAY. YOUR QUESTION IS AS TO WHETHER, BECAUSE OF SERVICE AS CADET AT THE ACADEMY, SERGEANT ELLIS MAY BE CONSIDERED TO HAVE SERVED IN AN ENLISTED STATUS IMMEDIATELY BEFORE SERVING AS AN OFFICER WITHIN THE MEANING OF SECTION 208(D), WHICH PROVIDES ENTITLEMENT TO THE BONUS TO AN OFFICER OF A UNIFORMED SERVICE WHO REENLISTS IN THAT SERVICE WITHIN 90 DAYS AFTER HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER "IF HE SERVED IN AN ENLISTED STATUS IN THAT SERVICE IMMEDIATELY BEFORE SERVING AS AN OFFICER."

THE INTENT OF THE PROVISIONS OF SECTION 208, CITED ABOVE, IS TO AUTHORIZE A REENLISTMENT BONUS FOR A MEMBER WHO IS RELEASED FROM ACTIVE DUTY AS AN OFFICER, AND ENTERS INTO AN ENLISTMENT IN THE SAME SERVICE WITHIN 90 DAYS AFTER SUCH RELEASE, ONLY IF HE WAS SERVING ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THAT SERVICE IMMEDIATELY PRIOR TO ENTERING UPON THE TOUR OF ACTIVE DUTY AS AN OFFICER WHICH PRECEDED HIS LATEST ENLISTMENT. B-123049, JULY 1, 1955.

ALTHOUGH CADETS OF THE MILITARY ACADEMY AND MIDSHIPMEN OF THE NAVAL ACADEMY HAVE BEEN HELD TO HAVE OFFICER STATUS FOR CERTAIN PURPOSES, THEY HAVE NOT BEEN CONSIDERED TO BE EITHER COMMISSIONED OFFICERS OR ENLISTED MEN OF THE ARMY OR NAVY. 21 COMP. GEN. 932; 26 COMP. GEN. 373. CONSEQUENTLY, COMMISSIONED OFFICER OR ENLISTED STATUS MAY NOT BE BENEFICIALLY CONFERRED UPON THEM FOR ANY PURPOSE IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY TO SO DO. NOTHING IN THE LANGUAGE OF SECTION 208(D) INDICATES THAT THE TERM "ENLISTED STATUS" AS THERE USED WAS INTENDED TO INCLUDE CADET SERVICE. ACCORDINGLY, IT IS CONCLUDED THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF A REENLISTMENT BONUS TO SERGEANT ELLIS UNDER THAT SECTION. THE MILITARY PAY ORDER WILL BE RETAINED HERE.