B-132268, SEPTEMBER 4, 1957, 37 COMP. GEN. 166

B-132268: Sep 4, 1957

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BASED ON A STATUTE WHICH WAS SUBSTANTIALLY CHANGED BY THE CODIFICATION OF TITLE 10. AVIATION CADETS WHOSE NAMES WERE PLACED ON A TEMPORARY DISABILITY RETIRED LIST PURSUANT TO TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. - IS REGARDED AS AN INITIAL STEP IN AN ACTION WHICH WILL LEAD EITHER TO RETURN TO DUTY. EVEN THOUGH A DISABILITY DETERMINATION IS MADE SUBSEQUENT TO AUGUST 10. FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) DECISION IS REQUESTED ON QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 189. MAY AN AVIATION CADET WHOSE NAME WAS PLACED ON A TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 802. MAY AN AVIATION CADET WHOSE NAME WAS PLACED ON A TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 AND CONTINUED THEREON AFTER 10 AUGUST 1956.

B-132268, SEPTEMBER 4, 1957, 37 COMP. GEN. 166

MILITARY PERSONNEL - DISABILITY RETIRED PAY -AVIATION CADETS THE EXPRESS EXCLUSION OF AVIATION CADETS FROM DISABILITY RETIREMENT BENEFITS BY 10 U.S.C. 1217 PRECLUDES THE PAYMENT OF PHYSICAL DISABILITY RETIRED PAY OR SEVERANCE PAY TO AVIATION CADETS SUBSEQUENT TO AUGUST 10, 1956--- THE EFFECTIVE DATE OF THE ENACTMENT INTO POSITIVE LAW OF TITLE 10 OF THE UNITED STATES CODE--- AND THE DECISION OF THE COMPTROLLER GENERAL IN 30 COMP. GEN. 431, BASED ON A STATUTE WHICH WAS SUBSTANTIALLY CHANGED BY THE CODIFICATION OF TITLE 10, MAY NOT BE REGARDED AS A PRECEDENT WITH RESPECT TO AVIATION CADETS NOT RETIRED OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO AUGUST 10, 1956. AVIATION CADETS WHOSE NAMES WERE PLACED ON A TEMPORARY DISABILITY RETIRED LIST PURSUANT TO TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, WHICH HAS BEEN REPEALED AND CODIFIED AS CHAPTER 61, TITLE 10, U.S.C. AND WHICH SPECIFICALLY EXCLUDES AVIATION CADETS, MAY CONTINUE TO BE CARRIED ON THAT LIST AND BE PAID RETIRED PAY AFTER AUGUST 10, 1956--- THE EFFECTIVE DATE OF THE ENACTMENT OF TITLE 10 INTO POSITIVE LAW--- PURSUANT TO THE SAVINGS PROVISION IN SECTION 53 OF THE ACT OF AUGUST 10, 1956, WHICH CONTINUES RIGHTS BEGUN PRIOR TO AUGUST 10, 1956. THE PLACEMENT OF AN AVIATION CADET ON A TEMPORARY DISABILITY RETIRED LIST PRIOR TO AUGUST 10, 1956--- THE EFFECTIVE DATE OF THE ENACTMENT INTO POSITIVE LAW OF TITLE 10 OF THE UNITED STATES CODE, WHICH SPECIFICALLY EXCLUDES AVIATION CADETS FROM DISABILITY RETIREMENT BENEFITS--- IS REGARDED AS AN INITIAL STEP IN AN ACTION WHICH WILL LEAD EITHER TO RETURN TO DUTY, RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY SO AS TO BE CONSIDERED A PROCEEDING BEGUN PRIOR TO AUGUST 10, 1956, WITHIN THE SAVINGS PROVISION IN SECTION 53 OF THE ACT OF AUGUST 10, 1956, EVEN THOUGH A DISABILITY DETERMINATION IS MADE SUBSEQUENT TO AUGUST 10, 1956.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 4, 1957:

BY LETTER OF JUNE 19, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) DECISION IS REQUESTED ON QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 189, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS FOLLOW:

1. MAY AN AVIATION CADET WHOSE NAME WAS PLACED ON A TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 802, 816) CONTINUE TO BE CARRIED ON THAT LIST AND BE PAID RETIRED PAY AFTER 10 AUGUST 1956?

2. MAY AN AVIATION CADET WHOSE NAME WAS PLACED ON A TEMPORARY DISABILITY RETIRED LIST PURSUANT TO SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 AND CONTINUED THEREON AFTER 10 AUGUST 1956, AND WHOSE DISABILITY IS DETERMINED AFTER 10 AUGUST 1956, TO BE OF A PERMANENT NATURE, BE PAID RETIRED PAY OR SEVERANCE PAY IN ACCORDANCE WITH SECTION 1210, TITLE 10, U.S.C. UPON REMOVAL OF HIS NAME FROM THE TEMPORARY DISABILITY RETIRED LIST?

3. IF THE ANSWER TO EITHER OF THE ABOVE QUESTIONS IS IN THE NEGATIVE, WHAT DISPOSITION MAY BE MADE OF AVIATION CADETS WHOSE NAMES ARE CURRENTLY ON A TEMPORARY DISABILITY RETIRED LIST, IN VIEW OF THE LIMITED DISPOSITIONS AVAILABLE UNDER SECTION 1210, TITLE 10, UNITED STATES CODE?

4. MAY AN AVIATION CADET BE PAID PHYSICAL DISABILITY RETIRED PAY OR SEVERANCE PAY PURSUANT TO SECTION 1201, 1202, 1203 OF TITLE 10, UNITED STATES CODE, UPON DETERMINATIONS MADE BY THE APPROPRIATE SECRETARY AFTER 10 AUGUST 1956, IN ACCORDANCE WITH ONE OF THOSE SECTIONS?

UNTIL AUGUST 10, 1956, WHEN TITLE 10, U.S.C. WAS "REVISED, CODIFIED, AND ENACTED INTO LAW" BY PUBLIC LAW 1028, 84TH CONGRESS (70A STAT. 1), TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 816, 37 U.S.C. 271, PROVIDED FOR THE RETIREMENT OR SEPARATION OF MEMBERS OF THE UNIFORMED SERVICES WHO HAD SUFFERED PHYSICAL DISABILITY. SECTION 102 (B) OF THE 1949 STATUTE, 37 U.S.C. 231 (B), DOES NOT INCLUDE "AVIATION CADET" BUT DOES INCLUDE "ENLISTED PERSON" IN ITS DEFINITION OF THE TERM "MEMBER" AND WE DECIDED THAT AN AVIATION CADET WAS ENTITLED TO THE BENEFITS OF TITLE IV AS AN ENLISTED PERSON IN VIEW OF AN EARLIER STATUTE, WHICH CREATED THE GRADE OF AVIATION CADET AS A SEPARATE ENLISTED GRADE, AND OF PRIOR DECISIONS WHICH CONSIDERED A CADET AS AN ENLISTED MAN FOR VARIOUS PURPOSES. SEE DECISION OF MAY 3, 1951, 30 COMP. GEN. 431. THUS, THERE WAS AN ELEMENT OF DOUBT AS TO THE DISABILITY RETIREMENT RIGHTS OF AVIATION CADETS UNDER TITLE IV OF THE 1949 ACT.

WHILE TITLE IV WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 680, IT WAS REPEALED BY CHAPTER 61, TITLE 10, UNITED STATES CODE. AT THE END OF THAT CHAPTER THERE WAS INSERTED A NEW SECTION, 1217, WHICH EXPRESSLY PROVIDES, IN CLEAR AND UNAMBIGUOUS TERMS, THAT "THIS CHAPTER DOES NOT APPLY TO CADETS AT THE UNITED STATES MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY, OR THE COAST GUARD ACADEMY, TO MIDSHIPMEN OF THE NAVY, OR TO AVIATION CADETS.' IT IS SUGGESTED, HOWEVER, THAT THE EFFECT TO BE GIVEN SECTION 1217 IS NOT ENTIRELY CLEAR, INSOFAR AS AVIATION CADETS ARE CONCERNED, BECAUSE SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, DECLARES THAT THE LEGISLATIVE PURPOSE IN ENACTING TITLE 10 IS TO RESTATE EXISTING LAW WITHOUT SUBSTANTIVE CHANGE.

IN CONSTRUING A STATUTE, THE INTENT OF CONGRESS IS PARAMOUNT. NEVERTHELESS, THE INTENT IS TO BE ASCERTAINED CHIEFLY FROM THE WORDS OF THE STATUTE. SUTHERLAND STATUTORY CONSTRUCTION, SECTION 4702. EVEN THOUGH A STATUTE IS REARRANGED AND REWORDED DURING CODIFICATION, IT RECEIVES THE SAME INTERPRETATION UNLESS THERE HAS BEEN A SUBSTANTIAL CHANGE OF PHRASEOLOGY. MCDONALD V. HOVEY, 110 U.S. 619, 629. AS TO TITLE 10, THE CODIFIERS SERVED NOTICE THAT SOME CHANGES ENTAILED MORE THAN A CHANGE OF PHRASEOLOGY. ON PAGE 8 OF HOUSE REPORT NO. 970 TO ACCOMPANY H.R. 7049, LATER ENACTED INTO LAW AS PUBLIC LAW 1028 ( TITLES 10 AND 32), THE FOLLOWING STATEMENT APPEARS:

* * * WHERE COURT DECISIONS, OPINIONS OF OFFICIALS SUCH AS THE ATTORNEY GENERAL OR THE COMPTROLLER GENERAL, EXECUTIVE ORDERS, REGULATIONS, OR WELL -ESTABLISHED ADMINISTRATIVE PRACTICE HAVE ESTABLISHED AUTHORITATIVE INTERPRETATIONS CLARIFYING AMBIGUITIES IN THE LAW, THE TEXT HAS BEEN REWORDED TO EXPRESS THOSE INTERPRETATIONS. THESE CHANGES HAVE BEEN EXPLAINED IN THE APPLICABLE REVISION NOTES.

THUS, IN REGARD TO TITLE 10, WE HAVE ALREADY DECIDED THAT THE OMISSION FROM THAT TITLE OF FIVE WORDS ("OTHER THAN ACTIVE FEDERAL SERVICE") WHICH HAD BEEN CONTAINED IN THE EARLIER LAW WAS A ,SUBSTANTIVE CHANGE OF PHRASEOLOGY.' 36 COMP. GEN. 498.

SECTION 1217 OF TITLE 10 ALSO INVOLVES A SUBSTANTIVE CHANGE OF PHRASEOLOGY AND AT PAGE 105 OF HOUSE REPORT NO. 970, CITED ABOVE, IT IS STATED THAT SUCH SECTION HAS NO STATUTORY SOURCE. WE ARE REQUIRED TO CONCLUDE, THEREFORE, THAT THE DELIBERATE ADDITION OF THE SPECIFIC PROVISIONS OF SECTION 1217 CHANGES THE PRIOR LAW AS CONSTRUED IN OUR DECISION OF MAY 3, 1951, INSOFAR AS AVIATION CADETS ARE CONCERNED, OR, IN OTHER WORDS, SECTION 1217 CONTAINS THE CONTROLLING PROVISION OF LAW ON THE MATTER AND EXPRESSLY EXCLUDES AVIATION CADETS FROM THE BENEFITS OF CHAPTER 61 NOTWITHSTANDING THE GENERAL DECLARATION OF LEGISLATIVE PURPOSE IN SECTION 49 (A) OF THE 1956 ACT.

ANOTHER MATTER FOR CONSIDERATION IS THE SUGGESTED CONFLICT BETWEEN SECTION 1217 AND SECTION 6912 OF TITLE 10. THE LATTER SECTION PERTAINS TO AVIATION CADETS IN THE NAVY AND MARINE CORPS AND PROVIDES:

(C) EXCEPT AS PROVIDED IN SUBSECTION (A), AVIATION CADETS OR THEIR BENEFICIARIES ARE ENTITLED TO THE SAME ALLOWANCES, PENSIONS, GRATUITIES, AND OTHER BENEFITS AS ARE PROVIDED FOR ENLISTED MEMBERS IN PAY GRADE E-4.

THE QUESTION IS WHETHER, IN SPITE OF SECTION 1217, THE WORDS "OTHER BENEFITS," AS USED IN SECTION 6912, INCLUDE THE BENEFITS OF CHAPTER 61.

WHILE SECTION 6912 DEALS WITH THE PAY AND ALLOWANCES OF NAVAL AVIATION CADETS, IT DOES NOT SPELL OUT THEIR RIGHTS CONCERNING RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY. IN A SENSE, IT IS ONLY BY IMPLICATION THAT SECTION 6912, STANDING ALONE, MAY BE CONSIDERED AS INCLUDING SUCH BENEFITS. BUT THERE IS A CHAPTER IN THE CODE (CHAPTER 61) DEALING WITH RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY AND THIS CHAPTER CONTAINS AN EXPRESS LIMITATION AS TO ITS APPLICABILITY. WHEN THE IMPLICATION YIELDS TO THE EXPRESS PROVISION, THE TWO SECTIONS ARE NOT IN CONFLICT. WAGGY V. WAGGY, 87 S.E. 178, 180. MOREOVER, SECTION 6912 IS A GENERAL PROVISION GRANTING NAVY AND MARINE CORPS AVIATION CADETS CERTAIN BROAD RIGHTS. ON THE OTHER HAND, CHAPTER 61 IS MADE UP OF SPECIFIC PROVISIONS AS TO RETIREMENT OR SEPARATION FOR DISABILITY. SINCE A GENERAL PROVISION IN A CODE MUST GIVE WAY TO A SPECIFIC PROVISION ( STATE V. MASNIK, 12 A.2D 871, 872), SECTION 6912 MUST GIVE WAY TO SECTION 1217.

IN SUMMARY, ALL AVIATION CADETS, IRRESPECTIVE OF THEIR BRANCH OF SERVICE, ARE PRECLUDED BY THE EXPRESS PROVISION OF SECTION 1217 FROM THE BENEFITS OF CHAPTER 61, TITLE 10, UNITED STATES CODE. ACCORDINGLY, QUESTION FOUR IS ANSWERED IN THE NEGATIVE. ALSO, IN VIEW OF SECTION 1217, OUR DECISION OF MAY 3, 1951, 30 COMP. GEN. 431, MUST BE DISREGARDED AS A PRECEDENT WITH RESPECT TO CASES OF AVIATION CADETS NOT RETIRED OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO AUGUST 10, 1956.

WHILE SECTION 53 OF THE ACT OF AUGUST 10, 1956, CITED ABOVE, PROVIDES FOR THE REPEAL OF MANY STATUTES (INCLUDING TITLE IV OF THE CAREER COMPENSATION ACT) WHICH WERE CODIFIED IN TITLE 10, IT ALSO LIMITS THE REPEAL AND, IN EFFECT, CONTINUES THE REPEALED STATUTES IN FORCE,"WITH RESPECT TO RIGHTS AND DUTIES THAT MATURED, PENALTIES THAT WERE INCURRED, AND PROCEEDINGS THAT WERE BEGUN" PRIOR TO AUGUST 10, 1956. A DETERMINATION BY THE SECRETARY CONCERNED TO PLACE THE NAME OF A MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST, AND THE MEMBER'S PLACEMENT THEREON, IS MERELY THE INITIAL STEP IN A SERIES WHICH WILL LEAD EITHER TO A RETURN TO DUTY, RETIREMENT, OR SEPARATION FOR PHYSICAL DISABILITY. WHEN PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST WAS MADE BEFORE THE ENACTMENT OF TITLE 10, IT WAS A PROCEEDING BEGUN PRIOR TO AUGUST 10, 1956, WITHIN THE CONTEMPLATION OF SECTION 53 AND THE CASES OF AVIATION CADETS SO SITUATED MAY BE PROCESSED UNDER THE SAVINGS PROVISION AND TITLE IV OF THE CAREER COMPENSATION ACT. ACCORDINGLY, QUESTIONS ONE AND TWO ARE ANSWERED IN THE AFFIRMATIVE, THUS RENDERING UNNECESSARY AN ANSWER TO QUESTION THREE.

WE NOTE THAT A BILL, H.R. 8943, HAS BEEN INTRODUCED IN THE 85TH CONGRESS, ST SESSION, TO AMEND TITLES 10, 14, AND 32 OF THE UNITED STATES CODE. IS PROPOSED IN SECTION 33 (A) (5) OF THAT BILL TO STRIKE THE WORDS "OR TO AVIATION CADETS" FROM SECTION 1217 OF TITLE 10. SUCH PROPOSED AMENDMENT IS EXPLAINED ON PAGE 95 OF HOUSE REPORT NO. 930, WHERE THE STATEMENT IS MADE THAT "AVIATION CADETS WERE COVERED BY TITLE IV ( CAREER COMPENSATION ACT) AND SHOULD NOT BE EXCEPTED FROM CHAPTER 61.' ALTHOUGH THE SENATE HAS NOT YET ACTED ON THE MEASURE, THE HOUSE PASSED H.R. 8943 ON AUGUST 5, 1957. IT APPEARS, THEREFORE, THERE IS A LIKELIHOOD THAT SECTION 1217 OF TITLE 10 WILL BE AMENDED, PERHAPS AT THE NEXT SESSION OF CONGRESS. FURTHERMORE, IF SECTION 33 (A) OF H.R. 8943 OR A SIMILAR PROVISION IS ENACTED, THE AMENDMENT WILL BE EFFECTIVE RETROACTIVELY TO AUGUST 10, 1956. IN THE CIRCUMSTANCES, WE WOULD HAVE NO OBJECTION TO THE ADOPTION OF ADMINISTRATIVE PROCEDURES DESIGNED TO FACILITATE THE APPLICATION OF THE AMENDMENT (ASSUMING IT IS MADE EFFECTIVE RETROACTIVELY), TO AVIATION CADETS WHO HAVE BECOME DISABLED SINCE AUGUST 9, 1956, OR MAY BECOME DISABLED BEFORE THE DATE OF THE AMENDMENT. WHILE THERE IS NO LEGAL AUTHORITY AT THE PRESENT TIME FOR THE PAYMENT OF PHYSICAL DISABILITY SEVERANCE PAY OR RETIREMENT PAY BENEFITS TO AVIATION CADETS, OTHER THAN THOSE RETIRED, ETC., PRIOR TO AUGUST 10, 1956, CERTAIN PROCEDURES ADOPTED NOW MIGHT OBVIATE DIFFICULTIES WHICH OTHERWISE MIGHT BE ENCOUNTERED IN GIVING THE PROPOSED AMENDMENT RETROACTIVE EFFECT, IF IT SHOULD BECOME LAW.