B-149989, OCT. 1, 1963, 43 COMP. GEN. 315

B-149989, OCT. 1, 1963, 43 COMP. GEN. 315

PAY - READJUSTMENT PAYMENT TO RESERVISTS ON INVOLUNTARY RELEASE - AMOUNT PAYABLE - MORE THAN ONE READJUSTMENT PAYMENT IN THE COMPUTATION OF THE SECOND PAYMENT OF READJUSTMENT PAY UNDER 10 U.S.C. 687 WHERE THE FIRST PAYMENT HAS NOT BEEN REPAID, ONLY THE AMOUNT OF THE PRIOR PAYMENT IS REQUIRED TO BE DEDUCTED PURSUANT TO 10 U.S.C. 687 (D), IN ORDER TO AVOID DUPLICATE PAYMENTS OF READJUSTMENT PAY FOR THE SAME PERIOD OF ACTIVE SERVICE, AND WHERE THE PREVIOUS PAYMENT WAS REPAID, THE PERIOD COVERED BY THAT PAYMENT IS TO BE TREATED AS A PERIOD FOR WHICH NO PAYMENT WAS MADE. 42 COMP. GEN. 242, MODIFIED.

TO THE SECRETARY OF DEFENSE, OCTOBER 1, 1963:

REFERENCE IS MADE TO THE LETTER OF APRIL 5, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), PRESENTING FOR DECISION THE QUESTIONS CONTAINED IN COMMITTEE ACTION NO. 317 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE RELATIVE TO COMPUTATION OF THE SECOND PAYMENT OF READJUSTMENT PAY UNDER AUTHORITY OF THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, AS AMENDED, 50 U.S.C. 1016, NOW CODIFIED IN 10 U.S.C. 687, AS FURTHER AMENDED BY PUBLIC LAW 87 509, APPROVED JUNE 28, 1962, 76 STAT. 120, IN A CASE WHERE THE FIRST PAYMENT HAS NOT BEEN REPAID. THE QUESTIONS PRESENTED ARE AS FOLLOWS:

1. IN COMPUTING THE SECOND READJUSTMENT PAYMENT IS

(A) ONLY THE PERIOD COVERED BY THE PRIOR PAYMENT REQUIRED TO BE EXCLUDED; OR

(B) ONLY THE AMOUNT OF THE PRIOR PAYMENT REQUIRED TO BE DEDUCTED; OR

(C) ARE BOTH THE PERIOD REQUIRED TO BE EXCLUDED AND THE AMOUNT REQUIRED TO BE DEDUCTED?

2. IF THE ANSWER TO EITHER QUESTION 1 (A) OR 1 (C) IS AFFIRMATIVE, MAY ANY PART OF A YEAR THAT WAS DISREGARDED, BECAUSE IT WAS LESS THAN 6MONTHS, AT THE TIME OF THE FIRST PAYMENT BE INCLUDED IN COMPUTING THE SECOND PAYMENT?

THE ACT OF JUNE 28, 1962, PROVIDES GENERALLY FOR COMPUTATION OF THE READJUSTMENT PAYMENT FOR MEMBERS COVERED THEREBY AT THE RATE OF 2 MONTHS' BASIC PAY FOR EACH YEAR OF ACTIVE SERVICE WHEREAS THE LAW IN EFFECT PRIOR TO THAT TIME AUTHORIZED ONE-HALF OF 1 MONTH'S BASIC PAY FOR EACH YEAR OF ACTIVE SERVICE.

SUBSECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, IS NOW CODIFIED IN 10 U.S.C. 687 (D) AS FOLLOWS:

ANY READJUSTMENT PAYMENT TO WHICH A MEMBER BECOMES ENTITLED UNDER THIS SECTION SHALL BE REDUCED BY THE AMOUNT OF ANY PREVIOUS PAYMENT MADE TO HIM UNDER THIS SECTION THAT HE HAS NOT REPAID TO THE UNITED STATES. IF HE HAS REPAID THAT AMOUNT TO THE UNITED STATES, THE PERIOD COVERED BY IT SHALL BE TREATED AS A PERIOD FOR WHICH A PAYMENT HAS NOT BEEN MADE UNDER THIS SECTION.

ALTHOUGH THE RECODIFICATION MADE MINOR CHANGES IN WORDING, SUCH AS SUBSTITUTING "REPAID" FOR ,REFUNDED," THERE HAS BEEN NO SUBSTANTIVE CHANGE IN SUBSECTION (F) SINCE ITS ORIGINAL ENACTMENT IN THE ACT OF JULY 9, 1956. THE LEGISLATIVE HISTORY INDICATES THAT THE PURPOSE OF SUBSECTION (F) WAS TO PREVENT DUPLICATE PAYMENTS OF READJUSTMENT PAY FOR THE SAME PERIOD OF ACTIVE SERVICE. THAT SUBSECTION PROVIDES THAT THE AMOUNT OF READJUSTMENT PAY OTHERWISE DUE ON A LATER RELEASE FROM ACTIVE DUTY MUST BE REDUCED BY THE AMOUNT OF READJUSTMENT PAY PREVIOUSLY RECEIVED UNDER THE SAME LAW ON A PRIOR RELEASE FROM ACTIVE SERVICE AND THAT, IF A PREVIOUS PAYMENT HAS BEEN REPAID, THE PERIOD COVERED BY THAT PAYMENT SHALL BE TREATED AS A PERIOD FOR WHICH NO PAYMENT WAS MADE.

THIS PROVISION MIGHT BE INTERPRETED AS REQUIRING THAT A SECOND READJUSTMENT PAYMENT, WHERE THE FIRST PAYMENT HAS NOT BEEN REPAID, BE COMPUTED ONLY ON THE PERIOD OF QUALIFYING SERVICE NOT COVERED BY THE FIRST PAYMENT. HOWEVER, SUCH INTERPRETATION WOULD RESULT IN A CONFLICT BETWEEN SUBSECTIONS (A) AND (F), 10 U.S.C. 687 (A) AND 687 (D), RESPECTIVELY. THE ONLY AUTHORIZED METHOD OF COMPUTATION IS CONTAINED IN SUBSECTION (A), WHICH APPLIES UNIFORMLY TO ALL MEMBERS COVERED BY THE ACT. WHILE THAT SUBSECTION REQUIRES THE EXCLUSION OF ANY PRIOR PERIOD FOR WHICH SEVERANCE PAY WAS RECEIVED UNDER ANY OTHER PROVISION OF LAW, IT DOES NOT PROVIDE FOR EXCLUSION OF ANY PRIOR PERIOD FOR WHICH READJUSTMENT PAY WAS RECEIVED UNDER THE ACT OF JULY 9, 1956, AS AMENDED.

IN OUR DECISION OF NOVEMBER 8, 1962, B-149989, 42 COMP. GEN. 242, WE POINTED OUT THAT THE LIMITATION ON A SECOND PAYMENT OF READJUSTMENT PAY UNDER THE 1956 ACT, AS AMENDED, IS CONTAINED IN SUBSECTION (F) RATHER THAN SUBSECTION (A). UNDER SUBSECTION (F) THE DEDUCTION OF THE AMOUNT OF THE FIRST PAYMENT FROM THE SECOND, IF NOT PREVIOUSLY REPAID, IS MANDATORY. THE EXTENT THAT WE INDICATED IN OUR DECISION OF NOVEMBER 8, 1962, THAT THE PERIOD COVERED BY THE FIRST READJUSTMENT PAYMENT MUST BE DEDUCTED IN MAKING A SECOND PAYMENT UNDER SECTION 265 UNLESS THE AMOUNT OF THE EARLIER PAYMENT IS PREVIOUSLY REFUNDED, THAT DECISION IS HEREBY MODIFIED.

QUESTION 1 (B) IS ANSWERED IN THE AFFIRMATIVE AND QUESTIONS 1 (A) AND 1 (C) ARE ANSWERED IN THE NEGATIVE, MAKING UNNECESSARY AN ANSWER TO QUESTION 2.