B-126267, APRIL 26, 1956, 35 COMP. GEN. 585

B-126267, APRIL 26, 1956, 35 COMP. GEN. 585

MEMBERS OF UNIFORMED SERVICES - REENLISTMENT BONUS - CONTINUED ACTIVE SERVICE AFTER TRANSFER TO RESERVES OR AFTER RETIREMENT - GRATUITY AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME, WITHIN THE MEANING OF THE REENLISTMENT BONUS PROVISIONS OF SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, TERMINATES AT THE TIME THE MEMBER IS TRANSFERRED TO A RESERVE COMPONENT AND IS PLACED ON THE RETIRED LIST OF THE ARMY OR AIR FORCE, AND ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT IS NOT A PART OF THE PRIOR ENLISTMENT TO ENTITLE THE MEMBER TO BONUS PAYMENTS ON THE ENLIST ANNIVERSARY.

TO THE SECRETARY OF DEFENSE, APRIL 26, 1956:

IT HAS COME TO ATTENTION IN THE AUDIT OF MILITARY PAY RECORDS THAT CERTAIN REENLISTMENT BONUS PAYMENTS ARE BEING MADE CONTRARY TO THE PROVISIONS OF SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF OCTOBER 26, 1951, 65 STAT. 653, 37 U.S.C. 238, IN THOSE CASES WHERE THE MEMBER IS TRANSFERRED TO A RESERVE COMPONENT AND WITH RESPECT TO THE ARMY OR AIR FORCE, PLACED ON THE RETIRED LIST OF THE REGULAR ARMY OF AIR FORCE.

A CASE IN POINT IS THAT OF MASTER SERGEANT WALTER M. SANDERS, AF1043264. THE MILITARY PAY RECORDS OF THIS MEMBER SHOW THAT HE ENTERED INTO AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME ON JANUARY 7, 1949, AND THAT ON JUNE 30, 1952, HE WAS TRANSFERRED TO THE AIR FORCE RESERVE AND RETIRED UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 539, AS AMENDED, 10 U.S.C. 948 (MADE APPLICABLE TO THE AIR FORCE BY SECTION 305 (A) OF THE ACT OF JULY 26, 1947, 61 STAT. 508, 5 U.S.C. 171L). HE WAS IMMEDIATELY RECALLED TO ACTIVE DUTY ON JULY 1, 1952, AND WAS RELEASED FROM SUCH DUTY AND REVERTED TO AN INACTIVE RETIRED STATUS ON FEBRUARY 28, 1953. IN JANUARY 1952, ON THE ANNIVERSARY DATE OF HIS ENLISTMENT, HE WAS PAID A REENLISTMENT BONUS OF $60. HE AGAIN WAS PAID SUCH A BONUS IN JANUARY 1953. AN EXCEPTION TO THE LATTER PAYMENT WAS TAKEN BY OUR DIVISION OF AUDITS FOR THE REASON THAT THE MEMBER'S ENLISTMENT TERMINATED UPON HIS RETIREMENT PRIOR TO THE FOURTH ANNIVERSARY DATE OF HIS ENLISTMENT. IN REPLY TO THE EXCEPTION THE ADMINISTRATIVE VIEW WAS EXPRESSED THAT THE MEMBER WAS ENTITLED TO A REENLISTMENT BONUS OF $60 UPON EACH ANNIVERSARY OF THE ORIGINAL DATE OF ENLISTMENT ON THE BASIS OF INSTRUCTIONS CONTAINED IN DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 1304.4, DATED APRIL 17, 1953, AND PARAGRAPH 11444B, AIR FORCE MANUAL 173-20, INTERIM CHANGE NO. 13, DATED DECEMBER 23, 1954.

SECTION 207 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF OCTOBER 26, 1951, 65 STAT. 653, PROVIDES, IN PERTINENT PART:

* * * PROVIDED, THAT PERSONS IN AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME, ENTERED INTO PRIOR TO OCTOBER 1, 1949, SHALL BE PAID $110 UPON THE FIRST ANNIVERSARY DATE OF SUCH ENLISTMENT SUBSEQUENT TO SEPTEMBER 30, 1949, AND $60 UPON EACH ANNIVERSARY DATE THEREAFTER, SUBJECT TO THE LIMITATIONS THAT THE TOTAL AMOUNT PAID AFTER OCTOBER 1, 1949, SHALL NOT EXCEED $1,440 * * * AND PROVIDED FURTHER, THAT AFTER THE ENACTMENT OF THIS AMENDMENT AND UNDER SUCH REGULATIONS AS MAY BE APPROVED BY THE SECRETARY OF DEFENSE OR THE SECRETARY OF THE TREASURY WITH RESPECT TO COAST GUARD PERSONNEL ANY PERSON TO WHOM A REENLISTMENT BONUS IS PAID AS HEREIN PROVIDED, AND WHO VOLUNTARILY OR AS THE RESULT OF HIS OWN MISCONDUCT, DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH THE BONUS WAS PAID, SHALL BE LIABLE TO REFUND SUCH PART OF SUCH BONUS AS THE UNEXPIRED PART OF SUCH ENLISTMENT BEARS TO THE TOTAL ENLISTMENT PERIOD FOR WHICH SUCH BONUS WAS PAID, LESS ANY AMOUNT PAID IN FEDERAL OR STATE INCOME TAXES ON SUCH REFUNDABLE PART.

DEPARTMENT OF DEFENSE DIRECTIVE NUMBER 1304.4, DATED APRIL 17, 1953, ISSUED FOR POLICY GUIDANCE TO THE MILITARY DEPARTMENTS IN CONFORMING TO THE PROVISIONS OF THE ACT OF OCTOBER 26, 1951, AS IT RELATES TO THE RECOVERY BY THE GOVERNMENT OF PORTIONS OF REENLISTMENT BONUSES IN CASES WHERE THE MEMBER DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH THE BONUS WAS PAID, AND IN APPLYING THE TERM "WHO VOLUNTARILY OR AS A RESULT OF HIS OWN MISCONDUCT," READS, IN PERTINENT PART---

III. POLICY

(1) SEPARATION BY REASON OF TRANSFER TO THE FLEET RESERVE, FLEET MARINE CORPS RESERVE, OR ARMY OR AIR FORCE RESERVE.

THIS ITEM DEALS WITH ONLY THOSE CASES WHERE AN INDIVIDUAL IS TRANSFERRED TO THE FLEET RESERVE, FLEET MARINE CORPS RESERVE, OR TO THE ARMY OR AIR FORCE RESERVE AND PLACED ON THE RETIRED LIST OF THE REGULAR ARMY OR AIR FORCE. IN THE CASE OF PERSONNEL SO RETIRED OR TRANSFERRED AND RETAINED ON CONTINUOUS ACTIVE DUTY, SUCH ACTIVE DUTY SHALL BE CONSIDERED AS A PART OF THE ENLISTMENT BEING SERVED IN AT THE TIME OF TRANSFER AND SHALL NOT BE USED IN COMPUTING THE PRO RATA SHARE OF THE REENLISTMENT BONUS TO BE RECOUPED. RETIREMENT BY REASON OF DISABILITY IS NOT INCLUDED UNDER THIS SECTION. IT IS UNDERSTOOD THAT THE PRIOR DEPARTMENT OF DEFENSE DIRECTIVE, NUMBER 1304.4, DATED FEBRUARY 18, 1952, WHICH WAS SUPERSEDED BY THE DIRECTIVE OF APRIL 17, 1953, CONTAINED THIS SAME PROVISION.

PARAGRAPH 11444, AIR FORCE MANUAL 173-20, INTERIM CHANGE NO. 13, DATED DECEMBER 23, 1954, PROVIDES, IN PERTINENT PART:

REASONS FOR RECOUPMENT. FOR PURPOSES OF RECOUPMENT OF ANY UNEARNED PORTION OF REENLISTMENT BONUS, THE TERMS "WHO VOLUNTARILY OR BECAUSE OF HIS OWN MISCONDUCT" AND "WHO VOLUNTARILY OR AS A RESULT OF HIS OWN MISCONDUCT" WILL INCLUDE AIRMEN DISCHARGED OR SEPARATED FOR REASONS LISTED BELOW:

B. RETIREMENT AND TRANSFER TO THE AIR FORCE RESERVE AFTER NOT LESS THAN 20 NOR MORE THAN 30 YEARS' SERVICE ( AFR 39-20). (APPLICABLE TO REENLISTMENT BONUS PAID UNDER PROVISIONS OF SECTION II ONLY.) AIRMEN RETIRED AND TRANSFERRED TO THE AIR FORCE RESERVE, AND ORDERED TO CONTINUOUS ACTIVE DUTY ON THE DAY FOLLOWING RETIREMENT, WILL BE CONSIDERED AS CONTINUING IN THE ENLISTMENT IN WHICH THEY WERE SERVING AT TIME OF TRANSFER, AND THEIR ULTIMATE DATE OF RELEASE FROM ACTIVE DUTY WILL DETERMINE WHETHER ANY REFUND WILL BE REQUIRED. PARAGRAPH 11412, AIR FORCE MANUAL 173-20, EFFECTIVE JUNE 1, 1952, CONTAINS A SIMILAR PROVISION.

WHEN MASTER SERGEANT SANDERS ON HIS OWN APPLICATION WAS RETIRED AND TRANSFERRED TO THE AIR FORCE RESERVE, HIS ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME TERMINATED. THEREAFTER HE WAS A MEMBER OF THE AIR FORCE RESERVE, RETIRED, AND, AS SUCH, HE COULD NO LONGER BE ON ACTIVE DUTY UNDER THAT ENLISTMENT, ALTHOUGH SUBJECT TO CALL TO ACTIVE DUTY AS A RESERVIST UNTIL HE HAD COMPLETED THIRTY YEARS' SERVICE, INCLUDING HIS ACTIVE SERVICE AND TIME SERVED IN THE AIR FORCE RESERVE. HENCE, HIS ACTIVE SERVICE SUBSEQUENT TO BEING PLACED ON THE AIR FORCE RETIRED LIST WAS NOT "IN AN ENLISTMENT FOR AN UNSPECIFIED PERIOD OF TIME," EXPRESSLY STIPULATED IN THE FIRST PROVISO QUOTED ABOVE AS A CONDITION TO PAYMENT OF THE ANNIVERSARY BONUS.

WE DO NOT QUESTION THE PROPRIETY OF THE ADMINISTRATIVE REGULATIONS AND INSTRUCTIONS GOVERNING RECOUPMENT OF REENLISTMENT BONUS TO THE EXTENT THEY PROVIDE THAT THE ACTIVE DUTY PERFORMED BY MEMBERS WHO ARE RETIRED OR TRANSFERRED TO THE RESERVES AND RETAINED ON CONTINUOUS ACTIVE DUTY SHALL BE "CONSIDERED" AS PART OF THE ENLISTMENT BEING SERVED AT THE TIME OF TRANSFER AND SHALL NOT BE USED IN COMPUTING THE PRO RATA SHARE OF THE REENLISTMENT BONUS TO BE RECOUPED. HOWEVER, NOTWITHSTANDING THAT, IN APPLYING THE RECOUPMENT PROVISION REGULATIONS, CONTINUED ACTIVE SERVICE AFTER TRANSFER TO THE RESERVES OR RETIREMENT, MAY BE "CONSIDERED" AS A CONTINUATION OF SERVICE WHICH HAD BEEN REQUIRED BY THE PRIOR ENLISTMENT FOR WHICH A BONUS PAYMENT HAD BEEN MADE IN ADVANCE, SUCH SERVICE CLEARLY IS NOT ACTUALLY A PART OF THE PRIOR ENLISTMENT, SINCE SUCH ENLISTMENT IS TERMINATED UPON THE TRANSFER AND, THEREFORE, THE SUBSEQUENT SERVICE CLEARLY IS NOT WITHIN THE STATUTORY PROVISION AUTHORIZING FURTHER BONUS PAYMENTS.

ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TO WITHHOLD CREDIT IN DISBURSING OFFICERS' ACCOUNTS FOR ANNIVERSARY BONUS PAYMENTS TO MEMBERS FOR ANNIVERSARIES OF PRIOR ENLISTMENTS OCCURRING AFTER SUCH ENLISTMENTS HAVE BEEN TERMINATED BY TRANSFER OF THE MEMBER TO THE RESERVES OR THE RETIRED LIST.