B-164754, AUGUST 30, 1968, 48 COMP. GEN. 127

B-164754: Aug 30, 1968

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NOT ONLY FOR NAVY AND MARINE CORPS MEMBERS BUT FOR THE FIRST TIME FOR ARMY AND AIR FORCE MEMBERS WHO PRIOR TO THE ACT WERE LIMITED UNDER 10 U.S.C. 3263 AND 8263 TO AN ENLISTMENT EXTENSION "FOR A PERIOD OF LESS THAN ONE YEAR. CONSIDERS THAT ALL EXTENSIONS OF AN ENLISTMENT ARE ONE CONTINUOUS EXTENSION. AN ACCRUED LEAVE SETTLEMENT IS RESTRICTED TO THE FIRST EXTENSION OF AN ENLISTMENT. IN THE ABSENCE IN LEGISLATION PRIOR TO THE 1968 ACT OF ANY PROVISION GRANTING THE SAME BENEFITS UPON THE REEXTENSIONS OF AN ENLISTMENT AS IS PROVIDED FOR AN EXTENSION OF AN ENLISTMENT. THE LANGUAGE OF THE 1968 ACT IS CONSTRUED AS RESTRICTING AN ACCRUED LEAVE SETTLEMENT TO THE FIRST EXTENSION OF AN ENLISTMENT. 1968: FURTHER REFERENCE IS MADE TO LETTER OF JUNE 28.

B-164754, AUGUST 30, 1968, 48 COMP. GEN. 127

GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT - ARMY AND AIR FORCE PERSONNEL IN DETERMINING ENTITLEMENT TO A REENLISTMENT BONUS FOR ARMY AND AIR FORCE PERSONNEL UNDER THE ACT OF JANUARY 2, 1968, WHICH AUTHORIZES THE EXTENSION OF ENLISTMENTS NOT TO EXCEED 4 YEARS, NOT ONLY FOR NAVY AND MARINE CORPS MEMBERS BUT FOR THE FIRST TIME FOR ARMY AND AIR FORCE MEMBERS WHO PRIOR TO THE ACT WERE LIMITED UNDER 10 U.S.C. 3263 AND 8263 TO AN ENLISTMENT EXTENSION "FOR A PERIOD OF LESS THAN ONE YEAR," THE ACT DOES NOT OPERATE TO REQUIRE THE COMBINATION OF ENLISTMENT EXTENSIONS ENTERED INTO BEFORE AND ON OR AFTER JANUARY 2, 1968, DUE TO THE FACT THAT ARMY AND AIR FORCE MEMBERS COULD NOT PRIOR TO JANUARY 2, 1968 QUALIFY FOR THE REENLISTMENT BONUS AUTHORIZED BY 37 U.S.C. 308 FOR REENLISTMENTS OR VOLUNTARY EXTENSIONS OF ENLISTMENTS FOR "AT LEAST 2 YEARS.' LEAVES OF ABSENCE - MILITARY PERSONNEL - PAYMENTS FOR UNUSED LEAVE ON DISCHARGE, ETC. - ENLISTMENT EXTENSION, DISCHARGE, REENLISTMENT, ETC. UNDER THE ACT OF JANUARY 2, 1968, WHICH AUTHORIZES THE EXTENSION AND REEXTENSIONS OF A TERM OF ENLISTMENT FOR NOT TO EXCEED 4 YEARS BY MEMBERS OF ALL THE SERVICES, AND PROVIDES ENTITLEMENT TO THE SAME PAY AND ALLOWANCES AS THOUGH THE MEMBER HAD REENLISTED, AND CONSIDERS THAT ALL EXTENSIONS OF AN ENLISTMENT ARE ONE CONTINUOUS EXTENSION, AN ACCRUED LEAVE SETTLEMENT IS RESTRICTED TO THE FIRST EXTENSION OF AN ENLISTMENT. IN THE ABSENCE IN LEGISLATION PRIOR TO THE 1968 ACT OF ANY PROVISION GRANTING THE SAME BENEFITS UPON THE REEXTENSIONS OF AN ENLISTMENT AS IS PROVIDED FOR AN EXTENSION OF AN ENLISTMENT, THE LANGUAGE OF THE 1968 ACT IS CONSTRUED AS RESTRICTING AN ACCRUED LEAVE SETTLEMENT TO THE FIRST EXTENSION OF AN ENLISTMENT.

TO THE SECRETARY OF DEFENSE, AUGUST 30, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 28, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER THE ACT OF JANUARY 2, 1968, REQUIRES THE COMBINING OF EXTENSIONS OF ENLISTMENTS ENTERED INTO AFTER JANUARY 1, 1968, WITH EXTENSIONS ENTERED INTO PRIOR TO JANUARY 2, 1968, FOR THE PURPOSE OF ENTITLEMENT OF ARMY AND AIR FORCE ENLISTED PERSONNEL TO REENLISTMENT BONUS AND SETTLEMENT FOR UNUSED ACCRUED LEAVE. THE QUESTIONS AND A DISCUSSION RELATING TO THEM ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 417.

THE QUESTIONS ARE STATED IN THE COMMITTEE ACTION AS FOLLOWS:

1. FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS FOR ARMY AND AIR FORCE PERSONNEL, DOES 37 U.S.C. 906 OPERATE TO REQUIRE THE COMBINATION OF EXTENSIONS ENTERED INTO UNDER 10 U.S.C. 509 ON OR AFTER 2 JANUARY 1968 WITH STATUTORY EXTENSIONS ENTERED INTO BEFORE 2 JANUARY 1968?

2. DOES 37 U.S.C. 906 RESTRICT ACCRUED LEAVE SETTLEMENT TO THE FIRST EXTENSION OF AN ENLISTMENT?

SECTION 509 OF TITLE 10, U.S. CODE, AS ADDED BY SECTION 2 (A) (1) OF THE ACT OF JANUARY 2, 1968, PUBLIC LAW 90-235, 81 STAT. 755, PROVIDES: 509. VOLUNTARY EXTENSION OF ENLISTMENTS: PERIODS AND BENEFITS

(A) UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, THE TERM OF ENLISTMENT OF A MEMBER OF AN ARMED FORCE MAY BE EXTENDED OR REEXTENDED WITH HIS WRITTEN CONSENT FOR ANY PERIOD. HOWEVER, THE TOTAL OF ALL SUCH EXTENSIONS OF AN ENLISTMENT MAY NOT EXCEED FOUR YEARS.

(B) WHEN A MEMBER IS DISCHARGED FROM AN ENLISTMENT THAT HAS BEEN EXTENDED UNDER THIS SECTION, HE HAS THE SAME RIGHTS, PRIVILEGES, AND BENEFITS THAT HE WOULD HAVE IF DISCHARGED AT THE SAME TIME FROM AN ENLISTMENT NOT SO EXTENDED.

SECTION 906 OF TITLE 37, U.S. CODE, AS AMENDED BY SECTION 2 (C) OF THE ACT OF JANUARY 2, 1968, 81 STAT. 757, PROVIDES AS FOLLOWS: 906 EXTENSION OF ENLISTMENT: EFFECT ON PAY AND ALLOWANCES

A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, AS THE CASE MAY BE, WHO EXTENDS HIS ENLISTMENT UNDER SECTION 509 OF TITLE 10 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. FOR THE PURPOSES OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS OR TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE, ALL SUCH EXTENSIONS OF ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION.

PRIOR TO JANUARY 2, 1968, THE EFFECTIVE DATE OF THE ABOVE-QUOTED PROVISIONS OF 10 U.S.C. 509, SECTION 5539 OF TITLE 10, U.S. CODE, AUTHORIZED ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS TO EXTEND OR REEXTEND THEIR ENLISTMENTS FOR LESS THAN 1 YEAR OR FOR A PERIOD OF 1, 2, 3, OR 4 FULL YEARS, BUT THE TOTAL OF ALL SUCH EXTENSIONS OF AN ENLISTMENT COULD NOT EXCEED 4 YEARS. PRIOR TO AUGUST 10, 1956, ONLY ONE EXTENSION OF ENLISTMENT IN THE NAVY OR MARINE CORPS WAS EXPRESSLY AUTHORIZED BY STATUTE. A MEMBER OF THE NAVY OR MARINE CORPS WHO EXTENDED HIS ENLISTMENT UNDER THAT SECTION WAS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD BEEN DISCHARGED AND REENLISTED.

FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS, ALL SUCH EXTENSIONS OF AN ENLISTMENT UNDER 10 U.S.C. 5539 WERE CONSIDERED ONE CONTINUOUS EXTENSION. WHEN A MEMBER WAS DISCHARGED FROM AN ENLISTMENT THAT HAD BEEN EXTENDED UNDER THAT SECTION, HE HAD THE SAME RIGHTS, PRIVILEGES, AND BENEFITS THAT HE WOULD HAVE HAD IF DISCHARGED AT THE SAME TIME FROM AN ENLISTMENT NOT SO EXTENDED.

PRIOR TO THE ACT OF JANUARY 2, 1968, THE ONLY STATUTORY AUTHORITY FOR EXTENDING ENLISTMENTS IN THE ARMY OR AIR FORCE WAS THAT CONTAINED IN 10 U.S.C. 3263 AND 8263, WHICH AUTHORIZED AN EXTENSION OF AN ENLISTMENT ONLY FOR A PERIOD OF LESS THAN 1 YEAR FROM THE DATE OF THE EXPIRATION OF THE EXISTING ENLISTMENT. A MEMBER WHOSE ENLISTMENT WAS SO EXTENDED WAS ENTITLED TO THE PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD BEEN DISCHARGED AND REENLISTED IMMEDIATELY AFTER THE EXPIRATION OF HIS ENLISTMENT. SECTION 308 OF TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF A REENLISTMENT BONUS FOR AN EXTENSION OF AN ENLISTMENT ONLY WHERE THE MEMBER EXTENDS HIS ENLISTMENT "FOR AT LEAST TWO YEARS.' CONSEQUENTLY, PRIOR TO JANUARY 2, 1968, MEMBERS OF THE ARMY AND AIR FORCE COULD NOT QUALIFY FOR THE REENLISTMENT BONUS UPON AN EXTENSION OF ENLISTMENT.

THE ACT OF AUGUST 10, 1956, EFFECTED A SUBSTANTIVE CHANGE IN THE STATUTORY LAW BY EXPRESSLY PROVIDING IN 10 U.S.C. 5539 THAT A MEMBER OF THE NAVY MAY "EXTEND OR RE-EXTEND HIS ENLISTMENT" AND THAT FOR PURPOSES OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS "ALL SUCH EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION.' IN DECISION OF APRIL 18, 1960, 39 COMP. GEN. 711, WE HELD THAT TWO 1 YEAR EXTENSIONS OF AN ENLISTMENT IN THE NAVY CONSTITUTED ONE REENLISTMENT FOR THE PURPOSES OF ENTITLEMENT TO REENLISTMENT BONUS. IN THE CASE OF TWO 1 YEAR EXTENSIONS OF ENLISTMENT WHERE THE FIRST 1 YEAR'S EXTENSION HAD BEEN ENTERED INTO PRIOR TO AUGUST 10, 1956, WE HELD IN DECISION OF JULY 18, 1960, 40 COMP. GEN. 14, THAT A SECOND EXTENSION OF ENLISTMENT EFFECTIVE AFTER AUGUST 10, 1956, MAY BE COMBINED WITH AN EXTENSION MADE PRIOR TO THAT DATE TO AGGREGATE AN EXTENSION OF 2 YEARS SO AS TO QUALIFY FOR A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, NOW CODIFIED IN 37 U.S.C. 308.

THE COMMITTEE ACTION POINTS OUT THAT THE ACT OF JANUARY 2, 1968, REPEALED THE PREVIOUS STATUTORY AUTHORITY FOR VOLUNTARY EXTENSION OF ENLISTMENTS AND ENACTED UNIFORM PROVISIONS IN 10 U.S.C. 509 APPLICABLE TO ALL THE SERVICES. AS INDICATED ABOVE, PRIOR TO THAT DATE THE ONLY STATUTORY AUTHORITY FOR EXTENSION OF ENLISTMENTS IN THE ARMY AND AIR FORCE WAS THAT CONTAINED IN 10 U.S.C. 3263 AND 8263, WHICH LIMITED SUCH EXTENSIONS TO PERIODS OF LESS THAN 1 YEAR.

SECTION 308 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS IN A REGULAR COMPONENT OF THE SERVICE CONCERNED, OR WHO VOLUNTARILY EXTENDS HIS ENLISTMENT FOR AT LEAST 2 YEARS, IS ENTITLED TO A REENLISTMENT BONUS COMPUTED AS THEREIN PROVIDED. THUS A MEMBER OF THE ARMY OR AIR FORCE WHO EXTENDED HIS ENLISTMENT PRIOR TO JANUARY 2, 1968, WAS NOT ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF 37 U.S.C. 308 FOR THE REASON THAT THERE WAS NO STATUTORY AUTHORITY FOR EXTENDING AN ENLISTMENT FOR 2 YEARS. SINCE THE ACT OF JANUARY 2, 1968, IS EFFECTIVE ONLY FROM ITS DATE AND THERE WAS NO AUTHORITY FOR PAYMENT OF A REENLISTMENT BONUS TO A MEMBER OF THE ARMY OR AIR FORCE WHO FIRST EXTENDED HIS ENLISTMENT PRIOR TO THAT DATE, IT APPEARS EXTREMELY UNLIKELY THAT IN ENACTING A LAW WHICH WOULD GIVE RISE TO A RIGHT TO SUCH BONUS UPON AN EXTENSION OF ENLISTMENT FOR 2 OR MORE YEARS ENTERED INTO ON OR AFTER JANUARY 2, 1968, THE CONGRESS INTENDED THAT SUCH EXTENSION SHOULD BE COMBINED WITH AN EARLIER EXTENSION IF THE EFFECT OF SUCH COMBINATION WOULD ADVERSELY AFFECT THE RIGHT WHICH ACCRUED AS A RESULT OF THE EXTENSION FOR A PERIOD OF 2 OR MORE YEARS.

ALSO, IT WOULD SEEM THAT A COMBINATION OF AN EXTENSION OF MORE THAN 1 YEAR ON AND AFTER JANUARY 2, 1968, WITH AN EARLIER EXTENSION TO OBTAIN AN AGGREGATE OF AT LEAST 2 YEARS, COULD BE ACCOMPLISHED ONLY BY GIVING RETROACTIVE EFFECT TO THE ACT OF JANUARY 2, 1968, SINCE IN COMBINING THE TWO THE MEMBER'S RIGHT TO A REENLISTMENT BONUS WOULD BE DETERMINED AS OF A DATE PRIOR TO JANUARY 2, 1968.

ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

UNDER THE PROVISIONS OF 37 U.S.C. 501 (B) A MEMBER OF THE ARMED FORCES IS ENTITLED TO A CASH PAYMENT FOR THE UNUSED ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE. THE ACT OF JULY 12, 1955, CH. 334, 69 STAT. 299, AUTHORIZED THE EXTENSION OF ENLISTMENTS IN THE ARMY, NAVY, MARINE CORPS, AND AIR FORCE FOR A PERIOD OF LESS THAN 1 YEAR FROM THE DATE OF EXPIRATION OF THE THEN EXISTING TERM OF ENLISTMENT. THAT ACT PROVIDED THAT UPON SUCH EXTENSION ENLISTED MEMBERS OF THE ARMY AND AIR FORCE SHOULD BE ENTITLED TO THE SAME PAY AND ALLOWANCES IN ALL RESPECTS AS THOUGH REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON EXPIRATION OF THEIR TERM OF ENLISTMENT, SIMILAR TO THE PROVISIONS APPLICABLE TO THE NAVY UNDER 10 U.S.C. 5539, AS INDICATED ABOVE.

IN DECISION OF SEPTEMBER 14, 1950, 30 COMP. GEN. 103, AND SEPTEMBER 23, 1963, 43 COMP. GEN. 287, WE HELD THAT ENLISTED MEMBERS OF THE NAVY WHO FIRST VOLUNTARILY EXTEND THEIR ENLISTMENTS AT THE EXPIRATION OF SUCH ENLISTMENTS MAY BE PAID FOR UNUSED LEAVE TO THEIR CREDIT AS IF REGULARLY DISCHARGED AND REENLISTED. THAT RESULT FLOWED FROM THE STATUTORY PROVISIONS CITED ABOVE PROVIDING THE SAME BENEFITS FOR FIRST EXTENSION OF ENLISTMENT AS WERE PROVIDED BY LAW UPON DISCHARGE AND REENLISTMENT. INSOFAR AS THE STATUTES ARE CONCERNED, SUCH RIGHTS EXISTED WITH RESPECT TO MEMBERS OF THE ARMY AND AIR FORCE UPON EXTENSION OF ENLISTMENT FOR A PERIOD OF LESS THAN 1 YEAR UNDER THE PROVISIONS OF 10 U.S.C. 3263 AND 8263. WE KNOW OF NO SIMILAR PROVISION OF LAW APPLICABLE UPON A SECOND EXTENSION OF ENLISTMENT AND THERE IS NOTHING IN THE ACT OF JANUARY 2, 1968, TO SUGGEST THAT THE CONGRESS INTENDED THAT IT SHOULD HAVE SUCH RESULT.

THE PROVISIONS OF 10 U.S.C. 906 AS ADDED BY THE 1968 ACT PROVIDE THAT FOR CERTAIN BENEFITS ALL EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION. IT WILL BE NOTED THAT SECTION 509 PROVIDES THAT AN ENLISTMENT MAY BE "EXTENDED OR REEXTENDED," AND THAT SECTION 906 PROVIDES ONLY THAT A MEMBER WHO "EXTENDS" HIS ENLISTMENT UNDER SECTION 509 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. THINK SUCH LANGUAGE IN THE ACT OF JANUARY 2, 1968, AND THE ABSENCE IN PRIOR LEGISLATION OF ANY PROVISION GRANTING THE SAME BENEFITS UPON REEXTENSIONS OF ENLISTMENT AS WERE GRANTED FOR AN EXTENSION OF ENLISTMENT WARRANTS THE CONCLUSION THAT THE PROVISIONS OF 37 U.S.C. 906 RESTRICT THE ACCRUED LEAVE SETTLEMENT TO THE FIRST EXTENSION OF AN ENLISTMENT. ACCORDINGLY, THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.