B-161516, JUNE 19, 1967, 46 COMP. GEN. 867

B-161516, JUNE 19, 1967, 46 COMP. GEN. 867

PAY - SEVERANCE - DISABILITY RETIREMENT - THIRTY DAYS OR LESS ACTIVE DUTY REQUIREMENT THE FACT THAT ONLY THE CAPTION OF 10 U.S.C. 1206 RESTRICTS PAYMENT OF DISABILITY SEVERANCE PAY TO MEMBERS OF THE UNIFORMED SERVICES WHO HAVE SERVED ON ACTIVE DUTY FOR 30 DAYS OR LESS AND THE TEXT IS SILENT AS TO THE REQUIREMENT DOES NOT ENTITLE AN OFFICER OF THE UNITED STATES COAST GUARD RESERVE FOUND UNFIT UPON UNDERGOING A PHYSICAL EXAMINATION INCIDENT TO ORDERS PRESCRIBING 90 DAYS OF ACTIVE DUTY TRAINING TO THE DISABILITY SEVERANCE PAY AUTHORIZED BY CHAPTER 61, TITLE 10, UNITED STATES CODE, THE LEGISLATIVE HISTORY OF THE CODIFICATION ACT OF AUGUST 10, 1956, EVIDENCING NO INTENT TO ENLARGE OR INCREASE THE DISABILITY RETIREMENT RIGHTS OF THE CAREER COMPENSATION ACT OF 1949. ALTHOUGH THERE IS NO BASIS FOR PAYMENT OF DISABILITY SEVERANCE PAY TO THE OFFICER, THE CAPTIONS OF THE SECTIONS OF CHAPTER 61, WHICH ARE INTEGRAL PARTS OF THE SECTIONS DEVISED FOR CLARITY, LIMITING COVERAGE TO THE MEMBERS MENTIONED IN THE CAPTIONS, THE CORRECTION OF HIS MILITARY RECORDS UNDER 10 U.S.C. 1552 HAS NOT BEEN PREJUDICED.

TO R. H. MILLS, UNITED STATES COAST GUARD, JUNE 19, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 15, 1967, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF DISABILITY SEVERANCE PAY TO LIEUTENANT (JG) MICHAEL KIMMEL, USCGR, UNDER AUTHORITY OF CHAPTER 61 TITLE 10, U.S.C. IN THE CIRCUMSTANCES OF HIS CASE.

IT IS REPORTED THAT LIEUTENANT KIMMEL ENLISTED IN THE UNITED STATES COAST GUARD RESERVE ON NOVEMBER 10, 1960, AND THAT HE WAS RELEASED FROM ACTIVE DUTY ON JUNE 8, 1964, AT WHICH TIME HE WAS CONSIDERED FIT AS THE RESULT OF A RELEASE PHYSICAL EXAMINATION ON MAY 25, 1964. HE WAS ORDERED TO ACTIVE DUTY FOR TRAINING OF ABOUT 90 DAYS BEGINNING JUNE 15, 1964, AND ENDING IN SEPTEMBER 1964. HOWEVER, WHEN HE SOUGHT ANOTHER PERIOD OF ACTIVE DUTY FOR TRAINING IN THE SUMMER OF 1965, HE WAS EXCLUDED AS UNFIT FOR DUTY BY REASON OF A BACK AILMENT. THE DISABILITY, SPONDYLOLISTHESIS, WHICH OCCURRED OVER A PERIOD OF TIME RATHER THAN AS THE RESULT OF A SPECIFIC TRAUMATIC INCIDENT, WAS FIRST DEMONSTRATED BY X-RAY TAKEN MAY 25, 1964.

THE PHYSICAL EVALUATION BOARD FOUND LIEUTENANT KIMMEL UNFIT TO PERFORM THE DUTIES OF HIS GRADE BY REASON OF THE ABOVE-MENTIONED DISABILITY RATED AT 20 PERCENT DISABLING AND RECOMMENDED SEPARATION WITH SEVERANCE PAY. THE PHYSICAL REVIEW COUNCIL, CONCURRING IN THESE FINDINGS, DIRECTED THAT HE BE SEPARATED FROM THE UNITED STATES COAST GUARD WITH SEVERANCE PAY IN ACCORDANCE WITH CHAPTER 61, TITLE 10, UNITED STATES CODE. SINCE HE WAS NOT ENTITLED TO RECEIVE BASIC PAY AT THE TIME IT WAS DETERMINED THAT HE WAS UNFIT, HE MAY BE AWARDED SEVERANCE PAY, IF AT ALL, ONLY UNDER THE PROVISIONS OF 10 U.S.C. 1206.

WHILE THE CAPTION OF 10 U.S.C. 1206 REFERS TO MEMBERS ON ACTIVE DUTY FOR 30 DAYS OR LESS, THE TEXT OF THE SECTION DOES NOT CONTAIN ANY SIMILAR WORDS OF LIMITATION. SINCE LIEUTENANT KIMMEL NEVER SERVED ON ACTIVE DUTY FOR ANY PERIOD OF 30 DAYS OR LESS, QUESTION IS RAISED AS TO WHETHER DISABILITY SEVERANCE PAY MAY BE ALLOWED IN HIS CASE UNDER THAT SECTION.

CHAPTER 61, TITLE 10, U.S.C. IS A CODIFICATION (ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 91) OF THE DISABILITY RETIREMENT PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, 37 U.S.C. 272 (1952 ED.). SECTIONS 1201 THROUGH 1206 HAD AS THEIR MAIN SOURCE SUBSECTIONS (A), (B) AND (C) OF SECTION 402 OF THE 1949 ACT. SUBSECTIONS (A) AND (B) PERTAINED ONLY TO MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAD BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS. SUBSECTION (C) PERTAINED TO MEMBERS OF THE UNIFORMED SERVICES OTHER THAN THOSE COVERED BY SUBSECTIONS (A) AND (B). IN MANY OF OUR DECISIONS INTERPRETING THE DISABILITY RETIREMENT PROVISIONS OF THE 1949 ACT, WE CALLED ATTENTION TO THOSE DISTINCTIONS AS TO THE TYPE OF SERVICE OF THE MEMBERS INVOLVED. SEE 30 COMP. GEN. 409, 413; 31 ID. 95, 99; ID. 444, 450 AND 33 ID. 411, 417. SEE ALSO, GWIN V. UNITED STATES, 133 CT. CL. 749, 752 (1956).

WHILE THE LEGISLATIVE HISTORY OF THE 1956 ACT CONTAINS NO EXPLANATION OF THE CAPTIONS USED IN CHAPTER 61, IT IS STATED ON PAGE 108 OF S.REPT. NO. 2484 TO ACCOMPANY H.R. 7049, WHICH BECAME THE 1956 CODIFICATION ACT, IN REFERENCE TO SECTION 1201, THAT:

THE WORDS "ACTIVE DUTY (OTHER THAN FOR TRAINING)" ARE SUBSTITUTED FOR THE WORDS "EXTENDED ACTIVE DUTY" FOR CLARITY AND TO REFLECT THE OPINION OF THE COMPTROLLER GENERAL IN 31 COMP. GEN. 95, 99. IS THUS IS APPARENT THAT THE CODIFIERS WERE COGNIZANT OF OUR DECISIONS INTERPRETING SUBSECTIONS 402 (A), (B) AND (C) OF THE 1949 ACT AND THAT THE CAPTIONS OF THE NEW SECTIONS WERE CAREFULLY CONSIDERED AND WRITTEN IN SUCH A MANNER AS TO CLARIFY THE RIGHTS OF THE MEMBERS COVERED THEREBY. IN THOSE CODIFIED SECTIONS BASED ON SUBSECTIONS 402 (A) AND (B) OF THE 1949 ACT THE LIMITATION AS TO TYPE OF SERVICE WAS REMOVED FROM THE TEXT AND PLACED IN THE CAPTIONS AND IN THOSE SECTIONS HAVING SUBSECTION (C) AS THEIR SOURCE THE CAPTIONS WERE WRITTEN SO AS TO DEFINE THE TYPE OF SERVICE WHICH HAD HERETOFORE BEEN SHOWN ONLY BY WORDS OF EXCEPTION.

THERE BEING NO INDICATION IN THE LEGISLATIVE HISTORY OF THE 1956 ACT OF AN INTENTION TO ENLARGE OR INCREASE THE RIGHTS GRANTED BY THE 1949 ACT, IT MUST BE CONCLUDED THAT THE CAPTIONS OF THE SECTIONS OF CHAPTER 61, TITLE 10, ARE INTEGRAL PARTS OF THE SECTIONS, WERE DEVISED FOR CLARITY AND MUST BE INTERPRETED AS LIMITING COVERAGE UNDER SUCH SECTIONS TO THE MEMBERS MENTIONED IN THE CAPTIONS.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR PAYMENT OF DISABILITY SEVERANCE PAY TO LIEUTENANT KIMMEL SINCE HIS INJURY WAS INCURRED IN A SITUATION NOT COVERED BY SECTION 1206. HOWEVER, THIS DECISION IS WITHOUT PREJUDICE TO CONSIDERATION OF HIS CASE PURSUANT TO 10 U.S.C. 1552.