B-157399, SEP. 29, 1965

B-157399: Sep 29, 1965

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FC FINANCE AND ACCOUNTING OFFICER DEPARTMENT OF THE ARMY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 12. THE RECORD SHOWS THAT SERGEANT FORTUNE'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 25. WITH 30 PERCENT DISABILITY AND THAT HIS NAME WAS CARRIED ON THAT LIST UNTIL FEBRUARY 28. WHEN HE WAS DISCHARGED WITH A 10 PERCENT DISABILITY RATING AND PAID SEVERANCE PAY UNDER 10 U.S.C. 1212. TEMPORARY DISABILITY RETIRED PAY WAS PAID TO HIM FROM MARCH 25. WHEN IT WAS TERMINATED BECAUSE OF HIS FAILURE TO REPORT FOR THE REQUIRED PHYSICAL EXAMINATION. WAS SUBSEQUENTLY REINSTATED AND PAID FOR THE PERIOD DECEMBER 1. 2 MONTHS AND 24 DAYS AND THE BASIC PAY RATE USED IN COMPUTING THE SEVERANCE PAY WAS THE RATE PRESCRIBED FOR A MEMBER OF HIS GRADE WITH OVER 16 BUT LESS THAN 18 YEARS OF SERVICE.

B-157399, SEP. 29, 1965

TO LIEUTENANT COLONEL H. W. KASSERMAN, FC FINANCE AND ACCOUNTING OFFICER DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1965, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. A 863, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER ATTACHED THERETO WHICH HAS BEEN PREPARED IN FAVOR OF ROY L. FORTUNE, FORMER SERGEANT FIRST CLASS, RA 44 128 435, REPRESENTING AN ADJUSTMENT IN DISABILITY SEVERANCE PAY.

THE RECORD SHOWS THAT SERGEANT FORTUNE'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 25, 1960, WITH 30 PERCENT DISABILITY AND THAT HIS NAME WAS CARRIED ON THAT LIST UNTIL FEBRUARY 28, 1965, WHEN HE WAS DISCHARGED WITH A 10 PERCENT DISABILITY RATING AND PAID SEVERANCE PAY UNDER 10 U.S.C. 1212. TEMPORARY DISABILITY RETIRED PAY WAS PAID TO HIM FROM MARCH 25, 1960, TO MARCH 31, 1962, WHEN IT WAS TERMINATED BECAUSE OF HIS FAILURE TO REPORT FOR THE REQUIRED PHYSICAL EXAMINATION, AND WAS SUBSEQUENTLY REINSTATED AND PAID FOR THE PERIOD DECEMBER 1, 1964, TO FEBRUARY 28, 1965.

WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST SERGEANT FORTUNE'S SERVICE CREDITABLE FOR BASIC PAY PURPOSES TOTALED 14 YEARS, 11 MONTHS AND 18 DAYS. CREDIT FOR TIME ON THE TEMPORARY DISABILITY RETIRED LIST IN A PAY STATUS INCREASED THE TOTAL SERVICE TO 17 YEARS, 2 MONTHS AND 24 DAYS AND THE BASIC PAY RATE USED IN COMPUTING THE SEVERANCE PAY WAS THE RATE PRESCRIBED FOR A MEMBER OF HIS GRADE WITH OVER 16 BUT LESS THAN 18 YEARS OF SERVICE. TIME ON THE TEMPORARY DISABILITY RETIRED LIST IN A NON-PAY STATUS, IF CREDITABLE, WILL INCREASE THE TOTAL SERVICE FOR BASIC PAY PURPOSES TO 19 YEARS, 10 MONTHS AND 24 DAYS. THE PROPOSED PAYMENT REPRESENTS AN ADJUSTMENT IN SEVERANCE PAY COMPUTED ON THE RATE OF PAY FOR A MEMBER OF HIS GRADE WITH OVER 18 YEARS OF SERVICE.

IN 37 COMP. GEN. 823 AND 42 COMP. GEN. 52, CITED BY YOU, WE HELD THAT IN DETERMINING THE RATE OF BASIC PAY ON WHICH DISABILITY SEVERANCE PAY IS TO BE COMPUTED IT IS PROPER TO INCLUDE TIME SPENT ON A TEMPORARY DISABILITY RETIRED LIST, INCLUDING TIME AFTER EXPIRATION OF THE STATUTORY MAXIMUM OF 5 YEARS DURING WHICH RETIRED PAY MAY BE PAID. SINCE WE DID NOT CONSIDER A PERIOD DURING WHICH RETIRED PAY ENTITLEMENT IS SUSPENDED BY REASON OF THE MEMBER'S FAILURE TO REPORT FOR A PHYSICAL EXAMINATION, YOU EXPRESS DOUBT AS TO WHETHER THE PERIOD IN SUCH A NON-PAY STATUS IS CREDITABLE.

THE TYPES OF SERVICE AUTHORIZED TO BE CREDITED FOR BASIC PAY PURPOSES ARE ENUMERATED IN 37 U.S.C. 205/A), CLAUSE (9//A) OF WHICH IS AS FOLLOWS:

"/9) ALL PERIODS WHILE---

(A) ON A TEMPORARY DISABILITY RETIRED LIST, HONORARY RETIRED LIST, OR A RETIRED LIST OF A UNIFORMED SERVICE; "

PLACEMENT OF A MEMBER'S NAME ON A TEMPORARY DISABILITY RETIRED LIST DOES NOT SEPARATE HIM FROM THE SERVICE. WHETHER OR NOT HE IS RECEIVING RETIRED PAY, A PERSON WHOSE NAME REMAINS ON THE TEMPORARY DISABILITY RETIRED LIST IS A MEMBER OF THE SERVICE AND HIS TIME ON THAT LIST IS PROPERLY CREDITABLE FOR BASIC PAY PURPOSES IN DETERMINING THE RATE OF PAY TO WHICH HE WOULD BE ENTITLED "IF SERVING ON ACTIVE DUTY" ON THE DATE OF SEPARATION.