B-156576, APR. 8, 1966, 45 COMP. GEN. 631

B-156576, APR. 8, 1966, 45 COMP. GEN. 631

PAY - RETIRED - ADVANCEMENT ON RETIRED LIST - RECOMPUTATION - RATES APPLICABLE ON RETIREMENT V. EFFECT OF MAY 20, 1958 ACT A WARRANT OFFICER (W-1), WHOSE RETIRED PAY EFFECTIVE JANUARY 1, 1954 IS COMPUTED AT 65 PERCENT OF HIS PAY, WITH OVER 22 YEARS AND LESS THAN 26 CUMULATIVE YEARS OF SERVICE, USING THE 1952 PAY RATE THEN IN EFFECT, IS ENTITLED PURSUANT TO 10 U.S.C. 3964, EFFECTIVE NOVEMBER 16, 1962, UPON COMPLETING 30 YEARS OF ACTIVE AND INACTIVE SERVICE AND ADVANCEMENT ON THE RETIRED LIST OF CHIEF WARRANT OFFICER, (W-2), TO RETIRED PAY RECOMPUTED AT 52 1/2 PERCENT OF THE W-2 PAY GRADE, USING THE 1955 PAY ACT RATE IN EFFECT ON THE DAY BEFORE THE EFFECTIVE DATE OF THE MAY 20, 1958 ACT, THE PAY RATE PRESCRIBED BY SECTION 3 (C) OF THE ACT, AND THE WARRANT OFFICER HAVING BEEN PAID RETIRED PAY COMPUTED AT 65 PERCENT OF THE W-2 PAY GRADE FOR THE PERIOD NOVEMBER 16, 1962 TO DECEMBER 31, 1964 HAS BEEN OVERPAID AND IS INDEBTED FOR THE AMOUNT THE PAYMENTS EXCEED A PROPER COMPUTATION AT 52 1/2 PERCENT BASED ON THE GRADE OF WARRANT OFFICER, W-2, OR AT HIS ELECTION COMPUTED AT 65 PERCENT OF THE W-1, WARRANT OFFICER PAY, THE RETIRED PAY RATE IN THE COMPUTATION OF THE OVERPAYMENT TO REFLECT THE OCTOBER 2, 1963 ACT INCREASE B-156576, JULY 22, 1965, MODIFIED.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, APRIL 8, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1965, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER A- 896, REQUESTING A DECISION AS TO THE PROPER AMOUNT OF OVERPAYMENT OF RETIRED PAY WHICH SHOULD BE COLLECTED FROM CWO HARRY O. WALSH, SR., AND THE PROPER METHOD FOR RECOMPUTATION OF HIS RETIRED PAY UPON ADVANCEMENT IN GRADE EFFECTIVE NOVEMBER 16, 1962, PURSUANT TO 10 U.S.C. 3964.

MR. WALSH WAS RETIRED ON DECEMBER 31, 1953, IN THE GRADE OF WARRANT OFFICER, JUNIOR GRADE (W-1), UNDER AUTHORITY OF SECTION 5 OF THE ACT OF AUGUST 21, 1941, CH. 384, 55 STAT. 653, AS AMENDED BY SECTION 203 (C) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085, 10 U.S.C. 594 (1952 ED.). HIS ACTUAL ACTIVE SERVICE TOTALED 21 YEARS 1 MONTH AND 15 DAYS. HOWEVER, THE RETIREMENT STATUTE PROVIDED THAT THE SERVICE WITH WHICH HE WAS CREDITED FOR BASIC PAY PURPOSES, 25 YEARS AND 7 MONTHS (INCLUDING INACTIVE SERVICE) SHOULD DETERMINE THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY AND THAT THE FRACTIONAL YEAR OF 6 MONTHS OR MORE SHOULD BE CONSIDERED AS A FULL YEAR. ACCORDINGLY, ON JANUARY 1, 1954, HE BECAME ENTITLED TO RETIRED PAY COMPUTED AT 65 PERCENT OF THE PAY OF A WARRANT OFFICER, W-1, WITH OVER 22 AND LESS THAN 26 CUMULATIVE YEARS OF SERVICE, USING THE 1952 PAY RATES WHICH WERE THEN IN EFFECT.

MR. WALSH COMPLETED 30 YEARS OF SERVICE, ACTIVE AND INACTIVE, ON NOVEMBER 15, 1962, AND WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF WARRANT OFFICER, W-2, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 3964, THEREBY BECOMING ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED UNDER 10 U.S.C. 3992. IN THE MEANTIME THE STATUTORY PROVISIONS UNDER WHICH HE HAD BEEN RETIRED WERE REPEALED BUT PROVISIONS GRANTING THE SAME RIGHTS AS THOSE INCLUDED IN THE REPEALED STATUTE, WITH RESPECT TO ADVANCEMENT ON THE RETIRED LIST AFTER 30 YEARS OF SERVICE AND RECOMPUTATION OF RETIRED PAY BASED ON THE HIGHER GRADE, WERE CONTAINED IN SECTIONS 3964 AND 3992 OF TITLE 10, U.S.C. IN OUR DECISION OF JULY 22, 1965, B-156576, WE HELD THAT UNDER 10 U.S.C. 3992, MR. WALSH'S RETIRED PAY COMMENCING NOVEMBER 16, 1962, MUST BE COMPUTED AT 52 1/2 PERCENT (BASED ON ACTIVE SERVICE ONLY, 21 YEARS) OF THE PAY OF A WARRANT OFFICER, W-2, WITH OVER 22 AND LESS THAN 26 CUMULATIVE YEARS OF SERVICE, USING THE RATE OF PAY CONTAINED IN THE 1952 PAY ACT, 66 STAT. 79, WHICH WAS IN EFFECT AT THE TIME OF HIS RETIREMENT, DECEMBER 31, 1953. HOWEVER, SECTION 3 (C) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 128, 37 U.S.C. 232 NOTE (1958 ED.), REFERRED TO IN YOUR LETTER, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SUBSECTION (B) OF THIS SECTION, A MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED OR RETAINER PAY BEFORE THE EFFECTIVE DATE OF THIS ACT, AND WHO ON OR AFTER THAT DATE IS ADVANCED ON THE RETIRED LIST TO, OR IS TRANSFERRED TO A RETIRED LIST IN, A GRADE HIGHER THAN THE GRADE HE HELD ON THE DATE WHEN HE BECAME ENTITLED TO THAT RETIRED OR RETAINER PAY, SHALL HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949 ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS 6 PERCENTUM OF THAT PAY.

ALTHOUGH THERE HAS BEEN NO CHANGE IN THE WORDING OF 10 U.S.C. 3992 RELATIVE TO THE USE OF ,RATES APPLICABLE ON DATE OF RETIREMENT," THAT SECTION MUST BE READ IN CONJUNCTION WITH THE ABOVE-QUOTED SECTION 3 (C). ACCORDINGLY, MR. WALSH'S RETIRED PAY AFTER ADVANCEMENT SHOULD BE COMPUTED AT 52 1/2 PERCENT OF THE PAY OF A CHIEF WARRANT OFFICER, W-2, WITH OVER 22 AND LESS THAN 26 CUMULATIVE YEARS OF SERVICE, USING THE RATE OF PAY PROVIDED IN THE 1955 PAY ACT, 69 STAT. 18, $389, THE PRODUCT THEREOF TO BE INCREASED BY 6 PERCENT, MAKING THE PROPER RATE OF RETIRED PAY AS A WARRANT OFFICER, W-2, EFFECTIVE NOVEMBER 16, 1962, $216.48 PER MONTH. OUR DECISION ON JULY 22, 1965, IS MODIFIED ACCORDINGLY. SEE B-156593 DATED TODAY.

SINCE MR. WALSH WAS ERRONEOUSLY PAID RETIRED PAY AS A WARRANT OFFICER, W- 2, COMPUTED AT 65 PERCENT FOR THE PERIOD NOVEMBER 16, 1962, TO DECEMBER 31, 1964, HE HAS BEEN OVERPAID IN THE AMOUNT BY WHICH SUCH PAYMENTS EXCEED A PROPER COMPUTATION AT 52 1/2 PERCENT BASED ON THE GRADE OF WARRANT OFFICER, W-2, OR, AT HIS ELECTION, THE RETIRED PAY TO WHICH HE WOULD HAVE BEEN ENTITLED AS A WARRANT OFFICER, W-1, COMPUTED AT 65 PERCENT. SEE 44 COMP. GEN. 510. IN COMPUTING THE AMOUNT OF THE OVERPAYMENT THE RATE OF RETIRED PAY SHOWN ABOVE, $216.48, TO WHICH HE IS ENTITLED BEGINNING NOVEMBER 16, 1962, MUST BE INCREASED UNDER SECTION 5 (C) (1) OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 213, 10 U.S.C. 1402 NOTE (1963 ED.), TO $231, SINCE THIS ADJUSTMENT IS MORE ADVANTAGEOUS TO HIM THAN THE ALTERNATE ADJUSTMENT AUTHORIZED BY SECTION 5 (C) (2). HOWEVER, IF HE SHOULD DECLINE THE ADVANCEMENT ON THE RETIRED LIST AND CONTINUE AS A WARRANT OFFICER, W 1, HIS RETIRED PAY UNDER SECTION 5 (C) (2) OF THE 1963 ACT WOULD BE $255.09, WHICH EXCEEDS THE ALTERNATE ADJUSTMENT UNDER SECTION 5 (C) (1). THE AMOUNT OF THE OVERPAYMENT, THEREFORE, FOR THE PERIOD NOVEMBER 16, 1962 TO DECEMBER 31, 1964, IS $1,366.17 AS A WARRANT OFFICER, W-2, OR $726.99 AS A WARRANT OFFICER, W-1.