B-45457, JANUARY 27, 1945, 24 COMP. GEN. 560

B-45457: Jan 27, 1945

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1945: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27. IS HEREBY AMENDED TO READ AS FOLLOWS: "SEC. 2. WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS. THAT HE WAS APPOINTED AN AVIATION CADET ON JUNE 17. WAS HONORABLY DISCHARGED ON MARCH 24. THAT HE WAS APPOINTED A SECOND LIEUTENANT. YOU WERE ADVISED THAT SINCE YOURS SON'S ACTIVE SERVICE AS A MEMBER OF THE AIR CORPS RESERVE WAS LESS THAN ONE YEAR. WAS NOT AUTHORIZED. IT IS URGED IN YOUR LETTER THAT THE PROVISION IN THE SAID SECTION RESPECTING THE COMPLETION OF AT LEAST ONE YEAR OF CONTINUOUS ACTIVE DUTY IS NOT FOR APPLICATION IN THE CASE OF YOUR SON SINCE HIS DEATH OCCURRED WHILE ON ACTIVE DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

B-45457, JANUARY 27, 1945, 24 COMP. GEN. 560

LUMP-SUM PAYMENTS TO AIR CORPS RESERVE OFFICERS - PRORATION FOR FRACTIONAL PART OF FIRST YEAR'S SERVICE THE $500 LUMP SUM AUTHORIZED BY SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, TO BE PAID TO ARMY AIR CORPS RESERVE OFFICERS FOR EACH COMPLETE YEAR OF ACTIVE SERVICE WHEN "RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS," AND TO BE PRORATED "FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE" UPON RELEASE FOR CERTAIN REASONS BEYOND THEIR CONTROL, MAY BE PAID ON A PRORATED BASIS IN THE CASE OF OFFICERS WHO, THROUGH NO FAULT OF THEIR OWN--- SUCH AS RELEASE FROM ACTIVE DUTY ON ACCOUNT OF INCAPACITATING INJURY OR DEATH--- FAIL TO COMPLETE ONE YEAR'S ACTIVE SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO STANISLAW AND KAZMIERA D. LIPOWICZ, JANUARY 27, 1945:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1944, REQUESTING REVIEW OF YOUR CLAIM, AS PARENTS OF THE LATE ELMER N. LIPOWICZ, SECOND LIEUTENANT, AIR CORPS RESERVE, FOR AN ADDITIONAL AMOUNT REPRESENTING A PRORATED LUMP-SUM PAYMENT UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED BY SECTION 6 OF THE ARMY AVIATION CADET ACT OF JUNE 3, 1941, 55 STAT. 240, ON ACCOUNT OF YOUR SON'S ACTIVE SERVICE OF LESS THAN ONE YEAR IN THE AIR CORPS RESERVE.

SECTION 6 OF THE SAID ARMY AVIATION CADET ACT PROVIDES:

SECTION 2 OF THE ACT OF JUNE 16, 1936 (49 STAT. 1524), AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 2. WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH OFFICER, AND IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON HIS OWN REQUEST, OR AS A RESULT OF INEFFICIENT OR UNSATISFACTORY SERVICE AS DETERMINED BY THE SECRETARY OF WAR, SUCH LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE. THE LUMP-SUM PAYMENTS HEREIN AUTHORIZED SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE.'

FROM INFORMATION FURNISHED THIS OFFICE BY THE ADJUTANT GENERAL OF THE ARMY, IT APPEARS THAT YOUR SON ENLISTED AS A PRIVATE ON MARCH 12, 1942; THAT HE WAS APPOINTED AN AVIATION CADET ON JUNE 17, 1942, AND WAS HONORABLY DISCHARGED ON MARCH 24, 1943, TO ACCEPT A COMMISSION; THAT HE WAS APPOINTED A SECOND LIEUTENANT, AIR CORPS RESERVE, ON MARCH 25, 1943, AND ACCEPTED THE APPOINTMENT ON THE SAME DATE; AND THAT HE SERVED IN THAT CAPACITY UNTIL HIS DEATH ON DECEMBER 23, 1943, IN THE NORTH AFRICAN AREA.

BY SETTLEMENT DATED SEPTEMBER 21, 1944, YOU WERE ADVISED THAT SINCE YOURS SON'S ACTIVE SERVICE AS A MEMBER OF THE AIR CORPS RESERVE WAS LESS THAN ONE YEAR, PAYMENT OF ANY PORTION OF THE LUMP-SUM AMOUNT PROVIDED IN SECTION 2 OF THE SAID AC OF 1936, AS AMENDED, SUPRA, WAS NOT AUTHORIZED. HOWEVER, IT IS URGED IN YOUR LETTER THAT THE PROVISION IN THE SAID SECTION RESPECTING THE COMPLETION OF AT LEAST ONE YEAR OF CONTINUOUS ACTIVE DUTY IS NOT FOR APPLICATION IN THE CASE OF YOUR SON SINCE HIS DEATH OCCURRED WHILE ON ACTIVE DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT.

THE LANGUAGE OF THE QUOTED SECTION IS NOT FREE FROM AMBIGUITY AND AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE STATUTE DISCLOSES NOTHING MATERIALLY HELPFUL IN A DETERMINATION OF THE PARTICULAR QUESTION HERE INVOLVED.

THE DIFFICULTY IN CONSTRUING THE SECTION ARISES MAINLY FROM THE APPARENT CONFLICT BETWEEN THE PHRASE "IS RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS" APPEARING IN THE FIRST PORTION OF THE SECTION AND THE PROVISION IN THE SECOND PORTION THEREOF THAT IF AN OFFICER IS RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON HIS OWN REQUEST OR BY REASON OF DISCIPLINARY ACTION BY THE SECRETARY OF WAR, THE LUMP SUM SHALL BE PRORATED "FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE.' IF, AS MIGHT BE ADDUCED FROM THE FIRST PORTION OF THE SECTION, THE RIGHT TO ANY LUMP-SUM PAYMENT ACCRUES ONLY UPON RELEASE FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THE PROVISION RESPECTING THE PRORATION OF THE LUMP SUM NECESSARILY IS REQUIRED TO BE CONSTRUED AS HAVING REFERENCE TO FRACTIONAL PARTS OF A YEAR AFTER COMPLETION OF THE FIRST YEAR OF ACTIVE SERVICE IN ORDER TO HARMONIZE THE TWO PROVISIONS. BUT SUCH CONSTRUCTION WOULD SEEM TO DISREGARD THE SPECIFIC PROVISION OF THE STATUTE THAT UNDER CERTAIN CONDITIONS THE LUMP SUM SHALL BE PRORATED FOR "FRACTIONAL PARTS" OF "EACH" YEAR OF SUCH ACTIVE SERVICE, WHICH WOULD INCLUDE FRACTIONAL PARTS OF THE FIRST YEAR AS WELL AS SUBSEQUENT YEARS. HOWEVER, IT APPEARS THAT THE STATUTE PROPERLY IS SUSCEPTIBLE OF A CONSTRUCTION WHEREBY ITS PROVISIONS ARE BROUGHT INTO HARMONY AND EFFECT IS GIVEN TO EACH WORD THEREIN. THAT IS, THE FIRST PORTION OF THE SECTION REASONABLY MAY BE REGARDED AS DIRECTING THE PAYMENT OF FIXED SUM INCREMENTS TO AIR CORPS RESERVE OFFICERS WHO HAVE BEEN ON ACTIVE DUTY FOR ONE OR MORE COMPLETE YEARS, WITHOUT REGARD TO THE REASON FOR THEIR RELEASE FROM ACTIVE DUTY, RATHER THAN AS PRESCRIBING, AS A CONDITION PRECEDENT TO PAYMENT IN ANY CASE, THAT SUCH ACTIVE DUTY BE CONTINUOUS FOR "ONE OR MORE YEARS.' IT IS TO BE NOTED, IN SUCH CONNECTION THAT THE STATUTE USES THE TERM "ONE OR MORE YEARS," AND NOT "ONE YEAR OR MORE," SPEAKING, AT THAT POINT, OF FULLY COMPLETED YEARLY INCREMENTS, AS A BASIS FOR PAYING THE FIXED $500 INCREMENTS, WITHOUT REFERENCE TO THE REASON FOR RELEASE FROM ACTIVE DUTY. PROVISION THUS HAVING BEEN MADE FOR PAYMENT OF THE WMP SUM FOR "EACH COMPLETE YEAR" OF SERVICE, IRRESPECTIVE OF THE REASON FOR THE OFFICER'S RELEASE, THE SECOND PORTION OF THE SECTION RESPECTING THE PRORATING OF SUCH LUMP-SUM PAYMENTS FOR ,FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE SERVICE" IS SPECIALLY DIRECTED TO THOSE CASES WHERE COMPLETE YEARS HAVE NOT BEEN SERVED BECAUSE OF RELEASE FROM ACTIVE DUTY OTHERWISE THAN UPON THE REQUEST OF THE OFFICER OR AS A RESULT OF INEFFICIENT OR UNSATISFACTORY SERVICE, AND, IN THAT RESPECT, THE WORDS "OF SUCH ACTIVE SERVICE" ARE MORE REASONABLY TO BE VIEWED AS RELATING BACK TO THE MORE IMMEDIATELY PRECEDING PHRASE "ACTIVE SERVICE AS SUCH OFFICER," RATHER THAN TO THE MORE REMOTE PHRASE "ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS.'

THE CONGRESS HAVING PROVIDED SPECIFICALLY FOR PAYMENT OF THE LUMP SUM ON A PRORATED BASIS IN CASES WHERE OFFICERS, THROUGH NO FAULT OF THEIR OWN, ARE PREVENTED FROM COMPLETING FULL YEARS OF SERVICE, THERE APPEARS NO REASONABLE BASIS TO ATTRIBUTE TO THE CONGRESS AN INTENT TO LIMIT THE OPERATION OF SUCH PROVISION TO THOSE INSTANCES WHERE OFFICERS ARE RELEASED BETWEEN ANNIVERSARY DATES OF THEIR APPOINTMENTS AFTER HAVING SERVED ONE FULL YEAR. ON THE CONTRARY, SINCE THE CONSIDERATIONS WHICH PROMPTED THE AUTHORIZATION OF PRORATED PAYMENTS TO SUCH OFFICERS WOULD BE PRESENT IN THE CASES OF OFFICERS RELEASED FOR REASONS BEYOND THEIR CONTROL BEFORE THE EXPIRATION OF THE FIRST YEAR OF ACTIVE SERVICE, THE SAME AS IN THE CASES OF OFFICERS RELEASED THEREAFTER, IT IS REASONABLE TO ASSUME, IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY, THAT THE LEGISLATIVE INTENT WAS TO PROVIDE THE BENEFIT OF PRORATED PAYMENTS TO ALL SUCH OFFICERS. MOREOVER, WHEN IT IS CONSIDERED THAT SUCH LUMP-SUM PAYMENTS WERE AUTHORIZED, NOT AS A MERE GRATUITY, BUT AS IN THE NATURE OF ADDITIONAL COMPENSATION TO THOSE WHO OBLIGATED THEMSELVES TO SERVE PROTRACTED PERIODS ON ACTIVE DUTY AS AIR CORPS RESERVE OFFICERS, THE CONCLUSION APPEARS WARRANTED THAT THE CONGRESS DID NOT INTEND THAT SUCH BENEFIT SHOULD BE DENIED THOSE OFFICERS WHO, THROUGH NO FAULT OF THEIR OWN, WERE PREVENTED FROM COMPLETING ANY PARTICULAR PERIOD OF ACTIVE DUTY. OTHERWISE, ONE OF THE PRINCIPAL CONTEMPLATED EFFECTS OF THE PROVISION FOR SUCH ADDITIONAL PAYMENTS--- THE STIMULATION OF ENROLLMENT IN THE AVIATION CADET TRAINING PROGRAM--- WOULD HAVE BEEN LESSENED MATERIALLY, SINCE ULTIMATE ENTITLEMENT TO THE PAYMENT WOULD DEPEND, NOT UPON THE OFFICER'S WILLINGNESS AND ABILITY TO SERVE, BUT UPON THE MERE CHANCE THAT HE MIGHT NOT BECOME SO INCAPACITATED AS TO REQUIRE HIS RELEASE FROM ACTIVE DUTY BEFORE THE EXPIRATION OF HIS FIRST YEAR OF SUCH DUTY. CF. DECISION OF DECEMBER 5, 1944, B-44390, 24 COMP. GEN. 423.

WHILE THE STATUTE WAS AMENDED TO PROVIDE, INTER ALIA, FOR THE PRORATING OF THE LUMP-SUM PAYMENTS, SEVERAL MONTHS BEFORE THE ENTRY OF THE UNITED STATES INTO THE PRESENT WAR, DOUBTLESS THE CONGRESS WAS NOT UNMINDFUL OF THE EFFECT OF ITS PROVISIONS IN THE EVENT OF WAR, WHEN, AS IN THE CASE OF YOUR SON, THE ACTIVE DUTY PERFORMED BY AIR CORPS RESERVE OFFICERS WOULD INVOLVE ACTUAL COMBAT DUTY. UNDER SUCH CIRCUMSTANCES, IT CANNOT BE PRESUMED THAT THE CONGRESS INTENDED TO AUTHORIZE THE PRORATED PAYMENTS ONLY IN THE CASES OF THOSE OFFICERS WHO FORTUITOUSLY ESCAPED INCAPACITATING INJURY OR DEATH FOR AT LEAST ONE YEAR OF THEIR ACTIVE SERVICE.

ACCORDINGLY, I HAVE TO ADVISE THAT THE PRORATED LUMP-SUM PAYMENT CLAIMED ON ACCOUNT OF THE SERVICE OF YOUR SON WILL BE ALLOWED, AND THAT A SETTLEMENT IN YOUR FAVOR FOR THE AMOUNT FOUND DUE WILL ISSUE IN DUE COURSE, WITHOUT UNNECESSARY DELAY.