B-129511, NOVEMBER 15, 1956, 36 COMP. GEN. 403

B-129511, NOVEMBER 15, 1956, 36 COMP. GEN. 403

MILITARY PERSONNEL - RESERVES - LUMP-SUM READJUSTMENT PAYMENTS A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO IS RELEASED FROM ACTIVE DUTY UPON REACHING THE MANDATORY AGE LIMITATION OF 60 IS CONSIDERED TO HAVE BEEN INVOLUNTARILY RELEASED FROM ACTIVE DUTY FOR ENTITLEMENT TO THE LUMP-SUM READJUSTMENT BENEFIT IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, AND THE DENIAL OF THE MEMBER'S OFFER TO SERVE AN ADDITIONAL TOUR OF ACTIVE DUTY WOULD NOT AFFECT THE RIGHT TO A READJUSTMENT BENEFIT. MEMBERS OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO HAVE A DUAL STATUS, AS AN OFFICER AND AN ENLISTED OR WARRANT OFFICER, AND WHO CHANGE FROM ONE ACTIVE DUTY STATUS TO ANOTHER ARE NOT INVOLUNTARILY RELEASED FROM ACTIVE DUTY FOR LUMP-SUM READJUSTMENT PAYMENTS AS PROVIDED BY SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY ACT OF JULY 9, 1956.

TO THE SECRETARY OF DEFENSE, NOVEMBER 15, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 13, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON THREE QUESTIONS RELATING TO ENTITLEMENT TO READJUSTMENT PAY WHICH HAVE ARISEN UNDER THE ACT OF JULY 9, 1956, 70 STAT. 517, AND WHICH ARE DISCUSSED IN COMMITTEE ACTION NO. 157 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, 50 U.S.C. 1016, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM 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:

(4) A PERSON WHO UPON RELEASE FROM ACTIVE DUTY IS IMMEDIATELY ELIGIBLE FOR RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY BASED ENTIRELY ON HIS MILITARY SERVICE UNDER ANY PROVISION OF LAW.

(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 OF THE ADDITIONAL TOUR.

THE FIRST TWO QUESTIONS ON WHICH A DECISION IS REQUESTED ARE AS FOLLOWS:

1. UNDER THE PROVISIONS OF SECTION 265 OF THE ACT OF 9 JULY 1956, PL 676, 84TH CONGRESS, IS A MEMBER OF A RESERVE COMPONENT, WHO IS RELEASED FROM ACTIVE DUTY UPON ATTAINMENT OF AGE 60 AS REQUIRED BY THE RESERVE OFFICER PERSONNEL ACT OF 3 SEPTEMBER 1954 (68 STAT. 1161) AND WHO IS NOT ELIGIBLE FOR RETIRED OR RETIREMENT PAY, CONSIDERED INVOLUNTARILY RELEASED AND IF OTHERWISE QUALIFIED ENTITLED TO READJUSTMENT PAY?

2. WOULD THE ANSWER TO QUESTION 1 BE THE SAME IF SUCH MEMBER VOLUNTEERED FOR AN ADDITIONAL TOUR OF DUTY AND THE SERVICE CONCERNED DID NOT EXTEND OR ACCEPT THE VOLUNTEER REQUEST?

UNDER THE PROVISIONS OF SECTION 326 (A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1161, 50 U.S.C. 1263 (A), A RESERVE OFFICER IN THE GRADE OF BRIGADIER GENERAL OR BELOW IS REQUIRED TO BE DISCHARGED OR TRANSFERRED TO THE RETIRED RESERVE, IF QUALIFIED, ON THE LAST DAY OF THE MONTH IN WHICH HE REACHES THE AGE OF 60. WHILE IT APPEARS THAT SUCH AGE LIMITATION MAY BE EXTENDED UNDER CERTAIN CIRCUMSTANCES (SEE SECTIONS 328, 50 U.S.C. 1265, AND 339, 50 U.S.C. 1279, OF THAT ACT AND DECISION TO YOU OF NOVEMBER 13, 1956, B-129339, 36 COMP. GEN. 390), IF A RESERVE OFFICER'S ACTIVE DUTY STATUS IS NOT EXTENDED BUT IS TERMINATED, PURSUANT TO SECTION 326 (A), UPON HIS REACHING THE AGE OF 60, IT IS OUR VIEW THAT HE COMES WITHIN THE EXPRESS PROVISIONS OF PUBLIC LAW 676, AS A PERSON INVOLUNTARILY RELEASED FROM ACTIVE DUTY, AND THAT IF HE MEETS THE QUALIFICATIONS SET FORTH IN SUCH ACT, HE IS ENTITLED TO ITS BENEFITS. AN OFFER TO SERVE FOR AN ADDITIONAL TOUR OF ACTIVE DUTY, IN A CASE NOT INVOLVING AN EXCEPTION TO THE MANDATORY AGE LIMITATION WOULD SEEM TO BE WITHOUT SIGNIFICANCE AND IN OUR OPINION WOULD HAVE NO EFFECT ON THE MEMBER'S RIGHT TO READJUSTMENT PAY. QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

3. DOES TERMINATION OF A TEMPORARY APPOINTMENT TO RESERVE OFFICER RANK AND PAY MADE UNDER SECTION 302, OFFICER PERSONNEL ACT OF 1947 ( TITLE 10 U.S.C. 5596), OR RELIEF FROM ACTIVE DUTY OF A RESERVE OFFICER OF THE ARMY OR AIR FORCE, WHICH RESULTS IN NO BREAK IN SERVICE BUT MERELY REVERTS THE MEMBER CONCERNED TO HIS PERMANENT RESERVE ENLISTED OR WARRANT OFFICER STATUS IN THE NAVY, OR PERMANENT REGULAR WARRANT STATUS IN THE ARMY OR AIR FORCE, AS APPROPRIATE, PROVIDE A BASIS FOR PAYMENT OF LUMP SUM READJUSTMENT PAY PURSUANT TO PL 676, SUPRA?

THE LEGISLATIVE HISTORY OF PUBLIC LAW 676 CLEARLY SHOWS THAT READJUSTMENT PAY WAS AUTHORIZED AS A MEANS OF PROVIDING SOME COMPENSATION TO CAREER RESERVISTS IN READJUSTING TO CIVILIAN LIFE, WHEN THEIR ACTIVE DUTY CAREERS ARE TERMINATED WITHOUT FAULT ON THEIR PART. SEE PAGE 3, REPORT NO. 2288, FROM THE SENATE COMMITTEE ON ARMED SERVICES, TO ACCOMPANY H.R. 9952, LATER ENACTED INTO LAW AS PUBLIC LAW 676, AND LETTER OF JUNE 4, 1955, FROM THE SECRETARY OF THE ARMY TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, PUBLISHED IN SUCH REPORT. ALSO, IT WAS HELD IN OUR DECISION DATED AUGUST 17, 1956, B-128741, 36 COMP. GEN. 129, THAT ALL TYPES OF SEVERANCE PAY, INCLUDING READJUSTMENT PAY, HAVE THE GENERAL PURPOSE OF PROVIDING THE PERSON CONCERNED WITH A SUM OF MONEY TO AID HIM IN MAKING THE TRANSITION FROM MILITARY TO CIVILIAN LIFE.

IT IS CLEAR THAT A PERSON HAVING ANY DUAL STATUS SUCH AS IS DESCRIBED IN QUESTION 3 AND WHO IS RELEASED FROM ACTIVE DUTY AS A RESERVE OFFICER BUT CONTINUES ON ACTIVE DUTY IN HIS OTHER MILITARY STATUS IS NOT ACTUALLY SEPARATED FROM ACTIVE SERVICE AND IS NOT REQUIRED TO MAKE THE TRANSITION BACK TO CIVILIAN LIFE. IT IS BELIEVED THAT THE CONGRESS DID NOT INTEND THAT READJUSTMENT PAY BE PAID IN SUCH CIRCUMSTANCES AND THAT THE CONCLUSION IS REQUIRED THAT MEMBERS MERELY CHANGING FROM ONE ACTIVE-DUTY (OFFICER) STATUS TO ANOTHER ACTIVE-DUTY (ENLISTED OR WARRANT OFFICER) STATUS ARE NOT "INVOLUNTARILY RELEASED FROM ACTIVE DUTY" WITHIN THE MEANING OF PUBLIC LAW 676. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE NEGATIVE.