B-107486, NOV 15, 1966

B-107486, NOV 15, 1966

PRECIS-UNAVAILABLE

LIEUTENANT COMMANDER C. E. GRIFFITHS, SC, USN:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 9, 1966 (FMP:VR:EMH SER: 138), REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF ANTONIO T. MONTOYA, 513 08 10, USN, AS THOUGH ADVANCED TO AN SD2 RATING ON APRIL 16, 1966. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY THE COMPTROLLER OF THE NAVY, HAVING BEEN ASSIGNED SUBMISSION NO. DO-N- 915 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

MR. MONTOYA'S SERVICE RECORD REFLECTS THAT THE COMMANDING OFFICER, U.S. NAVAL EXAMINING CENTER, BY NECADVLTR 2-65, DATED OCTOBER 1, 1965, AUTHORIZED A CHANGE OF RATING FOR HIM TO SD2, EFFECTIVE APRIL 16, 1966. SINCE THE MEMBER'S ENLISTMENT CONTRACT WOULD EXPIRE JANUARY 17, 1966, AND HE HAD TO HAVE A MINIMUM OF ONE YEAR'S OBLIGATED SERVICE IN ORDER TO QUALIFY FOR ADVANCEMENT, IT WOULD BE NECESSARY FOR HIM TO EXTEND HIS ENLISTMENT OR REENLIST IN ORDER TO QUALIFY FOR THIS ADVANCEMENT. HOWEVER, YOU STATE THAT MR. MONTOYA'S PHYSICAL CONDITION WAS SUCH THAT HE WAS THEN UNABLE TO MEET THE PHYSICAL STANDARDS REQUIRED FOR EXTENSION OF ENLISTMENT OR REENLISTMENT. YOU ALSO STATE THAT UPON EXPIRATION OF HIS ENLISTMENT CONTRACT HE WAS PLACED IN A MEDICAL HOLD STATUS TO PROVIDE HIM WITH THE NECESSARY TIME TO SECURE A WAIVER OF PHYSICAL STANDARDS FOR REENLISTMENT PURPOSES.

THE MEMBER'S SERVICE RECORD INDICATES THAT BY LETTER DATED APRIL 14, 1966, THE CHIEF OF NAVAL OPERATIONS ADVISED THE CHIEF OF NAVAL PERSONNEL THAT AN ADVANCEMENT IN RATING HAD BEEN AUTHORIZED FOR MR. MONTOYA EFFECTIVE APRIL 16, 1966, AND REQUESTED WAIVER OF THE PHYSICAL STANDARDS IN HIS CASE FOR THE PURPOSE OF DISCHARGE AND REENLISTMENT. ON APRIL 25, 1966, THE CHIEF OF NAVAL PERSONNEL WAIVED THE PHYSICAL STANDARDS FOR MR. MONTOYA, PERMITTING HIS DISCHARGE AND REENLISTMENT WITH LIMITED DUTY DESIGNATOR L-5 BEING ASSIGNED, IN ACCORDANCE WITH ARTICLE C-5208, BUREAU OF NAVAL PERSONNEL MANUAL. ON MAY 12, 1966, MR. MONTOYA WAS DISCHARGED AND ON MAY 13, 1966, HIS REENLISTMENT WAS EFFECTED. MR. MONTOYA WAS ADVANCED TO SD2 IMMEDIATELY UPON REENLISTMENT, WITH AN EFFECTIVE DATE OF APRIL 16, 1966.

ON THE BASIS OF THESE FACTS, YOU REQUEST A DETERMINATION AS TO WHETHER THE MEMBER'S ADVANCEMENT FOR PAY PURPOSES MAY BE RETROACTIVE TO THE DATE OF THE ORIGINAL AUTHORIZED ADVANCEMENT DATE, APRIL 16, 1966, OR WHETHER UNDER THE CIRCUMSTANCES IT IS EFFECTIVE ONLY FROM MAY 13, 1966, WHEN THE MEMBER MET THE ELIGIBILITY REQUIREMENTS OF BUPERS NOTICE 1430 OF MAY 5, 1965, BY ACQUIRING THE REQUISITE OBLIGATED SERVICE BY REENLISTMENT. VIEW OF DECISIONS OF THIS OFFICE TO THE EFFECT THAT THE EFFECTIVE DATE OF A CHANGE IN RATING FOR PAY PURPOSES MAY NOT ANTEDATE THE DATE SUCH CHANGE IS AUTHORIZED BY THE CHIEF OF NAVAL PERSONNEL, THE COMPTROLLER OF THE NAVY, IN FORWARDING YOUR REQUEST FOR DECISION, HAS EXPRESSED DOUBT WHETHER THE CHIEF OF NAVAL PERSONNEL ACTUALLY AUTHORIZED THE CHANGE IN RATE AS OF APRIL 16, 1966, PRIOR TO THE DATE THE MEMBER HAD THE REQUIRED OBLIGATED SERVICE, OR WHETHER THE CHANGE IN RATE WAS ACTUALLY AUTHORIZED ON MAY 13, 1966, WHEN THE MEMBER MET THE ELIGIBILITY REQUIREMENTS OF HAVING A MINIMUM ONE-YEAR'S OBLIGATED SERVICE.

IN A CASE WHERE AN ENLISTED MEMBER OF THE ARMY WAS LAWFULLY REDUCED IN GRADE AND SUBSEQUENTLY DISCHARGED AND REENLISTED IN THE LOWER GRADE, WE HELD IN DECISION OF OCTOBER 26, 1923, 3 COMP. GEN. 261, THAT AFTER DISCHARGE AND REENLISTMENT THE MEMBER COULD NOT BE RETROACTIVELY REINSTATED OR REAPPOINTED TO THE GRADE FROM WHICH REDUCED SO FAR AS HIS RIGHT TO THE HIGHER RATE OF PAY DURING THE FORMER ENLISTMENT IS CONCERNED. SEE UNITED STATES V. CORSON, 114 U.S. 619 (1885); MONTGOMERY V. UNITED STATES, 19 CT. CL. 370 (1884). THE BASIS FOR THAT RULE IS STATED IN UNITED STATES V. SMITH, 67 F.2D 412, 414 (1933), AS FOLLOWS:

"THE DISCHARGE, *** UNDER ANY ENLISTMENT ABSOLUTELY TERMINATES ANY CONTRACTUAL RELATION BETWEEN THE GOVERNMENT AND THE SAILOR AND THE NEW RELATIONS ASSUMED BY EACH IN CONNECTION WITH THE RE-ENLISTMENT ARE ENTIRELY SEPARATE AND DISTINCT FROM THE RELATIONS THERETOFORE EXISTING EXCEPT AS THEY ARE ALTERED BY STATUTE OR REGULATION APPLICABLE TO THE NEW STATUS ARISING FROM THE RE-ENLISTMENT. ***."

COMPARE HIRSHBERG V. UNITED STATES, 336 U.S. 210 (1949); 7 COMP. GEN. 361; AND OPINIONS IN LAWS RELATING TO THE NAVY ANNOTATED, 1929 SUPPLEMENT, PP. 197-198.

IN THE PRESENT CASE, IN SPITE OF THE FACT THAT THE MEMBER'S ADVANCEMENT TO SD2 MAY HAVE BEEN AUTHORIZED ON APRIL 16, 1966, IF HE HAD THE REQUIRED OBLIGATED SERVICE, THE MEMBER'S THEN CURRENT ENLISTMENT TERMINATED ON MAY 12, 1966. THE MEMBER'S REENLISTMENT CONSTITUTED A NEW CONTRACT BETWEEN HIM AND THE GOVERNMENT WITH THE OBLIGATIONS ASSUMED BY EACH UPON THE REENLISTMENT TOTALLY SEPARATE FROM THOSE OF THE EARLIER ENLISTMENT.

CONSEQUENTLY, THE MEMBER HAVING BEEN DISCHARGED ON MAY 12, 1966, AND REENLISTED IN THE SD3 RATING ON MAY 13, 1966, HIS ADVANCEMENT TO SD2 THEREAFTER AFFECTS ONLY THAT ENLISTMENT AND PAYMENT TO THE MEMBER FOR THE HIGHER RATING IS NOT AUTHORIZED FOR THE PERIOD PRIOR TO THE DATE OF HIS REENLISTMENT.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

YOU ALSO ASK WHETHER THE MEMBER'S PAY ACCOUNT SHOULD BE CREDITED WITH THE REENLISTMENT BONUS COMPUTED ON THE RATE FOR SD2. IN 36 COMP. GEN. 788, WE HELD THAT UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, 68 STAT. 488, AS AMENDED, 37 U.S.C. 308, A MEMBER OF THE UNIFORMED SERVICES WHO REENLISTS IN ONE GRADE AND IS IMMEDIATELY PROMOTED TO A HIGHER GRADE IS ENTITLED TO HAVE THE ENLISTMENT AND THE PROMOTION CONSIDERED AS ONE TRANSACTION SO THAT THE REENLISTMENT BONUS PAYABLE ON THE BASIS OF THE "GRADE IN WHICH THE MEMBER IS ENLISTED" MAY BE COMPUTED ON THE PAY OF THE HIGHER GRADE.

ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.