B-135511, JUNE 9, 1958, 37 COMP. GEN. 823

B-135511: Jun 9, 1958

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MILITARY PERSONNEL - SEVERANCE PAY - TIME ON TEMPORARY DISABILITY RETIRED LIST TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST BY A MEMBER OF THE UNIFORMED SERVICES PRIOR TO SEPARATION FOR PHYSICAL DISABILITY IS AUTHORIZED TO BE CREDITED IN DETERMINING THE RATE OF BASIC PAY FOR PURPOSES OF COMPUTING SEVERANCE PAY UNDER 10 U.S.C. 1212 (A) (A) OR UNDER SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949 AS ORIGINALLY ENACTED PRIOR TO ENACTMENT INTO POSITIVE LAW OF TITLE 10 OF THE U.S.C. THERE WAS FORWARDED HERE YOUR UNDATED LETTER REQUESTING OUR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. YOUR REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE. IT IS STATED IN YOUR LETTER THAT SERGEANT LARSEN'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 31.

B-135511, JUNE 9, 1958, 37 COMP. GEN. 823

MILITARY PERSONNEL - SEVERANCE PAY - TIME ON TEMPORARY DISABILITY RETIRED LIST TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST BY A MEMBER OF THE UNIFORMED SERVICES PRIOR TO SEPARATION FOR PHYSICAL DISABILITY IS AUTHORIZED TO BE CREDITED IN DETERMINING THE RATE OF BASIC PAY FOR PURPOSES OF COMPUTING SEVERANCE PAY UNDER 10 U.S.C. 1212 (A) (A) OR UNDER SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949 AS ORIGINALLY ENACTED PRIOR TO ENACTMENT INTO POSITIVE LAW OF TITLE 10 OF THE U.S.C.

TO LIEUTENANT COLONEL C. W. GRIFFIN, DEPARTMENT OF THE AIR FORCE, JUNE 9, 1958:

BY LETTER OF MARCH 11, 1958, FROM THE DEPUTY DIRECTOR, DIRECTORATE OF ACCOUNTING AND FINANCE, THERE WAS FORWARDED HERE YOUR UNDATED LETTER REQUESTING OUR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, ENCLOSED WITH THE LETTER, PERTAINING TO AN ADJUSTMENT OF THE SEVERANCE PAYMENT MADE FOR THE BENEFIT OF FORMER STAFF SERGEANT VERGIL P. LARSEN, AF 1942 5453, INCIDENT TO HIS SEPARATION FROM THE AIR FORCE FOR PHYSICAL DISABILITY. YOUR REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. 325.

IT IS STATED IN YOUR LETTER THAT SERGEANT LARSEN'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 31, 1955, AFTER COMPLETING 3 YEARS, 8 MONTHS AND 22 DAYS OF SERVICE, ALL ON ACTIVE DUTY, AND REMAINED THERE UNTIL HE WAS DISCHARGED BY REASON OF PHYSICAL DISABILITY ON JANUARY 31, 1958. HE WAS PAID SEVERANCE PAY OF $1,310.40, STATED TO HAVE BEEN COMPUTED ON THE BASIS OF TWICE THE MONTHLY BASIC PAY OF A STAFF SERGEANT WITH OVER TWO YEARS' SERVICE, MULTIPLIED BY HIS 4 YEARS' ACTIVE SERVICE (THE 3 YEARS, 8 MONTHS AND 22 DAYS BEING COUNTED AS 4 YEARS). SINCE SERGEANT LARSEN'S NAME REMAINED ON THE TEMPORARY DISABILITY RETIRED LIST FOR 2 YEARS AND 6 MONTHS, THE QUESTION IS PRESENTED AS TO WHETHER IN COMPUTING HIS SEVERANCE PAY UNDER THE PROVISIONS OF 10 U.S.C. 1212 (A) (A), HE SHOULD HAVE BEEN CREDITED, FOR BASIC PAY PURPOSES, WITH THE TIME WHILE HIS NAME REMAINED ON SUCH LIST SO AS TO INCREASE HIS BASIC PAY RATE TO THAT OF A STAFF SERGEANT WITH OVER 6 YEARS' SERVICE. YOU ALSO INQUIRE WHETHER THE ANSWER WOULD HAVE BEEN THE SAME PRIOR TO THE CODIFICATION OF TITLE 10, U.S. CODE, AS SET FORTH IN THE ACT OF AUGUST 10, 1956, PUBLIC LAW 1028.

THE PERTINENT PART OF 10 U.S.C. 1212 (A) (A) PROVIDES THAT A MEMBER SEPARATED FROM THE ARMED SERVICE UNDER SECTION 1203 OR 1206 OF THAT TITLE IS ENTITLED TO DISABILITY SEVERANCE PAY COMPUTED BY MULTIPLYING (1) HIS YEARS OF SERVICE COMPUTED AS THERE SPECIFIED BY (2) THE HIGHEST OF THE AMOUNTS PROVIDED IN CLAUSES (A), (B), (C) OR (D) OF THAT SUBSECTION. CLAUSE (A) READS AS FOLLOWS:

TWICE THE AMOUNT OF MONTHLY BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING (I) ON ACTIVE DUTY ON THE DATE WHEN HE IS SEPARATED AND (II) IN THE GRADE AND RANK IN WHICH HE WAS SERVING ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED.

THIS CODE PROVISION WAS ORIGINALLY ENACTED AS PART OF SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, 37 U.S.C. 273, WHICH, FOR THE COMPARABLE PART, IS PHRASED AS FOLLOWS:

* * * AN AMOUNT EQUAL TO TWO MONTHS' BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY SUCH MEMBER AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS SEPARATION, WHICHEVER IS EARLIER, AND WHICH SUCH MEMBER WOULD BE ENTITLED TO RECEIVE AT THE TIME OF SEPARATION IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, * * *.

SINCE THE REWORDING BY THE CODIFIERS OF TITLE 10 HAS NOT CHANGED THE MEANING OF THE PERTINENT PROVISIONS OF SECTION 403 OF THE 1949 ACT, AN INTERPRETATION OF ONE WILL BE EQUALLY APPLICABLE TO AN INTERPRETATION OF THE OTHER.

IT IS NOTED THAT CLAUSES (B) (C) AND (D) OF SUBSECTION 1212 (A) PROVIDE FOR COMPUTING DISABILITY SEVERANCE PAY ON THE BASIS OF TWICE THE MONTHLY BASIC PAY TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF NOT PLACED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED, AND ON THE BASIS OF THE RANK OR GRADE AS THERE SPECIFIED. ON THE OTHER HAND, CLAUSE (A) CONTAINS NO PROVISION FOR COMPUTING THE SEVERANCE PAY ON THE BASIS OF THE BASIC PAY TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY ON THE DATE HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, BUT PROVIDES FOR COMPUTING SEVERANCE PAY UNDER THAT METHOD ON THE BASIS OF TWICE THE BASIC PAY TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY ON THE DATE OF SEPARATION.

SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, 37 U.S.C. 233 (B), PROVIDES IN PERTINENT PART AS FOLLOWS:

MEMBERS OF THE UNIFORMED SERVICES SHALL ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST, * * * PROVIDED, THAT, * * *, THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, * * *.

UNDER SUCH PROVISIONS A MEMBER ACCRUES ADDITIONAL SERVICE CREDIT FOR ACTIVE DUTY PAY PURPOSES WHILE ON A TEMPORARY DISABILITY RETIRED LIST, AND SEVERANCE PAY IS NOT ENUMERATED IN THE PROVISO EXCLUDING SUCH SERVICE CREDIT FOR VARIOUS OTHER TYPES OF PAY. UNDER SETTLED RULES OF STATUTORY INTERPRETATION, THE SPECIFIC ENUMERATION OF SUCH ITEMS FOR WHICH SUCH SERVICE CREDIT IS EXCLUDED PRECLUDES THE VIEW, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT THE EXCLUSION OF SUCH CREDIT FOR OTHER ITEMS NOT SO ENUMERATED WAS INTENDED.

ACCORDINGLY, TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST BY SERGEANT LARSEN IS AUTHORIZED TO BE CREDITED IN DETERMINING THE BASIC PAY TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD BEEN SERVING ON ACTIVE DUTY ON THE DATE OF SEPARATION, FOR THE PURPOSE OF COMPUTING HIS SEVERANCE PAY UNDER 10 U.S.C. 1212 (A) (A).

YOU PRESENT A FURTHER QUESTION AS TO WHETHER THE ADDITIONAL SERVICE CREDIT AUTHORIZED BY SECTION 2 OF THE ACT OF APRIL 30, 1956, 70 STAT. 121, 37 U.S.C. 233, MAY BE USED IN THE COMPUTATION OF SEVERANCE PAY. APPARENTLY SUCH QUESTION IS NOT INVOLVED IN A VOUCHER BEFORE YOU FOR PAYMENT. OUR JURISDICTION IS LIMITED BY STATUTE SO THAT A DECISION MAY NOT BE RENDERED TO A CERTIFYING OR DISBURSING OFFICER EXCEPT IN CONNECTION WITH QUESTIONS INVOLVED IN A SPECIFIC VOUCHER PROPERLY BEFORE HIM. COMP. GEN. 793, 795. ACCORDINGLY, A DECISION MAY NOT BE RENDERED ON THE LAST QUESTION PRESENTED IN YOUR LETTER.

IF OTHERWISE CORRECT, PAYMENT MAY BE MADE ON THE VOUCHER, RETURNED HEREWITH.