B-169823, JUL 15, 1970, 50 COMP GEN 36

B-169823, JUL 15, 1970, 50 COMP GEN 36

GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT - PAY INCREASE RATE APPLICABILITY A MEMBER OF THE UNIFORMED SERVICES WHO EXTENDED A 4-YEAR ENLISTMENT ON APRIL 14, 1970, UNDER 10 U.S.C. 509 FOR 26 MONTHS EFFECTIVE APRIL 15, 1970, THE DATE OF ISSUANCE OF EXECUTIVE ORDER NO. 11525, MAKING THE NEW PAY RATES AUTHORIZED BY PUBLIC LAW 90-207 AND PUBLIC LAW 91-231, RETROACTIVELY EFFECTIVE TO JANUARY 1, 1970, IS ENTITLED TO HAVE THE REENLISTMENT BONUS EARNED UNDER 37 U.S.C. 308(A) COMPUTED AT THE NEW PAY RATES AS THE DEFENSE DEPARTMENT IMPLEMENTATION OF THE EXECUTIVE ORDER, WHICH RESTRICTS THE USE OF THE INCREASED RATES IN THE COMPUTATION OF A REENLISTMENT BONUS WHEN ENTITLEMENT OCCURS AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970, HAS NO APPLICATION TO THE MEMBER WHO BEGINNING HIS EXTENDED ENLISTMENT ON APRIL 15, 1970, IS ENTITLED TO THE COMPUTATION OF THE REENLISTMENT BONUS UNDER PARAGRAPH 10905 OF THE DEFENSE MILITARY PAY AND ALLOWANCES MANUAL.

TO THE COMMANDING OFFICER, NAVY REGIONAL FINANCE CENTER, JULY 15, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1970 (FILE REFERENCE 310:ECS:RR 7220), REQUESTING AN ADVANCE DECISION AS TO THE PROPER RATE OF PAY TO BE USED IN COMPUTING REENLISTMENT BONUS TO BE PAID TO PN2 DAVID W. NAUMANN, INCIDENT TO COMPLETING HIS ENLISTMENT ON APRIL 14, 1970, AND THE EXTENSION OF SUCH ENLISTMENT ON APRIL 15, 1970, IN THE CIRCUMSTANCES DISCLOSED. THE REQUEST WAS FORWARDED HERE BY FIRST ENDORSEMENT DATED JUNE 5, 1970, FROM THE DIRECTOR, NAVY MILITARY PAY SYSTEM, AND HAS BEEN ASSIGNED SUBMISSION NO. DO-H-1081 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM THE AGREEMENT TO EXTEND ENLISTMENT (NAVPERS 601 1A/NAVCOMPT 513), COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER, THAT THE MEMBER'S ORIGINAL CONTRACT OF ENLISTMENT (FOR 4 YEARS EFFECTIVE APRIL 15, 1966) WAS COMPLETED ON APRIL 14, 1970, AND THAT HE AGREED TO EXTEND HIS ENLISTMENT UNDER 10 U.S.C. 509 FOR A PERIOD OF 26 MONTHS EFFECTIVE APRIL 15, 1970.

IN THE LIGHT OF PARAGRAPH 3 OF SECNAVNOTE 7220 DATED APRIL 16, 1970, AND THE PROVISIONS OF PARAGRAPH 10904 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL WHICH YOU CITE, YOU ASK WHETHER THE REENLISTMENT BONUS SHOULD BE PAID AT THE OLD RATE (1969) OR THE NEW RATE (1970) OF PAY. YOU SAY THAT THE MEMBER WAS PAID THE BONUS COMPUTED ON THE LESSER RATE OF PAY PENDING OUR DECISION.

IN IMPLEMENTING SECTION 8(A) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 649, 654, AND THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APRIL 15, 1970, 84 STAT. 195, THE PRESIDENT ADJUSTED UPWARD THE RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES, THE NEW RATES BEING SET FORTH IN SECTION 1 OF EXECUTIVE ORDER NO. 11525 DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970. SECTION 2 OF THE SAME EXECUTIVE ORDER PROVIDES AS FOLLOWS:

SEC. 2. (A) A PERSON WHO BECAME ENTITLED AFTER DECEMBER 31, 1969, BUT BEFORE THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, TO PAYMENT FOR ITEMS SUCH AS LUMP-SUM LEAVE, REENLISTMENT AND VARIABLE REENLISTMENT BONUS, CONTINUATION PAY, ANY TYPE OF SEPARATION PAY, OR SIX MONTHS DEATH GRATUITY, SHALL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THIS ORDER.

(B) AUTHORITY TO PRESCRIBE OTHER RULES FOR PAYMENT OF RETROACTIVE COMPENSATION SHALL BE EXERCISED FOR THE UNIFORMED SERVICES BY THE SECRETARY OF DEFENSE. ENTITLEMENT TO RETROACTIVE PAY UNDER SUCH RULES SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654.

PURSUANT TO THE QUOTED SECTION 2(B), THE DEPUTY SECRETARY OF DEFENSE IN MEMORANDUM FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) DATED APRIL 21, 1970, PRESCRIBED CERTAIN RULES IMPLEMENTING THE EXECUTIVE ORDER. RULE 1 OF THE MEMORANDUM STATES IN PART THAT "A PERSON WHO BECAME ENTITLED, AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970 TO PAYMENT FOR ITEMS SUCH AS *** REENLISTMENT AND VARIABLE REENLISTMENT BONUS *** WILL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THAT ORDER." THE SAME LANGUAGE IS CONTAINED IN PARAGRAPH 3 OF SECNAVNOTE 7220 CITED IN YOUR SUBMISSION.

A REENLISTMENT BONUS IS AUTHORIZED UNDER 37 U.S.C. 308(A) COMPUTED, AS THERE INDICATED, ON THE BASIS OF THE BASIC PAY TO WHICH THE MEMBER WAS ENTITLED "AT THE TIME OF DISCHARGE OR RELEASE." SECTION 308(F) AUTHORIZES THE SECRETARY CONCERNED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION.

UNDER THE PROVISIONS OF SECTION 509 OF TITLE 10, U.S. CODE, AS ADDED BY SECTION 2(A)(1)(B) OF THE ACT OF JANUARY 2, 1968, PUBLIC LAW 90-235, 81 STAT. 753, 755, AND UNDER REGULATIONS OF THE SECRETARY CONCERNED, THE TERM OF ENLISTMENT OF A MEMBER MAY BE EXTENDED WITH HIS WRITTEN CONSENT FOR NOT MORE THAN 4 YEARS AND HE HAS THE SAME RIGHTS, ETC., THAT HE WOULD HAVE IF DISCHARGED AT THE SAME TIME FROM AN ENLISTMENT NOT SO EXTENDED. IMPLEMENTING THE 1968 LAW, PARAGRAPH 10904 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES IN PERTINENT PART AS FOLLOWS:

COMPUTE REENLISTMENT BONUS AS FOR ACTUAL REENLISTMENT WHEN A MEMBER VOLUNTARILY EXTENDS HIS ENLISTMENT FOR 2 YEARS OR MORE. THIS INCLUDES COMBINED EXTENSIONS OF ENLISTMENTS AS PROVIDED BELOW. WHEN PART OF A YEAR IS INVOLVED, COMPUTE THE BONUS BY USING AS A MULTIPLIER THE TOTAL NUMBER OF YEARS AND FRACTIONS OF YEARS FOR WHICH THE ENLISTMENT WAS EXTENDED. *** COMPUTE AT PAY RATE APPLICABLE ON DAY BEFORE HE BEGAN SERVING ON THE FIRST EXTENSION.

PARAGRAPH 10905 OF THE SAME MANUAL PROVIDES THAT:

PAYMENT OF REGULAR REENLISTMENT BONUS IS NORMALLY MADE ON THE DAY THE MEMBER REENLISTS. A MEMBER WHO EXTENDS HIS ENLISTMENT FOR 2 YEARS OR MORE IS NOT PAID THE BONUS FOR THE EXTENSION UNTIL HE ACTUALLY BEGINS SERVING THE EXTENSION.

SINCE THE MEMBER'S ORIGINAL ENLISTMENT TERMINATED ON APRIL 14, 1970, AND SINCE HE DID NOT ACTUALLY BEGIN SERVING HIS EXTENDED ENLISTMENT UNTIL APRIL 15, 1970, AT WHICH TIME HE BECAME ENTITLED TO BE PAID THE BONUS AS PROVIDED IN PARAGRAPH 10905, DODPM, HE MAY NOT BE CONSIDERED AS BECOMING ENTITLED TO THE REENLISTMENT BONUS "AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970" FOR PURPOSES OF SECTION 2(A) OF EXECUTIVE ORDER NO. 11525 AND THE IMPLEMENTING REGULATIONS, SO AS TO REQUIRE COMPUTATION OF THE BONUS UNDER THE 1969 RATES OF PAY. ACCORDINGLY, THE MEMBER IS ENTITLED TO HAVE HIS REENLISTMENT BONUS COMPUTED ON THE RATES OF BASIC PAY PRESCRIBED IN EXECUTIVE ORDER NO. 11525 WHICH BECAME EFFECTIVE JANUARY 1, 1970, AND WHICH RATES WERE APPLICABLE ON THE DATE BEFORE (APRIL 14, 1970) HE BEGAN SERVING ON HIS FIRST EXTENSION.

WE NOTE THAT, ON THE MEMBER'S AGREEMENT TO EXTEND HIS ENLISTMENT, A REENLISTMENT BONUS IN THE AMOUNT OF $743.60 WAS PAID TO HIM. THIS AMOUNT APPEARS TO HAVE BEEN COMPUTED ON THE BASIS OF THE 1969 RATE OF PAY OF AN E -5 WITH OVER 4 YEARS' SERVICE. SINCE THE MEMBER DID NOT COMPLETE 4 YEARS' SERVICE UNTIL MIDNIGHT APRIL 14, 1970, AND SINCE THE BONUS IS REQUIRED TO BE COMPUTED AT THE RATE APPLICABLE ON THE DAY BEFORE HE BEGINS SERVING ON THE FIRST EXTENSION, IT WOULD APPEAR THAT THE BONUS SHOULD HAVE BEEN COMPUTED ON THE BASIS OF AN E-5 WITH OVER 3 YEARS' SERVICE. THE BONUS SHOULD BE RECOMPUTED ON THIS BASIS UNDER THE 1970 PAY RATES.