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B-153922, MAY 20, 1964, 43 COMP. GEN. 740

B-153922 May 20, 1964
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PAY - SEVERANCE - FURLOUGH STATUS PRIOR TO DISCHARGE A NAVY OFFICER WITH OVER 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES WHOSE RATE OF PAY WAS REDUCED BY ONE-HALF. WHEN HE WAS FURLOUGHED IN ACCORDANCE WITH 10 U.S.C. 6406 IS CONSIDERED TO BE IN RECEIPT OF BASIC PAY AT THE TIME OF DISCHARGE FOR UNSATISFACTORY PERFORMANCE OF DUTY WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 6384. THE OFFICER IS ENTITLED UPON DISCHARGE TO THE LUMP-SUM PAYMENT PRESCRIBED BY 10 U.S.C. 6384 (B). TO THE ONE-HALF RATE OF BASIC PAY HE WAS RECEIVING AT THE TIME OF DISCHARGE. THE RATE OF THE OFFICER'S BASIC PAY FOR COMPUTING THE FURLOUGH PAY IS NOT SUBJECT TO THE INCREASES PROVIDED UNDER THE UNIFORMED SERVICES PAY ACT OF 1963.

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B-153922, MAY 20, 1964, 43 COMP. GEN. 740

PAY - SEVERANCE - FURLOUGH STATUS PRIOR TO DISCHARGE A NAVY OFFICER WITH OVER 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES WHOSE RATE OF PAY WAS REDUCED BY ONE-HALF, PURSUANT TO 37 U.S.C. 208, WHEN HE WAS FURLOUGHED IN ACCORDANCE WITH 10 U.S.C. 6406 IS CONSIDERED TO BE IN RECEIPT OF BASIC PAY AT THE TIME OF DISCHARGE FOR UNSATISFACTORY PERFORMANCE OF DUTY WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 6384, THE FURLOUGH PERIOD BEING VIEWED AS ACTIVE DUTY, AND, THEREFORE, THE OFFICER IS ENTITLED UPON DISCHARGE TO THE LUMP-SUM PAYMENT PRESCRIBED BY 10 U.S.C. 6384 (B), LIMITED, HOWEVER, TO THE ONE-HALF RATE OF BASIC PAY HE WAS RECEIVING AT THE TIME OF DISCHARGE, AND THE RATE OF THE OFFICER'S BASIC PAY FOR COMPUTING THE FURLOUGH PAY IS NOT SUBJECT TO THE INCREASES PROVIDED UNDER THE UNIFORMED SERVICES PAY ACT OF 1963.

TO THE SECRETARY OF THE NAVY, MAY 20, 1964:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1964, IN WHICH YOU REQUEST A DECISION AS TO WHETHER AN OFFICER WHO IS ON FURLOUGH AS PROVIDED IN 10 U.S.C. 6406 AND WHO IS DISCHARGED UNDER THE PROVISIONS OF 10 U.S.C. 6384 FOR UNSATISFACTORY PERFORMANCE OF DUTY IS ENTITLED TO THE LUMP-SUM PAYMENT PROVIDED THEREIN, AND, IF SO, AT WHAT RATE OF PAY.

YOU STATE THAT A LIEUTENANT COMMANDER IN THE NAVY WITH OVER 12 YEARS' COMMISSIONED SERVICE AND WITH OVER 18 YEARS' SERVICE FOR BASIC PAY PURPOSES WAS PLACED ON FURLOUGH IN ACCORDANCE WITH 10 U.S.C. 6406 IN APRIL 1963 AND HAS CONTINUED ON FURLOUGH TO THE PRESENT TIME. AT THE TIME HE WAS PLACED ON FURLOUGH THE BASIC PAY OF A LIEUTENANT COMMANDER WITH OVER 18 YEARS' SERVICE FOR PAY PURPOSES WAS $630 A MONTH AND HE WAS THEREFORE PLACED ON FURLOUGH AT THE RATE OF $315 A MONTH IN ACCORDANCE WITH 37 U.S.C. 208. HE IS TO BE DISCHARGED UNDER THE PROVISIONS OF 10 U.S.C. 6384 ON JUNE 30, 1964.

YOUR SPECIFIC QUESTIONS ARE AS FOLLOWS:

1. SINCE THE MEMBER WILL BE ON FURLOUGH AT THE TIME OF DISCHARGE, IS HE CONSIDERED IN RECEIPT OF BASIC PAY AT THE TIME OF DISCHARGE WITHIN THE MEANING OF THAT TERM AS USED ON 10 U.S.C. 6384.

2.IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE, WILL THE LUMP SUM PAYMENT BE BASED ON THE ACTUAL RATE OF BASIC PAY FOR A LIEUTENANT COMMANDER WITH OVER 18 YEARS SERVICE OR ON ONE-HALF OF THE BASIC PAY OF A LIEUTENANT COMMANDER WITH OVER 18 YEARS SERVICE.

3. A QUESTION WHICH IS RELEVANT TO THIS CASE REGARDLESS OF THE ANSWERS TO QUESTIONS 1 AND 2 ABOVE, IS WHETHER THE MEMBER'S BASIC PAY FOR COMPUTATION OF FURLOUGH PAY UNDER 37 U.S.C. 208 HAS REMAINED AT $630.00, THE RATE OF PAY OF A LIEUTENANT COMMANDER WITH OVER 18 YEARS SERVICE FOR BASIC PAY PURPOSES UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PL 85- 422, OR WHETHER IT HAS BEEN INCREASED TO $740.00 UNDER THE "UNIFORMED SERVICES PAY ACT OF 1963" (PL 88-132).

SECTION 6406 (A) OF TITLE 10, U.S. CODE, PROVIDES THAT THE SECRETARY OF THE NAVY MAY FURLOUGH ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS, OTHER THAN A RETIRED OFFICER. SECTION 208 OF TITLE 37, U.S. CODE, PROVIDES THAT AN OFFICER WHO IS FURLOUGHED UNDER 10 U.S.C. 6406 "IS ENTITLED TO PAY AT THE RATE OF ONE-HALF OF THE BASIC PAY TO WHICH HE WAS ENTITLED AT THE TIME OF BEING FURLOUGHED.' SECTION 6384 (B) OF TITLE 10, U.S. CODE, AUTHORIZES THE DISCHARGE OF OFFICERS FOR UNSATISFACTORY PERFORMANCE OF DUTY WITH "A LUMP-SUM PAYMENT COMPUTED ON THE BASIS OF TWO MONTHS' BASIC PAY RECEIVED AT THE TIME OF DISCHARGE" MULTIPLIED BY THE NUMBER OF YEARS' SERVICE, BUT NOT MORE THAN TWO YEARS' PAY, OR $15,000, WHICHEVER IS LESS.

SECTION 6406 (A) OF TITLE 10, U.S. CODE, AS NOW CONSTITUTED WAS DERIVED FROM SECTION 1442, REVISED STATUTES, 34 U.S.C. 228 (1952 ED.), AND DID NOT MATERIALLY CHANGE THE LANGUAGE OF THAT SECTION. SECTION 208 OF TITLE 37, U.S. CODE, WAS DERIVED FROM 10 U.S.C. 6406 (B), WHICH, IN TURN, HAD CODIFIED SECTION 1557, REVISED STATUTES, 34 U.S.C. 881 (1952 ED.), READING AS FOLLOWS:

OFFICERS ON FURLOUGH SHALL RECEIVE ONLY ONE-HALF OF THE PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED IF ON LEAVE OF ABSENCE.

SECTION 6384 (B) OF TITLE 10, U.S. CODE, WAS DERIVED FROM SECTION 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 858, 860, 34 U.S.C. 410J (H) (1952 ED.), WHICH AUTHORIZED COMPUTATION OF THE LUMP-SUM PAYMENT "ON THE BASIS OF TWO MONTHS' ACTIVE-DUTY PAY AT THE TIME OF DISCHARGE" FOR EACH YEAR OF COMMISSIONED SERVICE. THE HISTORICAL AND REVISION NOTES TO 10 U.S.C. 6384 DO NOT INDICATE THAT THE INSERTION OF THE WORD "RECEIVED" WAS INTENDED TO EFFECT ANY CHANGE IN APPLICATION OF THE STATUTE. THE HISTORICAL AND REVISION NOTES TO 10 U.S.C. 6406 (B), CODIFYING SECTION 1557, REVISED STATUTES, STATE THAT THE WORDS "BASIC PAY RECEIVED AT THE TIME OF FURLOUGH" ARE SUBSTITUTED FOR THE WORDS "PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED IF ON LEAVE OF ABSENCE" IN ORDER "TO MODERNIZE THE TERMINOLOGY.' IN EXPLANATION OF THAT REMARK THE NOTES STATE THAT ,THERE IS NO LONGER A DIFFERENCE BETWEEN PAY WHEN ON LEAVE AND PAY AT OTHER TIMES WHILE ON ACTIVE DUTY.' SEE H.REPT. 970, 84THCONGRESS, 1ST SESS. 475, 485.

WHILE THE CHANGE IN LANGUAGE USED WHEN 10 U.S.C. 6406 (B) WAS ENACTED (SIMILAR LANGUAGE IS CONTAINED IN 37 U.S.C. 208) WAS EXPLAINED AS A CHANGE "TO MODERNIZE THE TERMINOLOGY," WE MAY NOT IGNORE THE CLEAR REQUIREMENT LIMITING THE PAY OF AN OFFICER ON FURLOUGH TO ONE HALF OF THE BASIC PAY TO WHICH HE WAS ENTITLED AND RECEIVED "AT THE TIME OF" FURLOUGH. COMPARE 37 COMP. GEN. 747 AND 39 ID. 711. WE HAVE FOUND NO EVIDENCE OF AN INTENT TO EXCLUDE OFFICERS WHO ARE ON FURLOUGH FROM THE LUMP-SUM BENEFITS OF 10 U.S.C. 6384 (B). UNDER 37 U.S.C. 204 (A) A MEMBER IS ENTITLED TO BASIC PAY WHEN HE IS "ON ACTIVE DUTY.' A MEMBER IS IN AN ACTIVE DUTY STATUS DURING PERIODS OF AUTHORIZED LEAVE AND IT DOES NOT APPEAR TO BE PROPER TO VIEW HIM AS BEING IN ANY OTHER STATUS WHILE ON FURLOUGH. HE IS ENTITLED TO BASIC PAY DURING THAT TIME ALTHOUGH PAYMENT IS LIMITED TO THE ONE-HALF RATE. SINCE HE IS ENTITLED TO AND ACTUALLY RECEIVES PAYMENT AT THAT RATE AT THE TIME OF DISCHARGE, THE LUMP-SUM IS LIKEWISE COMPUTED ON THE ONE- HALF RATE.

YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

1. AFFIRMATIVE.

2. ONE-HALF OF THE BASIC PAY OF A LIEUTENANT COMMANDER WITH OVER 18 YEARS' SERVICE.

3. THE RATE OF PAY TO BE USED IN COMPUTING THE FURLOUGH PAY HAS REMAINED AT $630 PER MONTH.

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