B-130809, APRIL 23, 1957, 36 COMP. GEN. 727

B-130809, APRIL 23, 1957, 36 COMP. GEN. 727

MILITARY PERSONNEL - EXTENSION OF ENLISTMENTS FOR SHORT PERIODS - MUSTERING-OUT PAY - LEAVE PAYMENTS ENLISTED MEMBERS OF THE REGULAR ARMY OR REGULAR MARINE CORPS WHO, ON EXPIRATION OF ENLISTMENTS, EXTEND THEIR ENLISTMENTS FOR PERIODS OF LESS THAN 1 YEAR, PURSUANT TO SECTION 2 OF THE ACT OF JULY 12, 1955, OR 10 U.S.C. 5539, AS CHANGED BY SECTION 1 OF THE 1955 ACT, ARE REGARDED AS HAVING BEEN DISCHARGED AND REENLISTED FOR ENTITLEMENT TO MUSTERING-OUT PAY. MEMBERS OF REGULAR COMPONENTS OF THE UNIFORMED SERVICES WHO EXTEND THEIR ENLISTMENTS FOR PERIODS OF LESS THAN 1 YEAR, PURSUANT TO SECTION 2 OF THE ACT OF JULY 12, 1955, OR 10 U.S.C. 5539, AS CHANGED BY SECTION 1 OF THE 1955 ACT, ARE ENTITLED TO THE SAME PAY AND ALLOWANCES, INCLUDING A CASH SETTLEMENT FOR UNUSED LEAVE, AS THOUGH THEY HAD REENLISTED AT THE EXPIRATION OF A TERM OF ENLISTMENT.

TO THE SECRETARY OF DEFENSE, APRIL 23, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 19, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON THREE QUESTIONS RELATING TO MUSTERING-OUT PAY AND CASH SETTLEMENT FOR UNUSED LEAVE AS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 171 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE FIRST TWO QUESTIONS ARE AS FOLLOWS:

1. IS AN ENLISTED MEMBER OF THE REGULAR ARMY OR REGULAR MARINE CORPS WHO EXTENDS HIS ENLISTMENT FOR A PERIOD OF LESS THAN ONE YEAR UNDER THE APPLICABLE SECRETARIAL REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE ACT OF 12 JULY 1955 (69 STAT. 299) OR OF SECTION 5539, TITLE 10 U.S. CODE, AS ALTERED BY SECTION 1 OF THE ACT OF 12 JULY 1955 (SEE SECTION 49 (A) OF THE ACT OF 10 AUGUST 1956, 70A STAT. 640), ENTITLED TO OTHERWISE PROPER PAYMENT OF MUSTERING-OUT PAY BY REASON OF SUCH EXTENSION?

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, IS AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS WHO EXTENDS HIS ENLISTMENT FOR A PERIOD OF TWO OR MORE YEARS UNDER SECRETARIAL REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 5539, TITLE 10, U.S. CODE, ENTITLED TO OTHERWISE PROPER PAYMENT OF MUSTERING-OUT PAY BY REASON OF SUCH EXTENSION?

THE ACT OF AUGUST 22, 1912, AS AMENDED AND AS NOW CODIFIED IN 10 U.S.C. 5539, PERMITS A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS TO EXTEND HIS ENLISTMENT UNDER SECRETARIAL REGULATIONS FOR A PERIOD OF 1, 2, 3, OR 4 YEARS. AS CHANGED BY SECTION 1 OF THE ACT OF JULY 12, 1955, 69 STAT. 299, 34 U.S.C. 184, (SEE IN THIS CONNECTION SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640), AN EXTENSION FOR A PERIOD OF LESS THAN 1 YEAR IS NOW AUTHORIZED. SECTION 2 OF THE OF JULY 12, 1955, AUTHORIZES A SIMILAR EXTENSION OF ENLISTMENT FOR LESS THAN 1 YEAR BY ANY ENLISTED MEMBER OF THE ARMY OR AIR FORCE. BOTH 10 U.S.C. 5539 AND SECTION 2 OF THE LATTER ACT PROVIDE THAT A MEMBER WHO EXTENDS HIS ENLISTMENT IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD "REENLISTED.' WHILE THE WORDS "REGULARLY DISCHARGED AND" PRECEDE THE WORD ,REENLISTED" IN THE LATTER ACT, IT APPEARS THAT THEY WERE OMITTED AS SURPLUSAGE IN THE CODIFICATION IN 10 U.S.C. 5539. SEE PAGE 374, HOUSE REPORT NO. 970, TO ACCOMPANY H.R. 7049, LATER ENACTED INTO LAW AS THE ACT OF AUGUST 10, 1956.

SECTIONS 2 AND 3 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 691B, 691C, AUTHORIZE PAYMENT OF MUSTERING-OUT PAY TO ELIGIBLE PERSONNEL AT THE TIME OF FINAL DISCHARGE OR AT THE TIME OF DISCHARGE FOR THE PURPOSE OF ENLISTMENT OR REENLISTMENT IN A REGULAR COMPONENT OF THE ARMED FORCES. SIMILAR PROVISIONS ARE CONTAINED IN SECTIONS 502 (B) AND 503 OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 689, 690, 38 U.S.C. 1012 (B), 1013, WITH RESPECT TO THE MUSTERING-OUT PAY PAYABLE UNDER THE ACT. IT IS REPORTED THAT NONE OF THE SERVICES CONSIDER A DISCHARGE AT THE EXPIRATION OF A MEMBER'S ENLISTMENT FOLLOWED BY AN IMMEDIATE REENLISTMENT AS HIS FINAL DISCHARGE, AND WHILE SUCH DISCHARGE FOLLOWED BY REENLISTMENT WOULD NOT APPEAR TO CONSTITUTE A DISCHARGE FOR THE EXPRESS PURPOSE OF REENLISTMENT, IT IS STATED THAT THE SERVICES HAVE CONSIDERED THE DISCHARGE AS MADE FOR THAT PURPOSE WITHIN THE MEANING OF THOSE LAWS, SINCE THE LEGISLATIVE HISTORY OF SECTION 7 OF THE ACT OF OCTOBER 5, 1945, 59 STAT. 540, 38 U.S.C. 691 (A/--- WHICH ADDED THE LANGUAGE PERMITTING PAYMENT OF MUSTERING-OUT PAY UPON "DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT"--- INDICATES THAT THE 1944 ACT WAS AMENDED TO ACCELERATE PAYMENT OF MUSTERING-OUT PAY AND THAT THE ABOVE QUOTED LANGUAGE WAS ADDED "SO AS TO AUTHORIZE MUSTERING-OUT PAYMENTS TO BE RECEIVED BY ELIGIBLE PERSONS NOW IN THE SERVICE, IF THEY SO ELECT, WHEN THEY ENLIST, REENLIST, OR ARE APPOINTED IN THE REGULAR ARMY OR REGULAR NAVY.' SEE PAGE 7, SENATE REPORT NO. 589, AND PAGE 7, HOUSE REPORT NO. 943, TO ACCOMPANY H.R. 3951, 79TH CONGRESS.

THE TERM "PAY AND ALLOWANCES" AS USED IN 10 U.S.C. 5539 AND IN THE ACT OF JULY 12, 1955, IS VIEWED BY US AS INCLUDING MUSTERING-OUT PAY. SUCH PAY IS A DISCHARGE OR SEVERANCE TYPE OF PAY AND, UNLIKE A REENLISTMENT ALLOWANCE, IS NOT PAID AS AN INDUCEMENT TO REENTER THE SERVICE AFTER DISCHARGE, NOR IS IT CONTINGENT UPON AN EXTENSION OF ENLISTMENT OR REENLISTMENT FOR ANY SPECIFIED PERIOD OF TIME. A REENLISTMENT ALLOWANCE IS PAID UPON REENLISTMENT AND WHEN AN ENLISTED MAN IN EXTENDING HIS ENLISTMENT DOES NOT OBLIGATE HIMSELF TO SERVE FOR AN ADDITIONAL PERIOD FOR WHICH AN ENLISTMENT WOULD BE PERMITTED, THERE APPEARS TO BE NO BASIS FOR REGARDING SUCH EXTENSION FOR A SHORTER PERIOD, AS THE EQUIVALENT OF A REENLISTMENT, SO AS TO GIVE RISE TO A RIGHT TO A REENLISTMENT ALLOWANCE. OUR DECISIONS SUCH AS 7 COMP. GEN. 439 AND 32 ID. 290, WHICH ARE BASED UPON THE CONCLUSION THAT IN ORDER FOR A RIGHT TO A REENLISTMENT ALLOWANCE TO ACCRUE, AN EXTENSION OF ENLISTMENT MUST BE FOR A PERIOD FOR WHICH AN ENLISTED MAN COULD REENLIST, ARE NOT FOR APPLICATION HERE.

THE MUSTERING-OUT PAYMENT ACT OF 1944 PLAINLY CONTEMPLATED THE PAYMENT OF MUSTERING-OUT PAY AT DATE OF FINAL DISCHARGE AND IN AMENDING THAT ACT TO PERMIT EARLIER PAYMENT ON "DISCHARGE OR RELEASE FOR THE PURPOSE OF ENLISTMENT, REENLISTMENT, OR APPOINTMENT" IN THE REGULAR ESTABLISHMENTS--- THE PURPOSE OF THE AMENDATORY ACT, AS EXPRESSED IN ITS TITLE, WAS " TO STIMULATE VOLUNTARY ENLISTMENTS IN THE REGULAR MILITARY AND NAVAL ESTABLISHMENTS OF THE UNITED STATES"--- IT APPEARS THAT THE CONGRESS INTENDED TO REMOVE THE INDUCEMENT OFFERED BY THE MUSTERING-OUT PAYMENT ACT TO FINAL TERMINATION OF A PERSON'S MILITARY SERVICE AND THUS TO ENCOURAGE CONTINUED MILITARY SERVICE BY THE ENLISTED MAN CONCERNED AFTER EXPIRATION OF HIS TERM OF ENLISTMENT. AS SO VIEWED, IT APPEARS IMMATERIAL FOR WHAT ADDITIONAL PERIOD AN ENLISTED MAN OBLIGATES HIMSELF TO SERVE AFTER EXPIRATION OF HIS ENLISTMENT. SINCE 10 U.S.C. 5539 AND SECTION 2 OF THE ACT OF JULY 12, 1955, AUTHORIZE AN EXTENSION OF ENLISTMENT FOR LESS THAN 1 YEAR AND BOTH APPEAR TO CONTEMPLATE PAYMENT OF THE SAME PAY AND ALLOWANCES IN SUCH CIRCUMSTANCES AS THOUGH THE ENLISTED MAN CONCERNED HAD BEEN DISCHARGED AND REENLISTED, IT IS CONCLUDED THAT THE ENLISTED MEN INVOLVED IN QUESTION 1 HAVE THE SAME RIGHT TO MUSTERING-OUT PAY AS THE ENLISTED MAN IN QUESTION 2.

IN VIEW OF THE ABOVE-QUOTED STATEMENTS APPEARING IN THE LEGISLATIVE HISTORY OF THE ACT OF OCTOBER 5, 1945, WE CANNOT CONCLUDE THAT THE VIEWS OF THE SERVICES, THAT A DISCHARGE AT THE EXPIRATION OF A MEMBER'S ENLISTMENT FOLLOWED BY AN IMMEDIATE REENLISTMENT IN A REGULAR COMPONENT IS A DISCHARGE FOR THE PURPOSE OF ENLISTMENT OR REENLISTMENT WITHIN THE MEANING OF PROVISIONS OF LAW RELATING TO MUSTERING-OUT PAY, ARE INCORRECT. ACCORDINGLY, AND SINCE THE ENLISTED MEN MENTIONED IN QUESTIONS 1 AND 2 ARE ENTITLED TO THE MUSTERING-OUT PAY WHICH WOULD HAVE BEEN PAYABLE IF THEY HAD BEEN DISCHARGED, BOTH QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.

3. ARE THE MEMBERS CONSIDERED IN QUESTIONS 1 AND 2 ENTITLED TO OTHERWISE PROPER CASH SETTLEMENT FOR UNUSED LEAVE BY REASON OF THEIR EXTENSIONS?

WHILE SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (C), BARS CASH SETTLEMENT FOR UNUSED LEAVE STANDING TO AN ENLISTED MAN'S CREDIT AT THE TIME OF HIS DISCHARGE IF HE IS DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT IN THE SAME BRANCH OF THE ARMED FORCES, SUCH PROVISION OF LAW DOES NOT AFFECT MEMBERS OF A REGULAR COMPONENT UPON EXTENSION OF ENLISTMENT SINCE IN SUCH CASES THEY ARE ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH THEY HAD REENLISTED AT THE EXPIRATION OF TERM OF ENLISTMENT AND A DISCHARGE AT EXPIRATION OF ENLISTMENT FOLLOWED BY REENLISTMENT IS NOT REGARDED AS A DISCHARGE FOR THE PURPOSE OF ENLISTMENT WITHIN THE MEANING OF THAT PROVISION OF LAW. COMP. GEN. 103. THE MEMBERS HERE INVOLVED BEING ENTITLED TO THE SAME PAY AND ALLOWANCES AS IF THEY HAD SERVED THE FULL TERM OF THEIR ENLISTMENTS, INCLUDING CASH SETTLEMENT FOR UNUSED LEAVE, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE. COMPARE 30 COMP. GEN. 280.