B-130744, APR. 8, 1957

B-130744: Apr 8, 1957

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REQUESTS OUR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. WAS SEPARATED ON MAY 19. WAS SEPARATED ON SEPTEMBER 28. WAS ALLOWED IN THE AMOUNT OF $3. PROVIDES FOR THE PAYMENT OF A READJUSTMENT ALLOWANCE TO A MEMBER OF THE RESERVE COMPONENTS WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY. WHICH IS AN AMENDMENT TO THE ARMED FORCES RESERVE ACT OF 1952. CONTAINS AN EXPRESS PROHIBITION AGAINST PAYMENT OF THE READJUSTMENT ALLOWANCE AS FOLLOWS: "/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. IN VIEW OF THIS PROHIBITION YOU ASK THESE QUESTIONS: "/1) MAY AN OFFICER WHO IS ELIGIBLE FOR THE RESERVE OFFICERS' LUMP SUM BONUS AT THE TIME OF HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY RECEIVE BOTH THE LUMP-SUM BONUS AND THE LUMP-SUM READJUSTMENT PAYMENT.

B-130744, APR. 8, 1957

TO LIEUTENANT COLONEL C. W. GRIFFIN, FINANCE OFFICER, DEPARTMENT OF THE AIR FORCE:

YOUR LETTER OF FEBRUARY 7, 1957, REQUESTS OUR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, ENCLOSED WITH THE LETTER, COVERING LUMP-SUM READJUSTMENT PAYMENT TO MAJOR JOHN M. NOBLE, JR., UNDER THE ACT OF JULY 9, 1956, PUBLIC LAW 676, 84TH CONGRESS, 70 STAT. 517.

MAJOR NOBLE ENTERED ON ACTIVE DUTY AS AN ENLISTED MEMBER ON NOVEMBER 3, 1941, WAS SEPARATED ON MAY 19, 1942, TO ACCEPT A COMMISSION IN THE AIR RESERVE ON THE NEXT DAY, AND WAS SEPARATED ON SEPTEMBER 28, 1956, AFTER 14 YEARS, 10 MONTHS, AND 26 DAYS OF CONTINUOUS SERVICE IN AN ACTIVE DUTY STATUS. TWO DAYS BEFORE HIS SEPARATION MAJOR NOBLE FILED TWO FORMS; IN ONE HE REQUESTED A LUMP-SUM BONUS UNDER THE PROVISIONS OF THE ACT OF JUNE 16, 1936, AS AMENDED (10 U.S.C 300A, 1952 ED.), AND IN THE OTHER, ENTITLED "CERTIFICATE OF ELECTION, READJUSTMENT PAYMENT," HE REQUESTED A LUMP-SUM PAYMENT AS PROVIDED BY THE ACT OF JULY 9, 1956, CITED ABOVE. THE FORMER CLAIM, FOR THE LUMP-SUM BONUS, WAS ALLOWED IN THE AMOUNT OF $3,047.22. PAYMENT OF THE LATTER CLAIM HAS BEEN DELAYED PENDING OUR DECISION.

WITH CERTAIN LIMITATIONS THE ACT OF JULY 9, 1956, PROVIDES FOR THE PAYMENT OF A READJUSTMENT ALLOWANCE TO A MEMBER OF THE RESERVE COMPONENTS WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY. THIS STATUTE, WHICH IS AN AMENDMENT TO THE ARMED FORCES RESERVE ACT OF 1952,CONTAINS AN EXPRESS PROHIBITION AGAINST PAYMENT OF THE READJUSTMENT ALLOWANCE AS FOLLOWS:

"/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.'

IN VIEW OF THIS PROHIBITION YOU ASK THESE QUESTIONS:

"/1) MAY AN OFFICER WHO IS ELIGIBLE FOR THE RESERVE OFFICERS' LUMP SUM BONUS AT THE TIME OF HIS INVOLUNTARY RELEASE FROM ACTIVE DUTY RECEIVE BOTH THE LUMP-SUM BONUS AND THE LUMP-SUM READJUSTMENT PAYMENT, PROVIDING THE PERIOD FOR WHICH THE RESERVE OFFICERS' LUMP-SUM BONUS WAS PAID IS EXCLUDED IN THE COMPUTATION OF THE AMOUNT OF READJUSTMENT PAYMENT DUE?

"/2) WOULD YOUR REPLY BE THE SAME IF MAJOR NOBLE HAD NOT RECEIVED RESERVE OFFICERS' LUMP-SUM BONUS PRIOR TO SUBMITTING HIS CLAIM FOR LUMP-SUM READJUSTMENT PAYMENT?

SECTION 300/A) OF TITLE 10, U.S. CODE, 1952 EDITION, PROVIDES IN PART:

"WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID THE LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH OFFICER, * * *"

THIS LUMP-SUM PAYMENT HAS BEEN CONSIDERED A SEVERANCE PAY. IN OUR DECISION OF AUGUST 17, 1956, 36 COMP. GEN. 129, WE HELD THAT PERIODS OF SERVICE FOR WHICH BONUS PAYMENTS HAVE BEEN RECEIVED MUST BE EXCLUDED IN COMPUTING THE AMOUNT OF READJUSTMENT ALLOWANCE IN ORDER TO CONFORM TO THE PROVISIONS OF SUBSECTION (A) OF THE ACT OF JULY 9, 1956, WHICH PROVIDES FOR THE EXCLUSION OF "ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW" IN COMPUTING THE AMOUNT OF THE READJUSTMENT PAYMENT. WE SEE NO BASIS FOR CONSIDERING THE PHRASE ,SEVERANCE PAY" IN SUBSECTION (B) OF THAT ACT AS DIFFERENT FROM "SEVERANCE PAY" IN SUBSECTION (A). THEREFORE, A BONUS PAYMENT UNDER 10 U.S.C. 300/A), ABOVE, FALLS WITHIN THE PURVIEW OF THE ACT OF JULY 9, 1956, AND MAJOR NOBLE IS NOT ENTITLED TO RECEIVE PAYMENTS UNDER BOTH STATUTES. SINCE THE EXPRESS LIMITATION IS PHRASED TO INCLUDE "A PERSON WHO UPON RELEASE IS IMMEDIATELY ELIGIBLE" IT IS UNNECESSARY TO CONSIDER ANY ORDER OF PAYMENT. ONLY ONE PAYMENT MAY BE ALLOWED INCIDENT TO HIS SEPARATION.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE, THE SECOND IN THE AFFIRMATIVE.

IN THE "CERTIFICATE OF ELECTION" MAJOR NOBLE SAID:

"I * * * UNDERSTAND THAT MY ACCEPTANCE OF THE READJUSTMENT PAYMENT AUTHORIZED UNDER SEC. 265, ARMED FORCES RESERVE ACT OF 1952 AS AMENDED ON 9 JUL 56 BY PL 676, 84TH CONGRESS WILL CONSTITUTE MY ELECTION TO RECEIVE READJUSTMENT PAYMENT INSTEAD OF ANY SEVERANCE PAY OF VA DISABILITY COMPENSATION TO WHICH I MAY BE ENTITLED.'

IN VIEW OF THE MEMBER'S DECLARATION IN THE CERTIFICATE AND HIS SIMULTANEOUS SUBMISSION OF TWO INCONSISTENT REQUESTS, AS WELL AS THE AIR FORCE'S PAYMENT OF ONE CLAIM RATHER THAN THE OTHER, IT SEEMS APPARENT THAT MAJOR NOBLE'S "ELECTION" WAS MADE UNDER A MISUNDERSTANDING OF THE EFFECT OF THE ACT OF JULY 9, 1956. CONSEQUENTLY, AFTER REDETERMINING MAJOR NOBLE'S ELECTION AND ELIMINATING ONE OF THE TWO INCONSISTENT REQUESTS, THE MATTER MAY BE CONSIDERED AS IF THE CLAIM WERE ORIGINALLY PRESENTED. MAJOR NOBLE ELECTS TO RECEIVE THE READJUSTMENT PAYMENT UNDER THE ACT OF JULY 9, 1956, WHICH APPEARS TO BE THE LARGER AMOUNT, SUCH PAYMENT SHOULD BE REDUCED BY THE AMOUNT ..END :