B-172695, JUN 14, 1971

B-172695, JUN 14, 1971

MILITARY PERSONNEL - REENLISTMENT BONUS REGARDING PAYMENT OF REENLISTMENT BONUS TO CORPORAL JIMMY L. DIES INCIDENT TO HIS REENLISTMENT IN THE U.S. MARINE CORPS ON APRIL 21, 1970, AFTER A BREAK IN SERVICE WHICH BEGAN ON JANUARY 23, 1970. AS ENLISTEE HAD ONLY TWO YEARS SERVICE AT DISCHARGE, PAYMENT OF BONUS FOR AN E-4 WITH OVER TWO YEARS SERVICE WAS ERRONEOUS. SINCE A REENLISTMENT BONUS ACCRUES AS OF DATE OF DISCHARGE AND IS BASED ON RANK AND PAY AT THAT TIME, PAYMENT TO ENLISTEE ON PAY SCALE ESTABLISHED BY EXECUTIVE ORDER 11525, DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970, WAS ALSO ERRONOUS UNDER IMPLIMENTING REGULATION AND 37 U.S.C. 308, WHICH REQUIRES ACTIVE DUTY STATUS ON DATE OF SUCH ORDERS TO BE ENTITLED TO RETROACTIVE PAY AT AN INCREASED RATE.

TO MAJOR W. G. REDDICK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 31, 1971 (FILE REFERENCE MCDO*CD-WMH 7220/4), FORWARDED TO THIS OFFICE BY HEADQUARTERS UNITED STATES MARINE CORPS LETTER DATED APRIL 20, 1971 (FILE REFERENCE CD- PMH 7220/4), REQUESTING A DECISION AS TO THE PROPER RATE OF PAY TO BE USED IN COMPUTING THE REENLISTMENT BONUS TO WHICH CORPORAL JIMMY L. DIES, 237 10 01, USMC, IS ENTITLED INCIDENT TO HIS REENLISTMENT IN THE MARINE CORPS ON APRIL 21, 1970. THE REQUEST HAS BEEN ASSIGNED CONTROL NUMBER DO-MC- 1121 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT CORPORAL DIES WAS RELEASED FROM ACTIVE DUTY IN THE MARINE CORPS ON JANUARY 23, 1970, AFTER COMPLETING EXACTLY 2 YEARS OF SERVICE FOR PAY PURPOSES. HE REENLISTED IN THE MARINE CORPS FOR A PERIOD OF 2 YEARS ON APRIL 21, 1970. INCIDENT TO THAT REENLISTMENT, CORPORAL DIES WAS PAID A REENLISTMENT BONUS OF $580.20 COMPUTED ON THE BASIC PAY RATE ESTABLISHED BY EXECUTIVE ORDER 11525 DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970, FOR A MEMBER OF THE UNIFORMED SERVICES IN PAY GRADE E-4 WITH OVER 2 YEARS OF SERVICE.

YOU STATE FURTHER THAT CORPORAL DIES' REENLISTMENT BONUS WAS ERRONEOUSLY COMPUTED IN AT LEAST ONE RESPECT IN THAT AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY HE HAD COMPLETED ONLY 2 YEARS OF SERVICE AND, THEREFORE, HE WAS NOT ENTITLED TO HAVE THE COMPUTATION OF HIS BONUS BASED ON THE RATE OF PAY OF A MEMBER WITH OVER 2 YEARS OF SERVICE. TO ENABLE YOU TO CORRECTLY ASCERTAIN AND RECOVER THE AMOUNT WHICH CORPORAL DIES WAS OVERPAID YOU REQUEST OUR DECISION AS TO WHETHER HIS REENLISTMENT BONUS SHOULD HAVE BEEN COMPUTED ON THE PAY RATES EFFECTIVE JULY 1, 1969, OR THOSE EFFECTIVE JANUARY 1, 1970.

THE PAYMENT OF REENLISTMENT BONUSES IS AUTHORIZED BY 37 U.S.C. 308(A), WHICH PROVIDES THAT SUCH BONUSES SHALL BE COMPUTED ON THE BASIS OF THE BASIC PAY TO WHICH THE MEMBER WAS ENTITLED "AT THE TIME OF DISCHARGE OR RELEASE." SECTION 308(F) AUTHORIZES THE SECRETARY CONCERNED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF SECTION 308 IN HIS DEPARTMENT.

PURSUANT TO SECTION 8(A) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90- 207, 81 STAT. 649, 654, AND THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91-231, APRIL 15, 1970, 84 STAT. 195, THE PRESIDENT ISSUED EXECUTIVE ORDER 11525 DATED APRIL 15, 1970, EFFECTIVE JANUARY 1, 1970, ADJUSTING UPWARD THE BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES. SECTION 2(B) OF THAT EXECUTIVE ORDER STATES:

"(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."

SECTION 5(A) OF THE 1970 ACT PROVIDES IN PERTINENT PART:

"(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT *** ."

SECTION 7 OF THE 1967 ACT PROVIDES IN PERTINENT PART:

"SEC. 7. THIS ACT BECOMES EFFECTIVE AS OF OCTOBER 1, 1967. HOWEVER, A MEMBER ***IS NOT ENTITLED TO ANY INCREASES IN HIS PAY AND ALLOWANCES UNDER SECTION 1 OR SECTION 4 FOR ANY PERIOD BEFORE THE DATE OF ENACTMENT OF THIS ACT UNLESS HE IS ON ACTIVE DUTY ON THE DATE OF ENACTMENT OF THIS ACT. ***

PURSUANT TO THE AUTHORITY TO PRESCRIBE RULES FOR RETROACTIVE COMPENSATION FOR THE UNIFORMED SERVICES GRANTED THE SECRETARY OF DEFENSE BY SECTION 2(B) OF EXECUTIVE ORDER 11525, THE DEPUTY SECRETARY OF DEFENSE, IN A MEMORANDUM FOR THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) DATED APRIL 21, 1970, PRESCRIBED RULES FOR THE IMPLEMENTATION OF THAT EXECUTIVE ORDER. RULE 2 OF THE MEMORANDUM PROVIDES IN PERTINENT PART:

"2. A PERSON IS NOT ENTITLED TO ANY INCREASE IN HIS BASIC PAY BY VIRTUE OF THAT ORDER FOR ANY PERIOD BEFORE APRIL 15, 1970 UNLESS HE WAS ON ACTIVE DUTY ON THAT DATE. *** "

SINCE CORPORAL DIES WAS NOT ON ACTIVE DUTY ON APRIL 15, 1970, HE WAS NOT ENTITLED, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY (JANUARY 23, 1970), TO THE RATES OF BASIC PAY ESTABLISHED BY EXECUTIVE ORDER 11525. THEREFORE, IN ACCORDANCE WITH 37 U.S.C. 308(A), SUPRA, CORPORAL DIES' REENLISTMENT BONUS SHOULD HAVE BEEN COMPUTED ON THE RATE OF BASIC PAY EFFECTIVE JULY 1, 1969 (EXECUTIVE ORDER 11475, JUNE 16, 1969), THE RATE TO WHICH HE WAS ENTITLED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. AS YOU STATE IN YOUR LETTER, THE BONUS SHOULD BE COMPUTED ON THE BASIS OF A MEMBER WITH 2 YEARS, OR LESS, SERVICE. SEE 50 COMP. GEN. 36, 38.