B-120376, NOVEMBER 18, 1954, 34 COMP. GEN. 225

B-120376, NOVEMBER 18, 1954, 34 COMP. GEN. 225

PAY - RETIRED - PAY COMPUTATION BASED ON HIGHEST APPROVED RANK THE RETIRED PAY OF A NAVY ENLISTED MAN WHO, AFTER TRANSFER TO THE FLEET RESERVE IN 1935, WAS RECALLED TO ACTIVE DUTY AND ADVANCED TO THE RANK OF LIEUTENANT IN 1946 AND TO LIEUTENANT COMMANDER IN JULY 1953, WHICH RANK HE HELD UNTIL TRANSFER TO THE RETIRED LIST IN OCTOBER 1953, IS FIXED BY SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 WHICH AUTHORIZES RETIRED PAY BASED ON THE HIGHEST RANK SATISFACTORILY HELD PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF SAID SECTION--- SO THAT IRRESPECTIVE OF SECTION 516 OF SAID ACT AND ADVANCEMENT IN RANK SUBSEQUENT TO OCTOBER 1, 1949, THE MEMBER IS LIMITED TO RETIRED PAY BASED ON THE RANK OF LIEUTENANT.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, NOVEMBER 18, 1954:

REFERENCE IS MADE TO LETTER OF JUNE 5, 1954, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, FORWARDING A COMMUNICATION FROM THE CHIEF OF NAVAL PERSONNEL DATED OCTOBER 30, 1953, WITH AN ENDORSEMENT FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING DECISION AS TO THE CORRECT METHOD, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, OF COMPUTING THE RETIRED PAY OF LIEUTENANT STEPHEN J. HARBAY, SC, UNITED STATES NAVY, RETIRED.

IT APPEARS THAT LIEUTENANT HARBAY WAS TRANSFERRED AS AN ENLISTED MAN TO THE FLEET RESERVE, CLASS F-4-C, ON NOVEMBER 11, 1935; THAT HE WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 2, 1939, AND WHILE SERVING ON ACTIVE DUTY WAS ADVANCED UNDER TEMPORARY APPOINTMENTS PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350, ET SEQ., TO ACTING PAY CLERK ON AUGUST 13, 1942; TO CHIEF PAY CLERK ON JULY 23, 1943, TO LIEUTENANT (JG) ON SEPTEMBER 11, 1944; TO LIEUTENANT ON FEBRUARY 15, 1946; AND TO LIEUTENANT COMMANDER ON JULY 17, 1953. ON OCTOBER 31, 1953, HE WAS RELEASED FROM ACTIVE DUTY IN THE NAVAL SERVICE, AT WHICH TIME HIS TEMPORARY OFFICER STATUS WAS TERMINATED AND HE REVERTED TO HIS PERMANENT ENLISTED STATUS IN CLASS F-4-C, UNITED STATES NAVAL FLEET RESERVE. EFFECTIVE THE NEXT DAY, NOVEMBER 1, 1953, HE WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED, 34 U.S.C. 854C, AND PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT APPROVED FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I (B) (2) AND (E), HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT, THE HIGHEST RANK IN WHICH HE SERVED SATISFACTORILY BEFORE JULY 1, 1946.

IT IS RELATED THAT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, AS CONSTRUED BY THIS OFFICE IN DECISION OF JULY 10, 1953, 33 COMP. GEN. 17 LIEUTENANT HARBAY HAS BEEN CREDITED SINCE THE DATE OF HIS RETIREMENT, NOVEMBER 1, 1953, WITH 75 PERCENT OF THE PAY OF A LIEUTENANT WITH OVER 30 YEARS' SERVICE FOR BASIC PAY PURPOSES. THE SPECIFIC QUESTION PRESENTED IS WHETHER THE OFFICER'S RETIRED PAY MAY BE COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, ON THE BASIS OF THE HIGHER RANK OF LIEUTENANT COMMANDER IN VIEW OF THE FACT THAT HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT IN THAT RANK FROM JULY 17, 1953, TO OCTOBER 31, 1953.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, PROVIDES THAT:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY, (2) MEMBERS HERETOFORE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (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. * * * (ITALICS SUPPLIED.)

UNDER THESE STATUTORY PROVISIONS A MEMBER OF THE UNIFORMED SERVICES WHO WAS "RETIRED" PRIOR TO OCTOBER 1, 1949, FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY AND WHOSE STATUS THUS COMES WITHIN CLAUSE (1) OF SECTION 511 IS ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE OCTOBER 1, 1949, AS PROVIDED IN METHOD (A) OR COMPUTED IN THE MANNER PRESCRIBED IN METHOD (B), WHICHEVER AMOUNT IS THE GREATER. A MEMBER OF THE UNIFORMED SERVICES WHO WAS "TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE" PRIOR TO OCTOBER 1, 1949, AND WHOSE STATUS COMES WITHIN THE PURVIEW OF CLAUSE (2) OF SECTION 511, IS ENTITLED TO RECEIVE RETAINER PAY, EFFECTIVE OCTOBER 1, 1949, AS PROVIDED IN METHOD (A) OR COMPUTED IN THE MANNER PRESCRIBED IN METHOD (B), WHICHEVER AMOUNT IS THE GREATER. HOWEVER, WHETHER A PARTICULAR MEMBER COMES WITHIN CLAUSE (1) OR (2), THE BENEFITS AUTHORIZED UNDER (B) OF THAT SECTION, EFFECTIVE OCTOBER 1, 1949, ARE BASED ON THE RANK, GRADE, OR RATING SATISFACTORILY ,HELD" BY HIM. THAT SECTION MUST BE READ IN CONJUNCTION WITH SECTION 516 OF THE ACT, ALSO EFFECTIVE OCTOBER 1, 1949, WHICH AUTHORIZED INCREASES IN RETIRED PAY OR RETAINED PAY ON THE BASIS THERE PRESCRIBED FOR ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE. SINCE SECTION 511 WAS EFFECTIVE OCTOBER 1, 1949, AND, SPEAKING AS OF THAT DATE, RELATES ONLY TO MEMBERS "HERETOFORE" RETIRED OR TRANSFERRED AND, SPEAKING AS OF THAT DATE, AUTHORIZES BENEFITS IN (B) FOR SUCH MEMBERS THERETOFORE RETIRED BASED ON THE GRADE, RANK, OR RATING SATISFACTORILY "HELD," IT SEEMS APPARENT THAT THE BENEFITS SO AUTHORIZED MUST BE BASED ON THE GRADE, RANK, OR RATING SATISFACTORILY HELD PRIOR TO OCTOBER 1, 1949, ANY RIGHT TO INCREASES IN PAY ON ACCOUNT OF ACTIVE DUTY PERFORMED AFTER SEPTEMBER 30, 1949, BEING LIMITED TO THE RIGHTS GRANTED IN SECTION 516 OF THE ACT. THUS, A MEMBER OF THE FLEET RESERVE ON SEPTEMBER 30, 1949, WOULD BE ENTITLED UPON TRANSFER TO THE RETIRED LIST ON OR SUBSEQUENT TO OCTOBER 1, 1949, TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511 ON THE BASIS OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD BY SUCH MEMBER PRIOR TO OCTOBER 1, 1949, AS DETERMINED BY THE SECRETARY CONCERNED.

LIEUTENANT HARBAY WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON NOVEMBER 1, 1953, BUT SINCE ON OCTOBER 1, 1949, HE HAD BEEN TRANSFERRED TO THE FLEET RESERVE HIS RIGHTS TO RETIRED PAY ARE FIXED BY SECTION 511 PLUS SECTION 516. CONSEQUENTLY, THE COMPUTATION OF HIS RETIRED PAY UNDER METHOD (B) OF SECTION 511 IS REQUIRED TO BE BASED UPON THE RANK OF LIEUTENANT, THE HIGHEST FEDERALLY RECOGNIZED RANK UNDER A TEMPORARY APPOINTMENT SATISFACTORILY HELD BY HIM PRIOR TO OCTOBER 1, 1949, AS DETERMINED BY THE SECRETARY OF THE NAVY, AND SINCE RETIRED PAY OF A HIGHER RANK DOES NOT APPEAR AUTHORIZED BY SECTION 516, IT MUST BE CONCLUDED THAT THE OFFICER'S RETIRED PAY EFFECTIVE FROM NOVEMBER 1, 1953--- THE DATE OF HIS TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY--- MAY NOT BE BASED ON THE PAY OF A LIEUTENANT COMMANDER.