B-154100, JUNE 9, 1964, 43 COMP. GEN. 777

B-154100, JUNE 9, 1964, 43 COMP. GEN. 777

MILITARY PERSONNEL - RETIREMENT - LUMP-SUM PAYMENTS - VOLUNTARY V. INVOLUNTARY RETIREMENT AN OFFICER OF THE UNITED STATES COAST GUARD RETIRED FOR AGE UNDER 14 U.S.C. 293 WHEN HIS REQUEST FOR VOLUNTARY RETIREMENT UNDER 14 U.S.C. 232 ON THE BASIS OF HAVING COMPLETED 20 YEARS' ACTIVE SERVICE FAILED TO MEET THE MINIMUM 3 MONTHS NOTICE REQUIREMENT PRESCRIBED BY THE COAST GUARD PERSONNEL MANUAL IS NOT ENTITLED TO THE $2,000 LUMP-SUM PAYMENT PROVIDED BY SECTION 3 OF THE ACT OF SEPTEMBER 24, 1963 (14 U.S.C. 285 NOTE), EVEN THOUGH THE OFFICER HAD BEEN CONSIDERED AND FAILED OF SELECTION FOR CONTINUATION OF ACTIVE DUTY AND ADVISED HE COULD RETIRE UNDER SOME OTHER PROVISION OF LAW WITHOUT LOSS OF THE BENEFITS PRESCRIBED BY SECTION 3 OF THE 1963 ACT, THE DETERMINING FACTOR OF ENTITLEMENT BEING THE TYPE OF RETIREMENT EFFECTED, AND THE OFFICER'S RETIREMENT HAVING BEEN INVOLUNTARY, HE MAY NOT BE PAID THE LUMP-SUM AUTHORIZED IN ADDITION TO RETIRED PAY BY THE 1963 ACT FOR OFFICERS VOLUNTARILY RETIRED WHEN NOT RECOMMENDED FOR CONTINUATION ON ACTIVE DUTY.

TO COMMANDER FRANK F. ELLIOTT, JUNE 9, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 24, 1964, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 21, 1964, WHICH DISALLOWED YOUR CLAIM FOR A LUMP-SUM PAYMENT OF $2,000 WHICH YOU BELIEVE TO BE DUE YOU UNDER THE PROVISIONS OF SECTION 3 (M) OF THE ACT OF SEPTEMBER 24, 1963, PUBLIC LAW 88-130, 77 STAT. 192, 14 U.S.C. 285 NOTE, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES COAST GUARD ON APRIL 1, 1964.

YOUR CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION, VIA THE COMMANDANT (FP), UNITED STATES COAST GUARD, BY LETTER OF APRIL 8, 1964, OF R. H. MILLS, AN AUTHORIZED CERTIFYING OFFICER, AND THE PERTINENT FACTS RELATING TO THE CLAIM ARE SET FORTH IN THAT LETTER AND IN THE COPIES OF THE RECORDS WHICH ACCOMPANIED IT. THE RECORDS SHOW THAT YOU WERE ADVISED BY THE COMMANDANT'S LETTER OF DECEMBER 17, 1963, THAT YOU HAD FAILED OF SELECTION FOR CONTINUATION ON ACTIVE DUTY AND THAT, PURSUANT TO AUTHORITY CONTAINED IN SECTION 3 (L) OF PUBLIC LAW 88-130, YOU WOULD BE RETIRED ON JUNE 30, 1964. YOU WERE FURTHER ADVISED IN THAT LETTER THAT, IF ELIGIBLE, YOU MIGHT ELECT TO RETIRE BEFORE JUNE 30, 1964, UNDER SOME OTHER PROVISION OF LAW, WITHOUT LOSS OF THE BENEFITS OUTLINED IN SECTION 3 OF PUBLIC LAW 88- 130. YOU WERE ALSO THERE ADVISED THAT YOUR STATUTORY AGE RETIREMENT ON APRIL 1, 1964, HAD BEEN NOTED AND WAS BEING PROCESSED SEPARATELY.

THE RECORDS FURTHER SHOW THAT BY LETTER DATED DECEMBER 23, 1963, YOU REQUESTED TO BE RETIRED ON FEBRUARY 1, 1964, UNDER THE PROVISIONS OF 14 U.S.C. 232. YOUR REQUEST WAS DENIED BY THE COMMANDANT'S LETTER OF JANUARY 9, 1964, ON THE GROUND THAT IT DID NOT ALLOW SUFFICIENT TIME FOR PROCESSING AND YOU WERE ADVISED IN THAT LETTER THAT YOUR RETIREMENT DATE REMAINED APRIL 1, 1964. IN THE LETTER OF APRIL 8, 1964, MENTIONED ABOVE, REFERENCE IS MADE TO ARTICLES 12-C-3 AND 12-A 4, COAST GUARD PERSONNEL MANUAL, WHICH PRESCRIBE THE ADMINISTRATIVE PROCEDURES FOR SUBMITTING REQUESTS FOR RETIREMENT AND WHICH PROVIDE THAT, NORMALLY, A REQUEST FOR VOLUNTARY RETIREMENT DATE MUST BE SUBMITTED A MINIMUM OF 3 MONTHS IN ADVANCE OF SUCH DATE. IT IS STATED IN ARTICLE 12-C-3 THAT REQUESTS FOR A VOLUNTARY RETIREMENT DATE THAT ARE RECEIVED WITH LESS THAN 3 MONTHS' MINIMUM NOTICE MAY BE CONSIDERED UNDER SPECIAL CIRCUMSTANCES, BUT THAT IN ALL SUCH CASES THE COMPLETED REPORT OF PHYSICAL EXAMINATION SHALL ACCOMPANY THE REQUEST AS AN ENCLOSURE IN ORDER TO INSURE EXPEDITIOUS ACTION. ARTICLE 12-C-21 OF THAT MANUAL PROVIDES THAT PERMANENT REGULAR COMMISSIONED OFFICERS APPROACHING STATUTORY RETIREMENT AGE WILL BE NOTIFIED APPROXIMATELY 4 MONTHS PRIOR TO THE FIRST DAY OF THE MONTH FOLLOWING THEIR 62D BIRTHDAY THAT RETIREMENT HAS BEEN SCHEDULED.

YOUR LETTER OF MARCH 25, 1964, CONTAINS YOUR CLAIM FOR THE LUMP-SUM PAYMENT OF $2,000 WHICH YOU BELIEVE TO BE DUE YOU UNDER THE PROVISIONS OF PUBLIC LAW 88-130, AND IT APPEARS THAT IT IS GROUNDED ON THE FACT THAT, UNDER THE PROVISIONS OF THAT PUBLIC LAW, YOU WERE CONSIDERED FOR CONTINUATION ON ACTIVE DUTY. SINCE YOU WERE SO CONSIDERED AND WERE ADVISED THAT YOU MIGHT ELECT TO RETIRE BEFORE JUNE 30, 1964, UNDER SOME OTHER PROVISION OF LAW, YOU CONTEND THAT THE COMMANDANT ILLEGALLY DENIED YOUR REQUEST FOR VOLUNTARY RETIREMENT ON FEBRUARY 1, 1964, AND THAT SUCH ACTION CANNOT DEPRIVE YOU OF YOUR ENTITLEMENT TO THE LUMP SUM PAYMENT OF $2,000.

IT APPEARS FROM AN EXAMINATION OF THE LEGISLATIVE HISTORY OF H.R. 5623, 88TH CONGRESS, WHICH BECAME PUBLIC LAW 88-130, THAT ONE OF THE PURPOSES OF THAT BILL WAS TO PROVIDE FOR THE INVOLUNTARY RETIREMENT, ON A SELECTIVE BASIS, OF SOME OF THE OFFICERS THEN SERVING ON ACTIVE DUTY IN THE UNITED STATES COAST GUARD IN THE GRADES OF COMMANDER AND CAPTAIN. SECTION 3 OF THE LAW AUTHORIZES THE SECRETARY OF THE TREASURY TO CONVENE BOARDS TO RECOMMEND FOR CONTINUATION ON ACTIVE DUTY OFFICERS OF THE COAST GUARD ON THE ACTIVE DUTY PROMOTION LIST IN THE GRADES OF COMMANDER AND CAPTAIN WHO WERE PROMOTED TO THEIR GRADES UNDER THE PROMOTION SYSTEM IN EFFECT PRIOR TO SEPTEMBER 24, 1963. THAT SECTION ALSO PROVIDES PERTINENTLY THAT---

(L) EACH OFFICER WHO IS CONSIDERED FOR CONTINUATION ON ACTIVE DUTY UNDER THIS SECTION AND WHO IS NOT RECOMMENDED FOR CONTINUATION IN THE APPROVED REPORT OF THE BOARD SHALL NOT THEREAFTER BE ELIGIBLE FOR PROMOTION AND, UNLESS EARLIER RETIRED UNDER SOME OTHER PROVISION OF LAW, SHALL BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH THE REPORT OF THE BOARD IS APPROVED, OR ON THE LAST DAY OF THE MONTH IN WHICH HE COMPLETES TWENTY YEARS OF ACTIVE SERVICE, WHICHEVER IS LATER.

(M) EACH OFFICER WHO IS RETIRED UNDER THIS SECTION SHALL BE PAID, IN ADDITION TO HIS RETIRED PAY, A LUMP-SUM PAYMENT OF $2,000, EFFECTIVE ON THE DATE OF HIS RETIREMENT.

(N) AN OFFICER WHOSE RETIREMENT IS REQUIRED UNDER THIS SECTION SHALL BE CONSIDERED FOR THE PURPOSES OF SUBSECTION (M) OF THIS SECTION AS BEING RETIRED UNDER THIS SECTION IF THE OFFICER RETIRES VOLUNTARILY PRIOR TO THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS SECTION.

SECTION 291, TITLE 14, U.S.C. AS ADDED BY PUBLIC LAW 88-130, READS AS FOLLOWS:

ANY REGULAR COMMISSIONED OFFICER WHO HAS COMPLETED TWENTY YEARS' ACTIVE SERVICE IN THE COAST GUARD, NAVY, ARMY, AIR FORCE, MARINE CORPS, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE WITH WHICH RETIRED.

EFFECTIVE SEPTEMBER 25, 1963, SECTION 291 SUPERSEDED SECTION 232, TITLE 14, WHICH WAS REPEALED BY SECTION 1 (10) OF PUBLIC LAW 88-130.

SECTION 293, TITLE 14, U.S.C. ALSO ADDED BY PUBLIC LAW 88-130, READS AS FOLLOWS:

ANY REGULAR COMMISSIONED OFFICER, EXCEPT A COMMISSIONED WARRANT OFFICER, WHO HAS REACHED THE AGE OF SIXTY-TWO SHALL BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE WITH WHICH RETIRED.

SECTIONS 1 AND 2 OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, 73 STAT. 333, 10 U.S.C. 5701 NOTE, APPLICABLE TO CERTAIN OFFICERS OF THE REGULAR NAVY AND THE REGULAR MARINE CORPS, CONTAIN PROVISIONS WHICH ARE SUBSTANTIALLY IDENTICAL WITH THOSE PROVISIONS OF SECTION 3 OF PUBLIC LAW 88-130 WHICH ARE QUOTED ABOVE. IN OUR DECISION OF AUGUST 18, 1959, B- 140467, 39 COMP. GEN. 108, WE HAD FOR CONSIDERATION SEVERAL QUESTIONS INVOLVING SUCH STATUTORY PROVISIONS. ONE OF THOSE QUESTIONS WAS WHETHER AN OFFICER WHO, AFTER HE HAD FAILED OF SELECTION FOR CONTINUATION ON ACTIVE DUTY, HAD SUBMITTED AN APPLICATION FOR VOLUNTARY RETIREMENT AS PROVIDED FOR IN THE ACT OF AUGUST 11, 1959, BUT WHO WAS SUBSEQUENTLY RETIRED UNDER THE LAW RELATING TO DISABILITY RETIREMENTS, WAS ENTITLED TO THE LUMP-SUM PAYMENT OF $2,000. WE POINTED OUT THAT A DISABILITY RETIREMENT IS NOT REGARDED AS VOLUNTARY AND WE HELD THAT IF AN OFFICER IS RETIRED FOR DISABILITY UNDER THE STATUTORY PROVISIONS AUTHORIZING RETIREMENT FOR DISABILITY, HE IS NOT RETIRED UNDER THE ACT OF AUGUST 11, 1959, AND, HENCE, HE IS NOT ENTITLED TO THE LUMP-SUM PAYMENT AUTHORIZED BY THAT ACT. IN OTHER WORDS, THE DETERMINING FACTOR IS THE TYPE OF RETIREMENT EVENTUALLY EFFECTED AND THE TIME OF SUBMISSION OF AN APPLICATION FOR VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF THAT LAW WAS NOT CONSIDERED TO BE MATERIAL. A COPY OF THE DECISION OF AUGUST 18, 1959, IS ENCLOSED FOR YOUR INFORMATION.

WE FIND NOTHING IN PUBLIC LAW 88-130 WHICH WOULD REQUIRE A CONCLUSION THAT THE ACTION OF THE COMMANDANT IN YOUR CASE WAS ILLEGAL. IT APPEARS THAT YOUR RETIREMENT ON APRIL 1, 1964, WAS EFFECTED UNDER THE PROVISIONS OF SECTION 293, TITLE 14, U.S.C. AND THAT SUCH RETIREMENT WAS A COMPULSORY RETIREMENT AT THE AGE OF 62. SINCE IT WAS NOT A VOLUNTARY RETIREMENT WITHIN THE MEANING OF SECTION 3 OF PUBLIC LAW 88-130, YOU ARE NOT ENTITLED TO A LUMP-SUM PAYMENT OF $2,000 UNDER THAT SECTION. ACCORDINGLY, THE SETTLEMENT OF APRIL 21, 1964, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.