B-89178, OCTOBER 21, 1959, 39 COMP. GEN. 299

B-89178: Oct 21, 1959

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- IS REGARDED AS BEING ENTITLED TO A REENLISTMENT BONUS FOR A 1950 ENLISTMENT UNDER SECTION 207 OF THE ACT. THERE BEING NO REQUIREMENT IN SUBSECTIONS 207 (A) OR (B) THAT THE OFFICER SERVICE MUST HAVE BEEN PRECEDED BY ENLISTED SERVICE. SUCH A LIMITATION IN SUBSECTION 207 (D) IS NOT TO BE CONSTRUED TO DISQUALIFY MEMBERS OTHERWISE ENTITLED TO A REENLISTMENT BONUS UNDER SUBSECTIONS 207 (A) AND (B). 1959: WE HAVE FOR CONSIDERATION THE QUESTION OF WHETHER A MEMBER OF THE UNIFORMED SERVICES WHO ENLISTED IN THE REGULAR ARMY PRIOR TO JULY 16. AFTER BEING RELIEVED FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER IS ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949.

B-89178, OCTOBER 21, 1959, 39 COMP. GEN. 299

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - OFFICER SERVICE NOT PRECEDED BY ENLISTED SERVICE A MEMBER OF THE UNIFORMED SERVICES WHO, FOLLOWING RELEASE FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE OFFICERS' RESERVE CORPS, ENLISTED IN THE REGULAR ARMY PRIOR TO JULY 16, 1954--- THE DATE OF THE REENLISTMENT BONUS ACT WHICH ADDED SECTION 208 TO THE CAREER COMPENSATION ACT OF 1949-- - IS REGARDED AS BEING ENTITLED TO A REENLISTMENT BONUS FOR A 1950 ENLISTMENT UNDER SECTION 207 OF THE ACT, THERE BEING NO REQUIREMENT IN SUBSECTIONS 207 (A) OR (B) THAT THE OFFICER SERVICE MUST HAVE BEEN PRECEDED BY ENLISTED SERVICE, AND SUCH A LIMITATION IN SUBSECTION 207 (D) IS NOT TO BE CONSTRUED TO DISQUALIFY MEMBERS OTHERWISE ENTITLED TO A REENLISTMENT BONUS UNDER SUBSECTIONS 207 (A) AND (B); THEREFORE, THE MEMBER'S REENLISTMENT IN 1957 FOLLOWING THE 1950 ENLISTMENT AND ANOTHER IN 1951 MUST BE REGARDED AS A THIRD REENLISTMENT FOR PAYMENT OF THE BONUS UNDER SECTION 208 OF THE ACT.

TO THE SECRETARY OF DEFENSE, OCTOBER 21, 1959:

WE HAVE FOR CONSIDERATION THE QUESTION OF WHETHER A MEMBER OF THE UNIFORMED SERVICES WHO ENLISTED IN THE REGULAR ARMY PRIOR TO JULY 16, 1954, AFTER BEING RELIEVED FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER IS ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238, EVEN THOUGH THAT OFFICER SERVICE DID NOT IMMEDIATELY FOLLOW ENLISTED SERVICE.

IT APPEARS THAT MR. WARREN G. BAGGETT WAS APPOINTED A COMMISSIONED OFFICER IN THE OFFICERS' RESERVE CORPS ON JANUARY 14, 1930, AND SERVED ON ACTIVE DUTY AS AN OFFICER FROM NOVEMBER 10, 1940, TO MARCH 31, 1950, WHEN HE WAS RELEASED FROM ACTIVE DUTY. HE ENLISTED IN THE ARMY AS A MASTER SERGEANT FOR THREE YEARS ON APRIL 1, 1950; REENLISTED MARCH 23, 1951, FOR SIX YEARS, AND AGAIN REENLISTED ON MAY 31, 1957, FOR THREE YEARS.

INCIDENT TO HIS REENLISTMENT ON MAY 31, 1957, HE WAS PAID A REENLISTMENT BONUS OF $613.65 UNDER SECTION 208 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 238 (A), COMPUTED ON THE BASIS OF TWO THIRDS OF THE MONTHLY BASIC PAY OF THE MEMBER ON THE PREMISE THAT THE 1957 REENLISTMENT WAS A SECOND REENLISTMENT. OUR DEFENSE ACCOUNTING AND AUDITING DIVISION TOOK EXCEPTION TO THAT PAYMENT ON THE BASIS THAT SUCH REENLISTMENT WAS THE MEMBER'S THIRD REENLISTMENT, SINCE THE "MEMBER ENTERED A 3-YEAR ENLISTMENT APRIL 1, 1950, AT WHICH TIME HE WAS ENTITLED TO A REENLISTMENT BONUS OF $90 AND MEMBER SUBSEQUENTLY ENTERED INTO A 6-YEAR ENLISTMENT MARCH 23, 1951, AND RECEIVED CREDIT FOR A REENLISTMENT BONUS OF $360.00.'

SECTION 208 (A) AUTHORIZES PAYMENT OF A REENLISTMENT BONUS COMPUTED ON THE BASIS OF (1) THE FULL MONTHLY BASIC PAY RATE FOR THE FIRST REENLISTMENT, (2) TWO-THIRDS OF THE MONTHLY BASIC PAY RATE FOR THE SECOND REENLISTMENT, (3) ONE-THIRD OF THE MONTHLY BASIC PAY RATE FOR THE THIRD REENLISTMENT, AND (4) ONE-SIXTH OF THE MONTHLY BASIC PAY RATE FOR SUBSEQUENT ENLISTMENTS, MULTIPLIED BY THE NUMBER OF YEARS SPECIFIED IN THE REENLISTMENT CONTRACT WHICH, WHEN ADDED TO PREVIOUS SERVICE, WILL NOT EXCEED 20 YEARS.

IN DETERMINING THE APPLICABLE RATE OF PAY,"ANY REENLISTMENT WHEN A BONUS WAS NOT AUTHORIZED IS DISREGARDED.' A "REENLISTMENT" IS DEFINED AS AN ENLISTMENT FOLLOWING ACTIVE DUTY, SO THAT IN DETERMINING WHETHER THE 1957 ENLISTMENT WAS THE SECOND OR THIRD REENLISTMENT IT IS NECESSARY TO DETERMINE WHETHER PAYMENT OF A REENLISTMENT BONUS TO THE MEMBER WAS AUTHORIZED WHEN HE ENLISTED IN THE ARMY ON APRIL 1, 1950, AFTER HAVING BEEN RELEASED FROM ACTIVE DUTY AS A COMMISSIONED OFFICER, WHICH ACTIVE SERVICE DID NOT IMMEDIATELY FOLLOW ENLISTED SERVICE.

SECTION 208 OF THE CAREER COMPENSATION ACT WAS ADDED BY THE ACT OF JULY 16, 1954, 68 STAT. 488, PRIOR TO WHICH DATE PAYMENT OF A REENLISTMENT BONUS WAS AUTHORIZED ONLY BE SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 238, WHICH READS IN PERTINENT PART AS FOLLOWS:

(A) MEMBERS OF THE UNIFORMED SERVICES WHO ENLIST UNDER THE CONDITIONS SET FORTH IN SUBSECTION (B) OF THIS SECTION WITHIN THREE MONTHS FROM THE DATE OF THEIR DISCHARGE OR SEPARATION, OR WITHIN SUCH LESSER PERIOD OF TIME AS THE SECRETARY CONCERNED MAY DETERMINE FROM TIME TO TIME, SHALL BE PAID A LUMP-SUM REENLISTMENT BONUS OF $40, $90, $160, $250, OR $360 UPON ENLISTMENT FOR A PERIOD OF TWO, THREE, FOUR, FIVE, OR SIX YEARS, RESPECTIVELY; AND, UPON ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME AMOUNTING TO MORE THAN SIX YEARS A LUMP SUM REENLISTMENT BONUS OF $360 SHALL BE PAID. * * *

(B) FOR THE PURPOSE OF PAYMENT OF THE REENLISTMENT BONUS AUTHORIZED BY SUBSECTION (A) OF THIS SECTION, ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING (1) COMPULSORY OR VOLUNTARY ACTIVE DUTY IN SUCH SERVICE, OR (2) EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE, SHALL BE CONSIDERED A REENLISTMENT.

(D) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION, A MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS WITHIN THREE MONTHS AFTER BEING DISCHARGED FROM THE ENLISTMENT ENTERED INTO PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR WHO REENLISTS WITHIN THREE MONTHS AFTER BEING RELIEVED FROM ACTIVE SERVICE AS A COMMISSIONED OFFICER OR WARRANT OFFICER UNDER APPOINTMENT MADE PRIOR TO THE DATE OF ENACTMENT OF THIS ACT IF SUCH COMMISSIONED OR WARRANT SERVICE IMMEDIATELY FOLLOWED ENLISTED SERVICE, SHALL BE ENTITLED TO RECEIVE EITHER (1) ENLISTMENT ALLOWANCES IN THE AMOUNT AND UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR (2) REENLISTMENT BONUS IN THE AMOUNT AND UNDER THE PROVISIONS OF THIS SECTION, WHICHEVER IS THE GREATER AMOUNT: PROVIDED, THAT THE ENLISTMENT ALLOWANCE PAYABLE UNDER (1) HEREUNDER SHALL IN NO EVENT EXCEED $300.

SUBSECTIONS (A) AND (B), 37 U.S.C. 238 (A), (B), AUTHORIZE PAYMENT OF THE REENLISTMENT BONUS TO ANY MEMBER WHO ENLISTS IN ONE OF THE REGULAR SERVICES WITHIN THE PRESCRIBED TIME FOLLOWING ACTIVE DUTY IN SUCH SERVICE OR EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE. NO DISTINCTION IS MADE BETWEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER AND THERE IS NO REQUIREMENT IN SUBSECTIONS (A) OR (B) THAT OFFICER SERVICE MUST HAVE BEEN PRECEDED BY ENLISTED SERVICE AND IT DOES NOT APPEAR THAT THE PROVISIONS OF SUBSECTION (D), 37 U.S.C. 238 (D), LIMIT OR CONDITION THAT RIGHT ON PRIOR ENLISTED SERVICE.

SUBSECTION (D) PERMITS, FOR THOSE MEMBERS COMING WITHIN ITS TERMS, AN ELECTION BETWEEN THE FORMER ENLISTMENT ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT AND THE REENLISTMENT BONUS AUTHORIZED BY SUBSECTIONS (A) AND (B) OF SECTION 207 OF THE CAREER COMPENSATION ACT. THAT SUBSECTION IS IN EFFECT A SAVINGS PROVISION (31 COMP. GEN. 209, 212; 33 COMP. GEN. 570, 571), AND WE FIND NOTHING TO INDICATE THAT THE PROVISIONS OF SUCH SUBSECTION (D) WERE INTENDED TO DISQUALIFY A MEMBER OTHERWISE ENTITLED UNDER SUBSECTIONS (A) AND (B) TO RECEIVE THE REENLISTMENT BONUS.

A SIMILAR CONCLUSION WAS REACHED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY IN AN OPINION RENDERED ON SEPTEMBER 5, 1951 ( JAGA 1961/5505), AND ARMY REGULATIONS HAVE CONSISTENTLY PROVIDED THAT A MEMBER WHO ENLISTS AFTER PERFORMING ACTIVE SERVICE AS AN OFFICER IS ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF SUBSECTIONS 207 (A) AND (B) OF THE CAREER COMPENSATION ACT EVEN IF THE OFFICER SERVICE DID NOT IMMEDIATELY FOLLOW ENLISTED SERVICE. SEE PARAGRAPH 6G, AR 35-1525, DATED JANUARY 22, 1951; PARAGRAPH 6H, AR 35-1525, DATED APRIL 15, 1952; PARAGRAPHS 6 E AND G, CHANGES NO. 4 DATED JULY 7, 1954, TO AR 35-1525; PARAGRAPHS 16 C AND E, AR 35-1525, DATED JULY 26, 1954; PARAGRAPHS 20 C AND E, AR 35-1525, DATED OCTOBER 11, 1956; PARAGRAPHS 9-66 C AND E, AR 37- 104, DECEMBER 1957. ALSO SEE DECISION OF JULY 15, 1959, 39 COMP. GEN. 31, IN WHICH THE ADMINISTRATIVE INTERPRETATION OF THE LAW IS FOLLOWED IN REACHING THE CONCLUSION THAT SUCH PAYMENTS WILL NOT BE QUESTIONED, IF OTHERWISE PROPER.

ACCORDINGLY, THE FORMER OFFICER HERE INVOLVED IS ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF SUBSECTIONS 207 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949 INCIDENT TO HIS ENLISTMENT IN THE REGULAR ARMY ON APRIL 1, 1950. IT FOLLOWS THAT HIS REENLISTMENT IN THE ARMY ON MAY 31, 1957, WAS HIS THIRD REENLISTMENT WITHIN THE MEANING OF SECTION 208 (A) OF THE CAREER COMPENSATION ACT AND THE REENLISTMENT BONUS PAID ON THAT REENLISTMENT SHOULD HAVE BEEN COMPUTED ON THE BASIS OF ONLY ONE-THIRD OF HIS MONTHLY BASIC PAY. THE OVERPAYMENT SHOULD BE COLLECTED FROM MASTER SERGEANT BAGGETT, LESS THE AMOUNT CREDITABLE FOR THE REENLISTMENT BONUS TO WHICH HE IS ENTITLED INCIDENT TO HIS ENLISTMENT ON APRIL 1, 1950.