TITLE: B-307892, Navy--Reenlistment Gifts, October 11, 2006
BNUMBER: B-307892
DATE: October 11, 2006
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B-307892, Navy--Reenlistment Gifts, October 11, 2006

   Decision

   Matter of: Navy--Reenlistment Gifts

   File: B-307892

   Date:  October 11, 2006

   DIGEST

   Navy has authority under 10 U.S.C. sect. 2261 to use its appropriated
   funds to purchase and present sailors with small gifts (valued at no more
   than $50) in order to recognize and commemorate enlistment and
   reenlistment, but must first promulgate regulations and assure that any
   recruiting gift programs that it implements are consistent with those
   regulations. The authority provided by section 2261 terminates on December
   31, 2007.

   DECISION

   A certifying officer of the Navy Information Operations Command (Command),
   Fort Meade, Maryland, requested an advance decision under 31 U.S.C. sect.
   3529 on whether Navy may use appropriated funds to purchase and present
   small gifts embroidered with command insignias in order to recognize
   sailors who reenlist in the Navy. We conclude that Navy has authority
   under 10 U.S.C. sect. 2261 to use its appropriated funds for this purpose,
   but must first promulgate regulations and assure that any recruiting gift
   programs that it implements are consistent with those regulations. In the
   absence of regulations, the Command may not make awards under this
   authority.

   BACKGROUND

   The Command plans to purchase and present to sailors small gifts to
   recognize and commemorate their reenlistment. The specified gifts--pens,
   mugs, ball caps, shirts, and duffle bags--would include the insignia of
   the command in which the sailor is reenlisting. The gifts a sailor
   receives would depend on the length of the reenlistment period. For
   example, a sailor who agrees to a 2-year reenlistment would receive a pen
   bearing the Command's insignia. Letter from Lt. P.R. Lindley, Certifying
   Officer, Navy Information Operations Command, Maryland, to Thomas H.
   Armstrong, Assistant General Counsel, GAO, received Aug. 3, 2006. For a
   3-year reenlistment, the sailor would receive a pen and a mug, and for 6
   years, a pen, mug, hat, shirt, and a duffle bag. Id.

   The Command believes that these gifts would help Navy "retain highly
   skilled sailors on active duty," and that the "cost of the gift is
   minimal, especially in comparison to the cost of training a replacement
   sailor." Id. The Command states, "No price can be placed on the experience
   lost or the time a new sailor will take to acquire the same skills." Id.
   Navy would use its Operation and Maintenance appropriation to pay for
   these gifts. Id.

   DISCUSSION

   Appropriated funds may be used only for authorized purposes. 31 U.S.C.
   sect. 1301(a). The general rule is well established that appropriated
   funds may not be used for personal gifts, except as authorized by law.
   See, e.g., 68 Comp. Gen. 226, 227 (1989) (the Department of Housing and
   Urban Development could not use appropriated funds to pay for gifts to
   Russian exhibit organizers and participants in connection with its support
   of an international trade show because of "the well recognized rule of
   appropriations law that prohibits the use of appropriated funds for
   entertainment and gifts, unless specifically authorized"). See also 70
   Comp. Gen. 248, 251 (1991). In this case, Congress has statutorily
   authorized Navy and other military departments to use appropriated funds
   to procure and award small gifts for the purposes of recognizing and
   commemorating recruitment and reenlistment in the armed forces. 10 U.S.C.
   sect. 2261.[1]

   In pertinent part, section 2261 of title 10 of the United States Code
   provides:

      "(a) Expenditures for recognition items--Under regulations prescribed by
      the Secretary of Defense, appropriated funds may be expended--

         "(1) to procure recognition items of nominal or modest value for
         recruitment or retention purposes; and

         "(2) to present such items--

            (A)  to members of the armed forces."

   Id. (emphasis added). Section 2261 defines a "recognition item of nominal
   or modest value" as "a commemorative coin, medal, trophy, badge, flag,
   poster, painting, or other similar item that is valued at less than $50
   per item and is designed to recognize or commemorate service in the armed
   forces." Id.

   The meaning and purpose of section 2261 seem plain on its face. Congress
   has authorized the Department of Defense (including Navy) to use
   appropriated funds to make small gifts to military members in order to
   recognize or commemorate their decisions to enlist and reenlist. Congress
   has limited the value of the gifts to less than $50 each.

   The legislative history of section 2261 supports this plain meaning.[2]
   The Senate Committee on Armed Services, in reporting the bill that became
   law, stated:

     "[T]he Ronald W. Reagan National Defense Authorization Act for Fiscal
     Year 2005 (Public Law 108-375) authorized through December 31, 2005, the
     award of recognition items . . . to members of the Army Reserve, Army
     National Guard, and Air National Guard. The committee believes that this
     authority has proven valuable during time of war in enabling commands to
     appropriately express appreciation for the dedicated service and
     sacrifices of individual members, family members, and others who have
     served and supported the Armed Forces, and that this authority should be
     extended to all Active and Reserve components."

   S. Rep. No. 109-69, at 323 (2005).

   Thus, section 2261 grants Navy the authority to use appropriated funds to
   present sailors with small gifts (valued at no more than $50) to recognize
   or commemorate their enlistment and reenlistment decisions. However, use
   of the section 2261 authority is subject to regulations issued by the
   Secretary of Defense. 10 U.S.C. sect. 2261(a). The Secretary delegated to
   the military department secretaries the responsibility of issuing
   implementing regulations for their respective departments, and Navy has
   not yet issued its regulations under section 2261. Letter from Anne M.
   Brennan, Assistant General Counsel of the Navy, to Thomas H. Armstrong,
   GAO, July 27, 2006, at 3 (Brennan Letter). Until regulations are issued,
   section 2261 may not be used as authority for gifts to those who reenlist.

   Whether the specific recognition items the Command is considering comport
   with the statutory definition of a recognition item of modest value is, in
   the first instance, for Navy to determine. We would object to a particular
   item only if the relationship between that item and the purpose of the
   statute was so attenuated as to take the matter beyond Navy's legitimate
   range of discretion. See, e.g., 70 Comp. Gen. 720, 721 (1991); B-247563.3,
   Apr. 5, 1996. As noted above, the statute defines a "recognition item of
   nominal or modest value" as a commemorative coin, medal, trophy, badge,
   flag, poster, painting or other similar item that is "designed to
   recognize or commemorate service in the Armed Forces." 10 U.S.C. sect.
   2261(c). Navy recognizes that the examples provided in the statute do not
   include the items that the Command proposed--hats, mugs, and duffle bags
   with the Command insignia. Brennan Letter, at 3. However, there is no
   reason to believe that Congress intended the list of examples provided in
   the statute to be all-inclusive. See 10 U.S.C. sect. 2261(c) (granting
   discretion to present "other similar items"). Navy notes that Congress
   required that each item have a value of less than $50 and be designed to
   recognize or commemorate service in the Armed Forces. Brennan Letter, at
   3. "Arguably, nothing better could commemorate an individual's service in
   the armed forces than an item displaying the logo of the command in which
   the individual served." Brennan Letter, at 3.

   We recognize that the items which the Command is considering are less
   traditional and less formal in nature than those mentioned in section
   2261, and that they may have some practical utility different from those
   items. However, we accept Navy's suggestion that, notwithstanding their
   practical value, items imprinted with the Command's insignia may serve to
   express the Command's appreciation for the member's sacrifice and bring
   public recognition to the member's reenlistment, particularly when
   presented solely upon reenlistment. Section 2261 expressly aims to
   recognize enlistment and reenlistment by bestowing honor on those who do
   so. So long as the Navy properly promulgates regulations to implement
   section 2261 and the items authorized to be awarded under those
   regulations do not exceed the statutory dollar limitation, are designed by
   Navy to recognize or commemorate service in the Navy, and are awarded
   under circumstances that reflect ceremonial honor and recognition, those
   items may serve the statute's purposes. Cf. B-243025, May 2, 1991.

   The authority granted by section 2261 is temporary. The provision
   stipulates, "The authority under this section shall expire December 31,
   2007." 10 U.S.C. sect. 2261(d). Thus, in the absence of additional
   legislative action, after December 31, 2007, section 2261 will no longer
   authorize Navy to make such gifts.[3]

   CONCLUSION

   Navy has authority under 10 U.S.C. sect. 2261 to use its appropriations to
   procure and present to sailors small gifts to recognize or commemorate
   their enlistment and reenlistment, if Navy promulgates regulations and
   ensures that any recruiting gift programs are consistent with those
   regulations. Section 2261 provides for the award of recognition items that
   are valued at less than $50 each and are designed to recognize or
   commemorate service in the armed forces. 10 U.S.C. sect. 2261. We see no
   objection if Navy's regulations were to permit the items that the Command
   is considering. In the absence of regulations implementing this authority,
   however, the Command may not make awards under section 2261.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] This provision was enacted by the  National Defense Authorization Act
   for Fiscal Year 2006, Pub. L. No. 109-163, div. A, title V,
   sect. 589(a)(1), 119 Stat. 3136, 3279 (Jan. 6, 2006).

   [2] Reference to legislative history is useful to illuminate congressional
   intent and to confirm a statute's plain meaning. E.g., Conroy v. Aniskoff,
   507 U.S. 511, 514, 516 (1993) (although it found the statute to be
   "unambiguous, unequivocal, and unlimited," the Court examined legislative
   history to confirm that its literal reading of the statute was not absurd,
   illogical, or contrary to congressional intent). See also 55 Comp. Gen.
   307, 325 (1975) (use of legislative history to "illuminate intent," as
   opposed to "writing into the law that which is not there").

   [3] Under other authority, the Secretary of Defense "may authorize the
   payment of a cash award to, and incur necessary expense for the honorary
   recognition of, a member of the armed forces." 10 U.S.C. sect. 1124(a).
   Navy does not view this as authority to present gifts to sailors to
   promote reenlistment. See Brennan Letter, at 3 n. 1.