B-173173, NOV 4, 1971, 51 COMP GEN 261

B-173173, NOV 4, 1971, 51 COMP GEN 261

GRATUITIES - REENLISTMENT BONUS - CRITICAL MILITARY SKILLS - CONDITIONS TO QUALIFY FOR INITIAL ENTITLEMENT A SERGEANT FIRST CLASS WHO HAD 1 YEAR, 1 MONTH, AND 28 DAYS OF ENLISTED ACTIVE DUTY PRIOR TO 17 YEARS OF COMMISSIONED SERVICE, UPON THE TERMINATION OF WHICH HE IMMEDIATELY REENLISTED FOR 3 YEARS IN GRADE E-7 AND WAS PAID A FIRST REENLISTMENT BONUS PURSUANT TO 37 U.S.C. 308(D), DOES NOT QUALIFY FOR THE PAYMENT OF THE VARIABLE REENLISTMENT BONUS PRESCRIBED BY 37 U.S.C. 308(G), FOR NOT ONLY DOES HE NOT MEET THE REQUIREMENT THAT HE MUST HAVE SERVED AT LEAST 21 MONTHS OF ENLISTED ACTIVE SERVICE, HE DOES NOT AS A FORMER OFFICER REENLISTING IN THE SERVICE SATISFY THE REQUIREMENT THAT HE POSSESS A CRITICAL SKILL THAT THE SERVICE DOES NOT WANT TO LOSE, WHICH IS THE SOLE PURPOSE OF INDUCING FIRST-TERM ENLISTED MEMBERS TO REENLIST BY OFFERING THEM THE VARIABLE REENLISTMENT BONUS.

TO LIEUTENANT COLONEL J. H. COOK, DEPARTMENT OF THE ARMY, NOVEMBER 4, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 24, 1971, WITH ENCLOSURES, REQUESTING A DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A VARIABLE REENLISTMENT BONUS TO SERGEANT FIRST CLASS JIMMIE W. FRAZIER, SSAN XXX-XX-XXXX. YOUR SUBMISSION HAS BEEN ASSIGNED D.O. NO. A-1127 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT SERGEANT FRAZIER HAD 1 YEAR, 1 MONTH AND 28 DAYS OF ENLISTED ACTIVE SERVICE PRIOR TO RECEIVING HIS COMMISSION IN 1954. IT IS FURTHER INDICATED THAT HE SERVED ON ACTIVE DUTY AS A COMMISSIONED OFFICER UNTIL HE WAS RELIEVED FROM ACTIVE DUTY ON JANUARY 24, 1971, UNDER AUTHORITY OF SECTION XV, CHAPTER 3, AR 635-100. ON JANUARY 25, 1971, HE REENLISTED FOR A TERM OF 3 YEARS IN GRADE E-7 AND WAS PAID A FIRST REENLISTMENT BONUS IN THE AMOUNT OF $1,587.64, AS A MEMBER WITH OVER 17 YEARS OF SERVICE. IT IS FURTHER STATED THAT THE FIRST INCREMENT ON A VARIABLE REENLISTMENT BONUS-2 IN THE AMOUNT OF $1,058.43 WAS PAID ON FEBRUARY 5, 1971. THE VOUCHER SUBMITTED FOR DECISION COVERS PAYMENT IN A LUMP SUM OF THE REMAINING UNPAID INCREMENTS.

IN VIEW OF THE FACT THAT THE MEMBER HAD ONLY 1 YEAR, 1 MONTH AND 28 DAYS OF ENLISTED ACTIVE SERVICE, DOUBT AS TO THE LEGALITY OF PAYMENT OF THE VARIABLE REENLISTMENT BONUS IS EXPRESSED SINCE PARAGRAPH 10-3A(3), AR 600- 200, PROVIDES THAT A MEMBER TO BE ELIGIBLE FOR SUCH BONUS MUST HAVE COMPLETED AT LEAST 21 MONTHS OF ACTIVE SERVICE BEFORE DISCHARGE OR RELEASE FROM ACTIVE DUTY. YOU QUESTION SPECIFICALLY WHETHER THE COMMISSIONED SERVICE PRIOR TO HIS RELEASE FROM ACTIVE DUTY MAY BE COUNTED TO MEET THE REQUIREMENT OF 21 MONTHS' ACTIVE SERVICE.

SUBSECTION 308(D) OF TITLE 37, U.S. CODE, SPECIFICALLY AUTHORIZES A REENLISTMENT BONUS UNDER SUBSECTION (A) OF THAT SECTION IN THE CASE OF AN OFFICER OF A UNIFORMED SERVICE WHO REENLISTS IN THAT SERVICE WITHIN 3 MONTHS OF HIS RELEASE AS AN OFFICER, IF HE SERVED AS AN ENLISTED MEMBER IN THAT SERVICE IMMEDIATELY BEFORE SERVING AS AN OFFICER.

VARIABLE REENLISTMENT BONUS IS AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 308(G) WHICH PROVIDES AS FOLLOWS:

(G) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE, OR THE SECRETARY OF TRANSPORTATION 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. 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.

THE LEGISLATIVE HISTORY OF SUBSECTION (G) OF SECTION 308 OF TITLE 37 DISCLOSES THAT THE PURPOSE OF THE VARIABLE REENLISTMENT BONUS IS TO PROVIDE A STRONG REENLISTMENT INCENTIVE TO FIRST-TERM ENLISTED PERSONNEL WHOSE SKILLS ARE CRITICALLY REQUIRED BY THE MILITARY DEPARTMENTS. IT IS INDICATED IN THE LEGISLATIVE HISTORY THAT IT WAS CONSIDERED THAT THE BEST METHOD OF PROVIDING THIS INCENTIVE WAS TO CONCENTRATE THE MONETARY REWARD OF THE VARIABLE REENLISTMENT BONUS AT THE FIRST REENLISTMENT DECISION POINT. SEE SENATE REPORT NO. 544, 89TH CONGRESS, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, ON H.R. 9075, PAGES 13-14, 18, AND HOUSE REPORT NO. 549, 89TH CONGRESS, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 9075, PAGES 47-48.

IN VIEW OF THIS INTENT EXPRESSED IN THE LEGISLATIVE HISTORY IT APPEARS THAT A VARIABLE REENLISTMENT BONUS WAS DESIGNED TO ENCOURAGE MEMBERS WHO DURING THEIR FIRST ENLISTMENT ACQUIRE A MILITARY SKILL DESIGNATED AS CRITICAL BY A MILITARY DEPARTMENT TO REENLIST SO THAT THE SKILL WOULD NOT BE LOST TO THE SERVICE. NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY TO INDICATE ANY INTENT THAT IT WOULD BE PAID TO FORMER OFFICERS WHO REENLIST FOLLOWING RELEASE FROM DUTY AS OFFICERS.

AR 600-200, PARAGRAPH 10-3A SETS FORTH THE REQUIREMENTS FOR ELIGIBILITY TO RECEIVE VARIABLE REENLISTMENT BONUS. THAT PARAGRAPH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

10-3 ELIGIBILITY. A. AN INDIVIDUAL IS ELIGIBLE TO RECEIVE VRB IF, AT THE TIME OF REENLISTMENT, HE OR SHE -

(3) HAS COMPLETED AT LEAST 21 MONTHS OF ACTIVE SERVICE (OTHER THAN ACTIVE DUTY FOR TRAINING) BEFORE DISCHARGE, RELEASE FROM ACTIVE DUTY, OR EXTENSION OF INITIAL TERM OF SERVICE (THE 21 MONTHS OF ACTIVE SERVICE MUST BE PERFORMED IN THE ENLISTMENT WHICH IS BEING EXTENDED OR BEING TERMINATED BY DISCHARGE FOLLOWED BY REENLISTMENT WITHIN 3 MONTHS).

UNDER THE TERMS OF THE REGULATION THE 21 MONTHS OF ACTIVE SERVICE REQUIRED TO QUALIFY FOR THE VARIABLE REENLISTMENT BONUS MUST HAVE BEEN SERVED IN THE ENLISTMENT WHICH IS BEING EXTENDED OR WHICH IS BEING TERMINATED BY DISCHARGE FOLLOWED BY THE REENLISTMENT ON WHICH THE FIRST REENLISTMENT BONUS IS BASED. THEREFORE, THE REGULATION APPEARS TO REQUIRE AT LEAST 21 MONTHS OF ACTIVE ENLISTED SERVICE AND SINCE IT IS SPECIFIED THAT SUCH SERVICE MUST BE PERFORMED IN THE ENLISTMENT WHICH IS BEING EXTENDED OR BEING TERMINATED BY DISCHARGE FOLLOWED BY REENLISTMENT, SUCH LANGUAGE WOULD PRECLUDE PAYMENT OF THE VARIABLE REENLISTMENT BONUS TO A MEMBER WHO REENLISTS FOLLOWING SERVICE AS AN OFFICER.

FURTHERMORE, AS INDICATED ABOVE, THE LEGISLATIVE HISTORY OF THE PROVISION AUTHORIZING THE VARIABLE REENLISTMENT BONUS SHOWS THAT THE SOLE PURPOSE IN ENACTING SUCH PROVISION WAS TO AUTHORIZE THE BONUS AS AN INDUCEMENT TO RETAIN IN THE SERVICE FIRST TERM ENLISTED MEMBERS POSSESSING CRITICAL SKILLS. IN VIEW THEREOF, WE ARE OF THE OPINION THAT SUBSECTION 308(G) IS TO BE READ AS APPLYING ONLY TO AN ENLISTED MEMBER WHO IS DESIGNATED AS HAVING A CRITICAL MILITARY SKILL AT THE TIME OF HIS DISCHARGE AND WHO IS ENTITLED TO A BONUS COMPUTED UNDER SUBSECTION (A) UPON HIS FIRST REENLISTMENT, FOLLOWING DISCHARGE AS AN ENLISTED MEMBER.

ACCORDINGLY, PAYMENT ON THE VOUCHER IN FAVOR OF SERGEANT FRAZIER IS NOT AUTHORIZED. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.