B-166673, JULY 29, 1969, 49 COMP. GEN. 51

B-166673, JULY 29, 1969, 49 COMP. GEN. 51

MILITARY PERSONNEL -- OVERPAYMENTS -- DE FACTO RULE THE ADDITIONAL OR SPECIAL PAY AUTHORIZED FOR MEMBERS OF THE UNIFORMED SERVICES PAYABLE ONLY UPON COMPLIANCE WITH STATUTORY AND REGULATORY PROVISIONS, THE DE FACTO RULE WHICH PERMITS THE RETENTION OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES RECEIVED IN GOOD FAITH BY A MEMBER WHILE IN A DE FACTO STATUS MAY NOT BE EXTENDED TO THE ERRONEOUS PAYMENTS OF A REENLISTMENT BONUS AND A VARIABLE REENLISTMENT BONUS. A MEMBER WHO PRIOR TO DISCHARGE PRECEDING REENLISTMENT WAS ERRONEOUSLY ADVANCED TO SPECIALIST SIX, A PROMOTION SUBSEQUENTLY CORRECTED, WAS NOT SERVING IN GRADE E-6 WHEN DISCHARGED AND, THEREFORE, THE PAYMENTS OF A REENLISTMENT BONUS AND A VARIABLE REENLISTMENT BONUS COMPUTED ON THE BASIS OF PAY GRADE E-6 WERE MADE CONTRARY TO THE REQUIREMENTS OF 37 U.S.C. 308(A) AND 308(G), AND THE OVERPAYMENTS OF THE ADDITIONAL PAY MAY NOT BE WAIVED UNDER THE DE FACTO RULE.

TO CAPTAIN H. D. FLYNN, DEPARTMENT OF THE ARMY, JULY 29, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1969 (MEDES CF), FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING A DECISION CONCERNING THE ENTITLEMENT OF LINDA K. WARREN, SP6, WA 8 408 729, TO A REENLISTMENT BONUS AND A VARIABLE REENLISTMENT BONUS UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST FOR DECISION WAS ASSIGNED D. O. NO. A-1034 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN YOUR LETTER THAT THE MEMBER REENLISTED ON JANUARY 24, 1967, AND PAYMENT OF THE FIRST AND SECOND INCREMENTS OF THE VARIABLE REENLISTMENT BONUS 4 WERE PAID TO HER AS INDICATED ON THE ATTACHED VOUCHER AS SPECIALIST SIX (E-6) BY THE FINANCE OFFICE, FITZSIMONS GENERAL HOSPITAL. YOU SAY THAT SHE WAS PROMOTED TO THIS GRADE BY PARAGRAPH 21, SPECIAL ORDERS 189, DATED SEPTEMBER 22, 1966, FITZSIMONS GENERAL HOSPITAL; BUT THAT ON OCTOBER 7, 1968, SUBSEQUENT TO ASSIGNMENT TO LETTERMAN GENERAL HOSPITAL, IT WAS DISCOVERED THAT THE PROMOTION WAS ERRONEOUS INASMUCH AS THE MEMBER DID NOT MEET THE MINIMUM TIME IN SERVICE REQUIREMENTS (3 YEARS' SERVICE WITH WAIVER) AS REQUIRED BY THE CURRENT DEPARTMENT OF THE ARMY REGULATIONS 600-200, PARAGRAPH 7-15.

BY PARAGRAPH 16 OF SPECIAL ORDER 251, DATED OCTOBER 31, 1968, FITZSIMONS GENERAL HOSPITAL REVOKED THE PROMOTION, AND BY PARAGRAPH 17 OF THE SAME ORDER THE MEMBER WAS PROMOTED TO SPECIALIST SIX (E-6), DATE OF RANK JANUARY 24, 1967. BY FIRST ENDORSEMENT OF OCTOBER 31, 1968, THE COMMANDING GENERAL, FITZSIMONS GENERAL HOSPITAL, DETERMINED THAT THE MEMBER HAD OCCUPIED THE HIGHER GRADE IN A DE FACTO STATUS.

YOU ALSO SAY THAT SINCE OUR DECISIONS 8 COMP. GEN. 73 (1928); 31 COMP. GEN. 335 (1952); 33 COMP. GEN. 475 (1954); AND 34 COMP. GEN. 266 (1954) ALLOW FOR ENTITLEMENT TO RETAIN PAY RECEIVED IN GOOD FAITH, IT WOULD APPEAR THAT THE REENLISTMENT BONUS AND THE VARIABLE REENLISTMENT BONUS WERE EARNED IN GOOD FAITH UNDER THE DE FACTO RULE AND ARE NOT RECOUPABLE. AND YOU EXPRESS THE VIEW THAT ADDITIONAL PAYMENTS OF THE VARIABLE REENLISTMENT BONUS WOULD BE PAYABLE (ON GRADE E-6) SINCE ENTITLEMENT IS EARNED FROM THE REENLISTMENT OF SPECIALIST SIX WARREN ON JANUARY 24, 1967 (SHOWN AS 1969), IN A DE FACTO STATUS.

HOWEVER, YOU FURTHER SAY THE DECISION OF MAY 25, 1961, 40 COMP. GEN. 642 (1961), DOES NOT ALLOW FOR APPLICATION OF THE DE FACTO RULE TO PERMIT RETENTION OF ADDITIONAL OR SPECIAL PAY RECEIVED IN GOOD FAITH, AND IF THE REENLISTMENT BONUS AND THE VARIABLE REENLISTMENT BONUS ARE CONSIDERED SUCH PAY THEN RECOUPMENT OF THE OVERPAYMENT OF THE DIFFERENCE BETWEEN THE AMOUNTS PAYABLE FOR PAY GRADES E-6 AND E-5 SHOULD BE EFFECTED WITH FUTURE PAYMENTS OF THE VARIABLE REENLISTMENT BONUS BEING PAID FOR THE GRADE OF E- 5.

YOU PRESENT THE FOLLOWING QUESTIONS FOR RESOLUTION:

A. IS THE REENLISTMENT BONUS CONSIDERED AN ADDITIONAL OR SPECIAL PAY IN WHICH THE DE FACTO RULE IS NOT APPLICABLE?

B. IS THE VARIABLE REENLISTMENT BONUS CONSIDERED AN ADDITIONAL OR SPECIAL PAY ON WHICH THE DE FACTO RULE IS NOT APPLICABLE?

C. IF THE ANSWERS TO "A" AND/OR "B" IS AFFIRMATIVE, IS RECOUPMENT REQUIRED FOR OVERPAYMENT?

D. IF THE ANSWER TO "B" IS NEGATIVE, IS PAYMENT OF ATTACHED VOUCHER PROPERLY PAYABLE?

UNDER THE PROVISIONS OF 37 U.S.C. 308(A) A MEMBER OF A UNIFORMED SERVICE WHO REENLISTS IN A REGULAR COMPONENT OF THE SERVICE CONCERNED WITHIN 3 MONTHS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY IS ENTITLED TO A REENLISTMENT BONUS. THE AMOUNT OF THE BONUS DEPENDS ON THE RATE OF PAY TO WHICH THE MEMBER WAS ENTITLED AT THE TIME OF DISCHARGE, THE NUMBER OF HIS PREVIOUS REENLISTMENTS, IF ANY, AND THE LENGTH OF THE PERIOD FOR WHICH HE REENLISTS.

SUBSECTION 308(G) OF THE SAME TITLE, AS ADDED BY SECTION 3 OF PUBLIC LAW 89-132, APPROVED AUGUST 21, 1965, 79 STAT. 547, PROVIDES THAT, UNDER PRESCRIBED REGULATIONS, A MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT OF NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS. THE ADDITIONAL AMOUNT SHALL BE PAID IN EQUAL YEARLY INSTALLMENTS DURING THE REENLISTMENT PERIOD, EXCEPT THAT IN MERITORIUS CASES IT MAY BE PAID IN FEWER INSTALLMENTS IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTEREST OF THE MEMBERS.

SUBPARAGRAPH E-4 OF PARAGRAPH III, DEPARTMENT OF DEFENSE DIRECTIVE 1304.10 DATED DECEMBER 18, 1965, IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED THAT AN INDIVIDUAL WOULD BE ELIGIBLE TO RECEIVE A VARIABLE REENLISTMENT BONUS IF HE MET CERTAIN CONDITIONS INCLUDING THOSE PRESCRIBED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. PARAGRAPH 7-15A OF ARMY REGULATION 600-200 PROVIDES THAT A MEMBER TO BE ELIGIBLE FOR APPOINTMENT TO PAY GRADE E-6 MUST HAVE SPENT 10 MONTHS IN E-5 AND 5 YEARS IN THE SERVICE, EXCEPT THAT 2 YEARS OF THIS SERVICE REQUIREMENT MAY BE WAIVED. THUS, A MINIMUM OF 3 YEARS' SERVICE IS REQUIRED FOR PROMOTION TO E-6.

PARAGRAPH 7-3C OF THE SAME REGULATION PROVIDES THAT ORDERS REVOKING A PROMOTION WILL BE ISSUED WHEN THE COMMANDER WHO MADE THE PROMOTION OR A HIGHER COMMANDER IN THE SAME CHAIN OF COMMAND DETERMINES THAT THE PROMOTION WAS NOT AUTHORIZED, AND IN THOSE CASES WHERE AN INDIVIDUAL ATTAINED PROMOTION ELIGIBILITY PRIOR TO THE DETERMINATION THAT THE PROMOTION WAS INVALID AND IS IN A PROMOTABLE STATUS, HE WILL BE PROMOTED TO THE CURRENT GRADE AND HIS DATE OF RANK WILL BE ADMINISTRATIVELY ADJUSTED TO THE DATE HE WOULD OTHERWISE BECOME ELIGIBLE FOR PROMOTION.

THE LAW AND REGULATIONS PROVIDE FOR THE PAYMENT OF THE REENLISTMENT BONUS AND THE VARIABLE REENLISTMENT BONUS TO MEMBERS OF THE UNIFORMED SERVICES UNDER CERTAIN SPECIFIED CONDITIONS. THE BONUS IS COMPUTED UNDER SECTION 308(A) ON THE BASIC PAY TO WHICH THE MEMBER WAS ENTITLED AT TIME OF DISCHARGE. IN THE CASE OF MISS WARREN, SHE DID NOT HAVE THE REQUIRED 3 YEARS' SERVICE WHEN SHE WAS PROMOTED TO SPECIALIST SIX (E-6) BY THE ORDERS OF SEPTEMBER 22, 1966, AND THEREFORE SUCH ORDERS WERE WITHOUT EFFECT TO ADVANCE HER TO THAT GRADE.

IN 26 COMP. GEN. 475 (1947) WE SAID THAT WE ARE NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD ENTITLE MEMBERS TO PAY AND ALLOWANCES OF A HIGHER GRADE TO WHICH THEY MAY BE PROMOTED FROM ANY DATE OTHER THAN THE DATE THE ORDERS ANNOUNCING SUCH PROMOTIONS ARE ISSUED. THUS, THE ORDERS OF OCTOBER 31, 1968, REVOKING MISS WARREN'S PROMOTION TO SPECIALIST SIX (E -6) ON SEPTEMBER 22, 1966, AND THEN PROMOTING HER TO THAT GRADE WITH THE DATE OF RANK DESIGNATED AS JANUARY 24, 1967, OF COURSE, PROVIDE NO BASIS FOR COMPUTING HER REENLISTMENT BONUS AND VARIABLE REENLISTMENT BONUS ON GRADE E-6 INCIDENT TO HER REENLISTMENT OF JANUARY 24, 1967.

THE FACT THAT HER DATE OF RANK IN GRADE E-6 WAS FIXED UNDER THE FOREGOING REGULATIONS AS THE DATE OF HER REENLISTMENT INDICATES, HOWEVER, THAT SHE WAS ELIGIBLE FOR PROMOTION AT THAT TIME. THUS, THERE MAY BE SOME BASIS FOR THE VIEW THAT SHE WAS LEGALLY REENLISTED IN GRADE E-6. BUT HOWEVER THAT MAY BE, IT IS CLEAR THAT SHE WAS A SPECIALIST FIVE (E-5) AT THE TIME OF DISCHARGE.

IN 40 COMP. GEN. 642 (1961), CITED BY YOU, WE SAID THAT WE HAVE RECOGNIZED IN CERTAIN INSTANCES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO RETAIN PAY AND ALLOWANCES AND OTHER BENEFITS RECEIVED INCIDENT TO A DE FACTO STATUS. HOWEVER, WE SAID, IT IS OUR VIEW THAT THERE IS NO BASIS FOR THE EXTENSION OF THE DE FACTO RULE TO INCLUDE THE PAYMENT OF ADDITIONAL PAY OR SPECIAL PAY, PARTICULARLY WHEN THE PAYMENT OF SUCH PAY IS AUTHORIZED ONLY WHEN COMPLIANCE WITH CERTAIN SPECIFIC PROVISIONS OF LAW OR REGULATIONS WHICH HAVE THE EFFECT OF LAW IS ESTABLISHED. IN THAT CASE, THE MEMBER HAD BEEN PAID INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, SUCH DUTY HAVING BEEN PERFORMED WITHOUT COMPETENT ORDERS AS REQUIRED BY THE PERTINENT STATUTE AND REGULATIONS. WE HELD THAT SINCE THE REQUIREMENTS OF THE STATUTORY REGULATIONS INVOLVED IN THAT CASE HAD NOT BEEN MET THE MEMBER WAS NOT ENTITLED TO SUCH PAY INCIDENT TO A DE FACTO STATUS.

WE ARE OF THE OPINION THAT THE SAME REASONING IS FOR APPLICATION IN THE PRESENT CASE. MISS WARREN DID NOT MEET THE REQUIREMENTS OF THE REGULATIONS TO BE ELIGIBLE FOR PROMOTION TO SPECIALIST SIX (E-6) ON SEPTEMBER 22, 1966, AND THEREFORE, SHE WAS NOT LAWFULLY SERVING IN THAT GRADE AT THE TIME OF HER DISCHARGE PRECEDING HER REENLISTMENT ON JANUARY 24, 1967.

IN VIEW OF THE SPECIFIC REQUIREMENTS OF THE REGULATIONS WITH RESPECT TO ELIGIBILITY FOR PROMOTION TO PAY GRADE E-6, AND THE PROVISION IN SECTION 37 U.S.C. 308(A) FOR COMPUTING THE REENLISTMENT BONUS ON THE "BASIC PAY TO WHICH THE MEMBER WAS ENTITLED AT THE TIME OF DISCHARGE," WE ARE OF THE OPINION THAT THERE IS NO BASIS TO EXTEND THE DE FACTO RULE TO THE REENLISTMENT BONUS AND VARIABLE REENLISTMENT BONUS. AND THIS IS SO EVEN THOUGH MISS WARREN MAY BE ENTITLED, UNDER THE DE FACTO RULE, TO RETAIN THE PAY OF GRADE E-6 WHICH SHE RECEIVED UNDER THE ORDERS OF SEPTEMBER 22, 1966.

THEREFORE, QUESTIONS A, B, AND C ARE ANSWERED IN THE AFFIRMATIVE, AND NO ANSWER TO QUESTION D IS REQUIRED.

THE VOUCHER AND ACCOMPANYING PAPERS FORWARDED WITH YOUR LETTER OF FEBRUARY 28, 1969, WILL BE RETAINED BY OUR OFFICE.