B-131530, JUNE 18, 1957, 36 COMP. GEN. 819

B-131530: Jun 18, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - ACTIVE DUTY CONTINUED AFTER DISABILITY RETIREMENT NAVY OFFICERS WHO ARE RETIRED FOR PHYSICAL DISABILITIES BUT WHO ARE NOT IMMEDIATELY RELEASED FROM ACTIVE DUTY ARE NOT TO BE REGARDED AS MEMBERS TRANSFERRED OR RETURNED TO THE RETIRED LIST ON THE DATE OF ACTUAL RELEASE FROM THE SERVICE SO AS TO BE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY UNDER 38 U.S.C. 1012 (B). 1957: FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 16. IS ENTITLED TO MUSTERING- OUT PAY IN THE CIRCUMSTANCES DISCLOSED. THE SECRETARY OF THE NAVY DETERMINED THAT LIEUTENANT BOSTWICK WAS INCAPACITATED TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY AND THAT HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST AS OF NOVEMBER 1.

B-131530, JUNE 18, 1957, 36 COMP. GEN. 819

MILITARY PERSONNEL - GRATUITIES - MUSTERING-OUT PAY - ACTIVE DUTY CONTINUED AFTER DISABILITY RETIREMENT NAVY OFFICERS WHO ARE RETIRED FOR PHYSICAL DISABILITIES BUT WHO ARE NOT IMMEDIATELY RELEASED FROM ACTIVE DUTY ARE NOT TO BE REGARDED AS MEMBERS TRANSFERRED OR RETURNED TO THE RETIRED LIST ON THE DATE OF ACTUAL RELEASE FROM THE SERVICE SO AS TO BE PRECLUDED FROM RECEIVING MUSTERING-OUT PAY UNDER 38 U.S.C. 1012 (B).

TO THE SECRETARY OF THE NAVY, JUNE 18, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 16, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY, TRANSMITTING FOR ADVANCE DECISION A REQUEST FROM THE DISBURSING OFFICER, SPECIAL PAYMENTS DEPARTMENT, U.S. NAVY FINANCE CENTER, CLEVELAND 14, OHIO, AS TO WHETHER LIEUTENANT CLIFFORD L. BOSTWICK, USN ( RETIRED), IS ENTITLED TO MUSTERING- OUT PAY IN THE CIRCUMSTANCES DISCLOSED. THE LETTER OF APRIL 16, 1957, ALSO REQUESTS THAT CONSIDERATION BE GIVEN THE MATTERS PRESENTED BY THE CONTROLLER OF THE NAVY IN THE SECOND ENDORSEMENT ON THE DISBURSING OFFICER'S LETTER.

THE DISBURSING OFFICER STATES THAT IN ACCORDANCE WITH THE PROVISIONS OF 101 U.S.C. 1202 (SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949), THE SECRETARY OF THE NAVY DETERMINED THAT LIEUTENANT BOSTWICK WAS INCAPACITATED TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY AND THAT HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST AS OF NOVEMBER 1, 1956, FOLLOWING COMPLETION OF OVER 28 YEARS OF ACTIVE SERVICE. THE OFFICER WAS RETAINED ON ACTIVE DUTY, HOWEVER, UNTIL JANUARY 31, 1957, PURSUANT TO THE BUREAU OF NAVAL PERSONNEL MESSAGE DATED OCTOBER 30, 1956, TO THE COMMANDING OFFICER, U.S. NAVAL HOSPITAL, PENSACOLA, FLORIDA. THE DISBURSING OFFICER STATES THAT MUSTERING-OUT PAY WAS NOT PAID INCIDENT TO THE OFFICER'S RETIREMENT OF NOVEMBER 1, 1956, IN VIEW OF THE RESTRICTIONS IN PARAGRAPH 1044165-1, NAVY COMPTROLLER MANUAL. HE ALSO REFERS TO PARAGRAPH 1044165-5-13 OF THE MANUAL AS POSSIBLY PRECLUDING PAYMENT. THE DISBURSING OFFICER RELATES THAT THE CIRCUMSTANCES SURROUNDING THIS CASE ARE ALSO APPLICABLE TO NUMEROUS OTHER CASES.

IN THE DISCUSSION SET FORTH IN SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, IT IS POINTED OUT THAT A QUESTION HAS ARISEN IN THE MILITARY PAY AND ALLOWANCE COMMITTEE ( OSD) AS TO WHETHER THE PROVISIONS OF SECTION 501 (B) (2) OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011 (B) (2), MAY PROHIBIT PAYMENT IN CASES WHERE MEMBERS WHO ARE RETIRED FOR PHYSICAL DISABILITY ARE NOT CONCURRENTLY RELEASED FROM ACTIVE SERVICE. THE NAVY COMPTROLLER REFERS TO THE PROVISO IN SECTION 501 (B) (2) AND HE STATES:

THE ISSUE TO BE SETTLED IS WHETHER THE PROVISO EXCLUDES SUBJECT MEMBERS FROM THE PROHIBITION ONLY ON THE CALENDAR DATE UPON WHICH THE MEMBERS ARE ACTUALLY RETIRED (AS OPPOSED TO RELEASED FROM ACTIVE DUTY), OR WHETHER IT WAS THE INTENT OF CONGRESS TO PROVIDE FOR THE ENTITLEMENT TO MUSTERING-OUT PAY OF MEMBERS RETIRED FOR PHYSICAL DISABILITY GENERALLY. IT HAS BEEN THE NAVY COMPTROLLER'S POSITION THAT THE PROHIBITION CONTAINED IN SECTION 501 (B) (2) OF REFERENCE (E) WAS COMPLETELY PREVENTED OF APPLICATION TO MEMBERS RELEASED FROM ACTIVE SERVICE ON ACCOUNT OF PHYSICAL DISABILITY PURSUANT TO SECTIONS 1201 1217, TITLE 10, U.S.C. BY THE PROVISO THEREIN. HOWEVER, AS A QUESTION HAS ARISEN CONCERNING THAT CONCLUSION IN THE MILITARY PAY AND ALLOWANCE COMMITTEE ( OSD), DISBURSING OFFICERS WERE INSTRUCTED NOT TO MAKE PAYMENT IN THIS TYPE CASE PENDING RESOLUTION BY THE COMPTROLLER GENERAL.

SECTION 501 OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, 38 U.S.C. 1011, AUTHORIZES PAYMENT OF MUSTERING-OUT PAY TO MEMBERS OF THE ARMED FORCES, WITH CERTAIN EXCEPTIONS, WHO ARE "DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS," AND SUBSECTION (B) OF THAT SECTION PROVIDES, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM 38 U.S.C. 1011 (B) ):

(B) NO MUSTERING-OUT PAYMENT SHALL BE MADE TO---

(2) ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE SERVICE, IS ENTITLED TO SEVERANCE PAY OR IS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIRED PAY, RETIREMENT PAY, RETAINER PAY OR EQUIVALENT PAY, OR TO A STATUS IN WHICH HE RECEIVES SUCH PAY: PROVIDED, THAT THIS PARAGRAPH SHALL NOT APPLY UPON RETIREMENT OR SEPARATION PURSUANT TO SUBCHAPTER III OF CHAPTER 4 OF TITLE 37 ( TITLE IV OF THE CAREER COMPENSATION ACT OF 1949) * * *.

SECTION 502 (B) OF THE ACT, 38 U.S.C. 1012 (B), PROVIDES THAT INITIAL PAYMENT OF MUSTERING-OUT PAY SHALL BE MADE "AT THE TIME OF FINAL DISCHARGE OR ULTIMATE RELIEF FROM ACTIVE SERVICE.' SECTION 503 OF THE ACT, 38 U.S.C. 1013, CONTAINS SIMILAR LANGUAGE. PARAGRAPH 1044165-1 OF THE NAVY COMPTROLLER MANUAL--- ISSUED TO IMPLEMENT THE PROVISIONS OF THE ACT--- PROVIDES THAT A MEMBER WHO IS RETIRED FOR PHYSICAL DISABILITY (PERMANENT OR TEMPORARY) IS ENTITLED TO OTHERWISE PROPER PAYMENT OF MUSTERING-OUT PAY AT THE TIME OF RETIREMENT UNLESS HE IS RETAINED ON ACTIVE DUTY, IN WHICH CASE HE IS ENTITLED TO SUCH PAYMENT AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. PARAGRAPH 1044165 5 OF THE MANUAL PROVIDES, IN PERTINENT PART, THAT THE FOLLOWING MEMBERS ARE NOT ENTITLED TO MUSTERING-OUT PAY:

4. MEMBERS TRANSFERRED OR RETURNED TO A RETIRED OR INACTIVE LIST WITH RETIRED OR RETAINER PAY (INCLUDING MEMBERS WHO WAIVE THEIR RIGHT TO RETIRED OR RETAINER PAY IN FAVOR OF COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION), EXCEPT WHEN RETIRED FOR PHYSICAL DISABILITY PERMANENT OR TEMPORARY) UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949;

13. MEMBERS ON THE PERMANENT OR TEMPORARY PHYSICAL DISABILITY RETIRED LIST WHEN RELEASED FROM A PERIOD OF ACTIVE DUTY SUBSEQUENT TO RETIREMENT;

WHILE CONGRESS EXPRESSLY PROHIBITED THE PAYMENT OF MUSTERING-OUT PAY GENERALLY TO MEMBERS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIRED PAY, IT EXPRESSLY EXCLUDED FROM THAT PROHIBITION THOSE MEMBERS WHO ARE RETIRED OR SEPARATED UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, BY REASON OF PHYSICAL DISABILITY. PLAINLY, IT WAS THE LEGISLATIVE PURPOSE AND INTENT, AS EXPRESSED IN THE LAW, THAT MEMBERS RETIRED FOR PHYSICAL DISABILITY WOULD BE ENTITLED TO MUSTERING-OUT PAY AND THAT INTENT AND PURPOSE WOULD BE FRUSTRATED, IN A SUBSTANTIAL MEASURE, BY A REFUSAL TO PAY MUSTERING-OUT PAY, EVENTUALLY, IN CASES WHERE AN OTHERWISE ELIGIBLE MEMBER IS RETIRED FOR PHYSICAL DISABILITY BUT, FOR SOME REASON, IS NOT IMMEDIATELY RELEASED FROM ACTIVE SERVICE. IT IS OUR VIEW, THEREFORE, THAT THE LAW SHOULD BE CONSTRUED AND APPLIED AS AUTHORIZING PAYMENT OF MUSTERING-OUT PAY IN SUCH CASES AT THE TIME OF THE RETIRED MEMBER'S ACTUAL RELEASE FROM ACTIVE DUTY.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY AND, HENCE, LIEUTENANT BOSTWICK IS ENTITLED TO MUSTERING-OUT PAY, IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY ON JANUARY 31, 1957. THE DISBURSING OFFICER IS AUTHORIZED TO MAKE SUCH PAYMENT IN THE AMOUNT FOUND DUE.