B-142516, APR. 21, 1960

B-142516: Apr 21, 1960

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RA-12010251: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21. IN RESPONSE TO A REQUEST BY A DISBURSING OFFICER FOR AN ADVANCE DECISION AS TO WHETHER HE WAS AUTHORIZED TO PAY A CLAIM FOR REENLISTMENT BONUS UNDER THE CIRCUMSTANCES THERE SET FORTH. IN THE CONCLUDING PARAGRAPH OF THAT DECISION IT WAS STATED "THAT THERE IS NO REQUIREMENT. THAT SUCH ENLISTED SERVICE MUST HAVE BEEN IMMEDIATELY PRIOR TO SERVICE AS AN OFFICER. " AND YOU SEEM TO BELIEVE THAT THAT LANGUAGE IS APPLICABLE TO THE FACTS OF YOUR CASE. WAS NOT SIMILAR TO THE SERVICE RENDERED BY YOU DURING THE PERIOD FROM OCTOBER 4. THAT IS TO SAY. THE RECORD INDICATES THAT THERE WAS A BREAK IN YOUR ACTIVE COMMISSIONED SERVICE IN THAT YOU HAD NO ACTIVE DUTY DURING THE PERIOD FROM MARCH 2.

B-142516, APR. 21, 1960

TO LORENZO D. DYER, SFC, RA-12010251:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21, 1960, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED NOVEMBER 9, 1956, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR REFUND OF REENLISTMENT BONUS PAID TO YOU UNDER SECTION 208 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, AND THEREAFTER APPARENTLY DEDUCTED FROM YOUR PAY.

AS A BASIS FOR REQUESTING RECONSIDERATION OF YOUR CLAIM YOU STATED THAT RECENTLY THERE CAME TO YOUR ATTENTION THE DECISION RENDERED JULY 15, 1959, B-138918 (39 COMP. GEN. 31), BY THE COMPTROLLER GENERAL OF THE UNITED STATES, IN RESPONSE TO A REQUEST BY A DISBURSING OFFICER FOR AN ADVANCE DECISION AS TO WHETHER HE WAS AUTHORIZED TO PAY A CLAIM FOR REENLISTMENT BONUS UNDER THE CIRCUMSTANCES THERE SET FORTH. IN THE CONCLUDING PARAGRAPH OF THAT DECISION IT WAS STATED "THAT THERE IS NO REQUIREMENT, HOWEVER, THAT SUCH ENLISTED SERVICE MUST HAVE BEEN IMMEDIATELY PRIOR TO SERVICE AS AN OFFICER," AND YOU SEEM TO BELIEVE THAT THAT LANGUAGE IS APPLICABLE TO THE FACTS OF YOUR CASE.

IT MAY BE POINTED OUT THAT THE SERVICE OF THE MEMBER INVOLVED IN THE DECISION OF JULY 15, 1959, WAS NOT SIMILAR TO THE SERVICE RENDERED BY YOU DURING THE PERIOD FROM OCTOBER 4, 1950, THE DATE OF YOUR ORIGINAL ENLISTMENT, TO YOUR REENLISTMENT ON SEPTEMBER 23, 1954--- YOUR LETTER OF SEPTEMBER 14, 1956, SHOWS YOUR REENLISTMENT DATE AS OCTOBER 8, 1954. THAT IS TO SAY, THE MEMBER INVOLVED IN THE DECISION HAD CONTINUOUS ACTIVE DUTY AS A COMMISSIONED OFFICER FROM THE DATE OF HIS APPOINTMENT AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES, ON SEPTEMBER 21, 1948 FOLLOWING HIS DISCHARGE AS AN ENLISTED MAN THE PRECEDING DAY, TO HIS RELIEF FROM ACTIVE DUTY AS A CAPTAIN ON SEPTEMBER 30, 1957, AND REENLISTMENT THE NEXT DAY. THE RECORD INDICATES THAT THERE WAS A BREAK IN YOUR ACTIVE COMMISSIONED SERVICE IN THAT YOU HAD NO ACTIVE DUTY DURING THE PERIOD FROM MARCH 2, 1946, TO JANUARY 19, 1951. IT WILL BE SEEN FROM A READING OF THE DECISION OF JULY 15, 1959, THAT THE STATEMENT QUOTED ABOVE WAS MADE WITH REFERENCE TO THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949--- NOT SECTION 208 (A) AS ADDED BY THE 1954 ACT UNDER WHICH IT APPEARS THE PAYMENT OF REENLISTMENT BONUS WAS MADE IN YOUR CASE.

SECTION 208 (D) IS AS FOLLOWS:

"/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. * * *"

IT APPEARS FROM THE RECORD THAT YOU SERVED IN AN ENLISTED STATUS FROM OCTOBER 4, 1940, TO APRIL 8, 1943; THAT YOU WERE COMMISSIONED ON APRIL 9, 1943, AND RELEASED FROM ACTIVE DUTY ON MARCH 2, 1946, AND THAT YOU WERE TRANSFERRED TO THE ARMY RESERVE IN AN OFFICER STATUS. UNDER DATE OF JANUARY 19, 1951, YOU WERE RECALLED TO ACTIVE DUTY AS AN OFFICER AND REMAINED ON ACTIVE DUTY THROUGH SEPTEMBER 13, 1954. YOU SAY YOU REENLISTED IN THE REGULAR ARMY ON EITHER SEPTEMBER 23 OR OCTOBER 8, 1954-- - THE DIFFERENCE IS IN THE DATES IS NOT MATERIAL. IT WAS HELD IN THE SETTLEMENT OF NOVEMBER 9, 1956, THAT SINCE YOU DID NOT SERVE IN AN ENLISTED STATUS IMMEDIATELY PRIOR TO THE PERIOD OF ACTIVE DUTY AS AN OFFICER FROM WHICH YOU WERE RELEASED ON SEPTEMBER 13, 1954, THERE WAS NO LEGAL BASIS FOR REFUNDING THE AMOUNT COLLECTED FROM YOU.

OUR OFFICE HAS HAD OCCASION TO CONSIDER A CASE INVOLVING THE PAYMENT OF REENLISTMENT BONUS UNDER FACTS SIMILAR TO THOSE INVOLVED IN YOUR CASE. LETTER DATED FEBRUARY 7, 1955,LIEUTENANT COLONEL J. R. WATTS, FC, FINANCE OFFICER, DEPARTMENT OF THE ARMY, REQUESTED AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING AN ENLISTED MEMBER OF THE ARMED FORCES WITH A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488. THE RECORD SHOWS THAT THE MEMBER SERVED ON ACTIVE DUTY AS AN ENLISTED MAN FROM SEPTEMBER 17, 1940, TO JUNE 21, 1941, AND FROM MARCH 21, 1942, TO OCTOBER 16, 1942. THE RECORD SHOWS FURTHER THAT THE MEMBER SERVED ON ACTIVE DUTY AS A COMMISSIONED OFFICER FROM OCTOBER 17, 1942, TO JANUARY 3, 1950; THAT HE WAS IN AN INACTIVE STATUS FROM JANUARY 4, 1950, TO JUNE 24, 1950; THAT HE AGAIN SERVED AS A COMMISSIONED OFFICER FROM JUNE 25, 1950, TO OCTOBER 31, 1954, AND THAT UNDER DATE OF NOVEMBER 1, 1954, HE REENLISTED IN THE REGULAR ARMY FOR A PERIOD OF SIX YEARS.

BY DECISION DATED JULY 1, 1955, B-123049, WE ADVISED LIEUTENANT COLONEL WATTS THAT---

"IT IS OUR VIEW THAT IT IS THE INTENT OF SECTION 208, CITED ABOVE, 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 NINETY 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 OFFICER DUTY WHICH PRECEDES HIS LATEST ENLISTMENT. WHILE SERGEANT LAVIEN'S REENLISTMENT OF NOVEMBER 1, 1954, WAS ENTERED INTO ON THE DAY FOLLOWING THE DATE ON WHICH HE WAS GIVEN HIS LATEST RELEASE FROM ACTIVE DUTY AS AN OFFICER, HE DID NOT SERVE IN AN ENLISTED STATUS IMMEDIATELY PRIOR TO THE PERIOD OF ACTIVE DUTY AS AN OFFICER FROM WHICH HE WAS SO RELEASED. ACCORDINGLY, IT IS CONCLUDED THAT THERE IS NO AUTHORITY FOR PAYMENT OF A REENLISTMENT BONUS TO HIM UNDER SECTION 8.'

THE CONCLUSION REACHED IN THE DECISION OF JULY 1, 1955, IS EQUALLY APPLICABLE TO YOUR CASE SINCE YOU DID NOT SERVE IN AN ENLISTED STATUS IMMEDIATELY PRIOR TO THE PERIOD OF YOUR ACTIVE DUTY AS A COMMISSIONED OFFICER FROM WHICH YOU WERE RELEASED ON SEPTEMBER 13, 1954. ACCORDINGLY, IT MUST BE HELD THAT THE PAYMENT OF A REENLISTMENT BONUS TO YOU UNDER SECTION 208 WAS IMPROPER AND THE GENERAL ACCOUNTING OFFICE AUDIT EXCEPTION IN THE AMOUNT OF $575.05 (ALLOWING CREDIT FOR A REENLISTMENT BONUS IN THE AMOUNT OF $90 UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED) WAS CORRECT. FOR THE REASONS SET FORTH ABOVE THE ACTION TAKEN IN THE SETTLEMENT OF NOVEMBER 9, 1956, IS SUSTAINED.