B-121536, MARCH 23, 1955, 34 COMP. GEN. 463

B-121536, MARCH 23, 1955, 34 COMP. GEN. 463

GRATUITIES - REENLISTMENT BONUS - COMPUTATION AN AIR FORCE ENLISTED MAN WHO REENLISTED FOR AN UNSPECIFIED PERIOD OF TIME PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 AND RECEIVED ANNIVERSARY ENLISTMENT PAYMENTS UNDER SECTION 207 (A) OF THE ACT, AND WHO AGAIN REENLISTED AFTER JULY 16, 1954, THE DATE OF ENACTMENT OF THE ACT PROVIDING AN ALTERNATIVE METHOD FOR COMPUTING REENLISTMENT BONUSES, MAY ELECT TO RECEIVE A REENLISTMENT BONUS COMPUTED ON THE BASIS OF A "FIRST" REENLISTMENT UNDER SECTION 208 AS ADDED BY THE AMENDATORY ACT. A REENLISTMENT ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 WHEN THERE WAS NO STATUTORY AUTHORITY FOR PAYMENT OF A "REENLISTMENT BONUS" MUST BE EXCLUDED IN DETERMINING WHETHER A REENLISTMENT AFTER SUCH DATE IS A FIRST, SECOND, THIRD OR FOURTH ENLISTMENT FOR THE PURPOSE OF COMPUTING THE REENLISTMENT BONUS PAYABLE UNDER SECTION 208 OF THE ACT. ALTHOUGH THE ANNIVERSARY PAYMENTS AUTHORIZED BY SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949 TO BE MADE TO MEMBERS WHO REENLISTED FOR AN INDEFINITE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE ACT MUST BE INCLUDED IN APPLYING THE $2,000 LIMITATION CONTAINED IN SECTION 208 (C) OF THE ACT ON TOTAL REENLISTMENT BONUS PAYMENTS, THEY DO NOT CONSTITUTE "REENLISTMENTS" WITHIN THE MEANING OF SECTION 208 (E) OF THE ACT. SUBSECTION (E) OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949 MAKES THE REENLISTMENT BONUS COMPUTATION OF SUCH SECTION INAPPLICABLE TO ANY MEMBER OF THE UNIFORMED SERVICES IN SERVICE ON JULY 16, 1954, WHO ELECTS TO BE PAID A REENLISTMENT BONUS UNDER SECTION 208 OF THAT ACT, AND, THEREFORE, WHERE AN ENLISTED MAN MAKES SUCH ELECTION AFTER HAVING BEEN PAID A BONUS UNDER SECTION 207, THE AMOUNT OF SUCH BONUS MUST BE DEDUCTED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT W.C. FEDERHART, DEPARTMENT OF THE AIR FORCE, MARCH 23, 1955:

YOUR LETTER OF AUGUST 18, 1954, WITH ENCLOSURE, REQUESTED A DECISION ON THE RIGHT OF TECHNICAL SERGEANT JAMES E. SHARP, AF 1804 1364, TO REENLISTMENT BONUS FOR " FIRST" REENLISTMENT, INCIDENT TO HIS REENLISTMENT FOR SIX YEARS ON JULY 20, 1954. IT IS PROPOSED TO PAY THE BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF PUBLIC LAW 506, 83D CONGRESS, APPROVED JULY 16, 1954, 68 STAT. 488, WHICH IS, IN PERTINENT PART, AS FOLLOWS:

SECTION 208 (A) SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, 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:

REENLISTMENT INVOLVED (1) COLUMN (1) TAKE COLUMN (2)

MULTIPLY BY

FIRST---------------------MONTHLY BASIC PAY TO NUMBER OF YEARS

WHICH THE MEMBER WAS SPECIFIED IN

ENTITLED AT THE TIME REENLISTMENT CONTRACT,

OF DISCHARGE. (2) OR SIX, IF NONE

SPECIFIED. (3)

SECOND--------------------TWO-THIRDS OF THE NUMBER OF YEARS

MONTHLY BASIC PAY TO SPECIFIED IN

WHICH THE MEMBER WAS REENLISTMENT CONTRACT,

ENTITLED AT THE TIME OR SIX, IF NONE

OF DISCHARGE. (4) SPECIFIED. (3)

THIRD---------------------ONE-THIRD OF THE NUMBER OF YEARS

MONTHLY BASIC PAY TO SPECIFIED IN

WHICH THE MEMBER WAS REENLISTMENT CONTRACT,

ENTITLED AT THE TIME OR SIX, IF NONE

OF DISCHARGE. (5) SPECIFIED. (3)

FOURTH (AND SUBSEQUENT). ONE-SIXTH OF THE NUMBER OF YEARS

MONTHLY BASIC PAY TO SPECIFIED IN

WHICH THE MEMBER WAS REENLISTMENT CONTRACT,

ENTITLED AT THE TIME OR SIX, IN NONE

OF DISCHARGE. (5) 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 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.

(5) NO BONUS MAY BE PAID TO A MEMBER IN PAY GRADE E-1, E-2, OR E-3 A THE TIME OF DISCHARGE.

(B) NO BONUS MAY BE PAID TO A MEMBER WHO REENLISTS---

(1) DURING HIS PRESCRIBED PERIOD OF BASIC RECRUIT TRAINING; OR

(2) AFTER COMPLETING A TOTAL OF TWENTY YEARS OF ACTIVE FEDERAL SERVICE.

THE BONUS PAYABLE TO A MEMBER WHO REENLISTS BEFORE COMPLETING A TOTAL OF TWENTY YEARS OF ACTIVE FEDERAL SERVICE, BUT WHO WILL UNDER THAT REENLISTMENT COMPLETE MORE THAN TWENTY YEARS OF SUCH SERVICE, IS COMPUTED BY USING AS A MULTIPLIER ONLY THAT NUMBER OF YEARS WHICH, WHEN ADDED TO HIS PREVIOUS SERVICE, TOTALS TWENTY YEARS.

(C) THE CUMULATIVE AMOUNT WHICH MAY BE PAID TO A MEMBER UNDER THIS SECTION, OR UNDER THIS SECTION AND ANY OTHER PROVISION OF LAW AUTHORIZING REENLISTMENT BONUSES, MAY NOT EXCEED $2,000.

(E) IN THIS SECTION,"REENLISTMENT" MEANS---

(1) AN ENLISTMENT IN A REGULAR COMPONENT OF A UNIFORMED SERVICE AFTER COMPULSORY OR VOLUNTARY ACTIVE DUTY IN THAT SERVICE; OR

(2) A VOLUNTARY EXTENSION OF AN ENLISTMENT FOR TWO OR MORE YEARS.

IT APPEARS THAT SERGEANT SHARP WAS DISCHARGED ON JUNE 10, 1949, AND REENLISTED THE FOLLOWING DAY FOR AN UNSPECIFIED PERIOD OF TIME. PURSUANT TO SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PUBLIC LAW 217, 82D CONGRESS, APPROVED OCTOBER 26, 1951, 65 STAT. 653, HE WAS PAID $110 AS OF THE FIRST ANNIVERSARY OF SUCH REENLISTMENT SUBSEQUENT TO SEPTEMBER 30, 1949, AND $60 AS OF EACH FOLLOWING ANNIVERSARY DATE TO AND INCLUDING JUNE 11, 1954, OR A TOTAL OF $350. HE WAS DISCHARGED ON JULY 19, 1954, AS A TECHNICAL SERGEANT, WITH OVER 12 YEARS' SERVICE FOR PAY PURPOSES, AND REENLISTED FOR SIX YEARS ON JULY 20, 1954, AT WHICH TIME HE WAS PAID A REENLISTMENT BONUS OF $360 UNDER THE PROVISIONS OF SECTION 207 (A), AS AMENDED.

THE MILITARY PAY ORDER, ENCLOSED WITH YOUR LETTER, CONTAINS A SIGNED STATEMENT BY SERGEANT SHARP THAT HE ELECTS TO RECEIVE "THIS REENLISTMENT BONUS AND ALL FUTURE REENLISTMENT BONUSES UNDER SECTION 208, OF CAREER COMPENSATION ACT.' THE ORDER INDICATES THAT IF THE PROPOSED PAYMENT UNDER SECTION 208 SHOULD BE APPROVED, THE REENLISTMENT BONUS PAYMENT OF $360 MADE JULY 20, 1954, UNDER SECTION 207 (A) WOULD BE DEDUCTED FROM THE AMOUNT OTHERWISE DUE.

AT THE TIME OF SERGEANT SHARP'S REENLISTMENT ON JUNE 11, 1949, SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 28, 1947, 61 STAT. 192, PROVIDED THAT, IN ADDITION TO THE REENLISTMENT ALLOWANCE OTHERWISE AUTHORIZED, ANY PERSON ENLISTING FOR AN UNSPECIFIED PERIOD OF TIME SHOULD BE PAID THE SUM OF $50 UPON THE COMPLETION OF EACH YEAR OF SERVICE UNDER SUCH ENLISTMENT. THAT SECTION OF THE 1942 ACT WAS REPEALED, HOWEVER, EFFECTIVE OCTOBER 1, 1949, BY THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, LEAVING NO PROVISION OF THE LAW IN EFFECT FOR PAYMENT OF SUCH ADDITIONAL REENLISTMENT ALLOWANCE TO MEMBERS WHO REENLISTED FOR AN INDEFINITE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE 1949 ACT. TO CORRECT THAT SITUATION, SECTION 207 OF THE 1949 ACT WAS AMENDED BY THE ACT OF OCTOBER 26, 1951, TO PROVIDE THAT PERSONS IN AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME, ENTERED INTO PRIOR TO OCTOBER 1, 1949, SHOULD BE PAID $110 UPON THE FIRST ANNIVERSARY DATE OF SUCH ENLISTMENT SUBSEQUENT TO SEPTEMBER 30, 1949, AND $60 UPON EACH ANNIVERSARY DATE THEREAFTER, SUBJECT TO THE LIMITATION THAT THE TOTAL AMOUNT PAID AFTER OCTOBER 1, 1949, SHOULD NOT EXCEED $1,440.

YOUR QUESTION WHETHER SERGEANT SHARP IS ENTITLED TO A REENLISTMENT BONUS IN THE AMOUNT AUTHORIZED FOR A " FIRST" REENLISTMENT UNDER THE PROVISIONS OF SECTION 208 OF THE CAREER COMPENSATION ACT, SINCE HE HAS BEEN PAID $350 IN ANNIVERSARY PAYMENTS UNDER SECTION 207 OF THE 1949 ACT AS AMENDED BY THE ACT OF OCTOBER 26, 1951. IN OTHER WORDS, YOU REQUEST DECISION WHETHER PAYMENT OF $110 AS OF THE FIRST ANNIVERSARY OF AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME ENTERED INTO PRIOR TO OCTOBER 1, 1949, CONSTITUTES A REENLISTMENT WITHIN THE CONTEMPLATION OF SECTION 208 AND, IF SO, WHETHER THE $110 PAYMENT PLUS ONE OR MORE PAYMENTS OF $60 CONSTITUTES MORE THAN ONE REENLISTMENT FOR SUCH PURPOSE.

SECTION 1 OF THE AMENDATORY ACT OF JULY 16, 1954, 68 STAT. 488, IS 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 SUBJECT "/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.'

IT APPEARS THAT SERGEANT SHARP'S REENLISTMENT ON JUNE 11, 1949, AND HIS DISCHARGE ON JULY 19, 1954, WERE ACCOMPLISHED UNDER AUTHORITY OF PUBLIC LAW 128, 80TH CONGRESS, 61 STAT. 191, 10 U.S.C. 628 (MADE APPLICABLE TO THE AIR FORCE BY SECTION 305 OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 508), WHICH PROVIDES THAT PERSONS OF THE FIRST THREE ENLISTED GRADES MAY BE REENLISTED FOR UNSPECIFIED PERIODS OF TIME ON A CAREER BASIS, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, AND THAT ANYONE WHO SERVES THREE OR MORE YEARS OF SUCH AN ENLISTMENT MAY SUBMIT HIS RESIGNATION TO THE SECRETARY OF THE DEPARTMENT CONCERNED, AND SUCH RESIGNATION SHALL BE ACCEPTED BY THE SECRETARY AND THE PERSON SHALL BE DISCHARGED FROM HIS ENLISTMENT WITHIN THREE MONTHS OF THE SUBMISSION OF SUCH RESIGNATION. WHILE, UNDER THE STATUTE, AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME COULD BE TERMINATED BY THE ENLISTED PERSON AFTER THREE YEARS' SERVICE, SUCH AN ENLISTMENT CONTEMPLATES UNINTERRUPTED SERVICE FROM ITS COMMENCEMENT AND REQUIRES NO POSITIVE ACTION ON THE PART OF THE ENLISTED PERSON TO RENEW OR EXTEND HIS ENLISTMENT AFTER THE EXPIRATION OF THREE YEARS. AND IT SEEMS PLAIN THAT AN ANNIVERSARY-DATE PAYMENT AUTHORIZED FOR SUCH AN ENLISTMENT AND MADE IN CONNECTION WITH SUCH UNINTERRUPTED SERVICE COULD NOT, IN ANY SENSE, PROPERLY BE CONSIDERED AS MARKING A REENLISTMENT, PARTICULARLY SINCE IT WOULD NOT CONSTITUTE A REENLISTMENT WITHIN THE EXPRESS DEFINITION OF THAT TERM APPEARING IN SECTION 208 (E), QUOTED ABOVE, AND SINCE THE MINIMUM DEFINITE ENLISTMENT PERIOD SPECIFIED IN SECTION 207 (A) OF THE 1949 ACT, AS AMENDED, IS TWO YEARS. HENCE, WHILE SUCH PAYMENTS UNDER SECTION 207 (A), AS AMENDED, MADE AFTER OCTOBER 1, 1949, ON EACH ANNIVERSARY DATE OF AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME ENTERED INTO PRIOR TO THAT DATE ARE CHARGEABLE IN APPLYING THE LIMITATION OF $2,000 IN SECTION 208 (C) ON THE CUMULATIVE TOTAL OF REENLISTMENT BONUS PAYMENTS, THEY DO NOT CONSTITUTE REENLISTMENTS FOR THE PURPOSE OF COMPUTING THE AMOUNT OF THE REENLISTMENT BONUS PAYABLE IN ACCORDANCE WITH THE TABLE SET OUT IN SECTION 208 (A), QUOTED ABOVE. FURTHERMORE, IN VIEW OF THE EXPRESS STATUTORY PROVISION CONTAINED IN THE FIRST FOOTNOTE OF THE SAID TABLE (DECLARING THAT " ANY REENLISTMENT WHEN A BONUS WAS NOT AUTHORIZED IS NOT COUNTED"), SERGEANT SHARP'S REENLISTMENT ON JUNE 11, 1949, MUST BE EXCLUDED IN DETERMINING HIS RIGHTS WITH RESPECT TO THE REENLISTMENT BONUS PAYABLE UNDER THE SAID SECTION 208 (A), SINCE A REENLISTMENT BONUS WAS NOT AUTHORIZED AT THAT TIME.

WITH RESPECT TO THE REENLISTMENT BONUS OF $360 ALREADY PAID TO SERGEANT SHARP UNDER THE AUTHORITY OF SECTION 207 (A) OF THE 1949 ACT, 63 STAT. 810, BY REASON OF HIS REENLISTMENT FOR A PERIOD OF SIX YEARS ON JULY 20, 1954, SUBSECTION (E) OF THAT SECTION, AS ADDED BY SECTION 1 OF THE AMENDATORY ACT OF JULY 16, 1954, MAKES THE SAID SECTION 207 INAPPLICABLE TO ANY MEMBER OF A UNIFORMED SERVICE IN ACTIVE FEDERAL SERVICE ON JULY 16, 1954, THE DATE OF ENACTMENT OF THE AMENDATORY ACT, WHO AT ANY TIME ELECTS, OR HAS ELECTED, TO BE COVERED BY SECTION 208 AS ADDED BY THE AMENDATORY ACT AND WHO IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THE LATTER SECTION. ACCORDINGLY, SINCE SERGEANT SHARP NOW HAS ELECTED TO RECEIVE, AND IS OTHERWISE ELIGIBLE TO RECEIVE, THE BENEFITS OF SECTION 208, YOU ARE AUTHORIZED TO CREDIT HIS PAY ACCOUNT ON THE BASIS OF THE MILITARY PAY ORDER, RETURNED HEREWITH, FOR AN AMOUNT COMPUTED ON THE BASIS OF A " FIRST" REENLISTMENT, LESS THE AMOUNT OF $360 PAID TO HIM ON JULY 21, 1954.