B-133533, OCTOBER 31, 1957, 37 COMP. GEN. 289

B-133533, OCTOBER 31, 1957, 37 COMP. GEN. 289

MILITARY PERSONNEL - DISABILITY SEVERANCE PAY - LIMITATION A NAVY ENLISTED MAN WHO, AFTER DISCHARGE FOR PHYSICAL DISABILITY AND RECEIPT OF A SEVERANCE PAYMENT BASED ON 11 YEARS, 3 MONTHS AND 20 DAYS' SERVICE, REENLISTED AND WAS SUBSEQUENTLY DISCHARGED FOR DISABILITY WITH A TOTAL OF 13 YEARS, 2 MONTHS AND 1 DAY OF ACTIVE SERVICE IS PRECLUDED BY THE 12-YEAR SERVICE LIMITATION IN 10 U.S.C. 1212--- WHICH IS A LIMITATION ON THE AMOUNT TO A PARTICULAR INDIVIDUAL RATHER THAN A LIMITATION AS TO THE AMOUNT WHICH MAY BE PAID FOR EACH SEPARATION--- FROM RECEIVING ANOTHER SEVERANCE PAYMENT BASED ON TOTAL SERVICE, BUT THE MEMBER MAY RECEIVE AN ADDITIONAL SEVERANCE PAYMENT ON THE BASIS OF THE REMAINING PERIOD OF ACTIVE SERVICE NOT TO EXCEED A TOTAL OF 12 YEARS.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, OCTOBER 31, 1957:

BY LETTER DATED AUGUST 16, 1957, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED HERE YOUR LETTER OF JULY 5, 1957, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF BOATSWAIN'S MATE THIRD CLASS, HAROLD W. CHAMBERS, USN, FOR DISABILITY SEVERANCE PAY AT THE DATE OF DISCHARGE ON JUNE 21, 1957, IN THE CIRCUMSTANCES SHOWN.

IN YOUR LETTER YOU STATE THAT CHAMBERS WAS DISCHARGED FROM THE NAVAL SERVICE BY REASON OF PHYSICAL DISABILITY ON SEPTEMBER 21, 1951, AND THAT INCIDENT TO THAT DISCHARGE HE WAS PAID DISABILITY SEVERANCE PAY IN THE AMOUNT OF $3,395.70, COMPUTED ON THE BASIS OF 11 YEARS, 3 MONTHS, AND 20 DAYS' SERVICE. SUBSEQUENTLY, ON AUGUST 2, 1955, HE ENTERED INTO A NEW ENLISTMENT IN THE U.S. NAVY FROM WHICH HE WAS DISCHARGED ON JUNE 21, 1957, WITH A TOTAL OF 13 YEARS, 2 MONTHS, AND ONE DAY ACTIVE SERVICE. YOU ASK WHETHER OR NOT CHAMBERS MAY BE PAID "FULL DISABILITY SEVERANCE PAY FOR COMPLETE SERVICE OF 13 YEARS, 2 MONTHS, AND ONE DAY.' THE SUBMITTED VOUCHER IN THE AMOUNT OF $4,680 APPEARS TO HAVE BEEN COMPUTED BY MULTIPLYING TWICE THE MONTHLY BASIC PAY ($195) BY THE MAXIMUM ALLOWABLE NUMBER OF YEARS OF SERVICE (12 YEARS).

IN FORWARDING YOUR LETTER, THE COMPTROLLER OF THE NAVY, BY SECOND ENDORSEMENT DATED AUGUST 9, 1957, FURNISHED ADDITIONAL FACTS SHOWING THAT ON AUGUST 24, 1951, THE SECRETARY OF THE NAVY APPROVED THE DETERMINATION OF A PHYSICAL EVALUATION BOARD THAT CHAMBERS' DISABILITY AT THAT TIME WAS 10 PERCENTUM BY REASON OF "DEAFNESS, N.E.C., PARTIAL, DUE TO CHRONIC OTITIS MEDIA," AND DIRECTED THAT HE BE SEPARATED WITH SEVERANCE PAY. SUBSEQUENT TO HIS REENTRY INTO THE NAVAL SERVICE BY ENLISTMENT ( AUGUST 2, 1955), CHAMBERS APPEARED BEFORE A PHYSICAL EVALUATION BOARD ON APRIL 16, 1957, AND THAT BOARD, AS APPROVED BY THE PHYSICAL REVIEW COUNCIL, RATED HIS DISABILITY AT 20 PERCENTUM BY REASON OF "DEAFNESS, N.E.C., RIGHT EAR DUE TO MASTOIDECTOMY; LEFT EAR, CAUSE UNKNOWN.' THE PHYSICAL REVIEW COUNCIL NOTED THE PREVIOUS DISCHARGE WITH SEVERANCE PAY FOR HEARING LOSS, AND ON MAY 28, 1957, THE SECRETARY OF THE NAVY DIRECTED THE SEPARATION OF THE ENLISTED MAN FROM THE NAVAL SERVICE. THE COMPTROLLER OF THE NAVY CONCLUDES THAT A QUESTION OF ENTITLEMENT IS PRESENTED BASED ON AN INTERPRETATION OF SECTION 1212, 70A STAT. 98.

DISABILITY SEVERANCE PAY IS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1212 (ACT OF AUGUST 10, 1956, 70A STAT. 98) WHICH READ, IN PERTINENT PART, AS FOLLOWS:

(A) UPON SEPARATION FROM HIS ARMED FORCE UNDER SECTION 1203 OR 1206 OF THIS TITLE, A MEMBER IS ENTITLED TO DISABILITY SEVERANCE PAY COMPUTED BY MULTIPLYING (1) HIS YEARS OF SERVICE, BUT NOT MORE THAN 12, COMPUTED UNDER SECTION 1208 OF THIS TITLE, BY (2) THE HIGHEST OF THE FOLLOWING AMOUNTS: ( ITALICS SUPPLIED.)

THE ABOVE CODE PROVISIONS REPEALED SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, 37 U.S.C. 273, WHICH PROVIDED, IN PERTINENT PART, THAT DISABILITY SEVERANCE PAY SHALL BE COMPUTED BY MULTIPLYING CERTAIN PAY "* * * BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 282 OF THIS TITLE BUT NOT TO EXCEED A TOTAL OF TWO YEARS BASIC PAY.' THAT CONNECTION, IN CONSIDERING A BILL H.R. 7049, 84TH CONGRESS, ST SESSION, TO REVISE, CODIFY, AND ENACT INTO LAW, TITLE 10 OF THE UNITED STATES CODE, ENTITLED " ARMED FORCES" AND TITLE 32 OF THE U.S.C. ENTITLED " NATIONAL GUARD," WHICH BECAME THE ACT OF AUGUST 10, 1956, IT WAS STATED IN HOUSE REPORT NO. 970, AT PAGE 103, THAT ,IN SUBSECTION (A) OF SECTION 1212) THE WORDS * * * "BUT NOT MORE THAN 12" ARE SUBSTITUTED FOR THE WORDS "BUT NOT TO EXCEED A TOTAL OF TWO YEARS BASIC PAY," TO SIMPLIFY THE NECESSARY CALCULATION. THE SUBSTITUTED WORDS PRODUCE THE SAME RESULT.' THUS, IT SEEMS CLEAR THAT THERE IS NO BASIC DIFFERENCE IN THE COMPUTATION PRESCRIBED UNDER THE 1949 ACT AND THAT SET FORTH IN THE 1956 ACT.

IN OUR DECISION OF NOVEMBER 28, 1956, 36 COMP. GEN. 431, THERE WAS CONSIDERED THE QUESTION AS TO WHETHER DISABILITY SEVERANCE PAY PAID TO AN ENLISTED MAN FOR PRIOR SERVICE UNDER PROVISIONS OF SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, SHOULD BE RECOUPED FROM DISABILITY RETIREMENT BENEFITS AUTHORIZED AS A RESULT OF SUBSEQUENT ACTIVE SERVICE AND, IF NOT, WHETHER THE PERIOD OF SERVICE ON WHICH THE SEVERANCE PAY AWARD WAS DETERMINED MAY BE INCLUDED WITH HIS SUBSEQUENT PERIOD OF ACTIVE SERVICE IN COMPUTING THE AMOUNT OF HIS RETIRED PAY. IT WAS POINTED OUT IN THAT DECISION THAT WHILE CONGRESS HAD RECOGNIZED THE CONCEPT OF REQUIRING DEDUCTION OF A LUMP-SUM SEVERANCE PAYMENT PREVIOUSLY RECEIVED FROM CERTAIN OTHER BENEFITS (SEE SECTION 312 (M) OF THE OFFICER PERSONNEL ACT OF 1947, AS ADDED BY THE ACT OF JUNE 18, 1954, 68 STAT. 256, 34 U.S.C. 410M, AND SECTION 16 (B) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 165, 10 U.S.C. 600N (B) (, SUCH A DEDUCTION IS REQUIRED TO BE MADE ONLY IN THE CLASSES OF CASES COVERED BY THE CITED SECTIONS OR SIMILAR SPECIFIC PROVISIONS OF STATUTE. WE CONCLUDED THAT, IN THE ABSENCE OF A STATUTE REQUIRING A DEDUCTION OF DISABILITY SEVERANCE PAY FROM RETIRED PAY TO WHICH A MEMBER SUBSEQUENTLY BECAME ENTITLED, THERE IS NO AUTHORITY TO REQUIRE RECOUPMENT OF THE DISABILITY SEVERANCE PAY AND THE SERVICE USED TO COMPUTE THE CLAIMANT'S SEVERANCE PAY MAY BE INCLUDED IN COMPUTING THE AMOUNT OF RETIRED PAY DUE HIM. IT WILL BE NOTED, HOWEVER, THAT THE QUESTIONS PRESENTED AND THE CONCLUSIONS REACHED IN THAT DECISION WERE BASED PRIMARILY ON THE METHOD OF COMPUTING "DISABILITY RETIREMENT AY" AUTHORIZED UNDER THE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (B). DISABILITY SEVERANCE PAY IS A SEPARATE AND DISTINCT BENEFIT AUTHORIZED UNDER THE PROVISIONS OF SECTION 403 OF THE 1949 ACT (NOW 10 U.S.C. 1212) AND A RIGHT, IF ANY, TO A SECOND DISABILITY SEVERANCE PAYMENT MUST BE BASED ON THOSE PROVISIONS.

IN A DISCUSSION OF THE METHOD OF COMPUTING SEVERANCE PAY APPEARING ON PAGE 313 OF THE HEARINGS OF JULY 6, 1949, BEFORE THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, ON H.R. 5007, 81ST CONGRESS, THE STATEMENT WAS MADE BY ADMIRAL FECHTELER THAT " SECTION 403 PROVIDES THE METHOD OF COMPUTING SEVERANCE PAY, AND PROVIDES FOR 2 MONTHS' PAY FOR EVERY YEAR OF SERVICE, WITH A MAXIMUM OF 2 YEARS' PAY.' ( ITALICS SUPPLIED). LATER ON IN THE SAME HEARINGS, AS SHOWN UNDER A SECTION-BY SECTION ANALYSIS OF THE BILL, IT IS STATED, ON PAGE 367, THAT "THE SEVERANCE PAY IS COMPUTED BY MULTIPLYING 2 MONTHS' BASIC PAY BY A NUMBER EQUAL TO THE WHOLE NUMBER OF YEARS OF ACTIVE SERVICE, BUT THE TOTAL MAY NOT EXCEED A MAXIMUM OF 2 YEARS' BASIC PAY.' SEE, ALSO, PAGE 35, HOUSE REPORT NO. 779, 81ST CONGRESS, ST SESSION, AND PAGE 27 OF SENATE REPORT NO. 773, 81ST CONGRESS, ST SESSION, CONCERNING THE METHOD OF COMPUTING SEVERANCE PAY. FURTHER, IN EXPLAINING THE DISABILITY RETIREMENT AND SEVERANCE PAY PROVISIONS OF H.R. 5007 ( PUBLIC LAW 351) ON THE FLOOR OF THE SENATE, SENATOR CHAPMAN STATED, RESPECT SEVERANCE PAY, THAT: "IN NO CASE WOULD THE TOTAL EXCEED 2 YEARS.' SEE PAGE 13453 OF THE CONGRESSIONAL RECORD, SEPTEMBER 23, 1949.

THE STATUTE INVOLVED DOES NOT SPECIFICALLY PROVIDE THAT A MEMBER IS ENTITLED TO SEVERANCE PAY ONLY ONCE. ON THE OTHER HAND, THE MAXIMUM LIMITATION AS TO THE AMOUNT PAYABLE UNDER THAT PROVISION--- BUT NOT MORE THAN TWELVE YEARS--- WHEN CONSIDERED WITH THE EXPLANATIONS OF ITS PURPOSE AT THE TIME OF ITS ENACTMENT, WOULD SEEM TO BE A LIMITATION AS TO THE AMOUNT AUTHORIZED TO BE PAID TO A PARTICULAR INDIVIDUAL UNDER THE STATUTE RATHER THAN A LIMITATION AS TO THE AMOUNT WHICH MAY BE PAID FOR EACH SEPARATION. HENCE, PAYMENT ON THE VOUCHER WHICH IN EFFECT WOULD PAY THE FORMER MEMBER SEVERANCE PAY ON THE BASIS OF 23 YEARS IS NOT AUTHORIZED. HOWEVER, SINCE THE ENLISTED MAN WAS PREVIOUSLY PAID DISABILITY SEVERANCE PAY AT THE TIME OF HIS DISCHARGE ON SEPTEMBER 21, 1951, COMPUTED ON THE BASIS OF 11 YEARS, 3 MONTHS, AND 20 DAYS--- PRESUMABLY SUCH PAYMENT WAS COMPUTED ON THE BASIS OF 11 YEARS' SERVICE UNDER THE FIRST PROVISO OF SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949--- HE WOULD BE ENTITLED TO AN ADDITIONAL PAYMENT OF DISABILITY SEVERANCE PAY, INCIDENT TO HIS DISCHARGE ON JUNE 21, 1957, COMPUTED ON THE BASIS OF THE REMAINING PERIOD OF ACTIVE SERVICE NOT TO EXCEED A TOTAL OF 12 YEARS, OR ONE YEAR'S SERVICE.

ACCORDINGLY, IF THE VOUCHER IS ADJUSTED TO REFLECT THE DISABILITY SEVERANCE PAY ON THE BASIS OF ONE YEAR'S ACTIVE SERVICE RATHER THAN 12 YEARS' SERVICE, PAYMENT IS AUTHORIZED THEREON. THE VOUCHER IS RETURNED HEREWITH.