B-164842, AUGUST 8, 1969, 49 COMP. GEN. 80

B-164842, AUGUST 8, 1969, 49 COMP. GEN. 80

PAY -- RETIRED -- INCREASES -- RETIREMENT ON EFFECTIVE DATE OF INCREASE A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE TO RETIRE JULY 1, 1968, THE EFFECTIVE DATE OF A BASIC PAY INCREASE, EITHER FOR DISABILITY RETIREMENT UNDER 10 U.S.C. CHAPTER 61, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, OR VOLUNTARILY FOR YEARS OF SERVICE UNDER 10 U.S.C. 6323, IS ENTITLED TO RETIRED PAY COMPUTED AT THE HIGHER RATES OF ACTIVE DUTY PAY PRESCRIBED BY EXECUTIVE ORDER NO. 11414, NOT ON THE BASIS OF DISABILITY RETIREMENT--AS THE RATE APPLICABLE TO THE DISABILITY RETIREMENT WOULD BE THE RATE IN EFFECT AS IF THE RETIREMENT HAD NOT OCCURRED UNDER THE ACT-- BUT ON THE BASIS THAT THE SECTION 6323 RETIREMENT, WHICH NEITHER SUBJECT TO THE UNIFORM RETIREMENT DATE ACT NOR FORMULA 4 OF 10 U.S.C. 1401, THAT REQUIRES COMPUTATION OF RETIRED PAY AT THE RATE IN EFFECT THE DAY BEFORE RETIREMENT, IS THE "OTHER PROVISION OF LAW" MOST FAVORABLE TO THE MEMBER PRESCRIBED BY SECTION 1401, AND HE, THEREFORE, IS ENTITLED TO RETIRED PAY COMPUTED AT THE HIGHER RATE OF ACTIVE DUTY BASIC PAY IN EFFECT JULY 1, 1968. PAY -- RETIRED -- INCREASES -- ENTITLEMENT TO DETERMINE IF THE UNIFORM RETIREMENT DATE ACT (5 U.S.C. 8301) IS APPLICABLE TO ARMY AND AIR FORCE OFFICERS WHO IF THEY FIRST QUALITY FOR RETIREMENT UPON COMPLETION OF 20, 30, OR 40 YEARS OF SERVICE PRIOR TO JUNE 1968, WOULD BE ENTITLED TO RETIRED PAY COMPUTED UNDER FORMULA B OF 10 U.S.C. 3991 OR 8991, SUBJECT TO FOOTNOTE 2, ON THE BASIS OF MONTHLY ACTIVE DUTY PAY RATES APPLICABLE ON DATE OF RETIREMENT, OR IF THE OFFICERS ARE ENTITLED TO RETIRED PAY COMPUTED AT THE HIGHER RATES OF ACTIVE DUTY PAY PRESCRIBED BY EXECUTIVE ORDER NO. 11414, EFFECTIVE JULY 1, 1968, THE TIME OF QUALIFICATION FOR RETIREMENT IS AN ELEMENT FOR CONSIDERATION. PAY -- RETIRED -- INCREASES -- RETIREMENT ON EFFECTIVE DATE OF INCREASE THE FACT THAT A MEMBER OF THE UNIFORMED SERVICES HAD NOT REQUESTED VOLUNTARY RETIREMENT BASED ON YEARS OF SERVICE WHEN QUALIFYING FOR RETIREMENT PRIOR TO JULY 1, 1968, DOES NOT DEFEAT HIS RIGHT TO RETIRED PAY COMPUTED UNDER ANY "OTHER PROVISION OF LAW" MOST FAVORABLE TO HIM AS PRESCRIBED BY 10 U.S.C. 1401 WHEN HE RETIRES ON JULY 1, 1968, THE EFFECTIVE DATE OF THE BASIC PAY INCREASES PROVIDED BY EXECUTIVE ORDER NO. 11414, DATED JUNE 13, 1968, AND THE MEMBER, THEREFORE, IS ENTITLED TO RETIRED PAY COMPUTED AT THE HIGHER RATE OF PAY MADE EFFECTIVE JULY 1, 1968. PAY -- RETIRED -- INCREASES -- UNDER PUBLIC LAW 89-132 THE RETIRED PAY OF A MEMBER OF THE UNIFORMED SERVICES RETIRED UNDER 10 U.S.C. 1293, EFFECTIVE SEPTEMBER 1, 1965, WHO HAD ALSO QUALIFIED FOR VOLUNTARY RETIREMENT FOR YEARS OF SERVICE UNDER 10 U.S.C. 6323, MAY BE COMPUTED ON THE BASIS OF THE INCREASED RATE OF BASIC PAY PRESCRIBED BY PUBLIC LAW 89-132 (37 U.S.C. 203(A)), EFFECTIVE SEPTEMBER 1, 1965. THE ACT SILENT AS TO WHETHER OR NOT MEMBERS WHOSE RETIREMENTS BECAME EFFECTIVE ON ITS EFFECTIVE DATE WERE AUTHORIZED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE INCREASED RATES, THE PRINCIPLES IN 43 COMP. GEN. 425 AND 44 COMP. GEN. 373; ID. 584, APPLY.

TO THE SECRETARY OF DEFENSE, AUGUST 8, 1969:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 13, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON CERTAIN QUESTIONS CONCERNING THE PROPER RATE OF RETIRED PAY TO BE PAID MEMBERS OF THE UNIFORMED SERVICES DESCRIBED THEREIN WHO RETIRED ON THE EFFECTIVE DATE OF AN INCREASE IN BASIC PAY. THE QUESTIONS ARE STATED AND DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 429, WHICH ACCOMPANIED THAT LETTER.

ACTIVE DUTY BASIC PAY RATES FOR MEMBERS OF THE UNIFORMED SERVICES WERE INCREASED EFFECTIVE JULY 1, 1968, AS PRESCRIBED IN EXECUTIVE ORDER NO. 11414 DATED JUNE 11, 1968 (THESE RATES WERE FURTHER INCREASED EFFECTIVE JULY 1, 1969, AS PRESCRIBED IN EXECUTIVE ORDER NO. 11475 DATED JUNE 16, 1969).

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, NOW CODIFIED IN 5 U.S.C. 8301 (FORMERLY 5 U.S.C. 47A) PROVIDES AS FOLLOWS:

(A) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY THIS TITLE OR OTHER STATUTE, RETIREMENT AUTHORIZED BY STATUTE IS EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

(B) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE IS COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SUBSECTION (A) OF THIS SECTION.

THE QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 429 ARE AS FOLLOWS:

1. IS A MEMBER WHOSE RETIREMENT FOR DISABILITY WAS EFFECTIVE ON JULY 1, 1968, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, BUT WHO WAS ALSO QUALIFIED UNDER 10 U.S.C. 6323 FOR VOLUNTARY RETIREMENT EFFECTIVE THAT DATE ENTITLED TO RETIRED PAY COMPUTED ON THE HIGHER RATES OF ACTIVE DUTY PAY PRESCRIBED BY EXECUTIVE ORDER NO. 11414 DATED JUNE 11, 1968?

2. IF THE ANSWER TO QUESTION NO. 1 IS AFFIRMATIVE WOULD THE SAME ANSWER APPLY IN SIMILAR SITUATIONS OF ARMY AND AIR FORCE OFFICERS WHO ALSO WOULD HAVE THEIR RETIRED PAY COMPUTED UNDER FORMULA B OF 10 U.S.C. 3991 OR 8991 IF THEY FIRST QUALIFIED FOR RETIREMENT BY COMPLETION OF 20, 30 OR 40 YEARS' SERVICE PRIOR TO JUNE 1968?

3. WOULD THE ANSWERS TO THE ABOVE DIFFER DEPENDING UPON WHETHER OR NOT ANY OF THE OFFICERS CONCERNED HAD REQUESTED VOLUNTARY RETIREMENT?

4. WOULD A MEMBER RETIRED UNDER 10 U.S.C. 1293, EFFECTIVE SEPTEMBER 1, 1965, BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE THEN INCREASED RATES OF PAY IF HE WAS AT THAT TIME OTHERWISE QUALIFIED FOR RETIREMENT EFFECTIVE THAT DATE UNDER 10 U.S.C. 6323?

IN THE CASE OF A MEMBER FOUND ELIGIBLE FOR RETIREMENT FOR DISABILITY UNDER CHAPTER 61, TITLE 10, U.S. CODE, WHOSE EFFECTIVE DATE OF RETIREMENT IS DESIGNATED BY THE SECRETARY CONCERNED AS AUTHORIZED IN 10 U.S.C. 1221, THE RESTRICTION OF THE UNIFORM RETIREMENT DATE ACT IS NOT FOR APPLICATION. IN SUCH A CASE, THE PROVISIONS OF SECTION 1221 EXPRESSLY EXCLUDE DISABILITY RETIREMENTS FROM THE OPERATION OF THE UNIFORM RETIREMENT DATE ACT. HOWEVER, WHERE THE SECRETARY CONCERNED DOES NOT SPECIFY AN EFFECTIVE DATE FOR RETIREMENT AS AUTHORIZED IN THAT SECTION, THE 1930 ACT IS APPLICABLE. SEE 43 COMP. GEN. 425, 427 (1963) (PERTAINING TO THE MULLINS CASE) AND 44 COMP. GEN. 373, AT PAGES 379 AND 380 (1965).

IN COMPUTING RETIRED PAY BY REASON OF DISABILITY, FOOTNOTE 1 TO 10 U.S.C. 1401 STATES "COMPUTE AT RATES APPLICABLE ON DATE OF RETIREMENT OR DATE WHEN MEMBER'S NAME WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST, AS THE CASE MAY BE." IN COMMENTING ON THE DISABILITY RETIREMENT OF A MEMBER WHICH BECAME EFFECTIVE ON JULY 1, 1968, THE COMMITTEE ACTION STATES THAT SUCH A MEMBER WAS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE HIGHER RATES OF ACTIVE DUTY BASIC PAY WHICH BECAME EFFECTIVE ON THAT DATE.

UNDER 10 U.S.C. 6323(A), MENTIONED IN QUESTIONS 1 AND 4, AN OFFICER OF THE NAVY OR MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED "ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT." CONSIDERING THE SITUATION OF 11 MEMBERS OF THE NAVAL SERVICE WHO WERE VOLUNTARILY RETIRED EFFECTIVE JULY 1, 1968, UNDER SECTION 6323, AFTER HAVING BEEN SCHEDULED FOR INVOLUNTARY RETIREMENT UNDER OTHER PROVISIONS OF LAW, WE SAID, IN DECISION OF OCTOBER 29, 1968, 48 COMP. GEN. 239, 249, WITH RESPECT TO SECTION 6323 IN CONJUNCTION WITH THE 1930 UNIFORM RETIREMENT DATE ACT, THAT:

SINCE EACH OF THESE 11 MEMBERS WAS QUALIFIED PRIOR TO JUNE 1968 FOR RETIREMENT UNDER THE VOLUNTARY RETIREMENT LAW INDICATED AND SINCE THE INVOLUNTARY RETIREMENT LAW APPLICABLE IN EACH CASE IMPOSES NO RESTRICTION ON SUCH RETIREMENT, THEY ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY IN EFFECT ON JULY 1, 1968. SEE, ALSO, THE ANSWER TO QUESTIONS 1 AND 2 IN 44 COMP. GEN. 584 (1956).

WITH RESPECT TO QUESTION 1, IT IS STATED IN THE COMMITTEE ACTION THAT SUCH QUESTION IS PREMISED ON THE CONCLUSION WE REACHED IN THE NOONAN AND ARNOTT CASES WHICH WERE AMONG THE CASES CONSIDERED IN THE ABOVE DECISION OF OCTOBER 29, 1968, 48 COMP. GEN. 239. THE VIEW IS EXPRESSED THAT HAD NOONAN AND ARNOTT BEEN OTHERWISE QUALIFIED FOR VOLUNTARY RETIREMENT UNDER 10 U.S.C. 6323, THEIR RETIRED PAY WOULD BE PROPERLY FOR COMPUTATION AS IF RETIRED UNDER THAT PROVISION OF LAW. SINCE THE RETIREES IN THE DECISION OF OCTOBER 29, 1968, WERE OTHERWISE RETIREABLE INVOLUNTARILY, THAT IS, THEY WERE SUBJECT TO MANDATORY RETIREMENT, THE COMMITTEE ACTION STATES THAT THERE APPEARS TO BE NO LOGICAL DISTINCTION BETWEEN SUCH CASES AND RETIREMENTS FOR PHYSICAL DISABILITY WHICH UNDER THE LAW MAKES THE MEMBER'S TERMINATION OF ACTIVE SERVICE MANDATORY.

WARRANT OFFICERS NOONAN AND ARNOTT CONSIDERED IN THE DECISION OF OCTOBER 29, 1968, WERE VOLUNTARILY RETIRED UNDER 10 U.S.C. 1293 (WARRANT OFFICERS' RETIREMENT AFTER 20 YEARS OF ACTIVE SERVICE) EFFECTIVE JULY 1, 1968, AFTER HAVING BEEN SCHEDULED FOR INVOLUNTARY RETIREMENT UNDER 10 U.S.C. 564(A) EFFECTIVE THAT SAME DATE. UNDER BOTH THE VOLUNTARY AND INVOLUNTARY RETIREMENT LAWS, THEIR RETIRED PAY WAS REQUIRED TO BE COMPUTED UNDER FORMULA 4 OF 10 U.S.C. 1401 ON THE BASIS OF THE "MONTHLY BASIC PAY *** ON DAY BEFORE RETIREMENT *** ." SINCE THERE WAS NO OTHER "PAY FORMULA" OR "OTHER PROVISION OF LAW" AS PROVIDED IN SECTION 1401 UNDER WHICH THESE TWO MEMBERS COULD COMPUTE THEIR RETIRED PAY, WE WERE REQUIRED TO CONCLUDE THAT UNDER THE LAW THEY WERE NOT ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE RATES OF ACTIVE DUTY PAY IN EFFECT ON JULY 1, 1968.

SINCE THE MEMBER MENTIONED IN QUESTION 1 WAS ENTITLED TO BE RETIRED FOR EITHER PHYSICAL DISABILITY OR FOR YEARS OF SERVICE UNDER 10 U.S.C. 6323 EFFECTIVE JULY 1, 1968, AND SINCE RETIREMENT UNDER SECTION 6323- WHICH IS NOT SUBJECT TO THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT--IS THE "OTHER PROVISION OF LAW" MOST FAVORABLE TO HIM, IT IS OUR VIEW THAT SUCH A MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE HIGHER RATES OF ACTIVE DUTY PAY IN EFFECT ON JULY 1, 1968. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING QUESTION 2, ARMY AND AIR FORCE OFFICERS WHO ARE OTHERWISE ELIGIBLE FOR RETIREMENT FOR YEARS OF SERVICE ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED UNDER FORMULA B OF 10 U.S.C. 3991 AND 8991, SUBJECT TO FOOTNOTE 2, ON THE MONTHLY BASIC PAY " *** AT RATES APPLICABLE ON DATE OF RETIREMENT." THE TIME OF QUALIFICATION FOR RETIREMENT FOR YEARS OF SERVICE IS AN ELEMENT TO CONSIDER IN DETERMINING WHETHER THE UNIFORM RETIREMENT DATE ACT IS APPLICABLE. IN CONSTRUING SECTIONS 3991 AND 8991 IN CONJUNCTION WITH THE ACT OF AUGUST 12, 1964, 78 STAT. 395, PUBLIC LAW 88-422, EFFECTIVE SEPTEMBER 1, 1964, WHICH AUTHORIZED AN INCREASE IN RATES OF BASIC PAY, WE SAID, IN DECISION OF JANUARY 5, 1965, 44 COMP. GEN. 373, AT PAGE 379, THAT:

UNDER THE UNIFORM RETIREMENT DATE ACT, THE RETIRED PAY OF ARMY AND AIR FORCE OFFICERS WHO WERE RETIRED ON SEPTEMBER 1, 1964, AND WHO COMPUTE THEIR RETIRED PAY UNDER FORMULA B OF 10 U.S.C. 3991 OR 8991 MUST COMPUTE THEIR RETIRED PAY UNDER THE RATES OF PAY PRESCRIBED IN THE 1963 PAY ACT IF THEY FIRST QUALIFIED FOR RETIREMENT BY COMPLETION OF 20, 30, OR 40 YEARS' SERVICE AFTER JULY 1964. ALL OTHER ARMY AND AIR FORCE OFFICERS RETIRED ON SEPTEMBER 1, 1964, WHOSE RETIRED PAY IS COMPUTED UNDER THAT FORMULA ARE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT. 43 COMP. GEN. 425. IN THE LIGHT OF THE FOREGOING, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

THE COMMITTEE ACTION STATES THAT QUESTION 3 ARISES BECAUSE OF A DISTINCTION MADE IN 43 COMP. GEN. 425, 427, IN THE CASE OF CHIEF WARRANT OFFICER ROBERT H. JORDAN, USMC. IN THAT CASE, THE OFFICER COMPLETED 20 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES IN MARCH 1959 BUT IT WAS NOT UNTIL JANUARY 1963 THAT HE REQUESTED THAT HE BE RETIRED UNDER 10 U.S.C. 1293 EFFECTIVE APRIL 1, 1963. IN THAT DECISION WE SAID THAT HAD MR. JORDAN COMPLETED 20 YEARS OF QUALIFYING SERVICE ON MARCH 22, 1963, AND HAD REQUESTED RETIREMENT AT THAT TIME, THE EFFECTIVE DATE OF HIS RETIREMENT WOULD HAVE BEEN FIXED AS APRIL 1, 1963, UNDER THE 1930 ACT. FURTHER STATED THAT SINCE HE DID NOT REQUEST RETIREMENT WHEN HE MET THE ELIGIBILITY QUALIFICATIONS OF THE STATUTE, THE SITUATION CONTEMPLATED TO GIVE EFFECT TO THE PURPOSE AND INTENT OF THE 1930 ACT, NO LONGER EXISTED IN HIS CASE. IN CONCLUDING THAT HE WAS NOT SUBJECT TO THE 1930 ACT, WE SAID THAT THE EXERCISE OF THE ADMINISTRATIVE DISCRETION TO RETIRE HIM EFFECTIVE APRIL 1, 1963, WAS THE RESULT SOLELY OF HIS REQUEST TO THAT EFFECT.

THE FACT THAT THE MEMBER IN QUESTIONS 1 AND 2 MIGHT HAVE OTHERWISE QUALIFIED FOR VOLUNTARY RETIREMENT YEARS OF SERVICE) PRIOR TO THE DATES THERE SPECIFIED BUT HAD NOT REQUESTED SUCH RETIREMENT AT THE TIME OF QUALIFICATION, DOES NOT DEFEAT HIS RIGHT TO HAVE HIS RETIRED PAY COMPUTED UNDER "ANY OTHER PROVISION OF LAW" THAT IS MOST FAVORABLE TO HIM AS PROVIDED IN 10 U.S.C. 1401. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE NEGATIVE.

QUESTION 4 REFERS TO A MEMBER WHO RETIRED EFFECTIVE SEPTEMBER 1, 1965, AND ASKS WHETHER HIS RETIRED PAY SHOULD BE COMPUTED UNDER PUBLIC LAW 89- 132, APPROVED AUGUST 23, 1965, 37 U.S.C. 203(A), WHICH LAW BECAME EFFECTIVE SEPTEMBER 1, 1965, AND INCREASED RATES OF BASIC PAY. IT IS POINTED OUT THAT THIS LAW CONTAINED NO SPECIFIC LANGUAGE AS TO WHETHER OR NOT MEMBERS WHOSE RETIREMENTS BECAME EFFECTIVE ON ITS EFFECTIVE DATE WERE AUTHORIZED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE INCREASED RATES. A QUESTION SOMEWHAT SIMILAR TO QUESTION 4 WAS CONSIDERED BY US IN DECISION OF APRIL 15, 1968, 47 COMP. GEN. 549. THE QUESTIONS CONSIDERED IN THAT DECISION WERE STATED AS FOLLOWS:

1. WHAT WOULD BE THE EFFECTIVE DATE OF ANY UPWARD ADJUSTMENT IN THE MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES AUTHORIZED BY SECTION 8 OF PUBLIC LAW 90-207?

2. IN THE EVENT THAT 1 JULY 1968 IS THE ANSWER TO QUESTION 1 AND IN THE ABSENCE OF DEFINITIVE LEGISLATION WHICH WOULD ENTITLE ALL MEMBERS RETIRED ON SUCH DATE TO HAVE THEIR RETIRED PAY COMPUTED ON SUCH INCREASED RATES, WOULD THE PRINCIPLES APPLIED IN 43 COMP. GEN. 425 AND 44 COMP. GEN. 373; ID. 584 BE FOR APPLICATION IN THE COMPUTATIONS OF THE RETIRED PAY OF SUCH MEMBERS?

IN ANSWER TO QUESTION 2 IN THAT DECISION WE HELD, QUOTING THE SECOND SYLLABUS, THAT:

WHILE PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967, WHICH PRESCRIBES PAY INCREASES FOR MEMBERS OF THE UNIFORMED SERVICES COMPARABLE TO THOSE PROVIDED FOR CIVILIAN EMPLOYEES BY THE FEDERAL SALARY ACT OF 1967, DOES NOT INDICATE THAT ALL MEMBERS RETIRED ON JULY 1, 1968, WILL BE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED AT THE INCREASED RATES TO BE ESTABLISHED BY THE ACT, IN COMPUTING THE RETIRED PAY OF MEMBERS WHO WILL RETIRE ON JULY 1, 1968 UNDER DIFFERENT PROVISIONS OF LAW, THE PRINCIPLES IN 43 COMP. GEN. 425 AND 44 COMP. GEN. 373; ID. 584, ARE FOR APPLICATION.

IN VIEW THEREOF AND OF THE ANSWER TO QUESTION 1 ABOVE, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.