B-172226, SEP 3, 1971

B-172226, SEP 3, 1971

CIVILIAN EMPLOYEE - PUBLIC HEALTH SERVICE - COMPUTATION OF SERVICE FOR RETIREMENT PURPOSES DECISION DENYING CLAIMED ENTITLEMENT OF MR. JOSEPH W. FITZPATRICK, RETIRED COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE, TO RETIREMENT PAY AT 62-1/2% OF BASIC PAY, RATHER THAN THE 60% DETERMINATION MADE BY THE GOVERNMENT. CLAIMANT CONTENDS THAT THE RETIREMENT BASED UPON 22 YEARS OF SERVICE WAS ERRONEOUS AND SHOULD HAVE BEEN BASED UPON 25 YEARS OR OVER. SPECIFICALLY, THE CONTENTION IS THAT PRIOR NAVAL SERVICE, ACTIVE AND INACTIVE, SHOULD HAVE BEEN CREDITED UNDER SEC. 211(A)(4)(A)(III) AND HEALTH SERVICE UNDER SEC. 211(A)(4)(A)(I). THE GOVERNMENT COMPUTED ACTIVE MILITARY AND HEALTH SERVICE UNDER (I) OF ABOVE AND INACTIVE MILITARY SERVICE UNDER (III). UNTIL THE PASSAGE OF PUBLIC LAW 91-253, WHICH AMENDED THE PUBLIC HEALTH SERVICE ACT BY ADDING (III) TO SECTION 211(A)(4)(A), NO CREDIT TOWARDS RETIREMENT WAS GIVEN FOR INACTIVE MILITARY SERVICE. THE LEGISLATIVE HISTORY OF THIS ACT DOES NOT INDICATE THAT CONGRESS INTENDED THAT ACTIVE DUTY SERVICES SHOULD CEASE TO BE COMPUTED UNDER SECTION 211(A)(4)(A)(I). THEREFORE, THE GROUNDS FOR CLAIMANT'S ARGUMENTS ARE NOT WELL FOUNDED AND THE CLAIM IS DENIED.

TO MR. JOSEPH W. FITZPATRICK:

YOUR LETTER DATED FEBRUARY 4, 1971, IN WHICH YOU CLAIMED ADDITIONAL RETIRED PAY AS A RETIRED COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE, WAS FORWARDED TO OUR CLAIMS DIVISION FOR ADJUDICATION BY LETTER DATED MAY 19, 1971, OF THE OFFICE OF THE SECRETARY, COMMISSIONED PERSONNEL OPERATIONS DIVISION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. YOUR LETTER WAS THE SUBJECT OF OUR LETTERS, B-172226, DATED APRIL 22 AND MAY 18, 1971, TO YOU.

BY PUBLIC HEALTH SERVICE PERSONNEL ORDER NO. 82, DATED APRIL 28, 1970, YOU WERE RELIEVED FROM DUTY ON MAY 31, 1970, AND RETIRED JUNE 1, 1970, UNDER THE PROVISIONS OF SECTION 211(A)(3) OF THE PUBLIC HEALTH SERVICE ACT AND UNDER THE PROVISIONS OF SECTION 211(A)(4)(A) YOUR RETIRED PAY WAS DETERMINED TO BE 60 PERCENT OF THE BASIC PAY OF A DIRECTOR GRADE OFFICER (0-6) WITH OVER 22 YEARS OF SERVICE.

AT THE TIME OF YOUR RETIREMENT YOU WERE CREDITED WITH 6 MONTHS AND 29 DAYS OF INACTIVE SERVICE AND 2 YEARS, 5 MONTHS AND 5 DAYS OF ACTIVE SERVICE IN THE U.S. NAVAL RESERVE AND 21 YEARS, 7 MONTHS, AND 19 DAYS OF ACTIVE SERVICE IN THE U.S. PUBLIC HEALTH SERVICE. IN COMPUTING YOUR RETIRED PAY PERCENTAGE FACTOR YOU WERE CREDITED WITH 24 YEARS AND 24 DAYS OF ACTIVE SERVICE IN THE UNIFORMED SERVICES FOR A PERCENTAGE FACTOR OF 60 PERCENT AND YOUR INACTIVE SERVICE WAS DISREGARDED.

ON THE BASIS OF YOUR INTERPRETATION OF THE LAW YOU CONTEND THAT YOU SHOULD BE CREDITED WITH 25 YEARS OF SERVICE FOR PERCENTAGE PURPOSES IN THE COMPUTATION OF YOUR RETIRED PAY AND IN EFFECT YOU CLAIM YOU ARE ENTITLED TO BE PAID AT THE RATE OF 62 1/2 PERCENT INSTEAD OF 60 PERCENT OF THE BASIC PAY OF AN 0-6 WITH OVER 22 YEARS OF SERVICE.

SECTION 211(A)(4) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED BY THE ACT OF MAY 14, 1970, PUBLIC LAW 91-253, 84 STAT. 216, 42 U.S.C. 212(A)(4), PROVIDES IN PERTINENT PART AS FOLLOWS:

"(4) A COMMISSIONED OFFICER RETIRED PURSUANT TO PARAGRAPH (1), (2), OR (3) WHO WAS (IN THE CASE OF AN OFFICER IN THE RESERVE CORPS) ON ACTIVE DUTY WITH THE SERVICE ON THE DAY PRECEDING SUCH RETIREMENT SHALL BE ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PER CENTUM OF THE BASIC PAY OF THE HIGHEST GRADE HELD BY HIM AS SUCH OFFICER AND IN WHICH, IN THE CASE OF A TEMPORARY PROMOTION TO SUCH GRADE, HE HAS PERFORMED ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS, (A) FOR EACH YEAR OF ACTIVE SERVICE, OR (B) IF IT RESULTS IN HIGHER RETIRED PAY, FOR EACH OF THE FOLLOWING YEARS:

"(I) HIS YEARS OF ACTIVE SERVICE (DETERMINED WITHOUT REGARD TO SUBSECTION (D) OF THIS SECTION) AS A MEMBER OF A UNIFORMED SERVICE; PLUS

"(II) IN THE CASE OF A MEDICAL OR DENTAL OFFICER, FOUR YEARS AND, IN THE CASE OF A MEDICAL OFFICER, WHO HAS COMPLETED ONE YEAR OF MEDICAL INTERNSHIP OR THE EQUIVALENT THEREOF, ONE ADDITIONAL YEAR, THE FOUR YEARS AND THE ONE YEAR TO BE REDUCED BY THE PERIOD OF ACTIVE SERVICE PERFORMED DURING SUCH OFFICER'S ATTENDANCE AT MEDICAL OR DENTAL SCHOOL OR DURING HIS MEDICAL INTERNSHIP; PLUS

"(III) THE NUMBER OF YEARS OF SERVICE WITH WHICH HE WAS ENTITLED TO BE CREDITED FOR PURPOSES OF BASIC PAY ON MAY 31, 1958, OR (IF HIGHER) ON ANY DATE PRIOR THERETO, REDUCED BY ANY SUCH YEAR INCLUDED UNDER CLAUSE (I) AND FURTHER REDUCED BY ANY SUCH YEAR WITH WHICH HE WAS ENTITLED TO BE CREDITED UNDER PARAGRAPHS (7) AND (8) OF SECTION 205(A) OF TITLE 37, U.S.C. ON ANY DATE BEFORE JUNE 1, 1958; *** "

SECTION 211(E) OF THE ACT, 42 U.S.C. 212(E), PROVIDES THAT:

"(E) FOR THE PURPOSE OF DETERMINING THE NUMBER OF YEARS BY WHICH A PERCENTAGE OF THE BASIC PAY OF AN OFFICER IS TO BE MULTIPLIED IN COMPUTING THE AMOUNT OF HIS RETIRED PAY PURSUANT TO SECTION 211(G)(3) OF THIS TITLE OR PARAGRAPH (4) OF SUBSECTION (A) OF THIS SECTION, A PART OF A YEAR OF ACTIVE SERVICE OF SIX MONTHS OR MORE SHALL BE COUNTED AS A WHOLE YEAR AND A PART OF A YEAR OF ACTIVE SERVICE WHICH IS LESS THAN SIX MONTHS SHALL BE DISREGARDED."

IN DETERMINING THE RETIRED PAY PERCENTAGE FACTOR UNDER THE ABOVE PROVISIONS OF LAW, YOU WERE CREDITED UNDER CLAUSE (I) WITH 24 YEARS AND 24 DAYS OF ACTIVE SERVICE IN THE UNIFORMED SERVICES AND UNDER CLAUSE (III) WITH AN ADDITIONAL 6 MONTHS AND 29 DAYS ON ACCOUNT OF INACTIVE SERVICE IN THE U.S. NAVAL RESERVE FROM DECEMBER 9, 1942, THROUGH JULY 7, 1943. YOU WERE ENTITLED TO CREDIT FOR 12 YEARS, 7 MONTHS AND 22 DAYS OF SERVICE FOR BASIC PAY PURPOSES ON MAY 31, 1958, OF WHICH 12 YEARS AND 23 DAYS (ACTIVE SERVICE) WERE INCLUDED UNDER CLAUSE (I). THEREFORE ONLY 6 MONTHS AND 29 DAYS WERE CREDITABLE TO YOU UNDER CLAUSE (III) WHICH SERVICE, BEING INACTIVE TIME IN THE U.S. NAVAL RESERVE AND WHEN ADDED TO YOUR ACTIVE SERVICE RESULTS IN A TOTAL OF LESS THAN 25 FULL YEARS OF SERVICE, MUST BE DISREGARDED UNDER THE PROVISIONS OF SECTION 211(E) OF THE ACT. CONSEQUENTLY, THE COMPUTATION UNDER SECTION 211(A)(4)(B) DID NOT RESULT IN HIGHER RETIRED PAY AND YOUR RETIRED PAY WAS THEREFORE ESTABLISHED AS 60 PERCENT OF THE BASIC PAY YOU WERE RECEIVING ON THE DAY BEFORE THE DATE OF YOUR RETIREMENT, PURSUANT TO SECTION 211(A)(4)(A). YOU HAVE BEEN PAID RETIRED PAY ON THAT BASIS.

THE THEORY UNDER WHICH YOU CLAIM TO BE ENTITLED TO A HIGHER PERCENTAGE FACTOR, STATED SIMPLY, IS THAT YOU SHOULD BE CREDITED WITH ONLY YOUR PUBLIC HEALTH SERVICE UNDER CLAUSE (I) AND ALL OF YOUR NAVAL SERVICE SHOULD BE CREDITED UNDER CLAUSE (III). ON THAT BASIS, YOUR 21 YEARS, 7 MONTHS AND 19 DAYS IN THE PUBLIC HEALTH SERVICE, BEING ALL ACTIVE SERVICE, WOULD BE CREDITED UNDER SECTION 211(E) FOR PERCENTAGE PURPOSES AS 22 YEARS WHICH, WHEN ADDED TO YOUR 3 YEARS AND 4 DAYS OF NAVAL SERVICE, WOULD GIVE 25 YEARS OF CREDITABLE SERVICE, OR A PERCENTAGE FACTOR OF 62 1/2 PERCENT. HOWEVER, THERE IS NO LEGAL BASIS FOR THE METHOD OF COMPUTATION PROPOSED BY YOU.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 91-253, RETIRED OFFICERS OF THE PUBLIC HEALTH SERVICE WERE NOT AUTHORIZED TO COUNT INACTIVE SERVICE IN ANY BRANCH OF THE UNIFORMED SERVICES FOR THE PURPOSES OF DETERMINING THE MULTIPLE FACTOR USED IN THE COMPUTATION OF THEIR RETIRED PAY. THUS, IN THE COMPUTATION OF THE PERCENTAGE FACTOR, ALL ACTIVE SERVICE AS A MEMBER OF THE UNIFORMED SERVICES WAS CREDITED UNDER CLAUSE (I). IN OUR DECISION, 48 COMP. GEN. 632 (1969), COPY OF WHICH WAS FORWARDED WITH OUR LETTER TO YOU DATED APRIL 22, 1971, WE HELD THAT SINCE PUBLIC HEALTH SERVICE OFFICERS WERE NOT THEN AUTHORIZED TO COUNT ANY OF THEIR INACTIVE SERVICE IN DETERMINING THEIR RETIRED PAY PERCENTAGE MULTIPLE UNDER EXISTING LAW, ADDITIONAL LEGISLATION WOULD BE NECESSARY IF CREDIT FOR SUCH SERVICE PRIOR TO JUNE 1, 1958, WAS TO BE AUTHORIZED FOR THEM. WE ALSO SAID THAT 10 U.S.C. 1405 DID NOT GRANT ANY RIGHT TO FULL CREDIT FOR INACTIVE SERVICE, BUT RESTRICTED THE RIGHT GRANTED UNDER OTHER PROVISIONS OF LAW TO CREDIT FOR SUCH SERVICE TO THE INACTIVE SERVICE CREDITABLE ON MAY 31, 1958.

THE PRINCIPAL PURPOSE OF H.R. 10138, WHICH BECAME PUBLIC LAW 91-253, IS STATED IN HOUSE REPORT 91-906, 91ST CONGRESS, 2D SESSION, AS FOLLOWS:

"THE REPORTED BILL WOULD PERMIT OFFICERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO INCLUDE IN THE COMPUTATION OF RETIRED PAY INACTIVE SERVICE PERFORMED BEFORE JUNE 1, 1958, WHICH IS CREDITABLE TO THEM IN THE COMPUTATION OF BASIC PAY. COMMISSIONED OFFICERS OF THE ARMY, NAVY, AND AIR FORCE TODAY MAY USE SUCH SERVICE IN THE COMPUTATION OF RETIRED PAY."

THE BILL WAS FURTHER EXPLAINED IN THE REPORT, AS FOLLOWS:

"SECTION 1 OF THE BILL WOULD ADD A NEW CLAUSE (III) TO SECTION 211(A)(4)(B) WHICH WOULD ADD TO THE SERVICE OTHERWISE CREDITABLE IN COMPUTATION OF RETIRED PAY THE NUMBER OF YEARS OF SERVICE WITH WHICH A RETIRED OFFICER WAS ENTITLED TO BE CREDITED FOR PURPOSES OF BASIC PAY ON MAY 31, 1958, OR IF HIGHER, ON ANY DATE PRIOR THERETO. THIS WOULD BE REDUCED, HOWEVER, BY THE NUMBER OF YEARS OF ACTIVE SERVICE INCLUDED UNDER CLAUSE (I) OF THAT SECTION AND FURTHER REDUCED BY THE NUMBER OF YEARS WITH WHICH HE WAS ENTITLED TO BE CREDITED ON ANY DATE BEFORE JUNE 1, 1958, UNDER PARAGRAPHS (7) AND (8) OF 37 U.S.C. 205(A) WHICH RELATE TO CUMULATIVE YEARS OF SERVICE FOR MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES AND ARE EQUIVALENT TO THE PROVISIONS OF CLAUSE (II) OF SECTION 211(A)(4)(B) OF THE PUBLIC HEALTH SERVICE ACT WITH RESPECT TO MEDICAL OR DENTAL OFFICERS."

THE EFFECT OF THE ADDED CLAUSE (III) WAS TO ALLOW CREDIT THEREUNDER FOR INACTIVE SERVICE PRIOR TO JUNE 1, 1958, WHICH THERETOFORE COULD NOT BE CREDITED FOR PERCENTAGE MULTIPLE PURPOSES. THE LAW DID NOT CHANGE IN ANY WAY THE CREDIT OF ACTIVE SERVICE UNDER CLAUSE (I) NOR THE RESTRICTION IN SECTION 211(E) THAT ONLY ACTIVE SERVICE OF 6 MONTHS OR MORE WOULD BE COUNTED AS A WHOLE YEAR IN DETERMINING THE PERCENTAGE MULTIPLE. THUS, UNDER THE LAW, INACTIVE SERVICE MAY BE USED TO INCREASE THE PERCENTAGE MULTIPLIER FACTOR ONLY WHEN THE SUM OF INACTIVE SERVICE PLUS ACTIVE SERVICE IS A FULL YEAR; SERVICE OF LESS THAN A YEAR MUST BE DISREGARDED IF ACTIVE SERVICE AMOUNTED TO A PART OF A YEAR WHICH IS LESS THAN 6 MONTHS AND THE SUM OF THE FRACTIONAL YEAR OF ACTIVE SERVICE AND INACTIVE SERVICE AMOUNTS TO LESS THAN A FULL YEAR. ACCORDINGLY, IT MUST BE CONCLUDED THAT YOUR RETIRED PAY RATE WAS CORRECTLY COMPUTED AND YOU HAVE BEEN PAID ALL THE RETIRED PAY TO WHICH YOU ARE ENTITLED.