B-148778, JULY 11, 1962, 42 COMP. GEN. 29

B-148778, JULY 11, 1962, 42 COMP. GEN. 29

GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT - EFFECT ON REENLISTMENT GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT SECOND ENLISTMENT EFFECT A 6-YEAR REENLISTMENT ON OCTOBER 14, 1955, BY A MARINE CORPS MEMBER UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY THE ACT OF JULY 16, 1954, 37 U.S.C. 239, AFTER THE VOLUNTARY EXTENSION OF A PREVIOUS ENLISTMENT FOR 2 SUCCEEDING 1-YEAR PERIODS, ONE PRIOR AND THE OTHER SUBSEQUENT TO THE 1954 ACT, ENTITLES THE MEMBER TO A REENLISTMENT BONUS ON THE BASIS OF A FIRST REENLISTMENT UNDER SECTION 208, THE REQUIREMENT OF THE ACT OF AUGUST 10, 1956, CODIFYING THE ACT OF AUGUST 22, 1912, 10 U.S.C. 5539 (B), THAT ALL EXTENSIONS OF AN ENLISTMENT ARE REQUIRED TO BE CONSIDERED AS A CONTINUOUS EXTENSION NOT AFFECTING THE 2 CONSECUTIVE 1- YEAR EXTENSIONS MADE PRIOR TO THE 1956 ACT, WHICH REMAIN ONLY 1-YEAR ENLISTMENTS THAT DO NOT SATISFY THE REQUIREMENT OF SECTION 208 THAT VOLUNTARY ENLISTMENTS BE MADE FOR 2 OR MORE YEARS. A 2-YEAR EXTENSION OF AN ENLISTMENT BY A MEMBER OF THE UNIFORMED SERVICES PRIOR TO THE RULE IN 10 U.S.C. 5539 (B), ENACTED INTO LAW BY THE ACT OF AUGUST 10, 1956, TO PROVIDE THAT ALL EXTENSIONS OF AN ENLISTMENT ARE TO BE CONSIDERED AS ONE CONTINUOUS EXTENSION, WHICH FOLLOWED TWO 1-YEAR EXTENSIONS, ONE PRIOR AND THE OTHER SUBSEQUENT TO THE ACT OF JULY 16, 1954, 37 U.S.C. 239, ADDING SECTION 208 TO THE CAREER COMPENSATION ACT OF 1949, COULD BE CONSIDERED BY THE MEMBER AS AN EXTENSION OF THE PREVIOUS TWO 1-YEAR EXTENSIONS ENTITLING HIM TO A BONUS COMPUTED ON THE BASIS OF A 4-YEAR REENLISTMENT UNDER SECTION 207 (A), LESS PRIOR PAYMENTS, OR HE COULD RETAIN THE AMOUNTS RECEIVED UNDER SECTION 207 AND ELECT TO BE PAID ON THE BASIS OF A FIRST ENLISTMENT FOR 2 YEARS UNDER SECTION 208, THE 2- YEAR ENLISTMENT EXTENSION SATISFYING THE REENLISTMENT REQUIREMENT OF SECTION 208 THAT THE ENLISTMENT EXTENSION BE FOR 2 OR MORE YEARS. COMP. GEN. 527, MODIFIED.

TO THE SECRETARY OF THE NAVY, JULY 11, 1962:

REFERENCE IS MADE TO OUR DECISION OF MARCH 20, 1961, 40 COMP. GEN. 527,ADDRESSED TO YOU, RELATIVE TO SEVERAL QUESTIONS RAISED UNDER OUR DECISIONS OF APRIL 18, 1960, 39 COMP. GEN. 711, AND JULY 18, 1960, 40 COMP. GEN. 14, INVOLVING THE ENTITLEMENT OF MEMBERS OF THE NAVAL ESTABLISHMENT TO REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY THE ACT OF JULY 16, 1954, 68 STAT. 488, 37 U.S.C. 239.

WE SAID IN 40 COMP. GEN. 527 THAT, WHERE A MEMBER EXTENDS HIS ENLISTMENT FOR 1 YEAR PRIOR TO JULY 16, 1954, AND REEXTENDS FOR AN ADDITIONAL YEAR AFTER THAT DATE, THE EXTENSIONS WOULD HAVE CONSTITUTED A 2-YEAR REENLISTMENT UNDER SECTION 207 AND THAT, SINCE A CONSECUTIVE 2-YEAR EXTENSION MADE THEREAFTER WOULD OCCUR PRIOR TO AUGUST 10, 1956, THE MEMBER COULD ELECT TO CONSIDER THE LATER 2-YEAR EXTENSIONS AS AN EXTENSION OF THE PREVIOUS TWO 1-YEAR EXTENSIONS ENTITLING HIM TO THE BONUS COMPUTED ON A 4- YEAR BASIS UNDER SECTION 207 LESS THE PRIOR PAYMENTS, OR HE COULD ELECT TO RETAIN THE PRIOR PAYMENT UNDER SECTION 207 AND BE PAID ON THE BASIS OF A SECOND REENLISTMENT FOR 2 YEARS UNDER SECTION 208. THERE HAS NOW BEEN BROUGHT TO OUR ATTENTION BY THE HEAD, CLAIMS SECTION, EXAMINATION BRANCH, DISBURSING OFFICE, U.S. MARINE CORPS, A CASE INVOLVING A SIMILAR SITUATION, AND, UPON FURTHER CONSIDERATION, WE FIND IT NECESSARY TO MODIFY A PORTION OF OUR ANSWER TO QUESTION 2D IN 40 COMP. GEN. 527.

THE FACTS OF THE CASE BEFORE US ARE THAT, PRIOR TO THE EXPIRATION OF A 3- YEAR ENLISTMENT ENTERED INTO ON MARCH 13, 1951, THE MEMBER VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 1 YEAR EFFECTIVE MARCH 1, 1954. HE AGAIN EXTENDED HIS ENLISTMENT FOR 1 YEAR EFFECTIVE MARCH 1, 1955. FOR THESE EXTENSIONS HE WAS PAID A BONUS OF $40 UNDER THE PROVISIONS OF SECTION 207 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 238. ON OCTOBER 14, 1955, THE MEMBER REENLISTED FOR 6 YEARS AND THEREAFTER $8.25 OF THE SECTION 207 REENLISTMENT BONUS WAS RECOUPED ON ACCOUNT OF THE UNEXPIRED PORTION OF HIS EXTENSION EFFECTIVE MARCH 1, 1955, AND HE WAS CREDITED WITH $959.40 AS FOR A FIRST REENLISTMENT FOR 6 YEARS UNDER SECTION 208, AS ADDED BY THE ACT OF JULY 16, 1954. A NOTICE OF EXCEPTION ISSUED BY OUR DEFENSE ACCOUNTING AND AUDITING DIVISION RAISED A CHARGE IN THE ACCOUNTS OF THE DISBURSING OFFICER FOR ONE-THIRD OF THIS BONUS, OR $319.80, ON THE GROUND THAT, SINCE THE MEMBER HAD BEEN CREDITED WITH A $40 REENLISTMENT BONUS, HIS REENLISTMENT ON OCTOBER 14, 1955, MUST BE CONSIDERED AS A SECOND REENLISTMENT UNDER SECTION 208, THE MEMBER'S PAY RECORDS WERE CHECKED FOR AMOUNTS TOTALING $319.80 AND THEREAFTER, ON THE BASIS OF 34 COMP. GEN. 615, 40 COMP. GEN. 14, AND 40 COMP. GEN. 527, PERMISSION WAS REQUESTED TO RECREDIT THE AMOUNT OF $319.80 TO THE PAY ACCOUNT OF THE MEMBER.

IN 34 COMP. GEN. 615 WE HELD THAT THE BONUS PAID TO AN ARMY MEMBER UNDER SECTION 207 (C), 37 U.S.C. 238 (C), FOR TWO CONSECUTIVE 1-YEAR EXTENSIONS OF A REENLISTMENT SHOULD NOT BE REGARDED AS A FIRST REENLISTMENT WITHIN THE PROVISIONS OF SECTION 208--- NOT HAVING SATISFIED THE DEFINITION IN SECTION 208 (E), 37 U.S.C. 239 (E/--- AND, THEREFORE, A SUBSEQUENT REENLISTMENT WITHIN THE PROVISIONS OF SECTION 208 SHOULD BE REGARDED AS A FIRST REENLISTMENT UNDER THAT SECTION.

WITH REGARD TO NAVY MEMBERS, THE ACT OF AUGUST 22, 1912, 37 STAT. 331, 34 U.S.C. 184 (1952 ED.), PROVIDED THAT THE TERM OF ENLISTMENT OF ANY ENLISTED MAN IN THE NAVY OR MARINE CORPS COULD BE VOLUNTARILY EXTENDED FOR A PERIOD OF 1, 2, 3 OR 4 YEARS FROM THE DATE OF EXPIRATION OF THE THEN EXISTING TERM OF ENLISTMENT AND THAT ENLISTED MEN WHO EXTENDED THEIR ENLISTMENTS UNDER THE ACT SHOULD BE ENTITLED TO AND SHOULD RECEIVE THE SAME PAY AND ALLOWANCES IN ALL RESPECTS AS THOUGH REGULARLY DISCHARGED AND REENLISTED IMMEDIATELY UPON THE EXPIRATION OF THEIR TERM OF ENLISTMENT. IT HAS BEEN THAT SUCH AN EXTENSION WAS AN ENLISTMENT WITHIN THE PURVIEW OF SECTION 207 (A) OF THE 1949 ACT, AS AMENDED, 37 U.S.C. 238 (A), AND THAT WHERE A MEMBER VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 1 YEAR AND PRIOR TO THE EXPIRATION OF SUCH EXTENSION ENTERED INTO A SECOND AGREEMENT TO EXTEND HIS ENLISTMENT MAKING THE EXTENSIONS AGGREGATE 2 OR MORE YEARS, SUCH EXTENSIONS CONSTITUTED ONE REENLISTMENT FOR A LIKE PERIOD FOR THE PURPOSE OF ENTITLEMENT TO THE APPLICABLE LUMP-SUM BONUS PROVIDED IN SUBSECTION (A) OF SECTION 207. SEE 34 COMP. GEN. 323, 325, AND DECISIONS THERE CITED.

WHILE EXTENSIONS OF ENLISTMENTS UNDER THE 1912 ACT THUS WERE CONSIDERED REENLISTMENTS UNDER SECTION 207 (A), IT WAS NOT UNTIL THE EFFECTIVE DATE OF THE ACT OF AUGUST 10, 1956, 70A STAT. 320, CODIFYING THE 1912 ACT AS 10 U.S.C. 5539 (B), THAT ALL SUCH EXTENSIONS OF AN ENLISTMENT WERE REQUIRED TO BE CONSIDERED AS ONE CONTINUOUS EXTENSION. THEREFORE, ONLY THOSE EXTENSIONS EFFECTIVE AFTER AUGUST 9, 1956, WHICH ARE REQUIRED TO BE AND ARE COMBINED WITH AN EXTENSION MADE PRIOR TO THAT DATE, CONSTITUTE REENLISTMENTS WITHIN THE PURVIEW OF SECTION 208. FOR EXTENSIONS EFFECTIVE AFTER AUGUST 9, 1956, AGGREGATING TWO OR MORE YEARS, A MEMBER, IF HE ELECTS TO BE COVERED BY SECTION 208, IS ENTITLED TO THE APPROPRIATE REENLISTMENT BONUS PAYABLE UNDER THE TABLE SET OUT IN SECTION 208 (A), 37 U.S.C. 239 (A), AND ANY SUBSEQUENT REENLISTMENT WOULD, OF COURSE, BE PAID AS A SECOND SECTION 208 REENLISTMENT. TWO OR MORE CONSECUTIVE 1-YEAR EXTENSIONS MADE UNDER THE 1912 ACT PRIOR TO AUGUST 10, 1956, REMAIN ONLY 1 -YEAR REENLISTMENTS UNDER SECTION 208.

WHILE CONSECUTIVE 1-YEAR EXTENSIONS AGGREGATING 2 OR MORE YEARS MAY BE CONSIDERED, PRIOR TO AUGUST 10, 1956, AS CONSTITUTING ONE REENLISTMENT FOR A LIKE PERIOD FOR THE PURPOSE OF ENTITLEMENT TO A REENLISTMENT BONUS OF $40, $90, OR $160, AS APPLICABLE, UNDER SECTION 207 (A), SUCH 1-YEAR EXTENSIONS DO NOT SATISFY THE DEFINITION OF A REENLISTMENT UNDER SECTION 208, SINCE IN THAT SECTION "REENLISTMENT" MEANS "A VOLUNTARY EXTENSION OF AN ENLISTMENT FOR 2 OR MORE YEARS.'

ACCORDINGLY, IN THE SITUATION INVOLVED IN QUESTION 2D IN 40 COMP.GEN. 527 WHERE A 1-YEAR EXTENSION PRIOR TO JULY 16, 1954, AND A SECOND 1-YEAR EXTENSION AFTER THAT DATE WERE FOLLOWED BY A 2-YEAR EXTENSION, IT IS NOW OUR VIEW THAT THE MEMBER COULD CONSIDER THE LAST EXTENSION AS AN EXTENSION OF THE PREVIOUS TWO 1-YEAR EXTENSIONS ENTITLING HIM TO A BONUS COMPUTED ON A 4-YEAR REENLISTMENT UNDER SECTION 207 (A), LESS PRIOR PAYMENTS, OR HE COULD RETAIN THE AMOUNTS RECEIVED UNDER SECTION 207 AND ELECT TO BE PAID ON THE BASIS OF A FIRST REENLISTMENT FOR 2 YEARS UNDER SECTION 208--- THERE BEING FOR COUNTING FOR THE PURPOSE OF DETERMINING THE "ENLISTMENT INVOLVED" ACCORDING TO THE TABLE IN SECTION 208 (A) ONLY THOSE EXTENSIONS (REENLISTMENTS) PREVIOUSLY MADE FOR WHICH A BONUS WAS PAID UNDER SECTION 207 WHICH SATISFIED THE STRICT DEFINITION OF A ,REENLISTMENT" CONTAINED IN SECTION 208 ADDED BY THE 1954 ACT. OF COURSE, ANY BONUS PREVIOUSLY RECEIVED BY A MEMBER IS TO BE COUNTED IN DETERMINING THE CUMULATIVE MAXIMUM AMOUNT WHICH MAY BE PAID UNDER SECTION 208 (C), 37 U.S.C. 239 (C). IN LINE WITH THIS MODIFIED VIEW, THE MARINE MEMBER REFERRED TO ABOVE WAS ENTITLED, UPON HIS 6-YEAR REENLISTMENT ON OCTOBER 14, 1955, FOLLOWING TWO 1-YEAR EXTENSIONS OF HIS FORMER ENLISTMENT, ONE PRIOR TO JULY 16, 1954, AND THE OTHER SUBSEQUENT TO THAT DATE, TO A REENLISTMENT BONUS ON THE BASIS OF A FIRST REENLISTMENT UNDER SECTION 208, AND THE AMOUNT OF $319.80 CHECKED AGAINST HIS PAY MAY BE RECREDITED TO HIS ACCOUNT.

THE ANSWER TO QUESTION 2D IN 40 COMP. GEN. 527 IS MODIFIED TO CONFORM WITH THE CONCLUSIONS STATED HEREIN.