B-129339, NOVEMBER 13, 1956, 36 COMP. GEN. 390

B-129339, NOVEMBER 13, 1956, 36 COMP. GEN. 390

MILITARY PERSONNEL - RESERVES - LUMP-SUM READJUSTMENT PAYMENTS - SERVICE CREDITS A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO REACHES THE MANDATORY AGE LIMITATION FOR INVOLUNTARY RELEASE FROM DUTY BUT WHO, WITHIN 2 YEARS, WOULD BE ELIGIBLE FOR RETIRED BENEFITS UNDER TITLE II OR III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 MAY BE RETAINED ON ACTIVE DUTY PURSUANT TO SECTION 265 (D) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956. THE RETIRED PAY, WHICH IS AUTHORIZED BY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 MAY BE RETAINED ON ACTIVE DUTY PURSUANT TO SECTION 265 (D) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956. THE RETIRED PAY, WHICH IS AUTHORIZED BY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, FOR MEMBERS AND FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE MILITARY SERVICES WHO HAVE COMPLETED 20 YEARS OF SATISFACTORY SERVICE MAY BE REGARDED AS BEING AWARDED UNDER A MILITARY RETIREMENT SYSTEM. PERIODS WHEN RESERVE MEMBERS OF THE UNIFORMED SERVICES ARE ABSENT WITHOUT LEAVE, IN CONFINEMENT, AWAITING TRIAL WHICH RESULTS IN CONVICTION, AND LOSE TIME DUE TO MISCONDUCT DO NOT AUTOMATICALLY TERMINATE THE MEMBER'S ENLISTED OR ACTIVE-DUTY STATUS, AND, THEREFORE, SUCH PERIODS ARE NOT REGARDED AS "BREAKS IN SERVICE" AS THE TERM IS USED IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, AND SUCH PERIODS DO NOT HAVE TO BE DEDUCTED IN THE COMPUTATION OF THE MEMBER'S 5 YEARS OF CONTINUOUS SERVICE REQUIRED TO QUALIFY FOR READJUSTMENT BENEFITS. IN DETERMINING THE AMOUNT OF THE LUMP-SUM READJUSTMENT PAYMENT DUE A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ON INVOLUNTARY RELEASE FROM ACTIVE DUTY, THE TERM "EACH YEAR OF ACTIVE SERVICE" REQUIRES THE DEDUCTION OF PERIODS OF UNAUTHORIZED ABSENCES WHEN THE MEMBER HAS DEPRIVED THE GOVERNMENT OF HIS SERVICES BY HIS OWN MISCONDUCT. RESERVE MEMBERS OF THE UNIFORMED SERVICES WHO, ON INVOLUNTARY RELEASE FROM ACTIVE DUTY, MAKE AN ELECTION TO RECEIVE A LUMP-SUM READJUSTMENT PAYMENT UNDER SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, MAY NOT SUBSEQUENTLY CHANGE THE ELECTION TO RECEIVE SEVERANCE PAY OR DISABILITY COMPENSATION PAYABLE BY THE VETERANS ADMINISTRATION. A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO VOLUNTEERS FOR A PERIOD OF ACTIVE DUTY OF SHORTER DURATION THAN IS PERMITTED HAS BY HIS OWN ACTION TERMINATED HIS MILITARY DUTY, AND HE MAY NOT BE REGARDED AS HAVING BEEN INVOLUNTARILY RELEASED FROM ACTIVE DUTY FOR LUMP-SUM READJUSTMENT PAYMENTS UNDER SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956.

TO THE SECRETARY OF DEFENSE, NOVEMBER 13, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 24, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING PUBLIC LAW 676, 84TH CONGRESS, WHICH ARE SET FORTH IN COMMITTEE ACTION NO. 151 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, PUBLIC LAW 676, 70 STAT. 517, 50 U.S.C. 1016, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 265. (A) A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FOR ACTIVE DUTY AFTER THE ENACTMENT OF THIS SECTION AND AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS, AS EITHER AN OFFICER, WARRANT OFFICER, OR ENLISTED PERSON, IS ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE- HALF OF ONE MONTH'S BASIC PAY IN THE GRADE IN WHICH HE IS SERVING AT THE TIME OF RELEASE FROM ACTIVE DUTY FOR EACH YEAR OF ACTIVE SERVICE ENDING AT THE CLOSE OF THE EIGHTEENTH YEAR. FOR THE PURPOSES OF COMPUTING THE AMOUNT OF READJUSTMENT PAYMENT (1) A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED, AND (2) ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW SHALL BE EXCLUDED.

(B) THE FOLLOWING PERSONS ARE NOT ENTITLED TO ANY PAYMENTS UNDER THIS SECTION:

(5) A PERSON WHO UPON RELEASE FROM ACTIVE DUTY IS IMMEDIATELY ELIGIBLE FOR SEVERANCE PAY BASED ON HIS MILITARY SERVICE UNDER ANY OTHER PROVISION OF LAW. HOWEVER, SUCH A PERSON MAY ELECT TO RECEIVE EITHER READJUSTMENT PAY UNDER THIS SECTION OR SEVERANCE PAY, BUT NOT BOTH.

(6) A PERSON WHO UPON RELEASE FROM ACTIVE DUTY IS ELIGIBLE FOR DISABILITY COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION. HOWEVER, SUCH A PERSON MAY ELECT TO RECEIVE EITHER READJUSTMENT PAY UNDER THIS SECTION OR DISABILITY COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, BUT NOT BOTH. * * *

(D) UNDER REGULATIONS PRESCRIBED BY THE APPROPRIATE SECRETARY, WHICH REGULATIONS SHALL BE AS UNIFORM AS PRACTICABLE, A MEMBER OF A RESERVE COMPONENT WHO IS ON ACTIVE DUTY AND IS WITHIN TWO YEARS OF QUALIFYING FOR RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY UNDER ANY PURELY MILITARY RETIREMENT SYSTEM, SHALL NOT BE INVOLUNTARILY SEPARATED FROM THAT DUTY BEFORE HE QUALIFIES FOR THAT PAY UNLESS HIS SEPARATION IS APPROVED BY THE APPROPRIATE SECRETARY.

(H) FOR THE PURPOSE OF THIS SECTION, THE TERM "INVOLUNTARY RELEASE" SHALL INCLUDE RELEASE UNDER CONDITIONS WHEREIN A MEMBER OF A RESERVE COMPONENT, WHO HAS COMPLETED A TOUR OF DUTY, VOLUNTEERS FOR AN ADDITIONAL TOUR OF DUTY AND THE SERVICE CONCERNED DOES NOT EXTEND OR ACCEPT THE VOLUNTEER REQUEST OF THE MEMBER FOR THE ADDITIONAL TOUR. THE FIRST QUESTION IS AS FOLLOWS:

UNDER THE PROVISIONS OF SECTION 265 (D) OF THE ACT OF 9 JULY 1956, PL 676, 84TH CONGRESS, WHICH ADDED SECTION 265 TO THE ARMED FORCES RESERVE ACT OF 1952 (66 STAT. 481), MAY A MEMBER OF A RESERVE COMPONENT, WHO IS WITHIN TWO YEARS OF QUALIFYING FOR RETIRED PAY, BE RETAINED ON ACTIVE DUTY SUBSEQUENT TO HIS ATTAINMENT OF THE AGE LIMITATIONS SET FORTH IN THE RESERVE OFFICERS PERSONNEL ACT OF 1954 (68 STAT. 1161), AND AFTER OTHERWISE QUALIFYING FOR RETIREMENT UNDER THE PROVISIONS OF TITLE II OR III OF THE ACT OF 29 JUNE 1948 ( PL 810, 80TH CONGRESS, 62 STAT. 1085), BE PAID RETIRED OR RETIREMENT PAY PURSUANT THERETO?

THE AGE LIMITATIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1147, ARE SET FORTH IN SECTIONS 326, 50 U.S.C. 1263; 412, 50 U.S.C. 1312; AND 523, 50 U.S.C. 1353, OF THAT ACT FOR RESERVE COMPONENTS OF THE ARMY, AND NAVAL RESERVE AND MARINE CORPS RESERVE, AND THE RESERVE COMPONENTS OF THE AIR FORCE, RESPECTIVELY. WHILE A DISCHARGE OR A TRANSFER TO THE RETIRED RESERVE, AS APPLICABLE, IS THERE MADE MANDATORY WHEN THE PERSONS CONCERNED REACH A STATED AGE, SECTIONS 328, 50 U.S.C. 1265, AND 339 (D), 50 U.S.C. 1279 (D), OF THAT ACT PERMIT RETENTION OF ARMY RESERVE OFFICERS ON ACTIVE DUTY BEYOND THE STATED AGES--- WITHIN THE LIMITATIONS THERE PROVIDED--- TO ENABLE THEM TO QUALIFY FOR THE BENEFITS OF TITLE II OR TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 084, 0 U.S.C. 001, AND 087, 0 U.S.C. 036, AS APPLICABLE. SEE SECTION 412 FOR THE RETENTION PROVISIONS APPLICABLE TO NAVAL AND MARINE CORPS OFFICERS.

SECTION 265 (D), 50 U.S.C. 1016 (D), QUOTED ABOVE, IS BROADLY WORDED AND APPARENTLY WAS INTENDED TO COVER ALL SITUATIONS WHERE THE RESERVIST CONCERNED IS ABOUT TO BE INVOLUNTARILY RELEASED TO INACTIVE DUTY WITHOUT FAULT ON HIS PART AND IS WITHIN 2 YEARS OF QUALIFYING FOR RETIRED OR RETIREMENT PAY. WHILE THE 1956 ACT (ADDING SECTION 265 TO THE 1952 ACT) DOES NOT MENTION THE 1954 ACT AND WHILE REPEALS BY IMPLICATION ARE NOT FAVORED (23 COMP. GEN. 823, 35 COMP. GEN. 349), IF THE 1956 ACT IS TO BE GIVEN AN INTERPRETATION CONSISTENT WITH THE NORMAL IMPORT OF THE LANGUAGE USED, IT APPEARS THAT IT MUST BE REGARDED AS ESTABLISHING A FURTHER RELAXATION OF THE MANDATORY AGE LIMITATIONS OF THE 1954 ACT. SECTION 265 (D) IS BENEFICIAL IN CHARACTER IN THAT IT TENDS TO PRESERVE TO THE PERSONS CONCERNED, SUBJECT TO SECRETARIAL DISCRETION, A RIGHT WHICH THEY HAVE SERVED FOR A CONSIDERABLE PERIOD OF TIME TO EARN. THE POLICY OF THE CONGRESS IN THAT RESPECT IS INDICATED BY SECTIONS 328, 339 (D), AND 412 OF THE 1954 ACT, AS WELL AS THE LANGUAGE OF SECTION 265 (D) OF THE 1952 ACT, AS AMENDED, AND IT IS BELIEVED THAT THE CONGRESS INTENDED THAT SUCH POLICY BE GIVEN EFFECT TO THE FULL EXTENT STATED IN THE 1956 ACT. QUESTION 1, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING THE QUESTION WHETHER THE SYSTEM OF RETIRED PAY AUTHORIZED BY TITLE III OF THE 1948 ACT IS A "PURELY MILITARY RETIREMENT SYSTEM" WITHIN THE MEANING OF SECTION 265 (D) OF THE 1952 ACT AS ADDED BY THE 1956 ACT, IT HAS BEEN HELD THAT SUCH TITLE III BENEFITS ARE IN THE NATURE OF A PENSION. WHILE IT WAS HELD IN 29 COMP. GEN. 425 THAT A PERSON GRANTED SUCH BENEFITS WAS NOT ,RETIRED" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, 34 U.S.C. 410N, SO AS TO BE ENTITLED TO THE BENEFITS THERE PROVIDED, IT WAS RECOGNIZED THAT TITLE III PROVIDES A RETIREMENT PAY SYSTEM WHICH IS BASED ON MILITARY SERVICE. IN THE CASE OF YARNALL V. UNITED STATES, 131 C.1CLS. III, A CONCLUSION WAS REACHED CONTRARY TO 29 COMP. GEN. 424, AND THE PLAINTIFF WAS AWARDED THE BENEFITS PROVIDED IN SECTION 412 (A) OF THE 1947 ACT. IN OUR DECISION OF AUGUST 24, 1956, B-93176, 36 COMP. GEN. 158, WE HELD WE WOULD FOLLOW, IN SIMILAR CASES, THE COURT'S DECISION IN THE YARNALL CASE. IN THE CIRCUMSTANCES, IT APPEARS PROPER TO REGARD TITLE III RETIRED PAY AS BEING AWARDED UNDER A "PURELY MILITARY RETIREMENT SYSTEM" WITHIN THE MEANING OF SECTION 265 (D) OF THE 1956 ACT.

QUESTION 2

DOES THE LANGUAGE "EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS" IN SECTION 265 (A) OF PL 676, SUPRA, INCLUDE PERIODS OF (A) ABSENCE WITHOUT LEAVE, (B) CONFINEMENT, (C) TIME AWAITING TRIAL WHICH RESULTS IN CONVICTION, OR (D) TIME LOST THROUGH INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR OR DISEASE OR INJURY RESULTING FROM MISCONDUCT?

THE WORDS "EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS" APPARENTLY WERE INCLUDED IN THE 1956 ACT BECAUSE OF THE SUGGESTION CONTAINED ON OUR LETTER OF NOVEMBER 17, 1955, B-125920, TO THE CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, THAT TO PERMIT THE COUNTING OF TWO PERIODS OF ACTIVE DUTY SHORTER THAN 5 YEARS, WHEN SEPARATED BY BUT A FEW DAYS, WOULD PROBABLY BETTER EFFECTUATE THE APPARENT INTENT OF THE CONGRESS, THAN THE LANGUAGE THEN CONTEMPLATED TO ACCOMPLISH THAT INTENT. SEE ANSWER TO QUESTION 1 IN OUR DECISION OF AUGUST 17, 1956, B-128741, 36 COMP. GEN. 129, ADDRESSED TO YOU. SINCE IT IS CLEAR THAT THE PERIODS ENUMERATED IN QUESTION 2 DO NOT TERMINATE CONTRACTS OF ENLISTMENT OR PERIODS OF ACTIVE DUTY BY RESERVISTS, IN THE ABSENCE OF SOME AFFIRMATIVE DISCHARGE OR DISMISSAL ACTION BY THE SERVICE CONCERNED, IT DOES NOT APPEAR PROPER TO REGARD SUCH PERIODS AS BREAKS IN SERVICE AND A NEGATIVE ANSWER TO QUESTION 2 IS REQUIRED.

QUESTION 3

FOR THE PURPOSE OF DETERMINING ELIGIBILITY TO RECEIVE, AND IN COMPUTING THE AMOUNT OF, LUMP-SUM READJUSTMENT PAY, UNDER THE PROVISIONS OF PL 676, SUPRA, IS IT REQUIRED THAT THE "FIVE YEARS OF CONTINUOUS ACTIVE DUTY" AND THE "EACH YEAR OF ACTIVE SERVICE" BE REDUCED BY THE PERIODS ENUMERATED IN QUESTION 2?

THE PHRASE "EXCEPT FOR BREAKS IN SERVICE OF MORE THAN THIRTY DAYS" MODIFIES THE WORDS "FIVE YEARS OF CONTINUOUS ACTIVE DUTY," AND IN VIEW OF THE CONCLUSION REACHED IN THE ANSWER TO QUESTION 2 THAT THE PERIODS OF ABSENCE, ETC. ENUMERATED IN THAT QUESTION DO NOT CONSTITUTE BREAKS IN SERVICE, IT IS OUR VIEW THAT SUCH PERIODS ARE NOT REQUIRED TO BE DEDUCTED FROM THE TIME THE PERSON CONCERNED HOLDS AN ACTIVE DUTY STATUS, IN DETERMINING WHETHER HE HAS SERVED THE QUALIFYING "FIVE YEARS OF CONTINUOUS ACTIVE DUTY.'

IT APPEARS PROPER TO ATTACH SOME SIGNIFICANCE TO THE FACT THAT WHILE THE TERM "ACTIVE DUTY" IS USED IN SECTION 265 (A), 50 U.S.C. 1016 (A), OF THE 1956 ACT WHEN REFERRING TO ELIGIBILITY TO RECEIVE READJUSTMENT PAY,"ACTIVE SERVICE" IS USED IN CONNECTION WITH THE METHOD TO BE USED IN DETERMINING THE AMOUNT TO BE PAID. INASMUCH AS SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33, GENERALLY REQUIRES FORFEITURE OF PAY AND ALLOWANCES DURING PERIODS OF UNAUTHORIZED ABSENCE, IT APPEARS PROPER TO DEDUCT THE PERIODS ENUMERATED IN QUESTION 2 FROM THE TIME SERVED ON ACTIVE DUTY IN ORDER TO DETERMINE THE NUMBER OF YEARS OF "ACTIVE SERVICE" TO BE USED IN COMPUTING THE AMOUNT OF READJUSTMENT PAY. THIS IS IN LINE WITH OUR DECISIONS WHICH HAVE DENIED LONGEVITY CREDIT FOR PERIODS OF THE TYPE MENTIONED IN QUESTION 2. SEE 22 COMP. GEN. 759; 30 COMP. GEN. 285, AND CASES THERE CITED. SUCH DECISIONS WERE BASED ON THE VIEW THAT INSOFAR AS THE MATTER OF LONGEVITY IS CONCERNED, A MEMBER SHOULD NOT BE PERMITTED TO RECEIVE A BENEFIT BASED ON PERIODS HE HAS DEPRIVED THE GOVERNMENT OF HIS SERVICES BY DELIBERATELY ABSENTING HIMSELF FROM DUTY WITHOUT AUTHORITY OR BY BEING UNABLE TO PERFORM HIS DUTIES BY REASON OF HIS OWN MISCONDUCT, THUS MAKING HIS ABSENCE, TO AN EXTENT, UNAUTHORIZED.

QUESTION 3, THEREFORE, INSOFAR AS IT PERTAINS TO DETERMINATION OF ELIGIBILITY TO RECEIVE THE LUMP-SUM READJUSTMENT PAYMENT IS ANSWERED IN THE NEGATIVE BUT INSOFAR AS IT PERTAINS TO COMPUTING THE AMOUNT OF SUCH PAYMENT IT IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4

UNDER THE PROVISIONS OF PL 676, SUPRA, MAY A PERSON WHO HAS ELECTED TO RECEIVE READJUSTMENT PAY LATER CHANGE HIS ELECTION AND BE ENTITLED TO RECEIVE EITHER SEVERANCE PAY BASED ON HIS MILITARY SERVICE UNDER OTHER PROVISIONS OF LAW, OR DISABILITY COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, ON THE BASIS OF SERVICE FOR WHICH THE READJUSTMENT PAY IS AUTHORIZED?

THERE APPEARS TO BE NOTHING IN THE LANGUAGE OF PARAGRAPHS (B) (5), 50 U.S.C. 1016 (B) (5), AND (6), 50 U.S.C. 1016 (B) (6), OF SECTION 265 OF THE 1952 ACT AS ADDED BY THE 1956 ACT, OR IN THE LEGISLATIVE HISTORY OF THE 1956 ACT, WHICH WOULD SUPPORT THE VIEW THAT AN ELECTION TO RECEIVE A LUMP-SUM READJUSTMENT PAYMENT UNDER SUCH PROVISIONS OF LAW MAY BE CHANGED AT A LATER DATE SO AS TO PERMIT PAYMENT OF SEVERANCE PAY OR DISABILITY COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION. BOTH SEVERANCE PAY AND READJUSTMENT PAY ARE LUMP-SUM PAYMENTS AND THE AMOUNTS OF EACH MAY BE DETERMINED WITH FINALITY BEFORE AN ELECTION IS MADE. HAS BEEN RECOGNIZED THAT IN CERTAIN SITUATIONS WHERE A MEMBER HAS NOT BEEN ACCORDED A FULL OPPORTUNITY TO MAKE AN ELECTION WHICH WAS OPEN TO HIM UNDER LAWS RELATING TO RETIRED OR RETIREMENT PAY, BECAUSE OF ERRONEOUS INFORMATION FURNISHED FROM ADMINISTRATIVE SOURCES, THE OPPORTUNITY TO MAKE SUCH ELECTION MAY BE AFFORDED HIM. SEE 32 COMP. GEN. 159, 162, AND 33 COMP. GEN. 237, 239. HOWEVER, IT IS REPORTED THAT EACH OF THE MILITARY SERVICES HAS PUBLISHED INSTRUCTIONS WHICH PERMIT THE POSTPONEMENT OF AN ELECTION UNDER SECTION 265 (B) (6), PENDING DETERMINATION OF THE AMOUNT OF ANY DISABILITY COMPENSATION AND THE FURNISHING OF ADVICE BY THE VETERANS ADMINISTRATION WITH RESPECT THERETO. IT WOULD SEEM THAT SUCH INSTRUCTIONS AMPLY PROTECT THE RIGHTS OF MEMBERS ELIGIBLE FOR THE READJUSTMENT PAYMENT. QUESTION 4, THEREFORE, IS ANSWERED IN THE NEGATIVE. QUESTION 5

IS A MEMBER TO BE CONSIDERED AS HAVING BEEN INVOLUNTARILY RELEASED, WITHIN THE MEANING OF PL 676, SUPRA, IF UPON THE DATE DUE FOR NORMAL RELEASE FROM ACTIVE DUTY, FOR INSTANCE, EXPIRATION OF ENLISTMENT, HE IS RELEASED NOTWITHSTANDING THE FACT THAT HE HAS VOLUNTEERED FOR A PERIOD OF ACTIVE DUTY OF SHORTER DURATION THAN PERMISSIBLE UNDER APPLICABLE REGULATIONS?

IT IS OUR VIEW THAT IN ANY CASE WHERE A MEMBER VOLUNTEERS FOR A PERIOD OF ACTIVE DUTY OF SHORTER DURATION THAN IS PERMITTED UNDER APPLICABLE REGULATIONS, HE KNOWS THAT HIS REQUEST WILL BE DENIED AND HE THUS DEMONSTRATES THAT HE HAS NO INTENTION OF CONTINUING HIS CAREER OF ACTIVE DUTY. IN SUCH A CASE IT IS THE MEMBER'S OWN ACTION WHICH TERMINATES HIS CAREER AND, HENCE, HE MAY NOT BE REGARDED AS HAVING BEEN INVOLUNTARILY RELEASED FROM ACTIVE DUTY WITHIN THE MEANING OF SECTION 265 AS ADDED BY THE 1956 ACT. QUESTION 5 IS ANSWERED IN THE NEGATIVE.