B-127692, JUNE 25, 1956, 35 COMP. GEN. 712

B-127692, JUNE 25, 1956, 35 COMP. GEN. 712

PAY - SEVERANCE PAY - VOLUNTARY SEPARATION PRIOR TO DATE FIXED BY LAW SEVERANCE PAY WHICH IS AUTHORIZED BY SECTION 514 (E) OF THE CAREER COMPENSATION ACT OF 1949, AS AN INCIDENT TO THE ELIMINATION FROM THE SERVICE OF OFFICERS WHO ARE NOT ELIGIBLE FOR RETIREMENT, MAY NOT BE PAID TO AN OFFICER WHO IS VOLUNTARILY SEPARATED FROM THE SERVICE PRIOR TO THE DATE HE WOULD HAVE BEEN REQUIRED TO BE SEPARATED UNDER SECTION 509 (H) OF THE ACT.

TO THE SECRETARY OF DEFENSE, JUNE 25, 1956:

REFERENCE IS MADE TO LETTER OF APRIL 21, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON THE FOLLOWING QUESTION, WHICH IS STATED AND DISCUSSED IN COMMITTEE ACTION NO. 141 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE:

MAY AN OFFICER WHOSE SEPARATION IS REQUIRED UNDER THE PROVISIONS OF SUBSECTION 509 (H) OF THE OFFICER PERSONNEL ACT OF 1947 (61 STAT. 896; 10 U.S.C. 559 (H) ( RECEIVE THE SEVERANCE PAY PROVIDED IN SECTION 514 (E) (3) OF THE ACT IF HE VOLUNTARILY REQUESTS SEPARATION AND IS IN FACT SEPARATED PRIOR TO THE TERMINATION OF THE FULL PERIOD OF SERVICE PRESCRIBED?

SECTION 509 (H) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 896, 10 U.S.C. 559C (H), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * IF A "DEFERRED OFFICER" IS NOT RECOMMENDED BY THE NEXT CONSECUTIVE SELECTION BOARD, HE SHALL, ON THAT DATE WHICH IS ONE YEAR AND THIRTY DAYS SUBSEQUENT TO THE DATE ON WHICH HE WOULD HAVE BEEN APPOINTED IN THE NEXT HIGHER GRADE HAD HE BEEN RECOMMENDED BY THE FIRST OF TWO CONSECUTIVE SELECTION BOARDS, BE ELIMINATED FROM THE ACTIVE LIST OF THE REGULAR ARMY AND RETIRED OR SEPARATED, AS THE CASE MAY BE (SEE SECTION 514 OF THIS TITLE): PROVIDED, THAT, IF ON SUCH DATE, HE IS WITHIN TWO YEARS OF BECOMING ENTITLED TO RETIREMENT UNDER THE PROVISIONS OF SECTION 514 OF THIS TITLE, THE DATE OF ELIMINATION SHALL BE THE DATE ON WHICH HE BECOMES ENTITLED TO RETIREMENT, RATHER THAN THAT HEREINABOVE PRESCRIBED, AND HE SHALL BE RETAINED ON THE ACTIVE LIST IN THE PERMANENT GRADE HELD UNTIL QUALIFIED FOR RETIREMENT AND THEN RETIRED, UNLESS SOONER RETIRED OR SEPARATED UNDER SOME OTHER PROVISION OF LAW.

SECTION 514 (E) OF THAT ACT, 10 U.S.C. 941A (E), PROVIDES, AMONG OTHER THINGS, THAT EACH OFFICER ELIMINATED FROM THE ACTIVE LIST OF THE REGULAR ARMY PURSUANT TO THE ABOVE-QUOTED PROVISIONS OF LAW WHO IS NOT ELIGIBLE FOR RETIREMENT UNDER ANY PROVISION OF LAW "ON THE DATE OF ELIMINATION," SHALL BE HONORABLY DISCHARGED FROM THE REGULAR ARMY WITH SEVERANCE PAY COMPUTED AT THE RATE APPLICABLE ,ON THE DATE OF HIS ELIMINATION.'

THE FOREGOING PROVISIONS OF LAW FIX WITH CERTAINTY AND FINALITY THE DATE OF "ELIMINATION" IN EACH CASE TO WHICH THEY APPLY. SINCE PROVISION IS MADE FOR THE PAYMENT OF SEVERANCE PAY INCIDENT TO AN OFFICER'S "ELIMINATION" ON THAT DATE, COMPUTED AT THE RATE OF PAY APPLICABLE ON THE SAME DATE, THERE APPEARS TO BE NO AUTHORITY FOR THE PAYMENT OF SEVERANCE PAY IN CONNECTION WITH A SEPARATION OF THE OFFICER ON ANY OTHER DATE. HENCE, IT IS OUR VIEW THAT IF, INSTEAD OF WAITING TO BE SEPARATED ON THE DATE OF "ELIMINATION" FIXED BY THE LAW, AN OFFICER FOR PERSONAL REASONS REQUESTS OR AGREES TO SEPARATION AT AN EARLIER DATE, NO RIGHT TO SEVERANCE PAY WOULD ACCRUE TO HIM IN CONNECTION WITH SUCH EARLY SEPARATION.