B-171459, JAN 22, 1971, 50 COMP GEN 515

B-171459, JAN 22, 1971, 50 COMP GEN 515

GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT - PAY INCREASE RATE APPLICABILITY A MEMBER OF THE UNIFORMED SERVICES WHO HAD BEEN PAID A REENLISTMENT BONUS BASED ON THE 1969 PAY SCALE FOR A 2-YEAR EXTENSION OF HIS ENLISTMENT, EFFECTIVE MARCH 15, 1970, MAY ONLY BE PAID UPON THE SUBSEQUENT REEXTENSION OF HIS ENLISTMENT FOR 1 YEAR EFFECTIVE MARCH 15, 1972 ON THE BASIS OF THE 1969 PAY SCALE SINCE THE REENLISTMENT BONUS RATE IS GOVERNED BY SECTION 2(A) OF EXECUTIVE ORDER NO. 11525, UNDER WHICH THE BONUS PAYMENT FOR THE FIRST EXTENSION WAS LIMITED TO THE 1969 PAY SCALE; AND SINCE BY VIRTUE OF 10 U.S.C. 509 THE SECOND EXTENSION PLACED THE MEMBER IN EXACTLY THE SAME STATUS AS THOUGH HE ORIGINALLY EXTENDED HIS ENLISTMENT FOR THE AGGREGATE OF ALL THE EXTENSIONS" ON MARCH 15, 1970, PAYMENT FOR THE 3-YEAR AGGREGATE REENLISTMENT BONUS IS RESTRICTED TO THE 1969 PAY SCALE BY SECTION 2(B) OF EXECUTIVE ORDER NO. 11525. GRATUITIES - REENLISTMENT BONUS - EXTENSION OF ENLISTMENT - MORE THAN ONE - EFFECTIVE DATE OF AGGREGATE EXTENSION UPON REEXTENDING HIS REENLISTMENT FOR 1 YEAR 4 MONTHS EFFECTIVE JULY 2, 1971, A MEMBER OF THE UNIFORMED SERVICES WHO AT THE TIME HE FIRST EXTENDED HIS ENLISTMENT FOR 10 MONTHS, EFFECTIVE MARCH 2, 1970, WAS NOT ENTITLED TO A BONUS, IS SUBJECT TO SECTION 2(A) OF EXECUTIVE ORDER NO. 11525, WHICH PROHIBITS AN INCREASE IN THE PAYMENT OF A REENLISTMENT BONUS TO A MEMBER WHOSE ENTITLEMENT OCCURRED AFTER DECEMBER 1969 AND BEFORE APRIL 15, 1970. EVEN THOUGH THE MEMBER'S BONUS ENTITLEMENT IS BASED ON THE JULY 1971 EXTENSION OF HIS ENLISTMENT, FOR THE PURPOSE OF PAYMENT THE DAY BEFORE THE MEMBER BEGAN SERVING ON HIS FIRST EXTENSION CORRESPONDS TO THE STATUTORY DATE "OF DISCHARGE AND RELEASE" CONTAINED IN 37 U.S.C. 308(A); AND THE AGGREGATE REENLISTMENT BECAME EFFECTIVE MARCH 2, 1970, REQUIRING THE REENLISTMENT BONUS TO BE COMPUTED ON THE BASIS OF THE 1969 PAY SCALE.

TO THE SECRETARY OF DEFENSE, JANUARY 22, 1971:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 2, 1970, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER REENLISTMENT BONUS SHOULD BE COMPUTED ON THE BASIS OF THE 1969 OR THE 1970 MILITARY PAY RATES FOR AN EXTENSION OF AN ENLISTMENT ENTERED INTO UNDER THE CIRCUMSTANCES SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 446 WHICH ACCOMPANIED THAT LETTER.

THE QUESTIONS ARE STATED IN THE COMMITTEE ACTION AS FOLLOWS:

1. IF A MEMBER IS PAID A REENLISTMENT BONUS BASED ON THE 1969 PAY SCALE FOR A 2-YEAR EXTENSION OF ENLISTMENT EFFECTIVE 15 MARCH 1970, SHOULD AN ADDITIONAL BONUS FOR A SUBSEQUENT 1-YEAR REEXTENSION OF THE SAME ENLISTMENT EFFECTIVE 15 MARCH 1972 BE BASED ON THE 1969 OR 1970 PAY SCALE?

2. IF A MEMBER IS NOT ENTITLED TO A BONUS WHEN HE FIRST EXTENDS HIS ENLISTMENT FOR 10 MONTHS EFFECTIVE 2 MARCH 1970, BUT BECOMES SO ENTITLED WHEN HE REEXTENDS FOR 1 YEAR AND 4 MONTHS EFFECTIVE 2 JULY 1971, SHOULD THE BONUS BE BASED ON THE 1969 OR THE 1970 PAY SCALE?

STATEMENTS SUGGESTING THE BASIS FOR THE DOUBT WITH RESPECT TO THE PROPER ANSWERS TO THESE QUESTIONS APPEAR IN THE DISCUSSION IN COMMITTEE ACTION NO. 446 AND ARE AS FOLLOWS:

COMPUTING THE ADDITIONAL BONUS ON THE BASIS OF A LITERAL INTERPRETATION OF THE DODPM (DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL) WOULD REQUIRE THE USE OF THE 1969 PAY SCALE IN THE QUESTION ONE SITUATION. IT IS NOTED, HOWEVER, THAT SECTION 2(A) OF EXECUTIVE ORDER 11525 REFERS TO ENTITLEMENT WHICH OCCURS AFTER 31 DECEMBER 1969 AND BEFORE 15 APRIL 1970. ENTITLEMENT TO THE ADDITIONAL BONUS IN THE QUESTION ONE SITUATION DOES NOT OCCUR UNTIL 15 MARCH 1972. IT IS ALSO NOTED THAT IF THE 1970 RATE IS CONSIDERED APPLICABLE FOR THE ADDITIONAL BONUS, THE DODPM REQUIRES THAT THE WHOLE BONUS (ORIGINAL PLUS ADDITIONAL) BE COMPUTED ON THE BASIS OF THE COMBINED EXTENSIONS AND THEN THE BONUS FOR THE FIRST EXTENSION IS DEDUCTED. THIS TYPE OF COMPUTATION WOULD, IN EFFECT, GIVE THE MEMBER A TOTAL BONUS BASED ENTIRELY ON THE 1970 RATES.

IN CONNECTION WITH QUESTION TWO, IT IS NOTED THAT A BONUS IS NOT PAYABLE FOR A 10-MONTH EXTENSION BECAUSE THE DODPM REQUIRES AN EXTENSION OR COMBINED EX3ENSIONS TOTALING 2 YEARS OR MORE FOR BONUS ENTITLEMENT. ALTHOUGH ENTITLEMENT TO THE BONUS IN QUESTION TWO FIRST ACCRUES ON 2 JULY 1971, IT IS AGAIN NOTED THAT THE DODPM REQUIRES COMPUTATION OF A BONUS AT THE PAY RATE APPLICABLE ON THE DAY BEFORE A MEMBER BEGAN SERVING ON HIS FIRST EXTENSION. IN THIS REGARD, THE PROBLEM IN QUESTION TWO IS SIMILAR TO THE ONE IN THE FIRST QUESTION.

IN IMPLEMENTING SECTION 8(A) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 649, 654, 37 U.S.C. 203 NOTE, AND THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APRIL 15, 1970, 84 STAT. 195, 5 U.S.C. 5332 NOTE, THE PRESIDENT ADJUSTED UPWARD THE RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES, THE NEW RATES BEING SET FORTH IN SECTION 1 OF EXECUTIVE ORDER, NO. 11525, DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970. SECTION 2 OF THE SAME EXECUTIVE ORDER PROVIDES AS FOLLOWS:

SEC. 2(A) A PERSON WHO BECAME ENTITLED AFTER DECEMBER 31, 1969, BUT BEFORE THE DATE OF ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, TO PAYMENT FOR ITEMS SUCH AS LUMP-SUM LEAVE, REENLISTMENT AND VARIABLE REENLISTMENT BONUS, CONTINUATION PAY, ANY TYPE OF SEPARATION PAY, OR SIX MONTHS DEATH GRATUITY, SHALL NOT BE ENTITLED TO ANY INCREASES IN ANY SUCH PAYMENT BY VIRTUE OF THIS ORDER.

(B) AUTHORITY TO PRESCRIBE OTHER RULES FOR PAYMENT OF RETROACTIVE COMPENSATION SHALL BE EXERCISED FOR THE UNIFORMED SERVICES BY THE SECRETARY OF DEFENSE. ENTITLEMENT TO RETROACTIVE PAY UNDER SUCH RULES SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, AND SHALL CONFORM AS NEARLY AS MAY BE PRACTICABLE TO THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 16, 1967, 81 STAT. 654.

PURSUANT TO THE QUOTED SECTION 2(B), THE DEPUTY SECRETARY OF DEFENSE IN MEMORANDUM FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), DATED APRIL 21, 1970, PRESCRIBED CERTAIN RULES IMPLEMENTING THE EXECUTIVE ORDER. RULE 1 OF THE MEMORANDUM STATES IN PART THAT -

A PERSON WHO BECAME ENTITLED, AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970 TO PAYMENT FOR ITEMS SUCH AS *** REENLISTMENT AND VARIABLE REENLISTMENT BONUS *** WILL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THAT ORDER.

A REENLISTMENT BONUS IS AUTHORIZED UNDER 37 U.S.C. 308(A) COMPUTED, IN THE CASE OF A MEMBER OF A UNIFORMED SERVICE WHO REENLISTS OR VOLUNTARILY EXTENDS HIS ENLISTMENT IN THE REGULAR COMPONENT OF THE SERVICE CONCERNED FOR AT LEAST 2 YEARS, ON THE BASIS OF THE BASIC PAY TO WHICH THE MEMBER WAS ENTITLED "AT THE TIME OF DISCHARGE OR RELEASE." THE SECRETARY OF THE SERVICE CONCERNED IS AUTHORIZED BY SUBSECTION 308(F) THEREOF TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE PROVISIONS OF THAT SECTION.

SECTION 509 OF TITLE 10, U.S. CODE, PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF THE SERVICE CONCERNED MAY PRESCRIBE, THE TERM OF AN ENLISTMENT OF A MEMBER OF AN ARMED FORCE MAY BE EXTENDED OR REEXTENDED WITH HIS WRITTEN CONSENT FOR ANY PERIOD NOT EXCEEDING 4 YEARS IN ALL. SECTION 906 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER WHO EXTENDS HIS ENLISTMENT UNDER 10 U.S.C. 509 IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS THOUGH HE HAD REENLISTED; AND THAT FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS, ALL EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION.

IN IMPLEMENTING THESE LAWS, PARAGRAPH 10904 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES IN PERTINENT PART AS FOLLOWS:

COMPUTE REENLISTMENT BONUS AS FOR ACTUAL REENLISTMENT WHEN A MEMBER VOLUNTARILY EXTENDS HIS ENLISTMENT FOR 2 YEARS OR MORE. THIS INCLUDES COMBINED EXTENSION AS PROVIDED BELOW. *** THE ADDITIONAL BONUS PAYABLE IS COMPUTED ON THE BASIS OF THE COMBINED EXTENSIONS, *** . COMPUTE AT PAY RATE APPLICABLE ON DAY BEFORE HE BEGAN SERVING ON HIS FIRST EXTENSION.

IN OUR DECISION OF JULY 18, 1960, 40 COMP. GEN. 14, WE HELD THAT UNDER PROVISIONS OF LAW SUBSTANTIALLY THE SAME AS THOSE IN 10 U.S.C. 509 AND 37 U.S.C. 906, PROVIDING THAT A SERIES OF EXTENSIONS IS CONSIDERED AS ONE CONTINUOUS EXTENSION AND PLACES THE MEMBER IN EXACTLY THE SAME STATUS AS THOUGH HE HAD ORIGINALLY EXTENDED HIS ENLISTMENT FOR THE TOTAL PERIOD OF ALL THE EXTENSIONS, THE REENLISTMENT BONUS IS COMPUTED ON THE BASIS OF THE RATE OF PAY RECEIVED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE FIRST EXTENSION.

WE ALSO HELD IN THAT DECISION THAT IF A REENLISTMENT BONUS IS PAID FOR EXTENSIONS AGGREGATING 2 YEARS, AND A SUBSEQUENT EXTENSION IS MADE AGGREGATING 3 OR 4 YEARS, AN APPROPRIATE REENLISTMENT BONUS IS PAYABLE COMPUTED ON THE LONGER PERIOD, BUT THE PREVIOUS BONUS PAID FOR THE SHORTER PERIOD MUST BE DEDUCTED. SEE ALSO 46 COMP. GEN. 322 (1966) AND B-163038, JANUARY 11, 1968.

IN REGARD TO THE FIRST QUESTION, THE MEMBER'S BONUS FOR THE AGGREGATE OF 3 YEARS SHOULD BE BASED ON THE 1969 PAY SCALE, SINCE THE REENLISTMENT BONUS RATE WOULD BE GOVERNED BY SECTION 2(A) OF EXECUTIVE ORDER NO. 11525, WHICH IN EFFECT PROVIDED THAT SUCH A MEMBER WAS NOT ENTITLED TO HAVE HIS BONUS COMPUTED ON THE 1970 PAY SCALE FOR HIS FIRST EXTENSION, AND SINCE HIS SECOND EXTENSION PLACES HIM "IN EXACTLY THE SAME STATUS AS THOUGH HE ORIGINALLY EXTENDED HIS ENLISTMENT FOR THE AGGREGATE OF ALL THE EXTENSIONS."

WITH RESPECT TO QUESTION 2, AS INDICATED ABOVE, ALL EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO REENLISTMENT BONUS (37 U.S.C. 906) AND THE REENLISTMENT BONUS IS COMPUTED ON THE RATE OF MONTHLY "BASIC PAY TO WHICH MEMBER WAS ENTITLED AT THE TIME OF DISCHARGE OR RELEASE" (37 U.S.C. 308). REGULATIONS IN EXECUTIVE ORDER NO. 11525 PROVIDE THAT A PERSON WHO BECOMES ENTITLED TO PAYMENT OF REENLISTMENT BONUS AFTER 1969 AND BEFORE APRIL 15, 1970, WILL NOT BE ENTITLED TO ANY INCREASE IN ANY SUCH PAYMENT BY VIRTUE OF THAT ORDER. IMPLEMENTING REGULATIONS IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDE THAT IN CASE OF COMBINED EXTENSIONS OF ENLISTMENT, THE REENLISTMENT BONUS WILL BE COMPUTED AT THE PAY RATE APPLICABLE ON THE DAY BEFORE THE PERSON BEGAN SERVING ON HIS FIRST EXTENSION.

SINCE THE TOTAL PERIOD OF THE EXTENSION OF ENLISTMENT IN THIS QUESTION AMOUNTED TO LESS THAN 2 YEARS PRIOR TO THE SECOND EXTENSION OF ENLISTMENT, THE MEMBER DID NOT LEGALLY BECOME ENTITLED TO A BONUS BASED UPON HIS EXTENSION OF ENLISTMENT UNTIL JULY 1971, WHEN HE BEGAN HIS SECOND EXTENSION. THE COMPUTATION OF THE REENLISTMENT BONUS MUST, HOWEVER, UNDER THE LAW AND REGULATIONS, BE BASED UPON THE RATES OF BASIC PAY IN EFFECT ON THE DAY BEFORE THE EFFECTIVE DATE OF HIS FIRST EXTENSION OF ENLISTMENT; THAT IS, ON THE "DAY BEFORE HE BEGAN SERVING ON HIS FIRST EXTENSION," WHICH CORRESPONDS TO THE STATUTORY DATE "OF DISCHARGE OR RELEASE" IN 37 U.S.C. 308(A). SINCE FOR THE PURPOSE OF PAYMENT OF REENLISTMENT BONUS THE MEMBER IS THUS PLACED IN THE STATUS OF INITIALLY EXTENDING HIS ENLISTMENT FOR THE AGGREGATE OF 2 YEARS 2 MONTHS, EFFECTIVE MARCH 2, 1970, HE BECAME ENTITLED BY VIRTUE OF THE SECOND EXTENSION OF ENLISTMENT TO A BONUS AFTER DECEMBER 31, 1969, BUT BEFORE APRIL 15, 1970, AND IS SUBJECT TO THE PROVISIONS OF SECTION 2(A) OF THE EXECUTIVE ORDER.

ACCORDINGLY, THE BONUS IN QUESTION 2 IS FOR COMPUTATION ON THE BASIS OF THE 1969 PAY SCALE.