B-155940, NOV. 14, 1967

B-155940, NOV. 14, 1967

ARMED SERVICES - RETIRED PAY - ADVANCEMENT TO COMMISSIONED GRADE DECISION TO ARMY FINANCE OFFICER AS TO PROPRIETY OF PAYMENT OF DIFFERENCE BETWEEN RETIRED PAY OF A CHIEF WARRANT OFFICER AND THAT OF CAPTAIN. RETIRED WARRANT OFFICER WHO WAS ADVISED THAT ADVANCEMENT TO COMMISSIONED GRADE ON RETIRED LIST WOULD NOT RESULT IN REDUCTION IN RETIRED PAY AND WHO LATER STATES THAT ADVANCEMENT WAS WITHOUT REGARD TO HIS WISHES ACTION ADVANCING MEMBER MAY BE RESCINDED AND PAYMENT ON BASIS OF WARRANT OFFICER GRADE MADE.

TO LIEUTENANT COLONEL FRANK BERRISH, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1967 (FILE REFERENCE FINCS-E BIEMER, PAUL I., 02 262 116 (RETIRED) (, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN FAVOR OF CAPTAIN PAUL I. BIEMER, RETIRED, IN THE AMOUNT OF $131.88 REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A CHIEF WARRANT OFFICER, W-4, AND THAT OF A CAPTAIN (4 YEARS ENLISTED SERVICE) FOR THE PERIOD MARCH 1, 1967, THROUGH JUNE 30, 1967. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY UNDER DATE OF AUGUST 22, 1967, AND HAS BEEN ALLOCATED D. O. NUMBER A-957 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AS STATED IN YOUR LETTER AND SHOWN BY THE ENCLOSURES, THE MEMBER WAS PLACED ON THE RETIRED LIST OCTOBER 1, 1962, IN THE GRADE OF CHIEF WARRANT OFFICER, W-4, UNDER AUTHORITY OF 10 U.S.C. 1293, WITH 28 YEARS, 9 MONTHS AND 26 DAYS OF ACTUAL ACTIVE SERVICE AND 28 YEARS, 11 MONTHS AND 7 DAYS FOR BASIC PAY PURPOSES. EFFECTIVE DECEMBER 5, 1963, UPON COMPLETION OF 30 YEARS OF SERVICE INCLUDING TIME ON THE RETIRED LIST, HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN UNDER AUTHORITY OF 10 U.S.C. 3964, WITH ENTITLEMENT TO RETIRED PAY COMPUTED AS PROVIDED IN 10 U.S.C. 3992.

IT IS SHOWN THAT ON JANUARY 2, 1964, CAPTAIN BIEMER REQUESTED INFORMATION AS TO HIS RATE OF RETIRED PAY UPON ADVANCEMENT AND YOU STATE THAT HE WAS ERRONEOUSLY INFORMED THAT HIS ADVANCEMENT ON THE RETIRED LIST WOULD NOT RESULT IN A REDUCTION OF RETIRED PAY. YOU FURTHER STATE THAT HIS ENTITLEMENT BASED ON THE HIGHER GRADE OF CAPTAIN WAS AT THE MONTHLY RATE OF $407.27, BUT THAT HE CONTINUED TO RECEIVE THE GREATER AMOUNT OF RETIRED PAY AT THE RATE OF $437.72--- A DIFFERENCE OF $30.45 A MONTH--- BASED ON THE GRADE OF CHIEF WARRANT OFFICER, W-4.

IN THE ABSENCE OF A REQUEST FROM CAPTAIN BIEMER FOR RESTORATION TO HIS FORMER WARRANT OFFICER STATUS AS PROVIDED IN 10 U.S.C. 3965, YOU STATE THAT THE PAYMENTS MADE TO HIM BASED ON HIS FORMER WARRANT OFFICER STATUS WERE INCORRECT. CONSEQUENTLY, ON MARCH 10, 1967, HE WAS INFORMED OF THE OVERPAYMENT TOTALING $1,211.15 FOR THE PERIOD DECEMBER 5, 1963, THROUGH FEBRUARY 28, 1967. IT IS STATED THAT EFFECTIVE MARCH 1, 1967, THE MEMBER'S MONTHLY RETIRED PAY WAS REDUCED TO $440.92 COMPUTED AT 72-1/2 PERCENT OF THE PAY OF A CAPTAIN (4 YEARS ENLISTED SERVICE) WITH OVER 28 YEARS OF SERVICE FOR BASIC PAY PURPOSES AT RATES OF BASIC PAY EFFECTIVE JUNE 1, 1958, AS INCREASED BY THE PERCENTAGE INCREASES IN RETIRED PAY PROVIDED IN SUBSEQUENT LEGISLATION. NO PART OF THE OVERPAYMENT HAS BEEN RECOVERED.

YOU STATE THAT WHILE CAPTAIN BIEMER HAD THE RIGHT TO REQUEST RESTORATION TO HIS FORMER WARRANT OFFICER STATUS, HE APPARENTLY DID NOT DO SO UPON ADVICE THAT HIS PAY WOULD BE CONTINUED TO BE PAID AT THE GREATER RATE OF ENTITLEMENT. WHEN THE OFFICER WAS INFORMED OF THE OVERPAYMENT, HE TOOK THE POSITION THAT THE ADVANCEMENT WAS CONTRARY TO HIS WISHES AND REQUESTED RESTORATION TO HIS FORMER WARRANT OFFICER STATUS, APPARENTLY RELYING ON OUR DECISION OF FEBRUARY 23, 1965, 44 COMP. GEN. 510.

IT IS REPORTED THAT SINCE FEBRUARY 23, 1965, A MEMBER HAS BEEN GIVEN THE OPPORTUNITY TO RESCIND HIS ADVANCEMENT IF IT WAS CONTRARY TO HIS WISHES. YOU EXPRESS DOUBT, HOWEVER, AS TO WHETHER THAT DECISION MAY BE APPLIED RETROACTIVELY TO RESCIND ADVANCEMENT ORDERS OF A MEMBER ADVANCED PRIOR TO FEBRUARY 23, 1965, AND IF THAT DECISION MAY BE EXTENDED TO MEMBERS ADVANCED TO A HIGHER COMMISSIONED GRADE AS CAPTAIN BIEMER, NOTWITHSTANDING THE REVERSION PROVISIONS OF 10 U.S.C. 3965.

THE RIGHT OF A WARRANT OFFICER OF THE ARMY TO BE ADVANCED TO A HIGHER GRADE ON THE RETIRED LIST AFTER 30 YEARS OF SERVICE IS CONTAINED IN 10 U.S.C. 3964, AS FOLLOWS:

"EACH WARRANT OFFICER OF THE ARMY, AND EACH ENLISTED MEMBER OF THE REGULAR ARMY, WHO IS RETIRED BEFORE OR AFTER THIS TITLE IS ENACTED IS ENTITLED, WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY.' SECTION 3992 PROVIDES THAT A MEMBER OF THE ARMY WHO IS ADVANCED ON THE RETIRED LIST UNDER SECTION 3964 IS ENTITLED TO RECOMPUTE HIS RETIRED PAY BY MULTIPLYING THE MONTHLY BASIC PAY OF THE GRADE TO WHICH ADVANCED BY A PERCENTAGE FACTOR, NOT TO EXCEED 75 PERCENT, OBTAINED BY ALLOWING 2-1/2 PERCENT FOR EACH YEAR OF ACTIVE SERVICE.

THE AUTHORITY FOR RESTORING A MEMBER ADVANCED UNDER 10 U.S.C. 3964 TO HIS FORMER WARRANT OFFICER STATUS IS PROVIDED IN 10 U.S.C. 3965, AS FOLLOWS:

"EACH RETIRED WARRANT OFFICER OR ENLISTED MEMBER OF THE REGULAR ARMY WHO HAS BEEN ADVANCED ON THE RETIRED LIST TO A HIGHER COMMISSIONED GRADE UNDER SECTION 3964 OF THIS TITLE, AND WHO APPLIES TO THE SECRETARY OF THE ARMY WITHIN THREE MONTHS AFTER HIS ADVANCEMENT, SHALL, IF THE SECRETARY APPROVES, BE RESTORED ON THE RETIRED LIST TO HIS FORMER WARRANT-OFFICER OR ENLISTED STATUS, AS THE CASE MAY BE.'

IN 44 COMP. GEN. 510, CITED IN YOUR SUBMISSION, THERE WAS INVOLVED AN ADVANCEMENT ON THE RETIRED LIST IN A SITUATION SOMEWHAT SIMILAR TO CAPTAIN BIEMER'S AND WHICH INVOLVED SOME OF THE SAME STATUTORY PROVISIONS. SINCE THE MEMBER THERE CONCERNED WAS ADVANCED ON THE RETIRED LIST ONLY TO THE GRADE OF WARRANT OFFICER, W-1, WE EXPRESSED THE VIEW THAT 10 U.S.C. 3965 WAS NOT APPLICABLE IN THAT SITUATION. HOWEVER, WITH RESPECT TO SECTION 3964, WE SAID THE STATUTE DOES NOT IMPOSE AN ABSOLUTE REQUIREMENT FOR ADVANCEMENT BUT MERELY PROVIDES THAT THE MEMBER CONCERNED "IS ENTITLED" TO BE ADVANCED UNDER THE CIRCUMSTANCES THERE PRESCRIBED. WE EXPRESSED THE VIEW THAT IN COMPARATIVELY FEW INSTANCES WHERE ADVANCEMENT UNDER THAT SECTION WOULD RESULT IN AN UNAVOIDABLE REDUCTION IN RETIRED PAY, THE MEMBER INVOLVED SHOULD BE CONSULTED BEFORE HE IS SO ADVANCED. CONCLUDED THAT IF THE RETIRED MEMBER'S ADVANCEMENT WAS EFFECTED SOLELY ON THE BASIS OF ADMINISTRATIVE DETERMINATION WITHOUT REGARD TO HIS WISHES AND IF HE SHOULD NOW STATE THAT SUCH ADVANCEMENT WAS CONTRARY TO HIS WISHES, THERE WAS NO REASON WHY THE ACTION ADVANCING HIM ON THE RETIRED LIST UNDER SECTION 3964 COULD NOT NOW BE RESCINDED.

WITH RESPECT TO YOUR COMMENT AS TO THE RETROACTIVE EFFECT OF OUR DECISION OF FEBRUARY 23, 1965, 44 COMP. GEN. 510, THAT DECISION IS AN ORIGINAL CONSTRUCTION OF 10 U.S.C. 3964 AND UNDER WELL ESTABLISHED RULES IT MUST BE REGARDED AS EFFECTIVE ON THE EFFECTIVE DATE OF THE STATUTORY PROVISIONS THAT IT CONSTRUES. SEE, GENERALLY, 39 COMP. GEN. 455.

IN THE INSTANT CASE THE RECORD SHOWS THAT WITHIN 30 DAYS OF HIS ADVANCEMENT ON THE RETIRED LIST CAPTAIN BIEMER ADDRESSED A LETTER DATED JANUARY 2, 1964, TO THE RETIRED PAY DIVISION, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, REQUESTING FURTHER INFORMATION CONCERNING HIS ADVANCEMENT AND WHAT EFFECT IT WOULD HAVE ON HIS RETIRED PAY. SINCE, AS YOU STATE, HE WAS ERRONEOUSLY ADVISED THAT HIS ADVANCEMENT ON THE RETIRED LIST WOULD NOT RESULT IN A REDUCTION OF HIS RETIRED PAY, AND SINCE IT APPEARS THE ADVANCEMENT WAS MADE SOLELY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION WITHOUT REGARD TO HIS WISHES, THE OFFICER LATER STATING (IN HIS LETTER OF MARCH 14, 1967) THAT THE ADVANCEMENT WAS CONTRARY TO HIS WISHES, THIS CASE FALLS WITHIN THE PURVIEW OF 44 COMP. GEN. 510. IN THE CIRCUMSTANCES, WE KNOW OF NO REASON WHY THE ACTION ADVANCING CAPTAIN BIEMER ON THE RETIRED LIST UNDER SECTION 3964 SHOULD NOT NOW BE RESCINDED. COMPARE 45 COMP. GEN. 201, 204 AND THE AUTHORITIES THERE CITED.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND, IF CAPTAIN BIEMER'S ADVANCEMENT IS RESCINDED, PAYMENT ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT.