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B-160311, OCT. 1, 1968

B-160311 Oct 01, 1968
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SECRETARY: FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 27. BASIC PAY AND APPLICABLE ALLOWANCES FOR UNUSED LEAVE AND REENLISTMENT BONUS MAY BE MADE TO ENLISTED MEMBERS OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO ARE APPOINTED TEMPORARY OFFICERS UNDER 10 U.S.C. 5596 IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED CONTROL NO. IN THE DECISION WE HELD THAT KRUEGER WAS ENTITLED TO PAYMENT OF ALL THE ITEMS IN QUESTION. THE ASSISTANT SECRETARY SAYS THAT IN CONSTRUING THE "SAVINGS" PROVISIONS OF LAWS APPLICABLE TO MEMBERS WITH PERMANENT ENLISTED STATUS WHO ARE TEMPORARILY APPOINTED TO WARRANT OR COMMISSIONED GRADE. THE ADMINISTRATIVE PRACTICE OF THE DEPARTMENT OF THE NAVY HAS BEEN TO CONSIDER AN ENLISTMENT WHICH EXPIRES WHILE A MEMBER IS SERVING AS A TEMPORARY OFFICER AS BEING CONTINUED UNDER 10 U.S.C. 5596 (F).

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B-160311, OCT. 1, 1968

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 27, 1968, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION WHETHER PAYMENT OF MILEAGE ALLOWANCE, BASIC PAY AND APPLICABLE ALLOWANCES FOR UNUSED LEAVE AND REENLISTMENT BONUS MAY BE MADE TO ENLISTED MEMBERS OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO ARE APPOINTED TEMPORARY OFFICERS UNDER 10 U.S.C. 5596 IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED CONTROL NO. SS-MC-1004 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN HIS LETTER THE ASSISTANT SECRETARY REFERS TO OUR DECISION OF JANUARY 17, 1967, B-160311, CONCERNING RONALD L. KRUEGER, A MEMBER OF THE MARINE CORPS WITH PERMANENT ENLISTED STATUS WHOSE EXTENSION OF ENLISTMENT BECAME EFFECTIVE ON THE SAME DAY THAT HE ENTERED ON ACTIVE DUTY AS AN OFFICER UNDER A TEMPORARY APPOINTMENT ACCEPTED UNDER 10 U.S.C. 5596, THUS PREVENTING ANY SERVICE UNDER THE EXTENSION OF ENLISTMENT. THE QUESTION AROSE WHETHER HE COULD BE REGARDED AS HAVING VALIDLY EXTENDED HIS ENLISTMENT SO AS TO BE ENTITLED TO MILEAGE ALLOWANCE, PAYMENT FOR UNUSED LEAVE AND REENLISTMENT BONUS. IN THE DECISION WE HELD THAT KRUEGER WAS ENTITLED TO PAYMENT OF ALL THE ITEMS IN QUESTION.

THE ASSISTANT SECRETARY SAYS THAT IN CONSTRUING THE "SAVINGS" PROVISIONS OF LAWS APPLICABLE TO MEMBERS WITH PERMANENT ENLISTED STATUS WHO ARE TEMPORARILY APPOINTED TO WARRANT OR COMMISSIONED GRADE, IT HAS BEEN THE VIEW OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT ENLISTMENT ALLOWANCE (REENLISTMENT BONUS), PAYMENT FOR UNUSED LEAVE AND TRAVEL ALLOWANCE AS FOR DISCHARGE AND REENLISTMENT CONSTITUTE NO PART OF THE PAY AND ALLOWANCES FOR PERSONS TEMPORARILY SERVING AS OFFICERS. FURTHER, HE SAYS THAT CONSISTENT WITH THAT VIEW, THE ADMINISTRATIVE PRACTICE OF THE DEPARTMENT OF THE NAVY HAS BEEN TO CONSIDER AN ENLISTMENT WHICH EXPIRES WHILE A MEMBER IS SERVING AS A TEMPORARY OFFICER AS BEING CONTINUED UNDER 10 U.S.C. 5596 (F), BUT TO TAKE NO ACTION TO EFFECT THE MEMBER'S DISCHARGE OR TO PROVIDE FOR HIS REENLISTMENT UNLESS AND UNTIL HIS TEMPORARY STATUS IS TERMINATED.

THE ASSISTANT SECRETARY SAYS THAT AFTER OUR DECISION OF JANUARY 17, 1967, DOUBT HAS ARISEN AS TO WHETHER EXISTING ADMINISTRATIVE PRACTICES MAY BE IN FACT AN ABRIDGEMENT OF THE RIGHTS OF THE MEMBERS CONCERNED, SINCE IN EFFECT BENEFITS WHICH WOULD OTHERWISE ACCRUE BY VIRTUE OF THEIR PERMANENT AND UNCHANGED ENLISTED STATUS ARE DENIED TO THEM. IT APPEARS THAT THE DOUBT IN THE MATTER IS BASED ON WHETHER THE DECISION OF JANUARY 17, 1967, WAS BASED EXCLUSIVELY UPON THE COINCIDENCE IN TIME OF THE EFFECTIVE DATE OF THE ENLISTMENT AND THE DATE OF ENTRY ON ACTIVE DUTY AS A TEMPORARY OFFICER OR PREDICATED SOLELY ON 10 U.S.C. 5596 (F).

THE ASSISTANT SECRETARY SAYS THAT BEFORE ACTION IS TAKEN TO REVIEW AND POSSIBLY REVISE THE CURRENT PROCEDURES IT IS DEEMED ADVISABLE TO REQUEST A DECISION ON THE FOLLOWING QUESTIONS:

"A. AN ENLISTED MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS ACCEPTS A TEMPORARY APPOINTMENT AS A WARRANT OFFICER OR COMMISSIONED OFFICER UNDER 10 U.S.C. 5596. HE IS RECEIVING THE PAY AND ALLOWANCES OF HIS TEMPORARY OFFICER GRADE. AT THE TIME OF HIS ENTRANCE ON ACTIVE DUTY AS AN OFFICER, HIS ENLISTMENT HAS NOT EXPIRED AND HE HAS EXECUTED A VOLUNTARY EXTENSION OF THAT ENLISTMENT OF AT LEAST TWO YEARS. IS HE ENTITLED TO MILEAGE ALLOWANCE, PAYMENT FOR UNUSED LEAVE, AND REENLISTMENT BONUS (IF OTHERWISE QUALIFIED) WHEN HIS EXTENSION OF ENLISTMENT BECOMES EFFECTIVE?

"B. WOULD THE ANSWER TO QUESTION A. DIFFER IF THE MEMBER WERE IN RECEIPT OF THE PAY AND ALLOWANCES OF HIS PERMANENT ENLISTED GRADE SAVED TO HIM UNDER 10 U.S.C. 5596 (F) WHEN HIS EXTENSION BECOMES EFFECTIVE?

"C. IF AN ENTITLEMENT EXISTS UNDER QUESTIONS A. OR B., WOULD THE ANSWER BE THE SAME IF THE APPROPRIATE EXTENSION AGREEMENT WERE EXECUTED AFTER ENTRANCE ON ACTIVE DUTY AS A TEMPORARY FFICER?

"D. IF AN ENTITLEMENT EXISTS UNDER QUESTIONS A., B. OR C., WOULD THE ANSWER BE THE SAME IF THE MEMBER WERE DISCHARGED AND REENLISTED UPON THE NORMAL EXPIRATION OF HIS ENLISTMENT WHILE HE IS SERVING AS A TEMPORARY OFFICER?

"E. IF THE ANSWERS TO ANY OF THE PRECEDING QUESTIONS ARE IN THE AFFIRMATIVE, WOULD PAYMENT FOR UNUSED LEAVE AND REENLISTMENT BONUS BE AT THE RATES APPLICABLE TO THE MEMBER'S TEMPORARY GRADE, IF HE IS IN RECEIPT OF THE PAY AND ALLOWANCES OF THAT GRADE? OR WOULD UNUSED LEAVE AND REENLISTMENT BONUS BE PAYABLE AT THE RATES CURRENTLY APPLICABLE TO HIS PERMANENT GRADE WHETHER OR NOT THE MEMBER IS RECEIVING -SAVED- PAY?

IN THE DECISION OF JANUARY 17, 1967, A RESUME OF THE SERVICE OF RONALD L. KRUEGER SHOWED THAT HE REENLISTED IN THE U.S. MARINE CORPS ON MAY 27, 1960, FOR 6 YEARS. ON FEBRUARY 10, 1966, HE EXECUTED AN AGREEMENT TO EXTEND HIS ENLISTMENT FOR 2 YEARS, EFFECTIVE MAY 27, 1966, UNDER 10 U.S.C. 5539. ON MAY 27, 1966, HE ACCEPTED A TEMPORARY APPOINTMENT AS A SECOND LIEUTENANT UNDER 10 U.S.C. 5596. HIS PAY AND ALLOWANCES AS AN OFFICER COMMENCED ON MAY 27, 1966.

SECTION 5539 OF TITLE 10, U.S. CODE, WAS REPEALED BY SECTION 2 (A) (3) OF THE ACT OF JANUARY 2, 1968, PUB.L. 90-235, 81 STAT. 756. SECTION 2 (A) (1) (B) OF THAT ACT AMENDED TITLE 10, U.S. CODE, BY ADDING SECTION 509 WHICH RESTATED THE PROVISIONS FORMERLY CONTAINED IN SECTION 5539 AND READS AS FOLLOWS: "SEC. 509. VOLUNTARY EXTENSION OF ENLISTMENTS: PERIOD AND BENEFITS

"/A) UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, THE TERM OF ENLISTMENT OF A MEMBER OF AN ARMED FORCE MAY BE EXTENDED OR REEXTENDED WITH HIS WRITTEN CONSENT FOR ANY PERIOD. HOWEVER, THE TOTAL OF ALL SUCH EXTENSIONS OF AN ENLISTMENT MAY NOT EXCEED FOUR YEARS.

"/B) WHEN A MEMBER IS DISCHARGED FROM AN ENLISTMENT THAT HAS BEEN EXTENDED UNDER THIS SECTION, HE HAS THE SAME RIGHTS, PRIVILEGES, AND BENEFITS THAT HE WOULD HAVE IF DISCHARGED AT THE SAME TIME FROM AN ENLISTMENT NOT SO EXTENDED.

SECTION 906 OF TITLE 37, U.S. CODE, AS AMENDED BY SECTION 2 (C) OF PUB.L. 90-235, 81 STAT. 757, READS AS FOLLOWS: SEC. 906. EXTENSION OF ENLISTMENT: EFFECT ON PAY AND ALLOWANCES

"A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, AS THE CASE MAY BE, WHO EXTENDS HIS ENLISTMENT UNDER SECTION 509 OF TITLE 10 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED. FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS OR TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE, ALL SUCH EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION.'

IT HAS BEEN HELD THAT A MEMBER WHO EXTENDED HIS ENLISTMENT UNDER10 U.S.C. 5539 (NOW 10 U.S.C. 509) WAS ENTITLED TO THE SAME BENEFITS, INCLUDING LUMP -SUM LEAVE PAYMENT AND MILEAGE ALLOWANCE, AS THOUGH HE HAD REENLISTED. SUCH EXTENSIONS ARE EFFECTIVE AT THE EXPIRATION OF THE ENLISTMENT THAT WAS EXTENDED. 30 COMP. GEN. 103; 35 ID. 663; 39 ID. 455, 711; AND 43 ID. 539. HOWEVER, AN ENLISTED MEMBER WHO RECEIVES A TEMPORARY APPOINTMENT AS AN OFFICER UNDER 10 U.S.C. 5596 BEFORE COMPLETING HIS CURRENT ENLISTMENT AND WHOSE ENLISTED STATUS IS EXTENDED UNDER 10 U.S.C. 5596 (F), AS DISTINGUISHED FROM 10 U.S.C. 509, IS NOT ENTITLED TO THOSE BENEFITS SINCE SUCH BENEFITS ARE SPECIFICALLY AUTHORIZED BY 37 U.S.C. 906 INCIDENT TO AN EXTENSION OF ENLISTMENT UNDER 10 U.S.C. 509.

THE BENEFITS AUTHORIZED FOR A REENLISTMENT, INCLUDING AN EXTENSION OF ENLISTMENT AUTHORIZED BY SECTION 509, ARE AUTHORIZED FOR AN EXTENSION OF THE MEMBER'S TERM OF ACTIVE DUTY AS AN ENLISTED MEMBER, NOT FOR ACTIVE DUTY AS AN OFFICER. THEREFORE, ANY EXTENSION AGREEMENT ENTERED INTO BEFORE RECEIVING A TEMPORARY APPOINTMENT AS AN OFFICER UNDERSECTION 5596, BUT HAVING AN EFFECTIVE DATE AFTER THE DATE OF ENTERING ON DUTY AS AN OFFICER, WOULD NOT ENTITLE THE MEMBER TO THE REENLISTMENT BENEFITS AUTHORIZED BY SECTION 906 FOR AN EXTENSION OF ENLISTMENT. SEE 22 COMP. GEN. 548 IN WHICH IT WAS HELD THAT ENLISTED MEN IN THE NAVY OR MARINE CORPS WERE NOT ENTITLED TO ENLISTMENT ALLOWANCE AND TRAVEL ALLOWANCE INCIDENT TO REENLISTMENTS AND EXTENSIONS OF ENLISTMENTS ENTERED INTO WHILE TEMPORARILY SERVING AS OFFICERS UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603. ALSO SEE B 158437, MARCH 11, 1966, COPY HEREWITH.

IN KRUEGER'S SITUATION THE QUESTION AROSE WHETHER HIS EXTENSION BECAME EFFECTIVE AT EXPIRATION OF TERM OF SERVICE (10 U.S.C. 5539) IN VIEW OF THE FACT THAT HE HAD ENTERED ON ACTIVE DUTY AS A TEMPORARY OFFICER IN THE REGULAR MARINE CORPS ON THE DAY HIS EXTENSION WAS TO BECOME EFFECTIVE.

IN OUR DECISION OF JANUARY 17, 1967, WE EXPRESSED THE VIEW THAT SINCE KRUEGER HAD TO HAVE AN ENLISTED STATUS OF APPROPRIATE PAY GRADE IN ORDER TO MEET THE STATUTORY REQUIREMENTS FOR APPOINTMENT AS A TEMPORARY OFFICER, HIS APPOINTMENT AS AN OFFICER SHOULD NOT AFFECT THE VALIDITY OF THE EXTENSION HE EXECUTED UNDER 10 U.S.C. 5539, NOW 10 U.S.C. 509. THEREFORE HIS ENTITLEMENTS WERE CONSIDERED TO BE THOSE OF AN ENLISTED MEMBER OF THE MARINE CORPS WHO ENTERS INTO AN EXTENSION OF AN ENLISTMENT AT THE EXPIRATION OF HIS REGULAR ENLISTMENT.

THE QUESTION WAS PRESENTED IN KRUEGER'S SITUATION BECAUSE OF THE UNUSUAL CIRCUMSTANCE THAT HIS EXTENSION BECAME EFFECTIVE ON THE SAME DAY HE ENTERED ON ACTIVE DUTY AS A TEMPORARY OFFICER UNDER 10 U.S.C. 5596 AND THE DECISION WAS RENDERED SOLELY ON THAT BASIS OR, AS STATED BY THE ASSISTANT SECRETARY, THE DECISION WAS BASED EXCLUSIVELY UPON THE COINCIDENCE IN TIME OF THE EFFECTIVE DATE OF THE EXTENSION OF ENLISTMENT AND THE DATE OF ENTRY ON ACTIVE DUTY AS A TEMPORARY OFFICER.

BASED ON THE FOREGOING, IN ANSWER TO QUESTION (A), SINCE THE MEMBER HAD NOT COMPLETED HIS ENLISTMENT AT THE TIME OF HIS APPOINTMENT AS AN OFFICER, HE WOULD NOT BE ENTITLED TO MILEAGE ALLOWANCE, PAYMENT FOR UNUSED LEAVE, AND REENLISTMENT BONUS ON THE EFFECTIVE DATE OF THE EXTENSION. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE.

IN ANSWER TO QUESTION (B), AS EXPLAINED ABOVE, REENLISTMENT BENEFITS DO NOT ACCRUE INCIDENT TO AN EXTENSION UNDER 10 U.S.C. 509 WHICH BECOMES EFFECTIVE AFTER THE DATE OF ENTRY ON ACTIVE DUTY AS AN OFFICER. THEREFORE, THE MEMBER WOULD NOT BE ENTITLED TO REENLISTMENT BENEFITS ON THE EFFECTIVE DATE OF THE EXTENSION OF ENLISTMENT REGARDLESS OF THE FACT THAT HE IS IN RECEIPT OF THE HIGHER PAY AND ALLOWANCES OF HIS ENLISTED GRADE SAVED TO HIM BY 10 U.S.C. 5596 (F) WHILE SERVING AS AN OFFICER. ACCORDINGLY, QUESTION (B) IS ALSO ANSWERED IN THE NEGATIVE.

IN VIEW OF THE FOREGOING, NO ANSWERS ARE REQUIRED TO THE REMAINING QUESTIONS.

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