B-167264, SEPTEMBER 29, 1969, 49 COMP. GEN. 206

B-167264: Sep 29, 1969

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SIMULTANEOUSLY WITH ACCEPTANCE OF RESERVE OFFICER APPOINTMENT A REGULAR ARMY ENLISTED MAN WHO PRIOR TO THE EXPIRATION OF HIS TERM OF SERVICE IS DISCHARGED IN ORDER TO REENLIST THE NEXT DAY AND UNDER ORDERS DATED THE SAME DAY IS DISCHARGED FROM HIS ENLISTED STATUS AND APPOINTED AS A RESERVE OFFICER AND ASSIGNED TO ACTIVE DUTY TO WHICH HE IS TO REPORT SHORTLY THEREAFTER. IS NOT ENTITLED TO THE REENLISTMENT BONUS PROVIDED IN 37 U.S.C. 308. REPORTING FOR ACTIVE DUTY AS AN OFFICER WAS SUBSTANTIALLY A SIMULTANEOUS TRANSACTION. AS THE OFFICER HAD NO ENLISTMENT IN EFFECT TO COMPLETE IF HIS ACTIVE DUTY AS AN OFFICER WAS TERMINATED. 1969: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. REQUESTING A DECISION WHETHER PAYMENT IS AUTHORIZED IN THE CIRCUMSTANCES SET FORTH IN YOUR LETTER.

B-167264, SEPTEMBER 29, 1969, 49 COMP. GEN. 206

GRATUITIES -- REENLISTMENT BONUS -- EXTENSION OF ENLISTMENT -- SIMULTANEOUSLY WITH ACCEPTANCE OF RESERVE OFFICER APPOINTMENT A REGULAR ARMY ENLISTED MAN WHO PRIOR TO THE EXPIRATION OF HIS TERM OF SERVICE IS DISCHARGED IN ORDER TO REENLIST THE NEXT DAY AND UNDER ORDERS DATED THE SAME DAY IS DISCHARGED FROM HIS ENLISTED STATUS AND APPOINTED AS A RESERVE OFFICER AND ASSIGNED TO ACTIVE DUTY TO WHICH HE IS TO REPORT SHORTLY THEREAFTER, IS NOT ENTITLED TO THE REENLISTMENT BONUS PROVIDED IN 37 U.S.C. 308. THE DISCHARGE, REENLISTMENT, AND REPORTING FOR ACTIVE DUTY AS AN OFFICER WAS SUBSTANTIALLY A SIMULTANEOUS TRANSACTION, AND AS THE OFFICER HAD NO ENLISTMENT IN EFFECT TO COMPLETE IF HIS ACTIVE DUTY AS AN OFFICER WAS TERMINATED, THE GOVERNMENT RECEIVED NO BENEFIT FROM THE REENLISTMENT THAT HAD NOT BEEN ENTERED INTO WITH THE BONA FIDE INTENTION OF SERVING THEREUNDER FOR ANY SUBSTANTIAL PERIOD, AND, THEREFORE, PAYMENT OF THE BONUS MAY NOT BE AUTHORIZED.

TO MAJOR R. G. FRIEDMAN, DEPARTMENT OF THE ARMY, SEPTEMBER 29, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1969, ENCLOSING A VOUCHER IN FAVOR OF STAFF SERGEANT WILLIAM A. HEAIVILIN, RA 17 619 091, FOR REENLISTMENT BONUS, AND REQUESTING A DECISION WHETHER PAYMENT IS AUTHORIZED IN THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. THE REQUEST WAS ASSIGNED D.O. NO. A-1040 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE CIRCUMSTANCES SHOWN ARE THAT ON MAY 1, 1968, STAFF SERGEANT HEAIVILIN, REGULAR ARMY, MADE APPLICATION FOR APPOINTMENT AS SECOND LIEUTENANT, MI-U.S. ARMY RESERVE. THE APPLICATION FOR APPOINTMENT WAS TENTATIVELY APPROVED BY DEPARTMENT OF THE ARMY MESSAGE OF JANUARY 28, 1969. HE WAS ORDERED TO ACTIVE DUTY AS A SECOND LIEUTENANT, U.S. ARMY RESERVE BY U.S. ARMY JAPAN LETTER ORDER 2-12 DATED FEBRUARY 3, 1969, EFFECTIVE FEBRUARY 7, 1969. THAT ORDER ALSO DIRECTED THAT HE BE DISCHARGED FROM HIS ENLISTED STATUS.

YOU SAY THAT UNDER THE PROVISIONS OF PARAGRAPH 5-10, ARMY REGULATIONS 635 -200, SERGEANT HEAIVILIN REQUESTED DISCHARGE PRIOR TO EXPIRATION OF HIS TERM OF SERVICE (MARCH 4, 1969) IN ORDER TO REENLIST IN HIS CURRENT ENLISTED STATUS. BY ORDERS ALSO DATED FEBRUARY 3, 1969, HIS DISCHARGE AND REENLISTMENT WERE MADE EFFECTIVE ON FEBRUARY 2 AND 3, 1969, AND ON FEBRUARY 7, 1969, HE ACCEPTED APPOINTMENT AND WAS SHOWN IN AS A COMMISSIONED OFFICER.

YOU FURTHER SAY THAT SERGEANT HEAIVILIN HAD FULL KNOWLEDGE OF THE TENTATIVE APPROVAL OF HIS APPOINTMENT AS AN OFFICER AND REQUESTED DISCHARGE AND REENLISTMENT PRIOR TO THE EXPIRATION OF THE ENLISTMENT IN WHICH HE WAS SERVING FOR THE SOLE PURPOSE OF COLLECTING A REENLISTMENT BONUS. IN THIS CONNECTION YOU POINT OUT THAT BOTH THE ORDERS EFFECTING HIS DISCHARGE AND REENLISTMENT AND THE ORDERS TO ACTIVE DUTY AS AN OFFICER WERE DATED THE SAME DAY. YOU SAY THAT SINCE HIS DISCHARGE AND REENLISTMENT WERE NOT REQUIRED IN THE INTEREST OF THE GOVERNMENT YOU QUESTION WHETHER THE REENLISTMENT BONUS MAY BE PAID.

IT APPEARS THAT YOU WERE ADVISED BY ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, THAT PAYMENT IS AUTHORIZED, CITING 35 COMP. GEN. 664. YOU CONTEND, HOWEVER, THAT THAT DECISION IS NOT APPLICABLE FOR THE REASON THAT THE MEMBER THERE INVOLVED REENLISTED SUBSEQUENT TO THE EXPIRATION OF HIS PRIOR ENLISTMENT.

THE RECORD SHOWS THAT IN FEBRUARY 1969, WHEN SERGEANT HEAIVILIN WAS DISCHARGED AND REENLISTED FOR 6 YEARS HE WAS SERVING OVERSEAS, THAT HIS TOUR OF DUTY WOULD NOT EXPIRE UNTIL SEPTEMBER 1969, AND THAT THE ENLISTMENT FROM WHICH HE WAS BEING DISCHARGED WOULD EXPIRE ON MARCH 4, 1969. PARAGRAPH 5-10, ARMY REGULATIONS 635-200, IMPLEMENTING 10 U.S.C. 1171, PROVIDES THAT DISCHARGE FOR THE PURPOSE OF REENLISTMENT MAY BE ACCOMPLISHED AT ANY TIME DURING THE LAST 90 DAYS OF CURRENT ENLISTMENT FOR VARIOUS SPECIFIED PURPOSES.

HEAIVILIN WAS APPOINTED A RESERVE COMMISSIONED OFFICER OF THE ARMY PURSUANT TO 10 U.S.C. 591 AND 593. SECTION 593 PROVIDES THAT APPOINTMENTS OF RESERVES IN COMMISSIONED GRADES "ARE FOR AN INDEFINITE TERM AND ARE HELD DURING THE PLEASURE OF THE PRESIDENT." HE WAS ORDERED TO ACTIVE DUTY UNDER 10 U.S.C. 672(D) WHICH PROVIDES THAT A MEMBER OF A RESERVE COMPONENT MAY BE CALLED TO ACTIVE DUTY AT ANY TIME WITH HIS CONSENT. HEAIVILIN APPLIED FOR AND WAS APPOINTED A RESERVE OFFICER WITH CONCURRENT ACTIVE DUTY.

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 AS COMPUTED THEREIN.

AS YOU POINT OUT, ORDERS OF FEBRUARY 3 PROVIDED FOR HEAIVILIN'S REENLISTMENT EFFECTIVE THAT DATE AND HIS DISCHARGE THE PRECEDING DAY. SEPARATE ORDERS OF THE SAME DAY ORDERED HIM TO ACTIVE DUTY AS A RESERVE OFFICER ON FEBRUARY 7, 1969, AND DIRECTED THAT HE BE DISCHARGED FROM HIS ENLISTED STATUS. IN THESE CIRCUMSTANCES, THE DISCHARGE, REENLISTMENT AND REPORTING FOR ACTIVE DUTY AS AN OFFICER WAS SUBSTANTIALLY A SIMULTANEOUS TRANSACTION.

BOTH THE MEMBER AND THE ARMY HEADQUARTERS THAT ISSUED THE ORDERS KNEW THAT HE WOULD NOT SERVE ON EXTENDED ACTIVE DUTY UNDER HIS REENLISTMENT OF FEBRUARY 3 SINCE HIS DISCHARGE WAS DIRECTED BY ORDERS OF THE SAME DATE AND EFFECTED ON FEBRUARY 6, 1969, THE DAY BEFORE HE ACCEPTED HIS APPOINTMENT AND ENTERED ON ACTIVE DUTY AS AN OFFICER. THUS, HE HAS NO ENLISTMENT IN EFFECT WHILE SERVING AS AN OFFICER AND WHICH HE COULD BE REQUIRED TO COMPLETE IF HIS ACTIVE DUTY AS AN OFFICER WERE TERMINATED, SUCH AS WOULD BE THE CASE WHEN ENLISTED MEMBERS IN THE NAVY AND MARINE CORPS ARE APPOINTED OFFICERS UNDER 10 U.S.C. 5596 OR 5597. COMPARE DECISIONS OF JANUARY 17, 1967, AND OCTOBER 1, 1968, B-160311.

OUR DECISION OF MAY 22, 1956, 35 COMP. GEN. 664, CONCERNS QUESTIONS WHETHER PAYMENT OF REENLISTMENT BONUS IS AUTHORIZED (1) IF A MEMBER OTHERWISE ENTITLED TO RECEIVE IT KNOWS, OR HAS REASON TO BELIEVE, THAT HE MAY BE CALLED TO ACTIVE DUTY AS A COMMISSIONED OFFICER OR WARRANT OFFICER SHORTLY AFTER REENLISTMENT, OR (2) IF A MEMBER, PRIOR TO DISCHARGE, FILES AN APPLICATION FOR A COMMISSION OR WARRANT AND REENLISTS PRIOR TO RECEIPT OF THE APPOINTMENT AS AN OFFICER AND THEREAFTER IS CALLED TO ACTIVE DUTY UNDER SUCH APPOINTMENT. THESE QUESTIONS WERE ANSWERED IN THE AFFIRMATIVE.

IN THOSE CIRCUMSTANCES, HOWEVER, ORDERS TO ACTIVE DUTY AS AN OFFICER WERE NOT ISSUED CONCURRENTLY WITH THE MEMBER'S REENLISTMENT AND WE SAID THAT IT WAS PRIMARILY A MATTER UNDER THE CONTROL OF THE GOVERNMENT WHETHER THE MEMBER WOULD BE REQUIRED TO COMPLETE HIS ENLISTMENT OR WOULD LATER BE CALLED TO ACTIVE DUTY AS AN OFFICER.

IN THE CASE OF HEAIVILIN, THE GOVERNMENT HAD DETERMINED AT THE TIME OF HIS REENLISTMENT THAT HE WOULD NOT SERVE ANY SUBSTANTIAL PERIOD UNDER THAT ENLISTMENT BUT CONCURRENTLY DIRECTED HIS DISCHARGE AND ORDERED HIM TO ACTIVE DUTY AS AN OFFICER. IT SEEMS OBVIOUS THAT THE GOVERNMENT RECEIVED NO BENEFIT FROM THE REENLISTMENT AND THAT IT WAS NOT ENTERED INTO BY HEAIVILIN WITH THE BONA FIDE INTENTION OF SERVING THEREUNDER FOR ANY SUBSTANTIAL PERIOD. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT PAYMENT OF A REENLISTMENT BONUS IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED IN THIS OFFICE.