B-152590, NOV. 4, 1963

B-152590: Nov 4, 1963

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J. PRICE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17. YOU WERE RELEASED FROM ACTIVE DUTY AND ON DECEMBER 1. YOU WERE RECALLED TO ACTIVE DUTY AS CAPTAIN. YOU WERE RELEASED FROM ACTIVE DUTY AS A COMMISSIONED OFFICER AND ON FEBRUARY 1. AT WHICH TIME YOU WERE PAID A FIRST REENLISTMENT BONUS OF $90. YOU WERE PAID A REENLISTMENT BONUS AS FOR A SECOND REENLISTMENT UNDER THE PROVISIONS OF SECTION 208 (A) OF THE ABOVE MENTIONED ACT. STATING THAT YOU WERE DRAFTED AS AN ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES. WAS YOUR FIRST ENLISTMENT. WAS YOUR FIRST REENLISTMENT AND NOT THE SECOND AS ADMINISTRATIVELY DETERMINED. ARMY REGULATIONS 37-104 PROVIDES THAT REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 IS NOT PAYABLE TO ANY MEMBER WHO ENLISTS IN THE REGULAR ARMY AS AN ORIGINAL ENLISTMENT AFTER JULY 16.

B-152590, NOV. 4, 1963

TO SERGEANT FIRST CLASS ERNEST T. J. PRICE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1963, IN WHICH YOU REQUEST RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 9, 1963, WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL AMOUNT BELIEVED DUE AS REENLISTMENT BONUS INCIDENT TO YOUR REENLISTMENT IN THE REGULAR ARMY ON FEBRUARY 1, 1961.

THE RECORD SHOWS THAT BEFORE YOU ACCEPTED A COMMISSION AS SECOND LIEUTENANT, ARMY OF THE UNITED STATES ON NOVEMBER 25, 1942, YOU SERVED AS AN ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES, HAVING ENTERED ON ACTIVE DUTY ON MAY 28, 1942. ON MAY 31, 1946, YOU WERE RELEASED FROM ACTIVE DUTY AND ON DECEMBER 1, 1947, YOU WERE RECALLED TO ACTIVE DUTY AS CAPTAIN, ORGANIZED RESERVE CORPS. ON JANUARY 31, 1958, YOU WERE RELEASED FROM ACTIVE DUTY AS A COMMISSIONED OFFICER AND ON FEBRUARY 1, 1958, YOU ENLISTED IN THE REGULAR ARMY FOR A THREE YEAR PERIOD, AT WHICH TIME YOU WERE PAID A FIRST REENLISTMENT BONUS OF $90, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238 (A) (1958 ED.). UPON REENLISTMENT FEBRUARY 1, 1961, YOU WERE PAID A REENLISTMENT BONUS AS FOR A SECOND REENLISTMENT UNDER THE PROVISIONS OF SECTION 208 (A) OF THE ABOVE MENTIONED ACT, AS AMENDED, 37 U.S.C. 237 (A) (1958 ED.).

IN YOUR CLAIM, YOU OBJECT TO THE CLASSIFICATION OF YOUR ENLISTED SERVICE COMMENCING MAY 28, 1942, AS YOUR FIRST ENLISTMENT, STATING THAT YOU WERE DRAFTED AS AN ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES. YOU REFER TO PARAGRAPH 2, ARMY REGULATIONS 601-210 (DATED APRIL 27, 1959), WHICH FOR THE PURPOSE OF THOSE REGULATIONS, DEFINES AN ENLISTMENT AS THE FIRST VOLUNTARY ENROLLMENT IN THE REGULAR ARMY AS AN ENLISTED MEMBER, AND REENLISTMENT AS A SECOND OR SUBSEQUENT VOLUNTARY ENROLLMENT IN THE REGULAR ARMY AS AN ENLISTED MEMBER. YOU CONTEND THAT IN ACCORDANCE WITH THAT DEFINITION, YOUR ENLISTMENT IN THE REGULAR ARMY ON FEBRUARY 1, 1958, WAS YOUR FIRST ENLISTMENT. ACCORDINGLY, YOU CONSIDER THAT YOUR REENLISTMENT ON FEBRUARY 1, 1961, WAS YOUR FIRST REENLISTMENT AND NOT THE SECOND AS ADMINISTRATIVELY DETERMINED.

IN YOUR LETTER OF SEPTEMBER 17, 1963, YOU AGAIN REFER TO ARMY REGULATIONS 601-210, WHICH BY CHANGE DATED APRIL 20, 1962, AMENDED THE DEFINITION OF ENLISTMENT BY ADDING THE WORDS "AS CONTRASTED WITH INDUCTION" AT THE END OF THE DEFINITION. YOU STATE FURTHER THAT PARAGRAPH 9-21, ARMY REGULATIONS 37-104 PROVIDES THAT REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 IS NOT PAYABLE TO ANY MEMBER WHO ENLISTS IN THE REGULAR ARMY AS AN ORIGINAL ENLISTMENT AFTER JULY 16, 1954.

SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238 (A), IN EFFECT AT THE TIME OF YOUR ENLISTMENT IN THE REGULAR ARMY, FEBRUARY 1, 1958, PROVIDES IN EFFECT THAT MEMBERS OF THE UNIFORMED SERVICES WHO ENLIST UNDER THE CONDITIONS SET FORTH IN SUBSECTION (B) WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION 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. SUBSECTION (B) PROVIDES THAT FOR THE PURPOSE OF PAYMENT OF THE REENLISTMENT BONUS AUTHORIZED BY SUBSECTION (A), 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.

THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. 238 (E) (1958 ED.), WHICH ADDED SECTION 208 TO THE 1949 ACT, AS AMENDED, ALSO REDESIGNATED SUBSECTION 207 (E) AS SUBSECTION 207 (F) AND ADDED A NEW SUBSECTION207 (E) WHICH PROVIDES THAT SECTION 207 IS NOT APPLICABLE TO A MEMBER WHO ORIGINALLY ENLISTS IN A UNIFORMED SERVICE AFTER JULY 16, 1954, OR TO A MEMBER WHO WAS IN ACTIVE FEDERAL SERVICE ON JULY 16, 1954, AND OTHERWISE ELIGIBLE FOR THE BENEFITS OF SECTION 208 WHICH HE ELECTS TO RECEIVED. ALSO IT IS PROVIDED THAT THE SECTION IS NOT APPLICABLE TO A MEMBER WHO HAD BEEN DISCHARGED OR RELEASED FROM ACTIVE DUTY NOT MORE THAN 90 DAYS BEFORE THAT DATE AND REENLISTED WITHIN 90 DAYS, WHO ELECTS TO BE COVERED BY SECTION 208 AND IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION. SECTION 208 (A), 37 U.S.C. 239 (A) (1958 ED.), CONTAINS A TABLE WHICH PROVIDES FOR A RELATIVELY LARGE REENLISTMENT BONUS FOR A MEMBER'S FIRST REENLISTMENT WITH A SHARPLY DECREASING SCALE OF PAYMENTS FOR SUBSEQUENT REENLISTMENTS. FOOTNOTE 1 TO THE TABLE PROVIDES THAT IN DETERMINING THE NUMBER OF REENLISTMENTS INVOLVED,"ANY REENLISTMENT WHEN A BONUS WAS NOT AUTHORIZED IS NOT COUNTED.' SECTION 208 (D) PROVIDES THAT AN OFFICER OF A UNIFORMED SERVICE WHO ENLISTS IN THAT SERVICE WITHIN 90 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 IS TO BE NOTED THAT SECTION 207 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238 (B) (1958 ED.), PROVIDES THAT FOR THE PURPOSE OF THE REENLISTMENT BONUS AUTHORIZED BY SECTION 207 (A), AN ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING COMPULSORY OR VOLUNTARY ACTIVE DUTY IN SUCH SERVICE SHALL BE CONSIDERED A REENLISTMENT. SINCE NO DISTINCTION IS MADE BETWEEN COMPULSORY OR VOLUNTARY SERVICE, A MEMBER WHO ENLISTS WITHIN THE PRESCRIBED PERIOD FOLLOWING HIS DISCHARGE FROM COMPULSORY SERVICE AS AN INDUCTEE IS REGARDED AS HAVING REENLISTED WITHIN THE CONTEMPLATION OF SECTION 207 (B). SECTION 207 (B) LIKEWISE MAKES NO DISTINCTION BETWEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER OR ENLISTED MEMBER AND, UNLIKE SECTION 208 (D), THERE IS NO REQUIREMENT THAT OFFICER SERVICE MUST HAVE BEEN IMMEDIATELY PRECEDED BY ENLISTED SERVICE IN ORDER FOR A FORMER OFFICER TO QUALIFY FOR A REENLISTMENT BONUS UNDER SECTION 207 (A) AND (B). WHILE SECTION 207 (E) (1), AS ADDED BY THE 1954 ACT, PRECLUDES THE PAYMENT OF A BONUS UNDER SECTION 207 TO A FORMER OFFICER WHO ENLISTS AFTER THE DATE OF THAT ACT AND WHO HAS NOT SERVED AS AN ENLISTED MAN, IT DOES NOT PRECLUDE PAYMENT TO A MEMBER IN YOUR CIRCUMSTANCES WHO PREVIOUSLY HAD SERVED IN AN ENLISTED STATUS AS AN INDUCTEE. YOU WOULD HAVE BEEN ENTITLED TO A BONUS IF YOU HAD ENLISTED WITHIN THE PRESCRIBED PERIOD FOLLOWING THAT ENLISTED SERVICE AND CONSEQUENTLY YOUR ENLISTMENT OF FEBRUARY 1, 1958, MAY NOT BE REGARDED AS AN ORIGINAL ENLISTMENT FOR BONUS PURPOSES. YOU WERE THEREFORE ENTITLED TO THE BONUS OF $90 WHICH YOU RECEIVED. COMPARE 31 COMP. GEN. 209-211.

SUBPARAGRAPH 3 OF PARAGRAPH 9-61, ARMY REGULATIONS 37-104 (CHANGE 55, DATED MARCH 15, 1962) PROVIDES THAT AN OFFICER IN THE ARMY WITH PRIOR ENLISTED SERVICE WHICH DID NOT IMMEDIATELY PRECEDE THE LATEST PERIOD OF OFFICER SERVICE WHO ENLISTS IN THE REGULAR ARMY AFTER JULY 16, 1954, IS ENTITLED TO A REENLISTMENT BONUS UNDER SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 237 (A). ALTHOUGH SUCH REGULATION WAS ISSUED SUBSEQUENT TO THE PERIOD UNDER CONSIDERATION, IT APPARENTLY DID NOT CHANGE ANY REGULATIONS TO THE CONTRARY AND MERELY REFLECTS THE ADMINISTRATIVE INTERPRETATION OF THE APPLICABLE STATUTE. THE REGULATION IS IN ACCORD WITH OUR DECISION OF JULY 15, 1959, 39 COMP. GEN. 31, IN WHICH WE HELD THAT SUBSECTION 207 (E) (1), AS ADDED BY THE ACT OF JULY 16, 1954, PRECLUDES THE PAYMENT OF A BONUS UNDER SECTION 207 TO A FORMER OFFICER WHO ENLISTS AFTER THAT DATE UNLESS HE HAS PREVIOUSLY SERVED AS AN ENLISTED MAN, BUT THAT THERE IS NO REQUIREMENT THAT SUCH ENLISTED SERVICE MUST HAVE BEEN IMMEDIATELY PRIOR TO HIS OFFICER SERVICE IN ORDER TO QUALIFY UNDER SECTION 207.

SINCE UPON YOUR ENLISTMENT (REENLISTMENT) FEBRUARY 1, 1958, YOU WERE PROPERLY PAID A REENLISTMENT BONUS UNDER SECTION 207, UPON YOUR REENLISTMENT ON FEBRUARY 1, 1961, YOU WERE ELIGIBLE FOR AND PROPERLY PAID A REENLISTMENT BONUS AS FOR A SECOND REENLISTMENT, COMPUTED ACCORDING TO THE TABLE SET OUT IN SECTION 208 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 239 (A), IN EFFECT AT THAT TIME.

THE PROVISIONS OF ARMY REGULATIONS 601-210, REFERRED TO BY YOU, PERTAINED TO THE REQUIREMENTS FOR ENLISTING IN THE REGULAR ARMY. THE DEFINITIONS OF "ENLISTMENT" AND "REENLISTMENT" CONTAINED THEREIN RELATE ONLY TO THE PURPOSES OF THAT REGULATION AND ARE NOT FOR APPLICATION IN DETERMINING YOUR ENTITLEMENT TO REENLISTMENT BONUS.