B-164007, MAY 13, 1968, 47 COMP. GEN. 639

B-164007: May 13, 1968

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PAY - SEVERANCE - EARLY DISCHARGE A LIEUTENANT JUNIOR GRADE OFFICER WHO HAVING FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF LIEUTENANT FOR THE SECOND TIME WOULD HAVE BEEN HONORABLY DISCHARGED WITH OVER 6 YEARS OF SERVICE. PROPERLY WAS PAID SEVERANCE PAY COMPUTED ON THE BASIS OF OVER 4 YEARS BUT LESS THAN 6 YEARS OF SERVICE. THERE IS NO AUTHORITY TO ALLOW AN OFFICER TO COUNT AS SERVICE THE TIME BETWEEN DISCHARGE AND MANDATORY RELEASE. MAY NOT BE PAID THE DIFFERENCE BETWEEN THE SEVERANCE PAY RECEIVED AND THE AMOUNT OF SEVERANCE PAY THAT WOULD HAVE BEEN DUE HAD HE REACHED THE LONGEVITY STEP OF OVER 6 YEARS OF SERVICE. 1968: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 4. HE WAS ADVISED ON NOVEMBER 17.

B-164007, MAY 13, 1968, 47 COMP. GEN. 639

PAY - SEVERANCE - EARLY DISCHARGE A LIEUTENANT JUNIOR GRADE OFFICER WHO HAVING FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF LIEUTENANT FOR THE SECOND TIME WOULD HAVE BEEN HONORABLY DISCHARGED WITH OVER 6 YEARS OF SERVICE, PURSUANT TO 14 U.S.C. 282, ON JUNE 30, 1965, HAD HE NOT REQUESTED AND BEEN GRANTED A DISCHARGE ON APRIL 1, 1965, PROPERLY WAS PAID SEVERANCE PAY COMPUTED ON THE BASIS OF OVER 4 YEARS BUT LESS THAN 6 YEARS OF SERVICE. THERE IS NO AUTHORITY TO ALLOW AN OFFICER TO COUNT AS SERVICE THE TIME BETWEEN DISCHARGE AND MANDATORY RELEASE, AND, THEREFORE, THE OFFICER DISCHARGED ON APRIL 1, 1965, BEFORE COMPLETING OVER 6 YEARS OF SERVICE, AND NOT ENTITLED TO CREDIT FOR CONSTRUCTIVE SERVICE, MAY NOT BE PAID THE DIFFERENCE BETWEEN THE SEVERANCE PAY RECEIVED AND THE AMOUNT OF SEVERANCE PAY THAT WOULD HAVE BEEN DUE HAD HE REACHED THE LONGEVITY STEP OF OVER 6 YEARS OF SERVICE.

TO R. H. MILLS, UNITED STATES COAST GUARD, MAY 13, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 4, 1968, REQUESTED AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT OF A VOUCHER FOR $122.40 IN FAVOR OF ROBERT H. THORNTON, FORMER LIEUTENANT (JUNIOR GRADE), U.S. COAST GUARD, REPRESENTING THE DIFFERENCE BETWEEN SEVERANCE PAY AS LIEUTENANT (JUNIOR GRADE) WITH OVER 4 YEARS OF SERVICE AND AN OFFICER OF THE SAME GRADE WITH OVER 6 YEARS OF SERVICE.

YOU SAY THAT MR. THORNTON ACCEPTED A COMMISSION IN THE U.S. COAST GUARD ON JUNE 3, 1959; THAT HE HAD NO OTHER CREDITABLE SERVICE FOR BASIC PAY PURPOSES; THAT HAVING FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF LIEUTENANT FOR THE SECOND TIME, HE WAS ADVISED ON NOVEMBER 17, 1964, THAT PURSUANT TO 14 U.S.C. 282 HE WOULD BE HONORABLY DISCHARGED ON JUNE 30, 1965; THAT ON FEBRUARY 4, 1965, HE REQUESTED TO BE DISCHARGED ON APRIL 1, 1965; AND THAT SUCH REQUEST WAS APPROVED AND HE WAS SEPARATED ON THAT DATE HAVING 5 YEARS 9 MONTHS AND 29 DAYS OF SERVICE FOR PAY PURPOSES.

IF HE HAD REMAINED IN THE SERVICE UNTIL JUNE 30, 1965, MR. THORNTON WOULD HAVE COMPLETED MORE THAN 6 YEARS OF ACTIVE SERVICE AND IN LETTER DATED MARCH 16, 1965, HE EXPRESSED THE VIEW THAT HIS SEVERANCE PAY SHOULD BE COMPUTED ON THE BASIC PAY OF LIEUTENANT (JUNIOR GRADE) WITH OVER 6 YEARS OF SERVICE PURSUANT TO 14 U.S.C. 282 (2). HE WAS ADVISED BY LETTER OF THE COMMANDANT DATED MARCH 23, 1965, THAT JUNE 30, 1965, SHOULD BE USED IN DETERMINING THE BASIC PAY FACTOR TO BE USED IN COMPUTING SEVERANCE PAY. HOWEVER, AT THE TIME OF HIS RELEASE MR. THORNTON WAS PAID SEVERANCE PAY AS A LIEUTENANT (JUNIOR GRADE) WITH OVER 4 BUT LESS THAN 6 YEARS OF SERVICE ($5,720.40 COMPUTED AT $476.70 X 2 X 6). ON FEBRUARY 5, 1968, HE CLAIMED THE DIFFERENCE REPRESENTED BY THE VOUCHER.

SEVERANCE PAY IS COMPUTED IN ACCORDANCE WITH PARAGRAPH 2B01150 OF THE COMPTROLLER MANUAL, U.S. COAST GUARD, AND SINCE NOTHING IS CONTAINED THEREIN THAT WOULD ALLOW AN OFFICER TO COUNT AS SERVICE THE TIME BETWEEN HIS DISCHARGE DATE AND THE MANDATORY RELEASE DATE OTHERWISE APPLICABLE, YOU REQUEST AN ADVANCE DECISION IN THE MATTER.

THE PART OF 14 U.S.C. 282 PERTINENT TO THE CASE OF MR. THORTON PROVIDES:

EACH OFFICER OF THE REGULAR COAST GUARD APPOINTED UNDER SECTION 211 OF THIS TITLE WHO IS SERVING IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) AND WHO HAS FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF LIEUTENANT FOR THE SECOND TIME, SHALL:

(1)BE HONORABLY DISCHARGED ON JUNE 30 OF THE FISCAL YEAR IN WHICH HIS SECOND FAILURE OF SELECTION OCCURS; OR

(2) IF HE SO REQUESTS, BE HONORABLY DISCHARGED AT AN EARLIER DATE WITHOUT LOSS OF BENEFITS THAT WOULD ACCRUE IF HE WERE DISCHARGED ON THAT DATE UNDER CLAUSE (1) * * *

IT IS PROVIDED IN 14 U.S.C. 286 (B) THAT EACH OFFICER DISCHARGED UNDER SECTION 282 "IS ENTITLED TO A LUMP-SUM PAYMENT COMPUTED BY MULTIPLYING HIS YEARS OF ACTIVE COMMISSIONED SERVICE, BUT NOT MORE THAN TWELVE, BY TWO MONTHS' BASIC PAY OF THE GRADE IN WHICH HE IS SERVING ON THE DATE OF DISCHARGE.'

THE AFOREMENTIONED STATUTORY PROVISIONS WERE ENACTED INTO LAW BY THE ACT OF SEPTEMBER 24, 1963, PUBLIC LAW 88-130, 77 STAT. 174. ON PAGE 23 OF H. REPT. NO. 583 ON H.R. 5623, 88TH CONG., 1ST SESS., WHICH BECAME PUBLIC LAW 88-130, IT IS STATED IN EXPLANATION OF SECTION 282 (2) THAT---

CLAUSE (2) GIVES THEM (REGULAR LIEUTENANTS (JUNIOR GRADE) ( THE OPTION OF BEING HONORABLY DISCHARGED EARLIER THAN THIS JUNE 30 DATE WITHOUT LOSS OF SEVERANCE BENEFITS. THE SEVERANCE PAY BENEFITS ARE TO BE COMPUTED TO THE DATE THE OFFICER ACTUALLY IS DISCHARGED AND NOT TO THE DATE HE WOULD BE SEPARATED UNDER CLAUSE (1).

IT IS STATED IN PARAGRAPH 2B01150-A-1 OF THE COMPTROLLER MANUAL, RELATING TO COMPUTATION OF SEVERANCE PAY OF COMMISSIONED OFFICERS, THAT THE BASIC RATE OF PAY TO WHICH THE MEMBER IS ENTITLED ON THE DATE HE IS DISCHARGED IS TO BE USED.

AT THE TIME MR. THORNTON WAS DISCHARGED HE HAD ONLY 5 YEARS 9 MONTHS AND 29 DAYS OF ACTIVE COMMISSIONED SERVICE AND WAS ENTITLED UNDER 37 U.S.C. 203 TO THE MONTHLY BASIC PAY OF A LIEUTENANT (JUNIOR GRADE), 0 2--- WITH OVER 4 YEARS OF SERVICE COMPUTED UNDER 37 U.S.C. 205--- ESTABLISHED BY THE ACT OF AUGUST 12, 1964, PUBLIC LAW 88-422, 78 STAT. 395, OR $476.70 PER MONTH. SINCE HE WAS EFFECTIVELY SEPARATED FROM THE SERVICE ON APRIL 1, 1965, AND EARNED NO SERVICE CREDIT FOR THE PURPOSE OF COMPUTATION OF BASIC PAY SUBSEQUENT THERETO, THERE IS NO AUTHORITY FOR COMPUTING HIS SEVERANCE PAY ON THE MONTHLY BASIC PAY OF AN OFFICER WITH OVER 6 YEARS OF SERVICE--- A LONGEVITY STEP WHICH HE NEVER REACHED WHILE ON ACTIVE DUTY. CREDIT FOR SERVICE NOT ACTUALLY PERFORMED--- CONSTRUCTIVE SERVICE--- MAY BE GRANTED ONLY WHEN SPECIFICALLY AUTHORIZED BY LAW.

ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF THE VOUCHER AND IT WILL BE RETAINED HERE.