B-128320, AUGUST 17, 1956, 36 COMP. GEN. 127

B-128320, AUGUST 17, 1956, 36 COMP. GEN. 127

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - DISCHARGE FROM ACTIVE DUTY FOR TRAINING ACTIVE DUTY FOR TRAINING PERFORMED, PURSUANT TO THE ARMED FORCES RESERVE ACT OF 1952, BY AN ENLISTED MARINE RESERVIST IS NOT INCLUDED IN THE TERM "ACTIVE DUTY" AND, THEREFORE, THE MEMBER IS NOT ENTITLED TO A REENLISTMENT BONUS ON DISCHARGE FROM ACTIVE DUTY FOR TRAINING AND ENLISTMENT IN THE REGULAR MARINE CORPS.

TO M. C. DODSON, HEADQUARTERS, UNITED STATES MARINE CORPS, AUGUST 17, 1956:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1956, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PRIVATE RICHARD A. ATENCIO, 1557148, U.S. MARINE CORPS, IS ENTITLED TO A REENLISTMENT BONUS UNDER THE PROVISIONS OF SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. SUPP. III, 239, IN THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

IT APPEARS FROM THE PAPERS ACCOMPANYING YOUR LETTER THAT ON NOVEMBER 2, 1955, PRIVATE ATENCIO ENLISTED IN THE MARINE CORPS RESERVE UNDER THE PROVISIONS OF SECTION 262 OF THE ARMED FORCES RESERVE ACT OF 1952 (AS ADDED BY SECTION 2 (I) OF THE RESERVE FORCES ACT OF 1955, 69 STAT. 600, 50 U.S.C., SUPP. III, 1013, AND AMENDED BY SECTION 1 OF THE ACT OF APRIL 23, 1956, 70 STAT. 115), 50 U.S.C., SUPP. III, 1012, AND THAT ON NOVEMBER 22, 1955, HE WAS ASSIGNED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF SIX MONTHS AS PROVIDED BY CLAUSE (1) OF SECTION 262 (C) 50 U.S.C., SUPP. III, 1013 (C) (1) OF THAT ACT. AFTER HE HAD COMPLETED HIS BASIC RECRUIT TRAINING, AND WHILE HE WAS SERVING ON ACTIVE DUTY FOR TRAINING, HE WAS DISCHARGED FROM THE MARINE CORPS RESERVE ON FEBRUARY 27, 1956, AND ENLISTED THE FOLLOWING DAY IN THE REGULAR MARINE CORPS FOR THREE YEARS. YOU STATE THAT DOUBT EXISTS AS TO WHETHER "ACTIVE DUTY FOR TRAINING" IS "ACTIVE DUTY" WITHIN THE MEANING OF CLAUSE (1) OF SECTION 208 (E) 37 U.S.C., SUPP. III, 239 (E) (1) OF THE CAREER COMPENSATION ACT OF 1949. THAT CONNECTION, YOU CALL ATTENTION TO OUR DECISION OF AUGUST 8, 1952, B- 110310, TO A DISBURSING OFFICER OF THE ARMY.

SECTION 262 OF THE ARMED FORCES RESERVE ACT OF 1952, AS AMENDED, IS IN PERTINENT PART AS OLLOWS:

(A) UNTIL AUGUST 1, 1959, WHENEVER THE PRESIDENT DETERMINES THAT THE ENLISTED STRENGTH OF THE READY RESERVE OF THE ARMY RESERVE, NAVAL RESERVE, MARINE CORPS RESERVE, AIR FORCE RESERVE, OR COAST GUARD RESERVE CANNOT BE MAINTAINED AT THE LEVEL WHICH HE DETERMINES TO BE NECESSARY IN THE INTEREST OF NATIONAL DEFENSE, HE MAY AUTHORIZE THE ACCEPTANCE OF ENLISTMENTS IN UNITS OF SUCH READY RESERVE PURSUANT TO THE PROVISIONS OF THIS SECTION UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE.

(C) EACH ENLISTMENT UNDER THIS SECTION SHALL BE FOR A PERIOD OF EIGHT YEARS. EACH PERSON SO ENLISTED SHALL BE REQUIRED DURING SUCH ENLISTMENT (1) TO PERFORM AN INITIAL PERIOD OF ACTIVE DUTY FOR TRAINING OF NOT LESS THAN THREE MONTHS OR MORE THAN SIX MONTHS * * *.

SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C., SUPP. III, 239, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(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: * * *.

(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 * * *.

SECTION 101 (B) OF THE 1952 ACT, 50 U.S.C. 901 (B), STATES THAT WHEN USED IN THAT ACT " " ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, OTHER THAN ACTIVE DUTY FOR TRAINING.'

WHILE SECTION 208 OF THE CAREER COMPENSATION ACT, AS AMENDED, DOES NOT CONTAIN A PROVISION SIMILAR TO THAT IN SECTION 207 (B) (2), 37 U.S.C., SUPP. III, 238 (B) (2) OF THAT ACT WHICH PROVIDES THAT ENLISTMENT IN ONE OF THE REGULAR SERVICES FOLLOWING EXTENDED ACTIVE DUTY OF ONE YEAR OR MORE IN A RESERVE COMPONENT SHALL BE CONSIDERED A REENLISTMENT, THE LANGUAGE IN SECTION 208 (E) (1) REFERRING TO AN ENLISTMENT FOLLOWING "COMPULSORY OR VOLUNTARY ACTIVE DUTY" IS BROAD ENOUGH TO COVER SERVICE IN EITHER A REGULAR OR RESERVE COMPONENT OF THE UNIFORMED SERVICES. IT APPEARS DOUBTFUL THAT THE CONGRESS INTENDED THAT THE REENLISTMENT BONUS PROVIDED IN SECTION 207 WOULD BE PAID IN CONNECTION WITH A REENLISTMENT WHICH FOLLOWED RESERVED SERVICE BUT THAT A RIGHT TO THE BONUS AUTHORIZED IN SECTION 208 WOULD NOT ACCRUE IN SUCH CIRCUMSTANCES. IN THAT CONNECTION, IT IS NOTED THAT SECTION 208 (A), 37 U.S.C., SUPP. III, 208 (A) PROVIDES FOR THE PAYMENT OF A REENLISTMENT BONUS CONNECTION WITH REENLISTMENTS WITHIN 90 DAYS AFTER DATE OF "DISCHARGE OR RELEASE FROM ACTIVE DUTY.' WHILE THE WORD "DISCHARGE" APTLY DESCRIBES THE TERMINATION OF MILITARY SERVICE OF A MEMBER OF THE REGULAR SERVICE,"RELEASE FROM ACTIVE DUTY" MORE APPROPRIATELY FITS THE SITUATION OF A RESERVIST WHO IS RELEASED TO INACTIVE DUTY. HENCE, IT APPEARS THAT ATENCIO IS ENTITLED TO A REENLISTMENT BONUS, INCIDENT TO HIS ENLISTMENT IN THE REGULAR MARINE CORPS ON FEBRUARY 28, 1956, UNLESS HIS ACTIVE DUTY FOR TRAINING MAY NOT BE REGARDED AS "ACTIVE DUTY" AS THAT TERM IS USED IN SECTION 208 (E) (1).

ATENCIO WAS ORDERED TO ACTIVE DUTY FOR TRAINING UNDER THE ARMED FORCES RESERVE ACT OF 1952, AS AMENDED. SECTION 101 (B) OF THAT ACT PROVIDES, IN EFFECT, THAT SUCH DUTY IS NOT ACTIVE DUTY. IT IS OUR VIEW, THEREFORE, THAT THE CONCLUSION IS REQUIRED THAT SUCH TRAINING DUTY IS NOT ACTIVE DUTY WITHIN THE MEANING OF SECTION 208 (E) (1) OF THE CAREER COMPENSATION ACT, AS AMENDED. COMPARE THE LANGUAGE OF SECTION 201 (D) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 232 (D), WHICH INDICATES A DISTINCTION BETWEEN ACTIVE DUTY AND FULL-TIME TRAINING DUTY OR TRAINING DUTY WITH PAY.

WHILE IT WAS CONCLUDED IN OUR DECISION OF AUGUST 8, 1952, THAT A MEMBER WHO ENLISTED IN THE REGULAR ARMY AFTER HAVING SERVED ON ACTIVE DUTY AS A RESERVIST FOR ONE YEAR AND 24 DAYS, INCLUDING A 90-DAY PERIOD OF ACTIVE DUTY TRAINING, HAD SERVED OVER ONE YEAR ON "EXTENDED ACTIVE DUTY" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 207 (B) (2) OF THE 1949 ACT, THAT DECISION RELATED TO A PERIOD OF DUTY PRIOR TO THE ENACTMENT OF THE ARMED FORCES RESERVE ACT OF 1952 AND THERE WAS NOT THERE INVOLVED A STATUTORY PROVISION SUCH AS SECTION 101 (B) OF THE 1952 ACT, WHICH IN DEFINING ,ACTIVE DUTY," EXPRESSLY EXCLUDES "ACTIVE DUTY FOR TRAINING.' HENCE, THAT DECISION IS NOT CONSIDERED AS FURNISHING A PROPER BASIS FOR A CONCLUSION DIFFERENT FROM THAT REACHED ABOVE.

IT HAS BEEN NOTED THAT PARAGRAPH 1-1 (3), ENCLOSURE (2) TO MARINE CORPS MEMORANDUM NO. 71-55, DATED SEPTEMBER 15, 1955, PROVIDES THAT ENLISTED RESERVISTS WHO ENLIST IN THE REGULAR MARINE CORPS WHILE UNDERGOING SIX MONTHS' TRAINING, ARE NOT ENTITLED TO A REENLISTMENT BONUS. IT IS BELIEVED THAT SUCH DIRECTIVE CORRECTLY EXPRESSES THE INTENT OF THE CONGRESS. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO CREDIT PRIVATE ATENCIO WITH A REENLISTMENT BONUS AS A RESULT OF HIS ENLISTMENT IN THE REGULAR MARINE CORPS ON FEBRUARY 28, 1956.