B-152678, NOVEMBER 14, 1963, 43 COMP. GEN. 442

B-152678, NOVEMBER 14, 1963, 43 COMP. GEN. 442

PAY - RETIRED - INCREASES UNDER ACT OF MAY 20, 1958 - ACTIVE DUTY AFTER RETIREMENT. PAY - RETIRED - INCREASES UNDER ACT OF MAY 20, 1958 - ACTIVE DUTY AFTER RETIREMENT AN AIR FORCE MASTER SERGEANT, PAY GRADE E-7, RETIRED BEFORE JUNE 1, 1958, UNDER THE AUTHORITY OF 10 U.S.C. 8914, WHO AFTER RETIREMENT PERFORMS PERIODS OF NONCONTINUOUS SERVICE THAT TOTAL AT LEAST 1 YEAR NOT HAVING MET THE CONTINUOUS SERVICE REQUIREMENT OF SECTION 3 (B) OF THE ACT OF MAY 20, 1958 (37 U.S.C. 232 NOTE) IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE INCREASED PAY RATES PRESCRIBED IN THE ACT, NOR MAY THE MEMBER WHO HAD BEEN PROMOTED TO THE SENIOR MASTER SERGEANT E-8 PAY GRADE ESTABLISHED BY THE 1958 ACT DURING ACTIVE SERVICE AFTER RETIREMENT HAVE HIS RETIRED PAY COMPUTED AT THE HIGHER GRADE, THE MEMBER BEING INELIGIBLE TO USE THE RATES OF BASIC PAY PROVIDED IN THAT ACT IN THE COMPUTATION OF HIS RETIRED PAY, THERE IS NO AUTHORITY OF LAW FOR COMPUTING HIS RETIRED PAY ON THE GRADE OF SENIOR MASTER SERGEANT E-8. ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES WHO HAS NOT MET THE CONTINUOUS SERVICE OF AT LEAST 1 YEAR REQUIREMENT OF SECTION 3 (B) OF THE ACT OF MAY 20, 1958 IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE INCREASED PAY RATES PRESCRIBED BY THAT ACT, HE IS ENTITLED UNDER SECTION 4 (A), AS AMENDED (10 U.S.C. 1401 NOTE), TO AN INCREASE OF 6 PERCENT IN THE RETIRED PAY TO WHICH HE WAS ENTITLED ON MAY 31, 1958, OR TO AN INCREASED PERCENTAGE MULTIPLIER UNDER 10 U.S.C. 1402 (A), WHICHEVER METHOD PROVIDES THE GREATER AMOUNT.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, NOVEMBER 14, 1963:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1963, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHER ATTACHED THERETO IN FAVOR OF MASTER SERGEANT WILLIAM L. WALTON, RETIRED, REPRESENTING ADJUSTMENT IN RETIRED PAY BETWEEN $203.50 AND $169.29 FOR THE MONTH OF AUGUST 1963. THE SUBMISSION WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. 728.

THE RECORD SHOWS THAT UNDER AUTHORITY OF 10 U.S.C. 8914, MR. WALTON WAS RETIRED FROM THE REGULAR AIR FORCE ON JANUARY 31, 1958, AS A MASTER SERGEANT, E-7, WITH 20 YEARS, 8 MONTHS AND 3 DAYS OF ACTIVE SERVICE AND WAS TRANSFERRED TO THE AIR FORCE RESERVE. HIS RETIRED PAY WAS COMPUTED AT 52 1/2 PERCENT OF THE PAY OF PAY GRADE E-7 WITH 18 CUMULATIVE YEARS OF SERVICE. THEREAFTER, HE PERFORMED THREE 15-DAY PERIODS OF TRAINING DUTY AND EFFECTIVE OCTOBER 1, 1961, WAS RECALLED TO EXTENDED ACTIVE DUTY FROM WHICH HE WAS RELEASED ON AUGUST 27, 1962, AFTER HAVING PERFORMED CONTINUOUS ACTIVE DUTY FOR 10 MONTHS AND 27 DAYS. THE EXTENDED ACTIVE DUTY WAS PERFORMED IN THE GRADE OF SENIOR MASTER SERGEANT, E-8, TO WHICH HE APPARENTLY HAD BEEN PROMOTED IN HIS RESERVE STATUS AFTER RETIREMENT.

YOUR REQUEST FOR DECISION INVOLVES MR. WALTON'S RIGHT, UPON RELEASE FROM ACTIVE DUTY AUGUST 27, 1962, TO HAVE HIS RETIRED PAY BASED ON THE GRADE OF SENIOR MASTER SERGEANT AND COMPUTED AT 2 1/2 PERCENT OF THE PAY OF THAT GRADE FOR A MEMBER WITH 20 CUMULATIVE YEARS OF SERVICE MULTIPLIED BY 22 YEARS OF ACTIVE SERVICE, USING THE PAY RATES PRESCRIBED IN THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 232. PARAGRAPHS (A) AND (B) OF SECTION 3 OF THAT ACT, 37 U.S.C. 232 NOTE, PROVIDE AS FOLLOWS:

(A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SECTIONS 4 AND 7 OF THIS ACT AND SUBSECTION (B) OF THIS SECTION, THE CHANGES IN RATES OF BASIC PAY MADE BY THIS ACT DO NOT INCREASE THE AMOUNT OF RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH ANY PERSON IS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT.

(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SECTION 6483 (C) OF TITLE 10, UNITED STATES CODE, A MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED, RETIREMENT, OR RETAINER PAY BEFORE THE EFFECTIVE DATE OF THIS ACT, AND WHO PERFORMED A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST ONE YEAR AFTER BECOMING ENTITLED TO THAT PAY, IS ENTITLED, UPON RELEASE FROM THAT ACTIVE DUTY ON OR AFTER THE EFFECTIVE DATE OF THIS ACT, TO RECOMPUTE THAT PAY BASED ON THE RATES OF PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THIS ACT.

SECTION 7, REFERRED TO IN SECTION 3 (A) ABOVE, INCLUDES SPECIAL PROVISIONS FOR CERTAIN RETIRED OFFICERS. SECTION 4 (A) AS AMENDED BY THE ACT OF AUGUST 28, 1958, PUBLIC LAW 85-855, 72 STAT. 1104, 10 U.S.C. 1401 NOTE, IS AS FOLLOWS:

(A) EXCEPT FOR MEMBERS COVERED BY SECTION 7 OF THIS ACT, MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, SHALL BE ENTITLED TO AN INCREASE OF 6 PERCENTUM OF THAT PAY TO WHICH THEY WERE ENTITLED ON THAT DATE.

ALTHOUGH THE COMBINED ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING PERFORMED AFTER RETIREMENT BY MR. WALTON TOTAL MORE THAN 1 YEAR, HE DID NOT PERFORM "A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST ONE YEAR" AS REQUIRED IN SECTION 3 (B). THEREFORE HE IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY RATES PRESCRIBED IN THE ACT OF MAY 20, 1958, FOR THE PERIOD INVOLVED.

UNDER 10 U.S.C. 1402 (A) GENERALLY, A MEMBER WHO SERVES ON ACTIVE DUTY AFTER RETIREMENT IS ENTITLED UPON RELEASE TO RECOMPUTE HIS RETIRED PAY TO INCLUDE IN THE MULTIPLIER FACTOR THE ACTIVE DUTY AFTER RETIREMENT. THE FORMULA PROVIDES FOR USING THE MONTHLY BASIC PAY "OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY.' THE GRADE IN WHICH MR. WALTON WAS SERVING, AND PRESUMABLY THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY, WAS SENIOR MASTER SERGEANT, E-8. SINCE THAT GRADE WAS FIRST ESTABLISHED BY THE ACT OF MAY 20, 1958, AND FOR THE PERIOD INVOLVED HE IS NOT ENTITLED TO USE THE RATES OF BASIC PAY PROVIDED IN THAT ACT IN COMPUTATION OF HIS RETIRED PAY, THERE IS NO AUTHORITY OF LAW FOR COMPUTING HIS RETIRED PAY ON THE GRADE OF SENIOR MASTER SERGEANT, E 8.

YOU RAISE A QUESTION AS TO MR. WALTON'S RIGHT TO HAVE HIS RETIRED PAY INCREASED BY 6 PERCENT IF HIS ADDITIONAL ACTIVE DUTY AFTER RETIREMENT IS INCLUDED IN THE MULTIPLIER FACTOR. IN THIS CONNECTION, YOU REFER TO 38 COMP. GEN. 843, WHEREIN WE HELD WITH RESPECT TO ONE OF THE MEMBERS THERE INVOLVED, THAT HE WAS NOT ENTITLED TO HAVE THE RETIRED PAY TO WHICH HE WAS ENTITLED AS OF MAY 31, 1958, INCREASED BY 6 PERCENT IF THERE WAS INCLUDED IN THE COMPUTATION OF HIS RETIRED PAY ALL OF HIS ACTIVE SERVICE AFTER RETIREMENT THROUGH DATE OF RELEASE FROM ACTIVE DUTY (AFTER MAY 31, 1958) IN THE MULTIPLIER FACTOR. THE PROHIBITION CONTAINED IN SECTION 3 (A) QUOTED ABOVE BARRED THE RECOMPUTATION OF MR. WALTON'S RETIRED PAY ON THE PAY RATES PRESCRIBED IN THE 1958 ACT, AND ANY INCREASE IN RETIRED PAY THEREAFTER MUST BE SPECIFICALLY AUTHORIZED BY LAW. UNDER 10 U.S.C. 1402 (A) HE WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY AT 55 PERCENT, INCLUDING CREDIT FOR HIS ACTIVE SERVICE AFTER RETIREMENT, OF THE PAY OF A MASTER SERGEANT WITH OVER 18 YEARS OF SERVICE, USING THE RATES OF PAY IN EFFECT ON MAY 31, 1958. THE 6 PERCENT INCREASE PROVIDED IN SECTION 4 (A) OF THE 1958 ACT IS AUTHORIZED ONLY AS "AN INCREASE OF 6 PERCENTUM OF THAT PAY TO WHICH THEY WERE NTITLED" ON MAY 31, 1958. SINCE MR. WALTON WAS NOT ENTITLED TO RETIRED PAY COMPUTED AT 55 PERCENT ON MAY 31, 1958, HE IS NOT ENTITLED TO AN INCREASE OF 6 PERCENT IN HIS RETIRED PAY SO COMPUTED. ACCORDINGLY, HIS RETIRED PAY FOR THE MONTH OF AUGUST 1963 IS AUTHORIZED TO BE PAID AT THE RATE OF $169.29, AN INCREASE OF 6 PERCENT OVER THE AMOUNT TO WHICH HE WAS ENTITLED ON MAY 31, 1958, THAT RATE BEING GREATER THAN THE RATE PAYABLE AT 55 PERCENT OF THE APPLICABLE PAY RATE AS OF MAY 31, 1958, WITHOUT THE 6 PERCENT INCREASE.

THE VOUCHER PRESENTED WILL BE RETAINED HERE INASMUCH AS PAYMENT THEREON IS NOT AUTHORIZED.