B-129541, NOVEMBER 28, 1956, 36 COMP. GEN. 431

B-129541, NOVEMBER 28, 1956, 36 COMP. GEN. 431

MILITARY PERSONNEL - DISABILITY SEVERANCE PAY RECOUPMENTS - SUBSEQUENT DISABILITY RETIREMENT - RATE PAYABLE A LUMP-SUM SEVERANCE PAYMENT RECEIVED BY A FORMER ENLISTED MAN ON DISCHARGE FOR DISABILITY AND AFTER HIS NAME HAD BEEN REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST DOES NOT HAVE TO BE DEDUCTED FROM SUBSEQUENT RETIREMENT BENEFITS, AND THE SERVICE PREVIOUSLY COUNTED FOR SEVERANCE PAY MAY BE INCLUDED IN COMPUTING THE AMOUNT OF RETIRED PAY. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES, WHOSE DISABILITY RETIRED PAY RECEIVED WHILE ON A TEMPORARY DISABILITY RETIRED LIST WAS TERMINATED ON DISCHARGE, MAY HAVE TIME SPENT ON SUCH TEMPORARY DISABILITY RETIRED LIST COUNTED IN COMPUTING RETIRED PAY SUBSEQUENTLY DUE MEMBER, AND THE CREDITING OF SUCH INACTIVE TIME WILL NOT RESULT IN ANY "INCREASE" IN RETIRED PAY WITHIN THE PROHIBITION IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949. THE PLACEMENT OF A MEMBER OF THE UNIFORMED SERVICES ON THE TEMPORARY DISABILITY RETIRED LIST AT THE TIME HE HELD THE GRADE OF BASIC AIRMAN IS A NEW ACTION, INDEPENDENT OF A FORMER ACTION, BY WHICH THE MEMBER THEN HOLDING THE GRADE OF TECHNICAL SERGEANT WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND DISCHARGED, AND, INASMUCH AS SERVICE IN THE HIGHER GRADE OF TECHNICAL SERGEANT WAS PERMANENT, AS DISTINGUISHED FROM A TEMPORARY GRADE ON WHICH RETIRED PAY MAY BE COMPUTED, THERE IS NO BASIS FOR COMPUTING THE MEMBER'S RETIRED PAY IN ANY GRADE OTHER THAN THAT OF BASIC AIRMAN.

TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, NOVEMBER 28, 1956:

BY LETTER OF OCTOBER 10, 1956, HEADQUARTERS, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR LETTER DATED SEPTEMBER 26, 1956, WITH ENCLOSURES, REQUESTING A DECISION ON CERTAIN QUESTIONS CONCERNING PAYMENT OF RETIRED PAY AND RECOUPMENT OF DISABILITY SEVERANCE PAY IN THE CASE OF A " TECHNICAL SERGEANT" IN THE USAF.

YOU STATE THAT THE ENLISTED MAN WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 31, 1951, WITH A DISABILITY RATING OF 100 PERCENT, AFTER COMPLETING 14 YEARS, 5 MONTHS AND 12 DAYS OF ACTIVE DUTY; AND THAT HE WAS REMOVED FOR SUCH LIST, DISCHARGED BY REASON OF PHYSICAL DISABILITY EFFECTIVE NOVEMBER 30, 1953, AND PAID SEVERANCE PAY IN THE AMOUNT OF $5,320.32 UNDER THE PROVISIONS OF SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, 37 U.S.C. 273. LATER, ON JUNE 15, 1955, HE REENLISTED IN THE REGULAR AIR FORCE AND SERVED ON ACTIVE DUTY IN THE GRADE OF BASIC AIRMAN UNTIL JULY 31, 1956, WHEN HE WAS RELEASED FROM ACTIVE DUTY AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH A DISABILITY RATING OF 100 PERCENT, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 272 AND 279. DURING SUCH LATER TERM OF SERVICE HE SERVED A TOTAL OF 11 MONTHS AND 24 DAYS, HAVING LOST 51 DAYS DUE TO CONFINEMENT. IT IS REPORTED FURTHER THAT HE HAS BEEN DECLARED MENTALLY INCOMPETENT AND THAT THE PERSON WHO WAS DESIGNATED AS HIS TRUSTEE UNDER THE ACT OF JUNE 21, 1950, 64 STAT. 249, 37 U.S.C. 351, HAS ELECTED TO RECEIVE RETIRED PAY ON HIS BEHALF COMPUTED ON THE PERCENTAGE OF HIS DISABILITY. DECISION IS REQUESTED AS TO WHETHER RECOUPMENT OF THE SEVERANCE PAY IS REQUIRED AND, IF NOT, WHETHER THE CLAIMANT'S SERVICE ON WHICH THE SEVERANCE PAY AWARD WAS DETERMINED, TOGETHER WITH THE PERIOD OF TIME PREVIOUSLY SPENT ON THE TEMPORARY DISABILITY RETIRED LIST, MAY BE INCLUDED WITH HIS SUBSEQUENT ACTIVE SERVICE IN COMPUTING THE AMOUNT OF HIS RETIRED PAY COMMENCING AUGUST 1, 1956.

IN ENACTING SECTION 312 (M) OF THE OFFICER PERSONNEL ACT OF 1947 (ADDED BY THE ACT OF JUNE 18, 1954, 68 STAT. 256), 34 U.S.C. 410J, AND SECTION 16 (B) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 165, 10 U.S.C. 600N (B), CONGRESS RECOGNIZED THE CONCEPT OF REQUIRING DEDUCTION OF A LUMP-SUM SEVERANCE PAYMENT, PREVIOUSLY RECEIVED, FROM RETIREMENT BENEFITS BASED ON THE SAME PERIOD OF MILITARY SERVICE. HOWEVER, SUCH A DEDUCTION IS REQUIRED TO BE MADE ONLY IN THE CLASSES OF CASES COVERED BY THOSE SECTIONS OR SIMILAR SPECIFIC PROVISIONS OF THE STATUTES. IN THE ABSENCE OF SIMILAR LEGISLATION APPLICABLE TO CASES SUCH AS THAT HERE INVOLVED, THERE APPEARS TO BE NO AUTHORITY TO REQUIRE RECOUPMENT OF THE DISABILITY SEVERANCE PAY PAID TO THE CLAIMANT. COMPARE 35 COMP. GEN. 601 AND THE FINAL PROVISO OF SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 272 (D), PROVIDES FOR COMPUTATION OF THE AMOUNT OF DISABILITY RETIREMENT PAY ON THE BASIS OF "THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY * * * (THE MEMBER) AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER," OR A HIGHER TEMPORARY RANK, GRADE, OR RATING THERETOFORE HELD IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY CONCERNED. IN VIEW OF SUCH PROVISIONS, THE CONCLUSION EXPRESSED ABOVE RESPECTING QUESTION 1, AND THE ABSENCE OF AN APPLICABLE STATUTORY PROVISION PROHIBITING THE COUNTING OF SERVICE FOR RETIRED PAY PURPOSES WHICH PREVIOUSLY HAD BEEN COMPUTED FOR SEVERANCE PAY PURPOSES, IT IS OUR VIEW THAT THE SERVICE USED TO COMPUTE THE CLAIMANT'S SEVERANCE PAY MAY BE INCLUDED IN COMPUTING THE AMOUNT OF RETIRED PAY DUE HIM.

THE TIME PREVIOUSLY SPENT ON THE TEMPORARY DISABILITY RETIRED LIST MAY ALSO BE INCLUDED WITH HIS ACTIVE SERVICE IN COMPUTING SUCH RETIRED PAY SINCE SECTION 202 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (B), AUTHORIZES THE ACCRUAL OF ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES FOR PERIODS WHILE ON SUCH LIST. WHILE THE PROVISO IN THAT SECTION DOES NOT PERMIT THE USE OF SUCH INACTIVE SERVICE CREDIT "TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, (OR) IN A RETIRED STATUS"--- WITH AN EXCEPTION WHICH DOES NOT APPEAR TO BE MATERIAL HERE--- THAT PROVISION IS BELIEVED TO REFER TO MEMBERS WHO HAVE BEEN RETIRED AND ARE IN RECEIPT OF RETIRED OR RETIREMENT PAY AND THUS HAVE A PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" MAY APPLY. COMPARE 31 COMP. GEN. 39, 42, 43. ALTHOUGH THE CLAIMANT RECEIVED DISABILITY RETIREMENT PAY FOR A TIME ON AND AFTER JANUARY 1, 1952, SUCH PAYMENTS WERE TERMINATED AND HE WAS DISCHARGED ON NOVEMBER 30, 1953. THE COUNTING OF TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST DURING THAT INTERVAL, IN COMPUTING THE AMOUNT OF RETIRED PAY DUE HIM AT THE PRESENT TIME WILL NOT RESULT IN ANY "INCREASE" IN RETIRED PAY "WHILE ON" A RETIRED LIST OR TEMPORARY DISABILITY RETIRED LIST, WITHIN THE MEANING OF SECTION 202 (B) OF THE CAREER COMPENSATION ACT. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

THE SUBMITTED VOUCHER IS STATED IN THE AMOUNT OF $193.05, COVERING THE PERIOD AUGUST 1 TO 31, 1956, AND REPRESENTS 75 PERCENT OF THE PAY OF A TECHNICAL SERGEANT WITH OVER 16 YEARS' SERVICE. SECTION 402 (D) OF THE CAREER COMPENSATION ACT PROVIDES FOR THE PAYMENT OF DISABILITY RETIREMENT PAY ON THE BASIS OF THE RANK, GRADE, OR RATING HELD BY THE MEMBER CONCERNED AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST. THE CLAIMANT HAD THE GRADE OF BASIC AIRMAN ON JULY 31, 1956, WHEN HE WAS PLACED ON SUCH LIST. WHILE THE SECOND PROVISO OF SECTION 402 (D) AUTHORIZES THE PAYMENT OF DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE PAY OF A HIGHER TEMPORARY RANK, GRADE OR RATING THAN THAT HELD AT THE TIME OF PLACEMENT OF A MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST IN THE CIRCUMSTANCES THERE PROVIDED, NO PROVISION OF LAW HAS BEEN FOUND WHICH AUTHORIZES THE COMPUTATION OF DISABILITY RETIREMENT PAY ON THE BASIS OF THE PAY OF A HIGHER PERMANENT RANK THAN THAT HELD AT THE TIME A MEMBER'S NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. ALTHOUGH CERTAIN PROVISIONS CONTAINED IN S. 2134, 84TH CONGRESS, ST SESSION, APPARENTLY WOULD HAVE PERMITTED SUCH RESULT IN MANY CASES, THAT BILL WAS NOT ENACTED INTO LAW.

THE FACT THAT THE CLAIMANT HELD THE GRADE OF TECHNICAL SERGEANT WHEN HE FIRST WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, IN DECEMBER 1951, WOULD SEEM TO HAVE NO BEARING ON THE GRADE APPLICABLE IN COMPUTING HIS RETIREMENT PAY AT THE PRESENT TIME, UNLESS HIS APPOINTMENT AS TECHNICAL SERGEANT WAS A TEMPORARY ONE, SINCE HE WAS REMOVED FROM THAT LIST AND DISCHARGED RATHER THAN PERMANENTLY RETIRED. HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 31, 1956, WAS A NEW AND INDEPENDENT ACTION AND FURNISHES THE BASIS FOR COMPUTING THE RETIRED PAY TO BE PAID TO HIM. SINCE HE HELD THE GRADE OF BASIC AIRMAN AT THAT TIME, HIS RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF THE PAY OF THAT GRADE, ASSUMING, OF COURSE, THAT HIS FORMER GRADE OF TECHNICAL SERGEANT WAS NOT A TEMPORARY ONE. COMPARE 30 COMP. GEN. 424, 425.

IF THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AMENDED TO PROVIDE FOR PAYMENT ON THE BASIS INDICATED ABOVE, PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT.