B-150599, MARCH 4, 1963, 42 COMP. GEN. 447

B-150599, MARCH 4, 1963, 42 COMP. GEN. 447

ENLISTMENTS - EXTENSION - DISCHARGE BEFORE EXPIRATION AND REENLISTMENT - EFFECT ON BENEFITS. ENLISTMENT - EXTENSION - DISCHARGE BEFORE EXPIRATION AND REENLISTMENT AN ENLISTED AIR FORCE MEMBER WHO UPON CANCELLATION OF A VOLUNTARY 1 YEAR EXTENSION OF A 4-YEAR ENLISTMENT FOR THE PURPOSE OF IMMEDIATE REENLISTMENT IS DISCHARGED AT THE EXPIRATION OF THE 4-YEAR TERM OF SERVICE IS ENTITLED TO PAYMENT FOR ACCRUED LEAVE AND TRAVEL ALLOWANCE, THE MEMBER NOT HAVING COMMENCED SERVICE UNDER THE EXTENSION HE IS CONSIDERED DISCHARGED AT THE EXPIRATION OF A TERM OF SERVICE RATHER THAN FOR THE PURPOSE OF ENLISTMENT, EVEN THOUGH THE CANCELLATION OF THE EXTENSION WAS TO PERMIT THE MEMBER TO REENLIST IMMEDIATELY FOLLOWING HIS DISCHARGE; HOWEVER, WHEN SERVICE COMMENCES UNDER AN EXTENDED ENLISTMENT FOLLOWING THE NORMAL DATE OF EXPIRATION OF THE ENLISTMENT, THEN THE EXTENSION HAS BECOME FULLY EFFECTIVE AND A DISCHARGE BASED ON A CANCELLATION OF THE EXTENSION BEFORE THE COMPLETION OF THE OBLIGATED PERIOD OF SERVICE IN ORDER TO REENLIST IS A DISCHARGE FOR THE PURPOSE OF CONTINUING IN SERVICE WITHIN THE CONTEMPLATION OF PARAGRAPH 4157-4, JOINT TRAVEL REGULATIONS, AND 37 U.S.C. 501 (B) (1), AND PAYMENT FOR ACCRUED LEAVE AND TRAVEL ALLOWANCE IS NOT AUTHORIZED. ALTHOUGH ARMY AND AIR FORCE ENLISTED MEMBERS NOW ARE PERMITTED UNDER THE ACT OF JULY 12, 1955, 10 U.S.C. 3263 AND 8263, TO EXTEND THEIR ENLISTMENTS FOR LESS THAN 1 YEAR AND TO RECEIVE PAY AND ALLOWANCES, PURSUANT TO 37 U.S.C. 906, AS THOUGH THEY HAD REENLISTED, THE ACT NOT HAVING EXTENDED TO ARMY AND AIR FORCE MEMBERS THE PROVISION IN THE 1912 ACT, 10 U.S.C. 6295, LEAVING ANY RIGHT, PRIVILEGE, OR BENEFIT UNAFFECTED BY A DISCHARGE BEFORE COMPLETION OF AN ENLISTMENT OR AN EXTENDED ENLISTMENT, EXCEPT THAT OF ENTITLEMENT TO PAY AND ALLOWANCES FOR A PERIOD NOT SERVED, A MEMBER WHO VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 5 MONTHS AND WAS SERVING IN THE EXTENSION PERIOD AT THE TIME OF DISCHARGE IS NOT DEEMED DISCHARGED AT THE EXPIRATION OF A TERM OF SERVICE BUT FOR THE PURPOSE OF REENLISTMENT AND, THEREFORE, PAYMENT OF TRAVEL ALLOWANCE AND UNUSED ACCRUED LEAVE IS UNAUTHORIZED; HOWEVER, THE MEMBER IS ENTITLED TO A LUMP-SUM PAYMENT FOR HIS ACCRUED LEAVE AT THE TIME THE EXTENSION OF HIS ENLISTMENT BECAME EFFECTIVE, UNLESS HE ELECTED TO CARRY THE LEAVE FORWARD.

TO COLONEL C. G. GEALTA, DEPARTMENT OF THE ARMY, MARCH 4, 1963:

THERE WAS RECEIVED BY 7TH INDORSEMENT DATED JANUARY 10, 1963, FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, YOUR LETTER DATED JUNE 13, 1962, REQUESTING DECISION AS TO WHETHER PAYMENT FOR TRAVEL ALLOWANCE ON SEPARATION AND LUMP-SUM PAYMENT FOR UNUSED ACCRUED LEAVE MAY BE MADE TO AIRMAN SECOND CLASS NORMAN M. FLETCHER, AF 13 332 455, UPON DISCHARGE AND REENLISTMENT. THE REQUEST WAS ALLOCATED D.O. NUMBER A-683 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AIRMAN FLETCHER ENLISTED ON FEBRUARY 18, 1958, FOR A PERIOD OF 4 YEARS AND VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 1 YEAR. HE WAS DISCHARGED FEBRUARY 17, 1962, AT EXPIRATION OF 4-YEAR TERM OF SERVICE UPON HIS REQUEST TO CANCEL HIS EXTENSION FOR THE PURPOSE OF IMMEDIATE REENLISTMENT. HIS DISCHARGE WAS APPROVED PURSUANT TO AIR FORCE REGULATION 39-10 AS AT EXPIRATION OF TERM OF SERVICE. HE REENLISTED ON FEBRUARY 18, 1962.

BY 3D INDORSEMENT OF AUGUST 9, 1962, HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER EXPRESSED THE OPINION THAT PAYMENT FOR TRAVEL ALLOWANCE ON SEPARATION AND FOR UNUSED ACCRUED LEAVE WOULD BE PROPER IN FLETCHER'S CASE FOR THE REASON THAT PARAGRAPH 45F, AIR FORCE MANUAL 35-22, PROVIDES THAT AN ENLISTED PERSON, DISCHARGED ON OR AFTER EXPIRATION OF HIS NORMAL TERM OF SERVICE, WHO REENLISTS THE FOLLOWING DAY MAY BE AUTHORIZED A CASH SETTLEMENT FOR UNUSED ACCRUED LEAVE OR MAY ELECT TO CARRY OVER HIS LEAVE INTO THE NEXT PERIOD OF SERVICE.

YOUR DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT FOR TRAVEL ALLOWANCE UPON SEPARATION AND FOR UNUSED ACCRUED LEAVE ARISES FROM THE FACT THAT PARAGRAPH 4157-4, JOINT TRAVEL REGULATIONS, PROVIDES THAT A MEMBER WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY (OTHER THAN EXPIRATION OF ENLISTMENT OR PRESCRIBED TERM OF SERVICE) IN THE SAME OR ANOTHER STATUS OR IN ANOTHER OF THE UNIFORMED SERVICES, IS NOT ENTITLED TO TRAVEL ALLOWANCES IN CONNECTION THEREWITH. ALSO, YOU POINT OUT THAT PARAGRAPH 21383B, AIR FORCE MANUAL 177-105, PROVIDES THAT AIRMEN DISCHARGED UNDER ANY PROVISION OF REGULATIONS WHICH OBLIGATES THE AIRMAN TO IMMEDIATELY REENLIST ARE ENTITLED TO LUMP-SUM PAYMENT FOR ACCRUED LEAVE AT TIME OF ULTIMATE SEPARATION. YOU SAY IT IS APPARENT THAT THE AIRMAN WAS SEPARATED FOR THE PURPOSE OF REENLISTING AND THAT HIS REQUEST FOR CANCELLATION OF HIS EXTENSION WOULD NOT HAVE BEEN APPROVED HAD HE NOT OBLIGATED HIMSELF TO REENLIST IMMEDIATELY FOLLOWING DISCHARGE, AND THAT HIS DISCHARGE PRIOR TO COMPLETION OF THE EXTENSION PERIOD CANNOT BE CONSIDERED AN ULTIMATE SEPARATION.

A MEMBER OF THE ARMED FORCES IS ENTITLED UNDER THE PERTINENT STATUTE, 37 U.S.C. 501, TO COMPENSATION FOR UNUSED ACCRUED LEAVE (NOT IN EXCESS OF 60 DAYS) TO HIS CREDIT AT THE TIME OF HIS DISCHARGE, EXCEPT INSOFAR AS HERE CONCERNED, NO CASH SETTLEMENT IS AUTHORIZED TO ANY MEMBER WHO IS DISCHARGED FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT IN HIS RESPECTIVE BRANCH OF THE ARMED FORCES ON THE DAY FOLLOWING THE DATE OF DISCHARGE. SEE 37 U.S.C. 501 (B) (1). A DISCHARGE AT EXPIRATION OF A PRESCRIBED TERM OF SERVICE FOLLOWED BY ENLISTMENT IS NOT, HOWEVER, REGARDED AS A DISCHARGE FOR PURPOSE OF ENLISTMENT WITHIN THE MEANING OF THAT PROVISION. 30 COMP. GEN. 103. WHILE PARAGRAPH 4157-4 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT A MEMBER RELIEVED FROM ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS IS NOT ENTITLED TO TRAVEL ALLOWANCE, THAT PROVISION DOES NOT PRECLUDE THE PAYMENT OF SUCH ALLOWANCE WHEN THE RELEASE FROM ACTIVE DUTY IS AT THE EXPIRATION OF HIS PRESCRIBED TERM OF SERVICE. FURTHER, PARAGRAPH 21383B, AIR FORCE MANUAL, 177-105, PROVIDES THAT DISCHARGE AT THE EXPIRATION OF TERM OF SERVICE WILL NOT BE CONSIDERED A DISCHARGE FOR THE PURPOSE OF IMMEDIATE REENLISTMENT EVEN THOUGH AN AIRMAN MAY REENLIST WITHOUT A BREAK IN SERVICE.

IN CONNECTION WITH REENLISTMENT BONUSES IT HAS BEEN HELD THAT A VOLUNTARY EXTENSION OF AN ENLISTMENT FOR 2 YEARS OR MORE IS TO BE CONSIDERED A "REENLISTMENT" FOR THE PURPOSE OF RECEIVING A REENLISTMENT BONUS UNDER 37 U.S.C. 308 AND REGARDLESS OF THE DATE ON WHICH THE EXTENSION AGREEMENT MAY BE SIGNED BY THE MEMBER SERVICE UNDER SUCH AGREEMENT WOULD NOT BEGIN AND, THEREFORE, THE "REENLISTMENT" WOULD NOT BECOME EFFECTIVE FOR BONUS PURPOSES UNTIL AFTER THE NORMAL DATE OF EXPIRATION OF THE ENLISTMENT CURRENT WHEN THE AGREEMENT WAS SIGNED. 35 COMP. GEN. 663; 39 ID. 455. WHILE A MEMBER WHO ENTERS INTO AN AGREEMENT TO EXTEND HIS ENLISTMENT MAY BE OBLIGATED UNDER SUCH AGREEMENT FROM THE DATE IT IS ENTERED INTO, SERVICE UNDER THE AGREEMENT DOES NOT COMMENCE UNTIL AFTER THE EXPIRATION OF THE ENLISTMENT CURRENT WHEN THE AGREEMENT IS SIGNED. CONSEQUENTLY, IT IS OUR VIEW THAT IF THE EXTENSION AGREEMENT IS CANCELED BEFORE THE MEMBER COMMENCES TO SERVE THEREUNDER AND HE IS DISCHARGED AT THE CONCLUSION OF HIS CURRENT ENLISTMENT, IT IS TO BE REGARDED AS A DISCHARGE AT EXPIRATION OF TERM OF SERVICE, RATHER THAN FOR THE PURPOSE OF ENTERING INTO AN ENLISTMENT EVEN THOUGH THE CANCELLATION OF THE AGREEMENT WAS TO PERMIT THE MEMBER TO REENLIST IMMEDIATELY FOLLOWING HIS DISCHARGE. IN SUCH CIRCUMSTANCES, THE MEMBER IS ENTITLED TO PAYMENT FOR ACCRUED LEAVE AND TRAVEL ALLOWANCE IF OTHERWISE PROPER.

IF THE MEMBER ACTUALLY COMMENCES SERVICE UNDER THE EXTENSION, HOWEVER, AFTER THE NORMAL DATE OF EXPIRATION OF THE ENLISTMENT WHICH HE EXTENDED, THEN THE EXTENSION HAS BECOME FULLY EFFECTIVE AND HIS OBLIGATED PERIOD OF SERVICE IS THE PERIOD OF HIS ENLISTMENT AS EXTENDED. IF THE EXTENSION IS THEN CANCELED AND HE IS DISCHARGED BEFORE COMPLETING THE EXTENSION IN ORDER TO REENLIST, IT SEEMS CLEAR THAT THE DISCHARGE IS FOR THE PURPOSE OF CONTINUING IN THE SERVICE WITHIN THE CONTEMPLATION OF PARAGRAPH 4157-4, JOINT TRAVEL REGULATIONS, AND 37 U.S.C. 501 (B) (1). IN SUCH CIRCUMSTANCES, PAYMENT OF TRAVEL ALLOWANCE AND FOR ACCRUED LEAVE TO A MEMBER OF THE ARMY OR AIR FORCE IS NOT AUTHORIZED.

WHILE FLETCHER VOLUNTARILY EXTENDED HIS ENLISTMENT BY 1 YEAR, SINCE THE EXTENSION WAS CANCELED UPON DISCHARGE AT EXPIRATION OF THE NORMAL TERM OF HIS ENLISTMENT HE DID NOT ACTUALLY SERVE ANY TIME UNDER THE VOLUNTARY EXTENSION AND FOR THAT REASON IT NEED NOT BE REGARDED AS AFFECTING RIGHTS WHICH ACCRUE UPON DISCHARGE AT EXPIRATION OF NORMAL TERM OF SERVICE.

SINCE FLETCHER WAS DISCHARGED AT EXPIRATION OF ENLISTMENT HIS REENLISTMENT THE NEXT DAY DID NOT OPERATE TO DEPRIVE HIM OF PAYMENT OF TRAVEL ALLOWANCE AND FOR UNUSED ACCRUED LEAVE UPON DISCHARGE. 30 COMP. GEN. 103; ID. 531. ACCORDINGLY, THE VOUCHER IN FAVOR OF FLETCHER IS RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED, IF OTHERWISE CORRECT.

THE PAPERS TRANSMITTED TO THIS OFFICE WITH YOUR REQUEST FOR DECISION IN THE CASE OF FLETCHER INCLUDED YOUR LETTER OF JANUARY 24, 1962, MAKING LIKE REQUEST IN THE CASES OF STAFF SERGEANT WILLIAM C. DYE, AF 15273293, AND AIRMAN SECOND CLASS CHARLES F. TAPPAN, AF 11343528. SINCE IT APPEARS FROM 5TH INDORSEMENT DATED APRIL 23, 1962, BY HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER THAT ACTION HAS BEEN TAKEN BY THAT HEADQUARTERS TO EFFECT PAYMENT ON THOSE CASES, YOU ARE NOT ENTITLED TO A DECISION AS TO DYE AND TAPPAN. HOWEVER, THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE HAS INFORMALLY EXPRESSED THE DESIRE THAT OUR DECISION INCLUDE COMMENT AS TO THE DYE AND TAPPAN CASES.

THE RECORD SHOWS THAT TAPPAN ENLISTED ON JANUARY 16, 1958, FOR A PERIOD OF 4 YEARS AND VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 1 YEAR. HE WAS DISCHARGED JANUARY 15, 1962, HIS ORIGINAL EXPIRATION OF TERM OF SERVICE DATE, UPON HIS REQUEST TO CANCEL HIS EXTENSION FOR THE PURPOSE OF REENLISTMENT. PRESUMABLY HE REENLISTED THE NEXT DAY. SINCE HIS CASE IS IDENTICAL WITH FLETCHER-S, IT APPEARS THAT PAYMENT OF TRAVEL ALLOWANCE ON SEPARATION AND FOR UNUSED ACCRUED LEAVE WAS PROPER.

AS TO DYE, THE RECORD SHOWS HE ENLISTED ON AUGUST 22, 1955, FOR A PERIOD OF 6 YEARS AND VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 5 MONTHS. HE WAS DISCHARGED ON DECEMBER 10, 1961, AFTER SERVING 6 YEARS AND 111 DAYS UPON HIS REQUEST TO CANCEL HIS EXTENSION FOR THE PURPOSE OF IMMEDIATE REENLISTMENT. HE REENLISTED ON DECEMBER 11, 1961.

THE ACT OF AUGUST 22, 1912, AS AMENDED AND NOW CODIFIED IN 10 U.S.C. 5539, PERMITS A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS TO EXTEND HIS ENLISTMENT UNDER SECRETARIAL REGULATIONS FOR PERIODS OF 1, 2, 3, OR 4 YEARS. AS CHANGED BY SECTION 1 OF THE ACT OF JULY 12, 1955, CH. 334, 69 STAT. 299, 34 U.S.C. 184 (1952 ED., SUPP. V), EXTENSIONS FOR PERIODS OF LESS THAN 1 YEAR ARE NOW AUTHORIZED. SECTION 2 OF THE ACT OF JULY 12, 1955, 10 U.S.C. 3263 AND 8263, AUTHORIZES A SIMILAR EXTENSION OF ENLISTMENT FOR LESS THAN 1 YEAR BY ANY ENLISTED MEMBER OF THE ARMY OR AIR FORCE. PROVISIONS RESPECTING PAY AND ALLOWANCES INCIDENT TO EXTENSIONS OF ENLISTMENTS UNDER THE 1912 ACT AS AMENDED BY THE 1955 ACT ARE NOW CODIFIED IN 37 U.S.C. 906 WHICH PROVIDES THAT A MEMBER WHO EXTENDS HIS ENLISTMENT UNDER SECTIONS 3263, 5539 OR 8263 OF TITLE 10 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. WHILE THE 1955 ACT AUTHORIZED EXTENSIONS OF ENLISTMENTS FOR LESS THAN 1 YEAR IN THE SERVICES MENTIONED ABOVE AND EXTENDED TO THE ARMY AND THE AIR FORCE THE PREVIOUSLY EXISTING PROVISION FOR THE REGULAR NAVY AND REGULAR MARINE CORPS THAT A MEMBER WHO EXTENDS HIS ENLISTMENT IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED, IT DID NOT EXTEND TO THE ARMY AND AIR FORCE THE PROVISION IN THE 1912 ACT, 10 U.S.C. 6295, THAT ANY ENLISTED MEMBER OF THE REGULAR NAVY MAY BE DISCHARGED WITHIN 3 MONTHS BEFORE THE EXPIRATION OF THE TERM OF HIS ENLISTMENT OR EXTENDED ENLISTMENT AND THAT A DISCHARGE UNDER THAT SECTION DOES NOT AFFECT ANY RIGHT, PRIVILEGE OR BENEFIT THAT THE MEMBER WOULD HAVE HAD IF HE HAD COMPLETED HIS ENLISTMENT OR EXTENDED ENLISTMENT, EXCEPT THAT THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD NOT SERVED. THUS, IT DOES NOT APPEAR THAT A MEMBER OF THE ARMY OR AIR FORCE WHO ENTERS UPON AN EXTENSION OF ENLISTMENT AND IS DISCHARGED BEFORE THE EXPIRATION OF THE EXTENSION FOR THE PURPOSE OF REENLISTING IS ENTITLED TO THE BENEFITS HE WOULD HAVE RECEIVED HAD HE COMPLETED THE EXTENSION.

SINCE DYE VOLUNTARILY EXTENDED HIS ENLISTMENT FOR 5 MONTHS AND WAS SERVING IN SUCH EXTENSION AT THE TIME OF DISCHARGE, HIS DISCHARGE WAS NOT AT EXPIRATION OF TERM OF SERVICE AND WAS FOR THE PURPOSE OF REENLISTMENT. COMPARE 30 COMP. GEN. 531. THEREFORE, THE PAYMENT OF TRAVEL ALLOWANCE AND FOR UNUSED ACCRUED LEAVE INCIDENT TO DYE'S DISCHARGE ON DECEMBER 10, 1961, WAS NOT AUTHORIZED. HE WAS ENTITLED, HOWEVER, TO A LUMP-SUM PAYMENT FOR HIS ACCRUED LEAVE AT THE TIME THE EXTENSION OF HIS ENLISTMENT BECAME EFFECTIVE UNLESS HE ELECTED TO CARRY FORWARD SUCH LEAVE. 36 COMP. GEN. 727. CF. 35 COMP. GEN. 385.