B-154212, JUNE 4, 1964, 43 COMP. GEN. 768

B-154212, JUNE 4, 1964, 43 COMP. GEN. 768

PAY - SEVERANCE - SERVICE DETERMINATION. PAY - SEVERANCE - ACCEPTANCE EFFECT THE LONGTIME CONSTRUCTION OF THE TERM "20 YEARS OF SERVICE," IN 10 U.S.C. 6384 (A) RELATING TO INVOLUNTARY SEPARATION OF NAVY OFFICERS WITH LESS THAN 20 YEARS OF SERVICE BY SELECTION BOARD ACTION, AS MEANING 20 YEARS OF TOTAL COMMISSIONED SERVICE IN THE REGULAR NAVY IS A TENABLE CONSTRUCTION AND, THEREFORE, A MARINE CORPS OFFICER WITH MORE THAN 20 YEARS OF ENLISTED RESERVE OFFICER AND REGULAR COMMISSIONED OFFICER SERVICE BUT LESS THAN 20 YEARS OF REGULAR COMMISSIONED SERVICE WHEN A SELECTION BOARD REPORTS THE OFFICER AS UNSATISFACTORY FOR DISCHARGE WITH SEVERANCE PAY IS AN OFFICER WITH LESS THAN 20 YEARS OF SERVICE WITHIN 10 U.S.C. 6384 (A) SO THAT THE ACTION OF THE SELECTION BOARD IS LEGAL. A MARINE CORPS OFFICER WHO WILL HAVE COMPLETED LESS THAN 16 YEARS OF ACTIVE DUTY ENLISTED AND COMMISSIONED OFFICER SERVICE WHEN HE ACCEPTS A LUMP-SUM SEVERANCE PAYMENT AS A RESULT OF A SELECTION BOARD ACTION UNDER 10 U.S.C. 6384 (A) REPORTING THE OFFICER AS UNSATISFACTORY MAY NOT HAVE THE LANGUAGE OF 10 U.S.C. 6384 (B) THAT ACCEPTANCE OF A LUMP SUM PAYMENT DOES NOT DEPRIVE THE OFFICER OF RETIREMENT BENEFITS CONSTRUED AS ENTITLING THE MEMBER TO RETIREMENT WITH RETIRED PAY IN THE ABSENCE OF A LAW WHICH AUTHORIZES SUCH RETIREMENT.

TO THE SECRETARY OF THE NAVY, JUNE 4, 1964:

REFERENCE IS MADE TO LETTER OF MAY 15, 1964, FROM THE UNDER SECRETARY OF THE NAVY (ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. SS-N (MC-759) ( REQUESTING A DECISION CONCERNING THE LEGALITY OF THE PENDING INVOLUNTARY SEPARATION OF AN OFFICER OF THE U.S. MARINE CORPS AND WHETHER HE WILL BE ENTITLED TO ANY RETIREMENT BENEFITS BY VIRTUE OF HIS SERVICE.

IT IS STATED THAT MAJOR JOHN S. THOMPSON, 037247, USMC, ENLISTED IN THE U.S. NAVAL RESERVE ON OCTOBER 14, 1942, AND WAS ORDERED TO ACTIVE DUTY ON JANUARY 13, 1943. ON MAY 15, 1944, HE WAS COMMISSIONED IN THE U.S. MARINE CORPS RESERVE AND CONCURRENTLY ORDERED TO ACTIVE DUTY, SERVING UNTIL FEBRUARY 13, 1946. MAJOR THOMPSON RETURNED TO ACTIVE DUTY ON OCTOBER 22, 1951, HAVING SERVED 48 DAYS ON ACTIVE DUTY TRAINING IN THE INTERIM. JUNE 16, 1954, HE WAS COMMISSIONED IN THE U.S. MARINE CORPS, IN WHICH HE HAS SERVED TO DATE. HE WAS REPORTED AS UNSATISFACTORY BY THE FISCAL YEAR 1964 SELECTION BOARD, AND HIS DISCHARGE WITH SEVERANCE PAY IS TO BE ACCOMPLISHED ON JUNE 30, 1964, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6384, WHICH READS IN PERTINENT PART AS FOLLOWS:

(A) EACH SELECTION BOARD CONVENED UNDER CHAPTER 543 OF THIS TITLE TO RECOMMEND OFFICERS FOR PROMOTION SHALL REPORT, FROM AMONG THOSE OFFICERS ELIGIBLE FOR CONSIDERATION, THE NAME OF EACH OFFICER WITH LESS THAN 20 YEARS OF SERVICE WHOSE RECORD, IN THE OPINION OF THE BOARD, INDICATES HIS UNSATISFACTORY PERFORMANCE OF DUTY IN HIS PRESENT GRADE, AND, IN THE OPINION OF THE BOARD, INDICATES THAT HE WOULD NOT SATISFACTORILY PERFORM THE DUTIES OF A HIGHER GRADE.

(B) EACH OFFICER ON THE ACTIVE LIST OF THE NAVY OR THE MARINE CORPS WHOSE NAME IS REPORTED UNDER THIS SECTION SHALL * * * BE HONORABLY DISCHARGED FROM THE NAVAL SERVICE ON JUNE 30 OF THE FISCAL YEAR IN WHICH HIS NAME IS SO REPORTED, OR, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, ON ANY EARLIER DATE IF THE OFFICER SO REQUESTS, WITH A LUMP-SUM PAYMENT COMPUTED ON THE BASIS OF TWO MONTHS' BASIC PAY RECEIVED AT THE TIME OF DISCHARGE MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE, BUT THE PAYMENT MAY NOT BE MORE THAN TWO YEARS' BASIC PAY. THE ACCEPTANCE OF A LUMP-SUM PAYMENT UNDER THIS SECTION DOES NOT DEPRIVE A PERSON OF ANY RETIREMENT BENEFITS FROM THE UNITED STATES. HOWEVER, THERE SHALL BE DEDUCTED FROM EACH OF HIS RETIREMENT PAYMENTS SO MUCH THEREOF AS IS BASED ON THE SERVICE FOR WHICH HE HAS RECEIVED PAYMENT UNDER THIS SECTION, UNLESS THE TOTAL DEDUCTIONS EQUAL THE AMOUNT OF THE LUMP-SUM PAYMENTS. HOWEVER, NO PERSON IS ENTITLED TO A LUMP-SUM PAYMENT UNDER THIS SECTION THAT IS MORE THAN $15,000.

(C) THE YEARS OF SERVICE THAT ARE COUNTED UNDER SUBSECTION (B) ARE- -

(1) FOR A MALE LINE OFFICER OF THE NAVY OR A MALE OFFICER OF THE MARINE CORPS, HIS YEARS OF TOTAL COMMISSIONED SERVICE AS COMPUTED UNDER SECTION 6387 OF THIS TITLE;

(2) FOR A STAFF CORPS OFFICER, OTHER THAN A WOMAN OFFICER APPOINTED UNDER SECTION 5590 OF THIS TITLE AND OTHER THAN AN OFFICER IN THE NURSE CORPS, HIS YEARS OF TOTAL COMMISSIONED SERVICE AS COMPUTED UNDER SECTION 6388 OF THIS TITLE;

IT IS STATED THAT THE SELECTION BOARD ACTION RAISES THE FOLLOWING QUESTIONS:

1. THE LEGALITY OF THE SELECTION BOARD ACTION IN DISCHARGING THE OFFICER WITH SEVERANCE PAY, WHICH LEGALITY DEPENDS UPON THE MEANING OF THE PHRASE "20 YEARS' SERVICE" IN SECTION 6384, ACCUMULATION OF WHICH PREVENTS CONSIDERATION OF AN OFFICER AS UNSATISFACTORY.

2. ASSUMING THIS PHRASE CONTEMPLATES TOTAL COMMISSIONED SERVICE AS OF THE DATE THE BOARD REPORTS AN OFFICER AS UNSATISFACTORY, MAKING IT LEGAL TO PAY MAJOR THOMPSON THE PRESCRIBED SEVERANCE PAY, WHETHER MAJOR THOMPSON HAS A RIGHT TO THE PAYMENT OF ANY OTHER RETIREMENT BENEFITS BY VIRTUE OF HIS SERVICE.

THE LETTER OF MAY 15, 1964, STATES THAT THE FIRST QUESTION HAS BEEN THE SUBJECT OF SEVERAL OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN WHICH THE PHRASE "20 YEARS' SERVICE" HAS BEEN INTERPRETED. THESE OPINIONS, INCLUDING ONE IN 1948, ONE IN 1961, AND A RECENT OPINION IN THE INSTANT CASE, INTERPRETED THAT PHRASE AS CONTEMPLATING 20 YEARS OF TOTAL COMMISSIONED SERVICE (IN THE REGULAR NAVY) AS OF THE DATE THE SELECTION BOARD REPORTS THE OFFICER AS UNSATISFACTORY.

THE PERTINENT PROVISIONS OF 10 U.S.C. 6384 WERE DERIVED FROM SUBSECTIONS 309 (C) (2) AND 312 (H) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 851, 680, 34 U.S.C. 306D (C) (2) AND 410J (H) (1952 ED.); THE PROVISIONS OF SUBSECTION 309 (C) (2) BEING SIMILAR TO THE PROVISIONS OF SUBSECTIONS 109 (F), 34 U.S.C. 304E (F) (1952 ED.), AND 209 (E), 34 U.S.C. 305E (E) (1952 ED.), AND 312 (H) BEING SIMILAR TO THE PROVISIONS OF SUBSECTIONS 112 (G), 34 U.S.C. 410F (G) (1952 ED.), AND 212 (G), 34 U.S.C. 410H (G) (1952 ED.), WHICH PROVIDED FOR THE SEPARATION OF OFFICERS FROM THE NAVY WITH SEVERANCE PAY AND EACH OF WHICH PROVIDED FOR THE COMPUTATION OF THE SEVERANCE PAY ON THE BASIS OF YEARS OF COMMISSIONED SERVICE COMPUTED IN ACCORDANCE WITH SUBSECTION 102 (D), 34 U.S.C. 3A (D) (1952 ED.), FOR LINE OFFICERS OR 202 (D), 34 U.S.C. 3B (D) (1952 ED.), FOR STAFF OFFICERS. INSOFAR AS HERE MATERIAL THOSE SUBSECTIONS WERE SUBSTANTIALLY THE SAME IN THAT THE CREDITABLE SERVICE DATED FROM JUNE 30TH OF THE FISCAL YEAR IN WHICH THE OFFICER INVOLVED WAS APPOINTED IN THE REGULAR NAVY. THE COMMISSIONED SERVICE REFERRED TO WAS ACTIVE COMMISSIONED SERVICE IN THE REGULAR NAVY. INACTIVE COMMISSIONED SERVICE OR ACTIVE COMMISSIONED SERVICE OTHER THAN IN THE REGULAR NAVY WAS NOT CREDITABLE SERVICE.

IN HIS 1948 OPINION, CMO-1, 1949, PAGES 12-18, THE JUDGE ADVOCATE GENERAL HELD THAT THE TERM ,TWENTY YEARS' SERVICE" IN SUBSECTION 309 (C) (2) OF THE OFFICER PERSONNEL ACT OF 1947 CONSISTS ONLY OF THE "TOTAL COMMISSIONED SERVICE" AS COMPUTED IN ACCORDANCE WITH SUBSECTION 102 (D) OF THAT ACT FOR LINE OFFICERS OR SUBSECTION 202 (D) FOR STAFF OFFICERS.

THAT CONCLUSION WAS BASED IN PART ON OTHER PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947 READ IN CONJUNCTION WITH THE FOREGOING PROVISIONS WHICH SHOWED THE BASIC EXTENT TO WHICH AN OFFICER'S RIGHTS UNDER THAT ACT WERE AFFECTED BY THE LENGTH OF HIS "COMMISSIONED SERVICE.' THE LUMP-SUM SEVERANCE PAYMENT PROVIDED FOR OFFICERS DISCHARGED PURSUANT TO SUBSECTION 312 (H) WAS TO BE COMPUTED ON TWO MONTHS' PAY FOR EACH YEAR OF COMMISSIONED SERVICE COMPUTED UNDER SUBSECTION 102 (D) OR 202 (D), NOT TO EXCEED 2 YEARS' PAY, THAT IS, THE MAXIMUM CREDIT CORRESPONDS TO THE NORMAL TERM OF TOTAL COMMISSIONED SERVICE OF LIEUTENANTS OF THE LINE, SPECIFIED TO BE 12 YEARS IN SUBSECTION 308 (A) (13), 34 U.S.C. 306 (A) (13) (1952 ED.), OF THE ACT, WHICH ALSO SPECIFIED THE NORMAL TERM OF LIEUTENANT COMMANDERS OF THE LINE TO BE 18 YEARS, THUS DEMONSTRATING THAT CONGRESS INTENDED THAT SUCH OFFICERS MIGHT BE IN THE PROMOTION ZONE FOR SELECTION FOR THE FIRST TIME IN THEIR 19TH YEAR OF TOTAL COMMISSIONED SERVICE AND MIGHT NOT FAIL TWICE OF SUCH SELECTION BEFORE THEIR 20TH YEAR OF SUCH SERVICE.

OTHER PROVISIONS OF SECTION 312, 34 U.S.C. 410J (1952 ED.), REQUIRED THE INVOLUNTARY RETIREMENT OF LIEUTENANT COMMANDERS UPON COMPLETION OF 20 YEARS OF TOTAL COMMISSIONED SERVICE IF NOT THEN ON A PROMOTION LIST. ALTHOUGH OFFICERS OF ANY GRADE AND OF LESS THAN 20 YEARS' SERVICE REPORTED BY A SELECTION BOARD PURSUANT TO SUBSECTION 309 (C) (2) MUST BE DISCHARGED WITH SEVERANCE PAY, OFFICERS OF THE GRADE OF LIEUTENANT COMMANDER AND ABOVE OF 20 OR MORE YEARS OF TOTAL COMMISSIONED SERVICE WOULD NOT BE DISCHARGED, BUT WOULD BE RETIRED UPON THE COMPLETION OF THE PRESCRIBED TOTAL COMMISSIONED SERVICE IN THEIR RESPECTIVE GRADES.

SUBSECTION 309 (C) (2) REQUIRED THE SELECTION BOARD TO REPORT FOR ELIMINATION OFFICERS "AMONG THOSE ELIGIBLE FOR CONSIDERATION.' THE ELIGIBILITY OF A LINE OFFICER FOR CONSIDERATION BY A SELECTION BOARD SPECIFIED IN SECTION 307, 34 U.S.C. 306B (1952 ED.), OF THE ACT WAS GOVERNED BY HIS SERVICE IN GRADE AND, IN SOME INSTANCES, HIS TOTAL COMMISSIONED SERVICE, WHILE THAT OF A STAFF OFFICER WAS GOVERNED BY THE ELIGIBILITY OF HIS RUNNING MATE.

THE JUDGE ADVOCATE GENERAL ALSO POINTED OUT THAT TO HOLD THAT THE "TWENTY YEARS' SERVICE" WHICH OPERATES TO PROTECT AN OFFICER FROM DISCHARGE WITHOUT RETIRED PAY CONSISTS OF ANY SERVICE OTHER THAN "TOTAL COMMISSIONED SERVICE" DEFINED IN SUBSECTIONS 102 (D) AND 202 (D) WOULD REQUIRE A DETERMINATION THAT CONGRESS INTENDED TO DISCRIMINATE BETWEEN OFFICERS UPON THE BASIS OF THE SOURCE FROM WHICH THEY ENTERED THE REGULAR NAVY IN CONTRAVENTION OF THE PROVISIONS OF SECTION 1 OF THE ACT OF APRIL 18, 1946, CH. 141, 60 STAT. 92, 34 U.S.C. 272A (1952 ED.), DECLARING IT "TO BE THE POLICY OF THE CONGRESS THAT IN ALL MATTERS RELATING TO COMMISSIONED OFFICERS IN THE REGULAR NAVY THERE SHALL BE NO DISCRIMINATION WHATSOEVER AGAINST OFFICERS BECAUSE OF THE SOURCE FROM WHICH THEY ENTERED THE REGULAR NAVY.' THUS AN OFFICER WITH LESS THAN 20 YEARS' TOTAL COMMISSIONED SERVICE WHO FORMERLY SERVED AS AN ENLISTED MAN WOULD BE PROTECTED AGAINST DISCHARGE, WHILE AN OFFICER WITH THE SAME LENGTH OF ACTIVE SERVICE WHO FIRST ENTERED THE REGULAR NAVY THROUGH THE NAVAL ACADEMY OR HOLLOWAY PLAN WOULD NOT.

IN VIEW OF THE MATTERS MENTIONED BY THE JUDGE ADVOCATE GENERAL WE DO NOT FEEL THAT HIS CONCLUSION REPRESENTS AN UNTENABLE CONSTRUCTION OF THE STATUTORY PROVISIONS INVOLVED. SUCH CONSTRUCTION HAS GOVERNED THE NAVY'S APPLICATION OF THE LAW FOR A PERIOD OF MORE THAN 15 YEARS. SINCE SUCH CONCLUSION HAS RECEIVED JUDICIAL SUPPORT--- SEE PAYSON V. FRANKE, 383 F.2D 851 (1960/--- WE THINK IT SHOULD NOT BE QUESTIONED IN THE ABSENCE OF A MORE AUTHORITATIVE COURT DECISION TO THE CONTRARY. ACCORDINGLY, IT IS OUR OPINION THAT MAJOR THOMPSON WAS AN "OFFICER WITH LESS THAN 20 YEARS OF SERVICE" WITHIN THE MEANING OF 10 U.S.C. 6384 (A) AND THEREFORE THAT THE SELECTION BOARD ACTION IN REPORTING THE OFFICER FOR INVOLUNTARY SEPARATION FROM THE NAVY WITH SEVERANCE PAY WAS LEGAL. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

ON JUNE 30, 1964, MAJOR THOMPSON WILL HAVE COMPLETED 15 YEARS, 10 MONTHS, AND 28 DAYS OF ACTIVE DUTY SERVICE. WE KNOW OF NO PROVISION OF LAW WHICH AUTHORIZES HIS RETIREMENT WITH RETIRED PAY AT THAT TIME. THE STATEMENT QUOTED IN THE LETTER OF MAY 15, 1964, FROM 10 U.S.C. 6384 (B) THAT ,ACCEPTANCE OF A LUMP-SUM PAYMENT UNDER THIS SECTION DOES NOT DEPRIVE A PERSON OF ANY RETIREMENT BENEFITS FROM THE UNITED STATES" PROVIDES NO BASIS FOR AN INFERENCE THAT ANY OFFICER RECEIVING SUCH A PAYMENT MAY BE ENTITLED TO SOME RETIREMENT BENEFITS. THE LEGISLATIVE HISTORY OF THAT PROVISION, WHICH WAS ADDED TO SECTION 312 OF THE OFFICER PERSONNEL ACT OF 1947 BY THE ACT OF JUNE 18, 1954, CH. 311, 68 STAT. 257, CLEARLY SHOWS THAT THE PURPOSE OF THAT PROVISION WAS TO PREVENT THE PAYMENT OF SEVERANCE PAY FROM BARRING AN OFFICER FROM LATER QUALIFYING FOR "ANY OTHER TYPE OF GOVERNMENT RETIREMENT,SUCH AS RESERVE RETIREMENT UNDER TITLE III OF PUBLIC LAW 810, 80TH CONGRESS.' SEE H.REPT. NO. 1611, 83D CONGRESS, 2D SESS. 3 AND PAGES 4006-4008 AND 4027-4028 OF THE HEARINGS BEFORE THE HOUSE COMMITTEE ON ARMED SERVICES ON H.R. 8635, 83D CONGRESS, A COMPANION BILL WHICH AS PASSED BY THE HOUSE OF REPRESENTATIVES WAS PRACTICALLY IDENTICAL TO S.3524, 83D CONGRESS, WHICH BECAME THE ACT OF JUNE 18, 1954. YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.