B-115502, JULY 10, 1953, 33 COMP. GEN. 17

B-115502, JULY 10, 1953, 33 COMP. GEN. 17

PAY - RETIRED - COMPUTATION - ACTIVE DUTY AFTER RETIREMENT - CAREER COMPENSATION ACT OF 1949 SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZES CREDIT FOR ACTIVE SERVICE AFTER TRANSFER TO THE FLEET RESERVE, IS FOR APPLICATION ONLY IN THOSE CASES WHERE IT WOULD RESULT IN AN INCREASE IN RETIRED OR RETAINER PAY AND IS NOT FOR APPLICATION IN A CASE WHERE IT WOULD RESULT IN A FLEET RESERVIST WHO IS RETIRED WHILE SERVING ON ACTIVE DUTY RECEIVING LESS RETIRED PAY THAN HE WOULD BE ENTITLED TO OTHERWISE, EVEN THOUGH HE WAS NOT ENTITLED TO RECEIVE SUCH RETIRED PAY AT THE TIME HE WAS CALLED TO ACTIVE DUTY.

ACTING COMPTROLLER GENERAL FISHER TO COMDR. E. J. BEASLEY, DEPARTMENT OF THE NAVY, JULY 10, 953:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1953, FORWARDED TO THIS OFFICE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION AS TO THE PROPER METHOD OF COMPUTING THE RETIRED PAY OF CHIEF GUNNER BASLEY P. GRAVES, U.S. NAVY, RETIRED, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT THE SUBJECT MAN WHILE SERVING AS AN ENLISTED MAN OF THE U.S. NAVY, WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F-4-D, IN THE RATING OF CHIEF TURRET CAPTAIN, ON FEBRUARY 12, 1946, HAVING AT THAT TIME COMPLETED 20 YEARS, 7 MONTHS, AND 12 DAYS' ACTIVE SERVICE. IT IS STATED THAT GRAVES WAS RECALLED TO ACTIVE DUTY EFFECTIVE JANUARY 16, 1951, AND RELEASED TO INACTIVE STATUS ON JULY 31, 1952, AT WHICH TIME HE THEN HAD COMPLETED 22 YEARS, 1 MONTH, AND 28 DAYS' ACTIVE SERVICE. ON AUGUST 1, 1952, HE WAS PLACED ON THE RETIRED LIST OF ENLISTED MEN OF THE NAVY FOR PHYSICAL DISABILITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, 34 U.S.C. 854E; AND, ON THE SAME DATE UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT APPROVED FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 3501, HE WAS ADVANCED TO THE COMMISSIONED WARRANT RANK OF CHIEF GUNNER.

UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, GRAVES ON JANUARY 15, 1951, THE DAY PRECEDING THE EFFECTIVE DATE OF HIS RECALL TO ACTIVE DUTY, WAS IN RECEIPT OF RETAINER PAY IN THE AMOUNT OF $154.28 PER MONTH REPRESENTING ONE-HALF OF THE BASE PAY OF ENLISTED PAY GRADE 1, WITH LONGEVITY CREDIT FOR 21 YEARS' SERVICE, PLUS 10 PERCENT FOR GOOD CONDUCT, COMPUTED IN THE MANNER PRESCRIBED IN SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178. GRAVES' RETIRED PAY EFFECTIVE AUGUST 1, 1952, IF COMPUTED AS PRESCRIBED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, WILL AMOUNT TO $183.10 PER MONTH, I.E., 55 PERCENT (22 YEARS TIMES 2 1/2 PERCENT), OF $332.90, THE BASIC PAY OF A COMMISSIONED WARRANT OFFICER IN PAY GRADE W-2 WITH OVER 22 YEARS' SERVICE FOR LONGEVITY PURPOSES. HOWEVER, WHILE SUCH RETIRED PAY, $183.10, EXCEEDS THE AMOUNT OF RETIRED PAY, $154.28, TO WHICH HE WAS ENTITLED ON JANUARY 15, 1951, THE DAY PRECEDING THE EFFECTIVE DATE OF HIS RECALL TO ACTIVE DUTY, IT IS POINTED OUT THAT IF GRAVES HAD NOT BEEN RECALLED TO ACTIVE DUTY HE WOULD HAVE BEEN ENTITLED UPON HIS TRANSFER TO THE RETIRED LIST TO RECEIVE RETIRED PAY AT THE RATE OF $204.20 PER MONTH COMPUTED ON THE SAME BASIS THAT HIS RETAINER PAY WAS PREVIOUSLY COMPUTED UNDER METHOD (A) OF SECTION 511, SUPRA, BUT BASED ON THE RATE OF PAY PERTAINING TO HIS HIGHER RANK AS A COMMISSIONED WARRANT OFFICER.

SINCE THE RETIRED PAY TO WHICH GRAVES IS ENTITLED UNDER METHOD (A) OF SECTION 511, SUPRA, WITHOUT CREDIT FOR HIS ACTIVE SERVICE DURING THE PERIOD JANUARY 16, 1951, TO JULY 31, 1952, EXCEEDS THE RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER SECTION 516, SUPRA, WITH CREDIT FOR HIS ACTIVE SERVICE DURING THE PERIOD ABOVE STATED, YOU REQUEST TO BE ADVISED AS TO THE RATE OF RETIRED PAY PROPERLY PAYABLE TO THE SUBJECT MAN.

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, PROVIDES, INTER ALIA, THAT MEMBERS OF THE UNIFORMED SERVICES OR MEMBERS OF THE FLEET RESERVE ENTITLED TO RECEIVE RETIRED OR RETAINER PAY, SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS THEREIN LISTED "TO RECEIVE INCREASES IN SUCH RETIRED PAY * * * RETAINER PAY" FOR ALL ACTIVE DUTY PERFORMED AFTER THE DATE OF THEIR RETIREMENT OR TRANSFER TO THE FLEET RESERVE. SUCH AN INCREASE IN RETIRED OR RETAINER PAY IS REQUIRED HOWEVER, BY SPECIFIC PROVISO, TO BE COMPUTED IN ACCORDANCE WITH THE FORMULA THEREIN SET FORTH. WHERE THE COMPUTATION OF RETIRED (OR RETAINER PAY) UNDER SECTION 516 WOULD RESULT IN A REDUCTION IN THE AMOUNT PREVIOUSLY RECEIVED IT WAS HELD BY THIS OFFICE IN DECISION OF MAY 1, 1952, B-106410, 31 COMP. GEN. 547--- TO WHICH REFERENCE IS MADE IN YOUR LETTER--- "THAT SUCH (REDUCTION) 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.' IT WAS FURTHER STATED IN THE SAID DECISION THAT "SECTION 516 IS FOR APPLICATION ONLY IN THOSE CASES WHERE IT WOULD RESULT IN AN INCREASE IN RETIRED PAY.' THUS, UNLESS THE COMPUTATION OF RETIRED OR RETAINER PAY IN ACCORDANCE WITH THE METHOD PRESCRIBED IN SAID SECTION 516 RESULTS IN AN INCREASE IN THE AMOUNT OF RETIRED OR RETAINER PAY THAT WAS BEING RECEIVED PRIOR TO THE IMMEDIATELY PRECEDING PERIOD OF ACTIVE DUTY, THE PROVISIONS OF SECTION 516 ARE INOPERATIVE AND DO NOT REQUIRE THE PAYMENT OF A LESSER AMOUNT OF RETIRED OR RETAINER PAY THAN THAT THERETOFORE RECEIVED.

THAT SAME REASONING WOULD APPLY TO A CASE WHERE THE APPLICATION OF THE PROVISIONS OF SECTION 516 WOULD PREVENT A MEMBER FROM RECEIVING A HIGHER RATE OF RETIRED PAY TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT SERVED ON ACTIVE DUTY SUBSEQUENT TO HIS TRANSFER TO THE FLEET RESERVE, EVEN THOUGH HE WAS NOT ENTITLED TO RECEIVE SUCH RETIRED PAY AT THE TIME HE WAS CALLED TO ACTIVE DUTY. ACCORDINGLY, YOU ARE ADVISED THAT CHIEF GUNNER GRAVES IS ENTITLED TO RETIRED PAY AT THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN CALLED TO ACTIVE DUTY; I.E., ONE-HALF THE BASE PAY OF A CHIEF GUNNER, WITH LESS THAN TEN YEARS' CREDITABLE SERVICE, PLUS 35 PERCENT LONGEVITY AND 10 PERCENT FOR GOOD CONDUCT.