B-136668, JULY 22, 1958, 38 COMP. GEN. 47

B-136668, JULY 22, 1958, 38 COMP. GEN. 47

MILITARY PERSONNEL - SAVED PAY UNDER PUBLIC LAW 85-422 - REENLISTMENT - ABSENCE WITHOUT LEAVE - DESERTION ANY BREAK IN SERVICE OF ONE DAY OR MORE FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE ON ACTIVE DUTY ON MAY 31, 1958--- THE DATE FOR DETERMINATION OF ENTITLEMENT TO THE SAVED PAY PROVISIONS OF THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422/--- TERMINATES THEIR RIGHT TO SAVED PAY UNDER SECTION 10 (1) OF THE ACT AT THE TIME OF THE BREAK IN SERVICE. THE RIGHT OF ENLISTED MEMBER OF THE UNIFORMED SERVICES TO SAVED PAY ON JUNE 1, 1958, UNDER SECTION 10 (1) OF THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422), CONTINUES AS LONG AS HE CONTINUES TO BE A "MEMBER" WITHOUT REGARD TO THE NUMBER OF ENLISTMENTS OR REENLISTMENTS PROVIDED THAT A BREAK IN SERVICE OF ONE DAY OR MORE DOES NOT OCCUR. MEMBERS OF THE UNIFORMED SERVICES WHO ARE ABSENT WITHOUT LEAVE ON MAY 31, 1958--- THE DAY PRIOR TO THE EFFECTIVE DATE OF THE SAVED PAY PROVISIONS IN THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422/--- ARE NEVERTHELESS REGARDED AS BEING ENTITLED TO BASIC PAY ON THAT DATE AND THEREFORE HAVE A RIGHT TO THE SAVED PAY BENEFITS IN SECTION 10 (1) OF THE ACT AFTER A RETURN TO A DUTY STATUS, PROVIDED THAT THE TERM OF ENLISTMENT HAS NOT EXPIRED IN THE MEANTIME. SINCE A MEMBER OF THE UNIFORMED SERVICES DOES NOT LOSE HIS STATUS SOLELY BECAUSE OF AN ABSENCE WITHOUT LEAVE, AN ABSENCE WITHOUT LEAVE AFTER MAY 31, 1958--- THE DAY PRIOR TO THE EFFECTIVE DATE OF THE SAVED PAY PROVISIONS IN THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422/--- ON THE PART OF A MEMBER ENTITLED TO PAY ON THAT DATE DOES NOT TERMINATE HIS RIGHT TO SAVED PAY PROVIDED THAT THE MEMBER RETURNS TO DUTY BEFORE THE EXPIRATION OF HIS THEN CURRENT ENLISTMENT. THE RULE THAT THE DESERTION OF A MEMBER OF THE UNIFORMED SERVICES EFFECTS A FORFEITURE OF PAY AND ALLOWANCES DUE AT THE DATE OF DESERTION IS REGARDED AS APPLICABLE TO ANY RIGHT A DESERTER MAY HAVE TO SAVED PAY UNDER SECTION 10 (1) OF THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422), AND THEREFORE, IN THE ABSENCE OF A STATUTORY PROVISION OR AUTHORITATIVE COURT DECISION, THE SAVED PAY STATUS UNDER THE ACT DOES NOT CONTINUE AFTER A PERIOD OF DESERTION.

TO THE SECRETARY OF DEFENSE, JULY 22, 1958:

REFERENCE IS MADE TO LETTER OF JUNE 27, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS CONCERNING SAVED PAY UNDER SECTION 10 (1) OF THE ACT OF MAY 20, 1958, 72 STAT. 130, 37 U.S.C. 232 NOTE.

THE QUESTIONS FOR DECISION ARE SET FORTH IN COMMITTEE ACTION NO. 216 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

MAY MEMBERS ON ACTIVE DUTY ON 31 MAY 1958 CONTINUE TO RECEIVE THE BENEFITS OF SECTION 10 (1), ACT OF 20 MAY 1958 ( PL 85-422) UNDER THE FOLLOWING CIRCUMSTANCES:

A. DISCHARGED UPON EXPIRATION OF TERM OF SERVICE AND IMMEDIATELY REENLISTS?

B. DISCHARGED PRIOR TO EXPIRATION OF TERM OF SERVICE FOR PURPOSE OF IMMEDIATE REENLISTMENT?

C. DISCHARGE AND REENLISTMENT WITHIN 90 DAYS OR 3 MONTHS?

D. DISCHARGE AND REENLISTMENT SUBSEQUENT TO EXPIRATION OF 3 MONTHS?

E. IF ANY OF THE QUESTIONS CONTAINED ABOVE ARE ANSWERED IN THE AFFIRMATIVE, WOULD THE SAME BE APPLICABLE TO A MEMBER SEPARATED ON 31 MAY 1958 AND WHO REENLISTS UNDER SIMILAR CIRCUMSTANCES?

F. IF THE ANSWER TO A, B, OR C, ABOVE, IS IN THE NEGATIVE, WOULD THE ANSWER BE THE SAME IF THE MEMBER EXTENDS HIS ENLISTMENT FOR A LONGER PERIOD?

G. WOULD THE LENGTH OF THE EXTENSION HAVE ANY BEARING ON THE ANSWER TO F ABOVE (E.G., 1 YEAR, 2 YEARS, ETC./?

H. UPON RETURN TO DUTY STATUS FROM PERIOD OF AWOL OR DESERTION IF IN RECEIPT OF SAVED PAY PRIOR TO ENTERING INTO THAT STATUS?

I. IF ANSWER TO H IS IN THE AFFIRMATIVE, WOULD MEMBER WHO IS AWOL OR IN A DESERTION STATUS ON 31 MAY 1958 ALSO BE ENTITLED TO SAVED PAY UPON RETURN TO MILITARY CONTROL?

SECTION 10 OF THE ACT OF MAY 20, 1958, EFFECTIVE JUNE 1, 1958, 37 U.S.C. 232 NOTE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 10. THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---

(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.

THE SAVED PAY PROVISIONS OF SECTION 515 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, 37 U.S.C. 315 (A), WERE APPLICABLE TO MEMBERS "WHILE SERVING ON CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS FROM THE DATE OF LAST DISCHARGE.' WHILE SIMILAR PROVISIONS WERE NOT INCLUDED IN THE ACT OF MAY 20, 1958, IT DOES NOT NECESSARILY FOLLOW THAT A RIGHT TO SAVED PAY CONTINUES UNDER THAT ACT ONLY DURING PERIODS OF ENLISTMENT WHICH COMMENCED ON OR PRIOR TO MAY 31, 1958, AND EXPIRED AFTER THAT DATE. THE LANGUAGE USED IN SECTION 515 (A) OF THE 1949 ACT RELATING TO CONTINUOUS ACTIVE DUTY APPARENTLY WAS INCLUDED THEREIN FOR THE PURPOSE OF PERMITTING THE CONTINUATION OF A SAVED PAY STATUS DESPITE A BREAK IN SERVICE OF THREE MONTHS OR LESS FOLLOWING DISCHARGE. WE VIEW THE OMISSION OF SIMILAR LANGUAGE FROM THE 1958 ACT AS EVIDENCING AN INTENT THAT ANY BREAK IN SERVICE OF ONE DAY OR MORE SHOULD TERMINATE ANY RIGHT TO SAVED PAY THAT AN ENLISTED MEMBER HAS UNDER THAT ACT AT THE TIME OF SUCH BREAK IN SERVICE.

CONCERNING THE QUESTION OF HOW LONG A SAVED PAY STATUS EXISTING ON JUNE 1, 1958, WOULD CONTINUE WHERE NO BREAK IN SERVICE OCCURS AFTER THAT DATE, WE FIND NOTHING IN THE 1958 ACT OR IN ITS LEGISLATIVE HISTORY WHICH SUGGESTS THAT THE CONGRESS INTENDED THAT OFFICERS AND ENLISTED MEN SHOULD HAVE DIFFERENT RIGHTS IN THAT RESPECT. WHILE THE SERVICE OR CAREER ENLISTED MEN USUALLY CONSISTS OF A NUMBER OF SEPARATE PERIODS OF ENLISTMENT, IT IS OUR VIEW THAT THE CONGRESS INTENDED THAT THE RIGHT OF AN ENLISTED MAN TO SAVED PAY ON JUNE 1, 1958, SHOULD CONTINUE AS LONG AS HE CONTINUES TO BE A "MEMBER" AND WITHOUT REGARD TO THE NUMBER OF ENLISTMENTS OR REENLISTMENTS, PROVIDING A BREAK IN SERVICE OF ONE DAY OR MORE DOES NOT OCCUR.

THE DISCUSSION ON PAGE 5200 OF THE HEARINGS ON H.R. 9979, 85TH CONGRESS, BEFORE SUBCOMMITTEE NO. 2 OF THE HOUSE COMMITTEE ON ARMED SERVICES, INDICATES THAT THE CORDINER COMMITTEE INTENDED THAT SAVED PAY SHOULD ACCRUE ONLY DURING THE TERM OF ENLISTMENT BEING SERVED WHEN THE PROPOSED LEGISLATION WAS ENACTED INTO LAW AND THAT "BEYOND THAT, HE WOULD THEN HAVE TO FACE WHETHER HE WOULD REENLIST UNDER THE NEW TERMS OR STAY OUT.' HOWEVER, NO BILL SO PROVIDING APPEARS TO HAVE BEEN INTRODUCED. SECTION 3 (A), H.R. 8421, S. 2014, AND SIMILAR BILLS, 85TH CONGRESS, PROVIDED FOR SAVED PAY UNTIL THE MEMBER CONCERNED QUALIFIED FOR HIGHER PAY UNDER SUCH BILLS. SECTION 3 (A) OF H.R. 9979 AND OF S. 3081, 85TH CONGRESS, CONSIDERED BY THE RESPECTIVE HOUSE AND SENATE COMMITTEES, WOULD HAVE LIMITED THE SAVED PAY BENEFITS THERE PROVIDED TO A PERIOD OF THREE YEARS. WE INTERPRET THE OMISSION OF LANGUAGE CONTAINING THE SAME OR SOME OTHER TIME LIMITATION ON SAVED PAY BENEFITS GRANTED ENLISTED MEN FROM THE 1958 ACT AS INDICATING AN INTENT THAT NO TIME LIMITATION SHOULD APPLY TO ANY PERIOD OF CONTINUOUS SERVICE.

AN ENLISTED MAN WHO WAS SEPARATED FROM THE SERVICE ON MAY 31, 1958, AND WHO REENLISTED IMMEDIATELY SERVED CONTINUOUSLY WITHOUT A BREAK IN SERVICE AND IT APPEARS THAT HE IS ENTITLED TO SAVED PAY. ACCORDINGLY, QUESTIONS A, B, AND E ARE ANSWERED IN THE AFFIRMATIVE (IT BEING ASSUMED, OF COURSE, THAT QUESTION (B) CONTEMPLATES AN ACTUAL REENLISTMENT WITHOUT BREAK IN SERVICE) AND QUESTIONS C AND D ARE ANSWERED IN THE NEGATIVE. NO ANSWERS TO QUESTIONS F AND G APPEAR TO BE REQUIRED, SINCE ONLY QUESTIONS C AND D ARE ANSWERED IN THE NEGATIVE AND WE KNOW OF NO CIRCUMSTANCE IN WHICH AN ENLISTED MAN CAN EXTEND HIS ENLISTMENT AFTER HIS DISCHARGE.

WE DO NOT REGARD OUR DECISION OF MARCH 27, 1957, 36 COMP. GEN. 677, AS FURNISHING A BASIS FOR A DIFFERENT ANSWER TO QUESTION C. THE CONCLUSION IN THAT CASE THAT, SINCE THE STATUTE THERE INVOLVED FAILED TO STATE WHETHER OR NOT A RESERVIST'S ONE YEAR OF EXTENDED ACTIVE DUTY MUST BE CONTINUOUS, ACTIVE DUTY FOR ONE YEAR OR MORE IN A RESERVE COMPONENT, EVEN THOUGH INTERRUPTED FOR A PERIOD OR PERIODS OF NOT MORE THAN 90 DAYS EACH, CONSTITUTED "EXTENDED ACTIVE DUTY OF ONE YEAR OF MORE IN A RESERVE COMPONENT" WITHIN THE MEANING OF THAT PROVISION AS CONTAINED IN SECTION 207 (B) (2) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238 (B) (2), APPEARED WARRANTED IN VIEW OF THE OTHER PROVISIONS OF LAW THERE CONSIDERED RELATING TO BREAKS IN SERVICE OF 90 DAYS OR 3 MONTHS. BOTH SECTIONS 207 (A) AND 208 (A) OF THAT ACT, 37 U.S.C 238 (A) AND 293 (A), AS WELL AS THE PRIOR PROVISIONS OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 8 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 541, 37 U.S.C. 110 (1946 USED.), CONTAINED PROVISIONS AUTHORIZING PAYMENT OF REENLISTMENT ALLOWANCE OR BONUS UPON AN ENLISTMENT OR REENLISTMENT WITHIN THE 90 DAYS OR 3 MONTHS FROM THE DATE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY, AS APPLICABLE. THE OMISSION FROM THE 1958 SAVED PAY CLAUSE OF A PROVISION SUCH AS CONTAINED IN SECTION 515 (A) OF THE 1949 ACT, PERMITTING THE CONTINUATION OF A SAVED PAY STATUS NOTWITHSTANDING A BREAK IN SERVICE BETWEEN ENLISTMENTS OF THREE MONTHS OR LESS, PRESENTS AN ENTIRELY DIFFERENT SITUATION AND APPEARS TO REQUIRE A NEGATIVE ANSWER TO QUESTION C.

AS TO QUESTIONS H AND I, THE CONCLUSION IN OUR DECISION OF TODAY TO YOU, B-136671, 38 COMP. GEN. 50 THAT AN ACTIVE MEMBER OF A RESERVE COMPONENT WHO WAS NOT PERFORMING ACTIVE DUTY ON MAY 31, 1958, WAS "ENTITLED" TO BASIC PAY ON THAT DATE WITHIN THE MEANING OF SECTION 10 OF THE 1958 ACT, SUPPORTS THE VIEW THAT A MEMBER WHO WAS ABSENT WITHOUT LEAVE ON MAY 31, 1958, WAS "ENTITLED" TO BASIC PAY ON THAT DATE AND THUS HAS A RIGHT TO THE SAVED PAY BENEFITS OF THAT ACT AFTER HE RETURNS TO A DUTY STATUS, IF HIS TERM OF ENLISTMENT HAS NOT EXPIRED IN THE MEANTIME. COMPARE 30 COMP. GEN. 114. ALSO, SINCE A PERSON DOES NOT LOSE HIS STATUS AS A MEMBER OF A UNIFORMED SERVICE SOLELY BECAUSE OF ABSENCE WITHOUT LEAVE, IT WOULD APPEAR THAT ABSENCE WITHOUT LEAVE AFTER MAY 31, 1958, ON THE PART OF A MEMBER ENTITLED TO PAY ON THAT DATE WOULD NOT TERMINATE HIS RIGHT TO SAVED PAY, PROVIDED HIS RETURN TO DUTY OCCURS BEFORE THE EXPIRATION OF HIS THEN CURRENT ENLISTMENT.

THE MATTER IS NOT SO CLEAR AS THIS PROBLEM RELATES TO THE RIGHTS OF A DESERTER. FOR THE PURPOSE OF THE PAYMENT OF THE DEATH GRATUITY, WHICH WAS PAYABLE "AT THE RATE RECEIVED" BY A MEMBER AT THE TIME OF HIS DEATH, A DISTINCTION HAS BEEN MADE BETWEEN THE SITUATION OF A MEMBER WHO WAS MERELY ABSENT WITHOUT LEAVE AT THE TIME OF HIS DEATH AND THAT OF A MEMBER WHO WAS A DESERTER WHEN HE DIED, IT BEING HELD THAT, WHILE THE FORMER HAD A RATE OF PAY UPON WHICH TO COMPUTE THE DEATH GRATUITY, THE LATTER'S DESERTION EFFECTED A FORFEITURE OF HIS PAY AND ALLOWANCES AND TERMINATED HIS PAY STATUS. 31 COMP. GEN. 645. THE SAME REASONING SUPPORTS A CONCLUSION THAT A MEMBER WHO WAS IN A DESERTION STATUS ON MAY 31, 1958, WAS NOT "ENTITLED" TO BASIC PAY ON THAT DATE WITHIN THE MEANING OF SECTION 10 OF THE 1958 ACT.

IT LONG HAS BEEN HELD THAT THE DESERTION OF A MEMBER EFFECTS A FORFEITURE OF PAY AND ALLOWANCES DUE AT THE DATE OF DESERTION. 8 COMP. GEN. 233 AND 549; 23 COMP. GEN. 44. IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION REQUIRING A CONTRARY CONCLUSION, IT APPEARS REASONABLE TO EXTEND THAT RULE TO VIEW DESERTION AS ALSO WORKING A FORFEITURE OF ANY RIGHT THE DESERTER OTHERWISE MIGHT HAVE HAD IN REGARD TO SAVED PAY. IN ANY EVENT, AND IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION TO THE CONTRARY, THE MATTER APPEARS TOO DOUBTFUL TO WARRANT OUR CONCLUDING THAT A SAVED PAY STATUS CONTINUES AFTER A PERIOD OF DESERTION.

ACCORDINGLY, QUESTIONS H AND I ARE ANSWERED IN THE AFFIRMATIVE ONLY AS TO SITUATIONS WHICH INVOLVE AN ABSENT-WITHOUT-LEAVE STATUS AND RETURN TO MILITARY CONTROL PRIOR TO EXPIRATION OF ENLISTMENT.