B-126526, MAY 1, 1956, 35 COMP. GEN. 601

B-126526: May 1, 1956

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PAY - RETIRED - WOMEN OFFICERS OF THE NAVY - SEVERANCE PAYMENTS A LUMP-SUM SEVERANCE PAYMENT RECEIVED ON SEPARATION FROM THE REGULAR NAVY BY A WOMAN OFFICER WHO WAS SUBSEQUENTLY COMMISSIONED IN THE NAVAL RESERVE IS NOT RECEIPT OF RETIRED PAY WHICH WOULD PRECLUDE THE MEMBER FROM SUBSEQUENTLY RECEIVING RETIREMENT PAY BENEFITS UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. SUCH SEVERANCE PAYMENT IS NOT REQUIRED TO BE DEDUCTED FROM THE RETIREMENT PAY TO WHICH THE MEMBER MAY BECOME ENTITLED ON THE BASIS OF REGULAR AND RESERVE SERVICE. 1956: REFERENCE IS MADE TO LETTER DATED DECEMBER 29. FORWARDING A COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 132 AND REQUESTING DECISION ON TWO QUESTIONS THEREIN SET FORTH AS FOLLOWS: IS A WOMAN OFFICER.

B-126526, MAY 1, 1956, 35 COMP. GEN. 601

PAY - RETIRED - WOMEN OFFICERS OF THE NAVY - SEVERANCE PAYMENTS A LUMP-SUM SEVERANCE PAYMENT RECEIVED ON SEPARATION FROM THE REGULAR NAVY BY A WOMAN OFFICER WHO WAS SUBSEQUENTLY COMMISSIONED IN THE NAVAL RESERVE IS NOT RECEIPT OF RETIRED PAY WHICH WOULD PRECLUDE THE MEMBER FROM SUBSEQUENTLY RECEIVING RETIREMENT PAY BENEFITS UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AND SUCH SEVERANCE PAYMENT IS NOT REQUIRED TO BE DEDUCTED FROM THE RETIREMENT PAY TO WHICH THE MEMBER MAY BECOME ENTITLED ON THE BASIS OF REGULAR AND RESERVE SERVICE.

TO THE SECRETARY OF DEFENSE, MAY 1, 1956:

REFERENCE IS MADE TO LETTER DATED DECEMBER 29, 1955, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), FORWARDING A COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 132 AND REQUESTING DECISION ON TWO QUESTIONS THEREIN SET FORTH AS FOLLOWS:

IS A WOMAN OFFICER, WHO HAS RECEIVED A LUMP-SUM PAYMENT UNDER SECTION 207 (J) OF THE ACT OF JUNE 13 (12), 1948 UPON DISCHARGE FROM THE REGULAR NAVY AND WHO IS COMMISSIONED IN THE NAVAL RESERVE SUBSEQUENT TO HER DISCHARGE ELIGIBLE TO RECEIVE THE BENEFITS OF TITLE II OF THE ACT OF JUNE 29, 1948, 62 STAT. 1081, IF OTHERWISE ELIGIBLE IN ALL RESPECTS?

IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE WILL THE THE LUMP-SUM PAYMENT BE DEDUCTED FROM RETIREMENT BENEFITS WHICH ARE SUBSEQUENTLY RECEIVED UNDER TITLE III OF THE ACT OF JUNE 29, 1948, SUPRA?

SECTION 207 (J) OF THE WOMEN'S ARMED SERVICE INTEGRATION ACT OF 1948 ( PUBLIC LAW 625), 62 STAT. 368, 34 U.S.C. 410R (J), PROVIDES IN PERTINENT PART THAT A WOMAN LIEUTENANT OF THE REGULAR NAVY WHOSE NAME ON JUNE 30 OF THE FISCAL YEAR IN WHICH SHE COMPLETES 13 YEARS' ACTIVE COMMISSIONED SERVICE IN THE REGULAR NAVY AND THE NAVAL RESERVE IS NOT THEN ON A PROMOTION LIST FOR PROMOTION TO THE NEXT HIGHER GRADE IS REQUIRED TO BE HONORABLY DISCHARGED FROM THE NAVY ON THAT DATE "WITH A LUMP-SUM PAYMENT" COMPUTED ON THE BASIS OF TWO MONTHS' ACTIVE-DUTY PAY AT THE TIME OF HER DISCHARGE FOR EACH YEAR OF COMMISSIONED SERVICE, BUT NOT TO EXCEED A TOTAL OF TWO YEARS' PAY. SUCH PROVISIONS APPLY, ALSO, TO A WOMAN LIEUTENANT (JG), WHOSE NAME IS NOT ON THE PROMOTION LIST ON JUNE 30 OF THE FISCAL YEAR IN WHICH SHE COMPLETES SEVEN YEARS' ACTIVE COMMISSIONED SERVICE IN THE REGULAR NAVY AND THE NAVAL RESERVE.

SECTION 305, TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ( PUBLIC LAW 810), 62 STAT. 1089, 34 U.S.C. 440L, IN PERTINENT PART PROVIDES:

THE PROVISIONS OF THIS TITLE SHALL NOT BE APPLICABLE TO ANY OFFICER OR ENLISTED PERSON OF THE REGULAR OR RESERVE COMPONENTS OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS WHO, PRIOR TO OR SUBSEQUENT TO THE DATE OF ENACTMENT OF THIS TITLE, IS ENTITLED TO RECEIVE, OR IS RECEIVING UNDER ANY OTHER PROVISION OF LAW, RETIRED PAY FOR MILITARY OR NAVAL SERVICE, INCLUDING RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET RESERVE. ITALICS ADDED.)

THE LUMP-SUM SEVERANCE PAYMENT PRESCRIBED IN SECTION 207 (J) OF PUBLIC LAW 625, CITED ABOVE, IS NOT A PAYMENT OF "RETIRED PAY FOR MILITARY OR NAVAL SERVICE" AND THEREFORE DOES NOT COME WITHIN THE PROHIBITION CONTAINED IN SECTION 305 OF PUBLIC LAW 810. COMPARE DECISION OF NOVEMBER 25, 1955, B-124801, 35 COMP. GEN. 293, 295.

UNDER SECTION 501, TITLE V OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 212 OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, 62 STAT. 368, 369, 34 U.S.C. 857-857H, 1946 USED. (LATER REPEALED BY SECTION 803, ACT OF JULY 9, 1952, 66 STAT. 505), WOMEN WERE ELIGIBLE FOR APPOINTMENT IN THE NAVAL RESERVE UNTIL DECEMBER 31, 1952, GENERALLY UNDER THE SAME CIRCUMSTANCES AND CONDITIONS AS MEN. EFFECTIVE JANUARY 1, 1953, BY VIRTUE OF SECTION 217 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 486, 487, 50 U.S.C. 941 (B), WAR AND NATIONAL DEFENSE, A FORMER FEMALE OFFICER OF THE NAVY MAY, IF OTHERWISE QUALIFIED, BE APPOINTED AS A RESERVE OFFICER IN THE NAVAL RESERVE IN THE HIGHEST RANK, GRADE, OR RATING, SATISFACTORILY HELD BY HER ON ACTIVE DUTY.

NOTHING HAS BEEN FOUND IN THE ABOVE-CITED STATUTES, OR ELSEWHERE, WHICH WOULD REQUIRE US TO REJECT THE CONCLUSION THAT A WOMAN OFFICER OF THE REGULAR NAVY SEPARATED UNDER THE PROVISIONS OF SECTION 207 (J) OF PUBLIC LAW 625 AND WHO THEREAFTER IS COMMISSIONED IN THE NAVAL RESERVE IS ENTITLED, UPON SUBSEQUENTLY MEETING THE CONDITIONS SPECIFIED IN III OF PUBLIC LAW 810, TO THE RETIREMENT PAY BENEFITS PRESCRIBED IN THAT TITLE. THE FIRST QUESTION, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE.

AS POINTED OUT IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 132, THE LUMP-SUM SEVERANCE PAYMENTS PRESCRIBED FOR MALE OFFICERS OF THE NAVY IN SECTION 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, 34 U.S.C. 410J (H), AND IN SECTION 312 (1) OF THAT ACT (AS ADDED BY THE ACT OF JUNE 18, 1954, 68 STAT. 256, 257) 34 U.S.C. 410 (J) ARE REQUIRED, UNDER SECTION 312 (M) (ALSO ADDED BY THE ACT OF JUNE 18, 1954), TO BE DEDUCTED FROM ANY RETIREMENT BENEFITS TO WHICH THE INDIVIDUAL CONCERNED SUBSEQUENTLY MAY BECOME ENTITLED AS A RESULT OF THE SAME PERIOD MILITARY SERVICE. IN THAT CONNECTION, REFERENCE ALSO IS MADE TO SECTION 16 (B) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 165, 34 U.S.C. 430B, WHICH REQUIRES DEDUCTION FROM ANY LATER RETIREMENT BENEFITS OF ANY LUMP-SUM SEVERANCE PAYMENT PREVIOUSLY MADE TO THE PERSON CONCERNED UNDER SECTION 16 (A) OF THAT ACT, AND WHICH APPEARS TO HAVE INTRODUCED THE CONCEPT OF REQUIRING DEDUCTION OF A LUMP-SUM SEVERANCE PAYMENT PREVIOUSLY RECEIVED FROM ANY SUBSEQUENTLY ACCRUING RETIREMENT BENEFITS BASED ON THE SAME PERIOD OF MILITARY SERVICE. IN VIEW OF THE STATUTORY PROVISIONS REFERRED TO, THE SECOND QUESTION PRESENTED IS WHETHER THE AMOUNT OF ANY LUMP-SUM SEVERANCE PAYMENT PAID TO A FORMER WOMAN OFFICER OF THE REGULAR NAVY UNDER THE PROVISIONS OF SECTION 207 (J) OF PUBLIC LAW 625 IS REQUIRED TO BE DEDUCTED FROM THE RETIREMENT PAY BENEFITS TO WHICH SUCH INDIVIDUAL SUBSEQUENTLY MAY BECOME ENTITLED, ON THE BASIS OF HER REGULAR NAVY AND RESERVE SERVICE, UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810.

SECTION 215 OF THE WOMEN'S ARMED SERVICES INTEGRATION ACT OF 1948, 62 STAT. 370, 34 U.S.C. 105J, PROVIDES:

THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 SHALL NOT BE APPLICABLE TO WOMEN OFFICERS OF THE REGULAR NAVY AND NAVAL RESERVE AND THOSE PROVISIONS OF TITLES I AND II OF THE SAID ACT WHICH ARE NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT SHALL BE OPERATIVE WITH REGARD TO WOMEN OFFICERS OF THE REGULAR NAVY FROM THE EFFECTIVE DATE OF THIS ACT.

UNDER THE EXPLICIT TERMS OF THE STATUTE, THE PROVISIONS OF TITLE III OF THE OFFICER PERSONNEL ACT OF 1947 ARE NOT APPLICABLE TO WOMEN OFFICERS OF THE REGULAR NAVY AND THE NAVAL RESERVE. ACCORDINGLY, THE RESTRICTION CONTAINED IN SECTION 312 (M) OF THE OFFICER PERSONNEL ACT OF 1947 WITH RESPECT TO THE LUMP-SUM SEVERANCE PAYMENTS AUTHORIZED IN THAT ACT FOR MALE OFFICERS OF THE NAVY IS NOT APPLICABLE TO THE LUMP SUM SEVERANCE PAYMENTS PRESCRIBED FOR WOMEN OFFICERS OF THE NAVY IN SECTION 207 (J) OF PUBLIC LAW 625. THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE.