B-158477, MAR. 9, 1966, 45 COMP. GEN. 561

B-158477, MAR. 9, 1966, 45 COMP. GEN. 561

GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - CONDITIONS TO QUALIFY FOR INITIAL ENTITLEMENT THE VARIABLE ENLISTMENT BONUS PROVIDED BY 37 U.S.C. 308 (G) FOR MEMBERS OF THE UNIFORMED SERVICES DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO ARE ENTITLED TO A BONUS UNDER SECTION 308 (A) UPON A FIRST REENLISTMENT IS PAYABLE TO A REGULAR ARMY SERGEANT WHO PRIOR TO REENLISTING FOR A 6-YEAR TERM SERVED A 3-YEAR TERM FOR WHICH HE DID NOT RECEIVE A REENLISTMENT BONUS BECAUSE HE WAS OUT OF THE SERVICE FOR MORE THAN 3 MONTHS INTERVAL PRESCRIBED UNDER SUBSECTION (A), THE 6-YEAR REENLISTMENT CONSTITUTING A FIRST REENLISTMENT WITHIN THE MEANING OF SUBSECTION (G), THE 3-YEAR TERM OF SERVICE FOR WHICH THE MEMBER DID NOT RECEIVE A REENLISTMENT BONUS NOT COUNTING IN DETERMINING THE 6-YEAR TERM IS A FIRST REENLISTMENT, AND THE MEMBER DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND ENTITLED TO A FIRST REENLISTMENT BONUS MEETS THE REQUIREMENTS OF 37 U.S.C. 308 (G) FOR ELIGIBILITY TO A VARIABLE REENLISTMENT BONUS.

TO LIEUTENANT COLONEL J. V. BRENDZA, DEPARTMENT OF THE ARMY, MARCH 9, 1966:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1966, WITH ENCLOSURES, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. DO-A-894, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN FAVOR OF CLARENCE S. WARREN, RA 17 547 611, COVERING A VARIABLE REENLISTMENT BONUS UNDER 37 U.S.C. 308 (G).

THE CITED SUBSECTION (G) WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 547, AND PROVIDES AS FOLLOWS:

UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, OR THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, A MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) OF THIS SECTION UPON HIS FIRST REENLISTMENT MAY BE PAID AN ADDITIONAL AMOUNT NOT MORE THAN FOUR TIMES THE AMOUNT OF THAT BONUS. THE ADDITIONAL AMOUNT SHALL BE PAID IN EQUAL YEARLY INSTALLMENTS IN EACH YEAR OF THE REENLISTMENT PERIOD. HOWEVER, IN MERITORIOUS CASES THE ADDITIONAL AMOUNT MAY BE PAID IN FEWER INSTALLMENTS IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTEREST OF THE MEMBERS. AN AMOUNT PAID UNDER THIS SUBSECTION DOES NOT COUNT AGAINST THE LIMITATION PRESCRIBED BY SUBSECTION (C) OF THIS SECTION ON THE TOTAL AMOUNT THAT MAY BE PAID UNDER THIS SECTION.

YOU STATE THAT SERGEANT WARREN ENLISTED IN THE REGULAR ARMY ON JANUARY 10, 1963, FOR A 3-YEAR TERM OF SERVICE AND UPON COMPLETION THEREOF HE REENLISTED ON JANUARY 10, 1966, FOR A 6-YEAR TERM OF SERVICE AND WAS PAID A FIRST REENLISTMENT BONUS UNDER 37 U.S.C. 308 (A). HE HAD PREVIOUSLY SERVED IN THE REGULAR ARMY FROM JUNE 26, 1959 TO JUNE 1, 1962, AND FROM JUNE 2, 1962 TO JANUARY 9, 1963, HE WAS A MEMBER OF THE ARMY RESERVE ON INACTIVE DUTY. APPARENTLY HE RECEIVED NO REENLISTMENT BONUS AS OF JANUARY 10, 1963, BECAUSE MORE THAN 3 MONTHS HAD ELAPSED SINCE HIS LAST RELEASE FROM ACTIVE DUTY. BECAUSE OF THE EARLIER TERM OF SERVICE IN THE REGULAR ARMY, HOWEVER, YOU EXPRESS DOUBT AS TO WHETHER HIS REENLISTMENT ON JANUARY 10, 1966, CONSTITUTES A FIRST REENLISTMENT WITHIN THE MEANING OF SUBSECTION (G).

THE STATUTORY AUTHORITY FOR PAYMENT OF THE VARIABLE BONUS, QUOTED ABOVE, PRESCRIBE TWO REQUIREMENTS WHICH MUST BE MET IN ORDER TO ESTABLISH ELIGIBILITY--- (1) DESIGNATION OF THE MEMBER AS HAVING A CRITICAL MILITARY SKILL AND (2) ENTITLEMENT OF THE MEMBER TO A FIRST REENLISTMENT BONUS COMPUTED UNDER SUBSECTION (A). SINCE SUBSECTION (G) REFERS TO A FIRST REENLISTMENT BONUS UNDER SUBSECTION (A) WITHOUT FURTHER QUALIFICATION OF WHAT CONSTITUTES A "FIRST REENLISTMENT," WE MUST LOOK TO SUBSECTION (A) FOR THE MEANING OF THAT TERM.

SUBSECTION (A) OF SECTION 308 PROVIDES THAT A MEMBER WHO REENLISTS IN A REGULAR COMPONENT OF THE SERVICE CONCERNED WITHIN 3 MONTHS AFTER THE DATE OF HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY (OTHER THAN FOR TRAINING) SHALL BE PAID A REENLISTMENT BONUS AND SPECIFIES THE RATES AT WHICH SUCH BONUS SHALL BE COMPUTED FOR THE FIRST, SECOND, THIRD AND FOURTH REENLISTMENTS. A FOOTNOTE TO THAT SECTION PROVIDES "ANY REENLISTMENT WHEN A BONUS WAS NOT AUTHORIZED IS NOT COUNTED.' IN OUR DECISION OF JUNE 29, 1955, 34 COMP. GEN. 715, WE HELD THAT IN DETERMINING ENTITLEMENT TO A REENLISTMENT BONUS UNDER SECTION 208 OF THE CAREER COMPENSATION ACT, WHICH WAS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, CH. 535, 68 STAT. 488, AND WHICH WAS THE ORIGINAL STATUTORY PROVISION AUTHORIZING PAYMENT OF THE GRADUATED BONUS NOW PROVIDED IN 37 U.S.C. 308 (A), IT WAS PROPER TO EXCLUDE A REENLISTMENT FOR WHICH THE MEMBER CONCERNED HAD RECEIVED NEITHER A REENLISTMENT BONUS NOR AN ENLISTMENT ALLOWANCE BECAUSE HE HAD BEEN OUT OF THE SERVICE FOR MORE THAN 3 MONTHS.

THE REGULATIONS ISSUED BY THE SECRETARY OF DEFENSE AS REQUIRED IN SUBSECTION (G) APPEAR IN DEPARTMENT OF DEFENSE DIRECTIVE 1304.10, PARAGRAPH III E 3 OF WHICH, IN PRESCRIBING REQUIREMENTS FOR ELIGIBILITY FOR THE VARIABLE REENLISTMENT BONUS, PROVIDES IN PART: "* * * THE REENLISTMENT OR EXTENSION OF ENLISTMENT MUST BE A FIRST REENLISTMENT OR EXTENSION FOR WHICH A REENLISTMENT BONUS IS PAYABLE UNDER REFERENCE (A).'

WE FIND NOTHING IN THE LAW OR REGULATIONS WHICH WOULD REQUIRE THAT THE TERM "FIRST EENLISTMENT" AS USED IN SUBSECTION (G) AND THE SAME TERM AS USED IN SUBSECTION (A) BE INTERPRETED TO HAVE DIFFERENT MEANINGS.

ASSUMING THAT MR. WARREN HAS BEEN PROPERLY DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AND OTHERWISE MEETS THE REQUIREMENTS FOR PAYMENT OF THE VARIABLE REENLISTMENT BONUS, SUCH PAYMENT SHOULD NOT BE DENIED BECAUSE OF HIS PRIOR SERVICE FROM 1959 TO 1962. THE VOUCHER ACCOMPANYING YOUR LETTER IS RETURNED APPROVED FOR PAYMENT ON THAT BASIS, IF OTHERWISE CORRECT.