B-149541, JUNE 10, 1963, 42 COMP. GEN. 674

B-149541, JUNE 10, 1963, 42 COMP. GEN. 674

GRATUITIES - REENLISTMENT BONUS - ELECTION ARMY ENLISTED MEMBERS WHO DID NOT RECEIVE ENLISTMENT EXTENSION BONUSES UNDER SECTION 207 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238 (C), FOR 1-YEAR EXTENSIONS IN 1949, AND WHO, SUBSEQUENTLY UPON REENLISTMENT, ELECTED AN ENLISTMENT ALLOWANCE UNDER SECTION 207 (D), WHICH GAVE MEMBERS THE RIGHT TO RECEIVE BENEFITS UNDER THE LAWS IN EFFECT PRIOR TO THE CAREER COMPENSATION ACT, ARE NOT REGARDED AS HAVING BEEN IMPROPERLY PAID AN ENLISTMENT ALLOWANCE RATHER THAN A REENLISTMENT BONUS, AND WHEN THE REENLISTMENT FOR WHICH AN ENLISTMENT ALLOWANCE HAS BEEN PAID IS NOT COUNTED IN DETERMINING THE NEXT REENLISTMENT, THE ACT OF JUNE 29, 1956, 37 U.S.C. 239 NOTE, VALIDATING ALL PAYMENTS OF REENLISTMENT BONUSES THERETOFORE MADE IS FOR APPLICATION.

TO THE SECRETARY OF DEFENSE, JUNE 10, 1963:

REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF DEFENSE, COMPTROLLER, DATED APRIL 5, 1963, REQUESTING A DECISION (COMMITTEE ACTION NO. 316 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) ON THE FOLLOWING QUESTIONS:

1. IS THE RULING CONTAINED IN COMPTROLLER GENERAL DECISION B 149541, DATED 6 SEPTEMBER 1962, FOR APPLICATION BY THE DEPARTMENTS OF THE ARMY AND AIR FORCE IN CONNECTION WITH PAYMENT OF REENLISTMENT BONUS IN SIMILAR CASES?

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, SHOULD ADJUSTMENT ACTION BE TAKEN IN THE CASE OF MASTER SERGEANT KENNETH D. BURKE, RA 39 244 361?

THE FACTS IN THE CASE OF SERGEANT BURKE (CONSIDERED IN B-149541, DATED SEPTEMBER 6, 1962) AS REPORTED TO THIS OFFICE ARE THAT HE SERVED ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES FROM JUNE 12, 1942, TO OCTOBER 30, 1945; THAT HE REENLISTED FOR 3 YEARS OCTOBER 31, 1945, EXTENDED TO 5 YEARS NOVEMBER 12, 1947, AND AGAIN EXTENDED FOR 1 YEAR NOVEMBER 10, 1949, AND THAT WHEN HE REENLISTED FOR 3 YEARS ON OCTOBER 31, 1951, HE RECEIVED AN ENLISTMENT ALLOWANCE IN THE AMOUNT OF $300 BASED ON HIS PREVIOUS 6 YEARS OF SERVICE UNDER HIS 3-YEAR ENLISTMENT AS EXTENDED. INCIDENT TO HIS 6- YEAR REENLISTMENT ON AUGUST 24, 1954, SERGEANT BURKE WAS PAID A REENLISTMENT BONUS OF $1,467.66, AND WHEN HE REENLISTED FOR 3 YEARS ON AUGUST 24, 1960, HE RECEIVED A REENLISTMENT BONUS OF $232.34, THIS BEING THE AMOUNT WHICH WHEN ADDED TO THE AMOUNTS PREVIOUSLY PAID EQUALED $2,000, THE MAXIMUM CUMULATIVE AMOUNT OF REENLISTMENT BONUS WHICH MAY BE PAID TO A MEMBER. BUT SEE 34 COMP. GEN. 715, 717, WHICH DOES NOT REQUIRE INCLUSION OF THE AMOUNT OF AN ENLISTMENT ALLOWANCE IN COMPUTING THE MAXIMUM AMOUNT OF REENLISTMENT BONUSES PAYABLE.

ON MARCH 27, 1961, THE FINANCE CENTER, U.S. ARMY, DETERMINED THAT AN OVERPAYMENT EXISTED IN SERGEANT BURKE'S ACCOUNT FOR THE REASON THAT WHEN HE EXTENDED HIS ENLISTMENT ON NOVEMBER 10, 1949, HE WAS ENTITLED TO AN EXTENSION BONUS OF $20 UNDER SUBSECTION 207 (C) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 812, 37 U.S.C. 238 (C); THAT WHEN HE REENLISTED ON OCTOBER 31, 1951, HE WAS ENTITLED TO ONLY A $90 REENLISTMENT BONUS UNDER SUBSECTION 207 (A) OF THE 1949 ACT, 37 U.S.C. 238 (A), AND THAT HE HAD THUS BEEN OVERPAID REENLISTMENT ALLOWANCE IN THE AMOUNT OF $190. BASED ON THIS CONCLUSION THAT SERGEANT BURKE WAS ONLY ENTITLED TO THE REENLISTMENT BONUS PROVIDED IN SUBSECTION 207 (A) IN 1951 RATHER THAN TO THE REENLISTMENT ALLOWANCE RECEIVED UNDER THE PROVISIONS OF SUBSECTION 207 (D) (1), 37 U.S.C. 238 (D) (1), IT WAS DETERMINED THAT INSTEAD OF THE BONUS OF $1,467.66 PAID ON HIS REENLISTMENT ON AUGUST 24, 1954, ON THE BASIS OF A FIRST REENLISTMENT IN ACCORDANCE WITH THE TABLE IN SECTION 208 (A) OF THE 1949 ACT, AS ADDED BY THE ACT OF JULY 16, 1954, CH. 535, 68 STAT. 488, 37 U.S.C. 239 (A), HE SHOULD HAVE BEEN PAID ONLY $978.44 AS FOR A SECOND REENLISTMENT AND THAT HE HAD THEREFORE RECEIVED AN ADDITIONAL OVERPAYMENT OF $489.22. IT WAS FURTHER DETERMINED THAT SERGEANT BURKE WAS ENTITLED TO A FINAL REENLISTMENT BONUS ON 1 YEAR, 9 MONTHS, AND 18 DAYS OF HIS REENLISTMENT ON AUGUST 24, 1960, THE PERIOD OF TIME WHICH WHEN ADDED TO HIS PREVIOUS SERVICE TOTALED 20 YEARS IN ACCORDANCE WITH SECTION 208 (B) OF THE 1949 ACT, 37 U.S.C. 239 (B), AS FOR A THIRD REENLISTMENT OR $204 INSTEAD OF $232.34, A DIFFERENCE OF $28.34.

THUS UNDER AN INTERPRETATION OF 31 COMP. GEN. 209, SERGEANT BURKE WAS CHARGED WITH AN INDEBTEDNESS OF $707.56, REPRESENTING THE DIFFERENCE BETWEEN THAT WHICH HE ALLEGEDLY SHOULD HAVE RECEIVED AND THAT WHICH HE WAS ACTUALLY PAID. OUR DECISION OF SEPTEMBER 6, 1962, B-149541, HELD THAT, SINCE SERGEANT BURKE HAD NOT RECEIVED ANY REENLISTMENT BENEFIT PRIOR TO HIS REENLISTMENT ON OCTOBER 31, 1951, HE HAD THE RIGHT AT THAT TIME TO ELECT, UNDER THE PROVISIONS OF SECTION 207 (D) OF THE 1949 ACT, 37 U.S.C. 238 (D), TO RECEIVE EITHER AN ENLISTMENT ALLOWANCE UNDER THE PROVISIONS OF LAW IN EFFECT PRIOR TO OCTOBER 1, 1949, OR A REENLISTMENT BONUS UNDER SECTION 207, 37 U.S.C. 238, AND THAT UNDER THE VALIDATING ACT OF JUNE 29, 1956, CH. 461, 70 STAT. 373, 37 U.S.C. 239 NOTE, HE WAS THEREFORE ENTITLED TO RETAIN THE AMOUNT RECEIVED AT THE TIME OF HIS REENLISTMENT ON AUGUST 24, 1954. THE DISCUSSION IN THE COMMITTEE ACTION NO. 316 QUESTIONING THE CONCLUSION REACHED IN THE DECISION OF SEPTEMBER 6, 1962, IS BASED ON THE ASSUMPTION THAT SERGEANT BURKE WAS ENTITLED TO AND SHOULD HAVE BEEN PAID AN EXTENSION BONUS OF $20 UNDER SUBSECTION 207 (C) FOR THE 1-YEAR EXTENSION ENTERED INTO ON NOVEMBER 10, 1949, THAT THE FACT THAT THE $20 PAYMENT WAS NOT TIMELY MADE IS IMMATERIAL AND THAT HE THEREFORE WAS NOT ENTITLED TO THE BENEFITS OF THE SAVINGS PROVISION CONTAINED IN SUBSECTION 207 (D) OF THE 1949 ACT. HE WOULD BE FORCED TO ACCEPT A $20 EXTENSION BONUS FOR A 1-YEAR EXTENSION AND WOULD BE INDEBTED FOR $707.56.

IN DECISION OF DECEMBER 14, 1951, 31 COMP. GEN. 209, 212, TO ANSWER TO QUESTION 3, WE HELD THAT, ONCE AN ENLISTED MAN ELECTS TO EXTEND HIS REENLISTMENT AND IS PAID A REENLISTMENT BONUS UNDER SUBSECTION 207 (C), HE NO LONGER MAY CLAIM ANY RIGHT UNDER SUBSECTION 207 (D) (1). THE DECISION MERELY STANDS FOR THE GENERAL PROPOSITION THAT ONCE A BENEFIT UNDER SUBSECTION 207 (C) IS ACCEPTED, THE MEMBER INVOLVED NO LONGER IS IN A POSITION TO INSIST THAT HE IS ENTITLED TO A BENEFIT UNDER PRIOR LAWS WHICH WAS SAVED UNDER SUBSECTION 207 (D) (1).

WHILE SERGEANT BURKE WAS ELIGIBLE TO RECEIVE A $20 EXTENSION BONUS INCIDENT TO HIS 1-YEAR EXTENSION OF ENLISTMENT ON NOVEMBER 10, 1949, A REASONABLE CONSTRUCTION OF THE PROVISIONS OF SUBSECTION 207 (D) OF THE CAREER COMPENSATION ACT OF 1949, WHICH GRANTED ENLISTED MEMBERS THE RIGHT TO RECEIVE AN ENLISTMENT ALLOWANCE UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THE 1949 ACT INSTEAD OF A REENLISTMENT BONUS UNDER SUBSECTION (A) OF THAT SECTION, WOULD PERMIT THEM TO WAIVE RECEIPT OF THE $20 EXTENSION BONUS IN ORDER TO LATER RECEIVE A $300 ENLISTMENT ALLOWANCE. WHILE THE LANGUAGE OF SUBSECTION 207 (D) IS NOT ENTIRELY CLEAR, IT DOES NOT SEEM REASONABLE THAT THE CONGRESS INTENDED TO GIVE A MEMBER A RIGHT TO ELECT A $300 ENLISTMENT ALLOWANCE IN LIEU OF A $40, $90, $160, OR $250 REENLISTMENT BONUS AND AT THE SAME TIME REQUIRE HIM TO ACCEPT A $20 EXTENSION BONUS INSTEAD OF A $300 ENLISTMENT ALLOWANCE UPON A SUBSEQUENT REENLISTMENT. HENCE, IT IS OUR VIEW THAT SERGEANT BURKE WAS PROPERLY PAID A $300 ENLISTMENT ALLOWANCE UPON HIS REENLISTMENT IN 1951.

SECTION 1 OF THE ACT OF JUNE 29, 1956, CH. 461, 70 STAT. 373, WHICH WAS ENACTED TO OVERCOME OUR DECISION OF MARCH 30, 1955, 34 COMP. GEN. 483, PROVIDED:

THAT ALL PAYMENTS OF REENLISTMENT BONUSES HERETOFORE MADE 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), ARE HEREBY VALIDATED TO THE EXTENT THAT SUCH BONUSES WERE COMPUTED ON THE BASIS THAT REENLISTMENTS ENTERED INTO BY THE MEMBER CONCERNED SUBSEQUENT TO SEPTEMBER 30, 1949, FOR WHICH HE DID NOT RECEIVE A REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, WERE NOT COUNTED IN DETERMINING THE REENLISTMENT INVOLVED. ANY MEMBER WHO HAS MADE REPAYMENT TO THE UNITED STATES OF ANY AMOUNT SO PAID TO HIM AS A REENLISTMENT BONUS IS ENTITLED TO HAVE REFUNDED THE AMOUNT REPAID.

THAT ACT VALIDATED ALL PAYMENTS OF REENLISTMENT BONUSES THERETOFORE MADE UNDER SECTION 208 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 239, TO THE EXTENT THAT REENLISTMENTS FOR WHICH THE MEMBER DID NOT RECEIVE A REENLISTMENT BONUS WERE NOT COUNTED IN DETERMINING THE REENLISTMENT INVOLVED. SINCE SERGEANT BURKE DID NOT RECEIVE A $20 EXTENSION BONUS INCIDENT TO HIS 1949 ENLISTMENT EXTENSION, AND SINCE HIS 1951 REENLISTMENT FOR WHICH HE RECEIVED AN ENLISTMENT ALLOWANCE WAS NOT COUNTED IN DETERMINING THE AMOUNT OF THE REENLISTMENT BONUS PAID TO HIM FOR HIS 1954 REENLISTMENT, HIS CASE CLEARLY FALLS WITHIN BOTH THE LANGUAGE AND THE INTENT OF THE PROVISIONS OF THE ACT OF JULY 29, 1956.

ACCORDINGLY, OUR DECISION B-149541 OF SEPTEMBER 6, 1962, IS CONSIDERED TO HAVE BEEN CORRECT AND QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE. IN VIEW OF THE ANSWER TO THAT QUESTION, NO ANSWER TO QUESTION 2 IS REQUIRED.