B-106410, MAY 1, 1952, 31 COMP. GEN. 547

B-106410, MAY 1, 1952, 31 COMP. GEN. 547

PAY - RETIRED - CADET OR MIDSHIPMAN SERVICE - COMPUTATION UNDER CAREER COMPENSATION ACT OF 1949 AN OFFICER OF THE REGULAR NAVY WHO WAS RETIRED PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 AND WHO PERFORMED ACTIVE DUTY SUBSEQUENT TO THE ENACTMENT OF SUCH ACT IS ENTITLED, UPON RELEASE FROM ACTIVE DUTY, TO CREDIT FOR MIDSHIPMAN SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN THE COMPUTATION OF RETIRED PAY UNDER SECTION 516 OF THE ACT IF HE COULD COUNT THAT SERVICE FOR SUCH PURPOSES AT THE TIME OF RETIREMENT. AN OFFICER OF THE REGULAR NAVY WHO WAS RETIRED ON ACCOUNT OF PHYSICAL DISABILITY PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 AND WHO PERFORMED ACTIVE DUTY SUBSEQUENT TO THE ENACTMENT OF SUCH ACT IS ENTITLED, UPON RELEASE FROM ACTIVE DUTY, TO CREDIT FOR MIDSHIPMAN SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN THE COMPUTATION OF RETIRED PAY UNDER SECTION 516 OF THE ACT IF SUCH SERVICE COULD BE COUNTED FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT. SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZES CREDIT FOR ACTIVE SERVICE AFTER RETIREMENT, IS FOR APPLICATION ONLY IN THOSE CASES WHERE IT WOULD RESULT IN AN INCREASE IN RETIRED PAY, SO THAT AN OFFICER WHO WOULD SUFFER A DECREASE IN RETIRED PAY, IF SUCH PAY WERE COMPUTED UNDER THE PROVISIONS OF SECTION 516 OF THE ACT, SHOULD CONTINUE TO DRAW THE RETIREMENT PAY HE WAS DRAWING AT TIME OF RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MAY 1, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1951, ENCLOSING A LETTER DATED OCTOBER 1, 1951, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION ON THE QUESTIONS SET FORTH THEREIN REGARDING THE PROPER APPLICATION OF THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832.

THE SAID SECTION 516 READS, IN PERTINENT PART, AS FOLLOWS:

"MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES INCLUDING MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, WHO HAVE BEEN, OR MAY HEREAFTER BE, RETIRED OR TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY COMPUTED UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT, SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS HEREINAFTER LISTED, TO RECEIVE INCREASES IN SUCH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE: PROVIDED, THAT THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH SUCH MEMBER OR FORMER MEMBER SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY SHALL BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY AT THE TIME OF HIS RETIREMENT OR TRANSFER PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM, AND BY MULTIPLYING THE PRODUCT THUS OBTAINED BY THE BASE AND LONGEVITY PAY OR THE BASIC PAY, AS THE CASE MAY BE, OF THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED OR TRANSFERRED EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON OR A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE: * * *"

YOUR FIRST QUESTION CONCERNS AN OFFICER OF THE REGULAR NAVY WHO WAS RETIRED AS A LIEUTENANT COMMANDER ON JUNE 30, 1932 UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 3, 1931, 46 STAT. 1483, WITH RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 6 OF SUCH ACT (46 STAT. 1484) WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"OFFICERS RETIRED PURSUANT TO ANY SECTION OF THIS ACT SHALL RECEIVE PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH THEY WERE ENTITLED TO CREDIT IN COMPUTATION OF THEIR LONGEVITY PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY * * *.'

SINCE THE OFFICER IN QUESTION WAS ENTITLED TO COUNT HIS SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY IN THE COMPUTATION OF HIS LONGEVITY PAY ON THE ACTIVE LIST, HE WAS ENTITLED TO COUNT SUCH SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN THE COMPUTATION OF HIS RETIRED PAY. WAS RECALLED TO ACTIVE DUTY ON AUGUST 29, 1940, AND SERVED THEREON UNTIL SEPTEMBER 3, 1947, WHEN HE WAS RELEASED FROM ACTIVE DUTY IN THE GRADE OF CAPTAIN. ON AND AFTER OCTOBER 1, 1949, HE HAS BEEN PAID RETIRED PAY COMPUTED BY THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND BASED ON A DECISION OF THIS OFFICE DATED MARCH 1, 1951, 30 COMP. GEN. 361, HE WAS NOT ENTITLED TO CREDIT FOR HIS MIDSHIPMAN SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER THAT SECTION. ON JULY 1, 1950, HE WAS AGAIN CALLED TO ACTIVE DUTY AND SERVED THEREON UNTIL JUNE 30, 1951, WHEN HE WAS RELEASED TO INACTIVE DUTY. IN VIEW OF THE PROVISIONS OF SECTION 516 OF THE 1949 ACT, SUPRA, YOU REQUEST DECISION AS TO WHETHER HE IS ENTITLED TO CREDIT FOR HIS MIDSHIPMAN SERVICE IN DETERMINING SUCH PERCENTAGE FACTOR ON AND AFTER JULY 1, 1951.

IN THE DECISION OF MARCH 1, 1951, REFERRED TO ABOVE, IT WAS HELD THAT OFFICERS OF THE REGULAR SERVICES, RETIRED PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, WHO ELECT TO HAVE THEIR RETIRED PAY COMPUTED UNDER THE PERTINENT METHODS PRESCRIBED IN SECTION 402 (D), 63 STAT. 818, OR 511 OF THAT ACT MAY NOT INCLUDE SERVICE AS A CADET AT THE MILITARY ACADEMY OR SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY IN DETERMINING THE PERCENTAGE FACTOR IN QUESTION. THE CONCLUSION REACHED IN THAT DECISION WAS BASED ON THE FACT THAT UNDER BOTH SECTION 402 (D) AND SECTION 511 THE SERVICE TO BE COUNTED IN DETERMINING THE PERCENTAGE FACTOR MUST HAVE BEEN SERVICE AS A "MEMBER" OF THE UNIFORMED SERVICES, OR SERVICE IN OTHER SPECIFICALLY ENUMERATED STATUTES, NOT INCLUDING SERVICE AS A CADET OR A MIDSHIPMAN. SECTION 102 (B), 63 STAT. 804, OF THE ACT DEFINES THE TERM "MEMBER," UNLESS OTHERWISE QUALIFIED, AS MEANING "A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES.' HENCE IT WAS CONCLUDED THAT SUCH TERM, AS USED IN THE ACT, MAY NOT BE CONSTRUED AS INCLUDING A CADET AT THE MILITARY ACADEMY OR A MIDSHIPMAN AT THE NAVAL ACADEMY.

ON THE OTHER HAND, IN DETERMINING THE PERCENTAGE FACTOR UNDER THE PROVISIONS OF SECTION 516 THERE IS AUTHORIZED TO BE CREDITED ALL "SERVICE (WHICH WAS) CREDITABLE TO HIM (THE MEMBER) FOR PURPOSES OF COMPUTING (HIS) RETIRED PAY" AT THE TIME OF HIS RETIREMENT. SUCH PROVISION POSES SOME DIFFICULTY BY REASON OF THE FACT THAT IN MANY CASES YEARS OF SERVICE ENTERS INTO THE COMPUTATION OF RETIRED PAY IN A DUAL MANNER IN THAT THEY ARE USED FOR THE PURPOSE OF DETERMINING THE RATE OF PAY ON WHICH RETIRED PAY IS TO BE COMPUTED AND ALSO FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR BY WHICH SUCH RATE OF PAY IS TO BE MULTIPLIED TO PRODUCE THE RATE OF RETIRED PAY. AND, THE SERVICE WHICH MAY BE COUNTED FOR THOSE TWO PURPOSES IS NOT ALWAYS THE SAME. FOR EXAMPLE, UNDER METHOD (1) OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, THE PERCENTAGE FACTOR IS DETERMINED BY MULTIPLYING THE NUMBER OF YEARS OF "ACTIVE SERVICE" BY 2 1/2 PERCENTUM, WHILE IN DETERMINING THE RATE OF BASIC PAY TO BE MULTIPLIED BY SUCH PERCENTAGE FACTOR CREDIT IS GIVEN FOR CERTAIN INACTIVE SERVICE (SECTION 202 OF THE ACT, 63 STAT. 807). IN SUCH CASES THE ONLY LOGICAL CONCLUSION IS THAT SECTION 516 OF SUCH ACT, IN REFERRING TO SERVICE CREDITABLE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING RETIRED PAY THEREUNDER, WAS INTENDED TO REFER TO SERVICE WHICH WAS CREDITABLE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING RETIRED PAY AT THE TIME OF RETIREMENT. SINCE THE OFFICER TO WHOM YOU REFER WAS AUTHORIZED TO BE CREDITED WITH HIS MIDSHIPMAN SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE IN COMPUTING HIS RETIRED PAY AT THE TIME OF HIS RETIREMENT HE WOULD BE ENTITLED TO CREDIT THEREFOR IN DETERMINING THE PERCENTAGE FACTOR UNDER THE PROVISIONS OF SECTION 516. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

YOUR SECOND QUESTION IS THE SAME AS THE FIRST EXCEPT THAT IF REFERS TO AN OFFICER OF THE NAVAL RESERVE RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, AND IT RELATES TO INACTIVE SERVICE IN THE NAVAL RESERVE WHICH THE OFFICER COULD COUNT IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN THE COMPUTATION OF HIS RETIRED PAY UNDER SECTION 7 OF THAT ACT, 63 STAT. 27, AT THE TIME OF HIS RETIREMENT BUT WHICH HE COULD NOT COUNT UNDER THE PROVISIONS OF SECTION 511 OF THE 1949 ACT. FOR THE REASONS STATED IN ANSWER TO YOUR FIRST QUESTION, THE SECOND QUESTION ALSO IS ANSWERED IN THE AFFIRMATIVE.

YOUR THIRD QUESTION IS SIMILAR TO THE FIRST EXCEPT THAT IT RELATES TO AN OFFICER WHO WAS RETIRED ON ACCOUNT OF PHYSICAL DISABILITY ON JULY 1, 1924. THE PERCENTAGE FACTOR USED IN COMPUTING HIS RETIRED PAY WAS NOT BASED ON LENGTH OF SERVICE BUT WAS EXPRESSLY SET BY STATUTE AT A FLAT 75 PERCENT. THE ONLY SERVICE WHICH AFFECTED THE COMPUTATION OF HIS RETIRED PAY WAS THE SERVICE CREDITABLE FOR LONGEVITY PAY PURPOSES. IN SUCH A CASE THERE IS NO ALTERNATIVE BUT TO LOOK TO THAT SERVICE IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY IN SECTION 516. AND SINCE, AS STATED IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, HE COULD COUNT HIS MIDSHIPMAN SERVICE FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY AT THE TIME OF HIS RETIREMENT, HE WOULD BE ENTITLED TO CREDIT THEREFOR IN DETERMINING THE PERCENTAGE FACTOR UNDER THE PROVISIONS OF SECTION 516. ACCORDINGLY, THIS QUESTION ALSO IS ANSWERED IN THE AFFIRMATIVE.

THE FOURTH QUESTION RELATES TO AN OFFICER OF THE NAVAL RESERVE WHO WAS RETIRED FOR PHYSICAL DISABILITY ON JULY 1, 1948, IN THE RANK OF CAPTAIN AT WHICH TIME HE HAD 30 YEARS' SERVICE CREDITABLE FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY OF WHICH 23 YEARS WERE ACTIVE SERVICE. HE ELECTED TO RECEIVE RETIRED PAY ON AND AFTER OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 511 OF THE 1949 ACT AND HE WAS PAID RETIRED PAY AS PRESCRIBED IN METHOD (A) THEREOF, I.E., RETIRED PAY COMPUTED UNDER THE LAWS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949. HE WAS RECALLED TO ACTIVE DUTY ON FEBRUARY 1, 1950, AND SERVED THEREON UNTIL MARCH 1, 1951, WHEN HE WAS RELEASED TO INACTIVE DUTY. YOU ASK BY WHAT METHOD HIS RETIRED PAY IS TO BE COMPUTED AFTER THAT DATE.

ON THE BASIS OF THE ANSWER TO THE PRECEDING QUESTION THE OFFICER WOULD, ON AND AFTER MARCH 2, 1951, BE ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT (30 TIMES 2 1/2 PERCENT) OF THE BASIC PAY OF HIS GRADE.

THE FIFTH QUESTION CONCERNS AN OFFICER OF THE REGULAR NAVY WHO WAS RETIRED FOR PHYSICAL DISABILITY ON JANUARY 1, 1950, IN THE RANK OF LIEUTENANT COMMANDER. IT IS STATED THAT AT THAT TIME HE HAD 10 YEARS' SERVICE WHICH HE WOULD HAVE BEEN ENTITLED TO COUNT IN DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY HAD HE NOT ELECTED TO RECEIVE RETIRED PAY COMPUTED UNDER METHOD (2) OF SECTION 402 (D), I. E., AN AMOUNT EQUAL TO HIS MONTHLY BASIC PAY MULTIPLIED BY THE PERCENTAGE (60 PERCENT) OF HIS PHYSICAL DISABILITY. HE WAS CALLED TO ACTIVE DUTY ON JULY 1, 1950, AND SERVED THEREON UNTIL JUNE 30, 1951, WHEN HE WAS RELEASED FROM ACTIVE DUTY. YOU ASK BY WHAT METHOD HIS RETIRED PAY SHOULD BE COMPUTED AFTER JUNE 30, 1951.

IT IS OBVIOUS THAT IF THIS OFFICER'S RETIRED PAY IS REQUIRED TO BE COMPUTED UNDER THE PROVISIONS OF SECTION 516 HE WOULD SUFFER A DRASTIC REDUCTION IN HIS RETIRED PAY SINCE, HAVING ONLY 11 YEARS' SERVICE FOR PAY PURPOSES, HE WOULD RECEIVE RETIRED PAY AT THE RATE OF 27 1/2 PERCENT (11 TIMES 2 1/2 PERCENT) OF HIS BASIC PAY AS OPPOSED TO THE 60 PERCENT PREVIOUSLY RECEIVED. I THINK IT IS EQUALLY OBVIOUS THAT SUCH WAS NOT THE INTENT OF THE CONGRESS IN ENACTING SECTION 516 SINCE SUCH SECTION AUTHORIZES CREDIT FOR ACTIVE SERVICE AFTER RETIREMENT (OR TRANSFER TO THE FLEET RESERVE) ONLY FOR "INCREASES" IN RETIRED (OR RETAINER) PAY. UNDER SUCH CIRCUMSTANCES, IT IS MY VIEW THAT SECTION 516 IS FOR APPLICATION ONLY IN THOSE CASES WHERE IT WOULD RESULT IN AN INCREASE IN RETIRED PAY. SINCE, AS NOTED ABOVE, IT WOULD NOT RESULT IN AN INCREASE IN THIS CASE AND AS THERE IS NO OTHER PROVISION OF LAW WHEREBY THE OFFICER COULD BE GIVEN CREDIT FOR HIS ACTIVE SERVICE AFTER RETIREMENT, HE SHOULD BE PAID RETIRED PAY AT THE SAME RATE HE WAS RECEIVING PRIOR TO HIS BEING CALLED TO ACTIVE DUTY.

THE SIXTH AND LAST QUESTION IS SIMILAR TO THE SECOND QUESTION EXCEPT THAT AFTER OCTOBER 1, 1949, PRIOR TO HIS RECALL TO ACTIVE DUTY, THE OFFICER WAS RECEIVING RETIRED PAY UNDER THE PROVISIONS OF METHOD (A) OF SECTION 511 OF THE ACT, 63 STAT. 829. THIS LATTER FACT IS NOT MATERIAL AND THE ANSWER TO THE SECOND QUESTION WOULD BE APPLICABLE TO THE OFFICER REFERRED TO IN THIS QUESTION.