B-132069, OCTOBER 3, 1957, 37 COMP. GEN. 215

B-132069: Oct 3, 1957

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MILITARY PERSONNEL - RESERVES INVOLUNTARILY RELEASED - TRAVEL AND TRANSPORTATION ALLOWANCES THE LUMP-SUM READJUSTMENT PAYMENT MADE TO RESERVISTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER FIVE YEARS OF CONTINUOUS ACTIVE DUTY PURSUANT TO SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952. IS NOT WITHIN THE PURVIEW OF THE TERM "SEVERANCE PAY. 1957: REFERENCE IS MADE TO LETTER OF MAY 31. 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. 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.

B-132069, OCTOBER 3, 1957, 37 COMP. GEN. 215

MILITARY PERSONNEL - RESERVES INVOLUNTARILY RELEASED - TRAVEL AND TRANSPORTATION ALLOWANCES THE LUMP-SUM READJUSTMENT PAYMENT MADE TO RESERVISTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER FIVE YEARS OF CONTINUOUS ACTIVE DUTY PURSUANT TO SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, 50 U.S.C. 1016, IS NOT WITHIN THE PURVIEW OF THE TERM "SEVERANCE PAY," AS USED IN THE ACT OF AUGUST 11, 1955, 37 U.S.C. 253 (A), SO AS TO ENTITLE SUCH RESERVISTS INVOLUNTARILY RELEASED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES WHICH ACCRUE TO MEMBERS DISCHARGED WITH "SEVERANCE PAY.'

TO THE SECRETARY OF THE ARMY, OCTOBER 3, 1957:

REFERENCE IS MADE TO LETTER OF MAY 31, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY ( FINANCIAL MANAGEMENT), REQUESTING A DECISION REGARDING ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER THE ACT OF AUGUST 11, 1955, 69 STAT. 691, 37 U.S.C. 253 (A), AMENDING SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, OF A MEMBER OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES INVOLUNTARILY RELEASED FROM ACTIVE DUTY PURSUANT TO THE ACT OF JULY 9, 1956, PUBLIC LAW 676, 84TH CONGRESS, 70 STAT. 517, 50 U.S.C. 1016.

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. * * * ( ITALICS ADDED.)

THE ACT OF AUGUST 11, 1955, 69 STAT. 691, AMENDING SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO---

(1) IS RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST; OR

(2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN NINETY DAYS); MAY SELECT HIS HOME FOR THE PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SUBSECTION.

* * * UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO---

(1) IS RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST; OR

(2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN NINETY DAYS); IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS AND FOR HIS BAGGAGE AND HOUSEHOLD EFFECTS TO THE HOME SELECTED FOR ALLOWANCE PURPOSES UNDER SUBSECTION (A) OF THIS SECTION. ( ITALICS ADDED.)

YOUR QUESTION IS WHETHER, IN VIEW OF THE APPARENT INTENT OF THE ACT OF AUGUST 11, 1955, TO EASE THE TRANSITION FROM MILITARY TO CIVILIAN LIFE OF A MEMBER WITH AT LEAST 8 YEARS OF CONTINUOUS SERVICE PRIOR TO INVOLUNTARY SEPARATION, THE TERM "DISCHARGED WITH SEVERANCE PAY" AS USED IN THE ACT OF AUGUST 11, 1955, MAY BE CONSTRUED SO AS TO ENTITLE A RESERVIST INVOLUNTARILY RELEASED FROM ACTIVE DUTY AND PAID A LUMP-SUM READJUSTMENT PAYMENT UNDER THE ACT OF JULY 9, 1956, TO THE TRAVEL AND TRANSPORTATION ALLOWANCE BENEFITS OF THE ACT OF AUGUST 11, 1955.

THE PROVISION "DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY" IN THE ACT OF AUGUST 11, 1955, AMENDING THE CAREER COMPENSATION ACT OF 1949, CLEARLY IS APPLICABLE IN CASES OF MEMBERS, BOTH REGULAR AND RESERVE, DISCHARGED FROM THE SERVICE WITH DISABILITY SEVERANCE PAY AS PROVIDED IN SECTION 403 OF THE BASIC ACT, 37 U.S.C. 273, AND IN CASES OF MEMBERS OF THE REGULAR SERVICES DISCHARGED WITH LUMP-SUM PAY OR SEVERANCE PAY UNDER THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, 34 U.S.C. 410J (H). THESE PAYMENTS ARE UNIFORMLY COMPUTED AT THE RATE OF 2 MONTHS' BASIC PAY FOR EACH YEAR OF ACTIVE SERVICE BUT NOT TO EXCEED A TOTAL OF 2 YEARS' BASIC PAY. POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER, IT WAS SAID IN OUR DECISION OF AUGUST 17, 1956, B 128741, 36 COMP. GEN. 129 THAT, IN ITS STRICTEST MEANING,"SEVERANCE PAY" IS AN AMOUNT WHICH IS PAID IN CONNECTION WITH SEVERANCE FROM THE SERVICE WHEN THE MILITARY STATUS OF THE PERSON CONCERNED IS TERMINATED. THE QUESTION FOR DETERMINATION HERE, HOWEVER, WOULD APPEAR TO BE WHETHER, IN ADDITION TO AUTHORIZING A LUMP-SUM READJUSTMENT PAYMENT, THE ACT OF JULY 9, 1956, PUBLIC LAW 676, MAY BE INTERPRETED AS INTENDING TO CONFER UPON RESERVISTS INVOLUNTARILY "RELEASED FROM ACTIVE DUTY" THE SAME RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES AS ARE AUTHORIZED BY THE ACT OF AUGUST 11, 1955, FOR MEMBERS OF BOTH THE REGULAR AND RESERVE DISCHARGED FROM THE SERVICE BECAUSE OF DISABILITY OF A DEGREE INSUFFICIENT TO ENTITLE THEM TO RETIREMENT, AND FOR MEMBERS OF THE REGULAR SERVICES INVOLUNTARILY DISCHARGED.

IN THIS CONNECTION, THE FOLLOWING IS FOUND ON PAGES 4157 AND 4176 OF A REPORT OF JUNE 22, 1955, REPORT NO. 24, BY THE COMMITTEE ON ARMED SERVICES, SUBCOMMITTEE NO. 2, HOUSE OF REPRESENTATIVES, ON H.R. 6600, 84TH CONGRESS, ST SESSION, WHICH BECAME THE ACT OF AUGUST 11, 1955:

MR. KILDAY. ( COMMITTEE CHAIRMAN) IS THERE ANYTHING FURTHER?

MR. BLANDFORD. ( COMMITTEE COUNSEL) YES, SIR. I HAVE QUITE A FEW ITEMS HERE.

THE WAY THIS BILL IS WRITTEN IT DOES NOT APPLY TO RESERVES WHO ARE SEPARATED BECAUSE UNDER PRESENT LAW THEY DO NOT GET SEVERANCE PAY. HAVE A BILL, H.R. 6725, TO PROVIDE A LUMP SUM TO RESERVE OFFICERS WHO ARE RELEASED FROM ACTIVE DUTY. THAT MAY BE THE BILL WHERE THIS MATTER SHOULD BE TAKEN UP. WE DO NOT WANT TO ANTICIPATE WHAT THE CONGRESS MAY DO WITH REGARD TO READJUSTMENT PAYMENTS, BUT I WANT TO CALL TO YOUR ATTENTION THIS BILL, PROPOSED BY THE DEPARTMENT OF DEFENSE, RECOMMENDS A READJUSTMENT PAYMENT WHICH IS IN THE NATURE OF SEVERANCE PAY AFTER ONLY 5 YEARS OF CONTINUOUS DUTY.

WE ARE GOING TO HAVE A DISTINCTION HERE BETWEEN A RESERVE WHO GOES OUT WITH READJUSTMENT PAY AFTER 5 YEARS AND A RESERVE WHO GOES OUT WITH SEVERANCE PAY--- WELL, A RESERVE WOULD NOT GET SEVERANCE PAY AS SUCH BUT THIS IS IN THE NATURE OF SEVERANCE PAY FOR A RESERVIST.

THERE IS NOTHING FOR THE RESERVE WHO GETS A " DEAR JOHN" LETTER OR WHO ATTAINS AN AGE WHICH REQUIRES HIM TO BE RELEASED FROM ACTIVE DUTY.

COLONEL MARSHALL. YES. I DON-T THINK THERE COULD BE ANY CONFUSION BETWEEN THE TERMS ,READJUSTMENT PAY" AND "SEVERANCE PAY.' SEVERANCE PAY IS GRANTED TO ENABLE A RESERVIST TO ADJUST TO CIVILIAN LIFE AND WHENEVER HE IS GRANTED SEVERANCE PAY IT IS BECAUSE HE COULD NOT DRAW RETIREMENT PAY UNDER SECTION 304, OR 810.

BUT THE RESERVIST MAY DRAW READJUSTMENT PAY AND END UP RETIRING. SO THE TWO COULD NOT BE CONFUSED.

MR. BLANDFORD. THE POINT IS SEVERANCE PAY NORMALLY GOES TO REGULAR OFFICERS WHO ARE PASSED OVER, AND ALSO TO RESERVE AND REGULAR OFFICERS WHO DO NOT HAVE 30-PERCENT DISABILITY AND WHO HAVE LESS THAN 20 YEARS OF SERVICE.

COLONEL MARSHALL. THAT IS RIGHT.

MR. BLANDFORD. IN ONE CASE YOU HAVE A RESERVIST GETTING SEVERANCE PAY. I AM MERELY POINTING OUT HERE THAT THIS BILL AS WRITTEN WILL NOT PERMIT A RESERVE OFFICER WHO IS SEPARATED WITH LESS THAN 8 YEARS OF SERVICE, OR WITH ANY YEARS OF SERVICE, FOR THAT MATTER, TO DRAW, OR TO SELECT, HIS HOME FOR PURPOSES OF SHIPMENT OF HOUSEHOLD EFFECTS, BUT AT THE SAME TIME THE COMMITTEE MAY, WELL, NOT THIS SUBCOMMITTEE, BUT ANOTHER SUBCOMMITTEE OR THE FULL COMMITTEE, MAY WELL CONSIDER A BILL TO GRANT READJUSTMENT PAY WHICH IS IN THE NATURE OF SEVERANCE PAY TO RESERVE OFFICERS AND THE SAME ARGUMENT WILL COME UP AFTER 4 YEARS OF SERVICE OR 5 OR 7 OR 12 OR 15 OR 17 YEARS OF CONTINUOUS SERVICE, AND WHEN AN INDIVIDUAL IS SEPARATED HE SHOULD BE ABLE TO SELECT HIS HOME OF RECORD.

IT SEEMS EVIDENT FROM THE ABOVE THAT THERE WAS AN AWARENESS OF THE FACT THAT, SHOULD LEGISLATION BE ENACTED PROVIDING FOR A LUMP-SUM READJUSTMENT PAYMENT TO RESERVISTS INVOLUNTARILY RELEASED FROM ACTIVE DUTY, A QUESTION MIGHT ARISE AS TO THEIR ENTITLEMENT TO THE TRAVEL AND TRANSPORTATION ALLOWANCES UNDER THE BILL, H.R. 6600, THEN BEING CONSIDERED. ALSO, A BELIEF IS INDICATED THAT SUCH RIGHT WOULD ACCRUE TO RESERVISTS ONLY IF AN APPROPRIATE CHANGE SHOULD BE MADE IN THE THEN PENDING READJUSTMENT PAYMENT LEGISLATION AS CONTAINED IN H.R. 6725. THAT NO SUCH CHANGE WAS MADE IN H.R. 6725, OR ITS SUCCESSOR BILL, H.R. 9952, WHICH BECAME PUBLIC LAW 676, THE ACT OF JULY 9, 1956, IS SHOWN BY THE LANGUAGE OF THE ACT ITSELF.

FURTHER, IN THE REPORT ON THE HEARINGS OF THE SENATE COMMITTEE ON ARMED SERVICES, JUNE 21, 1956, ON THE BILL, H.R. 9952, THERE IS SHOWN ON PAGE 6, IN CONNECTION WITH A DISCUSSION OF THE RELATION OF SEVERANCE PAY TO THE PROPOSED LUMP-SUM READJUSTMENT PAYMENT, THE FOLLOWING:

SENATOR STENNIS. AND YOU WANT TO MAKE THIS APPLY TO RESERVE OFFICERS THE SAME AS IT DOES---

COLONEL JONES. TO THE REGULAR OFFICERS UNDER THE VARIOUS OTHER PROVISIONS, EXCEPT THAT UNDER THIS PROPOSAL THE AMOUNT OF READJUSTMENT FOR SEVERANCE PAY WOULD BE SOMEWHAT LESS THAN IS ACCORDED TO REGULAR OFFICERS UNDER OTHER PROVISIONS OF THE LAW.

BEAR IN MIND, HOWEVER, THAT THE REGULAR OFFICER WHO IS ENTITLED TO SEVERANCE PAY UNDER EXISTING PROVISIONS OF LAW IS COMPLETELY SEPARATED FROM HIS COMMISSION STATUS. HE LOSES HIS OFFICE, HE DOES NOT THEREAFTER ACCRUE ANY RETIREMENT BENEFITS OR ANYTHING OF THE KIND, WHEREAS THE RESERVE OFFICER THAT WE ARE SPEAKING OF HERE WOULD STILL CONTINUE IN THE RESERVES.

HE WOULD RETAIN HIS COMMISSION AT STATUS NOT ON ACTIVE DUTY, COULD ATTEND DRILL, PARTICIPATE, DRAW PAY FOR THAT AND ALSO CONTINUE TO ACCRUE RETIREMENT BENEFITS TOWARD TITLE III OF PUBLIC LAW 810.

IT THUS SEEMS APPARENT THAT, IN ENACTING PUBLIC LAW 676 AUTHORIZING THE LUMP-SUM READJUSTMENT PAYMENT TO RESERVISTS, THE CONGRESS, AS REPRESENTED BY ITS MEMBERS ON THE ARMED SERVICES COMMITTEES, DID NOT INTEND TO CONFER UPON RESERVISTS INVOLUNTARILY "RELEASED FROM ACTIVE DUTY" BENEFITS EQUAL TO THOSE OTHERWISE PROVIDED FOR MEMBERS "INVOLUNTARILY DISCHARGED" THROUGH NO FAULT OF THEIR OWN, OR ANY BENEFITS OTHER THAN AS SPECIFICALLY PROVIDED IN THE ACT.

IN VIEW OF THE FOREGOING, AND THE SUBSTANTIAL DOUBT THAT THE TERMS "SEVERANCE PAY" AND "LUMP-SUM READJUSTMENT PAYMENT" WERE USED TO MEAN THE SAME THING IN THE TWO ACTS HERE IN QUESTION, IT IS OUR VIEW THAT A MEMBER OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES INVOLUNTARILY RELEASED IMMEDIATELY FOLLOWING 8 YEARS OF CONTINUOUS ACTIVE DUTY AND PAID A LUMP- SUM READJUSTMENT PAYMENT PURSUANT TO THE ACT OF JULY 9, 1956, IS NOT, BY VIRTUE OF SUCH RELEASE AND PAYMENT, ENTITLED TO RECEIVE THE TRAVEL AND TRANSPORTATION ALLOWANCES (ACCRUING TO A MEMBER DISCHARGED WITH SEVERANCE PAY) AS PROVIDED FOR IN THE ACT OF AUGUST 11, 1955. YOUR QUESTION IS ANSWERED ACCORDINGLY.