B-135377, APRIL 29, 1958, 37 COMP. GEN. 713

B-135377, APRIL 29, 1958, 37 COMP. GEN. 713

MILITARY PERSONNEL - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - ELIGIBILITY FOR MORE THAN ONE SEVERANCE PAYMENT - ELECTION A NAVY RESERVE OFFICER WHO, INCIDENT TO RELEASE FROM ACTIVE DUTY, IS ELIGIBLE FOR BOTH A READJUSTMENT PAYMENT AND AN AVIATION LUMP-SUM PAYMENT IS REQUIRED UNDER SECTION 265 (B) (5) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 1016 (B) (5), TO MAKE AN ELECTION TO RECEIVE ONE OR THE OTHER, AND THERE IS NO AUTHORITY INCIDENT TO A SINGLE RELEASE FROM THE SERVICE TO PERMIT THE MEMBER TO TAKE ALL OF ONE AND PART OF THE OTHER EVEN THOUGH THE SERVICE PERIOD APPLICABLE TO ONE OF THE SEVERANCE PAYMENTS IS EXCLUDED.

TO R. C. VAUGHN, JR., DEPARTMENT OF THE NAVY, APRIL 29, 1958:

BY LETTER DATED FEBRUARY 26, 1958 (1JAG:1342.1:SH 1693), THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF FEBRUARY 6, 1958 ( D.O. SUBMISSION NO. 316), REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF COMMANDER HAROLD E. SMITH, 121549, USNR, TO AN AVIATION BONUS AND READJUSTMENT PAY UPON RELEASE FROM ACTIVE DUTY ON FEBRUARY 28, 1958.

SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 738, 34 U.S.C. 850K, PROVIDES THAT WHEN OFFICERS COMMISSIONED PURSUANT TO THAT ACT OR THE NAVAL AVIATION RESERVE ACT OF 1939, 53 STAT. 819, ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY SHALL BE PAID A LUMP SUM OF $500 FOR EACH YEAR OF CONTINUOUS COMMISSIONED ACTIVE SERVICE. THE ACT OF APRIL 28, 1950, 64 STAT. 90, 34 U.S.C. 850K-1, PROVIDES THAT NO FURTHER CREDIT UNDER SECTION 12 SHALL BE ALLOWED FOR ANY PERIOD OF ACTIVE SERVICE PERFORMED AFTER JUNE 24, 1948. SEE 34 U.S.C. 850K AND 850K-1.

SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, AS ADDED BY THE ACT OF JULY 9, 1956, 70 STAT. 517, 50 U.S.C. 1016, PROVIDES IN SUBSECTION (A), 50 U.S.C. 1016 (A), THAT A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER HAVING COMPLETED, IMMEDIATELY PRIOR TO SUCH RELEASE, AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY IS ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE-HALF OF 1 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 18TH YEAR. IT FURTHER PROVIDES THAT, FOR THE PURPOSE OF COMPUTING THE AMOUNT OF READJUSTMENT PAYMENT, ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW SHALL BE EXCLUDED. SUBSECTION (B), 50 U.S.C. 1016 (B), PROVIDES IN PERTINENT PART:

(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.

YOU REQUEST ADVANCE DECISION ON THE FOLLOWING QUESTIONS:

(A) IS CDR SMITH ENTITLED TO THE AVIATION BONUS UPON RELEASE TO INACTIVE DUTY 28 FEBRUARY 958?

(B) FOR WHAT PERIOD OF TIME IS CDR SMITH ENTITLED TO READJUSTMENT PAY?

IT APPEARS THAT COMMANDER SMITH ENTERED UPON ACTIVE DUTY ON OCTOBER 1, 1941, AND WE UNDERSTAND THAT HE WAS COMMISSIONED ON AUGUST 28, 1942. UNDER ORDERS DATED DECEMBER 3, 1957, AS MODIFIED BY ORDERS OF JANUARY 29, 1958, HE WAS RELEASED FROM ACTIVE DUTY ON FEBRUARY 28, 1958. WE HAVE BEEN INFORMALLY ADVISED THAT COMMANDER SMITH HAS RECEIVED A READJUSTMENT PAYMENT BASED ON THE ENTIRE PERIOD OF HIS SERVICE FROM OCTOBER 1, 1941, TO FEBRUARY 28, 1958, COMPUTED AS 16 YEARS AT ONE-HALF A MONTH'S PAY FOR EACH YEAR, HIS TOTAL ACTIVE SERVICE HAVING BEEN 16 YEARS AND 5 MONTHS. PRESUMABLY THAT PAYMENT WAS MADE TO HIM ON THE BASIS OF HIS APPLICATION, OR HAS BEEN ACCEPTED BY HIM.

IN DECISION OF AUGUST 17, 1956, TO THE SECRETARY OF DEFENSE, 36 COMP. GEN. 129, WE HELD THAT THE AVIATION LUMP-SUM PAYMENTS AUTHORIZED BY SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, 10 U.S.C. 300A, AND SECTION 12 OF THE ACT OF AUGUST 4, 1942, 34 U.S.C. 850K, CONSTITUTE SEVERANCE PAY WITHIN THE MEANING OF SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952. THE PROVISIONS OF SUBSECTION (A) (2) OF SECTION 265, 50 U.S.C. 1016 (A) (2), RELATE TO ELIGIBILITY FOR SEVERANCE PAY THAT EXISTED INCIDENT TO A PRIOR RELEASE FROM ACTIVE DUTY AND REQUIRE THE EXCLUSION OF ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED IN COMPUTING THE AMOUNT OF THE READJUSTMENT PAYMENT, WHEREAS SUBSECTION (B) (5), 50 U.S.C. 1016 (B) (5), RELATES TO THE SITUATION WHERE THE MEMBER IS SIMULTANEOUSLY ELIGIBLE, UPON A RELEASE FROM ACTIVE DUTY, FOR A READJUSTMENT PAYMENT AND FOR SEVERANCE PAY. IN THAT SITUATION SUBSECTION (B) (5) REQUIRES THAT THE MEMBER MAKE AN ELECTION BETWEEN THE READJUSTMENT PAYMENT AND THE SEVERANCE PAY--- HE CANNOT TAKE ALL OF ONE AND PART OF THE OTHER.

THE ONLY SITUATION WHERE BOTH MAY BE PAID IS WHERE THERE ARE TWO RELEASES FROM ACTIVE DUTY AND THE MEMBER PREVIOUSLY ELIGIBLE FOR SEVERANCE PAY, BUT THE PERIOD FOR WHICH SUCH SEVERANCE PAY HAS BEEN RECEIVED MUST BE EXCLUDED IN COMPUTING THE AMOUNT OF THE READJUSTMENT PAYMENT UPON THE LATER RELEASE FROM ACTIVE DUTY GIVING RISE TO ELIGIBILITY TO RECEIVE READJUSTMENT PAYMENT. HERE THE ONLY RELEASE FROM ACTIVE DUTY THAT COULD GIVE RISE TO ELIGIBILITY TO RECEIVE THE AVIATION LUMP-SUM PAYMENT ALSO MAKES THE MEMBER ELIGIBLE TO IMMEDIATELY RECEIVE THE READJUSTMENT PAYMENT. HENCE HE IS NOT ELIGIBLE TO RECEIVE BOTH THE AVIATION LUMP-SUM PAYMENT FOR THE PERIOD 1942 -48 AND THE READJUSTMENT PAYMENT IN CONNECTION WITH HIS ACTIVE DUTY FOR THE PERIOD 1941-58, EVEN THOUGH THE PERIOD 1942-48 SHOULD BE EXCLUDED IN COMPUTING THE READJUSTMENT PAYMENT.

ACCORDINGLY, IN VIEW OF THE PROVISIONS OF SUBSECTION 265 (B) (5) REQUIRING A RESERVE OFFICER TO MAKE AN ELECTION BETWEEN THE AVIATION LUMP- SUM PAYMENT AND THE READJUSTMENT PAYMENT, IF THE OFFICER APPLIED FOR, OR HAS ACCEPTED (EVEN THOUGH HE MAY NOT HAVE APPLIED FOR), THE READJUSTMENT PAYMENT, HE IS NOT ENTITLED TO RECEIVE THE AVIATION LUMP SUM PAYMENT AUTHORIZED BY SECTION 12 OF THE ACT OF AUGUST 4, 1942. IF HE HAS ELECTED TO RECEIVE THE READJUSTMENT PAYMENT, IT FOLLOWS THAT HE BECAME ENTITLED TO THAT PAYMENT COMPUTED ON THE BASIS OF HIS ACTIVE SERVICE FOR THE PERIOD FROM OCTOBER 1, 1941, TO FEBRUARY 28, 1958. IF HE HAS NOT ELECTED TO RECEIVE THE READJUSTMENT PAYMENT, HOWEVER, HE IS ENTITLED TO RECEIVE THE AVIATION LUMP-SUM PAYMENT INCIDENT TO HIS RELEASE FROM ACTIVE DUTY ON FEBRUARY 28, 1958, BUT HE FIRST MUST RETURN THE CHECK REPRESENTING THE READJUSTMENT PAYMENT.