B-168322, JANUARY 19, 1970, 49 COMP. GEN. 434

B-168322, JANUARY 19, 1970, 49 COMP. GEN. 434

GRATUITIES -- REENLISTMENT BONUS -- CRITICAL MILITARY SKILLS -- EARLY DISCHARGE FROM ENLISTMENT THE PAYMENT OF THE VARIABLE REENLISTMENT BONUS AUTHORIZED IN 37 U.S.C. 308(G) TO A NAVY PETTY OFFICER DISCHARGED PURSUANT TO 10 U.S.C. 6295 ON NOVEMBER 4, 1968, 3 MONTHS PRIOR TO THE EXPIRATION OF HIS ENLISTMENT, WHO ON NOVEMBER 5, 1968, REENLISTED IN THE RATING OF HOSPITAL CORPSMAN, IS NOT PRECLUDED BY THE REMOVAL OF THE RATING FROM THE LIST OF CRITICAL MILITARY SKILLS EFFECTIVE JANUARY 1, 1969, AND THE PROHIBITION EFFECTIVE SEPTEMBER 1, 1968, AGAINST PAYMENT OF THE BONUS INCIDENT TO AN EARLY DISCHARGE FOR THE PURPOSE OF AN IMMEDIATE REENLISTMENT. A SECTION 6295 DISCHARGE IS CONSIDERED TO BE THE SAME AS A DISCHARGE ISSUED AT THE EXPIRATION OF A TERM OF SERVICE, EXCEPT FOR NONENTITLEMENT TO PAY AND ALLOWANCES FOR THE PERIOD NOT SERVED, AND A REENLISTMENT, WHETHER IMMEDIATE OR OTHERWISE, IS, THEREFORE, A SEPARATE CONTRACT AND OBLIGATION, AND THE DISCHARGE AND REENLISTMENT OF THE MEMBER OCCURRING PRIOR TO JANUARY 1, 1969, HE IS ENTITLED TO THE VARIABLE REENLISTMENT BONUS.

TO ENSIGN B. N. SAMUEL, DEPARTMENT OF THE NAVY, JANUARY 19, 1970:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1969, REQUESTING A DECISION AS TO THE ENTITLEMENT OF PETTY OFFICER STEVEN BAYES, USN, 774 59 80, TO VARIABLE ENLISTMENT BONUS UNDER THE CIRCUMSTANCES PERTAINING TO HIS REENLISTMENT. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-1058 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT MR. BAYES' ENLISTMENT, AS EXTENDED, WAS TO EXPIRE ON JANUARY 5, 1969, THAT ON NOVEMBER 4, 1968, HE WAS DISCHARGED, AND THAT ON NOVEMBER 5, 1968, HE REENLISTED IN THE RATING OF HM (NEC 8404), IN THE REGULAR NAVY. INCIDENT TO THAT REENLISTMENT HE WAS PAID THE FIRST INSTALLMENT OF A VARIABLE REENLISTMENT BONUS IN THE AMOUNT OF $609.60 WITH THREE INSTALLMENTS OF AN EQUAL AMOUNT REMAINING TO BE PAID.

DD FORM 214 MC STATES THAT MR. BAYES WAS DISCHARGED ON "DD FORM 256N" AT "3RD CAG, III MAF, RVN" ON NOVEMBER 4, 1968, UNDER AUTHORITY OF BUREAU OF NAVAL PERSONNEL MANUAL, ARTICLE C-10317(1)(A), "DISCHARGED WITHIN THREE MONTHS OF EXPIRATION (OF TERM OF ENLISTMENT). *** REENLISTED AT 3RD CAG, III MAF, RVN, FOR A PERIOD OF FOUR (4) YEARS." HIS ENLISTMENT CONTRACT, DD FORM 4, DATED NOVEMBER 5, 1968, WITNESSED BY LIEUTENANT COLONEL R. D. WHITESELL, USMC, CITES, AS AUTHORITY FOR HIS REENLISTMENT, ARTICLE C-1403, BUREAU OF NAVAL PERSONNEL MANUAL. MR. BAYES STATES THAT HIS UNIT, COMPANY "T", 3RD CAG, WAS LOCATED AT HUNG TRA DISTRICT HEADQUARTERS, HUE CITY. THE PAPERS FORWARDED WITH YOUR REQUEST FOR DECISION DID NOT INCLUDE A COPY OF DD FORM 256N.

THE RECORD INDICATES THAT MR. BAYES' RATING (HOSPITAL CORPSMAN NEC 8404, MEDICAL FIELD SERVICE TECHNICIAN) WAS ELIMINATED EFFECTIVE JANUARY 1, 1969, FROM THE LIST OF CRITICAL MILITARY SKILLS DESIGNATED AS MAKING THEIR HOLDERS ELIGIBLE FOR THE VARIABLE REENLISTMENT BONUS AUTHORIZED BY SUBSECTION (G) OF SECTION 308 OF TITLE 37, U.S.C. THE NAVY ANNOUNCEMENT (A1NAV 42-68) OF THE REMOVAL OF THIS RATING, AMONG OTHERS, EFFECTIVE JANUARY 1, 1969, PROVIDED IN PARAGRAPH 2 THAT PAYMENT OF THE VARIABLE REENLISTMENT BONUS WAS NOT AUTHORIZED FOR EARLY DISCHARGE FOR THE PURPOSE OF IMMEDIATE REENLISTMENT IN HIS SKILL (NEC 8404) AFTER AUGUST 31, 1968, THROUGH PERIOD ENDING DECEMBER 31, 1968.

MR. BAYES HAS STATED THAT NEITHER HE NOR HIS COMMANDING OFFICER WHO APPROVED HIS DISCHARGE WAS AWARE OF A1NAV 42-68; AND THAT, ALTHOUGH THE VARIABLE REENLISTMENT BONUS WAS NOT THE SOLE MOTIVATING FACTOR FOR HIS REENLISTMENT, IT WAS A DEFINITE INFLUENCING FACTOR.

SUBSECTION 308(G) OF TITLE 37, U. S. CODE, PROVIDES IN PERTINENT PART THAT, UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, A MEMBER OF A UNIFORMED SERVICE WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A REENLISTMENT BONUS UNDER SUBSECTION (A) OF THAT SECTION UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS.

A1NAV 42-68 REMOVED THE SKILL HERE INVOLVED FROM THE CATEGORY FOR WHICH VARIABLE REENLISTMENT BONUS WAS AUTHORIZED EFFECTIVE JANUARY 1, 1969, AND PARAGRAPH 2 OF THAT COMMUNICATION IN EFFECT REMOVED THAT SKILL FROM THE VARIABLE REENLISTMENT BONUS CATEGORY EFFECTIVE SEPTEMBER 1, 1968, IN ANY CASE INVOLVING AN EARLY DISCHARGE FOR THE PURPOSE OF IMMEDIATE REENLISTMENT. THE A1NAV GIVES NO EXPLANATION AS TO THE MEANING OF THE PHRASE "EARLY DISCHARGE FOR PURPOSE OF IMMEDIATE REENLISTMENT."

IF AN ENLISTED MAN RECEIVES A DISCHARGE ISSUED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6295 WITHIN 3 MONTHS BEFORE THE EXPIRATION OF THE TERM OF HIS ENLISTMENT OR EXTENDED ENLISTMENT, THAT DISCHARGE IS ONE KIND OF EARLY DISCHARGE. IT IS EARLY IN THE SENSE THAT IT IS ISSUED BEFORE THE MEMBER HAS SERVED THE FULL PERIOD FOR WHICH HE IS OBLIGATED BUT, ON THE OTHER HAND, IT IS THE SAME AS A DISCHARGE AT EXPIRATION OF HIS TERM OF SERVICE EXCEPT THAT HE IS NOT ENTITLED TO PAY ALLOWANCES FOR THE PERIOD NOT SERVED.

IN A MEMORANDUM DATED AUGUST 29, 1969, FOR THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS), THE JUDGE ADVOCATE GENERAL OF THE NAVY CONCLUDED THAT THE DISCHARGE HERE INVOLVED WAS NOT AN EARLY DISCHARGE FOR THE PURPOSE OF IMMEDIATE REENLISTMENT WITHIN THE MEANING OF PARAGRAPH 2 OF A1NAV 42-68.

IN OUR OPINION THERE IS SOUND BASIS FOR THAT VIEW SINCE THE DISCHARGE APPEARS TO HAVE BEEN ISSUED PURSUANT TO 10 U.S.C. 6295 AND IS NOT CONDITIONED UPON AN AGREEMENT THAT THE MEMBER WOULD REENLIST. UNDER THE STATUTE SUCH A DISCHARGE HAS THE SAME EFFECT AS ONE ISSUED AT THE EXPIRATION OF TERM OF SERVICE. REENLISTMENT THEREAFTER, WHETHER IMMEDIATE OR OTHERWISE, IS A SEPARATE CONTRACT AND OBLIGATION.

ACCORDINGLY, SINCE MR. BAYES' DISCHARGE AND REENLISTMENT ARE NOT WITHIN THE RESTRICTIVE PROVISIONS OF PARAGRAPH 2 OF A1NAV 42-68 AND SINCE BOTH DISCHARGE AND REENLISTMENT WERE PRIOR TO JANUARY 1, 1969, HE IS ENTITLED TO THE VARIABLE REENLISTMENT BONUS INSTALLMENT HE RECEIVED AND HE SHOULD BE PAID THE REMAINING INSTALLMENTS AS THEY BECOME DUE, IF OTHERWISE CORRECT.