B-134342, NOVEMBER 22, 1957, 37 COMP. GEN. 357

B-134342, NOVEMBER 22, 1957, 37 COMP. GEN. 357

MILITARY PERSONNEL - RESERVE OFFICERS - LUMP-SUM READJUSTMENT PAYMENTS - IMMEDIATE ENLISTMENT OR REENTRY INTO THE SERVICE A RESERVE OFFICER WHO, AFTER INVOLUNTARY RELEASE FROM ACTIVE DUTY FOLLOWING AT LEAST FIVE YEARS OF ACTIVE SERVICE, ENLISTS IN A REGULAR COMPONENT OR ENTERS ON ACTIVE DUTY AS A REGULAR OR RESERVE OFFICER IN THE SAME OR ANOTHER MILITARY SERVICE ON THE NEXT DAY OR AT ANY LATER TIME MAY BE REGARDED AS RELEASED FROM ACTIVE DUTY FOR ENLISTMENT TO THE LUMP-SUM READJUSTMENT PAYMENT PROVIDED IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952. THE PROVISION IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952 THAT ACCEPTANCE OF A LUMP-SUM READJUSTMENT PAYMENT SHALL NOT DEPRIVE A PERSON OF ANY RETIRED PAY TO WHICH HE WOULD ,OTHERWISE BECOME ENTITLED" DOES NOT APPLY SOLELY TO ELIGIBILITY FOR RETIREMENT WITH RETIRED PAY ARISING BY OPERATION OF LAW BUT IS APPLICABLE ALSO TO RETIREMENT RESULTING FROM A VOLUNTARY ACT, AND, THEREFORE, AN OFFICER WHO, AFTER RECEIPT OF A LUMP-SUM READJUSTMENT PAYMENT ON INVOLUNTARY RELEASE FROM ACTIVE DUTY, SUBSEQUENTLY ENLISTS AND BECOMES ELIGIBLE FOR RETIREMENT ON ACCOUNT OF THE ENLISTMENT DOES NOT NEED TO REFUND THE LUMP-SUM READJUSTMENT PAYMENT. THE FIVE-YEAR CONTINUOUS ACTIVE SERVICE REQUIREMENT FOR ENTITLEMENT TO THE LUMP-SUM READJUSTMENT PAYMENT PROVIDED IN SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952 DOES NOT SPECIFY THAT THE ACTIVE DUTY BE PERFORMED IN THE SAME MILITARY SERVICE, AND, THEREFORE, ACTIVE DUTY AS A RESERVE IN ONE SERVICE MAY BE COMBINED WITH ACTIVE DUTY IN ANOTHER SERVICE.

TO THE SECRETARY OF DEFENSE, NOVEMBER 22, 1957:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 5, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, 70 STAT. 517, 50 U.S.C. 1016, AUTHORIZING A LUMP-SUM READJUSTMENT PAYMENT FOR MEMBERS OF THE RESERVE COMPONENTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE DUTY.

THE QUESTIONS ARE SET FORTH IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 197, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. IF A RESERVE OFFICER IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AND MEETS ALL OF THE REQUIREMENTS FOR ENTITLEMENT TO THE LUMP-SUM READJUSTMENT PAYMENT UNDER THE PROVISIONS OF SECTION 265 OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF 9 JULY 1956 (70 STAT. 517; 50 U.S.C. 1016), MAY HE RETAIN SUCH PAYMENT IF ON THE DATE FOLLOWING HIS RELEASE FROM ACTIVE DUTY HE ENLISTS IN THE REGULAR COMPONENT OF THE SAME OR A DIFFERENT MILITARY SERVICE?

2. WOULD THE ANSWER TO QUESTION 1 BE THE SAME IF THE RESIGNATION OF THE OFFICER IS ACCEPTED AS OF THE DATE OF HIS RELEASE FROM ACTIVE DUTY, AND HE ENTERS ON ACTIVE DUTY THE FOLLOWING DAY AS A REGULAR OR RESERVE OFFICER IN A DIFFERENT MILITARY SERVICE?

3. IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE IN THE NEGATIVE AND AFFIRMATIVE, RESPECTIVELY, WOULD THEY BE THE SAME IF THERE IS A BREAK OF AT LEAST ONE DAY BETWEEN THE DATE OF THE OFFICER'S RELEASE FROM ACTIVE DUTY AND HIS REENTRY ON ACTIVE DUTY?

4. WOULD THE ANSWER TO QUESTION 1 BE THE SAME IF ON THE DATE OF THE OFFICER'S RELEASE FROM ACTIVE DUTY HE WAS NOT ELIGIBLE TO BE RETIRED, BUT UPON ENLISTMENT HE BECAME ELIGIBLE FOR RETIREMENT WITH RETIRED PAY?

5. MAY ACTIVE DUTY AS A RESERVE MEMBER IN ONE MILITARY SERVICE BE COMBINED WITH ACTIVE DUTY AS A RESERVE MEMBER IN ANOTHER MILITARY SERVICE FOR THE PURPOSE OF THE REQUIREMENT IN SECTION 265 (A) OF THE CITED ACT THAT THE MEMBER MUST HAVE COMPLETED AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY (EXCEPT FOR BREAKS OF NOT MORE THAN 30 DAYS) IMMEDIATELY PRIOR TO HIS RELEASE FROM ACTIVE DUTY IN ORDER TO BE ENTITLED TO THE LUMP-SUM READJUSTMENT PAYMENT?

THE ADDED SECTION 265 PROVIDES THAT A MEMBER OF A RESERVE COMPONENT WHO IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AFTER ITS ENACTMENT 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. THE SECTION PROVIDES FURTHER THAT (1) PERSONS RELEASED FROM ACTIVE DUTY AT THEIR OWN REQUEST; (2) PERSONS RELEASED FROM ACTIVE DUTY FOR TRAINING; (3) PERSONS RELEASED FROM ACTIVE DUTY BECAUSE OF MORAL OR PROFESSIONAL DERELICTION; AND (4) PERSONS RELEASED FROM ACTIVE DUTY WHO IMMEDIATELY ARE ENTITLED TO RECEIPT OF RETIRED PAY, ARE NOT ENTITLED TO RECEIVE THE READJUSTMENT PAYMENT. ALSO, IT IS PROVIDED THAT PERSONS RELEASED FROM ACTIVE DUTY WHO ARE ELIGIBLE FOR SEVERANCE PAY UNDER OTHER LAWS, OR ARE ENTITLED TO DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION, OR TO LIMITED COMPENSATION IN THE EVENT OF AN EARLY RELEASE UNDER AN ACTIVE-DUTY CONTRACT, CANNOT RECEIVE BOTH PAYMENT UNDER THAT SECTION AND ONE OF SUCH PAYMENTS, BUT MAY ELECT TO RECEIVE THE READJUSTMENT PAYMENT INSTEAD OF ONE OF THE OTHER PAYMENTS. DUPLICATE PAYMENTS OF READJUSTMENT PAY ARE PROHIBITED. HOWEVER, A MEMBER MAY RECEIVE A SECOND READJUSTMENT PAYMENT BASED UPON HIS ENTIRE SERVICE IF THE FIRST PAYMENT IS REFUNDED. THE PAYMENT OF BOTH MUSTERING-OUT PAY AND READJUSTMENT PAY IS PROHIBITED AND ANY AMOUNT OF MUSTERING-OUT PAY PREVIOUSLY RECEIVED MUST BE DEDUCTED FROM THE READJUSTMENT PAYMENT. HOWEVER, ACCEPTANCE OF A READJUSTMENT PAYMENT DOES NOT DEPRIVE A PERSON OF ANY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER RETIREMENT BENEFITS FROM THE UNITED STATES TO WHICH HE WOULD OTHERWISE BECOME ENTITLED.

THE LEGISLATIVE HISTORY OF SECTION 265 SHOWS THAT IT IS DESIGNED TO ACCOMPLISH TWO PURPOSES. FIRST, IT IS INTENDED TO PROVIDE A READJUSTMENT PAYMENT FOR RESERVISTS WHO AFTER COMPARATIVELY LONG PERIODS OF ACTIVE DUTY ARE INVOLUNTARILY RELEASED AT AN AGE AT WHICH THEIR USEFULNESS TO THE ARMED FORCES IS LESS THAN THAT OF YOUNGER OFFICERS WHO ARE NEEDED FOR CURRENT AND FUTURE SERVICE AND, SECOND, TO INDUCE RESERVISTS TO REMAIN VOLUNTARILY IN THE ACTIVE SERVICE BY PROVIDING SOME MEASURE OF ECONOMIC SECURITY IN THE EVENT OF AN INVOLUNTARY TERMINATION OF SUCH SERVICE, AND THEREBY TO REDUCE EXPENSIVE PERSONNEL TURNOVER AND TO INCREASE THE EFFECTIVENESS OF THE ARMED SERVICES THROUGH THE RETENTION OF COMPETENT AND EXPERIENCED PERSONNEL.

EXCEPT FOR THE ADDITIONAL RESTRICTIONS AND LIMITATIONS IMPOSED BY SECTION 265 ON THE PAYMENT OF LUMP-SUM READJUSTMENT PAY, ITS PROVISIONS ARE SIMILAR TO THOSE WHICH WERE CONTAINED IN SECTION 12 OF THE FORMER NAVAL AVIATION CADET ACT OF AUGUST 4, 1952, 56 STAT. 738, 34 U.S.C. 850K, AND THE PRIOR STATUTORY PROVISIONS WHICH THAT SECTION REPLACED. THE PURPOSES OF SECTION 265 APPEAR TO BE SIMILAR TO THE PURPOSES OF SECTION 12 AND ITS ANTECEDENTS. SEE DECISION OF NOVEMBER 22, 1943, 23 COMP. GEN. 376. UNLIKE SECTION 12, SECTION 265 DOES NOT EXPRESSLY PROVIDE THAT THE LUMP- SUM PAYMENT SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION OR BENEFITS WHICH THE PERSONS CONCERNED MAY OTHERWISE BE ENTITLED TO RECEIVE; BUT, EXCEPT FOR THE RESTRICTIONS AND LIMITATIONS THERE IMPOSED, THERE CAN BE LITTLE DOUBT THAT SUCH IS THE CASE. HENCE, THE READJUSTMENT PAYMENT AUTHORIZED BY SECTION 265 ACCRUES AND IS PAYABLE UPON A BONA FIDE INVOLUNTARY RELEASE FROM ACTIVE DUTY AFTER THE COMPLETION OF AT LEAST FIVE YEARS OF CONTINUOUS SERVICE, UNLESS SUCH ACCRUAL AND PAYMENT ARE PROHIBITED OR LIMITED BY SECTION 265. DECISION OF NOVEMBER 15, 1956, 36 COMP. GEN. 403, ANSWER TO QUESTION 3, IS NOT IN CONFLICT WITH THAT CONCLUSION. THE SITUATION CONSIDERED IN THAT QUESTION DID NOT CONCERN A TRUE RELEASE FROM ACTIVE DUTY. THE "RELEASE" THERE INVOLVED WAS A REVERSION FROM A TEMPORARY APPOINTMENT TO THE PERMANENT RESERVE OR REGULAR STATUS OF THE PERSON CONCERNED AND DID NOT IN ANY WAY AFFECT HIS ACTIVE- DUTY STATUS.

SINCE SECTION 265 IMPOSES NO RESTRICTION ON PAYMENT OF THE LUMP-SUM READJUSTMENT PAYMENT WHERE A PERSON, WHO IS RELEASED FROM ACTIVE DUTY UNDER CONDITIONS ENTITLING HIM TO THE PAYMENT, ENLISTS IN A REGULAR COMPONENTS OR ENTERS ON ACTIVE DUTY AS A REGULAR OR RESERVE OFFICER IN THE SAME OR ANOTHER MILITARY SERVICE AT ANY LATER TIME, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE AND NO ANSWER IS REQUIRED TO QUESTION 3. COMPARE DECISION OF SEPTEMBER 4, 1944, 24 COMP. GEN. 177, CONCERNING A SOMEWHAT ANALOGOUS SITUATION UNDER SECTION 12 OF THE FORMER NAVAL AVIATION CADET ACT OF 1942.

SECTION 265 PROVIDES THAT THE ACCEPTANCE OF READJUSTMENT PAY SHALL NOT DEPRIVE A PERSON OF ANY RETIRED PAY TO WHICH HE WOULD "OTHERWISE BECOME ENTITLED.' IN VIEW OF SUCH STATUTORY PROVISION, IT APPEARS REASONABLY CLEAR THE MERE ELIGIBILITY FOR RETIREMENT WITH RETIRED PAY ARISING NOT SOLELY BY OPERATION OF LAW BUT AS A RESULT OF A VOLUNTARY ACT DONE AFTER A RIGHT ACCRUED TO READJUSTMENT PAY COULD NOT HAVE ANY EFFECT ON A MEMBER'S RIGHT TO RETAIN SUCH READJUSTMENT PAY. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

WHILE SECTION 265 REQUIRES "AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY" AS A CONDITION PRECEDENT TO ENTITLEMENT TO THE READJUSTMENT PAYMENT, IT DOES NOT SPECIFY THAT SUCH ACTIVE DUTY BE PERFORMED IN THE SAME MILITARY SERVICE AND, AS A GENERAL PROPOSITION, A MEMBER OF ANY MILITARY SERVICE IS ENTITLED TO CREDIT FOR ALL OF HIS ACTIVE MILITARY SERVICE IN COMPUTING HIS PAY AND ALLOWANCES. IN SUCH CIRCUMSTANCES AND HAVING IN MIND THE INDICATED PURPOSE OF INDUCING QUALIFIED PERSONS TO REMAIN ON ACTIVE DUTY IF THEY ARE NEEDED, QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE.