B-125631, DECEMBER 5, 1955, 35 COMP. GEN. 326

B-125631: Dec 5, 1955

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PAY - SEVERANCE - WOMEN OFFICERS OF THE REGULAR NAVY A WOMAN OFFICER OF THE REGULAR NAVY WHO IS REPORTED FOR UNSATISFACTORY PERFORMANCE OF DUTY IN HER PRESENT GRADE AND HONORABLY DISCHARGED UNDER AUTHORITY OF SECTION 112 (G) OF THE OFFICER PERSONNEL ACT OF 1947 IS ENTITLED TO LUMP-SUM SEVERANCE PAY AS PRESCRIBED FOR MALE OFFICERS OF THE REGULAR NAVY WHO ARE DISCHARGED UNDER THE SAME CONDITIONS. 1955: REFERENCE IS MADE TO LETTER DATED SEPTEMBER 23. FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING DECISION WHETHER A WOMAN OFFICER OF THE REGULAR NAVY WHO IS REPORTED FOR UNSATISFACTORY PERFORMANCE OF DUTY AND HONORABLY DISCHARGED FROM THE NAVAL SERVICE UNDER THE AUTHORITY OF SECTION 112 (G) OF THE OFFICER PERSONNEL ACT OF 1947.

B-125631, DECEMBER 5, 1955, 35 COMP. GEN. 326

PAY - SEVERANCE - WOMEN OFFICERS OF THE REGULAR NAVY A WOMAN OFFICER OF THE REGULAR NAVY WHO IS REPORTED FOR UNSATISFACTORY PERFORMANCE OF DUTY IN HER PRESENT GRADE AND HONORABLY DISCHARGED UNDER AUTHORITY OF SECTION 112 (G) OF THE OFFICER PERSONNEL ACT OF 1947 IS ENTITLED TO LUMP-SUM SEVERANCE PAY AS PRESCRIBED FOR MALE OFFICERS OF THE REGULAR NAVY WHO ARE DISCHARGED UNDER THE SAME CONDITIONS.

TO THE SECRETARY OF THE NAVY, DECEMBER 5, 1955:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 23, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING DECISION WHETHER A WOMAN OFFICER OF THE REGULAR NAVY WHO IS REPORTED FOR UNSATISFACTORY PERFORMANCE OF DUTY AND HONORABLY DISCHARGED FROM THE NAVAL SERVICE UNDER THE AUTHORITY OF SECTION 112 (G) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 809, 34 U.S.C. 401F (G), MAY BE PAID LUMP-SUM SEVERANCE PAY AS PRESCRIBED FOR MALE OFFICERS OF THE REGULAR NAVY WHO ARE DISCHARGED FROM THE NAVAL SERVICE UNDER THE SAME CONDITIONS.

THE OPINION OF THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY OF AUGUST 29, 1955, COPY RECEIVED WITH THE LETTER OF SEPTEMBER 23, 1955, HOLDS THAT BY VIRTUE OF THE ASSIMILATING PROVISIONS CONTAINED IN TITLE II OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, 62 STAT. 363 370, 34 U.S.C. 105, AND THE IMPLEMENTING REGULATIONS PRESCRIBED IN EXECUTIVE ORDER NO. 10240, APRIL 27, 1951, 16 F.R. 3689, WOMEN OFFICERS OF THE REGULAR NAVY ARE ENTITLED, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE 1948 ACT, TO THE SAME BENEFITS, ALLOWANCES, AND EMOLUMENTS OF MALE OFFICERS OF THE REGULAR NAVY, INCLUDING THE BENEFITS OF THOSE STATUTORY PROVISIONS RELATING TO THE RETIREMENT OR SEPARATION FROM THE ACTIVE LIST OF MALE OFFICERS OF THE REGULAR NAVY.

IT APPEARS FROM THE ACTING JUDGE ADVOCATE GENERAL'S OPINION THAT AN APPROPRIATE SELECTION BOARD CONVENED TO RECOMMEND WOMEN OFFICERS OF THE LINE OF THE REGULAR NAVY FOR PROMOTION TO THE GRADE OF COMMANDER HAS, IN ACCORDANCE WITH INSTRUCTIONS IN ITS PRECEPT, REPORTED THE NAME OF A WOMAN LIEUTENANT COMMANDER OF LESS THAN 20 YEARS' SERVICE, WHOSE REPORTS AND RECORDS IN THE OPINION OF THE BOARD INDICATE UNSATISFACTORY PERFORMANCE OF DUTY IN HER PRESENT GRADE AND THAT SHE WOULD NOT SATISFACTORILY PERFORM THE DUTIES OF A HIGHER GRADE. THE OPINION HOLDS, SPECIFICALLY, THAT UNDER THE PROVISIONS OF SECTIONS 109 (F) AND 112 (G) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 806, 809, 34 U.S.C. 304E (F) AND 410F (G), RESPECTIVELY, THE WOMAN OFFICER IN QUESTION WILL BE SUBJECT TO SEPARATION FROM THE NAVAL SERVICE AT THE END OF THE CURRENT FISCAL YEAR BY HONORABLE DISCHARGE FROM THE REGULAR NAVY, AT WHICH TIME SHE WILL BE ENTITLED TO A LUMP-SUM SEVERANCE PAYMENT AS PRESCRIBED IN SECTION 112 (G). WE AGREE WITH THAT CONCLUSION.

SECTION 112 (G) IN PERTINENT PART PROVIDES:

LIEUTENANTS, AND LIEUTENANTS (JUNIOR GRADE), WHO SHALL HAVE TWICE FAILED OF SELECTION FOR PROMOTION TO LIEUTENANT COMMANDER AND LIEUTENANT, RESPECTIVELY, AND OFFICERS WHOSE NAMES ARE REPORTED IN ACCORDANCE WITH SUBSECTION 109 (F) OF THIS ACT, SHALL BE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY FAIL OF SUCH SELECTION THE SECOND TIME, OR IN WHICH THEIR NAMES ARE REPORTED IN ACCORDANCE WITH SUBSECTION 109 (F) OF THIS ACT, WITH A LUMP-SUM PAYMENT COMPUTED ON THE BASIS OF TWO MONTHS' ACTIVE-DUTY PAY AT THE TIME OF DISCHARGE FOR EACH YEAR OF COMMISSIONED SERVICE COMPUTED IN ACCORDANCE WITH SUBSECTION 102 (D), BUT NOT TO EXCEED A TOTAL OF TWO YEARS' ACTIVE-DUTY PAY: PROVIDED, THAT FOR THE PURPOSE OF THIS SUBSECTION A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS' COMMISSIONED SERVICE UPON WHICH TO BASE LUMP-SUM PAYMENT.

SECTION 112 (G) EXPRESSLY PROVIDES THAT THE LUMP-SUM PAYMENT THEREIN PRESCRIBED SHALL BE COMPUTED ON THE BASIS OF TWO MONTHS' ACTIVE-DUTY PAY AT THE TIME OF DISCHARGE "FOR EACH YEAR OF COMMISSIONED SERVICE COMPUTED IN ACCORDANCE WITH SUBSECTION 102 (D).'

SECTION 102 (D) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 798, 34 U.S.C. 3A (D), PROVIDES AS FOLLOWS:

FOR THE PURPOSES OF THIS TITLE IN RESPECT TO ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST AND IN RESPECT TO SEPARATION FROM THE ACTIVE LIST, THE TOTAL COMMISSIONED SERVICE OF AN OFFICER WHO SHALL HAVE SERVED CONTINUOUSLY IN THE REGULAR NAVY FOLLOWING APPOINTMENT THEREIN IN THE GRADE OR RANK OF ENSIGN UPON GRADUATION FROM THE NAVAL ACADEMY OR PURSUANT TO THE ACT OF AUGUST 13, 1946 ( PUBLIC LAW 729, SEVENTY-NINTH CONGRESS), SHALL BE COMPUTED FROM JUNE 30 OF THE FISCAL YEAR IN WHICH HE ACCEPTED SUCH APPOINTMENT. EACH OTHER OFFICER SHALL BE DEEMED TO HAVE FOR THESE PURPOSES AS MUCH TOTAL COMMISSIONED SERVICE AS ANY OFFICER DESCRIBED ABOVE IN THIS SUBSECTION WHO SHALL NOT HAVE LOST NUMBERS OR PRECEDENCE AND WHO IS, OR SHALL HAVE BEEN, JUNIOR TO SUCH OTHER OFFICER FOR THE PURPOSE OF ELIGIBILITY FOR PROMOTION OR SELECTION FOR PROMOTION SINCE THE DATE OF THE LATTER'S FIRST APPOINTMENT TO PERMANENT COMMISSIONED RANK IN THE REGULAR NAVY ABOVE THE GRADE OF COMMISSIONED WARRANT OFFICER, FOLLOWING WHICH HE SHALL HAVE SERVED CONTINUOUSLY ON THE ACTIVE LIST OF THE REGULAR NAVY.

IT IS POINTED OUT IN THE ACTING JUDGE ADVOCATE GENERAL'S OPINION OF AUGUST 29, 1955, THAT THE SERVICE OF WOMEN OFFICERS OF THE NAVY CANNOT BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 102 (D), INASMUCH AS WOMEN OFFICERS OF THE NAVY ARE NOT RANKED WITH NAVAL ACADEMY OR " HOLLOWAY PLAN" GRADUATES FOR THE PURPOSE OF ELIGIBILITY FOR PROMOTION OR SELECTION FOR PROMOTION. THUS, AS STATED IN THE OPINION, A LITERAL INTERPRETATION OF THAT PORTION OF SECTION 112 (G), WHICH REFERS TO SECTION 102 (D) FOR THE METHOD OF COMPUTING SEVERANCE PAY, WOULD RENDER THE SAME MEANINGLESS IN ITS APPLICATION TO WOMEN OFFICERS OF THE NAVY. IN THAT CONNECTION, HOWEVER, NO COMPELLING REASON IS PERCEIVED IN APPLYING THE LANGUAGE OF SECTION 112 (G) IN SUCH MANNER AS TO DEFEAT THE RIGHT TO LUMP-SUM SEVERANCE PAY OTHERWISE PROPERLY ACCRUING TO THE WOMAN OFFICER IN QUESTION. IT IS CLEAR THAT IF SHE IS CREDITED IN SUCH COMPUTATION WITH THE TOTAL OF HER ACTIVE COMMISSIONED SERVICE IN THE REGULAR NAVY AND NAVAL RESERVE, ONLY, THE BASIC PURPOSE OF TITLE II OF THE 1948 LAW WILL HAVE BEEN FULLY MET INSOFAR AS THE ASSIMILATING PROVISIONS THEREOF RELATE TO THE BENEFITS ARISING IN THE CASE OF MALE OFFICERS OF THE REGULAR NAVY WHO ARE SEPARATED FROM THE NAVAL SERVICE UNDER THE PROVISIONS OF SECTION 112 (G) OF THE 1947 LAW.