B-155458, JAN. 5, 1965, 44 COMP. GEN. 373

B-155458, JAN. 5, 1965, 44 COMP. GEN. 373

PAY - RETIRED - EFFECTIVE DATE - RATE UNDER 1963 OR 1964 PAY ACTS - ARMY AND AIR FORCE OFFICERS. PAY - RETIRED - EFFECTIVE DATE - RULE UNDER 1963 OR 1964 PAY ACTS - ARMY AND AIR FORCE OFFICERS. PAY - RETIRED - DISABILITY - EFFECTIVE DATE. PAY - RETIRED - DISABILITY - EFFECTIVE DATE - ENLISTED SERVICE. PAY - RETIRED - DISABILITY - EFFECTIVE DATE - FLEET RESERVISTS. PAY - RETIRED - DISABILITY - EFFECTIVE DATE - ELECTION EFFECT. PAY - RETIRED - DISABILITY - EFFECTIVE DATE - ELECTION EFFECT. PAY - RETIRED - DISABILITY - EFFECTIVE DATE - AGE OR SERVICE RETIREMENTS ARMY AND AIR FORCE OFFICERS WHO ARE INVOLUNTARILY RETIRED EFFECTIVE SEPTEMBER 1, 1964--- THE DATE FOR NEW RATES OF ACTIVE DUTY PAY FOR MEMBERS OF THE UNIFORMED SERVICES PRESCRIBED BY THE ACT OF AUGUST 12, 1964, 37 U.S.C. 203 (A/--- AND WHO ARE ENTITLED TO RETIRED PAY UNDER FORMULA A OF 10 U.S.C. 3991 AND 8991 ARE TO BE TREATED FOR RETIRED PAY COMPUTATION IN THE SAME MANNER AS NAVAL OFFICERS INVOLUNTARILY RETIRED, WHO BY REASON OF THE ELIMINATION IN THE 1963 PAY ACT OF THE PRINCIPLE OF AUTOMATIC RECOMPUTATION OF RETIRED PAY, ARE SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, REQUIRING RETIRED PAY TO BE COMPUTED ON THE RATE OF BASIC PAY ON THE DATE THE OFFICERS WOULD HAVE BEEN RETIRED BUT FOR THE UNIFORM ACT, AND, THEREFORE, SUCH ARMY AND AIR FORCE OFFICERS ARE NOT ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON RATES IN THE 1964 PAY ACT BUT MUST HAVE IT COMPUTED ON RATES IN THE UNIFORMED SERVICES PAY ACT OF 1963. UNDER THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, RETIRED PAY OF ARMY AND AIR FORCE OFFICERS WHO WERE RETIRED ON SEPTEMBER 1, 1964--- THE EFFECTIVE DATE FOR NEW RATES OF ACTIVE DUTY PAY FOR MEMBERS OF THE UNIFORMED SERVICES PRESCRIBED BY THE ACT OF AUGUST 12, 1964, 37 U.S.C. 203 (A/--- AND WHO HAVE THEIR RETIRED PAY COMPUTED UNDER FORMULA B OF 10 U.S.C. 3991 AND 8991 MUST, IF THEY QUALIFIED FOR RETIREMENT BY COMPLETION OF 20, 30 OR 40 YEARS OF SERVICE AFTER JULY 1964, HAVE THEIR RETIRED PAY COMPUTED ON RATES PRESCRIBED IN THE UNIFORMED SERVICES PAY ACT OF 1963 RATHER THAN THE HIGHER RATES IN THE 1964 ACT. MEMBERS OF THE UNIFORMED SERVICES WHO, PURSUANT TO A TRANSFER APPROVED PRIOR TO SEPTEMBER 1, 1964--- THE EFFECTIVE DATE FOR NEW RATES OF ACTIVE DUTY PAY FOR MEMBERS OF THE UNIFORMED SERVICES PRESCRIBED BY THE ACT OF AUGUST 12, 1964, 37 U.S.C. 203 (A/--- ARE RETIRED FOR DISABILITY OR TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST AT ANY TIME DURING AUGUST 1964, ARE REGARDED AS BEING RETIRED ON THE DATE THE RETIREMENT WAS APPROVED RATHER THAN ON THE DATE THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, MADE THE RETIREMENT EFFECTIVE, AND, THEREFORE, SUCH MEMBERS, WHO HAVE THEIR RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401, ARE ENTITLED TO RETIRED PAY ON THE BASIS OF THE RATES IN THE UNIFORMED SERVICES PAY ACT OF 1963 RATHER THAN THE RATES IN THE 1964 ACT. ARMY AND AIR FORCE ENLISTED MEMBERS WHO, ALTHOUGH ELIGIBLE FOR RETIREMENT UNDER 10 U.S.C. 3914 AND 8914, BY REASON OF COMPLETION OF YEARS OF SERVICE PRIOR TO AUGUST 1964 ARE RETAINED ON ACTIVE DUTY THROUGH THE END OF THE MONTH BEFORE THE DATE OF RETIREMENT--- SEPTEMBER 1, 1964--- ARE REGARDED AS BEING RETIRED ON SEPTEMBER 1, 1964, UNDER THE MILITARY PAY ACT OF MAY 20, 1958, WHICH PERMITTED THE COUNTING OF TIME FOR LONGEVITY UP TO THE ACTUAL DATE OF RETIREMENT WITH THE CORRESPONDING RIGHT TO HAVE RETIRED PAY COMPUTED AT THE RATE APPLICABLE ON DATE OF RETIREMENT AND, THEREFORE, SUCH ENLISTED MEMBERS MAY HAVE THEIR RETIRED PAY COMPUTED ON THE RATES IN THE 1964 PAY ACT. SINCE NAVY AND MARINE CORPS MEMBERS WHO WERE TRANSFERRED EFFECTIVE SEPTEMBER 1, 1964, TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330, WHICH REQUIRES RETAINER PAY TO BE COMPUTED ON THE RATES "RECEIVED AT TIME OF TRANSFER," COULD NOT HAVE LAWFULLY "RECEIVED" PAY BEFORE SEPTEMBER 1, 1964, UNDER THE ACT OF AUGUST 12, 1964, 37 U.S.C. 203 (A), WHICH PRESCRIBED NEW ACTIVE DUTY RATES EFFECTIVE SEPTEMBER 1, 1964, SUCH MEMBERS MUST HAVE THEIR RETAINER PAY COMPUTED ON THE BASIS OF THE RATES IN THE UNIFORMED SERVICES PAY ACT OF 1963. A NAVY OR MARINE CORPS OFFICER HOLDING A PERMANENT APPOINTMENT IN THE GRADE OF WARRANT OFFICER, W-1 OR ABOVE, WHO COMPLETED 30 OR MORE YEARS OF SERVICE PRIOR TO AUGUST 1964 AND REQUESTED RETIREMENT UNDER 10 U.S.C. 6322, EFFECTIVE SEPTEMBER 1, 1964--- THE DATE FOR NEW RATES OF ACTIVE DUTY PAY FOR MEMBERS OF THE UNIFORMED SERVICES PRESCRIBED BY THE ACT OF AUGUST 12, 1964, 37 U.S.C. 203 (A/--- IS NOT SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, BY REASON OF THE FACT THAT THE RETIREMENT DATE IS FIXED AT THE ELECTION OF THE OFFICER, AND, THEREFORE, SUCH MEMBERS MAY HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES IN THE 1964 PAY ACT. NAVY AND MARINE CORPS OFFICERS WHO ARE RETIRED UNDER 10 U.S.C. 6323 EFFECTIVE SEPTEMBER 1, 1964, UPON COMPLETION OF 20 OR MORE YEARS OF ACTIVE SERVICE AFTER JULY 31, 1964, ARE SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, AND ARE REQUIRED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES IN THE UNIFORMED SERVICES PAY ACT OF 1963, BUT SUCH OFFICERS WHO HAVE COMPLETED 20 YEARS OF SERVICE PRIOR TO AUGUST 1964, AND ARE RETIRED UNDER 10 U.S.C. 6323, EFFECTIVE SEPTEMBER 1, 1964, ARE REGARDED AS HAVING THE RETIREMENT DATE FIXED BY AN ELECTION SO THAT THEY MAY HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES IN THE ACT OF AUGUST 12, 1964, 37 U.S.C. 203 (A). MODIFIED BY 44 COMP. GEN.--- (B- 155458, MARCH 26, 1965) OFFICERS WHO ARE RETIRED UNDER PROVISIONS OF LAW SUCH AS ARE CONTAINED IN 10 U.S.C. 6398 WHICH REQUIRE RETIREMENT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEY REACH A PRESCRIBED AGE OR COMPLETE THE REQUIRED AMOUNT OF SERVICE, AND WHO WERE RETIRED EFFECTIVE SEPTEMBER 1, 1964, ARE SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, AND, THEREFORE, THEIR RETIRED PAY IS FOR COMPUTATION ON THE RATES OF PAY PRESCRIBED IN THE UNIFORMED SERVICES PAY ACT OF 1963, RATHER THAN ON THE RATES PRESCRIBED IN THE ACT OF AUGUST 12, 1964, EFFECTIVE SEPTEMBER 1, 1964.

TO THE SECRETARY OF DEFENSE, JANUARY 5, 1965:

REFERENCE IS MADE TO LETTER OF OCTOBER 21, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER THE NEW RATES OF MONTHLY PAY PRESCRIBED BY SECTION 1 OF THE ACT OF AUGUST 12, 1964, 78 STAT. 395, PUBLIC LAW 88-422, PROPERLY MAY BE USED IN THE COMPUTATION OF THE RETIRED PAY OR RETAINER PAY OF A MEMBER RETIRED OR TRANSFERRED TO THE FLEET RESERVE EFFECTIVE SEPTEMBER 1, 1964, UNDER CERTAIN PROVISIONS OF TITLE 10, U.S.C. A RELATED DISCUSSION IS CONTAINED IN COMMITTEE ACTION NO. 352 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN GENERAL, PERMANENT CHANGES IN THE RATES OF ACTIVE DUTY PAY FORMERLY WERE REFLECTED IN THE COMPUTATION OF RETAINER AND RETIRED PAY IN THE ABSENCE OF LEGISLATIVE INTENT OR STATUTORY PROVISION TO THE CONTRARY. SECTION 3 OF THE MILITARY PAY ACT OF MAY 20, 1958, 72 STAT. 128, PUBLIC LAW 85-422, 37 U.S.C. 232 NOTE, HOWEVER, EXPRESSLY PROVIDED THAT PERSONS RETIRED PRIOR TO THE EFFECTIVE DATE (JUNE 1, 1958) OF THAT ACT COULD NOT COMPUTE THEIR RETIRED OR RETAINER PAY ON THE BASIS OF THE ACTIVE DUTY PAY RATES PRESCRIBED IN THAT ACT UNLESS THEY HAD PERFORMED A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST 1 YEAR AFTER BECOMING ENTITLED TO RETIRED OR RETAINER PAY AND WERE RELEASED FROM ACTIVE DUTY ON OR AFTER JUNE 1, 1958. SECTION 4 (B) OF THE 1958 ACT, 10 U.S.C. 1401 NOTE, PROVIDED THAT ANY MEMBER OF THE UNIFORMED SERVICES RETIRED UNDER ANY PROVISION OF LAW ON THE EFFECTIVE DATE OF THAT ACT (JUNE 1, 1958) COULD HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY PRESCRIBED IN THAT ACT.

SECTION 5 OF THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 212 215, PUBLIC LAW 88-132, AUTHORIZED, AMONG OTHER THINGS, (A) RECOMPUTATION OF RETIRED PAY UNDER THE 1958 PAY ACT RATES OR AN INCREASE OF 5 PERCENT OF THE RETIRED PAY OF PERSONS RETIRED PRIOR TO JUNE 1958, (B) A 5 PERCENT INCREASE IN RETIRED PAY OF PERSONS RETIRED AFTER MAY 1958 AND PRIOR TO THE EFFECTIVE DATE OF THE 1963 PAY ACT AND (C) RECOMPUTATION OF RETIRED PAY ON THE BASIS OF THE ACTIVE DUTY PAY PRESCRIBED IN THE 1963 ACT OF (1) RETIRED PERSONS SERVING ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THAT ACT WHO HAD SERVED ON CONTINUOUS ACTIVE DUTY OF 1 YEAR OR MORE FOLLOWING RECALL TO ACTIVE DUTY, AND (2) RETIRED PERSONS THEREAFTER RECALLED TO ACTIVE DUTY WHO SERVE ON CONTINUOUS ACTIVE DUTY FOR 2 OR MORE YEARS FOLLOWING RECALL TO ACTIVE DUTY. THAT SECTION ALSO DELETED FROM TITLE 10, U.S. CODE, THE PROVISIONS OF LAW AUTHORIZING RECOMPUTATION OF RETIRED PAY BASED UPON CHANGES IN RATES OF ACTIVE DUTY PAY AND PROHIBITED THE RECOMPUTATION OF RETIRED PAY TO REFLECT ANY INCREASE IN THE RATES OF BASIC (ACTIVE DUTY) PAY "IF THAT INCREASE BECOMES EFFECTIVE AFTER THE EFFECTIVE DATE OF THIS SECTION" UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW. IN LIEU OF "RECOMPUTATION," ADMINISTRATIVE ADJUSTMENTS IN RETIRED PAY WERE AUTHORIZED ON THE BASIS OF INCREASES IN THE COST OF LIVING AS REFLECTED IN CHANGES IN THE CONSUMER PRICE INDEX.

AUTOMATIC RECOMPUTATION OF RETIRED PAY ON THE BASIS OF CURRENT RATES OF ACTIVE DUTY PAY ALSO WAS AUTHORIZED BY PROVISIONS OF LAW PROVIDING THAT RETIRED PAY IS TO BE COMPUTED ON THE BASIS OF THE PAY TO WHICH THE MEMBER WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY. SEE 10 U.S.C. 1401, 3991, 8991, 6151, 6323, 6325, 6326, 6327, 6381, 6383, 6390, 6394, 6396, 6398, 6399, AND 6400. APPROPRIATE PROVISIONS WERE MADE IN THOSE SECTIONS BY SECTION 5 (H) OF THE 1963 PAY ACT, 77 STAT. 214, TO ELIMINATE THE AUTOMATIC RECOMPUTATION PROVISIONS THERE CONTAINED.

PERSONS WHO BECAME ENTITLED TO RETIRED PAY AFTER MARCH 1963 AND PRIOR TO OCTOBER 1, 1963, THE EFFECTIVE DATE OF THE 1963 PAY ACT, WERE BY THAT ACT ALSO AUTHORIZED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF ACTIVE DUTY PAY RATES PRESCRIBED IN THAT ACT UNLESS THEY BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, AS AMENDED (5 U.S.C. 47A).

THE UNIFORM RETIREMENT DATE ACT OF JUNE 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A, ROVIDES:

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.

SECTION 1404 OF TITLE 10, U.S. CODE, PROVIDES THAT THE RETIREMENT PROVISIONS OF THAT TITLE ARE SUBJECT TO THE PROVISIONS OF 5 U.S.C. 47A. SECTION 1221 OF TITLE 10, U.S. CODE, PROVIDES THAT, NOTWITHSTANDING THE PROVISIONS OF 5 U.S.C. 47A, THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR THE RETIREMENT OF ANY MEMBER OF THE ARMED FORCES UNDER CHAPTER 61, TITLE 10 (WHICH GOVERNS RETIREMENT FOR PHYSICAL DISABILITY), OR FOR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, THAT IS EARLIER THAN THE DATE PROVIDED FOR IN THAT SECTION (5 U.S.C. 47A).

IN VIEW OF THE CHANGE IN THE LEGISLATIVE POLICY WITH RESPECT TO "RECOMPUTATION" OF RETIRED PAY BASED ON CHANGES IN RATES OF ACTIVE DUTY PAY EFFECTED BY RESTRICTIONS ON "RECOMPUTATION" OF RETIRED PAY CONTAINED IN THE 1958 AND 1963 PAY ACTS AND THE CONCOMITANT REAFFIRMATION IN THE 1963 PAY ACT OF THE RESTRICTIONS ON THE RATE OF RETIRED PAY EFFECTED BY THE UNIFORM RETIREMENT DATE ACT OF 1930, 5 U.S.C. 47A, IT IS ESSENTIAL TO DETERMINE THE EFFECT OF THE 1930 ACT WITH RESPECT TO EACH PROVISION OF LAW AUTHORIZING MILITARY RETIREMENT WITH PAY INASMUCH AS THE 1964 MILITARY PAY ACT DOES NOT CONTAIN A PROVISION SUCH AS WAS CONTAINED IN THE 1958 PAY ACT AUTHORIZING MEMBERS RETIRED ON THE EFFECTIVE DATE OF THE 1964 ACT TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY PRESCRIBED IN THAT ACT.

THE UNIFORM RETIREMENT DATE ACT OF 1930 REQUIRES THAT EVERY RETIREMENT (UNLESS SPECIFICALLY OR BY IMPLICATION EXEMPTED BY STATUTE) TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, BUT THAT THE RATE OF RETIRED PAY MUST BE COMPUTED AS OF THE DATE THE RETIREMENT WOULD HAVE OCCURRED IF THE UNIFORM RETIREMENT DATE ACT HAD NOT BEEN ENACTED. IN CONSTRUING THAT ACT IN DECISION OF OCTOBER 29, 1963, 43 COMP. GEN. 425, IN RELATION TO THE PROVISIONS OF THE 1963 PAY ACT, WE HELD THAT PERSONS VOLUNTARILY RETIRED EFFECTIVE APRIL 1, 1963, AFTER HAVING BECOME ELIGIBLE THEREFOR PRIOR TO MARCH 1, 1963, DID NOT BECOME ENTITLED TO RETIRED PAY EFFECTIVE APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT FOR THE REASON THAT THE RETIREMENT DATE WAS BASED ON ADMINISTRATIVE DISCRETION OR ELECTION OF THE PERSON RETIRED, AND THAT THEY THEREFORE ARE ENTITLED UNDER THE EXPRESS TERMS OF THE 1963 ACT TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY PRESCRIBED IN THAT ACT. WHERE A PERSON FIRST QUALIFIED FOR RETIREMENT FOR AGE AND SERVICE AFTER FEBRUARY 1963 AND WAS RETIRED EFFECTIVE APRIL 1, 1963, BECAUSE HE FAILED TO SPECIFY A DATE OF RETIREMENT LATER THAN THE DATE HE FIRST BECAME ELIGIBLE TO RECEIVE RETIRED PAY, AND WHERE A PERSON WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE APRIL 1, 1963, ON THE BASIS OF RETIREMENT ACTION OF THE SECRETARY CONCERNED AFTER FEBRUARY 1963 WITHOUT HIS HAVING SPECIFIED AN EARLIER RETIREMENT DATE UNDER THE PROVISIONS OF 10 U.S.C. 1221, WE HELD THAT THE MEMBERS CONCERNED BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT OF 1930, BECAUSE THERE WAS NO EXERCISE OF ADMINISTRATIVE DISCRETION IN FIXING THE DATE OF DISABILITY RETIREMENT OR ELECTION OF A DIFFERENT DATE BY THE PERSON RETIRED UNDER THE PROVISIONS OF A VOLUNTARY RETIREMENT ACT FOR AGE AND SERVICE. THEY ACCORDINGLY WERE HELD TO BE INELIGIBLE TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE PAY RATES PRESCRIBED IN THE 1963 PAY ACT.

THE ABOVE CONCLUSIONS ARE CONSISTENT WITH OUR PRIOR DECISIONS RELATING TO THE EFFECTIVE DATE OF RETIREMENT UNDER THE UNIFORM RETIREMENT DATE ACT. IN SUMMARY, WHERE A MEMBER IS RETIRED FOR DISABILITY WITHOUT THE SECRETARY CONCERNED HAVING DESIGNATED AN EARLIER DATE OF RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1221, THE EFFECTIVE DATE OF RETIREMENT IS GOVERNED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. 43 COMP. GEN. 425. WHERE A MEMBER IS RETIRED FOR REASON/S) OTHER THAN DISABILITY IMMEDIATELY UPON BECOMING ELIGIBLE THEREFOR, THE RETIREMENT IS GOVERNED BY THE PROVISIONS OF, AND SUBJECT TO THE RESTRICTIVE PROVISIONS OF, THE UNIFORM RETIREMENT DATE ACT. 43 COMP. GEN. 425; 9 COMP. GEN. 512; 10 COMP. GEN. 28; 35 COMP. GEN. 633. WHERE A MEMBER IS RETIRED AT A TIME OTHER THAN THE DATE WHEN ELIGIBILITY FOR RETIREMENT FIRST EXISTS, AND THE DATE OF RETIREMENT IS FIXED ON THE BASIS OF ADMINISTRATIVE DISCRETION OR ELECTION OF THE MEMBER ON THE FIRST DAY OF A MONTH LATER THAN THAT REQUIRED BY THE UNIFORM RETIREMENT DATE ACT, THE RESTRICTIONS CONTAINED IN THAT ACT LIMITING RETIRED PAY TO THE AMOUNT THAT WOULD HAVE BEEN PAYABLE IF THAT LAW HAD NOT BEEN ENACTED ARE NOT FOR APPLICATION. SEE 10 COMP. GEN. 36.

THE COMMITTEE ACTION DISCUSSION SUGGESTS THAT THE UNIFORM RETIREMENT DATE ACT WHEN CONSIDERED IN CONJUNCTION WITH THE 1964 PAY ACT APPEARS TO REQUIRE THAT, IN CASES OF MEMBERS WHO WERE REQUIRED TO BE RETIRED ON AN ANNIVERSARY DATE DURING THE MONTH OF AUGUST 1964, RETIRED PAY SHOULD BE COMPUTED ON THE RATES OF BASIC PAY IN EFFECT ON AUGUST 31, 1964, AS PRESCRIBED IN SECTION 2 OF THE UNIFORM SERVICES PAY ACT OF 1963, 37 U.S.C. 203. CITED AS AN EXAMPLE IS AN OFFICER REQUIRED UNDER 10 U.S.C. 3883 TO BE RETIRED WHEN HE BECOMES 60 YEARS OF AGE, EXCEPT AS PROVIDED IN 5 U.S.C. 47A. IT IS STATED THAT SUCH AN OFFICER WHO BECAME AGE 60 IN AUGUST 1964 WOULD BE RETIRED EFFECTIVE SEPTEMBER 1, 1964, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, AND THAT IT WOULD APPEAR THAT HIS RETIRED PAY WOULD BE COMPUTED ON THE BASIS OF THE RATE APPLICABLE "ON THE DATE OF RETIREMENT" (10 U.S.C. 3991, FORMULA A, FOOTNOTE 2), THAT IS, THE RATE PROVIDED IN THE 1963 PAY ACT. IT IS FURTHER SUGGESTED THAT THIS RULE WOULD APPLY TO PERSONS SUBJECT TO INVOLUNTARY RETIREMENT UNDER OTHER PROVISIONS OF LAW SUCH AS 10 U.S.C. 564, 1164, 1255, 1263, 1305, 3884, 3885, 3886, 3913, 3915, 3916, 3921, 3922, 3923, 8883, 8884, 8885, 8886, 8913, 8915, 8916, 8921, 8922, 8923. PRESUMABLY THE TERM "DATE OF RETIREMENT" IS CONSTRUED TO MEAN THE DATE THE MEMBER WOULD OTHERWISE BE RETIRED BUT FOR THE APPLICATION OF THE UNIFORM RETIREMENT DATE ACT, THAT IS, A DATE IN THE MONTH PRECEDING THE MONTH IN WHICH THE MEMBER IS RETIRED BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT.

THE 1963 PAY ACT STRUCK FROM FORMULA A IN 10 U.S.C. 3991 AND 8991, AS WELL AS FROM 10 U.S.C. 6151, 6323, 6325, 6326, 6327, 6381, 6383, 6390, 6394, 6396, 6398, 6399, AND 6400 APPLICABLE TO NAVAL OFFICERS, THE PROVISION FOR COMPUTATION OF RETIRED PAY ON THE BASIS OF THE RATE OF BASIC PAY TO WHICH MEMBER WOULD BE ENTITLED IF HE WERE SERVING ON ACTIVE DUTY IN HIS RETIRED GRADE. THERE WAS SUBSTITUTED THEREFOR IN FORMULA A THE PROVISION THAT THE MEMBER'S RETIRED PAY SHOULD BE COMPUTED ON THE "MONTHLY BASIC PAY (2) OF THE MEMBER'S RETIRED GRADE.' FOOTNOTE 2 WAS CONCURRENTLY AMENDED TO READ: "COMPUTE AT RATES APPLICABLE ON DATE OF RETIREMENT.' SUCH CHANGES IN LANGUAGE WERE EFFECTED FOR THE PURPOSE OF ENDING THE PRINCIPLE OF AUTOMATIC RECOMPUTATION OF RETIRED PAY UPON A CHANGE IN ACTIVE DUTY PAY RATES. IT WILL BE NOTED THAT FORMULA A IN SECTIONS 3991 AND 8991 APPLIES TO INVOLUNTARY RETIREMENT OF ARMY AND AIR FORCE OFFICERS UNDER 10 U.S.C. 3883, 3884, 3885, 3886, 3913, 3915, 3916, 3919, 3921, 3922, AND 3923 AND CORRESPONDING SECTIONS RELATING TO THE AIR FORCE. SUCH SIMILAR LANGUAGE WAS SUBSTITUTED FOR SIMILAR LANGUAGE STRUCK FROM THE PROVISIONS RELATING TO INVOLUNTARY RETIREMENT OF NAVAL OFFICERS. WITH THE EXCEPTION OF SECTION 3919 (AND SECTION 8919 APPLICABLE TO THE AIR FORCE), EACH OF THE SECTIONS ENUMERATED IN THE NEXT TO LAST SENTENCE ABOVE SPECIFICALLY FIXES THE DATE OF RETIREMENT (SUBJECT TO THE UNIFORM RETIREMENT DATE ACT). SECTIONS 3919 AND 8919 PRESCRIBE NO SPECIFIC DATE OF RETIREMENT, AND THE TIME OF RETIREMENT UNDER THOSE SECTIONS IS WITHIN THE DISCRETION OF THE APPROPRIATE SECRETARY (SUBJECT TO THE UNIFORM RETIREMENT DATE ACT BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 1404).

WITH THE ELIMINATION (FROM THE CITED SECTIONS RELATING TO NAVAL OFFICERS) OF THE PROVISION MAKING THE COMPUTATION OF THE RETIRED PAY OF SUCH OFFICERS INVOLUNTARILY RETIRED DEPENDENT UPON THE RATE OF PAY APPLICABLE IF THEY WERE SERVING ON ACTIVE DUTY AND THE SUBSTITUTION OF NO OTHER SPECIFIC LANGUAGE, IT IS CLEAR THAT UNDER OUR DECISIONS SUCH RETIREMENTS ARE SUBJECT TO THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT AS TO THE RATE OF PAY UPON WHICH RETIRED PAY IS COMPUTED, NAMELY, THE RATE OF BASIC PAY APPLICABLE ON THE DATE THE OFFICER WOULD OTHERWISE BE RETIRED EXCEPT FOR THE UNIFORM RETIREMENT DATE ACT. UNDER THE DECISION CITED ABOVE THE RETIRED PAY OF SUCH NAVAL OFFICERS WHO WOULD HAVE BEEN RETIRED IN AUGUST 1964, EXCEPT FOR THAT ACT, IS COMPUTED UNDER THE RATES OF BASIC PAY IN EFFECT PRIOR TO SEPTEMBER 1, 1964, THAT IS, THE RATES PRESCRIBED IN THE 1963 PAY ACT. IF THE CHANGES MADE BY THE 1963 PAY ACT IN THE RETIRED PAY FORMULAS OF 10 U.S.C. 3991 AND 8991 FOR ARMY AND AIR FORCE OFFICERS WERE SO CONSTRUED AS TO PRECLUDE THE APPLICATION OF THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT TO THEM, WHICH ACT--- INSOFAR AS THE PROBLEM HERE INVOLVED IS CONCERNED--- IS CLEARLY APPLICABLE TO NAVY OFFICERS INVOLUNTARILY RETIRED BY VIRTUE OF THE ELIMINATION IN THAT SAME 1963 PAY ACT FROM THE RETIRED PAY FORMULAS OF PROVISIONS WHICH HAD THE EFFECT OF PRECLUDING THE APPLICATION OF THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT WITH RESPECT TO THE RATE OF RETIRED PAY, THE RESULT WOULD BE THAT ARMY AND AIR FORCE OFFICERS RETIRED EFFECTIVE SEPTEMBER 1, 1964, COULD STILL COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE 1964 PAY ACT RATES WHILE NAVY OFFICERS WOULD BE PRECLUDED FROM DOING SO. IN OTHER WORDS, UNDER SUCH A CONSTRUCTION ARMY AND AIR FORCE OFFICERS WOULD STILL ENJOY A RIGHT WHICH THAT SAME 1963 PAY ACT TOOK AWAY FROM NAVY OFFICERS. WE DO NOT THINK IT WOULD BE REASONABLE TO CONCLUDE THAT THE CONGRESS INTENDED BY THE 1963 PAY ACT TO TAKE AWAY FROM NAVY OFFICERS A RIGHT THAT WAS SIMULTANEOUSLY PRESERVED FOR ARMY AND AIR FORCE OFFICERS.

SINCE IT IS OUR VIEW THAT THE CONGRESS DID NOT INTEND THAT THERE SHOULD BE ANY SUCH DISCRIMINATION BETWEEN OFFICERS OF THE NAVY AND OFFICERS OF THE ARMY AND AIR FORCE THEREAFTER INVOLUNTARILY RETIRED, WE CONCLUDE THAT ARMY AND AIR FORCE OFFICERS RETIRED EFFECTIVE SEPTEMBER 1, 1964 (INCLUDING OFFICERS THE SECRETARY CONCERNED DECIDED IN AUGUST 1964 SHOULD BE RETIRED UNDER 10 U.S.C. 3919 AND 8919), WHOSE RETIRED PAY IS COMPUTED UNDER FORMULA A OF 10 U.S.C. 3991 AND 8991, ARE NOT ENTITLED TO COMPUTE THEIR RETIRED PAY AT THE RATES PRESCRIBED IN THE 1964 PAY ACT, BUT MUST COMPUTE THEIR RETIRED PAY UNDER THE RATES PRESCRIBED IN THE 1963 PAY ACT.

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.

THE COMMITTEE ACTION DISCUSSION STATES THAT, AS TO PERSONS RETIRED FOR DISABILITY UNDER STATUTES SUCH AS 10 U.S.C. 1201 OR TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 AT ANY TIME DURING AUGUST 1964 (EFFECTIVE AS OF SEPTEMBER 1, 1964) PURSUANT TO A TRANSFER APPROVED PRIOR TO SEPTEMBER 1, 1964, AND WHOSE RETIRED PAY IS COMPUTED UNDER 10 U.S.C. 1401, IT WOULD APPEAR ON THE BASIS OF THE RULING IN THE MULLINS CASE IN 43 COMP. GEN. 425 THAT THE RETIRED PAY OF SUCH PERSONS SHOULD BE COMPUTED ON THE BASIS OF THE BASIC RATES OF PAY SET FORTH IN THE 1963 PAY ACT, SINCE THE RETIRED PAY OF SUCH PERSONS IS REQUIRED BY 10 U.S.C. 1401 TO BE COMPUTED ON THE MONTHLY BASIC PAY OF THE GRADE TO WHICH THE MEMBER WAS ENTITLED "ON DAY BEFORE" RETIREMENT OR PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST. 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.' SINCE THE DATE OF RETIREMENT WOULD, EXCEPT FOR THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, BE THE DATE SUCH RETIREMENT WAS APPROVED, IT IS STATED THAT IT WOULD APPEAR THAT THE RETIRED PAY OF SUCH PERSONS SHOULD BE COMPUTED ON THE BASIS OF THE PAY RATES SET FORTH IN THE 1936 PAY ACT. WE CONCUR IN THAT CONCLUSION.

THE COMMITTEE ACTION DISCUSSION FURTHER STATES THAT IT IS NOT CLEAR, HOWEVER, AS TO THE PROPER RATE OF BASIC PAY IN THE CASE OF PERSONS RETIRING UNDER CERTAIN OTHER PROVISIONS OF LAW, SUCH AS 10 U.S.C. 3914, WHICH AUTHORIZES RETIREMENT OF ENLISTED MEMBERS OF THE ARMY WITH AT LEAST 20, BUT LESS THAN 30, YEARS OF CREDITABLE SERVICE. THE RETIRED PAY IS COMPUTED UNDER FORMULA C OF 10 U.S.C. 3991, ON THE BASIS OF THE "MONTHLY BASIC PAY (3) TO WHICH THE MEMBER WAS ENTITLED ON DAY BEFORE HE RETIRED.' FOOTNOTE 3 STATES,"COMPUTE AT RATES APPLICABLE ON DATE OF RETIREMENT.' THE CASE OF A MEMBER WHO WAS RETIRED EFFECTIVE SEPTEMBER 1, 1964, HAVING COMPLETED 20 YEARS' SERVICE DURING THE MONTH OF AUGUST 1964, IT IS INDICATED THAT IN APPLYING THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT HIS RETIRED PAY WOULD BE COMPUTED ON THE BASIS OF THE 1963 PAY RATES. HOWEVER, IT IS SUGGESTED THAT, IF SUCH MEMBER HAD COMPLETED 20 YEARS' SERVICE PRIOR TO AUGUST 1964 AND APPLIED FOR RETIREMENT DURING AUGUST 1964 TO BE EFFECTIVE SEPTEMBER 1, 1964, IT IS NOT CLEAR WHETHER HIS RETIRED PAY SHOULD BE BASED ON THE RATES OF PAY IN THE 1963 OR 1964 PAY ACT, ATTENTION BEING INVITED TO THE PROVISIONS OF 10 U.S.C. 6330 RELATING TO ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS WHO UNDER COMPARABLE PROVISIONS OF LAW ARE TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WITH ENTITLEMENT TO RETAINER PAY ON THE BASIS OF THE BASIC PAY "RECEIVED AT THE TIME OF TRANSFER.'

SECTION 3914, 10 U.S. CODE, IS A CODIFICATION OF THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 539, AS AMENDED BY SECTION 6 (A) OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 995, WHICH PROVIDED THAT THE RETIRED PAY THERE AUTHORIZED SHOULD BE BASED ON THE "BASE AND LONGEVITY PAY OF THE GRADE HELD AT THE TIME OF APPLICATION FOR RETIREMENT.' THAT PROVISION WAS CODIFIED BY THE ACT OF AUGUST 10, 1956, CH. 1041, AS FORMULA D OF 10 U.S.C. 3991 AND 8991, 70A STAT. 232 AND 557, TO PROVIDE THAT THE RETIRED PAY SHOULD BE BASED ON THE "MONTHLY BASIC PAY TO WHICH THE MEMBER WAS ENTITLED ON DATE WHEN HE APPLIED FOR RETIREMENT.' FORMULA D WAS CHANGED TO FORMULA C BY SECTION 101 (23) OF THE ACT OF AUGUST 21, 1957, PUBLIC LAW 85-155, 71 STAT. 380, 10 U.S.C. 3991. IN ADMINISTERING THIS LAW THE MILITARY DEPARTMENTS CONSTRUED THAT RESTRICTION TO APPLY ONLY TO THE ENLISTED GRADE HELD AT THE TIME OF APPLICATION FOR RETIREMENT AND NOT TO INCREASES IN PAY FOR LENGTH OF SERVICE BASED ON SERVICE AFTER THE DATE OF APPLICATION OR RETIREMENT. SEE S.REPT. NO. 1673, 87TH CONG., 2D SESS. ON H.R. 4330, 87TH CONG., WHICH BECAME THE ACT OF JULY 18, 1962, PUBLIC LAW 87-537, 76 STAT. 168, 10 U.S.C. 3991 NOTE. SEE, ALSO, OUR DECISION OF DECEMBER 18, 1958, 38 COMP. GEN. 440.

THE CHANGE IN THE LANGUAGE IN FORMULA C IN 10 U.S.C. 3991 AND 8991 EFFECTED BY SECTION 6 (8) OF THE 1958 PAY ACT AND ITS ADOPTION OF FOOTNOTE 3 ("COMPUTE AT RATES APPLICABLE ON DATE OF RETIREMENT") WAS CONSISTENT WITH THE PROVISION OF SECTION 4 (B) OF THE 1958 PAY ACT THAT MEMBERS RETIRED ON THE EFFECTIVE DATE OF THAT ACT, JUNE 1, 1958, SHOULD RECEIVE THE NEW RATES OF PAY THERE PRESCRIBED EFFECTIVE ON THAT DATE, NOTWITHSTANDING THE PROVISIONS OF THAT ACT OTHERWISE PROHIBITING RECOMPUTATION OF RETIRED PAY FOR PERSONS THERETOFORE RETIRED EXCEPT AS THEREIN EXPRESSLY PROVIDED.

THE COMMITTEE ACTION STATES THAT THROUGH THE YEARS THE UNIFORM RETIREMENT DATE PRESCRIBED BY 5 U.S.C. 47A HAS BECOME IMBEDDED IN THE ADMINISTRATIVE USAGE OF THE SERVICES. IT IS THE USUAL PRACTICE TO RETAIN A MEMBER ON ACTIVE DUTY WITH ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES UNTIL HE BEGINS TO RECEIVE RETIRED PAY, THAT IS, HE IS RETAINED ON ACTIVE DUTY WITH PAY AND ALLOWANCES THROUGH THE END OF THE MONTH BEFORE THE DATE OF RETIREMENT AND BEGINS TO RECEIVE RETIRED PAY THE FIRST DAY OF THE NEXT MONTH--- THE EFFECTIVE DATE OF RETIREMENT. THUS USUALLY A MEMBER WHO IS RETIRED ON SEPTEMBER 1 IS RETAINED ON ACTIVE DUTY WITH ACTIVE DUTY PAY THROUGH AUGUST 31 AND BEGINS TO RECEIVE RETIRED PAY ON SEPTEMBER 1. THAT PRACTICE IS REFLECTED IN THE RETIREMENT STATUTES CODIFIED IN TITLE 10, U.S. CODE, AND IT IS BELIEVED THAT THE CONGRESS HAD THAT PRACTICE IN MIND WHEN IT ENACTED THE PROVISIONS OF FORMULA C OF 10 U.S.C. 3991 AS AMENDED BY SECTION 6 (8) OF THE 1958 PAY ACT.

IN DECISION OF DECEMBER 18, 1958, 38 COMP. GEN. 440, WE RECOGNIZED THAT SECTION 6 (8) OF THE 1958 PAY ACT AUTHORIZED THE CREDITING OF ALL SERVICE COMPLETED AS OF THE DAY BEFORE THE DATE OF ACTUAL RETIREMENT FOR THE PURPOSE OF DETERMINING THE AMOUNT OF BASIC PAY UPON WHICH RETIRED PAY IS COMPUTED, AND THAT CONSTRUCTION WAS GIVEN RETROACTIVE EFFECT BY THE ACT OF JULY 18, 1962, PUBLIC LAW 87-537, 76 STAT. 168. SEE H.REPT. NO. 355, 87TH CONG., 1ST SESS. ON H.R. 4330, 87TH CONG., WHICH BECAME PUBLIC LAW 87 -537. UNDER THAT CONSTRUCTION THE DATE OF RETIREMENT IS THE FIRST DAY OF THE MONTH FOR WHICH THE RETIRED MEMBER RECEIVED RETIRED PAY AND THE "DAY BEFORE HE RETIRED" IS THE LAST DAY OF THE PRECEDING MONTH.

IT FOLLOWS THAT THE "DATE OF RETIREMENT" WITH RESPECT TO AN ARMY ENLISTED MEMBER RETIRED UNDER 10 U.S.C. 3914 WITH RETIRED PAY COMPUTED UNDER FORMULA C OF 10 U.S.C. 3991 IS THE FIRST DAY OF THE MONTH FOR WHICH HE FIRST RECEIVES RETIRED PAY. IT SEEMS CLEAR THAT SECTION 6 (8) OF THE 1958 LAW EFFECTED A SUBSTANTIVE CHANGE IN THE LAW IN A MANNER WHICH SUGGESTS THAT THE LAST CLAUSE OF THE UNIFORM RETIREMENT DATE ACT IS NOT FOR APPLICATION TO ENLISTED MEN COVERED BY FORMULA C IN SECTION 3991. THUS AN ARMY ENLISTED MAN RETIRED UNDER 10 U.S.C. 3914 EFFECTIVE SEPTEMBER 1, 1964, IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT REGARDLESS OF WHETHER HE FIRST QUALIFIED FOR SUCH RETIREMENT IN AUGUST 1964 OR PRIOR THERETO. WHILE THIS RESULT SEEMS INCONSISTENT WITH OUR CONSTRUCTION ABOVE OF SIMILAR LANGUAGE IN FORMULA A OF 10 U.S.C. 3991 AND 8991 RELATING TO OFFICERS AS CHANGED BY THE 1963 PAY ACT, WE THINK THAT THE DIFFERENT CIRCUMSTANCES UNDER WHICH THE TWO FORMULAS WERE CHANGED WARRANT A DIFFERENT CONCLUSION AS TO THE INTENT OF THE CONGRESS, THE PURPOSE OF THE 1963 PAY ACT CHANGE BEING TO ABOLISH THE AUTOMATIC RETIRED PAY RECOMPUTATIONS AUTHORIZED UNDER THEN EXISTING LAWS, WHILE THE PURPOSE OF THE 1958 PAY ACT AMENDMENT WAS TO PERMIT THE COUNTING OF TIME FOR LONGEVITY UP TO THE ACTUAL DATE OF RETIREMENT, WITH THE CORRESPONDING RIGHT TO RETIRED PAY COMPUTED AT THE RATE APPLICABLE ON THE DATE OF RETIREMENT.

WHILE AS INDICATED ABOVE, ARMY AND AIR FORCE ENLISTED MEMBERS RETIRED UNDER 10 U.S.C. 3914 AND 8914 EFFECTIVE SEPTEMBER 1, 1964, ARE ENTITLED TO COMPUTE THEIR RETIRED PAY UNDER THE RATES PRESCRIBED IN THE 1964 PAY ACT, WE THINK THAT A DIFFERENT CONCLUSION IS REQUIRED WITH RESPECT TO MEMBERS OF THE NAVY AND MARINE CORPS TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 EFFECTIVE SEPTEMBER 1, 1964. THE FORMULA FOR COMPUTING RETAINER PAY IN 10 U.S.C. 6330 PROVIDES THAT RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE BASIC PAY ,RECEIVED AT THE TIME OF TRANSFER.' SINCE FOR MEMBERS SO TRANSFERRED EFFECTIVE SEPTEMBER 1, 1964, THE RATES OF RETAINER PAY ARE LIMITED TO RATES OF PAY "RECEIVED" BY THEM, AND SINCE THEY COULD NOT HAVE LAWFULLY "RECEIVED" PAY UNDER THE 1964 PAY ACT PRIOR TO SEPTEMBER 1, 1964, THEIR RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE 1963 PAY ACT RATES.

UNDER 10 U.S.C. 6322 AN OFFICER OF THE NAVY OR MARINE CORPS HOLDING A PERMANENT APPOINTMENT IN THE GRADE OF WARRANT OFFICER, W-1, OR ABOVE WHO APPLIES FOR RETIREMENT AFTER COMPLETING 30 OR MORE YEARS OF ACTIVE SERVICE MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE RETIRED WITH RETIRED PAY AT THE RATE OF 75 PERCENT OF THE HIGHEST BASIC PAY OF THE GRADE IN WHICH RETIRED. THERE IS NO OTHER SPECIFIC PROVISION GOVERNING THE COMPUTATION OF HIS RETIRED PAY AND THAT SECTION DOES NOT STATE WHETHER THE RETIRED PAY IS TO BE BASED ON THE BASIC PAY APPLICABLE ON THE LAST DAY OF ACTIVE DUTY BEFORE RETIREMENT OR ON THE EFFECTIVE DATE OF RETIREMENT. IN THE CASE OF A MEMBER WHO COMPLETED 30 YEARS OF SERVICE ON AUGUST 15, 1964, AND APPLIED FOR RETIREMENT ON THAT DATE, THE COMMITTEE ACTION DISCUSSION SUGGESTS THAT THE EFFECTIVE DATE OF RETIREMENT WOULD HAVE BEEN FIXED AS SEPTEMBER 1, 1964, UNDER THE UNIFORM RETIREMENT DATE ACT EVEN THOUGH HE HAD REQUESTED RETIREMENT EFFECTIVE SEPTEMBER 1, 1964, CITING 10 U.S.C. 1404 AND THE JORDAN CASE IN 43 COMP. GEN. 425. IF HE HAD COMPLETED THE REQUIRED SERVICE PRIOR TO AUGUST 1964 AND REQUESTED RETIREMENT EFFECTIVE SEPTEMBER 1, 1964, HOWEVER, IT IS STATED THAT IT IS NOT CLEAR WHETHER HIS RETIRED PAY IS FOR COMPUTATION ON THE BASIS OF THE RATES PRESCRIBED IN THE 1963 PAY ACT OR IN THE 1964 PAY ACT. SINCE IN THE LATTER SITUATION THE DATE OF RETIREMENT WOULD HAVE BEEN FIXED AT THE ELECTION OF THE RETIRED OFFICER, THE COMPUTATION OF HIS RETIRED PAY IS NOT GOVERNED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT AND HENCE HE MAY COMPUTE HIS RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT. SEE THE JORDAN CASE IN 43 COMP. GEN. 425. THE SAME RESULT OCCURS IN CASES OF MEMBERS RETIRED UNDER 10 U.S.C. 6323 COVERING OFFICERS RETIRED AFTER COMPLETING 20 OR MORE YEARS OF ACTIVE SERVICE. IF SUCH AN OFFICER COMPLETED 20 YEARS OF ACTIVE SERVICE AFTER JULY 1964 AND WAS RETIRED EFFECTIVE SEPTEMBER 1, 1964, HIS RETIRED PAY IS REQUIRED BY THE UNIFORM RETIREMENT DATE ACT TO BE COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE 1963 PAY ACT, BUT ANY SUCH OFFICER HAVING COMPLETED 20 YEARS OF ACTIVE SERVICE PRIOR TO AUGUST 1964 (AND RETIRING SEPTEMBER 1, 1964), WOULD NOT BE SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT AND WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT.

OFFICERS RETIRED UNDER PROVISIONS OF LAW SUCH AS ARE CONTAINED IN 10 U.S.C. 6398 REQUIRING THEIR RETIREMENT ON THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THEY REACH A PRESCRIBED AGE OR COMPLETE A PRESCRIBED AMOUNT OF SERVICE AND WHO WERE RETIRED EFFECTIVE SEPTEMBER 1, 1964, ARE REQUIRED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THE 1963 PAY ACT IN THE ABSENCE OF ANY SPECIFIC PROVISION OF LAW SPECIFICALLY OR BY IMPLICATION EXEMPTING THEM FROM SUCH PROVISIONS.