B-141775, JULY 18, 1960, 40 COMP. GEN. 14

B-141775, JULY 18, 1960, 40 COMP. GEN. 14

MILITARY PERSONNEL - GRATUITIES - REENLISTMENT BONUS - ONE-YEAR ENLISTMENT EXTENSIONS UNDER 10 U.S.C. 5539 (B) WHICH, WHEN ENACTED INTO LAW ON AUGUST 10, 1956 CONTAINED A SUBSTANTIVE CHANGE FROM THE DERIVATIVE STATUTE IN THAT TWO ONE -YEAR ENLISTMENT EXTENSIONS CONSTITUTED A REENLISTMENT FOR BONUS ENTITLEMENT UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, IT IS THE SECOND OR ANY OTHER SUBSEQUENT EXTENSION WHICH, WHEN ADDED TO THE PREVIOUS EXTENSIONS OF THE SAME ENLISTMENT AGGREGATES TWO OR MORE YEARS, ESTABLISHES THE REENLISTMENT EVEN THOUGH 10 U.S.C. 5539 (B) SPECIFICALLY PROVIDES THAT ALL EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION; ACCORDINGLY, A SECOND OR OTHER SUBSEQUENT EXTENSION EFFECTIVE AFTER AUGUST 10, 1956, MAY BE COMBINED WITH AN EXTENSION MADE PRIOR TO THAT DATE, AND, IF IT AGGREGATES A CONTINUOUS EXTENSION OF TWO OR MORE YEARS, IT CONSTITUTES A REENLISTMENT FOR A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949. A REENLISTMENT WHICH IS ESTABLISHED UNDER 10 U.S.C. 5539 (B) BY A COMBINATION OF TWO OR MORE EXTENSIONS OF ENLISTMENT PLACES THE MEMBER IN EXACTLY THE SAME STATUS AS THOUGH HE HAD ORIGINALLY EXTENDED HIS ENLISTMENT FOR THE AGGREGATE OF ALL THE EXTENSIONS, AND THE REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 IS TO BE COMPUTED ON THE BASIS OF THE RATE OF PAY RECEIVED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE FIRST EXTENSION. UNDER 10 U.S.C. 5539 (A) ANY COMBINATION OF EXTENSIONS OF ENLISTMENT WHICH AGGREGATES NOT MORE THAN FOUR YEARS MAY BE MADE, AND IF A REENLISTMENT BONUS IS PAID UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 FOR EXTENSIONS AGGREGATING TWO YEARS AND A SUBSEQUENT EXTENSION IS MADE AGGREGATING THREE OR FOUR YEARS, AN APPROPRIATE REENLISTMENT BONUS IS PAYABLE COMPUTED ON THE LONGER PERIOD, BUT THE PREVIOUS BONUS PAID FOR THE SHORTER PERIOD MUST BE DEDUCTED IN VIEW OF THE REQUIREMENT IN 10 U.S.C. 5539 (B) THAT ALL EXTENSIONS BE "CONSIDERED ONE CONTINUOUS EXTENSION," ONLY ONE BONUS MAY BE AUTHORIZED FOR THE AGGREGATE OF THE EXTENSIONS. THE DECISION OF THE COMPTROLLER GENERAL IN 39 COMP. GEN. 711, WHICH WAS RENDERED ON APRIL 18, 1960, RELATIVE TO COMBINING TWO OR MORE EXTENSIONS OF ENLISTMENT FOR A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, IS AN ORIGINAL CONSTRUCTION OF 10 U.S.C. 5539 AS ENACTED BY THE ACT OF AUGUST 10, 1956, AND UNDER WELL ESTABLISHED RULES IT MUST BE REGARDED AS EFFECTIVE FROM THE EFFECTIVE DATE OF THE STATUTORY PROVISIONS THAT ARE CONSTRUED; THEREFORE, NAVY MEMBERS WHO EXTENDED THEIR ENLISTMENTS BUT WHO, UNDER REGULATIONS IN EFFECT PRIOR TO APRIL 18, 1960, WERE NOT PERMITTED TO ELECT TO BE COVERED BY SECTION 208 MAY MAKE SUCH ELECTION WITHIN A REASONABLE TIME AND THE ADDITIONAL AMOUNTS DUE MAY BE ADMINISTRATIVELY ADJUSTED. FORMER MEMBERS OF THE NAVY WHO EXTENDED THEIR ENLISTMENTS AND WERE PAID A REENLISTMENT BONUS FOR TWO ONE-YEAR ENLISTMENTS, BECAUSE THE REGULATIONS AT THE TIME DID NOT ENTITLE THE MEMBERS TO ELECT A GREATER REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, MAY NOT HAVE THEIR ACCOUNTS ADMINISTRATIVELY OPENED BUT THEY MAKE CLAIM FOR AN ADDITIONAL REENLISTMENT BONUS BASED ON AN ELECTION TO BE COVERED BY SECTION 208 IF THE ELECTION IS MADE WITHIN A REASONABLE TIME AND THE CLAIM MAY BE ADMINISTRATIVELY SETTLED WITHOUT REFERENCE TO THE GENERAL ACCOUNTING OFFICE PROVIDED THAT THE FORMER MEMBER'S RIGHT TO THE PAYMENT IS NOT IN DOUBT.

TO THE SECRETARY OF THE NAVY, JULY 18, 1960:

REFERENCE IS MADE TO LETTER DATED JUNE 7, 1960, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING A DECISION ON FIVE QUESTIONS WHICH HAVE ARISEN IN THE IMPLEMENTATION OF OUR DECISION DATED APRIL 18, 1960, 39 COMP. GEN. 711, RELATING TO EXTENSIONS OF ENLISTMENTS AS ENTITLING MEMBERS OF THE NAVAL ESTABLISHMENT TO REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY THE ACT OF JULY 16, 1954, 68 STAT. 489, 37 U.S.C. 239. THE REQUEST FOR DECISION HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. SS-N-506.

IT WAS HELD IN THE DECISION OF APRIL 18 THAT BY REASON OF THE SUBSTANTIVE CHANGE MADE BY THE ACT OF AUGUST 10, 1956, 70A STAT. 320, IN ENACTING 10 U.S.C. 5539 (B) AS A CODIFICATION OF THE ACT OF AUGUST 22, 1912, AS AMENDED, 34 U.S.C. 184, 1952, ED., TWO ONE-YEAR EXTENSIONS OF AN ENLISTMENT CONSTITUTED A REENLISTMENT WITHIN THE CONTEMPLATION OF SECTION 208. IN THE CASE THERE CONSIDERED BOTH OF THE EXTENSIONS HAD BEEN MADE SUBSEQUENT TO AUGUST 10, 1956, AND THE FIRST QUESTION PRESENTED IS WHETHER THE ANSWER WOULD HAVE BEEN THE SAME IF THE FIRST ONE YEAR'S EXTENSION HAD BEEN ENTERED INTO PRIOR TO AUGUST 10, 1956. WHILE SECTION 5539 (B) PROVIDES THAT "ALL SUCH EXTENSIONS OF AN ENLISTMENT ARE CONSIDERED ONE CONTINUOUS EXTENSION," IT IS THE SECOND, OR ANY OTHER SUBSEQUENT EXTENSION, WHICH, WHEN ADDED TO THE PREVIOUS EXTENSIONS OF THE SAME ENLISTMENT AGGREGATES TWO OR MORE YEARS, ESTABLISHED A REENLISTMENT AS SPECIFICALLY DEFINED IN SECTION 208 (E) (2), 37 U.S.C. 239 (E) (2), OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. ACCORDINGLY, IF THE EFFECTIVE DATE OF AN EXTENSION OCCURRED AFTER AUGUST 10, 1956, AND, WHEN COMBINED WITH AN EXTENSION MADE PRIOR TO THAT DATE, AGGREGATES A CONTINUOUS EXTENSION OF TWO OR MORE YEARS, IT CONSTITUTES A REENLISTMENT WITHIN THE PURVIEW OF SECTION 208. QUESTION 1 IS THEREFORE ANSWERED IN THE AFFIRMATIVE.

THE SECOND QUESTION RELATES TO THE PROPER RATE OF PAY TO BE USED IN THE COMPUTATION OF THE REENLISTMENT BONUS, WHERE TWO OR MORE EXTENSIONS CONSTITUTE A REENLISTMENT, IF ELECTION IS MADE TO BE PAID UNDER SECTION 208. WHILE IT CANNOT BE DETERMINED UNTIL THE EFFECTIVE DATE OF THE SUBSEQUENT EXTENSION, WHICH WHEN CONSIDERED WITH PRIOR EXTENSIONS CONSTITUTE ONE CONTINUOUS EXTENSION OF TWO OR MORE YEARS, THAT THERE HAS BEEN A REENLISTMENT OR THE LENGTH OF THE REENLISTMENT, THE REENLISTMENT THUS ESTABLISHED MUST BE CONSIDERED AS RELATING TO THE ENLISTMENT WHICH WOULD HAVE EXPIRED HAD IT NOT BEEN EXTENDED. THE SERIES OF EXTENSIONS, CONSIDERED AS ONE CONTINUOUS EXTENSION, PLACES THE MEMBER IN EXACTLY THE SAME STATUS AS THOUGH HE HAD ORIGINALLY EXTENDED HIS ENLISTMENT FOR THE AGGREGATE OF ALL THE EXTENSIONS AND THE REENLISTMENT BONUS IS TO BE COMPUTED ON THE BASIS OF THE RATE OF PAY RECEIVED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE FIRST EXTENSION. 7 COMP. GEN. 439, AND 9 ID. 385, 386. QUESTION 2 IS ANSWERED ACCORDINGLY.

THE NEXT QUESTION FOR DECISION IS AS FOLLOWS:

QUESTION 3. IN THOSE INSTANCES WHERE TWO ONE-YEAR EXTENSIONS HAVE BEEN COMBINED TO FORM THE BASIS FOR PAYMENT OF A REENLISTMENT BONUS COMPUTED AS FOR A FIRST REENLISTMENT FOR TWO YEARS, WOULD IT BE PROPER UPON A THIRD SINGLE YEAR EXTENSION OF THE SAME ENLISTMENT TO COMPUTE THE BONUS AS FOR A FIRST REENLISTMENT FOR THREE YEARS LESS THE PREVIOUS PAYMENT MADE UPON THE SECOND EXTENSION?

SUBSECTION (A) OF SECTION 5539, TITLE 10 U.S. CODE, PROVIDES:

UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY WITH THE APPROVAL OF THE PRESIDENT, A MEMBER OF THE REGULAR NAVY, OR THE REGULAR MARINE CORPS MAY EXTEND OR RE-EXTEND HIS ENLISTMENT BY WRITTEN AGREEMENT FOR LESS THAN ONE YEAR OR FOR A PERIOD OF ONE, TWO, THREE, OR FOUR FULL YEARS. HOWEVER, THE TOTAL OF ALL SUCH EXTENSIONS OF AN ENLISTMENT MAY NOT EXCEED FOUR YEARS.

THE CASE UNDER CONSIDERATION IN DECISION OF APRIL 18 INVOLVED TWO ONE- YEAR EXTENSIONS, BUT THAT DECISION DID NOT IN ANY WAY INTEND TO LIMIT THE EXTENSIONS THAT MIGHT LEGALLY BE CONSIDERED AS A REENLISTMENT. ANY COMBINATION OF EXTENSIONS AS PROVIDED IN SUBSECTION (A) ABOVE WHICH AGGREGATE NOT MORE THAN FOUR YEARS MAY BE MADE. OF COURSE, IF A REENLISTMENT BONUS IS PAID FOR EXTENSIONS AGGREGATING TWO YEARS AND A SUBSEQUENT EXTENSION IS MADE AGGREGATING THREE OR FOUR YEARS, AN APPROPRIATE REENLISTMENT BONUS IS PAYABLE COMPUTED ON THE LONGER PERIOD, BUT THE PREVIOUS BONUS PAID FOR THE SHORTER PERIOD MUST BE DEDUCTED, ONLY ONE BONUS BEING AUTHORIZED FOR THE AGGREGATE OF THE EXTENSIONS, THE LAW REQUIRING THAT THEY BE "CONSIDERED ONE CONTINUOUS EXTENSION.' SEE 32 COMP. GEN. 290. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4 READS:

QUESTION 4. PRIOR TO THE ISSUANCE OF B-141775 OF 18 APRIL 1960, SERVICE REGULATIONS PROVIDED THAT NO ENTITLEMENT TO REENLISTMENT BONUS ACCRUED UNDER SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, FOR TWO OR MORE ONE-YEAR EXTENSIONS OF AN ENLISTMENT AND IN DETERMINING THE NUMBER OF REENLISTMENTS TO BE USED IN SUBSEQUENT COMPUTATIONS OF REENLISTMENT BONUS UNDER SECTION 208, TWO OR MORE ONE YEAR EXTENSIONS WERE IGNORED. A PROBLEM ARISES WITH RESPECT TO A MEMBER WHO WAS PAID A BONUS FOR TWO ONE-YEAR EXTENSIONS UNDER SECTION 207. WHILE THE REGULATIONS PROVIDED NO ENTITLEMENT UNDER SECTION 208, THE MEMBER WAS REQUIRED TO MAKE AN ELECTION TO RECEIVE A BONUS UNDER SECTION 207. THE QUESTION, THEREFORE, ARISES AS TO WHETHER A MEMBER WHO HAS BEEN SEPARATED FROM THE ENLISTMENT INVOLVED, AND IS EITHER NOT A MEMBER OF THE SERVICE AT THIS TIME OR HAS REENLISTED, MAY NOW MAKE RE ELECTION TO RECEIVE A GREATER BONUS UNDER SECTION 208. CONSIDERATION HAS BEEN GIVEN TO 35 COMP. GEN. 371 WHEREIN IT WAS HELD THAT THE MEMBER MAY MAKE THE ELECTION AT ANY TIME PROVIDED HE MAKES IT BEFORE THE TERMINATION OF THE REENLISTMENT CONTRACT INVOLVED. THEREFORE, THE MEMBER IN THE CITED CASE WOULD BE PROHIBITED FROM MAKING SUCH A RE ELECTION. INASMUCH AS THE REGULATIONS PROHIBITED AN ELECTION UNDER SECTION 208, AND THE FACT THAT THESE EXTENSIONS MAY BE REQUIRED TO BE COUNTED AS A REENLISTMENT IN SUBSEQUENT COMPUTATIONS, IT WOULD APPEAR PROPER TO PERMIT THE MEMBER TO MAKE A RE-ELECTION EVEN THOUGH THE REENLISTMENT CONTRACT INVOLVED HAS TERMINATED. MAY YOUR DECISION BE MODIFIED TO NOW PERMIT THE ELECTION OF THE GREATER AMOUNT IN SUCH CIRCUMSTANCES?

THE APRIL 18 DECISION IS AN ORIGINAL CONSTRUCTION OF 10 U.S.C. 5539 AS CODIFIED BY THE ACT OF AUGUST 10, 1956, SUPRA, AND UNDER WELL ESTABLISHED RULES IT MUST BE REGARDED AS EFFECTIVE FROM THE EFFECTIVE DATE OF THE STATUTORY PROVISIONS THAT IT CONSTRUES. SEE 27 COMP. GEN. 686, 687; 32 ID. 17, 18, AND 39 ID. 455, 456. UNDER THE REGULATIONS IN EFFECT PRIOR TO THE DECISION, NO RIGHT OF ELECTION TO BE COVERED BY SECTION 208 WAS GIVEN TO MEMBERS WHO EXTENDED THEIR ENLISTMENTS FOR TWO OR MORE YEARS BY ONE- YEAR EXTENSIONS, THEIR BONUS, IF ANY, BEING PAID UNDER SECTION 207, 37 U.S.C. 238 (A). THIS SITUATION DIFFERS FROM 35 COMP. GEN. 371 IN THAT THERE THE MEMBERS, HAVING A RIGHT OF ELECTION, ACCEPTED A BONUS UNDER SECTION 207, AND IT WAS HELD THEY COULD RE-ELECT TO RECEIVE A BONUS UNDER SECTION 208 SO LONG AS SUCH ACTION WAS TAKEN BEFORE THE TERMINATION OF THE REENLISTMENT AS TO WHICH THE RIGHT OF ELECTION AROSE. HENCE, WE WOULD NOT QUESTION ELECTIONS AND NECESSARY ADJUSTMENTS MADE IN ACCORDANCE WITH THE RULINGS IN THE APRIL 18 DECISION FOR THOSE MEMBERS OR FORMER MEMBERS WHO ELECT WITHIN A REASONABLE PERIOD TO BE COVERED BY SECTION 208, PROVIDED THE ADJUSTMENT IS OTHERWISE PROPER. IT DOES NOT SEEM NECESSARY OR PRACTICAL, HOWEVER, TO REOPEN THE ACCOUNTS OF THOSE FORMER MEMBERS WHO MIGHT BE AFFECTED UNTIL CLAIM IS MADE BY THE FORMER MEMBER FOR AN ADDITIONAL AMOUNT ON THE BASIS OF AN ELECTION TO BE COVERED BY SECTION 208 IN ACCORDANCE WITH OUR DECISION OF APRIL 18, 1960. IN SUCH CASES THE FORMER MEMBER MAY BE PAID THE ADDITIONAL AMOUNT DUE AS THE RESULT OF SUCH ELECTION, WITHOUT REFERENCE TO THIS OFFICE FOR SETTLEMENT AS A CLAIM, PROVIDED, OF COURSE, HIS RIGHT TO THE PAYMENT IS NOT OTHERWISE DOUBTFUL. QUESTION 4 IS ANSWERED ACCORDINGLY.