B-149989, NOVEMBER 8, 1962, 42 COMP. GEN. 242

B-149989: Nov 8, 1962

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PAY RECEIVED PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - AMOUNT PAYABLE - MORE THAN ONE READJUSTMENT PAYMENT IN THE COMPUTATION OF READJUSTMENT PAY PROVIDED FOR MEMBERS OF RESERVE COMPONENTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY UNDER SECTION 256 (A) OF THE ARMED FORCES RESERVE ACT OF 1952 (50 U.S.C. 1016 (A) ( AS AMENDED BY THE ACT OF JUNE 28. THE REQUIREMENT THAT READJUSTMENT PAYMENTS TO MEMBERS OF RESERVE COMPONENTS INVOLUNTARILY RELEASED FROM ACTIVE DUTY EXCLUDE ANY PRIOR PERIOD FOR WHICH READJUSTMENT PAY WAS RECEIVED "UNDER ANY OTHER PROVISION OF LAW" ADDED TO SECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952 BY THE ACT OF JUNE 28. WHETHER THAT PAYMENT WAS MADE PRIOR TO OR SUBSEQUENT TO THE 1962 AMENDATORY ACT.

B-149989, NOVEMBER 8, 1962, 42 COMP. GEN. 242

PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - AMOUNT PAYABLE - EXCLUSION OF SERVICE FOR WHICH SEVERANCE, ETC., PAY RECEIVED PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - AMOUNT PAYABLE - MORE THAN ONE READJUSTMENT PAYMENT IN THE COMPUTATION OF READJUSTMENT PAY PROVIDED FOR MEMBERS OF RESERVE COMPONENTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY UNDER SECTION 256 (A) OF THE ARMED FORCES RESERVE ACT OF 1952 (50 U.S.C. 1016 (A) ( AS AMENDED BY THE ACT OF JUNE 28, 1962, ALL PRIOR PERIODS OF SERVICE FOR WHICH THE MEMBER RECEIVED SEVERANCE PAY, SEPARATION PAY, OR RELEASE FROM ACTIVE DUTY PAY MUST BE EXCLUDED, THE LEGISLATIVE HISTORY OF THE 1962 AMENDATORY ACT, WHICH SUBSTITUTED THE TERM ,READJUSTMENT PAY" FOR THE TERM "SEVERANCE PAY" EVIDENCING THE SYNONYMITY OF THE TERMS, AND THE INTENT TO PRECLUDE IN THE COMPUTATION OF THE READJUSTMENT PAY THE COUNTING OF ANY TYPE OF SEVERANCE PAY, SEPARATION PAY, OR RELEASE FROM ACTIVE DUTY PAY. THE REQUIREMENT THAT READJUSTMENT PAYMENTS TO MEMBERS OF RESERVE COMPONENTS INVOLUNTARILY RELEASED FROM ACTIVE DUTY EXCLUDE ANY PRIOR PERIOD FOR WHICH READJUSTMENT PAY WAS RECEIVED "UNDER ANY OTHER PROVISION OF LAW" ADDED TO SECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952 BY THE ACT OF JUNE 28, 1962, DOES NOT CHANGE SECTION 265 (F); THEREFORE, UNDER THE PROVISIONS OF SECTION 265 (F) A PERIOD COVERED BY AN EARLIER READJUSTMENT PAYMENT UNDER SECTION 265 (A), WHETHER THAT PAYMENT WAS MADE PRIOR TO OR SUBSEQUENT TO THE 1962 AMENDATORY ACT, MUST BE DEDUCTED IN MAKING A SECOND READJUSTMENT PAYMENT, UNLESS THE AMOUNT OF THE EARLIER PAYMENT IS REFUNDED PRIOR TO THE SECOND READJUSTMENT PAYMENT.

TO THE SECRETARY OF DEFENSE, NOVEMBER 8, 1962:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 25, 1962, FROM ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER MEMBERS OF RESERVE COMPONENTS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER JUNE 28, 1962, ARE ENTITLED TO "READJUSTMENT PAY" COMPUTED AS PRESCRIBED IN THE ACT OF JUNE 28, 1962, PUBLIC LAW 87-509, 76 STAT. 120, 50 U.S.C. 1016, WITHOUT DEDUCTION OF SERVICE FOR WHICH SEVERANCE PAY, SEPARATION PAY, OR RELEASE-FROM-ACTIVE-DUTY PAY PREVIOUSLY HAS BEEN RECEIVED. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 311 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTIONS ON WHICH A DECISION IS REQUESTED ARE AS FOLLOWS:

1. DOES THE TERM "READJUSTMENT PAY" CONTAINED IN THE THIRD SENTENCE OF SECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952 (50 U.S.C. 1016 (A) (, AS AMENDED, INCLUDE ALL TYPES OF SEVERANCE PAY, SEPARATION PAY, AND RELEASE-FROM-ACTIVE-DUTY PAY PAID TO MILITARY MEMBERS?

2. DOES THE PHRASE "UNDER ANY OTHER PROVISION OF LAW" CONTAINED IN THE SAME SENTENCE INCLUDE THE PROVISIONS OF SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952 BEFORE THEIR AMENDMENT BY THE ACT OF 28 JUNE 1962, PUBLIC LAW 87-509, 76 STAT. 120?

SECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, 50 U.S.C. 1016 (A), PROVIDED FOR A LUMP-SUM "READJUSTMENT PAYMENT" TO MEMBERS OF RESERVE COMPONENTS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER HAVING COMPLETED AT LEAST 5 YEARS OF CONTINUOUS ACTIVE DUTY EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN 30 DAYS. THAT SECTION WAS AMENDED BY PUBLIC LAW 87-509, THE STATED PURPOSE OF THE AMENDMENT BEING TO PROVIDE EQUITY BETWEEN REGULAR AND RESERVE OFFICERS IN REGARD TO THE AMOUNT OF READJUSTMENT PAY OR SEVERANCE PAY PAYABLE INCIDENT TO THEIR INVOLUNTARY RELEASE FROM ACTIVE DUTY. SEE H.REPT. NO. 1007 AND S.REPT. NO. 1096, 87TH CONG., 1ST SESS., ON H.R.8773, ENACTED AS PUBLIC LAW 87-509.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 87-509, SECTION 265 (A) PROVIDED THAT ANY PRIOR PERIOD FOR WHICH "SEVERANCE PAY" HAS BEEN RECEIVED "UNDER ANY OTHER PROVISION OF LAW" SHALL BE EXCLUDED IN THE COMPUTATION OF THE AMOUNT DUE FOR READJUSTMENT PAY. SECTION 1 (1) OF PUBLIC LAW 87-509 SUBSTITUTED THE TERM "READJUSTMENT PAY" FOR "SEVERANCE PAY.' IN ANSWER TO QUESTION 5 IN OUR DECISION OF AUGUST 17, 1956, 36 COMP. GEN. 129, 135, WE HELD THAT THE PROVISIONS OF SECTION 265, AS ADDED BY THE 1956 ACT, 50 U.S.C. 1016,

WHEN CONSIDERED IN THE LIGHT OF THEIR LEGISLATIVE HISTORY, EVIDENCE AN INTENT TO PRECLUDE, IN THE COMPUTATION OF THE READJUSTMENT PAY, THE COUNTING OF ANY PERIOD FOR WHICH ANY TYPE OF SEVERANCE PAY, SEPARATION PAY, OR RELEASE FROM DUTY PAY HAS BEEN RECEIVED.

WE HAVE NO REASON TO DOUBT THAT CONGRESS, IN ENACTING PUBLIC LAW 87 509, WAS AWARE OF OUR DECISION AND, HAD IT INTENDED TO RESTRICT THE APPLICATION THEREOF, IT WOULD HAVE SO STATED.

IN OUR OPINION IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF H.R.8773,87TH CONG. AND PREDECESSOR BILLS, THAT THE TERM "READJUSTMENT PAY" AS USED IN THE STATUTE IS SYNONYMOUS WITH THE TERM ,SEVERANCE PAY.' SEE, PARTICULARLY, PAGE 5 OF S.REPT. NO. 1096 AND PAGES 1, 5, AND 8 OF H.REPT. NO. 1007 AND PAGE 3 OF THE SENATE HEARINGS ON H.R.8773. THE SYNONYMITY OF THE TERMS IS FURTHER ESTABLISHED BY USAGE IN THE OFFICIAL REPORTS AND TESTIMONY OF WITNESSES OF THE DEPARTMENT OF DEFENSE, WHICH SPONSORED THE LEGISLATION, AND OF THE WITNESSES AND MEMBERS OF THE COMMITTEES THAT CONSIDERED THE LEGISLATION. INASMUCH AS THERE IS NO PROVISION OF LAW WHICH AUTHORIZES PAYMENT OF ,READJUSTMENT PAY" DENOMINATED AS SUCH, OTHER THAN SECTION 265 OF THE ARMED FORCES RESERVE ACT, WHICH PUBLIC LAW 87-509 AMENDS, THE PHRASE "UNDER ANY OTHER PROVISION OF LAW" WOULD BE MEANINGLESS IF IT WERE RESTRICTED TO "READJUSTMENT PAY" DENOMINATED AS SUCH, RATHER THAN TO SEPARATION OR SEVERANCE PAY GENERALLY.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

PRIOR TO THE 1962 AMENDMENT, SECTION 265 (A) CONTAINED NO PROVISION FOR EXCLUDING IN THE COMPUTATION OF THE AMOUNT OF THE READJUSTMENT PAYMENT ANY PRIOR PERIOD FOR WHICH READJUSTMENT PAY HAS BEEN MADE. THE PROVISION FOR DEDUCTION OF THAT PERIOD WAS CONTAINED IN SECTION 265 (F), 50 U.S.C. 1016 (F), WHICH HAS NOT BEEN AMENDED OR REPEALED. HENCE, THE 1962 AMENDMENT OF SECTION 265 (A) SHOULD BE VIEWED AS NOT INTENDING TO CHANGE SECTION 265 (F). UNDER THE PROVISIONS OF SECTION 265 (F) A PERIOD COVERED BY AN EARLIER READJUSTMENT PAYMENT UNDER SECTION 265 (A), WHETHER THAT PAYMENT WAS MADE UNDER THE 1956 ACT OR THE 1962 ACT, MUST BE DEDUCTED IN MAKING A SECOND READJUSTMENT PAYMENT UNDER SECTION 265 UNLESS THE AMOUNT OF THE EARLIER PAYMENT IS REFUNDED PRIOR TO PAYMENT OF THE SECOND READJUSTMENT PAYMENT. QUESTION 2 IS ANSWERED ACCORDINGLY.