B-34345, NOVEMBER 22, 1943, 23 COMP. GEN. 376

B-34345, NOVEMBER 22, 1943, 23 COMP. GEN. 376

LUMP SUM PAYMENT UNDER NAVAL AVIATION CADET ACT OF 1942 THE TRANSFER OF A NAVAL AVIATION RESERVE OFFICER TO THE RETIRED LIST BECAUSE OF DISABILITY INCURRED ON EXTENDED ACTIVE DUTY MAY BE REGARDED AS A "RELEASE FROM ACTIVE DUTY" WITHIN THE MEANING OF SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED, AUTHORIZING, UPON RELEASE FROM ACTIVE DUTY, A LUMP SUM PAYMENT OF $500 FOR EACH YEAR OF CONTINUOUS ACTIVE COMMISSIONED SERVICE OF OFFICERS COMMISSIONED THEREUNDER OR UNDER THE NAVAL AVIATION RESERVE ACT OF 1939, AND, THEREFORE, ANY LUMP SUM AMOUNT ACCRUED TO SUCH AN OFFICER FOR CONTINUOUS COMMISSIONED ACTIVE SERVICE THERETOFORE PERFORMED MAY BE PAID AT THE TIME OF HIS TRANSFER TO THE RETIRED LIST. IN COMPUTING CONTINUOUS COMMISSIONED ACTIVE SERVICE OF NAVAL AVIATION RESERVE OFFICERS FOR PURPOSES OF PAYMENT OF THE LUMP SUM AMOUNT AUTHORIZED BY SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, AS AMENDED, FOR EACH YEAR OF ACTIVE COMMISSIONED SERVICE OF OFFICERS COMMISSIONED THEREUNDER OR UNDER THE NAVAL AVIATION RESERVE ACT OF 1939, THERE MAY NOT BE INCLUDED ACTIVE DUTY PERFORMED BY SUCH OFFICERS SUBSEQUENT TO TRANSFER TO THE RETIRED LIST BECAUSE OF DISABILITY INCURRED IN LINE OF DUTY, IRRESPECTIVE OF WHETHER SUCH DUTY AS RETIRED OFFICERS FOLLOWS IMMEDIATELY THEIR TRANSFER TO THE RETIRED LIST OR FOLLOWS AN INTERVAL IN AN INACTIVE STATUS ON THE RETIRED LIST.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 22, 1943:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1943, REQUESTING A DECISION ON A MATTER SET FORTH IN A LETTER DATED APRIL 20, 1943, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

REFERENCES:

(A) SECTION 1453, REVISED STATUTES (34 U.S.C. 417).

(B) SECTION 6 OF THE ACT OF APRIL 15, 1935 ( PUBLIC LAW 37--- 74TH

CONGRESS).

(C) SECTION 8 OF THE ACT OF JUNE 13, 1939 ( PUBLIC LAW 129---

76TH CONGRESS).

(D) ACT OF AUGUST 27, 1940 (54 STAT. 864) (34 U.S.C. 855C-1)

(AS AMENDED BY PUBLIC LAW 737--- 77TH CONGRESS APPROVED

OCTOBER 10, 1942).

(E) SECTION 6 OF THE ACT OF AUGUST 27, 1940 (54 STAT. 865).

(F) ACT OF JULY 24, 1941 (54 STAT. 604) (34 U.S.C. 35OG (A)

AND (J) ).

(G) CLAIM NO. 10984409 DISALLOWED BY THE GENERAL ACCOUNTING

OFFICE ( CLAIMS DIVISION) ON JULY 20, 1942.

(H) NAVAL AVIATION CADET ACT OF 1942 ( PUBLIC LAW 698--- 77TH

CONGRESS) APPROVED AUGUST 4, 1942)

1. UNDER THE PROVISIONS OF SECTION 12 OF REFERENCE (H), OFFICERS COMMISSIONED IN CLASS A-V (N) OF THE NAVAL RESERVE, AS SPECIFIED THEREIN, ARE ENTITLED UPON RELEASE FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS TO PAYMENT OF A LUMP-SUM NOT TO EXCEED $3,500, COMPUTED ON THE BASIS OF $500 FOR EACH COMPLETE YEAR OF ACTIVE COMMISSIONED SERVICE, AND A PRORATA AMOUNT FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH SERVICE IF RELEASED FROM ACTIVE DUTY OTHER THAN AT OWN REQUEST OR AS A RESULT OF DISCIPLINARY ACTION. SECTION 12 OF REFERENCE (H) IS A CONTINUATION IN MODIFIED FORM OF THE LUMP-SUM PAYMENT AUTHORIZED IN REFERENCES (B), (C) AND (E) WHICH ENVISAGED PEACE TIME CONDITIONS AND CONTEMPLATED THE EMPLOYMENT ON ACTIVE DUTY FOR A PERIOD OF NOT MORE THAN SEVEN YEARS OF OFFICERS COMMISSIONED AS ENSIGNS A-V (N), USNR, AFTER COMPLETION OF TRAINING AS AVIATION CADET. SUCH LEGISLATION WAS PROPOSED AND ENACTED AS IT WAS CONSIDERED THAT PAYMENT OF LUMP-SUM WOULD OBVIATE LATER CLAIMS OF THIS PARTICULAR GROUP OF OFFICERS FOR RETIREMENT BENEFITS ON THE BASIS THAT THE GOVERNMENT HAD TAKEN SEVERAL YEARS OF THEIR LIFE AT A PERIOD WHERE THEY WOULD NORMALLY ENTER INTO LUCRATIVE PROFESSIONAL OR BUSINESS PURSUITS, AND ON RELEASE FROM ACTIVE DUTY IN A NON-PAY STATUS WOULD PROVIDE THEM WITH FINANCIAL MEANS OF ESTABLISHING THEMSELVES IN CIVIL LIFE.

2. AT THE TIME THE NAVAL AVIATION CADET ACT OF 1942 WAS ENACTED THERE WERE SEVERAL THOUSAND AVIATION CADETS, AND OFFICERS COMMISSIONED PURSUANT TO AUTHORITY CONTAINED IN THE ACT OF JUNE 13, 1939, AFTER COMPLETION OF TRAINING AS AVIATION CADETS, WHO ENTERED UPON SUCH TRAINING WITH THE UNDERSTANDING THAT LUMP-SUM PAYMENT WOULD ACCRUE TO THEM UNDER THE CONDITIONS SPECIFIED IN THE SEVERAL ACTS RELATING THERETO. IN THIS CONNECTION ATTENTION IS INVITED TO THE FACT THAT THE AUTHORITY GRANTED THE PRESIDENT IN THE SECOND PROVISO OF SECTION 12 OF REFERENCE (H) TO SUSPEND PAYMENT OF LUMP-SUM TO COMMISSIONED OFFICERS WHO WERE ENLISTED IN, OR TRANSFERRED TO, THE GRADE OF AVIATION CADET WITHIN THIRTY DAYS AFTER AUGUST 4, 1942, HAS BEEN EXERCISED. UNDER PRIOR LAWS, ENACTED UNDER PEACE TIME CONDITIONS, THE LUMP-SUM PAYMENT WAS PROVIDED TO STIMULATE APPLICATIONS FOR APPOINTMENT AS AVIATION CADET WHEREAS UNDER WARTIME CONDITIONS SUCH STIMULUS WAS NOT DESIROUS OR NECESSARY. THEREFORE, SUCH PROVISIONS FOR SUSPENSION OF LUMP-SUM PAYMENT TO OFFICERS COMMISSIONED IN CLASS A-V (N), USNR, AFTER COMPLETION OF TRAINING AS ENLISTED AVIATION CADET WAS INCORPORATED AS TO OFFICERS SO COMMISSIONED WHO HAD NOT ENLISTED IN, OR TRANSFERRED TO, THE ENLISTED GRADE OF AVIATION CADET WITH EXPECTATION OF RECEIVING LUMP SUM PAYMENT ON RELEASE FROM ACTIVE DUTY.

3. THE LUMP-SUM PAYMENT AUTHORIZED BY THE SEVERAL LAWS ENACTED PRIOR TO AUGUST 4, 1942, CONTEMPLATED RELEASE FROM ACTIVE DUTY IN A NON-PAY STATUS. HOWEVER, OFFICERS OF THE NAVAL RESERVE, INCLUDING THOSE COMMISSIONED IN CLASS A-V (N), USNR, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACTS OF JUNE 13, 1939, AND AUGUST 4, 1942, ON ACTIVE DUTY IN EXCESS OF THIRTY DAYS ARE ENTITLED TO RETIREMENT FOR PHYSICAL DISABILITY UNDER THE SAME CONDITIONS AS OFFICERS OF THE REGULAR NAVY. OFFICERS OF THE NAVAL RESERVE WHO ARE RETIRED FOR PHYSICAL DISABILITY UNDER THE AUTHORITY CONTAINED IN REFERENCES (D) AND (F), ARE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY AND RECEIVE RETIRED PAY ON THE SAME BASIS AS RETIRED OFFICERS OF THE REGULAR NAVY ON THE RETIRED LIST. IN REFERENCE (G), THE GENERAL ACCOUNTING OFFICE ( CLAIMS DIVISION) DISALLOWED CLAIM FOR LUMP-SUM PAYMENT SUBMITTED BY WILLIAM GEORGE LOGAN WHOSE COMMISSION AS ENSIGN A-V (N), USNR, WAS TERMINATED UNDER HONORABLE CONDITIONS ON MARCH 6, 1941, DATE PRIOR TO DATE OF ACCEPTANCE OF APPOINTMENT AS ENSIGN IN THE REGULAR NAVY. THE BASIS FOR THE DISALLOWANCE OF THIS CLAIM WAS THAT TERMINATION OF COMMISSION IN THE NAVAL RESERVE WAS NOT A COMPLETE SEPARATION FROM THE SERVICE WITH RETURN TO CIVIL LIFE, NO BREAK OCCURRED IN HIS SERVICE BY REASON OF IMMEDIATE ACCEPTANCE OF COMMISSION AS ENSIGN, USN.

4. IN VIEW OF THE FOREGOING IT IS RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO THE RIGHT OF COMMISSIONED OFFICERS, A-V (N), USNR, (FORMER AVIATION CADETS), TO LUMP-SUM PAYMENT IF TRANSFERRED TO THE RETIRED LIST IN A PAY STATUS. AS ILLUSTRATIVE OF THE TYPE OF CASES INVOLVED, THE FOLLOWING EXAMPLES ARE CITED:

(A) AN AVIATION CADET REPORTED FOR ACTIVE DUTY UNDERGOING TRAINING ON AUGUST 26, 1940, ACCEPTED APPOINTMENT AS ENSIGN A-V (N), USNR, ON APRIL 1, 1941, WAS PLACED ON THE RETIRED LIST ON MARCH 1, 1943, UNDER AUTHORITY CONTAINED IN 34 U.S.C. 417 AND 855 C-1, AND WAS RELEASED FROM ACTIVE DUTY. THIS OFFICER IS ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY TO WHICH ENTITLED ON DATE OF RETIREMENT. DOES TRANSFER TO THE RETIRED LIST AND RELEASE FROM ACTIVE DUTY UNDER SUCH CIRCUMSTANCES ENTITLE THE OFFICER TO LUMP-SUM PAYMENT AUTHORIZED IN SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942 COMPUTED ON THE BASIS OF $500 FOR EACH COMPLETE YEAR OF ACTIVE COMMISSIONED SERVICE AND TO PRO RATA AMOUNT FOR FRACTIONAL YEAR OF SUCH SERVICE?

(B) AN AVIATION CADET REPORTED FOR ACTIVE DUTY UNDERGOING TRAINING ON FEBRUARY 20, 1940, ACCEPTED APPOINTMENT AS ENSIGN A-V (N), USNR, ON NOVEMBER 1, 1940, WAS PLACED ON THE RETIRED LIST ON APRIL 1, 1943, IN TEMPORARY RANK OF LIEUTENANT, UNDER THE AUTHORITY CONTAINED IN 34 U.S.C. 35OG (A) AND (J), AND WAS CONTINUED ON ACTIVE DUTY AFTER RETIREMENT. DOES TRANSFER TO THE RETIRED LIST TERMINATE THE ACTIVE DUTY STATUS OF THIS OFFICER WITHIN THE MEANING OF SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942 SO AS TO ENTITLE HIM TO LUMP-SUM PAYMENT AS AUTHORIZED THEREIN BASED ON ACTIVE COMMISSIONED SERVICE FROM NOVEMBER 1, 1940, TO MARCH 31, 1943, AND WOULD SUCH LUMP-SUM BE PAYABLE ON DATE OF RETIREMENT OR ON DATE OF FINAL RELEASE; OR, SINCE HE WAS NOT RELEASED FROM ACTIVE DUTY ON DATE OF TRANSFER TO THE RETIRED LIST, MAY PERIOD OF CONTINUOUS ACTIVE DUTY SUBSEQUENT TO RETIREMENT BE INCLUDED IN DETERMINING TOTAL AMOUNT OF LUMP- SUM DUE UPON SUBSEQUENT RELEASE FROM ACTIVE DUTY? WHEN THIS OFFICER IS FINALLY RELEASED FROM ACTIVE DUTY HE WILL BE ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY TO WHICH ENTITLED ON DATE OF TRANSFER TO THE RETIRED LIST PLUS AN INCREASE THEREIN WHICH MAY ACCRUE BY REASON OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT.

5. IF IT IS HELD THAT AN OFFICER OF THE CLASS DESCRIBED IN PARAGRAPH 4 (B) ABOVE IS ENTITLED TO THE LUMP-SUM PAYMENT ON THE BASIS OF ACTIVE DUTY PERFORMED BOTH PRIOR AND SUBSEQUENT TO RETIREMENT, IT WOULD APPEAR PROPER TO PROVIDE SOME PROCEDURE WHEREBY CREDITS FOR THE LUMP-SUM PAYMENT TERMINATE WITH TRANSFER TO THE RETIRED LIST. IT WOULD APPEAR THAT THIS COULD BE ACCOMPLISHED BY RELEASING THE OFFICER CONCERNED FROM ACTIVE DUTY UPON HIS RETIREMENT AND THEN RECALL HIM TO ACTIVE DUTY AFTER A LAPSE OF AT LEAST ONE DAY. HOWEVER, SUCH ACTION MIGHT RESULT IN THE PAYMENT OF MILEAGE TO AND FROM THE OFFICER'S HOME AND OBVIOUSLY WOULD MAKE FOR AN INCREASE IN PAPER WORK.

THE GRADE OF AVIATION CADET WAS ESTABLISHED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE BY THE ACT OF APRIL 15, 1935, 49 STAT. 156, WHICH ACT PROVIDED FOR THE APPOINTMENT OF CADET TO SERVE FOR A CONTINUOUS PERIOD OF FOUR YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED. THERE WERE STIPULATED CERTAIN RATES OF PAY TO WHICH SUCH CADETS WOULD BE ENTITLED WHILE ON ACTIVE DUTY UNDERGOING TRAINING AND WHILE ON ACTIVE DUTY NOT UNDERGOING TRAINING. BY SECTION 6 OF SUCH ACT, 49 STAT. 157, IT WAS PROVIDED THAT UPON RELEASE FROM A PERIOD OF ACTIVE DUTY OF FOUR YEARS OR MORE AVIATION CADETS SHOULD BE PAID A LUMP SUM OF $1,500 IN ADDITION TO ANY PAY AND ALLOWANCES WHICH THEY MIGHT OTHERWISE BE ENTITLED TO RECEIVE.

BY THE ACT OF JUNE 13, 1939, 53 STAT. 819, ENTITLED," AN ACT TO AUTHORIZE COMMISSIONING OF AVIATION CADETS IN THE NAVAL AND MARINE CORPS RESERVES UPON COMPLETION OF TRAINING, AND FOR OTHER PURPOSES," SECTION 6 OF THE ACT OF APRIL 15, 1935, SUPRA, WAS REPEALED AND, IN LIEU THEREOF, SECTIONS 6 AND 8 OF THE NEW ACT, 53 STAT. 820, PROVIDED FOR CERTAIN LUMP-SUM PAYMENTS FOR OFFICERS SO COMMISSIONED, AS FOLLOWS:

SEC. 6. WHEN OFFICERS, COMMISSIONED PURSUANT TO THIS ACT, ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR A PERIOD OF FOUR OR MORE YEARS, INCLUDING ACTIVE DUTY BOTH AS AVIATION CADETS AND AS COMMISSIONED OFFICERS, THEY SHALL BE PAID A LUMP-SUM OF $500 IN ADDITION TO ANY PAY AND ALLOWANCES WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE, EXCEPT AS HEREINAFTER PROVIDED.

SEC. 8. AVIATION CADETS WHO HAVE COMPLETED ACTIVE DUTY UNDERGOING TRAINING ON THE DATE OF APPROVAL OF THIS ACT AND WHO MAY BE COMMISSIONED PURSUANT THERETO SHALL, UPON COMPLETION OF FOUR YEARS' ACTIVE DUTY BE PAID A LUMP SUM DETERMINED AS $1,000 MINUS THE EXCESS OF THE PAY AND ALLOWANCES RECEIVED BY THEM PRIOR TO THE DATE OF SUCH COMPLETION OF DUTY OVER THE PAY AND ALLOWANCES, WITH WHICH SHALL BE INCLUDED GOVERNMENT PAID INSURANCE PREMIUMS, WHICH THEY WOULD HAVE RECEIVED AS AVIATION CADETS HAD THEY NOT BEEN COMMISSIONED. NO PERSON SHALL BE HELD TO BE INDEBTED TO THE UNITED STATES AS A RESULT OF THE PROVISIONS OF THIS SECTION. PAYMENTS AUTHORIZED BY THIS SECTION SHALL BE IN ADDITION TO THAT AUTHORIZED BY SECTION 6 OF THIS ACT.

THE ACT OF AUGUST 27, 1940, 54 STAT. 864, 865, AUTHORIZED, INTER ALIA, THE APPOINTMENT OF NAVAL AVIATORS OF THE NAVAL AND MARINE CORPS RESERVES TO THE LINE OF THE REGULAR NAVY OR MARINE CORPS, UNDER CERTAIN CONDITIONS.

SECTION 5 OF THAT ACT REPEALED SAID SECTIONS 6 AND 8 OF THE ACT OF JUNE 13, 1939, AND, IN LIEU THEREOF, SECTION 6 OF THE LATER ACT PROVIDED:

WHEN OFFICERS COMMISSIONED IN THE NAVAL OR MARINE CORPS RESERVE PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939 ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE OTHER THAN DUTY AS AVIATION CADETS UNDERGOING TRAINING AND IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON THEIR OWN REQUEST OR AS A RESULT OF DISCIPLINARY ACTION, THIS LUMP-SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH SERVICE. THE LUMP-SUM PAYMENTS AUTHORIZED HEREIN SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE.

THAT SECTION WAS REPEALED BY SECTION 15 (C) OF THE NAVAL AVIATION CADET ACT OF AUGUST 4, 1942, 56 STAT. 739, AND THERE WAS SUBSTITUTED THEREFOR SECTION 12 OF THE LATTER ACT, 56 STAT. 738, PROVIDING AS FOLLOWS:

WHEN OFFICERS COMMISSIONED PURSUANT TO THIS ACT OR TO THE NAVAL AVIATION RESERVE ACT OF 1939 (53 STAT. 819) ARE RELEASED FROM ACTIVE DUTY THAT HAS BEEN CONTINUOUS FOR ONE OR MORE YEARS, THEY, OR IN THE EVENT OF DEATH OF SUCH OFFICERS AFTER CONTINUOUS ACTIVE DUTY FOR ONE OR MORE YEARS, THE BENEFICIARIES SPECIALLY DESIGNATED IN THE MANNER PRESCRIBED BY THE SECRETARY OF THE NAVY, SHALL BE PAID A LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF CONTINUOUS COMMISSIONED ACTIVE SERVICE, AND IN THE EVENT OF THEIR DEATH NOT THE RESULT OF THEIR OWN MISCONDUCT, OR IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON THEIR OWN REQUEST OR AS A RESULT OF DISCIPLINARY ACTION, THIS LUMP SUM PAYMENT SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH SERVICE: PROVIDED, THAT THE LUMP SUM PAYMENTS AUTHORIZED HEREIN SHALL ACCRUE FOR NOT MORE THAN SEVEN YEARS AND SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE: PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION, EXCEPT THOSE OF THE FIRST PROVISO HEREOF, MAY BE SUSPENDED DURING WAR OR NATIONAL EMERGENCY WHEN THE PRESIDENT SHALL SO DIRECT, AS TO ALL OFFICERS WHO WERE FORMERLY ENLISTED IN THE GRADE OF AVIATION CADET OR TRANSFERRED TO THAT ENLISTED GRADE MORE THAN THIRTY DAYS AFTER THE DATE OF APPROVAL OF THIS ACT. SAID SECTION 12 NOW HAS BEEN AMENDED BY THE ACT OF OCTOBER 25, 1943, PUBLIC LAW 169, 57 STAT. 574, AS FOLLOWS: ( THAT SECTION 12 OF THE AVIATION CADET ACT OF 1942 (56 STAT. 738, 34 U.S.C. 850K) IS HEREBY AMENDED BY INSERTING AFTER THE COMMA FOLLOWING THE WORD " NAVY," IN LINE 6, THE FOLLOWING: "OR, IF NO BENEFICIARY HAS BEEN SPECIFICALLY DESIGNATED, THE WIDOW OF SUCH OFFICER, AND IF THERE BE NO WIDOW, HIS CHILD OR CHILDREN, AND IF THERE BE NEITHER WIDOW NOR CHILD, THE REPRESENTATIVE OF THE OFFICER'S ESTATE. SEC. 2. THIS ACT SHALL BE EFFECTIVE FROM AUGUST 4, 1942.

THE VARIOUS ACTS HAVE REQUIRED THAT THE PERSONNEL GOVERNED THEREBY OBLIGATE THEMSELVES TO SERVICE FOR A CONTINUOUS PERIOD OF FOUR YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED. THAT IS AN OBLIGATION NOT DEMANDED OF OTHER CLASSES OF RESERVE FORCES AND THE LUMP-SUM PAYMENTS WERE AUTHORIZED AS A SPECIAL INDUCEMENT TO OBTAIN THE SERVICES OF AVIATION CADETS AND RESERVE OFFICERS ON SUCH BASIS. SUCH CONSIDERATIONS SUPPORT THE VIEW THAT THE EXPRESS LANGUAGE CONTAINED IN SECTION 12 OF THE 1942 ACT, SUPRA, AS WELL AS IN THE PRIOR ACTS, THAT THE LUMP-SUM PAYMENTS AUTHORIZED ,SHALL BE IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE" CLEARLY WAS INTENDED TO GRANT TO THIS PARTICULAR CLASS OF RESERVISTS A SPECIAL BENEFIT WHICH WOULD BE IN ADDITION TO ANY AND ALL BENEFITS PRESCRIBED BY LAW FOR MEMBERS OF THE RESERVE FORCES GENERALLY, FURTHER SUPPORT FOR SUCH VIEW IS FOUND IN THE PROVISIONS OF SAID SECTION 12, AS AMENDED, RESPECTING PAYMENT TO A DESIGNATED BENEFICIARY OR TO THE ESTATE OF THE OFFICER IN THE EVENT OF DEATH AFTER CONTINUOUS ACTIVE DUTY FOR ONE OR MORE YEARS. SUCH PROVISIONS AND THE PROVISIONS FOR PRORATING THE AMOUNT FOR THE PERIOD ACTUALLY SERVED SHOW THAT THE LUMP-SUM PAYMENTS WERE INTENDED AS ADDITIONAL COMPENSATION FOR SERVICES UNDER THE STIPULATED CONDITIONS AND NOT MERELY AS A GRATUITY OR BONUS. THE RIGHT TO SUCH ADDITIONAL COMPENSATION WOULD NOT BE FORFEITED BECAUSE OTHER COLLATERAL BENEFITS ACCRUED.

RETIREMENT PAY OF NAVAL RESERVISTS WHO SUFFER DISABILITY WHILE ON EXTENDED ACTIVE DUTY IS AUTHORIZED BY SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, 865, 34 U.S.C. 855C---1, AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS* * *.

IT IS TO BE OBSERVED THAT SUCH SECTION APPLIES GENERALLY TO ALL RESERVISTS SUFFERING DISABILITY WHILE SERVING ON EXTENDED ACTIVE DUTY, UNDER THE CONDITIONS STATED, AND THUS INCLUDES PERSONNEL WHO OTHERWISE MAY BE ENTITLED BY VIRTUE OF SECTION 12 OF THE ACT OF AUGUST 4, 1942, SUPRA, TO THE LUMP-SUM PAYMENTS PRESCRIBED THEREIN. IF THE MATTER WERE OTHERWISE DOUBTFUL, THE DOUBT WOULD APPEAR TO BE SET AT REST BY THE FACT THAT THE SAID PROVISIONS OF SECTION 4 OF THE ACT OF AUGUST 27, 1940, AUTHORIZING RETIREMENT PAY FOR ALL NAVAL AND MARINE CORPS RESERVISTS SUFFERING DISABILITY WHILE SERVING ON EXTENDED ACTIVE DUTY, ARE CONTAINED IN THE SAME ACT AS THAT WHICH SPECIALLY PROVIDED IN SECTION 6, SUPRA--- LATER SUPERSEDED BY SECTION 12 OF THE ACT OF AUGUST 4, 1942--- FOR THE LUMP-SUM PAYMENTS FOR OFFICERS COMMISSIONED IN THE NAVAL OR MARINE CORPS RESERVE PURSUANT TO THE NAVAL AVIATION RESERVE ACT OF 1939, WHICH PAYMENTS EXPRESSLY WERE TO BE "IN ADDITION TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH THEY MAY OTHERWISE BE ENTITLED TO RECEIVE.' THE TWO PROVISIONS, CONSIDERED AND ENACTED TOGETHER, SEEM CLEARLY TO SHOW THAT THE LUMP-SUM PAYMENTS AUTHORIZED IN SECTION 6 FOR AVIATION RESERVISTS WERE TO BE IN ADDITION TO THE RETIREMENT PAY BENEFITS AUTHORIZED IN SECTION 4 OF THE SAME ACT FOR NAVAL AND MARINE CORPS RESERVISTS GENERALLY. THAT BEING THE INTENT OF SECTION 6 OF THE ACT OF AUGUST 27, 1940, THERE WOULD APPEAR NO BASIS TO ASCRIBE A DIFFERENT INTENT TO THE SUBSTITUTED ESSENTIALLY SIMILAR PROVISIONS OF SECTION 12 OF THE ACT OF AUGUST 4, 1942. NOR WOULD THERE APPEAR ANY BASIS FOR A DIFFERENT RULE WITH RESPECT TO AVIATION RESERVE OFFICERS, OTHERWISE ENTITLED TO THE LUMP-SUM PAYMENTS AUTHORIZED BY SAID SECTION 12 OF THE ACT OF AUGUST 4, 1942, WHO HAVE BEEN RETIRED PURSUANT TO THE PROVISIONS OF SECTIONS 8 AND 11 (A) OF THE ACT OF JULY 24, 1941, 55 STAT. 604, 605, 34 U.S.C. ( SUPP. II) 350G, 350J, FOR DISABILITY INCURRED WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK.

HOWEVER, IT DOES NOT APPEAR THAT ACTIVE DUTY AFTER RETIRMENT WAS INTENDED TO BE INCLUDED WITHIN THE PERIOD FOR WHICH THE LUMP-SUM PAYMENTS WERE TO ACCRUE. THE TRANSFER OF AN OFFICER TO THE RETIRED LIST WORKS A MATERIAL CHANGE IN HIS STATUS; AND WHILE HE MAY SERVE THEREAFTER ON ACTIVE DUTY, HE USUALLY IS NOT REGARDED AS SERVING IN THE SAME CHARACTER AS THERETOFORE. THE RIGHTS AND OBLIGATIONS OF RETIRED OFFICERS ARE GENERALLY SEPARATELY PRESCRIBED BY STATUTE AND, USUALLY, IF RIGHTS AND BENEFITS AUTHORIZED FOR OTHER OFFICERS ARE TO EXTEND TO RETIRED OFFICERS, THE STATUTE EXPRESSLY SO PROVIDES. 13 COMP. DEC. 116; 5 COMP. GEN. 198; ANNOTATION TO SECTION 1457, REVISED STATUTES, LAWS RELATING TO THE NAVY. IT IS AT LEAST DOUBTFUL THAT IN AUTHORIZING THE LUMP-SUM PAYMENTS OF $500 TO RESERVE NAVAL AVIATORS FOR EACH YEAR OF CONTINUOUS COMMISSIONED ACTIVE SERVICE THE CONGRESS INTENDED SUCH PAYMENTS TO ACCRUE FOR PERIODS AFTER SUCH OFFICERS HAD BEEN TRANSFERRED TO THE RETIRED LIST ON ACCOUNT OF PHYSICAL INCAPACITY TO PERFORM GENERALLY THE DUTIES OF NAVAL AVIATORS ON THE ACTIVE LIST, ALTHOUGH PLACED ON ACTIVE DUTY IN THE STATUS OF RETIRED OFFICERS FOR ASSIGNMENT TO SUCH LIMITED DUTIES AS THEY MIGHT BE CAPABLE OF PERFORMING. UNDER SUCH CIRCUMSTANCES, THE TRANSFER OF SUCH OFFICERS TO THE RETIRED LIST PROPERLY IS TO BE REGARDED AS A RELEASE FROM THE ACTIVE DUTY CONTEMPLATED BY THE STATUTE, SO AS TO AUTHORIZE PAYMENT AT THAT TIME OF THE LUMP-SUM AMOUNTS ACCRUED FOR CONTINUOUS COMMISSIONED ACTIVE SERVICE THERETOFORE PERFORMED, IRRESPECTIVE OF ANY SUBSEQUENT ACTIVE DUTY AS RETIRED OFFICERS AND IRRESPECTIVE OF WHETHER SUCH DUTY AS RETIRED OFFICERS FOLLOWS IMMEDIATELY THEIR TRANSFER TO THE RETIRED LIST OR FOLLOWS AN INTERVAL IN AN INACTIVE STATUS.

ACCORDINGLY, THE QUESTION STATED IN PARAGRAPH 4 (A) OF THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IS ANSWERED IN THE AFFIRMATIVE AND THE QUESTION IN PARAGRAPH 4 (B) IS ANSWERED BY SAYING THAT THE OFFICER WOULD BE ENTITLED TO A LUMP-SUM PAYMENT BASED ON CONTINUOUS ACTIVE COMMISSIONED SERVICE FROM NOVEMBER 1, 1940, TO MARCH 31, 1943, PAYABLE ON DATE OF RETIREMENT. IN VIEW OF SUCH CONCLUSIONS, NO COMMENT IS MADE ON THE SUGGESTION CONTAINED IN THE LAST PARAGRAPH OF THE LETTER.