B-107072, AUGUST 5, 1952, 32 COMP. GEN. 71

B-107072: Aug 5, 1952

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EVEN THOUGH SUCH ACT WAS MADE RETROACTIVELY EFFECTIVE AS OF OCTOBER 1. ARE NOT ENTITLED TO THE BENEFITS OF SECTION 513 IN COMPUTATION OF THEIR SAVED RETIRED PAY UNDER METHOD "A" IN SECTION 511. SUCH DIFFERENCE IN PAY IS BEING CLAIMED ON THE BASIS OF THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949. IT APPEARS THAT CAPTAIN STEWART WAS PLACED ON THE RETIRED LIST EFFECTIVE JUNE 30. IN THE GRADE OF MASTER SERGEANT WITH OVER 21 BUT LESS THAN 24 YEARS' SERVICE AND THAT LIEUTENANT HEFT WAS PLACED ON THE RETIRED LIST EFFECTIVE MARCH 31. IT FURTHER APPEARS THAT THEY WERE ADVANCED ON THE RETIRED LIST TO CAPTAIN AND FIRST LIEUTENANT. THAT EACH OF THEM WAS PAID RETIRED PAY BASED ON THE PAY OF WARRANT OFFICER IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 6.

B-107072, AUGUST 5, 1952, 32 COMP. GEN. 71

RETIRED PAY - DISABILITY RETIREMENT PAY - ELECTIONS UNDER CAREER COMPENSATION ACT OF 1949 SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, WHICH AUTHORIZES ADVANCEMENT OF RETIRED ENLISTED PERSONS AND RETIRED WARRANT OFFICERS TO HIGHEST OFFICER RANK HELD DURING WORLD WAR I PERIOD, MAY NOT BE CONSIDERED AS EFFECTIVE PRIOR TO "DATE OF ENACTMENT OF THIS ACT," WITHIN THE MEANING OF SECTION 511 OF THE ACT, EVEN THOUGH SUCH ACT WAS MADE RETROACTIVELY EFFECTIVE AS OF OCTOBER 1, 1949, AND THEREFORE, WARRANT OFFICERS WHO RETIRED PRIOR TO OCTOBER 1, 1949, ARE NOT ENTITLED TO THE BENEFITS OF SECTION 513 IN COMPUTATION OF THEIR SAVED RETIRED PAY UNDER METHOD "A" IN SECTION 511.

COMPTROLLER GENERAL WARREN TO LT. COL. J. H. COMINGS, DEPARTMENT OF THE ARMY, AUGUST 5, 1952:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 17, 1951, FORWARDED TO THIS OFFICE BY THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, BY ENDORSEMENT DATED DECEMBER 13, 1951, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON A VOUCHER ENCLOSED THEREWITH IN FAVOR OF CAPTAIN JAMES E. STEWART, USAF, RETIRED, IN THE AMOUNT OF $2,308.56, AND FIRST LIEUTENANT WALTER E. HEFT, USAF, RETIRED, IN THE AMOUNT OF $1,260, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF WARRANT OFFICER RECEIVED BY THEM FOR THE PERIOD FROM OCTOBER 1, 1949, TO SEPTEMBER 30, 1951, AND THE RETIRED PAY OF CAPTAIN AND FIRST LIEUTENANT, RESPECTIVELY, AT RATES AUTHORIZED UNDER THE ACT OF JUNE 29, 1946, 60 STAT. 343. SUCH DIFFERENCE IN PAY IS BEING CLAIMED ON THE BASIS OF THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 830.

IT APPEARS THAT CAPTAIN STEWART WAS PLACED ON THE RETIRED LIST EFFECTIVE JUNE 30, 1943, IN THE GRADE OF MASTER SERGEANT WITH OVER 21 BUT LESS THAN 24 YEARS' SERVICE AND THAT LIEUTENANT HEFT WAS PLACED ON THE RETIRED LIST EFFECTIVE MARCH 31, 1942, IN THE GRADE OF TECHNICAL SERGEANT WITH OVER 24 BUT LESS THAN 27 YEARS' SERVICE. IT FURTHER APPEARS THAT THEY WERE ADVANCED ON THE RETIRED LIST TO CAPTAIN AND FIRST LIEUTENANT, RESPECTIVELY, UNDER THE ACT OF MAY 7, 1932, 47 STAT. 150, 10 U.S.C. 1028C, BY REASON OF COMMISSIONED SERVICE DURING WORLD WAR I, AND THAT EACH OF THEM WAS PAID RETIRED PAY BASED ON THE PAY OF WARRANT OFFICER IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, 10 U.S.C. 981. RETIREMENT IN EACH CASE APPARENTLY WAS EFFECTED UNDER SECTION 2 OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, AS AMENDED, 10 U.S.C. 939, BY REASON OF PHYSICAL DISABILITY. THE RECORD INDICATES, ALSO THAT CAPTAIN STEWART HELD THE TEMPORARY RANK OF CHIEF WARRANT OFFICER FOR TEN MONTHS AND 21 DAYS DURING WORLD WAR II, BUT FOR SOME REASON, NOT PRESENTLY APPARENT TO THIS OFFICE, THERE APPEARS TO HAVE BEEN NO DETERMINATION MADE BY THE SECRETARY OF THE ARMY THAT HE SATISFACTORILY HELD THE GRADE OF CHIEF WARRANT OFFICER WHILE HE WAS ON ACTIVE DUTY DURING WORLD WAR II AND, HENCE, IT APPEARS HE HAS NOT BEEN PAID RETIRED PAY BASED ON THE PAY OF CHIEF WARRANT OFFICER UNDER THE PROVISIONS OF SECTION 204 (E) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1086, SUBSEQUENT TO JUNE 29, 1948.

ENCLOSED WITH YOUR LETTER WERE COPIES OF STATEMENTS EMANATING FROM HEADQUARTERS, UNITED STATES AIR FORCE, DATED MARCH 21, 1950, INDICATING THAT CAPTAIN STEWART AND LIEUTENANT HEFT, HAVING BEEN ADVANCED ON THE RETIRED LIST TO THE HIGHEST COMMISSIONED GRADES HELD DURING WORLD WAR I UNDER THE PROVISIONS OF THE ACT OF MAY 7, 1932, ARE ENTITLED TO RECEIVE RETIRED PAY OF THE GRADES OF CAPTAIN AND FIRST LIEUTENANT, RESPECTIVELY, IT HAVING BEEN DETERMINED BY THE SECRETARY OF THE AIR FORCE THAT STEWART'S SERVICE AS CAPTAIN AND HEFT'S SERVICE AS FIRST LIEUTENANT WERE SATISFACTORILY PERFORMED FOR PERIODS BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918. ALSO ENCLOSED WAS DISPOSITION FORM OF HEADQUARTERS, UNITED STATES AIR FORCE, DATED JUNE 29, 1951, INDICATING THAT CAPTAIN STEWART ELECTED TO RECEIVE RETIREMENT PAY OF $278.44 PER MONTH AND THAT LIEUTENANT HEFT ELECTED TO RECEIVE RETIREMENT PAY OF $241.50 PER MONTH (THE RATES OF RETIREMENT PAY FOR CAPTAIN AND FIRST LIEUTENANT, RESPECTIVELY, WITH THE SERVICE CREDITS INDICATED, COMPUTED UNDER THE ACT OF JUNE 29, 1946, SUPRA), BY VIRTUE OF THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, SUCH ELECTIONS APPARENTLY HAVING BEEN MADE UNDER AUTHORITY OF SECTION 411 OF THAT ACT, 63 STAT. 823.

SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 830, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANY ENLISTED PERSON OR WARRANT OFFICER OF THE UNIFORMED SERVICES WHO SERVED IN WORLD WAR I, HERETOFORE OR HEREAFTER RETIRED FOR ANY REASON, SHALL (1) BE ADVANCED ON THE RETIRED LIST OF THE SERVICE CONCERNED TO THE HIGHEST FEDERALLY RECOGNIZED OFFICER RANK OR GRADE SATISFACTORILY HELD BY SUCH ENLISTED PERSON OR WARRANT OFFICER UNDER A PERMANENT OR TEMPORARY APPOINTMENT FOR ANY PERIOD OF SERVICE BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, AND (2) IF NOT ENTITLED TO RECEIVE RETIRED PAY OR DISABILITY RETIREMENT PAY BASED ON A HIGHER OFFICER RANK OR GRADE BY SOME OTHER PROVISION OF LAW, BE ENTITLED TO RECEIVE RETIRED PAY OR DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE OFFICER RANK OR GRADE TO WHICH PREVIOUSLY ADVANCED ON A RETIRED LIST OR COMPUTED IN THE BASIS OF THE OFFICER GRADE OR RANK AUTHORIZED BY THIS SECTION * * *. UNDER SUCH PROVISIONS EACH OF THE MEN INVOLVED IS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY BY REASON OF HIS COMMISSIONED SERVICE DURING WORLD WAR I COMPUTED ON THE BASIS OF THE COMMISSIONED GRADES HELD DURING THAT WAR, SUCH GRADES BEING THOSE TO WHICH PREVIOUSLY ADVANCED ON THE RETIRED LIST UNDER THE ACT OF MAY 7, 1932, SUPRA.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

SINCE IT APPEARS THAT BOTH CAPTAIN STEWART AND LIEUTENANT HEFT WERE RETIRED PRIOR TO OCTOBER 1, 1949, FOR PHYSICAL DISABILITY AND WERE RECEIVING RETIREMENT PAY, THEY WERE AUTHORIZED TO ELECT UNDER THE QUOTED PROVISIONS WITHIN THE INDICATED FIVE-YEAR PERIOD TO QUALIFY FOR AND RECEIVE THE DISABILITY RETIREMENT PAY PRESCRIBED IN TITLE VI OF THE CAREER COMPENSATION ACT, OR TO RECEIVE RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE SAID ACT, 63 STAT. 829. SUCH METHODS, SET FORTH IN SECTION 511, ARE:

* * * (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *. THE FIRST METHOD, (A), UNDER WHICH IT APPEARS THAT THE PROPOSED PAYMENT IS CONTEMPLATED, AUTHORIZES ONLY THE MONTHLY RETIRED PAY AUTHORIZED FOR MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT. WHILE, IN GENERAL, THE SAID ACT (APPROVED OCTOBER 12, 1949), WAS MADE RETROACTIVELY EFFECTIVE TO OCTOBER 1, 1949, IT WOULD APPEAR TO BE CLEAR THAT THE REFERENCE IN SECTION 511 OF SUCH ACT TO ,PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT" REFERRED TO LAWS OTHER THAN THE SAID CAREER COMPENSATION ACT. SUCH PROVISION IS, IN EFFECT, A SAVINGS CLAUSE THE GENERAL PURPOSE OF WHICH IS TO PERMIT THE PERSONS AFFECTED THEREBY TO RECEIVE A HIGHER RETIRED PAY TO WHICH THEY MAY HAVE BEEN ENTITLED UNDER THE LAWS ENACTED PRIOR TO THE CAREER COMPENSATION ACT BUT NOT--- IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY--- TO PERMIT A COMMINGLING OF THE PROVISIONS OF THE PRIOR LAWS AND THE CURRENT LAW SO AS TO GIVE SUCH PERSONNEL GREATER BENEFITS THAN THEY COULD HAVE RECEIVED UNDER EITHER LAW ALONE. SEE 26 COMP. GEN. 804, 816. CONSEQUENTLY, IN COMPUTING THE RETIRED PAY OF CAPTAIN STEWART AND LIEUTENANT HEFT UNDER SECTION 511 OF THE CAREER COMPENSATION ACT, THEY ARE ENTITLED TO THE BENEFITS OF SECTION 513 OF SUCH ACT ONLY IN CONNECTION WITH THE COMPUTATION UNDER METHOD (B) IN SECTION 511 AND THERE EXISTS NO AUTHORITY FOR THE PAYMENT TO THEM OF RETIRED PAY FROM OCTOBER 1, 1949, ON THE BASIS OF THE RATES OF PAY FOR CAPTAIN AND FIRST LIEUTENANT IN EFFECT ON SEPTEMBER 30, 1949, AS PROPOSED, THEIR RIGHT TO ELECTION UNDER SECTION 411 OF THE 1949 ACT BEING TO RECEIVE THE DISABILITY RETIREMENT PAY OF CAPTAIN AND FIRST LIEUTENANT COMPUTED UNDER THE PROVISIONS OF TITLE IV OF THAT ACT OR, UNDER SECTION 511 THEREOF TO CONTINUE IN RECEIPT OF RETIREMENT PAY ON THE BASIS OF ENTITLEMENT ON SEPTEMBER 30, 1949, OR TO RECEIVE, IF GREATER, MONTHLY RETIREMENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF CAPTAIN IN THE CASE OF CAPTAIN STEWART AND FIRST LIEUTENANT IN THE CASE OF LIEUTENANT HEFT, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO THEM.

ACCORDINGLY, PAYMENT OF THE AMOUNTS NOW SHOWN ON THE ABOVE-MENTIONED VOUCHER IS NOT AUTHORIZED. HOWEVER, ON THE BASIS OF THE UNDERSTANDING THAT BOTH CAPTAIN STEWART AND LIEUTENANT HEFT HAVE ELECTED TO HAVE THEIR RETIRED PAY COMPUTED AS PROVIDED IN "/B)" OF SECTION 411 (THAT IS, UNDER SECTION 511 OF THE CAREER COMPENSATION ACT), THE SAID VOUCHER RETURNED HEREWITH, MAY BE PAID AFTER IT HAS BEEN CHANGED TO REFLECT A RECOMPUTATION OF THE ADDITIONAL PAY DUE OR THE BASIS OF METHOD (B) IN SECTION 511, SUPRA. ..END :