B-157665, DECEMBER 19, 1966, 46 COMP. GEN. 575

B-157665, DECEMBER 19, 1966, 46 COMP. GEN. 575

PAY - RETIRED - INCREASES - COST OF LIVING INCREASES - ACTIVE DUTY RECALL THE COST-OF-LIVING INCREASE IN RETIRED PAY OF 3.7 PERCENT EFFECTIVE DECEMBER 1, 1966, UNDER 10 U.S.C. 1401A (B), BASED ON A CONSUMER PRICE INDEX INCREASE, AUTHORIZED FOR MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RETIRED OR RETAINER PAY BEFORE DECEMBER 1, 1966, MAY BE PAID TO MEMBERS WHO RETIRED PRIOR TO DECEMBER 1, 1966, AND WERE RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN SERVICE, REVERTING TO THE RETIRED LIST ON OR AFTER DECEMBER 1, 1966, THE MEMBERS ALTHOUGH CONTINUING IN AN ACTIVE STATUS BECOMING ENTITLED TO RETIRED PAY PRIOR TO DECEMBER 1, 1966. PAY - RETIRED - INCREASES - COST OF LIVING INCREASES - DISABILITY RETIREMENT CHANGES MEMBERS OF THE UNIFORMED SERVICES WHO HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO DECEMBER 1, 1966, REMOVED FROM THE LIST ON NOVEMBER 30, 1966, AND PLACED ON THE PERMANENT DISABILITY RETIRED LIST DECEMBER 1, 1966, ARE ENTITLED TO THE 3.7 PERCENT COST-OF-LIVING INCREASE IN RETIRED PAY EFFECTIVE DECEMBER 1, 1966 UNDER 10 U.S.C. 1401A (B), BASED ON THE CONSUMER PRICE INDEX INCREASE, AUTHORIZED FOR MEMBERS AND FORMER MEMBERS ENTITLED TO RETIRED OR RETAINER PAY BEFORE DECEMBER 1, 1966, NO BASIC CHANGE HAVING OCCURRED IN THE MEMBER'S ENTITLEMENT TO DISABILITY RETIRED PAY FROM A DATE PRECEDING DECEMBER 1, 1966, AN ENTITLEMENT THAT IS NOT DEFEATED BECAUSE A MEMBER'S PERCENTAGE OF DISABILITY WAS CHANGED WHEN HIS NAME WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST. PAY - RETIRED - INCREASES - COST OF LIVING INCREASES - DISABILITY RETIREMENT CHANGES MEMBERS OF THE UNIFORMED SERVICES PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO DECEMBER 1, 1966, WHO HAVING RECOVERED FROM DISABILITY ARE REMOVED FROM THE LIST ON NOVEMBER 30, 1966, AND PERMANENTLY RETIRED UNDER SOME OTHER RETIREMENT STATUTE AS OF DECEMBER 1, 1966, ARE NOT ENTITLED TO THE CONSUMER PRICE INDEX INCREASE IN RETIRED PAY PRESCRIBED BY 1401A (B), WHICH BECAME EFFECTIVE DECEMBER 1, 1966, THE RIGHT OF THE MEMBERS TO THE INCREASE HAVING CEASED BEFORE DECEMBER 1, 1966.

TO THE SECRETARY OF DEFENSE, DECEMBER 19, 1966:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 9, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) FORWARDING DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 389 AND REQUESTING DECISION ON CERTAIN QUESTIONS SET FORTH THEREIN AS FOLLOWS:

IS THE COST OF LIVING INCREASE IN RETIRED PAY OF 3.7 PERCENT EFFECTIVE 1 DECEMBER 1966, PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 1401A (B), TITLE 10, U.S.C. AS AMENDED, AUTHORIZED IN THE COMPUTATION OF RETIRED PAY OF PERSONNEL IN THE FOLLOWING CATEGORIES?

A. MEMBERS WHO WERE RETIRED PRIOR TO 1 DECEMBER 1966, IMMEDIATELY RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN SERVICE, AND WHO REVERT TO THE RETIRED LIST ON OR AFTER 1 DECEMBER 1966.

B. MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO 1 DECEMBER 1966, REMOVED THEREFROM ON 30 NOVEMBER 1966 BY REASON OF A DETERMINATION OF PERMANENT DISABILITY, AND PLACED ON THE PERMANENT DISABILITY RETIRED LIST 1 DECEMBER 1966.

C. MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO 1 DECEMBER 1966, REMOVED THEREFROM ON 30 NOVEMBER 1966 BECAUSE OF RECOVERY FROM THE DISABILITY AND PERMANENTLY RETIRED UNDER SOME OTHER RETIREMENT STATUTE 1 DECEMBER 1966.

SECTION 1401A (B), TITLE 10, U.S. CODE, WAS AMENDED EFFECTIVE SEPTEMBER 1, 1965, BY SECTION 5 (B), PUBLIC LAW 89-132, 79 STAT. 547, TO PROVIDE AS FOLLOWS:

THE SECRETARY OF DEFENSE SHALL DETERMINE THE PER CENTUM THAT THE CONSUMER PRICE INDEX FOR EACH CALENDAR MONTH AFTER THE CALENDAR MONTH IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT HAS INCREASED OVER THE BASE CONSUMER PRICE INDEX (THAT FOR THE CALENDAR MONTH IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT OR, IF LATER, THAT USED AS THE BASIS FOR THE MOST RECENT ADJUSTMENT OF RETIRED PAY AND RETAINER PAY UNDER THIS SUBSECTION). IF THE SECRETARY DETERMINES THAT, FOR THREE CONSECUTIVE CALENDAR MONTHS, THE INDEX HAS SHOWN AN INCREASE OF AT LEAST 3 PER CENTUM OVER THE BASE INDEX, THE RETIRED PAY AND RETAINER PAY OF MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECAME ENTITLED TO THAT PAY BEFORE THE FIRST DAY OF THE THIRD CALENDAR MONTH BEGINNING AFTER THE EXPIRATION OF THOSE THREE MONTHS SHALL BE INCREASED, EFFECTIVE THAT DAY, BY THE HIGHEST PER CENTUM OF INCREASE IN THE INDEX DURING THOSE THREE MONTHS, ADJUSTED TO THE NEAREST ONE TENTH OF 1 PER CENTUM.

IN COMMITTEE ACTION NO. 389 IT IS STATED THAT THE SECRETARY OF DEFENSE HAS DETERMINED, UNDER THE AUTHORITY PRESCRIBED IN SECTION 1401 (B), THAT THE CONSUMER PRICE INDEX HAS SHOWN AN INCREASE OF AT LEAST 3 PER CENTUM OVER THE BASE INDEX DURING THE MONTHS OF JULY, AUGUST AND SEPTEMBER 1966, AND THAT THE HIGHEST PER CENTUM OF INCREASE IN THE INDEX DURING THOSE MONTHS WAS 3.7 PER CENTUM. HENCE THE RETIRED PAY AND RETAINER PAY OF MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES ,WHO BECAME ENTITLED TO THAT PAY" BEFORE DECEMBER 1, 1966, WAS INCREASED BY 3.7 PER CENTUM ON THAT DATE AND THE RETIRED PAY AND RETAINER PAY OF THOSE MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECOME ENTITLED THERETO AFTER NOVEMBER 30, 1966, WILL NOT BE SO INCREASED.

WHEN A MEMBER OF THE ARMED FORCES IS RETIRED AND IMMEDIATELY RECALLED TO ACTIVE DUTY AS A RETIRED PERSON NO BREAK OCCURS IN THE RECEIPT OF ACTIVE DUTY PAY. HOWEVER, ENTITLEMENT TO RETIRED PAY IN SUCH A CASE REASONABLY MAY BE CONSIDERED AS ACCRUING TO THE INDIVIDUAL CONCERNED ON THE EFFECTIVE DATE OF RETIREMENT ALTHOUGH TEMPORARILY SUSPENDED BECAUSE THE MEMBER'S CONTINUATION IN AN ACTIVE DUTY PAY STATUS PRECLUDES PAYMENT OF RETIRED PAY TO HIM. SEE 30 COMP. GEN. 429 AND COMPARE 42 COMP. GEN. 153, 155.

THE LAW EXPRESSLY PROVIDES FOR A PERCENTAGE INCREASE IN THE RETIRED PAY OR RETAINER PAY OF MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES "WHO BECAME ENTITLED TO THAT PAY" BEFORE DECEMBER 1, 1966. WE FIND NOTHING IN THE LANGUAGE OF THE LAW OR ITS MANIFEST PURPOSE WHICH REQUIRES A CONCLUSION THAT A RETIRED MEMBER OR FORMER MEMBER OF THE ARMED FORCES ACTUALLY MUST BE IN RECEIPT OF RETIRED PAY OR RETAINER PAY PRIOR TO DECEMBER 1, 1966, IN ORDER TO QUALIFY FOR THE PERCENTAGE INCREASE. QUESTION A IS ANSWERED IN THE AFFIRMATIVE.

QUESTION B ALSO IS ANSWERED IN THE AFFIRMATIVE SINCE IT IS EVIDENT THAT IN THE CIRCUMSTANCES STATED THERE IS NO BASIC CHANGE IN THE INDIVIDUAL'S ENTITLEMENT TO RECEIVE DISABILITY RETIRED PAY FROM A DATE PRECEDING DECEMBER 1, 1966. WE DO NOT THINK THAT A DIFFERENT CONCLUSION WOULD BE REQUIRED EVEN IN THE CASE OF A MEMBER WHOSE PERCENTAGE OF DISABILITY WAS CHANGED WHEN HIS NAME WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST ON DECEMBER 1, 1966. IN SUCH A CASE THE MEMBER'S RIGHT TO DISABILITY RETIRED PAY IN SOME AMOUNT PRIOR TO DECEMBER 1, 1966, AND HIS RIGHT TO HAVE HIS NAME PLACED ON THE RETIRED LIST ON THAT DATE BOTH AROSE BECAUSE OF DISABILITY RETIREMENT PROCEEDINGS INITIATED UNDER CHAPTER 61, 10 U.S.C.

WITH RESPECT TO QUESTION C, IT APPEARS CLEAR THAT IF THE MEMBER RECOVERED SUFFICIENTLY EARLY TO HAVE HIS NAME REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 1, 1966, HE WOULD NOT GET THE BENEFITS OF THE 3.7 PER CENTUM INCREASE IN RETIRED PAY IF HE WERE RETIRED UNDER ANOTHER PROVISION OF LAW EFFECTIVE DECEMBER 1, 1966. THE SAME RESULT WOULD SEEM TO FOLLOW IF HIS NAME WERE REMOVED FROM THAT LIST ON NOVEMBER 29, 1966. WE SEE NO REASON WHY A DIFFERENT RESULT SHOULD FOLLOW WHERE, AS SUGGESTED IN QUESTION C, HIS NAME WAS SO REMOVED ON NOVEMBER 30, 1966. IN EITHER SITUATION THE DISABILITY RETIREMENT PROCEEDINGS WOULD HAVE TERMINATED PERMANENTLY BEFORE DECEMBER 1, 1966, WITHOUT HIS HAVING BEEN RETIRED FOR DISABILITY. A RIGHT TO "THAT PAY" MENTIONED IN THE STATUTE--- HERE, RETIRED PAY BASED ON PHYSICAL DISABILITY, ENTITLEMENT TO WHICH ACCRUED PRIOR TO DECEMBER 1, 1966--- CEASED BEFORE DECEMBER 1, 1966, AND, IN OUR VIEW, THE MEMBER INVOLVED SHOULD HAVE NO GREATER RIGHTS THAN ANY OTHER OFFICER WHO RETIRED EFFECTIVE ON THAT DATE UNDER ANY OTHER PROVISION OF LAW.