B-140704, OCTOBER 16, 1959, 39 COMP. GEN. 291

B-140704, OCTOBER 16, 1959, 39 COMP. GEN. 291

MILITARY PERSONNEL - DISABILITY SEVERANCE PAY - LESS THAN SIX MONTHS' ACTIVE SERVICE THE LEGISLATIVE HISTORY OF THE DISABILITY SEVERANCE PAY PROVISIONS IN SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949 INDICATES A CONGRESSIONAL INTENT THAT MEMBERS OF THE UNIFORMED SERVICES WITH LESS THAN SIX MONTHS OF ACTIVE SERVICE WOULD NOT BE ENTITLED TO SEVERANCE PAY, AND THE SPECIFIC ELIMINATION OF FRACTIONS OF A YEAR OF LESS THAN SIX MONTHS IN THE COMPUTATION OF SEVERANCE PAY IN 10 U.S.C. 1212 (B) REQUIRES THE CONCLUSION THAT MEMBERS WITH LESS THAN SIX MONTHS OF ACTIVE SERVICE AT TIME OF SEPARATION ARE NOT ENTITLED TO DISABILITY SEVERANCE PAY.

TO COLONEL R. P. MUHLBACH, UNITED STATES AIR FORCE, OCTOBER 16, 1959:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1959, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY AN ENCLOSED VOUCHER IN FAVOR OF BASIC AIRMAN BOBBY L. BOISTER, REPRESENTING DISABILITY SEVERANCE PAY COMPUTED AT TWICE THE MONTHLY BASIC PAY OF A BASIC AIRMAN WITH OVER TWO YEARS' SERVICE FOR BASIC PAY PURPOSES. THE REQUEST FOR DECISION HAS BEEN ALLOTTED AIR FORCE REQUEST NO. 451 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT APPEARS THAT ON NOVEMBER 15, 1957, BOISTER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1202; THAT HE THEN HAD ACTIVE SERVICE OF 5 MONTHS AND 26 DAYS; AND THAT EFFECTIVE MAY 31, 1959, HE WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND DISCHARGED BY REASON OF PHYSICAL DISABILITY.

SECTION 1203 OF TITLE 10, U.S. CODE, SETS OUT THE CONDITIONS UNDER WHICH A MEMBER OF THE ARMED FORCES MAY BE SEPARATED FOR PHYSICAL DISABILITY "WITH SEVERANCE PAY COMPUTED UNDER SECTION 1212 OF THIS TITLE.' IT IS ASSUMED THAT THE REQUISITE CONDITIONS WERE PRESENT IN BOISTER'S CASE. SUBSECTION 1212 (A) OF TITLE 10, U.S. CODE, WHICH WAS DERIVED FROM SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, 10 U.S.C. 1212 (A) PROVIDES THAT THE AMOUNT OF SEVERANCE PAY SHALL BE COMPUTED BY MULTIPLYING THE NUMBER OF A MEMBER'S YEARS OF SERVICE, BUT NOT MORE THAN 12, BY THE HIGHEST OF THE DIFFERENT AMOUNTS OF BASIC PAY THERE PRESCRIBED. SUBSECTION (B), 10 U.S.C. 1212 (B), PROVIDES THAT:

FOR THE PURPOSE OF SUBSECTION (A), A PART OF A YEAR OF ACTIVE SERVICE THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED.

BOISTER HAD LESS THAN SIX MONTHS' ACTIVE SERVICE AND YOU STATE THAT, IN VIEW OF SUBSECTION (B) OF THE ABOVE SECTION 1212, DOUBT EXISTS AS TO HIS ENTITLEMENT TO DISABILITY SEVERANCE PAY.

IN CONNECTION WITH A THOROUGH REVISION OF THE PAY AND ALLOWANCE SYSTEM OF THE ARMED FORCES, SEVERAL BILLS WERE CONSIDERED BY CONGRESSIONAL COMMITTEES DURING THE CALENDAR YEAR 1949, H.R. 5007 81ST CONGRESS, EVENTUALLY BEING ENACTED INTO LAW AS THE CAREER COMPENSATION ACT OF 1949. AMONG THE BILLS CONSIDERED AND NOT ENACTED WAS H.R. 2553, 81ST CONGRESS. A PART OF SECTION 403 OF THAT BILL, PERTAINING TO COMPUTATION OF DISABILITY SEVERANCE PAY, IS QUOTED AT PAGE 2055 OF HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, AS FOLLOWS:

AN AMOUNT EQUAL TO TWO MONTHS' BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING SATISFACTORILY HELD, WHETHER UNDER PERMANENT OR TEMPORARY APPOINTMENT, BY SUCH MEMBER FOR AT LEAST SIX MONTHS OF ACTIVE SERVICE AND WHICH SUCH MEMBER WOULD BE ENTITLED TO RECEIVE AT THE TIME OF SEPARATION IF SERVING ON ACTIVE DUTY IN SUCH GRADE, MULTIPLIED BY A NUMBER EQUAL TO THE NEAREST WHOLE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, BUT NOT TO EXCEED A TOTAL OF TWO YEARS' BASIC PAY.

THE PROPOSED PROVISION AS TO A MINIMUM REQUIREMENT OF SIX MONTHS' ACTIVE SERVICE WAS DISCUSSED AT PAGES 2056 AND 2057 OF THE HEARINGS AS FOLLOWS:

MR. BLANFORD. I MIGHT POINT OUT, MR. CHAIRMAN, AT THIS TIME THAT THIS SECTION IS OF TREMENDOUS IMPORTANCE, PARTICULARLY THE SECTION WITH REGARD TO THE NEAREST WHOLE NUMBER OF YEARS SERVED, IN VIEW OF THE FACT THAT YOU WILL BE FACED WITH THE POSSIBILITY, IF YOU LOWERED THAT, OF PAYING SEVERANCE PAY TO MANY ENLISTED MEN WHO MAY BE DISCHARGED IN THE FIRST FEW MONTHS OF THEIR ENLISTMENT, IF YOU DIDN-T KEEP THAT SIX MONTHS' REQUIREMENT.

I AM TALKING OF THE SECOND 6 MONTHS' REQUIREMENT NOW. IF THAT WERE LOWERED IN ANY WAY--- I THINK THE NAVY HAS SOME FIGURES ON THE NUMBER OF PEOPLE WHO ARE GIVEN MEDICAL DISCHARGES IN THE FIRST YEAR OF THEIR ENLISTMENT---

COMMANDER MARTINEAU. I HAVE THOSE FIGURES, MR. CHAIRMAN. FOR THE NAVY DURING THE CALENDAR YEAR 1948 THERE WERE 6,225 ENLISTED MEN WHO WERE GIVEN MEDICAL DISCHARGES AND OF THAT NUMBER 1,199 WERE DISCHARGED AT THE TRAINING CENTER, THAT IS DURING THEIR EARLY RECRUIT PHASES.

WHEN A MAN ENLISTS IN THE NAVY HE TAKES A RATHER CURSORY EXAMINATION, AND IT MUST BE SO, IN THE RECRUITING STATION. IT CAN-T BE AS THOROUGH AS IT SHOULD BE, AND IT IS RECOGNIZED AS SUCH. IF HE DOES PASS IT, HOWEVER, HE SIGNS HIS SHIPPING ARTICLES AND IS SENT TO THE TRAINING CENTER FOR HIS RECRUIT TRAINING.

ONE OF THE FIRST THINGS THAT HAPPENS TO HIM THERE IS THAT HE IS GIVEN A THOROUGH PHYSICAL EXAMINATION, AND IN MANY CASES THEY UNCOVER THAT A MAN SLIPPED BY THAT FIRST EXAMINATION WHO HAD A REAL DEFECT FOR WHICH HE NEVER SHOULD HAVE BEEN ENLISTED.

THE NUMBERS HERE INDICATED THAT APPROXIMATELY 20 PERCENT OF THE PEOPLE WHO WERE DISCHARGED LAST YEAR OCCURRED IN THE TRAINING STATION.

MR. JOHNSON. WITHIN THE 6 MONTHS' PERIOD?

COMMANDER MARTINEAU. THAT WOULD BE WITHIN THE 6 MONTHS' PERIOD, YES, SIR.

MR. KILDAY. YOU JUST GAVE HIM A MEDICAL DISCHARGE.

COMMANDER MARTINEAU. THAT IS RIGHT.

MR. KILDAY. AND YOU WERE THROUGH WITH HIM, WITH NO MORE OBLIGATIONS.

COMMANDER MARTINEAU. THAT IS CORRECT. NOW AS MR. BLANDFORD POINTS OUT, UNDER THE WORDING OF THIS SECTION ANY PERSON WHO IS DISCHARGED FOR ANY REASON WITH LESS THAN 6 MONTHS' SERVICE WOULD RECEIVE NO SEVERANCE PAY BECAUSE THE NEAREST WHOLE NUMBER OF YEARS THERE IS ZERO AND IF HE WAS ON 6 MONTHS OR MORE REGARDLESS OF THE NATURE OF HIS DISABILITY HE IS EITHER GOING TO BE RETIRED OR HE IS GOING TO BE SEPARATED. HE IS ENTITLED TO ONE OR THE OTHER IF HE HAS 6 MONTHS OR MORE SERVICE. IF HE IS NOT ENTITLED TO RETIREMENT, THEN HE IS GOING TO GET AT LEAST 2 MONTHS' PAY.

THUS, IT WAS WELL UNDERSTOOD THAT SECTION 403 OF H.R. 2553 WOULD NOT PROVIDE ANY SEVERANCE PAY TO MEMBERS WITH LESS THAN SIX MONTHS' ACTIVE SERVICE.

SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, PROVIDED FOR PAYMENT OF SEVERANCE PAY AND CONTAINED A PROVISO," THAT FOR THE PURPOSE OF THIS COMPUTATION, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR.' IT LOGICALLY FOLLOWS THAT ANY FRACTION OF LESS THAN ONE-HALF OF A YEAR COULD NOT BE CONSIDERED IN THE COMPUTATION OF DISABILITY SEVERANCE PAY. WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 403 OF THE CAREER COMPENSATION ACT TO INDICATE THAT THE ABOVE-QUOTED WORDS REPRESENTED ANY CHANGE IN INTENT FROM THE PROVISIONS IN SECTION 403 OF H.R. 2553, REQUIRING A MINIMUM OF SIX MONTHS' ACTIVE SERVICE FOR ELIGIBILITY FOR DISABILITY SEVERANCE PAY. U.S.C. 1212 (B) IS EVEN MORE EXPLICIT TO THE ELIMINATION OF ANY FRACTION OF A YEAR OF LESS THAN SIX MONTHS IN THE COMPUTATION OF SEVERANCE PAY. COMPARE CHANGE NO. 68 TO PARAGRAPH 1044187B OF THE NAVY COMPTROLLER MANUAL, WHICH STATES IN PERTINENT PART THAT "A MEMBER WHO HAS NOT COMPLETED SIX MONTHS OF ACTIVE SERVICE AT THE TIME OF SEPARATION IS NOT ENTITLED TO DISABILITY SEVERANCE PAY.'

IN THE CONSIDERATION OF THE PRESENT CASE THERE HAS NOT BEEN OVERLOOKED THE DECISION OF AUGUST 10, 1945, 25 COMP. GEN. 170, IN WHICH IT WAS HELD THAT A LUMP-SUM AVIATION BONUS, COMPUTED AT THE RATE OF $500 PER YEAR, COULD BE PAID TO THE BENEFICIARY OF A NAVAL RESERVE OFFICER WHO DIED WITH ACTIVE SERVICE OF LESS THAN ONE YEAR, DESPITE A PROVISION IN THE LAW THAT SUCH PAYMENT SHOULD ACCRUE UPON DEATH "AFTER CONTINUOUS DUTY FOR ONE OR MORE YEARS.' HOWEVER, THE LAW ALSO PRESCRIBED THAT LUMP-SUM PAYMENTS SHOULD BE "PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH SERVICE," AND THE DECISION WAS BASED ON SUCH LANGUAGE. NO LANGUAGE OF SIMILAR IMPORT IS FOUND IN THE SEVERANCE PAY STATUTE HERE INVOLVED.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.