B-144624, FEBRUARY 6, 1961, 40 COMP. GEN. 452

B-144624: Feb 6, 1961

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THE REQUEST WAS ASSIGNED SUBMISSION NO. IT IS STATED THE BING'S ENLISTMENT IN THE U.S. NAVY WAS AUTHORIZED FOR THE PURPOSE OF HAVING SUFFICIENT OBLIGATED SERVICE FOR ATTENDANCE AT THE SUBMARINE NUCLEAR POWER SCHOOL. THAT HE WAS DISCHARGED WITH AN HONORABLE DISCHARGE (CONVENIENCE OF THE GOVERNMENT) FROM THE NAVAL RESERVE ON JUNE 1. NAVY COMPTROLLER MANUAL PARAGRAPH 1044075-1A IS QUOTED IN YOUR LETTER AS FOLLOWS: "1THE REENLISTMENT BONUS PROVIDED FOR UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949. IS PAYABLE FOR ENLISTED MEMBERS WHO REENLIST IN THE REGULAR NAVY ON OR AFTER 16 JULY 1954 WITHIN 90 DAYS AFTER DATE OF LAST DISCHARGE OR RELEASE FROM COMPULSORY OR VOLUNTARY ACTIVE DUTY IN EITHER THE REGULAR NAVY OR NAVAL RESERVE. * * *" ALSO.

B-144624, FEBRUARY 6, 1961, 40 COMP. GEN. 452

MILITARY PERSONNEL - REENLISTMENT BONUS - ENLISTMENT IN REGULAR SERVICE FOLLOWING TRAINING DUTY IN A RESERVE COMPONENT IN VIEW OF EVIDENCE OF A CONGRESSIONAL INTENT THAT THE CHANGE IN THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22), EFFECTIVE AUGUST 10, 1956, TO INCLUDE ANNUAL TRAINING, DID NOT MAKE MEMBERS PERFORMING TRAINING DUTY ELIGIBLE FOR ALL THE BENEFITS THAT FLOW FROM THE PERFORMANCE OF ACTIVE DUTY, AN ENLISTMENT AFTER AUGUST 9, 1956, IN THE REGULAR NAVY, FOLLOWING TRAINING DUTY IN THE NAVAL RESERVE UNDER SECTION 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 1013 (C), MAY NOT BE REGARDED AS A REENLISTMENT UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 239, TO ENTITLE THE MEMBER TO A REENLISTMENT BONUS.

TO LIEUTENANT E. R. WALLACE, DEPARTMENT OF THE NAVY, FEBRUARY 6, 1961:

BY SECOND ENDORSEMENT DATED DECEMBER 6, 1960, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF NOVEMBER 4, 1960, (NB/7200/502B- SERIAL: S-683), REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING REENLISTMENT ALLOWANCE UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 TO JOHN CHARLES BING, 384 51 73, ENGINE MAN FIRST CLASS (1SS), U.S. NAVY, UPON ENLISTMENT IN THE U.S. NAVY AFTER HAVING BEEN DISCHARGED FROM THE U.S. NAVAL RESERVE WHILE IN AN INACTIVE STATUS. THE REQUEST WAS ASSIGNED SUBMISSION NO. D0-N-545 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THE BING'S ENLISTMENT IN THE U.S. NAVY WAS AUTHORIZED FOR THE PURPOSE OF HAVING SUFFICIENT OBLIGATED SERVICE FOR ATTENDANCE AT THE SUBMARINE NUCLEAR POWER SCHOOL, SUBMARINE BASE, NEW LONDON, CONNECTICUT; THAT HE WAS DISCHARGED WITH AN HONORABLE DISCHARGE (CONVENIENCE OF THE GOVERNMENT) FROM THE NAVAL RESERVE ON JUNE 1, 1960, AND ENLISTED IN THE U.S. NAVY ON JUNE 2, 1960; AND THAT HE PERFORMED ACTIVE DUTY FOR TRAINING WITH THE ACTIVE FORCES OF THE U.S. NAVY DURING THE PERIOD FROM MARCH 13 TO 26, 1960, HAVING BEEN RELEASED TO INACTIVE STATUS ON THE LATTER DATE.

NAVY COMPTROLLER MANUAL PARAGRAPH 1044075-1A IS QUOTED IN YOUR LETTER AS FOLLOWS: "1THE REENLISTMENT BONUS PROVIDED FOR UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 239 (A), IS PAYABLE FOR ENLISTED MEMBERS WHO REENLIST IN THE REGULAR NAVY ON OR AFTER 16 JULY 1954 WITHIN 90 DAYS AFTER DATE OF LAST DISCHARGE OR RELEASE FROM COMPULSORY OR VOLUNTARY ACTIVE DUTY IN EITHER THE REGULAR NAVY OR NAVAL RESERVE. * * *" ALSO, NAVY COMPTROLLER MANUAL PARAGRAPH 1044075-3B IS QUOTED AS FOLLOWS: "* * * AS USED IN THIS SUBPARAGRAPH AND PAR. 1044077, THE TERM "1ACTIVE FEDERAL SERVICE" MEANS ACTIVE SERVICE (1INCLUDING ACTIVE DUTY FOR TRAINING) IN THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD, OR ANY COMPONENT THEREOF. " IT IS POINTED OUT IN THE SECOND ENDORSEMENT THAT WHILE PARAGRAPH 1044075 3B INCLUDES ACTIVE DUTY FOR TRAINING AS "ACTIVE FEDERAL SERVICE" IN THE COMPUTATION OF THE MAXIMUM 20 YEARS OF ACTIVE FEDERAL SERVICE, PARAGRAPH 1044075-1A SPECIFICALLY PROVIDES THAT "* * * A DISCHARGE OR RELEASE FROM A PERIOD OF ACTIVE DUTY FOR TRAINING IS NOT A SEPARATION FROM ACTIVE DUTY WHICH ENTITLES A MEMBER WHO REENLISTS WITHIN 90 DAYS AFTER SUCH SEPARATION TO REENLISTMENT BONUS UNDER THIS SUBSECTION.' IT IS THERE STATED THAT PARAGRAPH 1044075-1A IS BASED ON OUR DECISION OF AUGUST 17, 1956, 36 COMP. GEN. 127, BUT THAT SUCH DECISION INVOLVED A PERIOD OF SERVICE PERFORMED PRIOR TO AUGUST 10, 1956, THE EFFECTIVE DATE OF THE CODIFICATION OF TITLE 10, U.S.C. (1PUBLIC LAW 1028 OF AUGUST 10, 1956, CHAPTER 1041, 70A STAT. 3), 10 U.S.C. 101. IT IS POINTED OUT THAT, EFFECTIVE AUGUST 10, 1956, 10 U.S.C. 101 (22) PROVIDES THAT THE TERM "ACTIVE DUTY" INCLUDES ANNUAL TRAINING DUTY.

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, PROVIDED IN PERTINENT PART AS FOLLOWS:

(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 COMPUTED ACCORDING TO THE FOLLOWING TABLE: * * *.

(E) IN THIS SECTION,"REENLISTMENT" MEANS---

(1) AN ENLISTMENT IN A REGULAR COMPONENT OF A UNIFORMED SERVICE AFTER COMPULSORY OR VOLUNTARY ACTIVE DUTY IN THAT SERVICE * * *

SUCH STATUTORY PROVISIONS ARE CODIFIED AS 37 U.S.C. 239 (E).

UNDER A LITERAL INTERPRETATION OF THE LANGUAGE OF SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, READ TOGETHER WITH THE DEFINITION OF ACTIVE DUTY IN 10 U.S.C. 101 (22), A PERSON ENLISTING IN A REGULAR COMPONENT OF A UNIFORMED SERVICE AFTER AUGUST 9, 1956, WITHIN 90 DAYS AFTER PERFORMANCE OF TWO WEEKS' ANNUAL TRAINING DUTY AS A MEMBER OF A RESERVE COMPONENT OF THAT SERVICE WOULD BE ENTITLED TO A REENLISTMENT BONUS. SUCH A RESULT, HOWEVER, SEEMS CLEARLY CONTRARY TO THE INTENT OF THE CONGRESS IN ENACTING SECTION 208 OF THE CAREER COMPENSATION ACT. HAVE SAID THAT---

* * * IT IS A SETTLED RULE OF STATUTORY INTERPRETATION THAT THE LITERAL MEANING OF A STATUTE NEED NOT BE FOLLOWED IF SO DOING WOULD ACHIEVE A RESULT CONTRARY TO ITS EVIDENT PURPOSE AND LEGISLATIVE INTENT * * *

SEE 15 COMP. GEN. 88, 90; 25 COMP. GEN. 700, 703; 30 COMP. GEN. 246, 249; 32 COMP. GEN. 364, 65; STEWART V. KAHN, II WALL. 493, 504; HELVERING V. NEW YORK TRUST CO., 292 U.S. 455, 464-465; AND UNITED STATES V. AMERICAN TRUCKING ASSOCIATION, 310 U.S. 534, 542-544.

PAYMENT OF THE REENLISTMENT BONUS TO A PERSON ENLISTING IN THE REGULAR COMPONENT CONCERNED AFTER PERFORMANCE OF THE INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING UNDER SECTION 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 1013 (C), WAS CLEARLY PRECLUDED BY THE PROVISIONS OF SECTION 262 (D) OF THAT ACT. 35 COMP. GEN. 439. IT APPEARS FROM THE LEGISLATIVE HISTORY OF THE ACT OF APRIL 23, 1956, 70 STAT. 115, WHICH DELETED SUBSECTION (D) OF SECTION 262, THAT IT WAS NOT THE INTENT OF CONGRESS, WHICH BECAME THE ACT OF APRIL 23, 1956, STATES (PAGE 3) THAT:

IT SHOULD BE EMPHASIZED THAT THIS BILL DOES NOT CREATE ENTITLEMENT TO ALL BENEFITS THAT FLOW FROM THE PERFORMANCE OF ACTIVE DUTY.

THE VIEW THAT THE CONGRESS DID NOT INTEND TO EXTEND TO MEMBERS ON TRAINING DUTY ALL THE BENEFITS THAT FLOW FROM THE PERFORMANCE OF EXTENDED ACTIVE DUTY IS SUPPORTED BY THE EXTENSION OF THE DEPENDENTS ASSISTANCE ACT OF 1950 UNTIL JULY 1, 1963, BY SECTION 3 OF THE ACT OF MARCH 23, 1959, 73 STAT. 13, 50 U.S.C. APP. 2216, WITHOUT CHANGING THE PROVISIONS OF SECTION 7 OF THE 1950 ACT, WHICH EXCLUDE MEMBERS ON TRAINING DUTY FROM THE BENEFITS OF THAT ACT. WE MUST ASSUME THAT IN ENACTING THE AMENDMENT TO THE 1950 ACT THE CONGRESS WAS COGNIZANT OF THE PROVISIONS OF SECTION 7 OF THAT ACT AND OF 10 U.S.C. 101 (22). WE MUST ALSO ASSUME THAT THE CONGRESS WAS AWARE THAT THE REENLISTMENT BONUS WAS PAYABLE UNDER SECTION 207 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 238 (B), (A COMPANION PROVISION TO SECTION 208) ONLY IF THE REENLISTMENT INVOLVED FOLLOWED EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT. IT REASONABLY APPEARS THAT THE CONGRESS DID NOT INTEND THAT THE CHANGE IN THE DEFINITION OF "ACTIVE DUTY" EFFECTED BY 10 U.S.C. CODE 101 (22) SHOULD MAKE A MEMBER PERFORMING TRAINING DUTY ELIGIBLE FOR ALL BENEFITS THAT FLOW FROM THE PERFORMANCE OF ACTIVE DUTY, PARTICULARLY SINCE 10 U.S.C. 101 PROVIDES THAT THE DEFINITIONS GIVEN THEREIN "APPLY IN THIS TITLE (10).' THE PROVISIONS OF SECTION 208 OF THE CAREER COMPENSATION ACT DO NOT APPEAR IN TITLE 10 OF THE U.S.C. BUT ARE CODIFIED AS SECTION 239 OF TITLE 37.

WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT IS CONCLUDED THAT THE REENLISTMENT BONUS SHOULD NOT BE PAID TO SUCH RESERVISTS. ACCORDINGLY, AN ENLISTMENT AFTER AUGUST 9, 1956, FOLLOWING TRAINING DUTY UNDER SECTION 262 (C) OF THE ARMED FORCES RESERVE ACT OF 1952 SHOULD NOT BE CONSIDERED A REENLISTMENT WITHIN THE MEANING OF SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949.

PAYMENT OF THE REENLISTMENT BONUS TO JOHN CHARLES BING, ENGINE MAN FIRST CLASS (1SS), INCIDENT TO HIS ENLISTMENT IN THE U.S. NAVY ON JUNE 2, 1960, IS, THEREFORE, NOT AUTHORIZED. YOUR LETTER OF NOVEMBER 4, 1960, AND THE ACCOMPANYING ENCLOSURES AND ENDORSEMENTS ARE BEING RETAINED HERE.