B-160845, APRIL 12, 1967, 46 COMP. GEN. 735

B-160845, APRIL 12, 1967, 46 COMP. GEN. 735

GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - BREAK IN SERVICE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHOSE TWO TOURS OF ACTIVE DUTY, INTERRUPTED BY AN INACTIVE RESERVE STATUS OF LESS THAN 3 MONTHS, EXCEEDED 21 MONTHS, UPON REENLISTING IN A REGULAR COMPONENT MAY ADD BOTH ACTIVE DUTY TOURS TO QUALIFY FOR THE VARIABLE REENLISTMENT BONUS AUTHORIZED BY 37 U.S.C. 308 (G), NOTHING IN THE IMPLEMENTING DIRECTIVE SUGGESTING THAT THE REQUIRED 21 MONTHS OF ACTIVE SERVICE FOR ELIGIBILITY TO A VARIABLE REENLISTMENT BONUS MUST BE CONTINUOUS ACTIVE SERVICE WITH NO BREAK IMMEDIATELY PRECEDING A REENLISTMENT IN A REGULAR COMPONENT, OR THAT A 3-MONTH BREAK IN SERVICE WOULD AFFECT A MEMBER'S CRITICAL SKILL, AND 37 U.S.C. 308 (A) RECOGNIZING FOR THE PURPOSES OF THE REGULAR REENLISTMENT BONUS A BREAK IN ACTIVE SERVICE THAT DOES NOT EXCEED 3 MONTHS.

TO THE SECRETARY OF DEFENSE, APRIL 12, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 7, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING DECISION WHETHER THE "21 MONTHS OF ACTIVE SERVICE" REQUIRED BY DOD DIRECTIVE 1304.10 FOR ELIGIBILITY FOR PAYMENT OF THE VARIABLE REENLISTMENT BONUS MUST BE CONTINUOUS ACTIVE SERVICE AND, IF NOT, WHETHER A BREAK IN SERVICE OF NOT TO EXCEED 3 MONTHS WOULD PRECLUDE THE PAYMENT OF THE VARIABLE REENLISTMENT BONUS, IF OTHERWISE PROPER.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 393 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

(1) IN THE SITUATION CONSIDERED IN THE DECISION OF THE COMPTROLLER GENERAL, B-158477, OF DECEMBER 5, 1966 AN ENLISTED MEMBER HAD SERVED ON ACTIVE DUTY FROM NOVEMBER 28, 1962, THROUGH NOVEMBER 27, 1964. COMMENCING NOVEMBER 28, 1964, HE HAD AN INACTIVE RESERVE STATUS UNTIL APRIL 18, 1965, AND ON APRIL 19, 1965, HE REENLISTED IN THE REGULAR COMPONENT, FOR WHICH NO REGULAR REENLISTMENT BONUS WAS AUTHORIZED. HE SERVED UNTIL MARCH 25, 1966, AT WHICH TIME HE WAS DISCHARGED AND REENLISTED IN THE REGULAR COMPONENT ON MARCH 26, 1966. HE WAS THEN ENTITLED TO BE PAID A REGULAR REENLISTMENT BONUS. IT WAS DECIDED THAT HE WAS NOT ENTITLED TO BE PAID A VARIABLE REENLISTMENT BONUS FOR THE MARCH 26, 1966 REENLISTMENT.

ASSUMING SIMILAR FACTS, EXCEPT THAT THE MEMBER FIRST SERVED IN THE STATUS OF A REGULAR UPON HIS REENLISTMENT MARCH 26, 1966, AND HAD INACTIVE RESERVE STATUS COMMENCING NOVEMBER 28, 1964, UNTIL JANUARY 18, 1965, WOULD HE BE ENTITLED TO BE PAID A VARIABLE REENLISTMENT BONUS FOR THE MARCH 26, 1966 ENLISTMENT?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE NEGATIVE, WOULD A PERIOD OF INACTIVE RESERVE STATUS OF LESSER DURATION MAKE ANY DIFFERENCE?

THE VARIABLE REENLISTMENT BONUS IS AUTHORIZED IN 37 U.S.C. 308 (G), WHICH WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 547, AND WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(G) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, OR THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, A MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) OF THIS SECTION UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS * * *.

REGULATIONS ISSUED BY THE SECRETARY OF DEFENSE PURSUANT TO 37 U.S.C. 308 (G) ARE CONTAINED IN DOD DIRECTIVE 1304.10, DATED DECEMBER 18, 1965, AND PARAGRAPH III.E. OF THE DIRECTIVE (AS AMENDED JANUARY 14, 1966) WHICH PRESCRIBES REQUIREMENTS FOR ELIGIBILITY FOR THE VARIABLE REENLISTMENT BONUS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

2. HAS COMPLETED AT LEAST 21 MONTHS OF ACTIVE SERVICE (OTHER THAN ACTIVE DUTY FOR TRAINING) BEFORE DISCHARGE, RELEASE FROM ACTIVE DUTY, OR EXTENSION OF HIS INITIAL TERM OF ENLISTMENT.

3. REENLISTS IN A REGULAR COMPONENT OF THE SERVICE CONCERNED WITHIN THREE (3) MONTHS (OR WITHIN A LESSER PERIOD IF SO PRESCRIBED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED) AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM COMPULSORY OR VOLUNTARY ACTIVE DUTY (OTHER THAN FOR TRAINING), OR EXTENDS HIS ENLISTMENT, SO THAT THE REENLISTMENT OR ENLISTMENT AS EXTENDED PROVIDES A TOTAL PERIOD OF ACTIVE SERVICE NOT LESS THAN SIXTY-NINE (69) MONTHS. * * *.

AS POINTED OUT IN THE COMMITTEE ACTION, SINCE THE MEMBER IN THE SITUATION DESCRIBED IN OUR DECISION OF DECEMBER 5, 1966, B-158477, HAD SERVED LESS THAN 21 MONTHS IN HIS CURRENT ENLISTMENT PRIOR TO HIS DISCHARGE ON MARCH 25, 1966, WE SAID THAT HE COULD MEET THE PRESCRIBED SERVICE REQUIREMENTS ONLY IF THE REGULATIONS PERMITTED THE COUNTING OF HIS PRIOR ACTIVE SERVICE WHICH WAS SEPARATED FROM HIS APRIL 1965 ENLISTMENT BY MORE THAN 4 MONTHS OF INACTIVE SERVICE. BECAUSE OF THAT BREAK IN ACTIVE SERVICE, WE NOTED THAT THE MEMBER'S ENLISTMENT FROM NOVEMBER 1962 TO NOVEMBER 1964 AND HIS ENLISTMENT IN APRIL 1965 ARE DISREGARDED FOR REENLISTMENT BONUS PURPOSES UNDER 37 U.S.C. 308 (A) AND SINCE SUCH SERVICE IS EXCLUDED UNDER THAT PROVISION, WE CONCLUDED THAT AUTHORITY TO INCLUDE ACTIVE SERVICE PRIOR TO THAT PERIOD OF INACTIVE DUTY SHOULD BE RECOGNIZED FOR PURPOSE OF 37 U.S.C. 308 (G) ONLY ON THE BASIS OF REGULATIONS CLEARLY AND SPECIFICALLY PROVIDING THEREFOR. SINCE THE CITED REGULATIONS CONTAINED NO SPECIFIC PROVISION AUTHORIZING THE COUNTING OF SUCH PRIOR ACTIVE SERVICE, WE HELD THAT THE MEMBER WAS NOT ENTITLED TO THE VARIABLE REENLISTMENT BONUS.

IN DISCUSSING THE PROBLEM, THE COMMITTEE ACTION REFERS TO THE NAVAL SERVICE AND STATES THAT ENLISTED MEMBERS OF THE RESERVE MAY SERVE ON ACTIVE DUTY FOR 1 YEAR, ARE THEN RELEASED FROM ACTIVE DUTY FOR 2 DAYS, ARE RECALLED TO ACTIVE DUTY, SERVE 6 MONTHS, ARE AGAIN RELEASED FOR 2 DAYS RECALLED FOR 6 MONTHS. THESE MEMBERS, IT IS STATED, ARE DESIRABLE AS ENLISTEES IN THE REGULAR SERVICE AND UPON ENLISTMENT AS REGULARS ARE ENTITLED TO BE PAID A REENLISTMENT BONUS AUTHORIZED UNDER 37 U.S.C. 308 (A). IT IS FURTHER STATED THAT THESE MEMBERS MAY HAVE 21 MONTHS OF PRIOR ACTIVE SERVICE IN A SERIES OF TOURS SEPARATED BY INTERVALS OF INACTIVE DUTY OF ONLY A FEW DAYS. IT IS POINTED OUT THAT, TO ENHANCE THE ATTRACTIVENESS OF ENLISTMENT AS REGULARS, ENTITLEMENT TO VARIABLE REENLISTMENT BONUS UNDER 37 U.S.C. 308 (G) IS OBVIOUSLY DESIRABLE. THE COMMITTEE ACTION FURTHER STATES THAT IF A BREAK IN SERVICE OF ANY PERIOD LESS THAN 3 MONTHS, PARTICULARLY A BREAK OF 1 OR 2 DAYS, WOULD RENDER SUCH A MEMBER INELIGIBLE TO BE PAID A VARIABLE REENLISTMENT BONUS, SOME MODIFICATION, AS APPROPRIATE, IN THE LAW OR APPLICABLE REGULATIONS MAY BE NECESSARY.

WE UNDERSTAND THE FIRST QUESTION TO INVOLVE A MEMBER WHO SERVED ON ACTIVE DUTY IN A RESERVE STATUS FROM NOVEMBER 28, 1962, TO NOVEMBER 27, 1964; IN AN INACTIVE DUTY STATUS FROM NOVEMBER 28, 1964, TO JANUARY 18, 1965; IN AN ACTIVE DUTY STATUS FROM JANUARY 18, 1965 TO MARCH 25, 1966; AND WHO ENLISTED IN A REGULAR COMPONENT FOR THE FIRST TIME ON MARCH 26, 1966.

ONE OF THE REQUIREMENTS FOR PAYMENT OF THE REGULAR REENLISTMENT BONUS AUTHORIZED BY 37 U.S.C. 308 (A) IS THAT THE MEMBER REENLIST IN A REGULAR COMPONENT WITHIN 3 MONTHS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY. HENCE, FOR PURPOSES OF THE REGULAR REENLISTMENT BONUS, THE LAW RECOGNIZES A BREAK IN ACTIVE SERVICE OF NOT TO EXCEED 3 MONTHS.

ALTHOUGH SUBSECTION (G) OF SECTION 308 CONTAINS NO LANGUAGE SIMILAR TO THE REGULAR REENLISTMENT BONUS PROVISION OF SUBSECTION (A), WHICH PERMITS A BREAK IN ACTIVE SERVICE OF NOT TO EXCEED 3 MONTHS, SUBSECTION (G) APPEARS TO PERMIT PAYMENT OF A VARIABLE REENLISTMENT BONUS TO ANY OTHERWISE QUALIFIED MEMBER WHO IS "ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) OF THIS SECTION UPON HIS FIRST REENLISTMENT.' THUS, THE LAW ITSELF SUGGESTS THAT A BREAK IN SERVICE OF NOT TO EXCEED 3 MONTHS WOULD FURNISH NO BASIS FOR QUESTIONING PAYMENT OF A VARIABLE REENLISTMENT BONUS OTHERWISE PAYABLE.

WHILE THE ABOVE-CITED DOD DIRECTIVE 1304.10 MAKES NO MENTION OF A BREAK IN SERVICE IN COMPUTING THE REQUIREMENT THAT THE MEMBER COMPLETE "AT LEAST 21 MONTHS OF ACTIVE SERVICE" BEFORE DISCHARGE OR RELEASE FROM ACTIVE DUTY, WE FIND NOTHING IN THAT DIRECTIVE WHICH WOULD INDICATE THAT THE 21 MONTH ACTIVE SERVICE REQUIREMENT MUST BE CONTINUOUS ACTIVE SERVICE WITH NO BREAK WHATSOEVER IMMEDIATELY PRECEDING A REENLISTMENT IN A REGULAR COMPONENT. ALSO, THE DIRECTIVE CONTAINS NOTHING WHICH SUGGESTS THAT A 3 MONTH BREAK IN SERVICE WOULD ADVERSELY AFFECT A MEMBER'S CRITICAL MILITARY SKILL. THE CIRCUMSTANCES, WE ARE INCLINED TO THE VIEW, THAT THE DOD DIRECTIVE PERMITS A BREAK IN SERVICE OF NOT MORE THAN 3 MONTHS IN COMPUTING THE 21 MONTH ACTIVE SERVICE REQUIREMENT.

ON THE BASIS OF THE FACTS PRESENTED IN QUESTION 1, AND SINCE THE MEMBER'S BREAK IN ACTIVE SERVICE WAS LESS THAN 3 MONTHS, HE MAY BE CONSIDERED AS HAVING MET THE 21 MONTH ACTIVE SERVICE REQUIREMENT FOR VARIABLE REENLISTMENT BONUS PURPOSES. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND NO ANSWER IS REQUIRED TO QUESTION 2.