B-160096, MAR. 4, 1969

B-160096, MAR. 4, 1969

TO FIRST LIEUTENANT M. W. EAGLE, JR.,:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 12, 1968, FILE REFERENCE EAM:MWE:MD, FORWARDED HERE BY LETTER OF HEADQUARTERS UNITED STATES MARINE CORPS, DATED NOVEMBER 22, 1968, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF SERGEANT GARRY S. BRAINARD, 2092862, USMC, WITH UNPAID INSTALLMENTS OF THE VARIABLE REENLISTMENT BONUS. THIS REQUEST WAS ASSIGNED CONTROL NO. DO-MC- 1025 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN YOUR LETTER THAT ON FEBRUARY 6, 1964, SERGEANT BRAINARD ENLISTED IN THE U.S. MARINE CORPS FOR FOUR YEARS AND THAT ON AUGUST 11, 1966, HE REENLISTED FOR SIX YEARS IN ORDER TO MEET THE OBLIGATED SERVICE REQUIREMENTS OF THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM (NESEP). AT THE TIME OF HIS REENLISTMENT HE WAS PAID $1,269 AS THE FIRST REENLISTMENT BONUS AND $634.50 AS THE PAID $1,269 AS THE FIRST REENLISTMENT BONUS AND $634.50 AS THE FIRST INSTALLMENT OF THE VARIABLE REENLISTMENT BONUS COMMENSURATE WITH HIS MILITARY OCCUPATIONAL SPECIALTY, AIRCRAFT ELECTRONICS TECHNICIAN (MOS 6611). WHILE HE WAS ATTENDING THE UNIVERSITY OF COLORADO FOR COLLEGE TRAINING UNDER THE NESEP PROGRAM, YOU SAY HE RECEIVED THE SECOND INSTALLMENT OF THE VARIABLE REENLISTMENT BONUS ON AUGUST 11, 1967.

YOU REPORT THAT IN JUNE 1968 SERGEANT BRAINARD WAS DISENROLLED FROM THE UNIVERSITY OF COLORADO BECAUSE OF UNSATISFACTORY ACADEMIC PERFORMANCE AND BY ORDERS DATED JULY 12, 1968, HE WAS TRANSFERRED TO THE MARINE CORPS AIR STATION, BEAUFORT, SOUTH CAROLINA. SINCE REPORTING TO THAT STATION ON AUGUST 17, 1968, HE HAS BEEN ASSIGNED TO DUTY AS AN AIRCRAFT COMMUNICATIONS AND NAVIGATION SYSTEMS TECHNICIAN (MOS 6213) FOR WHICH THE VARIABLE REENLISTMENT BONUS IS CURRENTLY AUTHORIZED IN THE SAME AMOUNT AS THAT FOR THE MILITARY OCCUPATIONAL SPECIALTY FOR WHICH HE RECEIVED THE TWO INSTALLMENTS OF THAT BONUS.

IN ITS LETTER OF NOVEMBER 22, 1968, HEADQUARTERS UNITED STATES MARINE CORPS ADVISED THAT FOR CLARIFICATION PURPOSES SERGEANT BRAINARD'S ASSIGNMENT IN MOS 6213 MERELY REFLECTS A CONVERSION OF THE MOS EFFECTIVE APRIL 30, 1967, AS INDICATED IN MARINE CORPS ORDER 7220.24A, AND DOES NOT REPRESENT A DIFFERENT SKILL ASSIGNMENT.

IN OUR DECISION OF FEBRUARY 8, 1968, B-160096 (47 COMP. GEN. 414), WE HELD THAT ENLISTED MEMBERS ARE NOT ENTITLED TO THE VARIABLE REENLISTMENT BONUS UPON REENLISTMENT FOR THE PURPOSE OF MEETING THE OBLIGATED SERVICE REQUIREMENT AFTER SELECTION FOR COLLEGE TRAINING UNDER THE NESEP PROGRAM. YOU INDICATE THAT UNDER THAT DECISION THE FIRST AND SECOND INSTALLMENTS OF THE VARIABLE REENLISTMENT BONUS WERE ERRONEOUSLY PAID TO SERGEANT BRAINARD, BUT YOU POINT OUT THAT HE WAS SUBSEQUENTLY DROPPED FROM THE PROGRAM AND REASSIGNED TO DUTY FOR WHICH A VARIABLE REENLISTMENT BONUS IS PAYABLE. ACCORDINGLY, YOU REQUEST OUR DECISION AS TO WHETHER THE DECISION OF FEBRUARY 8, 1968, WOULD PRECLUDE HIM FROM RECEIVING THE REMAINING INSTALLMENTS WHICH WOULD HAVE ACCRUED TO HIM HAD HE NOT BEEN SELECTED FOR COLLEGE TRAINING UNDER THE NESEP PROGRAM.

STATUTORY AUTHORITY FOR THE PAYMENT OF THE VARIABLE REENLISTMENT BONUS IS CONTAINED IN 37 U.S.C. 308 (G) WHICH WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 21, 1965, PUB.L. 89-132, 79 STAT. 547, AND WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/G) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, OR THE SECRETARY OF THE TRASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, A MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) OF THIS SECTION UPON HIS FIRST ENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS. THE ADDITIONAL AMOUNT SHALL BE PAID IN EQUAL YEARLY INSTALLMENTS IN EACH YEAR OF THE REENLISTMENT PERIOD. HOWEVER, IN MERITORIOUS CASES THE ADDITIONAL AMOUNT MAY BE PAID IN FEWER INSTALLMENTS MERITORIOUS CASES THE ADDITIONAL AMOUNT MAY BE PAID IN FEWER INSTALLMENTS IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTEREST OF THE MEMBERS. * *

PARAGRAPH III A OF DEPARTMENT OF DEFENSE DIRECTIVE NO. 1304.10, DATED AUGUST 15, 1968, IMPLEMENTING THE ABOVE-QUOTED STATUTORY AUTHORITY, DEFINES THE VARIABLE REENLISTMENT BONUS AS A BONUS THAT MAY BE AWARDED IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH A MEMBER IS OTHERWISE ENTITLED, TO AN ENLISTED MEMBER WHO REENLISTS IN A DESIGNATED MILITARY SPECIALTY. PARAGRAPH 10912B (2) (CHANGE 2) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES THAT MEMBERS OF THE NAVY AND MARINE CORPS AWARDED THE VARIABLE REENLISTMENT BONUS MUST BE QUALIFIED AND UTILIZED IN THE RATING AT THE TIME OF REENLISTMENT OR FIRST EXTENSION OF ENLISTMENT ON WHICH THE BONUS IS PAID. ALSO, PARAGRAPH 6 OF MARINE CORPS ORDER 7220.24A, DATED MAY 4, 1967, PROVIDES THAT A MARINE IN ORDER TO BE ELIGIBLE TO RECEIVE THE VARIABLE REENLISTMENT BONUS, AMONG OTHER THINGS, MUST BE QUALIFIED AND ASSIGNED IN THE SKILL ON WHICH THE BONUS IS BASED.

IN THE DECISION OF FEBRUARY 8, 1968, WE CONCLUDED THAT UNDER THE ABOVE LAW AND IMPLEMENTING REGULATIONS AS CITED THEREIN, NO AUTHORITY EXISTS FOR THE PAYMENT OF A VARIABLE REENLISTMENT BONUS TO ENLISTED MEMBERS WHO HAVE BEEN SELECTED FOR COLLEGE TRAINING UNDER THE NAVY ENLISTED SCIENTIFIC EDUCATION PROGRAM OR OTHER SIMILAR PROGRAMS AND WHO ARE REENLISTED FOR THE PURPOSE OF MEETING THE OBLIGATED SERVICE REQUIREMENTS FOR SUCH TRAINING.

IT WAS EXPLAINED IN THE DECISION THAT THE LEGISLATIVE HISTORY OF SECTION 308 (G) SHOWS THAT IT WAS ENACTED TO AUTHORIZE THE VARIABLE REENLISTMENT BONUS AS AN ADDITIONAL INDUCEMENT TO FIRST-TERM ENLISTED MEMBERS POSSESSING SKILLS IN CRITICALLY SHORT SUPPLY TO REENLIST SO THAT SUCH SKILLS COULD CONTINUE TO BE UTILIZED AND NOT LOST TO THE SERVICE. IT WAS FURTHER EXPLAINED THAT ONE OF THE CONSIDERATIONS IN AUTHORIZING THIS SUBSTANTIAL BONUS WAS THE HIGH COST TO THE GOVERNMENT OF TRAINING A REPLACEMENT FOR SUCH A MEMBER WHO DOES NOT REENLIST, AN EXPENSE THAT WOULD BE AVOIDED IF THE MEMBER REENLISTS TO CONTINUE SERVING IN THE CRITICAL RATING. MEMBER REENLISTS TO CONTINUE SERVING IN THE CRITICAL RATING. BONUS PAYMENTS WERE NOT AUTHORIZED INCIDENT TO THESE REENLISTMENTS,

WHILE WE HELD IN THE ABOVE DECISION THAT VARIABLE REENLISTMENT WE SAID WE WOULD NOT QUESTION BONUS PAYMENTS OTHERWISE CORRECT THAT HAD BEEN MADE PRIOR TO THAT DECISION INCIDENT TO SUCH REENLISTMENTS, BUT FURTHER PAYMENTS, INCLUDING YEARLY INSTALLMENTS ON ACCOUNT OF SUCH REENLISTMENTS ALREADY ENTERED INTO, SHOULD BE PROMPTLY DISCONTINUED.

HENCE, UNDER THE GOVERNING LAW AND REGULATIONS SERGEANT BRAINARD WAS NOT ENTITLED TO A VARIABLE REENLISTMENT BONUS BECAUSE HE WAS NOT REENLISTED IN THE MARINE CORPS ON AUGUST 11, 1966, FOR THE PURPOSE OF CONTINUING TO SERVE IN HIS CRITICAL SKILL BUT TO MEET THE OBLIGATED SERVICE REQUIREMENT AFTER BEING SELECTED FOR ENTRANCE IN THE NESEP PROGRAM. THE EFFECT OF OUR DECISION OF FEBRUARY 8, 1968, WAS TO PERMIT HIM TO RETAIN THE TWO INSTALLMENTS OF THE VARIABLE REENLISTMENT BONUS PREVIOUSLY PAID TO HIM AND TO PRECLUDE HIM FROM RECEIVING FURTHER INSTALLMENTS.

IN A DECISION DATED JANUARY 4, 1966, 45 COMP. GEN. 379, WE HELD THAT THE VARIABLE REENLISTMENT BONUS VESTS IN THE MEMBER UPON COMPLETION OF THE REENLISTMENT PROCEDURE, AND IN THE EVENT OF A MEMBER'S DEATH PRIOR TO RECEIVING THE FULL AMOUNT OF THE BONUS PAYABLE TO HIM, THE UNPAID BALANCE IS FOR INCLUSION IN THE SETTLEMENT OF THE DECEDENT'S FINAL MILITARY PAY ACCOUNT. ALSO, IN THAT DECISION, WE CONCLUDED THAT GOVERNMENT REGULATIONS WHICH MAY BE PROMULGATED BY APPROPRIATE AUTHORITY MAY NOT DIMINISH THE AMOUNT OF THE VARIABLE REENLISTMENT BONUS WHICH BECAME FIXED AT THE POINT OF REENLISTMENT NOR IN ANY MANNER CURTAIL THE SUBSEQUENT PAYMENT OR PAYMENTS OF ANY PORTION OF SUCH VARIABLE REENLISTMENT BONUS.

IN CONSONANCE WITH 45 COMP. GEN. 379, WE HELD IN A DECISION OF OCTOBER 17, 1966, 46 COMP. GEN. 322, THAT SINCE THE RIGHT TO RECEIVE A VARIABLE REENLISTMENT BONUS IS DEEMED TO VEST AT THE TIME OF REENLISTMENT AND SINCE AN EXTENSION OF AN ENLISTMENT FOR AT LEAST 2 YEARS CONSTITUTES AN ENLISTMENT FOR REENLISTMENT BONUS PURPOSES, A MEMBER OTHERWISE QUALIFIED FOR AND ENTITLED TO RECEIVE A VARIABLE REENLISTMENT BONUS AT THE POINT OF HIS FIRST 2-YEAR EXTENSION CONTINUES TO BE ENTITLED TO SUCH BONUS DURING THE PERIOD OF HIS SECOND 2-YEAR EXTENSION, NOTWITHSTANDING THAT HIS RATING WAS REMOVED FROM THE VARIABLE REENLISTMENT BONUS ELIGIBLE LIST AT THE TIME OF HIS SECOND 2 YEAR EXTENSION.

INASMUCH AS SERGEANT BRAINARD DID NOT QUALIFY FOR THE VARIABLE REENLISTMENT BONUS ON THE DATE OF HIS REENLISTMENT SINCE HE REENLISTED FOR A PURPOSE FOR WHICH THE BONUS WAS NOT PAYABLE, NO RIGHT TO THAT BONUS VESTED IN HIM AT THE TIME OF SUCH REENLISTMENT. THEREFORE, IN LINE WITH OUR HOLDINGS IN 45 COMP. GEN. 379 AND 46 COMP. GEN. 322, IT IS OUR OPINION THAT THE SUBSEQUENT DISENROLLMENT OF SERGEANT BRAINARD FROM THE UNIVERSITY OF COLORADO FOR UNSATISFACTORY PERFORMANCE AND HIS ELIMINATION FROM NESEP, FOLLOWED BY ASSIGNMENT TO DUTY IN A CRITICAL SKILL, DID NOT OPERATE TO GIVE HIM A RIGHT TO FURTHER BONUS PAYMENTS SINCE NO RIGHT TO A VARIABLE REENLISTMENT BONUS VESTED AT THE TIME OF HIS REENLISTMENT.

ACCORDINGLY, YOU ARE ADVISED THAT THE PAY ACCOUNT OF SERGEANT BRAINARD MAY NOT BE CREDITED WITH THE UNPAID INSTALLMENTS OF THE VARIABLE REENLISTMENT BONUS IN THE CIRCUMSTANCES INVOLVED.