B-137730, NOV 13, 1958

B-137730, NOV 13, 1958

PRECIS-UNAVAILABLE

MAJOR R.M. GLOVER, USAF:

BY LETTER OF OCTOBER 21, 1958, THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE, COMPTROLLER, U.S. AIR FORCE, FORWARDED YOUR LETTER OF SEPTEMBER 8, 1958, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION RELATIVE TO THE LEGALITY OF PAYING MASTER SERGEANT MICHAEL BITSKO, AF 689 7637, THE DIFFERENCE BETWEEN THE REENLISTMENT BONUS PAID HIM 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, AND THE AMOUNT AUTHORIZED TO BE PAID UNDER SECTION 207 OF THAT ACT. IT IS REPORTED THAT YOUR REQUEST WAS APPROVED FOR SUBMISSION BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS AIR FORCE REQUEST NO. 375.

IT APPEARS THAT SERGEANT BITSKO WAS DISCHARGED ON OCTOBER 3, 1957, AND REENLISTED IN THE U.S. AIR FORCE FOR FOUR YEARS ON OCTOBER 4, 1957.

IT FURTHER APPEARS THAT UPON REENLISTMENT HE WAS PAID A REENLISTMENT BONUS FOR A SECOND REENLISTMENT UNDER THE PROVISIONS OF SECTION 208 OF THE 1949 ACT, AS ADDED BY SECTION 2 OF THE 1954 ACT. HIS REENLISTMENT BONUS WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 11427, AFM 173 -20, SINCE HE REENLISTED FOR A PERIOD WHICH WOULD EXTEND THE LENGTH OF HIS ACTIVE FEDERAL SERVICE BEYOND 20 YEARS. IT IS REPORTED THAT THE AIRMAN RECEIVED $48.44 REENLISTMENT BONUS WHEREAS HE WOULD HAVE RECEIVED A REENLISTMENT BONUS OF $160 HAD HE ELECTED TO BE COVERED BY SECTION 207. HE CLAIMS THAT HE WAS NOT AWARE OF THE DIFFERENCE IN AMOUNTS HE COULD RECEIVE, AND THAT HE WAS NOT PROPERLY INFORMED IN THAT RESPECT.

IN DECISION OF DECEMBER 28, 1955, B-123370, 35 COMP. GEN. 371, IT WAS HELD THAT THE ACCEPTANCE OF A REENLISTMENT BONUS COMPUTED UNDER THE PROVISIONS OF SECTION 207 IS NOT AN ELECTION, AND SUB-SECTION (E) OF THAT SECTION PLACES NO EXPRESS LIMIT UPON THE TIME WITHIN WHICH AN ELIGIBLE MEMBER MAY ELECT TO BE COVERED BY SECTION 208. IT WAS FURTHER HELD THAT THE STATUTE MUST BE TAKEN AS CONTEMPLATING THAT AN ELECTION MUST BE MADE SEASONABLY; THAT, THEREFORE, THE RIGHT OF ELECTION TO RECEIVE A REENLISTMENT BONUS UNDER SECTION 208 DOES NOT OUTLIVE THE CONTRACT ON WHICH IT IS BASED AND, HENCE, EXPIRES UPON THE MEMBER'S DISCHARGE FROM THE REENLISTMENT WITH RESPECT TO WHICH THE RIGHT OF ELECTION AROSE.

SUBSECTION (E) OF SECTION 207 (68 STAT. 488) MAKES THAT SECTION INAPPLICABLE TO ANY MEMBER OF THE UNIFORMED SERVICE WHO HAS ELECTED TO BE COVERED BY SECTION 208 AND WHO IS OTHERWISE ELIGIBLE FOR THE BENEFITS OF THE LATTER SECTION. THERE IS NO AUTHORITY TO WAIVE THIS LIMITATION FOR THE PURPOSE OF ESTABLISHING ELIGIBILITY OF A PARTICULAR MEMBER TO RECEIVE ADDITIONAL REENLISTMENT BONUS. IT FOLLOWS THAT IF A MEMBER HAS MADE A VALID ELECTION TO RECEIVE, AND IS OTHERWISE ELIGIBLE TO RECEIVE THE BENEFITS OF SECTION 208, HE MAY NOT THEREAFTER BE PAID AN ADDITIONAL AMOUNT UNDER SECTION 207. HOWEVER, WHERE A MEMBER'S ELECTION IS NOT CLEARLY ESTABLISHED, HIS INTENT NECESSARILY MUST BE INFERRED FROM THE SURROUNDING CIRCUMSTANCES. IN THE INSTANT CASE THE COPY OF THE DD FORM 114 WHICH SERGEANT BITSKO SIGNED ON SEPTEMBER 26, 1957, STATES THAT HE ELECTED PAYMENT OF REENLISTMENT BONUS UNDER THE PROVISION OF PARAGRAPH 11425C, AFM 173-20. THAT PARAGRAPH PROVIDES, IF THE MEMBER IS OTHERWISE ELIGIBLE, FOR PAYMENT OF EITHER ENLISTMENT ALLOWANCE OR REENLISTMENT BONUS UNDER SECTION 207 OR REENLISTMENT BONUS UNDER SECTION 208. HENCE, SUCH STATEMENT IS AMBIGUOUS AS AN EXPRESSION OF HIS INTENTION. NOTHING ELSE ON THE FORM INDICATES THE SECTION UNDER WHICH HE ELECTED TO BE COVERED. THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT REASONABLY MAY BE ASSUMED THAT HE INTENDED TO ELECT TO BE PAID UNDER SECTION 207, THE SECTION WHICH WOULD GIVE HIM THE GREATER AMOUNT, ESPECIALLY SINCE HE WILL COMPLETE 20 YEARS OF SERVICE UNDER THE ENLISTMENT AND HENCE WOULD NOT BE ELIGIBLE FOR ANY FURTHER BONUS PAYMENTS IF HE ELECTED TO BE COVERED BY SECTION 208. VIEW THEREOF, AND SINCE THE MEMBER IS NOW SERVING UNDER THE REENLISTMENT CONTRACT ON WHICH THE PAYMENT IN QUESTION IS BASED, IF OTHERWISE CORRECT, PAYMENT OF THE ADDITIONAL AMOUNT CLAIMED MAY BE MADE IN THIS CASE. COMPARE 37 COMP. GEN. 80, 85.

THE PAPERS FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH.