B-140551, NOVEMBER 6, 1959, 39 COMP. GEN. 360

B-140551: Nov 6, 1959

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WERE PERMITTED TO RE-ENTER THE SERVICE AS ENLISTED MEN OR TEMPORARY OFFICERS PRIOR TO THE ESTABLISHMENT OF A POLICY WHICH PRECLUDES RE-ENTRY INTO THE SERVICE AFTER DISCHARGE WITH SEVERANCE PAY AND WHO ARE ELIGIBLE FOR VOLUNTARY RETIREMENT OR RETIRED PAY UNDER 10 U.S.C. 1331 SHOULD BE GOVERNED BY THE SAME PROVISIONS OF LAW AS THOSE APPLICABLE TO OTHER MEMBERS OF THE ARMED SERVICES SERVING IN A SIMILAR CAPACITY WHO HAVE NOT RECEIVED SEVERANCE PAY PRIOR TO RETIREMENT SO THAT SUCH ACTIVE SERVICE PRIOR TO DISCHARGE MAY BE CREDITED IN DETERMINING ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 1331. 1959: FURTHER REFERENCE IS MADE TO LETTER OF AUGUST 19. IF THE ANSWER TO ALL OR ANY PART OF THE ABOVE IS IN THE NEGATIVE.

B-140551, NOVEMBER 6, 1959, 39 COMP. GEN. 360

MILITARY PERSONNEL - SERVICE CREDITS - ACTIVE SERVICE PRIOR TO DISCHARGE WITH SEVERANCE PAY - AIR FORCE PERSONNEL COMMISSIONED OFFICERS OF THE AIR FORCE WHO, AFTER DISCHARGE WITH SEVERANCE PAY UNDER 10 U.S.C. 8303 (D) (3), WERE PERMITTED TO RE-ENTER THE SERVICE AS ENLISTED MEN OR TEMPORARY OFFICERS PRIOR TO THE ESTABLISHMENT OF A POLICY WHICH PRECLUDES RE-ENTRY INTO THE SERVICE AFTER DISCHARGE WITH SEVERANCE PAY AND WHO ARE ELIGIBLE FOR VOLUNTARY RETIREMENT OR RETIRED PAY UNDER 10 U.S.C. 1331 SHOULD BE GOVERNED BY THE SAME PROVISIONS OF LAW AS THOSE APPLICABLE TO OTHER MEMBERS OF THE ARMED SERVICES SERVING IN A SIMILAR CAPACITY WHO HAVE NOT RECEIVED SEVERANCE PAY PRIOR TO RETIREMENT SO THAT SUCH ACTIVE SERVICE PRIOR TO DISCHARGE MAY BE CREDITED IN DETERMINING ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 1331.

TO THE SECRETARY OF DEFENSE, NOVEMBER 6, 1959:

FURTHER REFERENCE IS MADE TO LETTER OF AUGUST 19, 1959, WITH ENCLOSURES ( DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 246), FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), PRESENTING FOR DECISION THE FOLLOWING QUESTIONS:

1. MAY ACTIVE FEDERAL SERVICE PERFORMED BY A FORMER REGULAR AIR FORCE OFFICER PRIOR TO DISCHARGE WITH SEVERANCE PAY UNDER SECTION 8303 (D) (3), TITLE 10, U.S.C. BE CREDITED IN:

A. DETERMINING ELIGIBILITY FOR VOLUNTARY RETIREMENT UNDER SECTIONS 1293, 3911, 3914, 3917, 8911, 8914, AND 8917, TITLE 10, UNITED STATES CODE:

B. DETERMINING ELIGIBILITY FOR RETIRED PAY UNDER SECTION 1331, TITLE 10, UNITED STATES CODE.

C. COMPUTING RETIRED PAY UNDER SECTIONS 1401, 3991, AND 8991, TITLE 10, UNITED STATES CODE?

2. IF THE ANSWER TO ALL OR ANY PART OF THE ABOVE IS IN THE NEGATIVE, WOULD SUCH SERVICE BE CREDITABLE IN THE EVENT SEVERANCE PAY WAS REFUNDED, PROVIDED SUCH ACTION WAS LEGALLY PERMISSIBLE?

SECTION 8303 (D), TITLE 10, U.S.C. 70A STAT. 515, PROVIDES AS FOLLOWS:

A DEFERRED OFFICER WHO IS NOT RECOMMENDED BY THE NEXT SELECTION BOARD CONSIDERING OFFICERS OF HIS GRADE AND PROMOTION LIST SHALL---

(1) IF HE IS ELIGIBLE, BE RETIRED UNDER SECTION 8913 OF THIS TITLE:

(2) IF HE IS NOT ELIGIBLE FOR RETIREMENT UNDER SECTION 8913 OF THIS TITLE, BUT IS ELIGIBLE FOR RETIREMENT UNDER ANY OTHER PROVISION OF LAW, BE RETIRED UNDER THAT LAW ON THE DATE WHEN HE WOULD HAVE BEEN RETIRED UNDER SECTION 8913 OF THIS TITLE IF HE WERE ELIGIBLE; OR

(3) IF HE IS NOT ELIGIBLE FOR RETIREMENT UNDER SECTION 8913 OF THIS TITLE OR ANY OTHER PROVISION OF LAW, BE HONORABLY DISCHARGED ON THE DATE HE WOULD HAVE BEEN RETIRED UNDER SECTION 8913 OF THIS TITLE IF HE WERE ELIGIBLE, WITH SEVERANCE PAY COMPUTED BY MULTIPLYING HIS YEARS OF SERVICE, BUT NOT MORE THAN 12, COMPUTED UNDER SECTION 8927 (A) OF THIS TITLE, BY TWO MONTHS' BASIC PAY OF THE GRADE IN WHICH HE IS SERVING ON THE DATE OF HIS DISCHARGE.

THE QUOTED STATUTORY PROVISIONS WERE RESTATED AND CODIFIED IN TITLE 10, U.S.C. FROM SECTIONS 509 (H) AND 514 (E) OF THE PERSONNEL ACT OF 1947, 61 STAT. 896, 905, RESPECTIVELY, PROVIDING FOR THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 896, 905, RESPECTIVELY, PROVIDING FOR THE ELIMINATION OF CERTAIN COMMISSIONED OFFICERS, UNDER THE CONDITIONS SPECIFIED, FROM THE ACTIVE LIST OF THE ARMY. THESE PROVISIONS OF LAW BECAME APPLICABLE TO THE COMMISSIONED OFFICER PERSONNEL OF THE AIR FORCE UPON THE ESTABLISHMENT OF THE DEPARTMENT OF THE AIR FORCE.

IN THE DISCUSSION CONTAINED IN COMMITTEE ACTION NO. 246, IT IS STATED THAT ON MAY 19, 1950, THE SECRETARY OF DEFENSE ANNOUNCED A POLICY PROVIDING THAT REGULAR COMMISSIONED OFFICERS DISCHARGED WITH SEVERANCE PAY UNDER THE STATUTORY PROVISIONS ABOVE REFERRED TO WOULD NOT BE ELIGIBLE TO ENLIST. HOWEVER, COMMISSIONED OFFICERS WERE PERMITTED TO RESIGN FROM THE SERVICE IN LIEU OF BEING DISCHARGED WITH SEVERANCE PAY FOR THE PURPOSE OF CONTINUING THEIR MILITARY CAREERS IN AN ENLISTED STATUS. IT APPEARS THAT BEFORE THIS POLICY WAS EFFECTIVELY IMPLEMENTED, A FEW COMMISSIONED OFFICERS OF THE AIR FORCE WERE DISCHARGED WITH SEVERANCE PAY PURSUANT TO THE CITED PROVISIONS OF LAW, AND ENLISTED IN THE REGULAR AIR FORCE. SUBSEQUENT CHANGE IN POLICY (STATED TO HAVE REMAINED IN EFFECT UNTIL FEBRUARY 5, 1952), PERMITTED A COMMISSIONED OFFICER TO ACCEPT DISCHARGE WITH SEVERANCE PAY AND, DEPENDENT UPON HIS QUALIFICATIONS AND THE NEEDS OF THE AIR FORCE, AUTHORIZED HIS APPOINTMENT AS A TEMPORARY OFFICER IN THE UNITED STATES AIR FORCE, WITHOUT COMPONENT, IN THE GRADE EQUIVALENT TO HIS PERMANENT GRADE AS A REGULAR COMMISSIONED OFFICER WITH IMMEDIATE PLACEMENT ON EXTENDED ACTIVE DUTY AS A TEMPORARY OFFICER.

A NEW POLICY WAS ANNOUNCED IN PARAGRAPH 5D, AIR FORCE REGULATION 45 39, DATED DECEMBER 15, 1958, UNDER WHICH FORMER COMMISSIONED OFFICERS OF THE REGULAR AIR FORCE DISCHARGED AS A RESULT OF TWICE FAILING OF SELECTION FOR PROMOTION MAY, UPON APPLICATION AND SUBJECT TO APPROVAL OF THE SECRETARY OF THE AIR FORCE, BE APPOINTED AS RESERVE OFFICERS OF THE AIR FORCE FOR ASSIGNMENT TO THE RETIRED RESERVE. IT IS REPORTED THAT A NUMBER OF COMMISSIONED OFFICER PERSONNEL WHO WERE DISCHARGED WITH SEVERANCE PAY PURSUANT TO 10 U.S.C. 8303 (D) AND WHO SUBSEQUENTLY RE-ENTERED THE SERVICE HAVE COMPLETED OR ARE APPROACHING COMPLETION OF 20 YEARS' ACTIVE FEDERAL SERVICE. AS TO SUCH PERSONS A QUESTION ARISES AS TO WHETHER THEY MAY BE CREDITED FOR RETIREMENT AND RETIRED PAY PURPOSES WITH THE ACTIVE FEDERAL SERVICE PERFORMED BY THEM PRIOR TO THE DATE OF THEIR DISCHARGE WITH SEVERANCE PAY.

NO SPECIFIC STATUTORY PROVISION HAS BEEN FOUND WHICH BARS A FORMER REGULAR AIR FORCE OFFICER WHO HAS BEEN DISCHARGED FROM THE SERVICE WITH SEVERANCE PAY UNDER THE ABOVE-QUOTED PROVISIONS OF LAW, FROM AGAIN ENTERING THE SERVICE IN ANY CAPACITY FOR WHICH HE HAS THE NECESSARY QUALIFICATIONS. THIS DOES NOT IMPLY, HOWEVER, ANY THOUGHT ON OUR PART THAT THE POLICIES MENTIONED ABOVE--- WHICH DO NOT PERMIT MEMBERS SO DISCHARGED WITH SEVERANCE PAY TO CONTINUE THEIR ACTIVE MILITARY CAREERS BY RE-ENTERING THE SERVICE IN ANOTHER CAPACITY--- SHOULD BE DISCONTINUED.

IT IS NOTED THAT WHILE CERTAIN OTHER PROVISIONS OF LAW APPEAR TO PERMIT A RE-ENTRY INTO ACTIVE MILITARY SERVICE AFTER DISCHARGE WITH SEVERANCE PAY OR A LUMP-SUM PAYMENT OF SIMILAR CHARACTER, IT IS EXPRESSLY PROVIDED IN SUCH CASES THAT IN THE EVENT RETIREMENT PAY BENEFITS ACCRUE TO THE MEMBER CONCERNED, SUCH BENEFITS MUST BE REDUCED BY SO MUCH THEREOF AS IS BASED ON THE SERVICE FOR WHICH THE MEMBER HAS RECEIVED SEVERANCE PAY OR LUMP-SUM PAYMENT, UNTIL THE TOTAL DEDUCTION EQUALS THE AMOUNT OF SUCH SEVERANCE PAY OR LUMP-SUM PAYMENT. SEE, IN THIS CONNECTION, 10 U.S.C. 1167 (D), 6382 (C), 6383 (F) AND 6384 (B). IN VIEW OF SUCH REDUCTION PROVISIONS, IT APPEARS PROPER TO VIEW THE LACK OF SIMILAR PROVISIONS IN CONNECTION WITH SEVERANCE PAY UNDER 10 U.S.C. 8303 (D) (3) AS FURNISHING SUPPORT FOR THE ADMINISTRATIVE POLICY AGAINST PERMITTING RE-ENTRY INTO ACTIVE MILITARY SERVICE AFTER A DISCHARGE WITH SEVERANCE PAY UNDER THE LATTER PROVISIONS OF LAW.

WHILE IT IS OUR VIEW THAT THERE IS AMPLE JUSTIFICATION FOR CONTINUANCE OF THE ABOVE-MENTIONED POLICIES, IT DOES NOT FOLLOW THAT IT WAS UNLAWFUL TO PERMIT SOME MEMBERS WHO WERE DISCHARGED WITH SEVERANCE PAY TO RE-ENTER THE SERVICE BEFORE SUCH POLICIES WERE ADOPTED. HAVING RE-ENTERED THE SERVICE AS ENLISTED MEN OR TEMPORARY OFFICERS, THEIR ELIGIBILITY FOR VOLUNTARY RETIREMENT OR FOR RETIRED PAY UNDER 10 U.S.C. 1331, AND THE COMPUTATION OF THE AMOUNT OF RETIRED PAY UPON RETIREMENT, MUST BE REGARDED AS BEING GOVERNED BY THE SAME PROVISIONS OF LAW AS THOSE APPLICABLE TO OTHER MEMBERS OF THE ARMED FORCES SERVING IN A SIMILAR CAPACITY WHO HAVE NOT RECEIVED SEVERANCE PAY PRIOR TO RETIREMENT, IN THE ABSENCE OF SOME STATUTORY PROVISION REQUIRING A DIFFERENT CONCLUSION. THE APPLICABLE PARTS OF THE PROVISIONS OF LAW CITED IN QUESTIONS A-C PERMIT THE CREDITING OF ALL ACTIVE SERVICE IN CONNECTION WITH THE RETIREMENTS TO WHICH THEY RELATE AND NOTHING HAS BEEN/FOUND WHICH INDICATES THAT THEIR SCOPE IS AFFECTED BY THE RECEIPT OF SEVERANCE PAY BY A MEMBER UNDER 10 U.S.C. 8303 (D) (3), PRIOR TO HIS RETIREMENT.

WITH RESPECT TO QUESTION B, IT APPEARS THAT FORMER REGULAR AIR FORCE OFFICERS WHO ENLISTED IN THE REGULAR AIR FORCE UPON DISCHARGE WITH SEVERANCE PAY COULD NOT QUALIFY FOR RETIRED PAY UNDER 10 U.S.C. 1331, SINCE THEY WOULD NOT HAVE THE NECESSARY EIGHT YEARS OF NONREGULAR QUALIFYING SERVICE PRESCRIBED IN 10 U.S.C. 1331 (A) (3). ALSO, IF THE ABOVE-MENTIONED FORMER OFFICERS WHO WERE APPOINTED AS TEMPORARY OFFICERS AFTER DISCHARGE WITH SEVERANCE PAY ARE OTHERWISE QUALIFIED TO RECEIVE SUCH RETIRED PAY UNDER 10 U.S.C. 1331, IT WOULD SEEM THAT SINCE THEY HAVE COMPLETED, OR ARE APPROACHING COMPLETION OF 20 YEARS OF ACTIVE SERVICE, THEY, LIKE SUCH ENLISTED MEN, NOW ARE, OR SOON WILL BE, QUALIFIED TO RECEIVE A HIGHER RATE OF RETIRED PAY IN CONNECTION WITH RETIREMENTS UNDER THE PROVISIONS OF LAW CITED IN QUESTION A THAN CAN ACCRUE UNDER 10 U.S.C. 1331, AND, HENCE, THEY WILL NOT BE INTERESTED IN RECEIVING RETIRED PAY UNDER 10 U.S.C. 1331. CONCERNING THE RETIRED PAY TABLES TO WHICH QUESTION C RELATES, IT APPEARS THAT MOST OF THE SECTIONS CITED IN SUCH TABLES HAVE NO APPLICABILITY TO THE QUESTIONS HERE INVOLVED. ALSO, IT IS NOT CLEAR WHEHTER QUESTION C INCLUDES THE PROBLEM OF COMPUTATION OF DISABILITY RETIREMENT PAY.

IN THE CIRCUMSTANCES, YOU ARE ADVISED THAT TO THE EXTENT THAT THE SITUATIONS OF THE MEMBERS TO WHOM THE SUBMITTED QUESTIONS RELATE ARE OTHERWISE COVERED BY THE PROVISIONS OF LAW INVOLVED, QUESTIONS A, B (COMPARE 35 COMP. GEN. 601) AND C (SEE 36 COMP. GEN. 431) ARE ANSWERED IN THE AFFIRMATIVE AND NO ANSWER IS REQUIRED TO QUESTION 2.