B-100261, MAY 31, 1951

B-100261, MAY 31, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1950, SUBMITTING FOR CONSIDERATION BY THIS OFFICE PROPOSED REGULATIONS RELATING TO THE COMPUTATION OF REENLISTMENT BONUS UNDER THE PROVISO CONTAINED IN SUBSECTION 207(A) OF THE CAREER COMPENSATION ACT OF 1947, 63 STAT. 811, READING AS FOLLOWS:

"PROVIDED, THAT THE BONUS TO BE PAID IN THE CASE OF A PERSON REENLISTING FOR A PERIOD WHICH WOULD EXTEND THE LENGTH OF HIS ACTIVE FEDERAL SERVICE BEYOND THIRTY YEARS SHALL BE COMPUTED AS IF SAID REENLISTMENT WERE FOR THE MINIMUM NUMBER OF YEARS NECESSARY TO PERMIT SUCH PERSON TO COMPLETE THIRTY YEARS' ACTIVE FEDERAL SERVICE."

IN YOUR LETTER IT IS STATED THAT THE ACT OF AUGUST 18, 1941, 55 STAT. 629 (GOVERNING ENLISTMENTS IN THE NAVY AND MARINE CORPS), AND THE ACT OF JUNE 28, 1947, 61 STAT. 191 (GOVERNING ENLISTMENTS IN THE REGULAR ARMY AND AIR FORCE), PROVIDE FOR A MINIMUM ENLISTMENT OR REENLISTMENT PERIOD OF TWO YEARS, AND THERE ARE SET FORTH THE PROPOSED REGULATIONS TO IMPLEMENT THE ABOVE-QUOTED PROVISO OF SUBSECTION 207(A), WHICH PROPOSED REGULATIONS ARE AS FOLLOWS:

"A. WHERE AN ENLISTED MEMBER REENLISTS FOR A PERIOD WHICH WOULD EXTEND THE LENGTH OF HIS ACTIVE FEDERAL SERVICE BEYOND 30 YEARS, THE BONUS WILL BE COMPUTED AS IF THE REENLISTMENT WERE FOR THE MINIMUM NUMBER OF YEARS NECESSARY TO PERMIT SUCH PERSON TO COMPLETE 30 YEARS OF ACTIVE FEDERAL SERVICE. SOME EXAMPLES OF COMPUTATIONS ARE SET FORTH BELOW:

(1) REENLISTED FOR 6 YEARS. - AT TIME OF REENLISTMENT HAD 27 YEARS, 2 MONTHS. COMPUTE AS 3 YEARS - $90 PAYABLE.

(2) REENLISTED FOR 3 YEARS. - AT TIME OF REENLISTMENT HAD 28 YEARS, 7 MONTHS. COMPUTE AS 2 YEARS - $40

(3) REENLISTED FOR 6 YEARS. - AT TIME OF REENLISTMENT HAD 29 YEARS, 11 MONTHS. COMPUTE AS 2 YEARS - $40

"B. WHERE AN ENLISTED MEMBER'S LAST ENLISTMENT WAS OF SUFFICIENT LENGTH TO CARRY HIM BEYOND HIS 30 YEARS OF SERVICE AND HE WAS DISCHARGED FOR THE PURPOSE OF REENLISTING, NO AMOUNT OF REENLISTMENT BONUS IS PAYABLE UPON THE REENLISTMENT."

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE CAREER COMPENSATION ACT OF 1949 DISCLOSES THAT THE PROVISO IN QUESTION WAS ADDED TO SUBSECTION 207(A) AT THE SUGGESTION OF MAJOR GENERAL RICHARD E. NUGENT WHO STATED THAT THE PURPOSE OF THE PROVISION "IS TO PREVENT AN ENLISTED MAN WHO, SAY, HAS 28 YEARS' SERVICE FROM REENLISTING FOR 6 YEARS AND GETTING A REENLISTMENT BONUS FOR 6 YEARS, AND THEN SAYING AT THE END OF THE 2 YEARS. 'I DESIRE TO RETIRE.' THAT IS TO PROTECT THE GOVERNMENT." SEE PAGE 1652 OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, 81ST CONGRESS, 1ST SESSION, ON H. R. 2553. THE ANALYSIS OF SUBSECTION 207(A), AS SET FORTH ON PAGE 31 OF REPORT NO. 779, 81ST CONGRESS, 1ST SESSION, SUBMITTED BY THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H. R. 5007 (ENACTED AS THE CAREER COMPENSATION ACT OF 1949), IS AS FOLLOWS: REENLISTMENT PERIOD AND BEGINNING WITH $40 FOR A 2-YEAR PERIOD OF REENLISTMENT PERIOD UP TO $360 FOR A 6-YEAR PERIOD, OR UNSPECIFIED PERIOD, AND IN THE LATTER CASE $60 FOR EACH YEAR THEREAFTER, SUBJECT TO THE LIMITATION THAT THE TOTAL AMOUNT PAID SHALL NOT EXCEED $1,440. THERE IS A FURTHER STIPULATION THAT THE REENLISTMENT MUST BE MADE WITHIN 3 MONTHS FROM THE DATE OF DISCHARGE OR SEPARATION, OR SUCH LESSER PERIOD AS THE SECRETARY CONCERNED MAY DETERMINE. IN ADDITION TO THE ABOVE, THIS SUBSECTION PROVIDES THAT THE BONUSES SHALL NOT BE PAID FOR MORE THAN FOUR ENLISTMENTS FOLLOWING ENACTMENT OF THIS BILL AND SHALL NOT BE PAID FOR THOSE YEARS OF A REENLISTMENT PERIOD WHICH WOULD EXTEND THE LENGTH OF ACTIVE FEDERAL SERVICE BEYOND 30 YEARS." A SIMILAR EXPLANATION IS SET FORTH ON PAGE 19 OF REPORT NO. 733 SUBMITTED BY THE SENATE COMMITTEE ON ARMED SERVICES TO ACCOMPANY H. R. 5007. FROM THE FOREGOING, IT APPEARS TO HAVE BEEN THE INTENTION THAT THE BONUS WOULD NOT BE COMPUTED ON THOSE YEARS OF A REENLISTMENT IN EXCESS OF THE MINIMUM NUMBER OF YEARS REQUIRED TO COMPLETE 30 YEARS' ACTIVE SERVICE. IN EXAMPLE (1) THE MINIMUM FULL YEARS OF SERVICE REQUIRED TO COMPLETE 30 YEARS' SERVICE IS 3 YEARS AND IN EXAMPLE (2) THE MINIMUM FULL YEARS OF SERVICE REQUIRED TO COMPLETE 30 YEARS' SERVICE IS 2 YEARS. HENCE, THE AMOUNT INDICATED AS PAYABLE IN EACH OF THOSE EXAMPLES APPEARS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 207(A).

WITH RESPECT TO THE THIRD EXAMPLE, SINCE ONE FULL YEAR OF SERVICE IS ALL THE SERVICE THAT WOULD BE REQUIRED TO COMPLETE 30 YEARS' SERVICE AND SINCE THE MINIMUM DEFINITE ENLISTMENT PERIOD SPECIFIED IN SUBSECTION 207(A) FOR WHICH THE REENLISTMENT BONUS IS PAYABLE IS 2 YEARS, NO AMOUNT WOULD APPEAR TO BE PAYABLE INCIDENT TO A REENLISTMENT UNDER THE CIRCUMSTANCES THERE SET FORTH. COMPARE THE ANSWER TO THE SIXTH QUESTION IN DECISION OF SEPTEMBER 19, 1950, B-93694, 30 COMP. GEN. 109, 113.

ACCORDINGLY, YOU ARE ADVISED THAT IF THE PROPOSED REGULATIONS ARE MODIFIED TO CONFORM WITH THE FOREGOING THEY WOULD APPEAR TO BE IN CONFORMITY WITH SUBSECTION 207(A), SUPRA. HOWEVER, SINCE IT IS NOT WITHIN THE PROVINCE OF THIS OFFICE TO "APPROVE" PROPOSED REGULATIONS, THIS IS NOT TO BE UNDERSTOOD AS OPERATING TO PRECLUDE A DETERMINATION AS TO THE LEGALITY OF ANY PROVISION APPEARING IN SUCH REGULATIONS, IF PROMULGATED, SHOULD THE SAME HEREAFTER BE INVOLVED IN ANY MATTER PROPERLY BEFORE THIS OFFICE FOR OFFICIAL ACTION.