B-144605, SEP 30, 1970, 50 COMP GEN 229

B-144605, SEP 30, 1970, 50 COMP GEN 229

MILITARY PERSONNEL - SEPARATION - CONSENT, ETC., REQUIREMENT WHILE THE PURPOSE OF 10 U.S.C. 1163(A) IS TO PREVENT AN OFFICER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WITH AT LEAST 3 YEARS' COMMISSIONED SERVICE FROM BEING ARBITRARILY SEPARATED WITHOUT THE OFFICER'S CONSENT, UNLESS THE SEPARATION IS RECOMMENDED BY A BOARD OF OFFICERS CONVENED BY AN AUTHORITY DESIGNATED BY THE SECRETARY CONCERNED, THERE IS NOTHING IN THE SECTION TO PRECLUDE AN OFFICER WHO HAS NOT CONSENTED TO SEPARATION FROM WAIVING CONSIDERATION BY A BOARD OF OFFICERS. PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - WHAT CONSTITUTES INVOLUNTARY - PREGNANCY UNDER 10 U.S.C. 687(A), A MEMBER OF A RESERVE COMPONENT, OR A MEMBER OF THE ARMY OR AIR FORCE WITHOUT COMPONENT, WHO IS RELIEVED FROM ACTIVE DUTY "INVOLUNTARILY," IS ENTITLED TO READJUSTMENT PAY, AND SINCE IT IS MANDATORY UNDER AIR FORCE REGULATION 36-12, WHICH ESTABLISHES PROCEDURES GOVERNING THE SEPARATION OF OFFICERS, TO DISCHARGE A WOMAN OFFICER WHEN A DETERMINATION IS MADE BY A MEDICAL OFFICER THAT SHE IS PREGNANT, SHE IS CONSIDERED INVOLUNTARILY SEPARATED AND ENTITLED TO READJUSTMENT PAY WHETHER SHE IS SEPARATED WITH OR WITHOUT HER CONSENT, THE SOLE DETERMINING FACTOR BEING THAT OF PREGNANCY. THEREFORE, A RESERVE OFFICER SEPARATED WITHOUT HER CONSENT BY REASON OF PREGNANCY WHO WAIVED THE HEARING AND BOARD RECOMMENDATIONS IN 10 U.S.C. 1163(A), HAVING BEEN INVOLUNTARILY SEPARATED, IS ENTITLED TO READJUSTMENT PAY.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 30, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED JULY 15, 1970, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON TWO QUESTIONS DEALING WITH THE MATTER OF WHETHER A FEMALE OFFICER OF A RESERVE COMPONENT WHO, WITHOUT HER CONSENT, IS SEPARATED FOR REASONS OF PREGNANCY, MAY BE CONSIDERED TO BE "INVOLUNTARILY" SEPARATED SO AS TO ENTITLE HER TO READJUSTMENT PAY "IF SHE WAIVES CONSIDERATION BY A BOARD OF OFFICERS REFERRED TO IN 10 U.S.C. 1163(A)." THE QUESTIONS ARE STATED AND DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 444, WHICH ACCOMPANIED THAT LETTER.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

1. MAY A FEMALE OFFICER OF A RESERVE COMPONENT, WITHOUT CONSENTING TO SEPARATION, WAIVE CONSIDERATION BY THE BOARD OF OFFICERS REFERRED TO IN 10 U.S.C. 1163(A)?

2. IF THE ANSWER TO (1) IS IN THE AFFIRMATIVE, WOULD THE SEPARATION WITHOUT RECOMMENDATIONS BY THE BOARD OF OFFICERS BE CONSIDERED INVOLUNTARY FOR THE PURPOSE OF ENTITLEMENT TO READJUSTMENT PAY?

CONCERNING THE SEPARATION OF AN OFFICER OF A RESERVE COMPONENT, 10 U.S.C. 1163(A) PROVIDES AS FOLLOWS:

(A) AN OFFICER OF A RESERVE COMPONENT WHO HAS AT LEAST THREE YEARS OF SERVICE AS A COMMISSIONED OFFICER MAY NOT BE SEPARATED FROM THAT COMPONENT WITHOUT HIS CONSENT EXCEPT UNDER AN APPROVED RECOMMENDATION OF A BOARD OF OFFICERS CONVENED BY AN AUTHORITY DESIGNATED BY THE SECRETARY CONCERNED, OR BY THE APPROVED SENTENCE OF A COURT-MARTIAL. ***

UNDER THE PROVISIONS OF 10 U.S.C. 687(A), EXCEPT FOR MEMBERS COVERED BY SUBSECTION (B), A MEMBER OF A RESERVE COMPONENT OR A MEMBER OF THE ARMY OR THE AIR FORCE WITHOUT COMPONENT WHO IS RELIEVED FROM ACTIVE DUTY "INVOLUNTARILY" UNDER THE CIRCUMSTANCES THERE PRESCRIBED, IS ENTITLED TO A READJUSTMENT PAYMENT COMPUTED ON THE BASIS THERE INDICATED. SUBSECTION (B)(1) OF SECTION 687, THE PART OF THAT SUBSECTION APPLICABLE HERE, PRECLUDES PAYMENT OF READJUSTMENT PAY TO A MEMBER WHO IS RELIEVED FROM ACTIVE DUTY AT HIS REQUEST.

IN OUR DECISION OF JANUARY 27, 1961, B-144605, CITED IN THE COMMITTEE ACTION, WE CONSIDERED THE QUESTION OF ENTITLEMENT TO READJUSTMENT PAY IN THE CASE OF A FEMALE AIR FORCE RESERVE OFFICER WHO REFUSED TO TENDER HER RESIGNATION ON ACCOUNT OF PREGNANCY AS PRESCRIBED IN SECTION III, AFR 36- 36, MARCH 27, 1953, THEN IN EFFECT, AND WHOSE DISCHARGE WAS EFFECTED PURSUANT TO THE APPROVED RECOMMENDATIONS OF A BOARD OF OFFICERS CONVENED UNDER 10 U.S.C. 1163(A) AND SECTION III OF AFR 36 36. WE HELD THAT SINCE THE OFFICER WAS DISCHARGED PURSUANT TO THE PROCEDURE PRESCRIBED IN THE REGULATIONS IN COMPLIANCE WITH SECTION 1163(A) OF TITLE 10, HER DISCHARGE WAS CONSIDERED INVOLUNTARY FOR THE PURPOSE OF PAYMENT OF READJUSTMENT PAY. IN THIS CONNECTION, SEE PARAGRAPH 40411 AND RULE 7, TABLE 4-4-7, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL.

AIR FORCE REGULATION 36-12, CURRENTLY IN EFFECT - SOMEWHAT SIMILAR TO AFR 36-36 MENTIONED ABOVE - ESTABLISHES PROCEDURES GOVERNING THE SEPARATION OF OFFICERS OF THE AIR FORCE AND PARAGRAPHS 40A AND 41 OF THAT REGULATION, CITED IN THE COMMITTEE ACTION, PROVIDE IN PERTINENT PART AS FOLLOWS:

A. PREGNANCY:

(1) GENERAL:

(A) A WOMAN OFFICER WILL BE DISCHARGED FROM THE SERVICE WITH THE LEAST PRACTICABLE DELAY WHEN A DETERMINATION IS MADE BY A MEDICAL OFFICER THAT SHE IS PREGNANT. ***

41. DISPOSITION BOARD. A NONPROBATIONARY RESERVE OFFICER SHALL NOT BE INVOLUNTARILY DISCHARGED, EXCEPT PURSUANT TO AN APPROVED RECOMMENDATION OF A BOARD OF OFFICERS (HEREINAFTER REFERRED TO AS A "DISPOSITION BOARD" OR "DISPOSITION BOARDS"), UNLESS A REQUEST FOR WAIVER OF HEARING IS SUBMITTED IN WRITING (ATTACHMENTS 15 AND 16). THEREFORE, A NONPROBATIONARY RESERVE OFFICER WHO DECLINES TO TENDER A RESIGNATION OR TO APPLY FOR DISCHARGE, OR WHO DOES NOT SUBMIT A WAIVER TO A HEARING, WILL HAVE HIS/HER CASE REFERRED TO A DISPOSITION BOARD.

IN COMMENTING ON PARAGRAPH 40A OF THE REGULATION, IT IS STATED IN THE COMMITTEE ACTION THAT THERE IS NO ALTERNATIVE TO SEPARATION, EITHER WITH OR WITHOUT CONSENT, THE SOLE DETERMINING FACTOR BEING THAT OF PREGNANCY. UNLESS THE OFFICER MAKES APPLICATION FOR SEPARATION WITH HER CONSENT, IT IS STATED THAT SHE MUST BE SEPARATED INVOLUNTARILY IN THE MANNER AUTHORIZED UNDER 10 U.S.C. 1163(A), EVEN THOUGH BOTH A HEARING AND BOARD RECOMMENDATIONS ARE PRO FORMA, THERE BEING NO ALTERNATIVE TO SEPARATION UNDER THE CIRCUMSTANCES.

THE COMMITTEE ACTION FURTHER STATES THAT THE PRACTICAL EFFECT OF PARAGRAPH 41 OF THE REGULATION IS THAT THE QUESTION OF SEPARATION IS REFERRED TO A BOARD OF OFFICERS FOR CONSIDERATION UNDER THE STATUTE ONLY IF THE OFFICER REFUSES CONSENT TO SEPARATION (I.E., RESIGNATION, OR APPLICATION FOR DISCHARGE), AND/OR REFUSES TO SUBMIT A WAIVER FOR HEARING BEFORE A BOARD. IT IS STATED THAT AS A RESULT, IF THE OFFICER DOES SUBMIT A WAIVER FOR HEARING, SHE IS SEPARATED WITHOUT APPROVED RECOMMENDATIONS OF A BOARD.

IT IS REPORTED THAT THE AIR FORCE POSITION IS THAT A FEMALE NONPROBATIONARY RESERVE OFFICER IS ENTITLED TO REQUEST OR WAIVE, IN WRITING, ANY OR ALL OF THE FOLLOWING: NAMELY, (A) TO HAVE HER CASE HEARD BY A BOARD OF NOT LESS THAN THREE OFFICERS, (B) TO APPEAR IN PERSON BEFORE SUCH A BOARD, (C) TO BE REPRESENTED BY LEGAL COUNSEL AND (D) TO SUBMIT STATEMENTS IN HER OWN BEHALF. IN THIS CONNECTION, A REQUEST TO WAIVE A HEARING BEFORE A BOARD OF OFFICERS IN PREGNANCY CASES IS OUTLINED IN ATTACHMENT 15 - MENTIONED IN PARAGRAPH 41 - WHICH THE OFFICER IS REQUIRED TO EXECUTE. THE OFFICER THERE ACKNOWLEDGES (ATTACHMENT 15), AMONG OTHER THINGS, THAT SHE IS SUBJECT TO INVOLUNTARY DISCHARGE FROM ALL APPOINTMENTS HELD BY HER AND THAT SHE WILL BE ELIGIBLE FOR READJUSTMENT PAY PROVIDED SHE IS OTHERWISE ELIGIBLE. THE COMMITTEE ACTION STATES THAT THE INTENT OF AFR 36-12 IS NOT TO RENDER A WOMAN OFFICER INELIGIBLE FOR READJUSTMENT PAY IF SHE ELECTS TO WAIVE A HEARING BEFORE A BOARD OF OFFICERS, MERELY BECAUSE OF THAT WAIVER.

WHILE THE APPARENT PURPOSE OF SECTION 1163(A) OF TITLE 10 IS TO PREVENT AN OFFICER OF A RESERVE COMPONENT WITH AT LEAST 3 YEARS' COMMISSIONED SERVICE FROM BEING ARBITRARILY SEPARATED WITHOUT HIS OR HER CONSENT, WE FIND NOTHING IN THAT SECTION WHICH WOULD PRECLUDE SUCH AN OFFICER, WITHOUT CONSENTING TO SEPARATION, FROM WAIVING CONSIDERATION OF HER CASE BY A BOARD OF OFFICERS TO WHICH SHE IS ENTITLED AS PROVIDED IN THAT SECTION. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

PARAGRAPH 40A OF AIR FORCE REGULATION 36-12 EXPRESSLY REQUIRES THAT WHEN A DETERMINATION IS MADE BY A MEDICAL OFFICER THAT A WOMAN OFFICER IS PREGNANT, SHE WILL BE DISCHARGED FROM THE SERVICE. IT WOULD SEEM THAT A FEMALE OFFICER IN THIS SITUATION IS TO BE SEPARATED, WITH OR WITHOUT HER CONSENT, THE SOLE DETERMINING FACTOR BEING THAT OF PREGNANCY. IN OTHER WORDS, HER SEPARATION IS MANDATORY IN THE CIRCUMSTANCES. IT WOULD SEEM THAT A MERE WAIVER BY THE OFFICER OF HER RIGHT TO A HEARING AND BOARD PROCEEDINGS UNDER 10 U.S.C. 1163(A) WOULD NOT RENDER AN OTHERWISE INVOLUNTARY RELEASE VOLUNTARY.

IT IS OUR VIEW THAT A FEMALE OFFICER WHO IS SEPARATED WITHOUT HER CONSENT BY REASON OF PREGNANCY, AND WITHOUT A HEARING AND BOARD RECOMMENDATIONS WHICH SHE WAIVED, MAY BE CONSIDERED TO HAVE BEEN SEPARATED INVOLUNTARILY FOR PURPOSES OF ENTITLEMENT TO READJUSTMENT PAY. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.