B-122376, MAY 10, 1955, 34 COMP. GEN. 579

B-122376, MAY 10, 1955, 34 COMP. GEN. 579

GRATUITIES - REENLISTMENT BONUS - ACTIVE FEDERAL SERVICE IN COMPUTING THE ACTIVE FEDERAL SERVICE FOR DETERMINATION OF ELIGIBILITY TO PAYMENT OF A REENLISTMENT BONUS UNDER SECTION 208 (B) OF THE CAREER COMPENSATION ACT OF 1949, ALL PERIODS OF ACTIVE DUTY SHOULD BE INCLUDED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE MAY 10, 1955:

REFERENCE IS MADE TO LETTER OF DECEMBER 17, 1954, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), ENCLOSING COPIES OF COMMITTEE ACTION NO. 111, MILITARY PAY AND ALLOWANCE COMMITTEE, AND REQUESTING DECISION WHETHER ACTIVE DUTY FOR TRAINING AS A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES SHOULD BE CONSIDERED "ACTIVE FEDERAL SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488. THAT SECTION IS, IN PERTINENT PART, AS FOLLOWS:

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) 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:

"/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.'

AS INDICATED IN COMMITTEE ACTION NO. 111, THE 20-YEAR LIMITATION ON CREDITABLE SERVICE FOR BONUS COMPUTATION PURPOSES APPARENTLY WAS INCLUDED IN THE STATUTE BECAUSE IT WAS DEEMED UNNECESSARY OR UNDESIRABLE TO PAY A REENLISTMENT BONUS ON THE BASIS OF SERVICE TO BE PERFORMED BY A MEMBER AFTER COMPLETING THE MINIMUM PERIOD OF SERVICE FOR ELIGIBILITY FOR VOLUNTARY RETIREMENT. THE COMMITTEE ACTION QUOTES FROM PAGE 3 OF REPORT NO. 2098, HOUSE OF REPRESENTATIVES, DATED JULY 8, 1954, TO ACCOMPANY S. 3539--- WHICH BECAME THE ACT OF JULY 16, 1954--- AS FOLLOWS:

NO REENLISTMENT BONUS ACCRUES AFTER THE COMPLETION OF 20 YEARS OF SERVICE. THIS PROVISION IS IN RECOGNITION OF THE FACT THAT INDIVIDUALS WHO HAVE COMPLETED 20 YEARS OF SERVICE ARE ELIGIBLE FOR RETIREMENT.

THUS, IN DECIDING WHETHER ACTIVE DUTY FOR TRAINING SHOULD BE INCLUDED IN COMPUTING "ACTIVE FEDERAL SERVICE" FOR THE PURPOSES OF THE 20-YEAR LIMITATION, IT IS APPROPRIATE TO CONSIDER WHETHER SUCH TRAINING DUTY MAY BE COUNTED FOR ELIGIBILITY FOR RETIREMENT. THE DIFFICULTY IN THE MATTER RESULTS FROM THE FACT THAT UNDER SOME RETIREMENT STATUTES ACTIVE DUTY FOR TRAINING HAS BEEN CONSIDERED AS PROPER FOR INCLUSION IN DETERMINING YEARS OF SERVICE FOR ELIGIBILITY FOR RETIREMENT WHILE UNDER OTHER RETIREMENT STATUTES IT HAS NOT BEEN SO CONSIDERED.

FOR EXAMPLE, THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HAS HELD THAT THE TERM "ACTIVE FEDERAL SERVICE PERFORMED," AS USED IN THE MANDATORY RETIREMENT PROVISIONS OF SECTION 514 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 902, INCLUDES PERIODS OF ACTIVE DUTY FOR TRAINING. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES, 1953-1954, PAGES 588-589. AND THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS HELD THAT FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PERFORMED BY MEMBERS OF THE NATIONAL GUARD IS CREDITABLE AS "ACTIVE FEDERAL SERVICE" IN COMPUTING YEARS OF SERVICE FOR RETIREMENT UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, 10 U.S.C. 971B. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES, JULY-SEPTEMBER 1954. PAGES 139- 140. ON THE OTHER HAND, CHANGE NO. 5 TO ARTICLE C-10327, BUREAU OF NAVAL PERSONNEL MANUAL, 1948, PROVIDES THAT IN COMPUTING ACTIVE SERVICE UNDER THE STATUTORY PROVISIONS FOR RETIREMENT OF NAVY ENLISTED MEN AFTER 30 YEARS OF FEDERAL SERVICE, TRAINING DUTY SHOULD BE EXCLUDED.

THE LANGUAGE OF THE QUOTED REENLISTMENT BONUS STATUTE, HOWEVER, DOES NOT PROVIDE A TENABLE BASIS FOR HOLDING THAT THE PHRASE "ACTIVE FEDERAL SERVICE," AS USED IN SUCH STATUTE, WAS INTENDED TO HAVE ONE MEANING WHEN APPLIED TO MEMBERS OF ONE COMPONENT OF THE UNIFORMED SERVICES, AND A DIFFERENT MEANING WHEN APPLIED TO MEMBERS OF ANOTHER COMPONENT. IN OTHER WORDS, IT SEEMS OBVIOUS THAT SUCH PHRASE MUST HAVE A UNIFORM APPLICATION TO ALL MEMBERS OF THE SERVICES WHO COME WITHIN THE PROVISIONS OF THE STATUTE. COMPARE 50 AM. JUR., STATUTES, SECTION 433.

AS POINTED OUT BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, SEVERAL RECENT STATUTES PERTAINING TO RETIREMENT OF MEMBERS OF THE UNIFORMED SERVICES HAVE DEFINED "ACTIVE SERVICE" AS INCLUDING TRAINING DUTY. SEE, FOR EXAMPLE, SECTION 306 (B) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1090; SECTIONS 412 AND 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 824, 829; SECTION 2 (D) OF THE ACT OF MAY 29, 1954, 68 STAT. 157. CONSONANCE WITH THOSE STATUTES AND THE VIEW HELD BY THE JUDGE ADVOCATES GENERAL OF THE ARMY AND THE AIR FORCE, RESPECTING THE INCLUSION OF TRAINING DUTY IN COMPUTING PERIODS OF SERVICE FOR RETIREMENT PURPOSES, IT IS CONCLUDED THAT THE TERM "ACTIVE FEDERAL SERVICE," AS USED IN SECTION 2 OF THE ACT OF JULY 16, 1954, WAS INTENDED BY THE CONGRESS TO INCLUDE ACTIVE DUTY FOR TRAINING. COMPARE B-110310, AUGUST 8, 1952.