B-154826, SEPTEMBER 17, 1964, 44 COMP. GEN. 149

B-154826, SEPTEMBER 17, 1964, 44 COMP. GEN. 149

PAY - SEVERANCE - COMPUTATION A NAVY OFFICER WHO, WHEN DISCHARGED UNDER 10 U.S.C. 6382 (A) FOR FAILURE TO BE SELECTED FOR PROMOTION, WAS SERVING AS A LIEUTENANT OF THE STAFF CORPS BUT WHO HAD PRIOR SERVICE AS A LINE OFFICER IN THE REGULAR NAVY MAY NOT HAVE SERVICE UNDER THE APPOINTMENT IN THE LINE OF THE REGULAR NAVY CONSIDERED AS SERVICE UNDER AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE STAFF CORPS FOR COMPUTATION OF A LUMP-SUM SEVERANCE PAYMENT, AND THEREFORE, SINCE THE MEMBER ACCEPTED AN APPOINTMENT AS A LIEUTENANT IN THE CIVIL ENGINEER CORPS OF THE REGULAR NAVY ON JUNE 30, 1957, HIS APPOINTMENT COMES WITHIN THE PHRASE "ORIGINALLY APPOINTED IN THE GRADE OF LIEUTENANT IN ANY STAFF CORPS OF THE NAVY" IN 10 U.S.C. 6388 (A) AND THE LUMP-SUM PAYMENT IS FOR COMPUTATION FROM THE DATE OF SUCH APPOINTMENT.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 17, 1964:

REFERENCE IS MADE TO LETTER OF JULY 23, 1964, AND ENCLOSURE, RECEIVED FROM THE UNDER SECRETARY OF THE NAVY REQUESTING DECISION AS TO THE CORRECT METHOD OF COMPUTING THE LUMP-SUM PAYMENT PRESCRIBED IN 10 U.S.C. 6382 (C) IN THE CIRCUMSTANCES SET FORTH BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CLEARANCE NO. SS-N-787 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT APPEARS THAT THE QUESTION PRESENTED, WHILE SEEMINGLY GENERAL IN NATURE, ACTUALLY RELATES TO THE PARTICULAR CASE OF A FORMER NAVAL OFFICER WHO, UPON GRADUATION FROM THE NAVAL ACADEMY WAS COMMISSIONED ON JUNE 3, 1953, AN ENSIGN OF THE LINE IN THE REGULAR NAVY. HE THEREAFTER SERVED AS A LINE OFFICER UNTIL JUNE 30, 1957, AT WHICH TIME HE WAS COMMISSIONED A LIEUTENANT (JG) IN THE STAFF CORPS (CIVIL ENGINEER CORPS) OF THE REGULAR NAVY. SEE 10 U.S.C. 5582 (B).

ON JUNE 30, 1964, THIS FORMER OFFICER, WHILE SERVING AS A LIEUTENANT OF THE STAFF CORPS (CIVIL ENGINEER CORPS) OF THE REGULAR NAVY WAS HONORABLY DISCHARGED FROM THE NAVAL SERVICE IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6382 (A) WHICH PROVIDES THAT EACH OFFICER ON THE ACTIVE LIST OF THE NAVY IN THE GRADE OF LIEUTENANT (EXCEPT AN OFFICER IN THE NURSE CORPS) SHALL BE HONORABLY DISCHARGED "ON JUNE 30 OF THE FISCAL YEAR IN WHICH HE IS CONSIDERED AS HAVING FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER * * * FOR THE SECOND TIME.' UPON SUCH DISCHARGE THE FORMER OFFICER CONCERNED BECAME ENTITLED UNDER 10 U.S.C. 6382 (C) TO A LUMP-SUM PAYMENT EQUAL IN AMOUNT TO 2 MONTHS' BASIC PAY AT THE TIME OF DISCHARGE MULTIPLIED BY THE NUMBER OF YEARS OF HIS TOTAL COMMISSIONED SERVICE COMPUTED AS PRESCRIBED IN 10 U.S.C. 6388, BUT NOT TO EXCEED A TOTAL OF 2 YEARS' BASIC PAY. AN OVER-ALL LIMITATION OF $15,000 ON SUCH LUMP-SUM PAYMENT IS PRESCRIBED IN SECTION 4 (B), PUBLIC LAW 87-509, JUNE 28, 1962, 76 STAT. 121, 10 U.S.C. 6382 (C).

THE SPECIFIC QUESTION PRESENTED IS WHETHER THE NUMBER OF YEARS OF TOTAL COMMISSIONED SERVICE USED IN DETERMINING THE MULTIPLIER FACTOR EMPLOYED IN COMPUTING THE LUMP-SUM PAYMENT AUTHORIZED IN 10 U.S.C. 6382 (C) IS LIMITED TO THE OFFICER'S 7 YEARS OF COMMISSIONED SERVICE IN THE STAFF CORPS (CIVIL ENGINEER CORPS), I.E., FROM JUNE 30, 1957, TO JUNE 30, 1964, OR WHETHER THERE MAY ALSO BE INCLUDED IN SUCH MULTIPLIER FACTOR HIS PRIOR SERVICE AS A COMMISSIONED OFFICER OF THE LINE DATING FROM JUNE 3, 1953, WHICH WOULD GIVE HIM A TOTAL OF 11 YEARS OF CREDITABLE COMMISSIONED SERVICE FOR SUCH PURPOSE. IT IS STATED THAT IT IS NOT CLEAR "WHETHER THE RULE ADOPTED IN 37 COMP. GEN. 747 FOR THE COMPUTATION OF "TOTAL COMMISSIONED SERVICE" FOR PURPOSES OF MANDATORY RETIREMENT, IS APPLICABLE IN THE PRESENT CASE.'

AS ABOVE STATED, IT IS EXPRESSLY PROVIDED IN 10 U.S.C. 6382 (C) THAT THE NUMBER OF YEARS OF TOTAL COMMISSIONED SERVICE TO BE EMPLOYED AS THE MULTIPLIER FACTOR IN DETERMINING THE AMOUNT OF THE LUMP-SUM PAYMENT THEREIN PRESCRIBED SHALL BE "COMPUTED UNDER SECTION * * * 6388 OF THIS LE.' THAT SECTION (10 U.S.C. 6388) IN PERTINENT PART PROVIDES AS FOLLOWS:

(A) FOR THE PURPOSE OF THE PRECEDING SECTIONS OF THIS CHAPTER (CHAPTER 573, TITLE 10, U.S. CODE), THE TOTAL COMMISSIONED SERVICE OF EACH OFFICER ORIGINALLY APPOINTED IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) OR ENSIGN IN ANY STAFF CORPS OF THE NAVY, WHO HAS SINCE THAT APPOINTMENT SERVED CONTINUOUSLY ON THE ACTIVE LIST OF THE NAVY, IS COMPUTED FROM JUNE 30 OF THE FISCAL YEAR IN WHICH HE ACCEPTED THAT APPOINTMENT. HOWEVER, THIS SUBSECTION DOES NOT APPLY TO OFFICERS APPOINTED UNDER THE ACT OF APRIL 18, 1946, CH. 141 (60 STAT. 92).

(B) EACH OTHER COMMISSIONED OFFICER ON THE ACTIVE LIST OF THE NAVY IN ANY STAFF CORPS IS CONSIDERED TO HAVE THE SAME TOTAL COMMISSIONED SERVICE FOR THE PURPOSE OF THE PRECEDING SECTIONS OF THIS CHAPTER AS THE OFFICER IN HIS CORPS DESCRIBED IN SUBSECTION (A) HAVING THE MAXIMUM TOTAL COMMISSIONED SERVICE WHO---

(1) HAS NOT LOST NUMBERS OR PRECEDENCE; AND

(2) IS, OR AT ANY TIME HAS BEEN, JUNIOR TO THE OTHER OFFICER FOR THE PURPOSES OF ELIGIBILITY FOR PROMOTION AND SELECTION FOR PROMOTION DURING THAT OTHER OFFICER'S LATEST PERIOD OF CONTINUOUS SERVICE ON THE ACTIVE LIST.

THE FORMER NAVAL OFFICER INVOLVED IN THIS CASE CONTENDS, IN A BRIEF RECEIVED AS THE ENCLOSURE TO THE LETTER OF JULY 23, 1964, THAT HIS STATUS FOR PURPOSES OF THE LUMP-SUM PAYMENT PRESCRIBED IN 10 U.S.C. 6382 (C) COMES WITHIN THE SCOPE OF SUBSECTION (B), NOT SUBSECTION (A), OF 10 U.S.C. 6388. THE ARGUMENT ADVANCED IN SUPPORT OF THAT CONTENTION IS THAT SUBSECTION (A) OF 10 U.S.C. 6388 EMBRACES ONLY THOSE OFFICERS WHO ARE "ORIGINALLY" APPOINTED IN THE GRADE OF LIEUTENANT (JG) OR ENSIGN IN ANY STAFF CORPS OF THE NAVY AND THAT, SINCE THE OFFICER CONCERNED WAS FIRST APPOINTED AS A COMMISSIONED OFFICER IN THE LINE OF THE NAVY IN JUNE 1953, HIS APPOINTMENT ON JUNE 30, 1957, AS A LIEUTENANT (JG) IN THE STAFF CORPS (CIVIL ENGINEER CORPS) DID NOT CONSTITUTE AN ORIGINAL APPOINTMENT IN THE STAFF CORPS OF THE REGULAR NAVY WITHIN THE PURVIEW OF SUBSECTION (A), 10 U.S.C. 6388.

THE SAME ISSUE WAS PRESENTED IN THE CASE OF A CAPTAIN IN THE CIVIL ENGINEER CORPS WHO WAS PERMANENTLY APPOINTED IN THE GRADE OF ENSIGN IN THE LINE OF THE REGULAR NAVY UPON GRADUATION FROM THE NAVAL ACADEMY IN JUNE 1919 AND THEREAFTER PERMANENTLY APPOINTED WITH THE RANK OF LIEUTENANT (JG) IN THE CIVIL ENGINEER CORPS OF THE REGULAR NAVY IN SEPTEMBER 1921. SEE NAVY COURT-MARTIAL ORDER NO. 2, JANUARY 13, 1949, AT PAGES 40 TO 43, CONSTRUING IN THE CASE ABOVE MENTIONED THE PROVISIONS OF SECTION 202 (D) (1) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 816, NOW CODIFIED IN 10 U.S.C. 6388 (A) AND (B), FORMERLY 34 U.S.C. 3B (D) (1) (1952 ED.). IT WAS HELD BY THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT THE WORDS "ORIGINALLY APPOINTED IN THE GRADE OR RANK OF LIEUTENANT (JUNIOR GRADE) OR ENSIGN IN THE REGULAR NAVY" CONTAINED IN SECTION 202 (D) (1) OF THE 1947 LAW WHEN CONSIDERED IN CONJUNCTION WITH THE PROVISIONS OF SUBSECTION (A) OF THAT SECTION (PROVIDING THAT "THE WORD "OFFICERS" SHALL BE HELD TO MEAN COMMISSIONED OFFICERS HOLDING PERMANENT APPOINTMENTS AS SUCH ON THE ACTIVE LIST IN THE STAFF CORPS OF THE REGULAR NAVY)" DO NOT "INCLUDE A PERMANENT APPOINTMENT IN THE LINE OF THE REGULAR NAVY SUBSEQUENT TO WHICH THE OFFICER CONCERNED ACCEPTED A PERMANENT APPOINTMENT IN THE RANK OF LIEUTENANT (JUNIOR GRADE) OR ENSIGN IN THE STAFF CORPS OF THE REGULAR NAVY.'

THE CONCLUSION REACHED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY CONCERNING THE APPLICATION AND THE EFFECT OF THE STATUTORY PROVISIONS ABOVE REFERRED TO WAS UPHELD IN OUR DECISION OF MAY 12, 1958, B-135968, 37 COMP. GEN. 747, TO WHICH SPECIFIC REFERENCE IS MADE IN THE LETTER OF JULY 23, 1964. AS POINTED OUT IN THE DECISION OF MAY 12, 1958, IT IS CLEAR THAT IN ENACTING THE CODIFICATION ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT., CONGRESS ADOPTED THE NAVY JUDGE ADVOCATE GENERAL'S INTERPRETATION OF SECTION 202 (D) (1) OF THE 1947 LAW BY SUBSTITUTING THE WORDS "ANY STAFF CORPS OF THE NAVY" FOR THE WORDS "THE REGULAR NAVY.' HENCE, THE LANGUAGE OF 10 U.S.C. 6388 (A) "MUST BE GIVEN ITS PLAIN MEANING AND APPLICATION.'

AS A MATTER OF PRIMARY IMPORTANCE IT SHOULD BE NOTED THAT THE SAME CONSTRUCTION AND INTERPRETATION OF THE PROVISIONS OF 10 U.S.C. 6388 (A) AND (B) WERE REACHED BY THE UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT, IN THE CASE OF PAYSON V. FRANKE, 282 F.2D 851, DECIDED AUGUST 4, 1960. IT THERE STATED:

APPELLANT (PAYSON) SEEMS TOTALLY TO HAVE OVERLOOKED THE EFFECT WHICH MUST BE GIVEN TO SECTION 202 (A) OF THE 1947 ACT. THERE THE WORD "OFFICERS" WAS DEFINED FOR THE PURPOSES OF TITLE II TO MEAN "COMMISSIONED OFFICERS * * * IN THE STAFF CORPS OF THE REGULAR NAVY," WHICH INCLUDED THE CIVIL ENGINEER CORPS. THUS SECTION 202 (D) (1) IN REFERRING TO "TOTAL COMMISSIONED SERVICE" OF SUCH A REGULAR NAVY OFFICER PROVIDED THAT COMPUTATION MUST DATE "FROM JUNE 30 OF THE FISCAL YEAR IN WHICH HE ACCEPTED SUCH APPOINTMENT," I.E., AS A COMMISSIONED OFFICER IN THE STAFF CORPS. SECTIONS 202 (A) AND 202 (D) (1) MUST BE READ TOGETHER. THE CODIFIERS IN DRAFTING 10 U.S.C. SEC. 6388 SIMPLY ELIDED THE TERMINOLOGY AS TO "STAFF CORPS" SERVICE TO AVOID THE CIRCUMLOCUTION AND INTERPOLATION ESSENTIAL TO A PROPER READING OF THE 1947 ACT.

WHILE THE CONCLUSION IN THE DECISION OF MAY 12, 1958, 37 COMP. GEN. 747, INVOLVES ONLY THE APPLICATION OF 10 U.S.C. 6388 (A) AND (B) TO THOSE PROVISIONS OF CH. 573, TITLE 10, U.S. CODE, CONCERNING MANDATORY RETIREMENT OR SEPARATION FROM THE NAVAL SERVICE OF CERTAIN OFFICERS, NO BASIS IS PERCEIVED FOR CONCLUDING THAT THE PROVISIONS OF 10 U.S.C. 6388 (A) AND (B) SHOULD BE APPLIED ANY DIFFERENTLY WHEN SUCH STATUTORY PROVISIONS ARE FOR CONSIDERATION IN COMPUTING THE LUMP-SUM PAYMENT PRESCRIBED IN 10 U.S.C. 6382 (C). IT IS OUR VIEW, THEREFORE, THAT SINCE THE FORMER NAVAL OFFICER HERE CONCERNED WAS COMMISSIONED AS A LIEUTENANT (JG) IN THE CIVIL ENGINEER CORPS OF THE REGULAR NAVY ON JUNE 30, 1957--- THE APPOINTMENT IN QUESTION APPARENTLY HAVING BEEN ACCEPTED BY HIM IN THE FISCAL YEAR 1957--- HIS STATUS COMES SQUARELY WITHIN THE PURVIEW OF THE PHRASE "ORIGINALLY APPOINTED IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) * * * IN ANY STAFF CORPS OF THE NAVY" CONTAINED IN 10 U.S.C. 6388 (A).

ACCORDINGLY, UNDER THE EXPLICIT LANGUAGE OF 10 U.S.C. 6388 (A) THE COMPUTATION OF HIS TOTAL COMMISSIONED SERVICE FOR THE PURPOSE OF DETERMINING THE AMOUNT OF THE LUMP-SUM PAYMENT DUE HIM UNDER 10 U.S.C. 6382 (C) IS REQUIRED TO BE COMPUTED FROM JUNE 30, 1957.