B-128741, AUGUST 17, 1956, 36 COMP. GEN. 129

B-128741, AUGUST 17, 1956, 36 COMP. GEN. 129

MILITARY PERSONNEL - RESERVES - INVOLUNTARY RELEASE FROM DUTY - READJUSTMENT PAYMENTS THE REQUIREMENT IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, THAT MEMBERS OF THE RESERVE COMPONENTS COMPLETE FIVE YEARS OF CONTINUOUS ACTIVE SERVICE TO QUALIFY FOR A LUMP-SUM READJUSTMENT PAYMENT ON INVOLUNTARY RELEASE FROM DUTY, PRECLUDES THE INCLUSION OF SHORT PERIODS OF INACTIVE SERVICE BETWEEN TWO OR MORE LONGER PERIODS OF ACTIVE SERVICE. MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES MAY NOT HAVE PERIODS OF ACTIVE DUTY FOR TRAINING INCLUDED IN THE COMPUTATION OF THE FIVE-YEAR PERIOD OF CONTINUOUS ACTIVE DUTY PRESCRIBED IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, FOR ELIGIBILITY FOR LUMP-SUM READJUSTMENT PAYMENTS ON INVOLUNTARY RELEASE FROM ACTIVE DUTY. ALTHOUGH SERVICE IN A REGULAR COMPONENT OF THE ARMED FORCES MAY NOT BE COMBINED WITH SERVICE IN A RESERVE COMPONENT TO COMPLETE THE FIVE YEAR PERIOD OF CONTINUOUS SERVICE REQUIRED TO QUALIFY FOR THE READJUSTMENT PAYMENT PROVIDED BY SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, REGULAR ACTIVE SERVICE MAY BE COUNTED IN COMPUTING THE AMOUNT OF READJUSTMENT PAY. MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES MAY HAVE ACTIVE RESERVE SERVICE IN AN ENLISTED STATUS AND IN AN OFFICER STATUS COMBINED TO COMPLETE THE FIVE-YEAR PERIOD OF CONTINUOUS ACTIVE DUTY TO QUALIFY FOR READJUSTMENT PAY PROVIDED BY SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956. IN THE COMPUTATION OF READJUSTMENT PAY FOR MEMBERS OF RESERVE COMPONENTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY, ALL PRIOR PERIODS OF SERVICE FOR WHICH THE MEMBER HAS RECEIVED ANY TYPE OF SEVERANCE PAY, SEPARATION PAY, OR RELEASE FROM DUTY PAY MUST BE EXCLUDED. A MEMBER OF A RESERVE COMPONENT WHO HAS VOLUNTEERED FOR AN ADDITIONAL TOUR OF DUTY WHICH THE MILITARY SERVICE CONCERNED REFUSED TO GRANT, AND WHO THEN REQUESTS AND IS GRANTED RELEASE FROM ACTIVE DUTY PRIOR TO THE COMPLETION OF HIS TOUR OF DUTY, MAY NOT RECEIVE THE READJUSTMENT PAY PROVIDED BY THE ACT OF JULY 9, 1956, WHICH ADDED SECTION 265 TO THE ARMED FORCES RESERVE ACT OF 1952.

TO THE SECRETARY OF DEFENSE, AUGUST 17, 1956:

REFERENCE IS MADE TO LETTER OF JULY 25, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON CERTAIN QUESTIONS ARISING UNDER PUBLIC LAW 676, 84TH CONGRESS, APPROVED JULY 9, 1956, 70 STAT. 517, 50 U.S.C. SUPP. III, 1016 (A) AS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 148 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER THE ENACTMENT OF THIS SECTION AND AFTER HAVING COMPLETED IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS, AS EITHER AN OFFICER, WARRANT OFFICER, OR ENLISTED PERSON, IS ENTITLED TO A LUMP-SUM READJUSTMENT PAYMENT COMPUTED ON THE BASIS OF ONE-HALF OF ONE MONTH'S BASIC PAY IN THE GRADE IN WHICH HE IS SERVING AT THE TIME OF RELEASE FROM ACTIVE DUTY FOR EACH YEAR OF ACTIVE SERVICE ENDING AT THE CLOSE OF THE EIGHTEENTH YEAR. FOR THE PURPOSES OF COMPUTING THE AMOUNT OF READJUSTMENT PAYMENT (1) A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED, AND (2) ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW SHALL BE EXCLUDED. * * *

(B) THE FOLLOWING PERSONS ARE NOT ENTITLED TO ANY PAYMENTS UNDER THIS SECTION:

(1) A PERSON WHO IS RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST.

(2) A PERSON WHO IS RELEASED FROM ACTIVE DUTY FOR TRAINING.

(5) A PERSON WHO UPON RELEASE FROM ACTIVE DUTY IS IMMEDIATELY ELIGIBLE FOR SEVERANCE PAY BASED ON HIS MILITARY SERVICE UNDER ANY OTHER PROVISION OF LAW. HOWEVER, SUCH A PERSON MAY ELECT TO RECEIVE EITHER READJUSTMENT PAY UNDER THIS SECTION OR SEVERANCE PAY, BUT NOT BOTH.

(E) A MEMBER OF A RESERVE COMPONENT WHO ON THE EFFECTIVE DATE OF THIS SECTION IS SERVING ON ACTIVE DUTY UNDER AN AGREEMENT AUTHORIZED BY SECTION 235 OF THIS ACT, AND WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY BEFORE COMPLETING HIS AGREED TERM OF SERVICE, MAY ELECT, IN LIEU OF SEPARATION PAYMENT UNDER THAT SECTION, TO RECEIVE READJUSTMENT PAY UNDER THIS SECTION.

(H) FOR THE PURPOSE OF THIS SECTION, THE TERM "INVOLUNTARY RELEASE" SHALL INCLUDE RELEASE UNDER CONDITIONS WHEREIN A MEMBER OF A RESERVE COMPONENT, WHO HAS COMPLETED A TOUR OF DUTY, VOLUNTEERS FOR AN ADDITIONAL TOUR OF DUTY AND THE SERVICE CONCERNED DOES NOT EXTEND OR ACCEPT THE VOLUNTEER REQUEST OF THE MEMBER FOR THE ADDITIONAL TOUR.

THE FIRST QUESTION ON WHICH A DECISION IS REQUESTED IS AS FOLLOWS:

1. UNDER THE PROVISIONS OF THE ACT OF 9 JULY 1956, PL 676, 84TH CONGRESS, WHICH ADDED SECTION 265 TO THE ARMED FORCES RESERVE ACT OF 1952 (66 STAT. 481), DOES THE LANGUAGE "EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS," REQUIRE THAT THE FIVE YEARS OF CONTINUOUS ACTIVE DUTY BE IN ADDITION TO THE BREAKS OF SERVICE OF NOT MORE THAN THIRTY DAYS?

SINCE THE STATUTE REQUIRES THAT THE RESERVIST PERFORM "AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE SERVICE" IN ORDER TO QUALIFY FOR ITS BENEFITS, IT IS OUR VIEW THAT SHORT PERIODS OF INACTIVE SERVICE BETWEEN TWO OR MORE LONGER PERIODS OF ACTIVE SERVICE MAY NOT BE COUNTED IN THE COMPUTATION OF THE FIVE-YEAR PERIOD. THE WORDS "EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS" APPARENTLY WERE INCLUDED IN THE ACT BECAUSE OF THE SUGGESTION CONTAINED IN OUR LETTER OF NOVEMBER 17, 1955, B-125920, TO THE CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, THAT TO PERMIT THE COUNTING OF TWO PERIODS OF ACTIVE DUTY SHORTER THAN FIVE YEARS, WHEN SEPARATED BY BUT A FEW DAYS, WOULD PROBABLY BETTER EFFECTUATE THE APPARENT INTENT OF THE CONGRESS, THAN THE LANGUAGE THEN CONTEMPLATED TO ACCOMPLISH THAT INTENT. THE STATUTE APPEARS TO PERMIT EACH BREAK IN SERVICE TO BE AS LONG AS 30 DAYS. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

2. UNDER THE PROVISIONS OF PL 676, SUPRA, MAY A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES COUNT PERIODS OF ACTIVE DUTY FOR TRAINING IN DETERMINING:

(A) ELIGIBILITY TO RECEIVE LUMP-SUM READJUSTMENT PAY, WITH RESPECT TO COMPLETING "IMMEDIATELY PRIOR TO SUCH RELEASE AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS?

(B) THE MULTIPLIER, I.E. EACH YEAR OF ACTIVE SERVICE, TO BE USED IN COMPUTING THE AMOUNT OF READJUSTMENT PAY DUE?

WHILE THE TERM "ACTIVE DUTY" HAS IN SOME CONTEXTS, BEEN CONSIDERED BROAD ENOUGH TO INCLUDE ACTIVE DUTY FOR TRAINING, IT APPEARS TO HAVE BEEN USED IN A MORE RESTRICTED SENSE IN THE ARMED FORCES RESERVE ACT OF 1952. SECTION 101 (50 U.S.C. 901 (B) ( OF THAT ACT STATES THAT " WHEN USED IN THIS ACT * * * " ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, OTHER THAN ACTIVE DUTY FOR TRAINING.' THERE APPEARS TO BE NOTHING IN THE ACT OF JULY 9, 1956, WHICH INDICATES AN INTENT TO CHANGE THAT DEFINITION AND THE PROVISION OF SECTION 265 (B) (2) OF THE 1952 ACT, AS ADDED BY THE 1956 ACT, WHICH BARS PAYMENT TO " A PERSON WHO IS RELEASED FROM ACTIVE DUTY FOR TRAINING," IS IN LINE WITH SECTION 101 OF THE ACT. THE TERM "ACTIVE SERVICE" ALSO APPEARING IN SECTION 265 IS TAKEN TO BE SYNONYMOUS WITH THE TERM "ACTIVE DUTY" AS SO DEFINED IN SECTION 101. QUESTIONS 2 (A) AND 2 (B) ARE, THEREFORE, ANSWERED IN THE NEGATIVE.

3. UNDER THE PROVISIONS OF PL 676, SUPRA, MAY A MEMBER OF A RESERVE COMPONENT INVOLUNTARILY RELEASED FROM ACTIVE DUTY, COMBINE SERVICE IN A REGULAR COMPONENT WITH SERVICE IN A RESERVE COMPONENT IN DETERMINING (A) ELIGIBILITY TO READJUSTMENT PAY, WITH RESPECT TO COMPLETING FIVE YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT FOR BREAKS IN SERVICE OF NOT MORE THAN THIRTY DAYS AND (B) THE MULTIPLIER TO BE USED IN COMPUTING THE AMOUNT OF READJUSTMENT PAY?

IN A DISCUSSION OF SUCH FIVE-YEAR QUALIFYING PERIOD APPEARING ON PAGE 4533 OF TRANSCRIPT OF HEARINGS OF JULY 13, 1955, BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 6725, 84TH CONGRESS (A PREDECESSOR OF H.R. 9952 WHICH BECAME THE ACT OF JULY 9, 1956), THE STATEMENT WAS MADE THAT "THIS ONLY APPLIES TO MEN ON ACTIVE DUTY, FULL TIME ACTIVE DUTY, AS A CAREER RESERVIST.' A PERSON WHO HAS SERVED AS A MEMBER OF A REGULAR COMPONENT OF THE ARMED SERVICES, ORDINARILY DOES NOT REENTER THE SERVICE AS A RESERVIST FOR THE PURPOSE OF MAKING A CAREER OF ACTIVE MILITARY SERVICE. USUALLY, IT IS BELIEVED, SUCH REENTRY IS ACCOMPLISHED BECAUSE OF A DESIRE TO MAINTAIN A RESERVE STATUS REQUIRING ONLY A MINIMUM AMOUNT OF ACTIVE DUTY. HE MAY BE ORDERED TO ACTIVE DUTY AFTER BECOMING A MEMBER OF A RESERVE COMPONENT, BUT UNTIL HE SERVES CONTINUOUSLY ON ACTIVE DUTY FOR AT LEAST FIVE YEARS, IT WOULD SEEM THAT HE HAS NOT DEMONSTRATED AN INTENT TO MAKE A CAREER OF ACTIVE MILITARY SERVICE SO AS TO BE ENTITLED TO THE FINANCIAL PROTECTION AFFORDED BY THE 1956 ACT, IN THE EVENT HIS ACTIVE MILITARY CAREER IS TERMINATED WITHOUT HIS FAULT. WHILE IT WAS SUGGESTED IN OUR LETTER OF NOVEMBER 17, 1955, B- 125920, THAT THE LANGUAGE OF SUBSECTION (A) OF THE BILL THEN UNDER CONSIDERATION "MIGHT BE CONSTRUED" AS PERMITTING REGULAR AND RESERVE SERVICE TO BE COMBINED FOR THE PURPOSES OF QUALIFYING FOR READJUSTMENT PAY, THE FAILURE OF THE CONGRESS TO CLARIFY THE POINT DOES NOT NECESSARILY ESTABLISH ITS INTENT TO ADOPT THAT EXPRESSION AS INDICATING THE PROPER CONSTRUCTION OF THE LANGUAGE USED. IN FACT, THAT LANGUAGE REASONABLY MAY BE CONSIDERED AS MEANING THAT THE FIVE YEARS OF SERVICE MUST BE SERVICE AS A MEMBER OF A RESERVE COMPONENT AND, IN THE LIGHT OF THE ENTIRE ACT AND ITS LEGISLATIVE HISTORY, IT IS OUR VIEW THAT THE CONGRESS INTENDED THAT IT SHOULD BE SO CONSIDERED.

THE LEGISLATIVE HISTORY OF THE 1956 ACT STRONGLY INDICATES THAT WHILE THE CONGRESS INTENDED TO STRICTLY CIRCUMSCRIBE THE ACTIVE SERVICE WHICH MAY BE COUNTED FOR THE PURPOSE OF QUALIFYING FOR THE READJUSTMENT PAY, IT DID NOT INTEND THAT THE ACTIVE SERVICE CREDITABLE IN COMPUTING THE AMOUNT OF READJUSTMENT PAY SHOULD BE NARROWLY CIRCUMSCRIBED. SUCH HISTORY EVIDENCES AN INTENT THAT AFTER A PERSON HAS QUALIFIED FOR THE READJUSTMENT PAY, ALL ACTIVE SERVICE, INCLUDING THAT SERVED IN WORLD WAR I AND WORLD WAR II, IS TO BE USED IN COMPUTING THE AMOUNT OF READJUSTMENT PAY. SEE DISCUSSION ON PAGES 7036 AND 7037 OF THE TRANSCRIPT OF HEARINGS OF MARCH 13, 1956, BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 6725, MENTIONED ABOVE. AND ON PAGE 7041 OF THE SAME TRANSCRIPT, MEMBERS OF THE COMMITTEE WERE ADVISED BY A REPRESENTATIVE OF THE DEPARTMENT OF DEFENSE THAT A DISCHARGED REGULAR ARMY ENLISTED MAN WHO REENTERS THE ARMY AS A RESERVE OFFICER WOULD RECEIVE READJUSTMENT PAY "FOR HIS TIME AS A REGULAR ARMY ENLISTED MAN.' ACCORDINGLY, QUESTION 3 (A) IS ANSWERED IN THE NEGATIVE AND QUESTION 3 (B) IS ANSWERED IN THE AFFIRMATIVE. IT MAY BE NOTED HERE, WITH REFERENCE TO THE ANSWER TO QUESTION 2 (B), ABOVE, THAT SERVICE IN A REGULAR COMPONENT FALLS WITHIN THE DEFINITION OF "ACTIVE DUTY" STATED IN SECTION 101 OF THE 1952 ACT.

4. PURSUANT TO PL 676, SUPRA, MAY A MEMBER OF A RESERVE COMPONENT COMBINE ENLISTED SERVICE WITH OFFICER OR WARRANT OFFICER SERVICE, OR OFFICER SERVICE WITH WARRANT OFFICER SERVICE, IN DETERMINING ELIGIBILITY TO RECEIVE READJUSTMENT PAY, WITH RESPECT TO COMPLETING FIVE YEARS OF CONTINUOUS ACTIVE DUTY?

WHILE A LITERAL READING OF THE LANGUAGE " A MEMBER * * * HAVING COMPLETED * * * FIVE YEARS OF CONTINUOUS ACTIVE DUTY * * * AS EITHER AN OFFICER, WARRANT OFFICER, OR ENLISTED PERSON, IS ENTITLED * * *.' FURNISHES SOME SUPPORT FOR THE VIEW THAT THE CONGRESS INTENDED THAT THE QUALIFYING PERIOD OF AN OFFICER, WARRANT OFFICER, OR ENLISTED MAN MUST BE FIVE YEARS' ACTIVE SERVICE SOLELY AS AN OFFICER, WARRANT OFFICER, OR ENLISTED MAN, RESPECTIVELY, SUCH CONCLUSION APPEARS CONTRARY TO THE INTENT AND PURPOSE OF THE 1956 ACT, SINCE FIVE YEARS COMBINED ACTIVE RESERVE SERVICE AS AN ENLISTED MAN AND AS AN OFFICER WOULD ESTABLISH AN INTENT TO MAKE A CAREER OF ACTIVE RESERVE SERVICE, AS EFFECTIVELY AS WOULD CONTINUOUS SERVICE AS AN OFFICER OR AS AN ENLISTED MAN SEPARATELY. IN THE CIRCUMSTANCES, AND SINCE THE DISCUSSION OF THIS MATTER IN THE ABOVE-MENTIONED HEARINGS OF MARCH 13, 1956, PROVIDES STRONG SUPPORT FOR AN AFFIRMATIVE ANSWER TO QUESTION 4, THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE.

5. FOR THE PURPOSES OF COMPUTING THE AMOUNT OF READJUSTMENT PAYMENT IS IT REQUIRED THAT PRIOR PERIODS OF SERVICE FOR WHICH PAYMENTS HAVE BEEN RECEIVED UNDER THE PROVISIONS OF (A) SECTION 235 OF THE ARMED FORCES RESERVE ACT, SUPRA, OR (B) THE ACTS OF 16 JUNE 1936 AND 4 AUGUST 1942, AS AMENDED (10 U.S.C. 300A AND 34 U.S.C. 850K), BE EXCLUDED?

SECTION 235 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 490, 50 U.S.C. 963 (B), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANY MEMBER INVOLUNTARILY RELEASED FROM ACTIVE DUTY PRIOR TO THE EXPIRATION OF THE PERIOD OF SERVICE UNDER HIS AGREEMENT * * * SHALL BE ENTITLED TO RECEIVE AN AMOUNT EQUAL TO ONE MONTH'S PAY AND ALLOWANCES MULTIPLIED BY THE NUMBER OF YEARS (INCLUDING ANY PRO RATA PART THEREOF) REMAINING AS THE UNEXPIRED PERIOD OF HIS AGREEMENT FOR ACTIVE DUTY, SUCH AMOUNT TO BE IN ADDITION TO ANY PAY AND ALLOWANCES WHICH HE MAY OTHERWISE BE ENTITLED TO RECEIVE. * * *

SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED 10 U.S.C. 300A, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

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 * * * THE LUMP-SUM PAYMENTS AUTHORIZED BY THIS SECTION SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS MAY OTHERWISE BE ENTITLED TO RECEIVE * * *.

SECTION 12 OF THE ACT OF AUGUST 4, 1942, AS AMENDED, 34 U.S.C. 850K, PROVIDES FOR THE PAYMENT OF A SIMILAR LUMP-SUM PAYMENT OF $500 PER YEAR TO CERTAIN AVIATION OFFICERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE.

SECTION 265 (A) (2), AS ADDED BY THE 1956 ACT, PROVIDES THAT FOR THE PURPOSE OF COMPUTING THE AMOUNT OF READJUSTMENT PAY "ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY HAS BEEN RECEIVED UNDER ANY OTHER PROVISION OF LAW SHALL BE EXCLUDED.'

IN ITS STRICTEST MEANING "SEVERANCE PAY" IS AN AMOUNT WHICH IS PAID IN CONNECTION WITH SEVERANCE FROM THE SERVICE WHEN THE MILITARY STATUS OF THE PERSON CONCERNED IS TERMINATED. IN SOME CASES SUCH PAY IS EXPRESSLY DENOTED AS "SEVERANCE PAY" AS IN SECTIONS 402 AND 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 820, 37 U.S.C. 272, 273, AND IN OTHER CASES THAT TERM IS NOT USED. SEE, FOR EXAMPLE, SECTION 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 860, 34 U.S.C. 410J (H). THERE ARE A NUMBER OF OTHER PAYMENTS OF A SIMILAR TYPE WHICH ARE AUTHORIZED IN CONNECTION WITH A CHANGE OF STATUS, EITHER PERMANENT OR TEMPORARY, AND IN MOST CASES THE AMOUNT OF THE PAYMENT IS BASED ON PAST SERVICE. HOWEVER, UNDER SECTION 235 OF THE ARMED FORCES RESERVE ACT OF 1952, THE AMOUNT OF THE PAYMENT THERE AUTHORIZED IS BASED ON THE UNEXPIRED PERIOD OF THE MEMBER'S AGREEMENT FOR ACTIVE DUTY. WHATEVER THEY MAY BE DESIGNATED, HOWEVER, ALL SUCH PAYMENTS HAVE THE GENERAL PURPOSE OF PROVIDING THE PERSON CONCERNED WITH A SUM OF MONEY TO AID HIM IN MAKING THE TRANSITION FROM MILITARY TO CIVILIAN LIFE.

THE QUESTION FOR DETERMINATION HERE IS WHETHER THE TERM "SEVERANCE PAY" IS USED IN SECTION 265 (A) (2) IN ITS NARROWEST CONNOTATION OR WHETHER IT REFERS TO A CLASS OF PAYMENTS. IN THE DEBATE ON H.R. 9952 ( PUBLIC LAW 676) ON THE FLOOR OF THE SENATE, SENATOR SALTONSTALL CITED, AMONG OTHER STATUTORY PROVISIONS, SECTION 235 OF THE ARMED FORCES RESERVE ACT OF 1952, AS A PRECEDENT FOR THE PAYMENT OF "SEVERANCE OR READJUSTMENT PAY.' STATED FURTHER THAT THE BILL CONTAINED PROVISIONS THAT WERE INTENDED TO PREVENT INEQUITABLE RECEIPT OF READJUSTMENT PAY BY THOSE WHO DID NOT DESERVE IT AND TO "AVOID DUPLICATE PAYMENTS FOR THE SAME SERVICE.' SEE PAGE 10314 OF THE CONGRESSIONAL RECORD, JUNE 29, 1956. ON THE FLOOR OF THE HOUSE, REPRESENTATIVE BROOKS CITED THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, 38 U.S.C. 691A, THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 663, 38 U.S.C. 901, NOTES, 688, 38 U.S.C. 1011-1016, AND THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 795, 34 U.S.C. 3A, NOTE, AS PRECEDENTS FOR THE PAYMENT OF READJUSTMENT PAY. PAGE 9089 OF THE CONGRESSIONAL RECORD, JUNE 12, 1956. IN OUR LETTER OF NOVEMBER 17, 1955, B-125920, TO THE CHAIRMAN OF THE SENATE COMMITTEE ON ARMED SERVICES, WE TREATED THE PAYMENTS INVOLVED IN THE STATUTES CITED IN QUESTION 5 AS EXAMPLES OF SEVERANCE PAY. WHEN A REPRESENTATIVE OF THE DEPARTMENT OF DEFENSE WAS ASKED BY A MEMBER OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, WHAT WAS MEANT BY "SEVERANCE PAY" AS USED IN H.R. 6725, 84TH CONGRESS, THE FOLLOWING DISCUSSION TOOK PLACE:

COLONEL JONES. THAT PARTICULAR CLAUSE AT THE TOP OF PAGE 3 IN THE BILL, READJUSTMENT PAY UNDER THIS SECTION OR SEVERANCE PAY, BUT NOT BOTH, MIGHT APPLY TO TWO TYPES OF SO-CALLED SEVERANCE PAY: FIRST, THE SEVERANCE PAY THAT AN INDIVIDUAL RECEIVES IF HE IS SEPARATED BY REASON OF PHYSICAL DISABILITY UNDER THE CAREER COMPENSATION ACT, THE SEVERANCE PAY HE WOULD RECEIVE UNDER THE CAREER COMPENSATION ACT, PROVIDED HE WAS BEING SEPARATED PRIOR TO ELIGIBILITY FOR RETIREMENT OR WITH A PERCENTAGE OF DISABILITY THAT WAS SO LOW AS NOT TO QUALIFY HIM FOR DISABILITY RETIREMENT AS SUCH.

WE ALSO HAVE A TYPE OF SEVERANCE PAY PROVIDED BY THE ARMED FORCES RESERVE ACT OF 1952 IN REFERENCE TO ACTIVE DUTY AGREEMENTS, WHEREIN IF AN INDIVIDUAL IS SERVING ON ACTIVE DUTY AGREEMENT UNDER THE PROVISION OF THE RESERVE ACT AND IS SEPARATED PRIOR TO THE TERMINATION OF THAT AGREEMENT PERIOD THAT HE IS SERVING UNDER, HE IS ENTITLED TO SEPARATION OR SEVERANCE PAY IN THE AMOUNT OF 1 MONTH'S ACTIVE DUTY PAY FOR EACH YEAR REMAINING IN THE AGREEMENT THAT MIGHT NOT HAVE BEEN COMPLETED BEFORE HE IS SEPARATED.

MR. DUCANDER. BUT THAT IS TAKEN CARE OF ON PAGE 4, IS IT NOT?

COLONEL JONES. THAT IS CORRECT. AND IT WOULD APPEAR TO ME OFFHAND -- AND I AM NOT A TECHNICAL EXPERT IN THE WRITING OF LAWS--- THAT THERE IS SOME DUPLICATION BETWEEN THAT PARTICULAR LITTLE CLAUSE AND THE CLAUSE LATER DOWN THAT MAKES A SPECIFIC MENTION OF OF THE PAY UNDER THE ACTIVE DUTY AGREEMENTS IDEA, WHEREIN THE MAN MAY CHOOSE ONE OR THE OTHER BUT NOT BOTH.

MR. PRICE. THAT IS WHAT OCCURRED TO US, COLONEL. WE HAVE NEVER BEEN ABLE TO STRAIGHTEN IT OUT IN OUR OWN MINDS. THAT IS THE REASON WE HAVE ASKED YOU TO COMMENT ON IT.

COLONEL JONES. IT WOULD APPEAR TO ME THAT THERE IS SOME DUPLICATION. HOWEVER, THIS LITTLE SECTION, SUBSECTION (5) AT THE BOTTOM OF PAGE 2, AND CONTINUING ON TO PAGE 3, IS SOMEWHAT OF A SAVINGS CLAUSE TO ME; THAT IF IN THE EVENT THE MAN SHOULD BE ENTITLED TO ANY OTHER TYPE OF SERVICE PAY, THEN TO MAKE SURE THAT HE DOESN-T GET BOTH; THAT HE GETS ONE OR THE OTHER.

MR. VAN ZANDT. WELL, THE DUPLICATION IS NOT GOING TO DO ANY HARM.

COLONEL JONES. NO, SIR.

MR. VAN ZANDT. AS A MATTER OF FACT, AS SOMEBODY READING THE LAW WOULD HOPE, IF IT DOES REPRESENT REPETITION, HE MAY HAVE A BETTER UNDERSTANDING OF HIS SAVINGS CLAUSE IN GENERAL.

COLONEL JONES. THAT IS RIGHT, SIR. ( ITALICS ADDED.)

SEE PAGES 4586 AND 4587 OF THE ABOVE-MENTIONED HEARINGS OF JULY 1955 OF H.R. 6725.

THE PROVISIONS OF SECTION 265, AS ADDED BY THE 1956 ACT, 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. QUESTIONS 5 (A) AND 5 (B), THEREFORE, ARE ANSWERED IN THE AFFIRMATIVE.

6. IF OTHERWISE ENTITLED, IS A MEMBER OF A RESERVE COMPONENT, WHO HAS VOLUNTEERED FOR AN ADDITIONAL TOUR OF DUTY WHICH THE SERVICE CONCERNED REFUSED TO GRANT, AND WHO THEN REQUESTS AND IS GRANTED RELEASE FROM ACTIVE DUTY PRIOR TO COMPLETION OF HIS TOUR OF DUTY, ENTITLED TO THE READJUSTMENT PAY PROVIDED BY PL 676, SUPRA?

IN VIEW OF THE EXPRESS PROVISION IN SECTION 265 (B) (1), AS ADDED BY THE 1956 ACT, WHICH BARS PAYMENT OF READJUSTMENT PAY TO " A PERSON WHO IS RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST," A NEGATIVE ANSWER IS REQUIRED TO QUESTION 6. COMPARE DECISION OF JUNE 25, 1956, B-127692, 35 COMP. GEN. 712.