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B-136915, APRIL 16, 1959, 38 COMP. GEN. 701

B-136915 Apr 16, 1959
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1958 THREE- AND FOUR-STAR GENERALS AND ADMIRALS WHO WERE RETIRED ON MAY 31. ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC ACTIVE DUTY PAY RATES IN EFFECT ON MAY 31. 1959: REFERENCE IS MADE TO LETTER OF FEBRUARY 11. THE QUESTION FOR FURTHER CONSIDERATION AND A DISCUSSION OF THE MATTER ARE SET FORTH IN COMMITTEE ACTION NO. 232 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE. THE QUESTION IS AS FOLLOWS: WHICH OF THE FOLLOWING RATES OF BASIC PAY IS FOR APPLICATION IN RECOMPUTING RETIRED PAY UNDER SUBSECTIONS 7 (B) AND (C) OF THE ACT OF 20 MAY 1958 (72 STAT. 130): A. SHALL UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW. SUBSECTION 7 (C) PERTAINS TO LIEUTENANT GENERALS AND VICE ADMIRALS AND CONTAINS LANGUAGE SIMILAR TO THAT OF SUBSECTION 7 (B) EXCEPT THAT THE MONTHLY BASIC PAY IS INCREASED BY $100 INSTEAD OF $200.

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B-136915, APRIL 16, 1959, 38 COMP. GEN. 701

MILITARY PERSONNEL - RETIRED PAY - GENERALS' AND ADMIRALS' INCREASES UNDER ACT OF MAY 20, 1958 THREE- AND FOUR-STAR GENERALS AND ADMIRALS WHO WERE RETIRED ON MAY 31, 1958--- THE EFFECTIVE DATE OF THE MILITARY PAY INCREASE ACT OF MAY 20, 1958--- AND WHO QUALIFY UNDER THE PROVISIONS OF SUBSECTIONS 7 (B) AND 7 (C) OF THE 1958 ACT, 37 U.S.C. 232 NOTE, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC ACTIVE DUTY PAY RATES IN EFFECT ON MAY 31, 1958, FOR OFFICERS IN PAY GRADE O-8, WITH THE CUMULATIVE YEARS OF SERVICE CREDITABLE ON THAT DATE, PRESCRIBED IN THE CAREER INCENTIVE ACT OF 1955 RATHER THAN ON THE BASIC RATE OF PAY PRESCRIBED IN THE ACT OF MAY 20, 1958. 38 COMP. GEN. 281, MODIFIED.

TO THE SECRETARY OF DEFENSE, APRIL 16, 1959:

REFERENCE IS MADE TO LETTER OF FEBRUARY 11, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION OF OCTOBER 7, 1958, B-136915, 38 COMP. GEN. 281, RELATING TO THE ANSWER TO QUESTION 3, CONCERNING THE PROPER METHOD OF RECOMPUTING THE RETIRED PAY OF GENERALS AND LIEUTENANT GENERALS UNDER THE PROVISIONS OF SUBSECTIONS (B) AND (C) OF SECTION 7 OF THE ACT OF MAY 20, 1958, 72 STAT. 130, 37 U.S.C. 232 NOTE. THE QUESTION FOR FURTHER CONSIDERATION AND A DISCUSSION OF THE MATTER ARE SET FORTH IN COMMITTEE ACTION NO. 232 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTION IS AS FOLLOWS:

WHICH OF THE FOLLOWING RATES OF BASIC PAY IS FOR APPLICATION IN RECOMPUTING RETIRED PAY UNDER SUBSECTIONS 7 (B) AND (C) OF THE ACT OF 20 MAY 1958 (72 STAT. 130):

A. THE BASIC PAY RATE FOR AN O-8 PRESCRIBED BY THE CAREER INCENTIVE ACT OF 1955 (69 STAT. 18) OR;

B. THE BASIC PAY RATE FOR AN O-8 PRESCRIBED BY THE ACT OF 20 MAY 1958 (72 STAT. 122, 123/?

THE RETIRED PAY OF A GENERAL, ADMIRAL, LIEUTENANT GENERAL OR VICE ADMIRAL, WHO MET THE CONDITIONS PRESCRIBED BY SUBSECTIONS (B) AND (C) OF SECTION 7 OF THE ACT OF MAY 20, 1958, MUST BE RECOMPUTED IN ACCORDANCE WITH THE FORMULA SET FORTH IN THOSE PROVISIONS. SUBSECTION 7 (B) PROVIDES THAT:

(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW EXCEPT SUBSECTION (A) OF THIS SECTION AND SECTIONS 3 (B) AND 6 (5) OF THIS ACT, THE RETIRED PAY OF ANY OFFICER ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT WHO SERVED ON ACTIVE DUTY BEFORE THAT DATE IN THE GRADE OF GENERAL OR ADMIRAL FOR A PERIOD OF AT LEAST 180 DAYS, SHALL UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW, BE RECOMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF PAY GRADE O-8 FOR THE CUMULATIVE YEARS OF SERVICE CREDITABLE TO HIM ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS $200, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING HIS RETIRED PAY, MULTIPLIED BY 2 1/2 PERCENTUM, BUT NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH MONTHLY BASIC PAY AS INCREASED BY $200, PLUS 6 PERCENTUM OF THE PRODUCT THEREOF. ( ITALICS SUPPLIED.)

SUBSECTION 7 (C) PERTAINS TO LIEUTENANT GENERALS AND VICE ADMIRALS AND CONTAINS LANGUAGE SIMILAR TO THAT OF SUBSECTION 7 (B) EXCEPT THAT THE MONTHLY BASIC PAY IS INCREASED BY $100 INSTEAD OF $200.

IN OUR DECISION OF OCTOBER 7, 1958, IN ANSWER TO QUESTION 3, WE CONSIDERED THE PROVISIONS OF SUBSECTIONS (B) AND (C) OF SECTION 7 OF THE 1958 ACT AND WE HELD THAT (QUOTING FROM PAGES 284, 85):

* * * SUCH AN OFFICER (GENERAL OR LIEUTENANT GENERAL), HOWEVER, WHO HAS SERVED ON ACTIVE DUTY FOR A PERIOD OF AT LEAST 180 DAYS AFTER RETIREMENT IS EXPRESSLY EXCEPTED FROM SECTION 4 (A) AND, UNLESS HE IS ENTITLED TO A HIGHER RATE OF RETIRED PAY UNDER SOME OTHER PROVISION OF LAW, MUST HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE PAY AUTHORIZED BY THE ACT OF MAY 20, 1958, FOR AN OFFICER IN PAY GRADE O-8 WITH HIS YEARS OF SERVICE FOR LONGEVITY PURPOSES, PLUS $200 IN THE CASE OF A GENERAL, OR $100 IN THE CASE OF A LIEUTENANT GENERAL, MULTIPLIED BY 2 1/2 PERCENT OF THE YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING RETIRED PAY, BUT NOT TO EXCEED 75 PERCENT OF SUCH MONTHLY BASIC PAY AS INCREASED BY $200 OR $100, PLUS 6 PERCENT OF THE PRODUCT. * * *

IN SUPPORT OF THE VIEW THAT THE RETIRED PAY OF THREE- AND FOUR-STAR GENERALS AND ADMIRALS SHOULD BE RECOMPUTED ON THE BASIS OF THE RATES IN EFFECT ON MAY 31, 1958, COMMITTEE ACTION NO. 232 QUOTES A PORTION OF HOUSE OF REPRESENTATIVES CONFERENCE REPORT (H. REPT. 1701) TO ACCOMPANY H.R. 11470, WHICH BECAME THE ACT OF MAY 20, 1958, AS FOLLOWS (PAGE 15):

* * * THE CONFEREES * * * AGREED TO A PROVISION IN THE CONFERENCE REPORT WHICH PERMITS 3- AND 4-STAR ADMIRALS AND GENERALS ALREADY RETIRED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE ACTIVE DUTY PAY THEY WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY ON THE DATE BEFORE THE EFFECTIVE DATE OF THIS ACT. * * *

* * * AS A RESULT THE VICE ADMIRAL OR LIEUTENANT GENERAL NOW RETIRED WILL RECEIVE A MAXIMUM RETIRED PAY OF $935 PER MONTH, COMPARED TO HIS PRESENT RETIRED PAY OF $807 PER MONTH.

THE TYPICAL 4-STAR ADMIRAL OR GENERAL, UNDER THE CONFERENCE REPORT WILL RECEIVE A MAXIMUM RETIRED PAY OF $1,014 PER MONTH, COMPARED TO HIS PRESENT RETIRED PAY OF $807 PER MONTH. * * *

IT IS POINTED OUT IN THE COMMITTEE ACTION THAT THE NEW RETIRED PAY RATES REFERRED TO ABOVE WERE ARRIVED AT BY UTILIZING THE BASIC PAY RATE OF GRADE O-8 PRESCRIBED BY THE CAREER INCENTIVE ACT OF 1955, 37 U.S.C. 232, IN THE RECOMPUTATION FORMULA IN SUBSECTIONS 7 (B) AND 7 (C) OF THE 1958 ACT. IS ALSO STATED IN THE COMMITTEE ACTION THAT OUR DECISION OF OCTOBER 7, 1958, MENTIONED ABOVE, CREATES AN INEQUITY SINCE ALL LIEUTENANT GENERALS AND VICE ADMIRALS WHO RETIRE SUBSEQUENT TO MAY 31, 1958, WILL, UNDER SUCH DECISION, RECEIVE LESS RETIRED PAY THAN THEIR COUNTERPARTS WHO RETIRED PRIOR TO JUNE 1, 1958. PRESUMABLY THE LATTER GROUP WAS MEANT TO INCLUDE ONLY OFFICERS WHO SERVED ON ACTIVE DUTY AS LIEUTENANT GENERALS OR VICE ADMIRALS FOR A PERIOD OF AT LEAST 180 DAYS PRIOR TO JUNE 1, 1958.

WE HAVE CAREFULLY EXAMINED THE LEGISLATIVE HISTORY OF THE ACT OF MAY 20, 1958, WITH PARTICULAR ATTENTION TO SUBSECTIONS 7 (B) AND 7 (C). UNDER THE PROVISIONS OF SUBSECTION 7 (B) OF THE HOUSE BILL, ADMIRALS, GENERALS, LIEUTENANT GENERALS, AND VICE ADMIRALS WOULD HAVE HAD THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE PAY SCALES PRESCRIBED IN THE PROPOSED LEGISLATION, NAMELY THE NEW PAY RATES. SEE PAGE 19 OF THE REPORT OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES (H. REPT. NO. 1538). THE SENATE COMMITTEE ON ARMED SERVICES, HOWEVER, DELETED THE HOUSE PROVISION STATING THAT IT WOULD NOT BE EQUITABLE TO PERMIT TWO PAY GRADES TO RECOMPUTE RETIRED PAY ON HIGHER BASIC PAY RATES WHEN THE OTHER RANKS WERE BEING EXTENDED ONLY A FLAT 6 PERCENT INCREASE. SEE PAGE 10, SENATE REPORT NO. 1472, DATED APRIL 25, 1958. THE SENATE AND HOUSE CONFEREES, AS SHOWN ABOVE, AGREED TO A PROVISION IN THE CONFERENCE REPORT WHICH PERMITS THREE- AND FOUR-STAR ADMIRALS AND GENERALS ALREADY RETIRED, WHO HAD SERVED ON ACTIVE DUTY IN THAT CAPACITY FOR AT LEAST 180 DAYS, TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE ACTIVE DUTY PAY THEY WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT. IT APPEARS TO BE IMMATERIAL WHETHER OR NOT SUCH 180-DAY PERIOD OF ACTIVE DUTY WAS PERFORMED BEFORE OR AFTER RETIREMENT. SEE, ALSO, THE REMARKS MADE BY SENATOR STENNIS ON THE FLOOR OF THE SENATE, REPORTED ON PAGE 104 CONG. REC. 8407 (1958).

IN THE LIGHT OF THE LEGISLATIVE HISTORY, AND UPON FURTHER CONSIDERATION OF THE MATTER, IT IS CONCLUDED THAT THOSE OFFICERS WHO QUALIFY UNDER THE PROVISIONS OF SUBSECTION 7 (B) AND 7 (C) OF THE ABOVE ACT ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY RATES IN EFFECT ON MAY 31, 1958, FOR OFFICERS IN PAY GRADE O 8 WITH THE CUMULATIVE YEARS OF SERVICE CREDITABLE TO THEM ON THAT DATE. THE ANSWER TO QUESTION 3 IN THE DECISION OF OCTOBER 7, 1958, WILL NO LONGER BE FOLLOWED.

ACCORDINGLY, THE SUBMITTED QUESTION IS ANSWERED BY STATING THAT THE RATE OF BASIC PAY FOR APPLICATION IN RECOMPUTING RETIRED PAY UNDER SUBSECTIONS 7 (B) AND 7 (C) OF THE 1958 ACT IS THE RATE REFERRED TO IN PART "A" OF THE QUESTION STATED IN COMMITTEE ACTION NO. 232, NAMELY, THE BASIC PAY RATE FOR AN OFFICER IN PAY GRADE O-8 PRESCRIBED BY THE CAREER INCENTIVE ACT OF 1955, AND IN EFFECT ON MAY 31, 1958.

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