B-158477, DEC. 5, 1966

B-158477, DEC. 5, 1966

TO THE FINANCE AND ACCOUNTING OFFICER, THROUGH OFFICE OF THE CHIEF OF FINANCE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1966, WITH ENCLOSURES, FORWARDED UNDER DATE OF SEPTEMBER 29, 1966, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. DO-A-930, REQUESTING DECISION AS TO WHETHER ACTIVE SERVICE PERFORMED BY PRIVATE FIRST CLASS ALBERT SHUMON, RA 52 560 579, PRIOR TO APRIL 19, 1965, MAY BE CONSIDERED IN COMPUTING THE SERVICE REQUIREMENTS NECESSARY TO QUALIFY FOR VARIABLE REENLISTMENT BONUS UNDER 37 U.S.C. 308 (G).

THE CITED SUBSECTION (G) WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 21, 1965, PUB.L. 89-132, 79 STAT. 547, AND PROVIDES AS FOLLOWS:

"/G) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, OR THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, A MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) OF THIS SECTION UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS. THE ADDITIONAL AMOUNT SHALL BE PAID IN EQUAL YEARLY INSTALLMENTS IN EACH YEAR OF THE REENLISTMENT PERIOD. HOWEVER, IN MERITORIOUS CASES THE ADDITIONAL AMOUNT MAY BE PAID IN FEWER INSTALLMENTS IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTEREST OF THE MEMBER. AMOUNT PAID UNDER THIS SUBSECTION DOES NOT COUNT AGAINST THE LIMITATION PRESCRIBED BY SUBSECTION (C) OF THIS SECTION ON THE TOTAL AMOUNT THAT MAY BE PAID UNDER THIS SECTION.'

THE RECORD SHOWS THAT PRIVATE SHUMON SERVED ON ACTIVE DUTY FROM NOVEMBER 28, 1962, THROUGH NOVEMBER 27, 1964. COMMENCING NOVEMBER 28, 1964, HE HAD AN INACTIVE RESERVE STATUS UNTIL APRIL 18, 1965. THE FOLLOWING DAY, APRIL 19, 1965, HE REENLISTED IN THE REGULAR ARMY. NO REENLISTMENT BONUS WAS AUTHORIZED INCIDENT TO THAT REENLISTMENT. HE SERVED UNTIL MARCH 25, 1966, AT WHICH TIME HE WAS DISCHARGED AND REENLISTED THE FOLLOWING DAY FOR A PERIOD OF FOUR YEARS.

THE REGULATIONS ISSUED BY THE SECRETARY OF THE ARMY PURSUANT TO SECTION 308 (G) OF TITLE 37, U.S. CODE, AND DEPARTMENT OF DEFENSE DIRECTIVE 1304.10, DECEMBER 18, 1965, APPEAR IN C 5, AR 600-200 AND IN PRESCRIBING REQUIREMENTS FOR ELIGIBILITY FOR THE VARIABLE REENLISTMENT BONUS, PROVIDE IN PERTINENT PART, THAT:

"10-3 ELIGIBILITY-A. AN INDIVIDUAL WILL BE ELIGIBLE TO RECEIVE A VRB IF, AT THE TIME OF REENLISTMENT HE OR SHE---

"/3) HAS COMPLETED AT LEAST 21 MONTHS OF ACTIVE SERVICE (OTHER THAN ACTIVE DUTY FOR TRAINING) BEFORE DISCHARGE, RELEASE FROM ACTIVE DUTY, OR AMENDMENT OF INITIAL TERM OF SERVICE.

"/4) REENLISTS IN THE REGULAR ARMY WITHIN 3 MONTHS AFTER DATE OF DISCHARGE OR RELEASE FROM COMPULSORY OR VOLUNTARY ACTIVE DUTY (OTHER THAN FOR TRAINING), OR AMENDS ENLISTMENT TO PROVIDE FOR AN ADDITIONAL PERIOD OF SERVICE OF NOT LESS THAN TWO YEARS. THE REENLISTMENT OR AMENDMENT OF ENLISTMENT MUST OBLIGATE THE INDIVIDUAL FOR A PERIOD OF TOTAL ACTIVE SERVICE OF NOT LESS THAN 69 MONTHS INCLUDING REQUIREMENTS OF (3) ABOVE.

THIS OFFICE HAS HELD (45 COMP. GEN. 561, B-158477, MARCH 9, 1966), THAT A PRIOR REENLISTMENT FOR WHICH THE MEMBER WAS NOT ENTITLED TO RECEIVE A REENLISTMENT BONUS BECAUSE OF A BREAK IN SERVICE IN EXCESS OF THREE MONTHS WILL NOT BE COUNTED AS A REENLISTMENT FOR PURPOSES OF THE VARIABLE REENLISTMENT BONUS. WE STATED THAT A FIRST REENLISTMENT FOR PURPOSES OF THE VARIABLE REENLISTMENT BONUS MUST BE A FIRST REENLISTMENT FOR WHICH A REENLISTMENT BONUS IS PAYABLE UNDER 37 U.S.C. 308 (A). CONSIDERING PRIVATE SHUMON'S SERVICE, HIS REENLISTMENT ON MARCH 26, 1966, WAS HIS FIRST REENLISTMENT FOR PURPOSES OF THE REENLISTMENT BONUS AND VARIABLE REENLISTMENT BONUS. HOWEVER, IN ORDER FOR HIM TO BE ELIGIBLE FOR THE VARIABLE REENLISTMENT BONUS, AR 600-200 (3) REQUIRES THAT HE SHALL HAVE COMPLETED AT LEAST 21 MONTHS OF ACTIVE SERVICE BEFORE DISCHARGE AND OBLIGATE HIMSELF FOR A TOTAL ACTIVE SERVICE OF NOT LESS THAN 69 MONTHS (ACTIVE SERVICE PERFORMED AND OBLIGATED SERVICE) AS REQUIRED BY AR 600-200 (4). THESE REGULATIONS ISSUED PURSUANT TO LAW PRESCRIBE ELIGIBILITY REQUIREMENTS IN ADDITION TO THOSE SPECIFICALLY STATED IN THE STATUTE. SINCE PRIVATE SHUMON HAD SERVED LESS THAN 21 MONTHS IN HIS CURRENT ENLISTMENT PRIOR TO HIS DISCHARGE ON MARCH 25, 1966, HE CAN MEET THE PRESCRIBED SERVICE REQUIREMENTS ONLY IF THE REGULATIONS PERMIT THE COUNTING OF HIS PRIOR ACTIVE SERVICE WHICH WAS SEPARATED FROM HIS APRIL 1965 ENLISTMENT BY MORE THAN FOUR MONTHS OF INACTIVE SERVICE. THUS THE QUESTION TO BE RESOLVED IS WHETHER SUCH BREAKS IN SERVICE ARE PERMITTED IN COMPUTING SERVICE FOR VARIABLE REENLISTMENT BONUS PURPOSES.

THE LEGISLATIVE HISTORY OF SUBSECTION (G) OF SECTION 308 OF TITLE 37 DISCLOSES THAT THE PRIMARY PURPOSE OF THE NEW VARIABLE REENLISTMENT BONUS IS TO PROVIDE A STRONG REENLISTMENT INCENTIVE TO FIRST-TERM ENLISTED PERSONNEL WHOSE SKILLS ARE CRITICALLY REQUIRED BY THE MILITARY DEPARTMENTS. IT WAS FELT THAT THE BEST METHOD OF PROVIDING THIS INCENTIVE WAS TO CONCENTRATE THE MONETARY REWARD OF THE VARIABLE REENLISTMENT BONUS AT THE FIRST REENLISTMENT DECISION POINT. SEE SENATE REPORT NO. 544, 89TH CONGRESS, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, ON H.R. 0975, PAGES 13-14, 18, AND HOUSE REPORT NO. 549, 89TH CONGRESS, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 9025, PAGES 47-48.

THE ORDINARY SITUATION FOR WHICH THE VARIABLE REENLISTMENT BONUS WOULD BE AUTHORIZED WOULD BE IN THE CASE OF A FIRST ENLISTMENT WHICH IS BEING EXTENDED OR BEING TERMINATED BY DISCHARGE FOLLOWED BY REENLISTMENT WITHIN THREE MONTHS. IN SUCH A CASE THE REGULATIONS REQUIRE THAT AT LEAST 21 MONTHS OF ACTIVE SERVICE BE PERFORMED IN THE ENLISTMENT BEING EXTENDED OR TERMINATED.

IN THE CASE OF A MEMBER LIKE PRIVATE SHUMON WHO HAS NOT SERVED 21 MONTHS IN THE ENLISTMENT BEING EXTENDED OR TERMINATED BUT WHO HAS AT SOME TIME IN THE PAST HAD OTHER ACTIVE DUTY, THE SAME REGULATIONS ARE APPLICABLE. HOWEVER, THEY MAKE NO SPECIFIC PROVISION WITH RESPECT TO COUNTING SUCH PAST SERVICE. BECAUSE OF A BREAK IN ACTIVE SERVICE, SHUMON'S ENLISTMENT FROM NOVEMBER 1962 TO NOVEMBER 1964 AND HIS ENLISTMENT IN APRIL 1965 ARE DISREGARDED FOR REENLISTMENT BONUS PURPOSES UNDER 37 U.S.C. 308 (A) AND SINCE SUCH SERVICE IS EXCLUDED UNDER THAT PROVISION, IT IS OUR VIEW THAT AUTHORITY TO INCLUDE SERVICE PRIOR TO THAT PERFORMED IN THE ENLISTMENT BEING EXTENDED OR TERMINATED; PERHAPS PERFORMED SEVERAL YEARS BEFORE THE MEMBER'S CURRENT ENLISTMENT AND POSSIBLY IN AN ENTIRELY DIFFERENT CAPACITY (EVEN IN A DIFFERENT SERVICE), SHOULD BE RECOGNIZED FOR PURPOSES OF 37 U.S.C. 308 (G) ONLY ON THE BASIS OF REGULATIONS CLEARLY AND SPECIFICALLY PROVIDING FOR SUCH RECOGNITION.

ACCORDINGLY, IT IS CONCLUDED THAT THE PRIOR ACTIVE SERVICE OF PRIVATE ALBERT SHUMON COVERING THE PERIOD NOVEMBER 28, 1962, THROUGH NOVEMBER 27, 1964, MAY NOT BE COUNTED TOWARD REQUIREMENTS OF AR 600 200, PARAGRAPH 10-3 (3) AND (4). HENCE, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE TOGETHER WITH THE SUPPORTING PAPERS.