B-156783, SEP. 13, 1965, 45 COMP. GEN. 123

B-156783, SEP. 13, 1965, 45 COMP. GEN. 123

GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT - MORE THAN ONE A MARINE CORPS CORPORAL WHO UNDER THE AUTHORITY OF 10 U.S.C. 5539 TWICE VOLUNTARILY EXTENDED A 4-YEAR ENLISTMENT, A 9-MONTH EXTENSION, IMMEDIATELY FOLLOWED BY A REEXTENSION FOR 2 YEARS, IS ENTITLED PURSUANT TO 37 U.S.C. 308 (A) TO A REENLISTMENT BONUS COMPUTED ON THE BASIS OF A 2 AND 3/4 YEARS MULTIPLIER FACTOR, THE SHORT-TERM, 9-MONTH EXTENSION, ALTHOUGH CREATING NO ENTITLEMENT TO A REENLISTMENT BONUS, BEING, IN ACCORDANCE WITH AN ADMINISTRATIVE REGULATION, IN THE BEST INTEREST OF THE CORPS, IT MAY BE ADDED TO THE 2-YEAR ENLISTMENT REEXTENSION TO FORM THE "ONE CONTINUOUS EXTENSION" PRESCRIBED BY 37 U.S.C. 906 (B); THEREFORE, THE SHORT-TERM ENLISTMENT NOT PRECLUDED FROM CONSIDERATION IN DETERMINING THE MULTIPLIER FACTOR FOR USE IN COMPUTING THE REENLISTMENT BONUS, THE MEMBER HAVING BEEN PAID FOR A 2-YEAR EXTENSION IS ENTITLED TO AN ADDITIONAL AMOUNT OF REENLISTMENT BONUS ON THE BASIS OF "ONE CONTINUOUS EXTENSION," TOTALING 2 YEARS AND 9 MONTHS, OF HIS INITIAL ENLISTMENT.

TO MAJOR S. GOEN, UNITED STATES MARINE CORPS, SEPTEMBER 13, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1965, AND ENCLOSURES, FORWARDED HERE ON MAY 12, 1965, BY HEADQUARTERS, UNITED STATES MARINE CORPS, REQUESTING A DECISION AS TO THE PROPER METHOD OF COMPUTING REENLISTMENT BONUS IN THE CASE OF CORPORAL JERRY K. NELSON, USMC, 1904968, IN THE CIRCUMSTANCES SET FORTH BELOW. YOUR SUBMISSION WAS RECEIVED UNDER CONTROL NO. DO-MC-848 ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

JERRY K. NELSON ENLISTED IN THE UNITED STATES MARINE CORPS ON APRIL 30, 1960, FOR 4 YEARS. THAT ENLISTMENT, WHICH WOULD HAVE EXPIRED APRIL 29, 1964, WAS TWICE VOLUNTARILY EXTENDED BY NELSON. THE FIRST EXTENSION WAS EXECUTED ON MAY 11, 1962, FOR A PERIOD OF 9 MONTHS AND ON JANUARY 27, 1965, NELSON EXECUTED A SECOND EXTENSION FOR A TERM OF 2 YEARS.

A MEMBER OF THE REGULAR MARINE CORPS MAY EXTEND OR RE-EXTEND HIS ENLISTMENT BY WRITTEN AGREEMENT FOR LESS THAN 1 YEAR OR FOR A PERIOD OF 1, 2, 3, OR 4 FULL YEARS. SEE 10 U.S.C. 5539 (A) WHICH EXPRESSLY PROVIDES "HOWEVER, THE TOTAL OF ALL SUCH EXTENSIONS OF AN ENLISTMENT MAY NOT EXCEED FOUR YEARS.' PARAGRAPH 2206, CHANGE 8, MARINE CORPS PERSONNEL MANUAL, 1961, AUTHORIZES VOLUNTARY EXTENSIONS OF ENLISTMENT FOR PERIODS OF 3, 6, OR 9 MONTHS OR 1, 2, 3 OR 4 FULL YEARS; PROVIDES THAT EXTENSIONS FOR LESS THAN 1 FULL YEAR "SHALL BE AUTHORIZED ONLY WHEN IN THE BEST INTERESTS OF THE MARINE CORPS; " THAT NO MORE THAN TWO VOLUNTARY EXTENSIONS OF ANY DURATION WILL BE PERMITTED ON ANY ONE ENLISTMENT; AND THAT THE TOTAL OF BOTH EXTENSIONS WILL NOT EXCEED 4 YEARS. AN EXTENSION OF ENLISTMENT IS DEFINED IN PARAGRAPH 1133, MARINE CORPS MANUAL, 1961, AS OCCURRING WHEN AN ENLISTED MEMBER AGREES TO EXTEND HIS EXISTING TERM OF ENLISTMENT AND POSTPONE HIS RIGHT TO DISCHARGE UNTIL EXPIRATION OF THE PERIOD OF EXTENSION.

SECTION 906 (B), TITLE 37, U.S. CODE, IN PERTINENT PART PROVIDES THAT A MEMBER OF THE REGULAR MARINE CORPS WHO EXTENDS HIS ENLISTMENT UNDER THE PROVISIONS OF 10 U.S.C. 5539 "IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED.' SECTION 906 (B) FURTHER PROVIDES THAT FOR THE PURPOSES OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS AND TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE "ALL SUCH EXTENSIONS OF ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION.'

INSOFAR AS APPLICABLE IN THE CIRCUMSTANCES PERTAINING TO NELSON, SUBSECTION (A) IN 37 U.S.C. 308, PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE "WHO VOLUNTARILY EXTENDS HIS ENLISTMENT FOR AT LEAST TWO YEARS" IS ENTITLED TO REENLISTMENT BONUS COMPUTED BY MULTIPLYING THE MONTHLY BASIC PAY TO WHICH ENTITLED AT TIME OF DISCHARGE OR RELEASE BY THE NUMBER OF YEARS SPECIFIED IN THE REENLISTMENT CONTRACT. NELSON ACQUIRED NO RIGHT, OF COURSE, TO REENLISTMENT BONUS UPON HIS FIRST EXTENSION OF ENLISTMENT WHICH WAS FOR A PERIOD OF 9 MONTHS ONLY. THE RECORD SHOWS THAT HE WAS PAID A REENLISTMENT BONUS IN THE AMOUNT OF $410 INCIDENT TO THE SECOND EXTENSION OF HIS ENLISTMENT COMPUTED ON THE BASIS OF A 2-YEAR EXTENSION. AS THUS COMPUTED, NELSON HAS RECEIVED NO CREDIT FOR THE 9-MONTH PERIOD OF ACTIVE SERVICE WHICH HE PERFORMED UNDER THE FIRST EXTENSION OF HIS ENLISTMENT. AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER IS NELSON'S CLAIM EXECUTED ON DD FORM 827 FOR AN ADDITIONAL AMOUNT OF REENLISTMENT BONUS BELIEVED DUE HIM ON THE BASIS OF "ONE CONTINUOUS EXTENSION" TOTALING 2 YEARS AND 9 MONTHS.

THE PROVISIONS OF 37 U.S.C. 308 (A) GOVERNING THE COMPUTATION OF REENLISTMENT BONUS ON THE BASIS OF THE "NUMBER OF YEARS SPECIFIED IN REENLISTMENT CONTRACT" STEM DIRECTLY FROM SECTION 208 WHICH WAS ADDED TO THE CAREER COMPENSATION ACT OF 1949 BY SECTION 2, ACT OF JULY 16, 1954, CH. 535, 68 STAT. 488, 489, 37 U.S.C. 239 (1958 ED.). WHEN SECTION 208 WAS ENACTED IN 1954 VOLUNTARY EXTENSIONS OF ENLISTMENTS IN THE NAVY AND MARINE CORPS WERE LIMITED BY LAW TO PERIODS OF 1, 2, 3, OR 4 FULL YEARS. 34 U.S.C. 184 (1952 ED.). HENCE, THE LANGUAGE IN FORMER SECTION 208 (NOW CODIFIED IN 37 U.S.C. 308) WAS ENTIRELY CONSISTENT WITH THE STATUTORY PROVISIONS THEN IN EFFECT AUTHORIZING VOLUNTARY EXTENSIONS FOR PERIODS OF 1, 2, 3, OR 4 FULL YEARS.

HOWEVER, BY SECTION 1, ACT OF JULY 12, 1955, CH. 334, 69 STAT. 299, THE VOLUNTARY EXTENSION OF THE TERM OF ENLISTMENT OF ANY ENLISTED MAN IN THE NAVY AND MARINE CORPS WAS EXPRESSLY AUTHORIZED ,FOR A PERIOD OF LESS THAN ONE YEAR OR FOR A PERIOD OF ONE, TWO, THREE, OR FOUR FULL YEARS.' THE MUTUAL ADVANTAGES TO BE GAINED BY THE GOVERNMENT AND THE INDIVIDUAL CONCERNED IN PERMITTING VOLUNTARY EXTENSIONS OF LESS THAN 1 YEAR WERE RECOGNIZED IN THE HEARING ON S. 1571, 84TH CONG. (WHICH BECAME THE ACT OF JULY 12, 1955) BEFORE THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, JUNE 16, 1955. IT IS EVIDENT FROM THE STATEMENTS MADE AT THAT HEARING (SEE PAGES 5 AND 6 THEREOF) THAT THE COMMITTEE UNDERSTOOD A REENLISTMENT BONUS WOULD NOT ACCRUE SOLELY ON THE BASIS OF ANY EXTENSION OF ENLISTMENT FOR LESS THAN 1 YEAR, BUT, THAT UPON REENLISTMENT FOLLOWING SUCH A SHORT-TERM EXTENSION THE INDIVIDUAL CONCERNED WOULD THEN RECEIVE A REENLISTMENT BONUS, IF OTHERWISE ENTITLED THERETO.

THE PROVISIONS OF 37 U.S.C. 906 (B) ABOVE REFERRED TO, FORMERLY WERE CONTAINED IN SUBSECTION (B), SECTION 5539, TITLE 10, U.S. CODE, 70A STAT. 320. THAT SUBSECTION WAS REPEALED BY SECTION 14C (27), PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 501. THE SECOND SENTENCE IN THE ABOVE-CITED STATUTORY PROVISIONS PROVIDING THAT FOR THE PURPOSES OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS AND TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE "ALL SUCH EXTENSIONS OF ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION" WAS INCLUDED IN THE ACT OF AUGUST 10, 1956, 10 U.S.C. 5539 (B), TO REFLECT THE HOLDINGS OF THIS OFFICE IN 2 COMP. GEN. 612 AND 30 COMP. GEN. 109. THOSE HOLDINGS RELATED TO THE EFFECT OF EXTENSIONS AND REEXTENSIONS OF ENLISTMENTS UNDER THE PROVISIONS OF LAW THAT WERE IN FORCE PRIOR TO THE ACTS OF JULY 16, 1954, AND JULY 12, 1955. SEE H.REPT. NO. 970, COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON H.R. 7049, 84TH CONG., WHICH BECAME THE ACT OF AUGUST 10, 1956, CODIFYING TITLES 10 AND 32, UNITED STATES CODE. THE LEGISLATIVE HISTORY OF THE 1956 STATUTE CONTAINS NO REFERENCE WHATEVER TO THE 1954 OR 1955 ACTS. HOWEVER, THE PROVISIONS OF THE 1955 LAW AUTHORIZING EXTENSIONS OF ENLISTMENTS FOR PERIODS OF LESS THAN 1 YEAR WERE INCORPORATED IN 10 U.S.C. 5539 (A) BY SECTION 1 (116), PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1493.

IT SEEMS EVIDENT THEREFORE THAT THE PROVISIONS OF 10 U.S.C. 5539 (B), NOW 37 U.S.C. 906 (B), WERE DIRECTED SOLELY TOWARDS VOLUNTARY EXTENSIONS OF 1, 2, 3, OR 4 FULL YEARS. UNDER THOSE STATUTORY PROVISIONS AN ENLISTED PERSON VOLUNTARILY EXTENDING FOR 1, 2, OR 3 FULL YEARS AFTER AN INITIAL 1- YEAR EXTENSION BECOMES ENTITLED TO RECEIVE REENLISTMENT BONUS COMPUTED ON THE BASIS OF 2, 3, OR 4 YEARS, RESPECTIVELY, AS THE CASE MIGHT BE. THE STATUTE, IN EFFECT, COMBINES THE INITIAL PERIOD OF EXTENSION AND THE PERIOD OF REEXTENSION TO FORM "ONE CONTINUOUS EXTENSION" FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS AND SINCE ENTITLEMENT TO REENLISTMENT BONUS RESTS ON A VOLUNTARY EXTENSION OF ENLISTMENT "FOR AT LEAST 2 YEARS" THE BASIC FACTOR IS WHETHER THE TWO TOGETHER (THE INITIAL EXTENSION OF LESS THAN ONE YEAR AND THE REEXTENSION) AGGREGATE "AT LEAST 2 YEARS.'

IN THE INSTANT CASE NELSON'S INITIAL EXTENSION OF 9 MONTHS, FOR WHICH NO ENTITLEMENT TO BONUS EXISTED, WAS FOLLOWED BY A REEXTENSION OF 2 YEARS THEREBY FORMING "ONE CONTINUOUS EXTENSION" OF 2 YEARS AND 9MONTHS. SOUND REASON IS PERCEIVED TO PENALIZE HIM FOR THE SHORT TERM PERIOD OF EXTENSION OF LESS THAN 1 YEAR WHICH, UNDER THE ADMINISTRATIVE REGULATIONS PREVIOUSLY REFERRED TO, WAS "AUTHORIZED ONLY WHEN IN THE BEST INTERESTS OF THE MARINE CORPS.' ACCORDINGLY, THE PROPER-MULTIPLIER FACTOR (COLUMN 2 IN THE FORMULA PRESCRIBED IN 37 U.S.C. 308 (A) ( TO BE USED IN NELSON'S CASE IS 2 AND 3/4 YEARS.

NELSON'S CLAIM AND THE SUPPORTING PAPERS RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER ON WHICH THE PAYMENT OF ADDITIONAL REENLISTMENT BONUS IS MADE TO NELSON.