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B-116353, MARCH 27, 1957, 36 COMP. GEN. 677

B-116353 Mar 27, 1957
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HAD PERIODS OF ACTIVE ENLISTED RESERVE CORPS SERVICE WHICH TOTALED MORE THAN A YEAR AND WHICH WERE INTERRUPTED BY PERIODS OF LESS THAN 90 DAYS WERE NOT ENTITLED ON SUBSEQUENT REENLISTMENT TO RECEIVE A REENLISTMENT BONUS COMPUTED ON THE BASIS OF A FIRST REENLISTMENT UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949. COLLECTION ACTION WILL NOT BE TAKEN ON BONUS PAYMENTS HERETOFORE MADE. IS FURTHER AMENDED BY DESIGNATING SUBSECTION "/E)" AS SUBSECTION "/F)" AND BY INSERTING A NEW SUBSECTION (E). "/2) ANY MEMBER OF A UNIFORMED SERVICE IN ACTIVE FEDERAL SERVICE ON THE DATE OF ENACTMENT OF THIS AMENDATORY ACT WHO ELECTS TO BE COVERED BY SECTION 208 OF THIS ACT AND WHO IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION.

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B-116353, MARCH 27, 1957, 36 COMP. GEN. 677

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - PERIODS OF ENLISTED RESERVE SERVICE PRECEDING REGULAR ENLISTMENTS MEMBERS OF THE UNIFORMED SERVICES WHO, PRECEDING REGULAR ENLISTMENTS, HAD PERIODS OF ACTIVE ENLISTED RESERVE CORPS SERVICE WHICH TOTALED MORE THAN A YEAR AND WHICH WERE INTERRUPTED BY PERIODS OF LESS THAN 90 DAYS WERE NOT ENTITLED ON SUBSEQUENT REENLISTMENT TO RECEIVE A REENLISTMENT BONUS COMPUTED ON THE BASIS OF A FIRST REENLISTMENT UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949; HOWEVER, COLLECTION ACTION WILL NOT BE TAKEN ON BONUS PAYMENTS HERETOFORE MADE.

TO THE SECRETARY OF DEFENSE, MARCH 27, 1957:

ON SEPTEMBER 12, 1956, THE ARMY FINANCE CENTER CALLED THE ATTENTION OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, TO NOTICES OF EXCEPTION ISSUED BY OUR OFFICE IN REGARD TO REENLISTMENT BONUSES PAID TO SERGEANT FIRST CLASS MITCHELL ISENBERG, RA 35 166 357, AND SERGEANT GERALD A. KOHL, RA 17 275 632. THE CHIEF OF FINANCE DIRECTED THE ARMY FINANCE CENTER TO REQUEST OUR DIVISION OF AUDITS TO REEXAMINE ITS POSITION IN THE MATTER. THIS REQUEST NOW HAS BEEN MADE AND PRIMARILY INVOLVES THE MEANING OF THE PHRASE "EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE" AS USED IN SUBSECTION (B) OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 238 (B), AS AMENDED BY THE ACT OF OCTOBER 26, 1951, 65 STAT. 653, 37 U.S.C. 238. THAT SECTION PROVIDED IN PERTINENT PART THAT:

(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.

(E) THE SECRETARY CONCERNED SHALL PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION IN HIS DEPARTMENT.

THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. 238 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 (CH. 681, 63 STAT. 811), AS AMENDED (37 U.S.C. 238), IS FURTHER AMENDED BY DESIGNATING SUBSECTION "/E)" AS SUBSECTION "/F)" AND BY INSERTING A NEW SUBSECTION (E), AS FOLLOWS:

"/E) THIS SECTION DOES NOT APPLY TO---

"/1) ANY PERSON WHO ORIGINALLY ENLISTS IN A UNIFORMED SERVICE AFTER THE DATE OF ENACTMENT OF THIS AMENDATORY ACT;

"/2) ANY MEMBER OF A UNIFORMED SERVICE IN ACTIVE FEDERAL SERVICE ON THE DATE OF ENACTMENT OF THIS AMENDATORY ACT WHO ELECTS TO BE COVERED BY SECTION 208 OF THIS ACT AND WHO IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION;

"/3) ANY PERSON WHO---

"/A) WAS DISCHARGED OR RELEASED FROM ACTIVE DUTY FROM A UNIFORMED SERVICE NOT MORE THAN NINETY DAYS BEFORE THE DATE OF ENACTMENT OF THIS AMENDATORY ACT,

"/B) REENLISTS IN THAT SERVICE WITHIN NINETY DAYS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY,

"/C) ELECTS TO BE COVERED BY SECTION 208 OF THIS ACT, AND

"/D) IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THAT SECTION; OR

"/4) ANY PERSON COVERED BY CLAUSE (2) OR (3) WHO AT ANY TIME ELECTS, OR HAS ELECTED, TO BE COVERED BY SECTION 208 OF THIS ACT.'

SEC. 2. THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, IS FURTHER AMENDED BY INSERTING THE FOLLOWING NEW SECTION AT THE END OF TITLE II:

"SEC. 208. * * * A MEMBER OF A UNIFORMED SERVICE WHO REENLISTS IN THE REGULAR COMPONENT OF THE SERVICE CONCERNED WITHIN NINETY DAYS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY, AND WHO IS NOT COVERED BY SECTION 207 OF THIS ACT, IS ENTITLED TO A BONUS COMPUTED ACCORDING TO THE FOLLOWING TABLE:

TABLE " REENLISTMENT (1) COLUMN (1) TAKE COLUMN (2) MULTIPLY BY FIRST --- ------ MONTHLY BASIC PAY TO WHICH NUMBER OF YEARS SPECIFIED

THE MEMBER WAS ENTITLED AT IN REENLISTMENT CONTRACT,

THE TIME OF DISCHARGE. (2) OR SIX, IF NONE IS

SPECIFIED. (3) SECOND -------- TWO-THIRDS OF THE MONTHLY NUMBER OF YEARS SPECIFIED

BASIC PAY TO WHICH THE IN REENLISTMENT CONTRACT,

MEMBER WAS ENTITLED AT THE OR SIX, IF NONE IS

TIME OF DISCHARGE. (4) SPECIFIED. (3)

* * * * * * * "/1) ANY REENLISTMENT WHEN A BONUS WAS NOT AUTHORIZED IS NOT COUNTED. "/2) TWO THIRDS OF THE MONTHLY BASIC PAY IN THE CASE OF A MEMBER IN PAY GRADE E 1 AT THE TIME OF DISCHARGE. "/3) ON THE SIXTH ANNIVERSARY OF AN INDEFINITE REENLISTMENT, AND ON EACH ANNIVERSARY THEREAFTER, THE MEMBER IS ENTITLED TO A BONUS EQUAL TO ONE-THIRD OF THE MONTHLY BASIC PAY TO WHICH HE IS ENTITLED ON THAT ANNIVERSARY DATE. ,/4) NO BONUS MAY BE PAID TO A MEMBER IN PAY GRADE E-1 OR E-2 AT THE TIME OF DISCHARGE.'

IT APPEARS THAT SERGEANT ISENBERG SERVED ON ACTIVE DUTY AS A MEMBER OF THE ENLISTED RESERVE CORPS FROM NOVEMBER 11, 1950, TO JULY 21, 1951, AND FROM AUGUST 13, 1951, TO MARCH 13, 1952; WAS DISCHARGED ON THE LATTER DATE; AND ENLISTED IN THE REGULAR ARMY FOR THREE YEARS ON MARCH 14, 1952. APPARENTLY HE WAS NOT PAID A REENLISTMENT BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 IN CONNECTION WITH SUCH REGULAR ARMY ENLISTMENT. IT FURTHER APPEARS THAT HE REENLISTED IN THE REGULAR ARMY FOR SIX YEARS ON MARCH 10, 1955, AND WAS PAID A REENLISTMENT BONUS, UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY THE ACT OF JULY 16, 1954, 37 U.S.C. 239, AS FOR A FIRST REENLISTMENT.

THE ABOVE NOTICE OF EXCEPTION IN SERGEANT ISENBERG'S CASE WAS ISSUED ON THE BASIS THAT SINCE THE INTERRUPTION OF HIS ACTIVE SERVICE IN THE ENLISTED RESERVE CORPS WAS FOR A PERIOD OF LESS THAN 91 DAYS, SUCH SERVICE CONSTITUTED "EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT" WITHIN THE CONTEMPLATION OF SECTION 207 (B) (2) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238 (B) (2); THAT, ACCORDINGLY, THE PAYMENT TO HIM OF A REENLISTMENT BONUS WAS AUTHORIZED UNDER SECTION 207 UPON HIS ENLISTMENT OF MARCH 14, 1952; AND, HENCE, THAT UPON HIS ENLISTMENT OF MARCH 10, 1955, HE SHOULD HAVE BEEN CREDITED, UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, WITH A REENLISTMENT BONUS AS FOR A SECOND REENLISTMENT, RATHER THAN FOR A FIRST REENLISTMENT. THE NOTICE OF EXCEPTION IN SERGEANT KOHL'S CASE WAS BASED UPON THE SAME PRINCIPLE AS APPLIED IN SERGEANT ISENBERG'S CASE.

THE CHIEF OF FINANCE HAS EXPRESSED THE VIEW THAT FOR THE PURPOSES OF SECTION 207 (B) OF THE CAREER COMPENSATION ACT OF 1949, THE TERM "EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE" MUST BE CONSTRUED AS MEANING ACTIVE DUTY WITHOUT ANY INTERRUPTIONS, AND THAT THE ACTION TAKEN BY TH ARMY IN PAYING SERGEANTS ISENBERG AND KOHL REENLISTMENT BONUSES UNDER SECTION 208 OF THAT ACT AS FOR FIRST REENLISTMENTS WAS PROPER.

AS EXPLAINED IN OUR DECISION OF DECEMBER 14, 1951, TO THE SECRETARY OF OF DEFENSE, B-105963, 31 COMP. GEN. 209, SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 AS ORIGINALLY DRAFTED IN H.R. 2553, 81ST CONGRESS, THE FORERUNNER OF H.R. 5007, 81ST CONGRESS, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949, DID NOT CONTAIN THE WORDS "OF ONE YEAR OR MORE" IN SUBSECTION (B) (2) AND SUCH LANGUAGE WAS ADDED TO LESSEN WHAT WAS REGARDED AS AN UNFAIR ADVANTAGE TO RESERVISTS IN THAT, WITHOUT THAT LANGUAGE, THEY COULD QUALIFY FOR REENLISTMENT BONUS BY ENLISTING IN THE REGULAR SERVICE FOLLOWING A SHORT PERIOD OF ACTIVE SERVICE AS A RESERVIST, WHEREAS IT WAS THOUGHT THAT A MEMBER OF THE REGULAR SERVICE WOULD HAVE TO SERVE OUT AT LEAST A TWO-YEAR PERIOD OF ENLISTMENT BEFORE HE COULD SO QUALIFY. THUS IT WAS PROVIDED THAT A RESERVIST ENTERING THE REGULAR SERVICE, TO BE ENTITLED TO A BONUS UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, MUST REENLIST IN THE REGULAR SERVICE WITHIN THREE MONTHS FROM THE DATE OF TERMINATION OF EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT OF THE SAME SERVICE.

THE STATUTE IS SILENT AS TO WHETHER THE RESERVIST'S ONE YEAR OF EXTENDED ACTIVE DUTY MUST BE CONTINUOUS. HOWEVER, IT IS OUR VIEW THAT THERE HAS BEEN A COMPLIANCE WITH THE REQUIREMENT OF ONE YEAR'S ACTIVE DUTY IN CASES WHERE, PRECEDING AN ENLISTMENT IN THE REGULAR SERVICE, AN INDIVIDUAL HAS SERVED ON ACTIVE DUTY FOR ONE YEAR OR MORE IN A RESERVE COMPONENT OF SUCH SERVICE, EVEN THOUGH SUCH ACTIVE DUTY MAY HAVE BEEN INTERRUPTED FOR A PERIOD OR PERIODS OF NOT MORE THAN 90 DAYS EACH. SUCH VIEW IS IN CONSONANCE WITH THE PRIOR STATUTORY PROVISION GOVERNING PAYMENT OF ENLISTMENT ALLOWANCE, SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED BY SECTION 8 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 541, HAVING PROVIDED FOR PAYMENT OF AN ENLISTMENT ALLOWANCE UPON AN ENLISTMENT IN A BRANCH OF THE REGULAR SERVICE WITHIN THREE MONTHS FROM DATE OF DISCHARGE; THAT IN DETERMINING THE ELIGIBILITY OF ANY PERSON ENLISTED OR REENLISTED IN THE REGULAR COMPONENT TO RECEIVE AN ENLISTMENT ALLOWANCE, AND IN COMPUTING THE AMOUNT THEREOF, ALL CONTINUOUS ACTIVE FEDERAL SERVICE IN ONE OF THE SPECIFIED COMPONENTS OF THE ARMED FORCES SHOULD, IF HONORABLY PERFORMED SUBSEQUENT TO PAYMENT OF THE LAST PREVIOUS ENLISTMENT ALLOWANCE, BE CREDITED AS A PERIOD OF ACTIVE SERVICE, AND THAT IN DETERMINING WHETHER ACTIVE FEDERAL SERVICE WAS CONTINUOUS, ANY INTERRUPTIONS OF NOT MORE THAN 90 DAYS EACH BETWEEN PERIODS OF SUCH SERVICE SHOULD BE DISREGARDED.

HENCE, IT IS OUR OPINION THAT SERGEANTS ISENBERG AND KOHL SHOULD HAVE BEEN PAID REENLISTMENT BONUSES UNDER SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 UPON THEIR ENLISTMENTS IN THE REGULAR ARMY ON MARCH 14, 1952, AND FEBRUARY 19, 1952, RESPECTIVELY. IT FOLLOWS THAT THE NOTICES OF EXCEPTION IN THEIR CASES WERE PROPERLY ISSUED.

HOWEVER, WE ARE AWARE THAT THE LAW ON THIS POINT IS NOT CLEAR AND THAT WE HAVE ISSUED NO PRIOR DECISION INTERPRETING IT IN THAT RESPECT. MOREOVER, THERE IS FOR CONSIDERATION THE SOMEWHAT COMPARABLE SITUATION OF MEN WHO, SUBSEQUENT TO OCTOBER 1, 1949, WERE PAID ENLISTMENT ALLOWANCE UNDER SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 AND WHO, UPON SUBSEQUENT ENLISTMENT, WERE PAID REENLISTMENT BONUSES UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 AS FOR A FIRST REENLISTMENT. SUCH PAYMENTS UNDER SECTION 208 HAVE BEEN VALIDATED BY THE ACT OF JUNE 29, 1956, 70 STAT. 373, 37 U.S.C. 239 NOTE.

UNDER THE CIRCUMSTANCES, WE WILL NOT INSIST UPON COLLECTION OF ANY REENLISTMENT BONUSES HERETOFORE PAID UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 UNDER CONDITIONS COMPARABLE TO THOSE IN THE CASES OF SERGEANTS ISENBERG AND KOHL. ACCORDINGLY, THE EXCEPTIONS IN THEIR CASES, AND EXCEPTIONS IN LIKE CASES HAVING REFERENCE TO PAYMENTS HERETOFORE MADE, WILL BE REMOVED. HOWEVER, PAYMENTS OF REENLISTMENT BONUS HEREAFTER MADE SHOULD BE MADE IN ACCORDANCE WITH THE VIEWS AND PRINCIPLES SET FORTH ABOVE.

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