B-138918, JULY 15, 1959, 39 COMP. GEN. 31

B-138918, JULY 15, 1959, 39 COMP. GEN. 31

MILITARY PERSONAL - REENLISTMENT BONUS - REENLISTMENT OF OFFICERS - QUALIFICATION AN ENLISTED MEMBER OF THE REGULAR ARMY WHO, AFTER INVOLUNTARY TRANSFER TO THE AIR FORCE UNDER THE NATIONAL SECURITY ACT OF 1947, WAS DISCHARGED TO ACCEPT A COMMISSION IN THE ARMY OF THE UNITED STATES AND, WHEN RELIEVED FROM ACTIVE DUTY AS AN OFFICER, IMMEDIATELY REENLISTED IN THE REGULAR ARMY MAY BE REGARDED AS HAVING BEEN AN ENLISTED MEMBER OF THE REGULAR ARMY IMMEDIATELY PRIOR TO HIS APPOINTMENT AS AN OFFICER IN THE ARMY OF THE UNITED STATES, NOTWITHSTANDING THE AIR FORCE SERVICE, FOR QUALIFICATION FOR A REENLISTMENT BONUS UNDER SECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239 (D), PAYABLE FOR A FIRST REENLISTMENT. REENLISTMENT BONUS PAYMENTS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238, TO FORMER OFFICERS WHO ENLISTED ON OR PRIOR TO JULY 16, 1954--- THE DATE OF THE ACT AMENDING THE REENLISTMENT BONUS PROVISIONS OF THE 1949 ACT--- EVEN THOUGH THEIR OFFICER SERVICE WAS NOT PRECEDED BY ENLISTED SERVICE, WILL NOT BE QUESTIONED IN VIEW OF THE BROAD LANGUAGE IN SUBSECTION 207 (A) AND (B) WHICH DOES NOT SPECIFICALLY RESTRICT OR LIMIT THE BONUS PAYMENTS OF FORMER ENLISTED MEMBERS WHO ENLIST, AND DOES NOT SPECIFY THAT THE QUALIFYING SERVICE MUST HAVE BEEN RENDERED IN AN ENLISTED STATUS OR HAVE BEEN PRECEDED BY ENLISTED SERVICE; HOWEVER, BONUS PAYMENTS TO FORMER OFFICERS WHO ENLIST AFTER JULY 16, 1954, MAY NOT BE MADE UNLESS THE MEMBER PREVIOUSLY SERVED AS AN ENLISTED MAN IN THE SERVICE IN WHICH HE ENLISTS, BUT SUCH ENLISTED SERVICE DOES NOT HAVE TO IMMEDIATELY PRECEDE THE OFFICER SERVICE.

TO CAPTAIN W. A. BAILEY, DEPARTMENT OF THE ARMY, JULY 15, 1959:

BY SECOND ENDORSEMENT OF MARCH 3, 1959, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED HERE YOUR LETTER OF JANUARY 20, 1959, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY THE CLAIM OF MASTER SERGEANT ALJEAN L. SHELTON, RO 15 256 470, FOR A REENLISTMENT BONUS IN THE CIRCUMSTANCES SHOWN. YOUR REQUEST FOR DECISION WAS ASSIGNED D.O. NUMBER 403 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT SERGEANT SHELTON ENLISTED IN THE REGULAR ARMY ( ARMY AIR FORCE) ON SEPTEMBER 28, 1947; THAT HE WAS TRANSFERRED TO THE UNITED STATES AIR FORCE PURSUANT TO THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 495 5 U.S.C. 171 NOTE; THAT HE WAS DISCHARGED FROM THE UNITED STATES AIR FORCE ON SEPTEMBER 20, 1948, TO ACCEPT A COMMISSION AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES; AND THAT HE ACCEPTED SUCH COMMISSION AND REPORTED FOR ACTIVE DUTY ON SEPTEMBER 21, 1948. HE WAS RELIEVED FROM ACTIVE DUTY AS A CAPTAIN ON SEPTEMBER 30, 1957, AND ON OCTOBER 1, 1957, HE REENLISTED IN THE REGULAR ARMY FOR A PERIOD OF FOUR YEARS. HE IS NOW CLAIMING A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 208 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. 239. THAT SECTION CONTAINS THE FOLLOWING PROVISIONS:

(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. * * *

PARAGRAPH 9-8, ARMY REGULATIONS 37-104, PROVIDES THAT AN OFFICER WHO REENLISTS IN THE REGULAR ARMY WITHIN 90 DAYS AFTER HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER IS ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT IF HE SERVED ON ACTIVE DUTY IN AN ENLISTED STATUS IN THE ARMY IMMEDIATELY BEFORE SERVING AS AN OFFICER. PARAGRAPH 9- 63A, ARMY REGULATIONS 37-104, PROVIDES THAT A REENLISTMENT BONUS MAY BE PAID UPON FIRST REENLISTMENT IN THE REGULAR ARMY FOLLOWING DISCHARGE OR SEPARATION FROM THE REGULAR AIR FORCE IF THE MEMBER IS OTHERWISE ENTITLED. PAYMENT IS AUTHORIZED ONLY IN THOSE CASES WHERE THE MEMBER WAS INVOLUNTARILY TRANSFERRED TO THE AIR FORCE UNDER THE NATIONAL SECURITY ACT OF 1947, AS AMENDED.

SECTION 305 (A) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508, 5 U.S.C. 851, PROVIDES THAT ALL LAWS APPLICABLE WITH RESPECT TO ANY FUNCTIONS, ACTIVITY, PERSONNEL, ETC., TRANSFERRED UNDER THAT ACT, SHALL HAVE THE SAME EFFECT AS IF SUCH TRANSFER HAD NOT BEEN MADE. SECTION 208 (C) OF THE ACT, 61 STAT. 504, 5 U.S.C. 626C (C), PROVIDED FOR TRANSFER OF OFFICERS AND ENLISTED MEN IN THE AIR CORPS, UNITED STATES ARMY, AND IN THE ARMY AIR FORCES, TO THE UNITED STATES AIR FORCE, AND THAT:

* * * NO SUCH CHANGE IN STATUS SHALL ALTER OR PREJUDICE THE STATUS OF ANY INDIVIDUAL SO ASSIGNED, SO AS TO DEPRIVE HIM OF ANY RIGHT, BENEFIT, OR PRIVILEGE TO WHICH HE MAY BE ENTITLED UNDER EXISTING LAW.

IN DECISION OF FEBRUARY 17, 1949, 28 COMP. GEN. 460, TO THE SECRETARY OF THE ARMY, IT WAS HELD THAT ENLISTED MEN WHO WERE TRANSFERRED FROM THE ARMY TO THE AIR FORCE UNDER THE 1947 ACT AND WHO SUBSEQUENTLY WERE DISCHARGED AS MEMBERS OF THE AIR FORCE, ARE ENTITLED, IN VIEW OF THE PROVISIONS OF SECTION 208 (C) AND THE SAVINGS PROVISIONS OF SECTION 305 (A) OF THE NATIONAL SECURITY ACT OF 1947, TO AN ENLISTMENT ALLOWANCE UPON THEIR FIRST SUBSEQUENT ENLISTMENT IN THE AIR FORCE OR REENLISTMENT IN THE REGULAR ARMY MEASURED BY THEIR COMBINED PRIOR CONTINUOUS ACTIVE FEDERAL SERVICE IN THE AIR FORCE AND THE ARMY AS PROVIDED IN SECTION 8 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 541, 37 U.S.C. 110. THE PRINCIPLE STATED IN THAT DECISION IS EQUALLY APPLICABLE TO THIS CASE. THUS, FOR PURPOSES OF THE REENLISTMENT BONUS IT MAY BE CONSIDERED THAT SERGEANT SHELTON SERVED AS AN ENLISTED MEMBER IN THE REGULAR ARMY IMMEDIATELY PRIOR TO HIS APPOINTMENT AS AN OFFICER IN THE ARMY OF THE UNITED STATES.

IT IS, THEREFORE, CONCLUDED THAT SERGEANT SHELTON QUALIFIES UNDER SUBSECTION 208 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 239 (D), FOR THE REENLISTMENT BONUS PAYABLE UNDER SUBSECTION (A) FOR A FIRST REENLISTMENT. 34 COMP. GEN. 715. THE CLAIM IS RETURNED FOR PAYMENT, IF OTHERWISE CORRECT.

AN ADDITIONAL QUESTION IS PRESENTED BY THE CHIEF OF FINANCE AS STATED IN PARAGRAPH 3 OF SECOND ENDORSEMENT OF MARCH 3, 1959, AS FOLLOWS:

3. FURTHER, QUESTION ARISES AS (TO) WHETHER FORMER OFFICERS ARE REQUIRED TO HAVE HAD ENLISTED SERVICE IMMEDIATELY PRIOR TO THEIR APPOINTMENTS AS COMMISSIONED OFFICERS TO BE ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, IF OTHERWISE ENTITLED THERETO. IT APPEARS THAT FORMER OFFICERS, WHO REENLIST IN THE SAME SERVICE AS ENLISTED MEMBERS, ARE NOT REQUIRED TO HAVE PREVIOUS ENLISTED SERVICE TO BE ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 207 (A), SINCE THAT SECTION DOES NOT SPECIFY THAT OFFICERS MUST HAVE SERVED AS ENLISTED MEMBERS. SECTIONS 207 (D) AND 208, HOWEVER, CONTAIN A PROVISION, WHEREBY PAYMENTS AUTHORIZED THEREIN MAY BE MADE ONLY IF THE INDIVIDUAL SERVED IN AN ENLISTED STATUS IN THE SAME SERVICE IMMEDIATELY BEFORE SERVING AS AN OFFICER. IN VIEW OF THE FACT THAT THIS QUESTION IS CURRENTLY BEFORE THE MILITARY PAY AND ALLOWANCE COMMITTEE FOR CONSIDERATION, A DECISION CLARIFYING THIS MATTER IS REQUESTED.

SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, AS AMENDED, 37 U.S.C. 238, PROVIDES IN PART THAT:

(A) MEMBERS OF THE UNIFORMED SERVICES WHO ENLIST UNDER THE CONDITIONS SET FORTH IN SUBSECTION (B) OF THIS SECTION 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. * * *

(B) FOR THE PURPOSE OF PAYMENT OF THE REENLISTMENT BONUS AUTHORIZED BY SUBSECTION (A) OF THIS SECTION, ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING (1) COMPULSORY OR VOLUNTARY ACTIVE DUTY IN SUCH SERVICE, OR (2) EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE, SHALL BE CONSIDERED A REENLISTMENT.

(D) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION, A MEMBER OF THE UNIFORMED SERVICES WHO REENLIST WITHIN THREE MONTHS AFTER BEING DISCHARGED FROM THE ENLISTMENT ENTERED INTO PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR WHO REENLISTS WITHIN THREE MONTHS AFTER BEING RELIEVED FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER OR WARRANT OFFICER UNDER APPOINTMENT MADE PRIOR TO THE DATE OF ENACTMENT OF THIS ACT IF SUCH COMMISSIONED OR WARRANT SERVICE IMMEDIATELY FOLLOWED ENLISTED SERVICE, SHALL BE ENTITLED TO RECEIVE EITHER (1) ENLISTMENT ALLOWANCES IN THE AMOUNT AND UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR (2) REENLISTMENT BONUS IN THE AMOUNT AND UNDER THE PROVISIONS OF THIS SECTION, WHICHEVER IS THE GREATER AMOUNT:PROVIDED, THAT THE ENLISTMENT ALLOWANCE PAYABLE UNDER (1) HEREUNDER SHALL IN NO EVENT EXCEED $300.

THE ACT OF JULY 16, 1954, 68 STAT. 488, WHICH ADDED SECTION 208 TO THE 1949 ACT, AS AMENDED, ALSO REDESIGNATED SUBSECTION 207 (E), 37 U.S.C. 238 (E), AS SUBSECTION 207 (F), 37 U.S.C. 238 (F), AND ADDED A NEW SUBSECTION 207 (E) IN PART AS FOLLOWS:

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

(1) ANY PERSON WHO ORIGINALLY ENLISTS IN A UNIFORMED SERVICE

AFTER THE DATE OF ENACTMENT OF THIS AMENDATORY ACT: * * *

IT WILL BE NOTED THAT UNDER THE PROVISIONS OF SUBSECTION 207 (E) (1), 37 U.S.C. 238 (E) (1), SECTION 207 DOES NOT APPLY TO ANY PERSON WHO ORIGINALLY ENLISTS IN A UNIFORMED SERVICE AFTER JULY 16, 1954. HENCE, IT SEEMS CLEAR THAT A FORMER OFFICER WHO HAS NOT HAD PRIOR ENLISTED SERVICE IN THE UNIFORMED SERVICE IN WHICH HE ENLISTS AND WHO ENLISTS AFTER JULY 16, 1954, WOULD BE ENTERING INTO AN ORIGINAL ENLISTMENT AND COULD NOT QUALIFY UNDER SECTION 207 FOR A REENLISTMENT BONUS.

WITH REGARD TO THE PAYMENT OF A REENLISTMENT BONUS UNDER SECTION 207 (A), 37 U.S.C. 238 (A), TO FORMER OFFICERS WHO ENLISTED ON OR PRIOR TO JULY 16, 1954, IT MAY BE OBSERVED THAT THE TERM ,REENLISTMENT " LONG HAS HAD A DEFINITE AND ACCEPTED MEANING, UNLESS OTHERWISE DEFINED BY STATUTE, AS SIGNIFYING A REENTRY BY AN ENLISTED MAN, UNDER A CONTRACT OF ENLISTMENT, INTO THE SAME BRANCH OF THE REGULAR SERVICE FROM WHICH DISCHARGED. COMP. DEC. 170; 28 COMP. GEN. 460. NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF SECTION 207 TO INDICATE ANY LEGISLATIVE INTENTION THAT THE BONUS WOULD BE PAYABLE TO FORMER OFFICERS WHO ENLIST, EXCEPT THOSE QUALIFYING UNDER SUBSECTION (D). IT IS NOTED, HOWEVER, THAT SUBSECTION 207 (A) PROVIDES FOR PAYMENT OF THE BONUS TO "MEMBERS" OF THE UNIFORMED SERVICES WHO ENLIST WITHIN THE SPECIFIED PERIOD AFTER DISCHARGE OR SEPARATION AND UNDER THE CONDITIONS SET FORTH IN SUBSECTION (B), 37 U.S.C. 238 (B). THAT SUBSECTION PROVIDES THAT FOR THE PURPOSE OF PAYMENT OF THE BONUS, ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING "/1) COMPULSORY OR VOLUNTARY ACTIVE DUTY IN SUCH SERVICE, OR (2) EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE, SHALL BE CONSIDERED A REENLISTMENT.' SUBSECTION (A) DOES NOT SPECIFICALLY RESTRICT OR LIMIT THE PAYMENT OF THE BONUS TO FORMER ENLISTED MEMBERS WHO ENLIST, NOR DOES SUBSECTION (B) PROVIDE THAT THE QUALIFYING SERVICE THERE SPECIFIED MUST HAVE BEEN RENDERED IN AN ENLISTED STATUS OR HAVE BEEN PRECEDED BY ENLISTED SERVICE.

THERE HAS BEEN OBTAINED INFORMALLY A COPY OF AN OPINION RENDERED ON SEPTEMBER 5, 1951, FILE JAGO 1961/5505, BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY. THAT OPINION INVOLVED A MEMBER WHO SERVED ON ACTIVE DUTY AS A NONREGULAR OFFICER FROM DECEMBER 23, 1939, TO DECEMBER 15, 1949, WHEN HE WAS RELEASED AS A MAJOR. THE FOLLOWING DAY HE ENLISTED AS A MASTER SERGEANT AND, SINCE HIS OFFICER SERVICE HAD NOT BEEN IMMEDIATELY PRECEDED BY ENLISTED SERVICE, HE COULD NOT QUALIFY UNDER SUBSECTION 207 (D) FOR AN ENLISTMENT ALLOWANCE OR A REENLISTMENT BONUS. IT WAS CONCLUDED THAT THE ENLISTMENT OF DECEMBER 16, 1949, CONSTITUTED A REENLISTMENT WITHIN THE PROVISIONS OF SUBSECTION 207 (B), AND IT IS UNDERSTOOD THAT ON THE BASIS OF THAT OPINION FORMER OFFICERS WHO HAVE ENLISTED UNDER SIMILAR CIRCUMSTANCES HAVE BEEN PAID A REENLISTMENT BONUS.

WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IN VIEW OF THE BROAD LANGUAGE USED IN SUBSECTION 207 (A) AND (B), AS INDICATED ABOVE, AND THE ADMINISTRATIVE CONSTRUCTION THAT APPEARS TO HAVE BEEN PLACED ON THOSE SECTIONS, WE WILL NOT QUESTION BONUS PAYMENTS OTHERWISE CORRECT THAT HAVE BEEN MADE TO FORMER OFFICERS WHO ENLISTED ON OR PRIOR TO JULY 16, 1954, EVEN THOUGH THEIR OFFICER SERVICE WAS NOT PRECEDED BY ENLISTED SERVICE. HOWEVER, AS STATED ABOVE, SUBSECTION 207 (E) (1) PRECLUDES THE PAYMENT OF A BONUS UNDER SECTION 207 TO A FORMER OFFICER WHO ENLISTS AFTER THAT DATE UNLESS HE PREVIOUSLY SERVED AS AN ENLISTED MAN IN THE SERVICE IN WHICH HE ENLISTS. CF. 28 COMP. GEN. 460. THERE IS NO REQUIREMENT, HOWEVER, THAT SUCH ENLISTED SERVICE MUST HAVE BEEN IMMEDIATELY PRIOR TO THE SERVICE AS AN OFFICER. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.