B-117187, JANUARY 26, 1954, 33 COMP. GEN. 303

B-117187: Jan 26, 1954

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WAS MADE EFFECTIVE RETROACTIVE TO OCTOBER 1. IT WAS NOT IN EFFECT ON OCTOBER 11. THEREFORE AN OFFICER OF THE UNIFORMED SERVICES WHO WAS RETIRED PRIOR TO OCTOBER 1. IS NOT ENTITLED TO HAVE RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY FIXED IN THE 1949 ACT. 1954: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. YOU WERE ADVISED BY THIS OFFICE IN LETTER DATED DECEMBER 9. - WHICH PROVISIONS OF LAW ARE APPLICABLE IN YOUR CASE. - IS REQUIRED TO BE BASED ON THE RATES OF PAY PRESCRIBED IN THE PAY READJUSTMENT ACT OF 1942. THAT CONCLUSION IS IN ACCORDANCE WITH THE CLEAR LANGUAGE OF THE STATUTE AND ALSO WITH THE LEGISLATIVE INTENT THAT MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1.

B-117187, JANUARY 26, 1954, 33 COMP. GEN. 303

PAY - RETIRED - SAVED PAY AND ALLOWANCES - COMPUTATION UNDER CAREER COMPENSATION ACT OF 1949 WHILE SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, WHICH PROVIDES UNDER METHOD (A) FOR PAYMENT OF RETIRED PAY IN AN AMOUNT AUTHORIZED BY PROVISIONS OF LAW IN EFFECT ON DAY IMMEDIATELY PRECEDING ENACTMENT DATE OF THE ACT, WAS MADE EFFECTIVE RETROACTIVE TO OCTOBER 1, 1949, IT WAS NOT IN EFFECT ON OCTOBER 11, 1949, THE DAY BEFORE THE ENACTMENT OF THE ACT, AND THEREFORE AN OFFICER OF THE UNIFORMED SERVICES WHO WAS RETIRED PRIOR TO OCTOBER 1, 1949, FOR REASONS OTHER THAN PHYSICAL DISABILITY AND WHO, SUBSEQUENT THERETO ELECTED TO RECEIVE RETIRED PAY UNDER METHOD (A) OF SECTION 511, IS NOT ENTITLED TO HAVE RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY FIXED IN THE 1949 ACT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL FRANK M. HOLMES, JANUARY 26, 1954:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1953, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR AN INCREASE IN RETIRED PAY SINCE OCTOBER 1, 1949, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949.

YOU WERE ADVISED BY THIS OFFICE IN LETTER DATED DECEMBER 9, 1953, B 117187, AS TO THE REASONS WHY THE COMPUTATION OF RETIRED PAY SINCE OCTOBER 1, 1949, UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311--- WHICH PROVISIONS OF LAW ARE APPLICABLE IN YOUR CASE--- IS REQUIRED TO BE BASED ON THE RATES OF PAY PRESCRIBED IN THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, 56 STAT. 359, PLUS 4 PERCENTUM INCREASE IN SUCH RATES EFFECTIVE AS OF MAY 1952. THAT CONCLUSION IS IN ACCORDANCE WITH THE CLEAR LANGUAGE OF THE STATUTE AND ALSO WITH THE LEGISLATIVE INTENT THAT MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY WOULD, UNDER METHOD (A) OF SECTION 511, CONTINUE TO RECEIVE MONTHLY RETIRED PAY IN THE AMOUNT AUTHORIZED AND TO WHICH THEY WERE ENTITLED UNDER THE STATUTORY PROVISIONS WHICH WERE IN EFFECT BEFORE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 OR, IF MEETING THE CONDITIONS THEREIN STATED, TO RECEIVE RETIRED PAY ON THE BASIS OF THE NEW PAY RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, BY USING THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511.

YOUR CONTENTION THAT YOU ARE ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY FIXED IN THE CAREER COMPENSATION ACT OF 1949 FINDS NO SUPPORT EITHER IN THE LAW OR IN ITS LEGISLATIVE HISTORY. THE DATE YOUR RETIREMENT WAS EFFECTIVE YOU BECAME ENTITLED TO CERTAIN RETIRED PAY. THAT RETIRED PAY COULD BE INCREASED OR DECREASED OR LEFT UNAFFECTED BY SUBSEQUENT LEGISLATION, DEPENDING ON THE INTENTION OF THE CONGRESS AS EXPRESSED IN SUCH SUBSEQUENT LEGISLATION. SECTION 511, MENTIONED ABOVE, GIVES MEMBERS THERETOFORE RETIRED FOR REASONS OTHER THAN DISABILITY A CHOICE AS TO THE RETIRED PAY THEY WISH TO RECEIVE. THEY MAY RECEIVE RETIRED PAY COMPUTED AS PROVIDED IN (B), WHICH YOU DO NOT CLAIM, OR RETIRED PAY "IN THE AMOUNT AUTHORIZED * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT * * * .' THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THAT ACT WAS OCTOBER 11, 1949. ON THAT DAY THE CAREER COMPENSATION ACT OF 1949 HAD NOT BEEN ENACTED AND THE PAY READJUSTMENT ACT OF 1942 WAS IN EFFECT. YOUR CLAIM UNDER THAT PORTION OF THE SAID SECTION 511 GIVES YOU RETIRED PAY BASED ON THE PROVISIONS OF THE SAID 1942 ACT. THE FACT THAT SECTION 511 WAS MADE RETROACTIVELY EFFECTIVE TO OCTOBER 1, 1949, DOES NOT CHANGE THE FACT THAT IT WAS NOT ACTUALLY IN EFFECT ON OCTOBER 11, 1949, THE DAY BEFORE THE CAREER COMPENSATION ACT WAS APPROVED. ACCORDINGLY, NO PROPER BASIS IS PRESENTED FOR AN INCREASE IN YOUR RETIRED PAY UNDER METHOD (A) OF SECTION 511.

THE DISALLOWANCE OF YOUR CLAIM IN THE LETTER OF DECEMBER 9, 1953, WAS CORRECT AND IS AFFIRMED.