B-124975, JANUARY 6, 1956, 35 COMP. GEN. 389

B-124975, JANUARY 6, 1956, 35 COMP. GEN. 389

RETIRED PAY - SERVICE CREDITS - FRACTIONAL YEARS - WARRANT OFFICER ACT OF 1954 THE PROVISION IN SECTION 14 (D) OF THE WARRANT OFFICER ACT OF 1954 FOR COMPUTING FRACTIONAL YEARS OF SERVICE FOR RETIRED PAY PURPOSES INCLUDES ALL SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY NOTWITHSTANDING THE USE OF THE TERM "ACTIVE SERVICE.'

TO T. P. CONDON, DEPARTMENT OF THE NAVY, JANUARY 6, 1956:

YOUR LETTER OF JULY 11, 1955, XRI:A:52, REQUESTS DECISION AS TO THE NUMBER OF YEARS OF SERVICE PROPERLY CREDITABLE UNDER THE PROVISIONS OF SUBSECTION 14 (D) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 163, 34 U.S.C. 430, FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING RETIRED PAY IN THE CASE OF CHIEF CARPENTER MERLE F. CHAPMAN, UNITED STATES NAVAL RESERVE, RETIRED, AND IN SIMILAR CASES.

YOU SAY THAT MR. CHAPMAN WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1, 1955, PURSUANT TO SUBSECTIONS 14 (A) AND (D) OF THE WARRANT OFFICER ACT OF 1954, AND THAT HE THEN HAD COMPLETED 20 YEARS AND 29 DAYS OF ACTIVE SERVICE AND 8 MONTHS AND 6 DAYS OF INACTIVE SERVICE. APPARENTLY ALL OF SUCH SERVICE, BOTH ACTIVE AND INACTIVE, WAS CREDITABLE IN THE COMPUTATION OF THE OFFICER'S BASIC PAY UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233.

SECTION 14 OF THE WARRANT OFFICER ACT OF 1954 IS, IN MATERIAL PART, AS FOLLOWS:

SEC. 14. (A) ANY WARRANT OFFICER WHO HAS COMPLETED NOT LESS THAN TWENTY YEARS' ACTIVE SERVICE MAY, UPON APPLICATION AND IN THE DISCRETION OF THE SECRETARY, BE RETIRED AND SHALL BE ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER SUBSECTION (D) OF THIS SECTION.

(D) A WARRANT OFFICER WHO IS RETIRED UNDER THIS SECTION SHALL, AS DETERMINED BY THE SECRETARY, BE RETIRED IN THE PERMANENT WARRANT OFFICER GRADE HELD ON THE DAY BEFORE THE DATE OF HIS RETIREMENT, OR IN ANY HIGHER WARRANT OFFICER GRADE IN WHICH HE HAS SATISFACTORILY SERVED, AS DETERMINED BY THE SECRETARY, ON ANY FULL TIME DUTY UNDER COMPETENT ORDERS SPECIFYING THAT THE PERIOD OF SUCH DUTY SHALL BE FOR A PERIOD IN EXCESS OF THIRTY DAYS OR FOR AN INDEFINITE PERIOD. RETIRED PAY UNDER THIS SECTION SHALL BE 2 1/2 PERCENTUM OF THE ACTIVE DUTY BASIC PAY HE WOULD HAVE BEEN ENTITLED TO RECEIVE IF HE HAD BEEN SERVING ON ACTIVE DUTY IN THE WARRANT OFFICER GRADE IN WHICH RETIRED ON THE DAY BEFORE THE DATE OF HIS RETIREMENT UNDER THIS SECTION, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE IN THE COMPUTATION OF SUCH BASIC PAY, BUT NOT TO EXCEED 75 PERCENTUM OF THAT BASIC PAY. A FRACTIONAL PART OF A YEAR THAT IS SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS OF ACTIVE SERVICE BY WHICH THE 2 1/2 PERCENTUM IS MULTIPLIED. ( ITALICS SUPPLIED.)

SUBSECTION 14 (D) PROVIDES BASICALLY FOR COMPUTING RETIRED PAY BY MULTIPLYING A PERCENTAGE OF ACTIVE-DUTY BASIC PAY BY THE NUMBER OF YEARS OF SERVICE (BOTH ACTIVE AND INACTIVE) CREDITABLE IN THE COMPUTATION OF SUCH BASIC PAY AND NOT BY THE NUMBER OF YEARS OF ACTIVE SERVICE. HENCE, THE PHRASE,"NUMBER OF YEARS OF ACTIVE SERVICE BY WHICH THE 2 1/2 PERCENTUM IS MULTIPLIED," AS USED IN THE LAST SENTENCE OF THAT SUBSECTION, RELATING TO FRACTIONAL YEARS OF SERVICE, DOES NOT SEEM TO BE IN CONSONANCE WITH THE PRECEDING PART OF THE SUBSECTION. THUS IT IS NECESSARY TO REFER TO THE LEGISLATIVE HISTORY OF THE ENACTMENT TO DETERMINE THE LEGISLATIVE INTENT. COMPARE 21 COMP. GEN. 805.

SUBSECTION 14 (D) OF H.R. 6374, 83D CONGRESS, WHICH BILL BECAME THE WARRANT OFFICER ACT OF 1954, AT FIRST PROVIDED FOR COMPUTING RETIRED PAY BY MULTIPLYING A PERCENTAGE OF ACTIVE DUTY PAY BY THE NUMBER OF "HIS YEARS OF ACTIVE SERVICE," AND THAT A FRACTIONAL PART OF A YEAR OF 6 MONTHS OR MORE SHOULD BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS OF "ACTIVE SERVICE" BY WHICH THE PERCENTAGE WAS TO BE MULTIPLIED. WHILE THE BILL WAS UNDER CONSIDERATION BY A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES OF THE HOUSE OF REPRESENTATIVES, HOWEVER, THE SUBSECTION WAS AMENDED BY OMITTING THE WORDS "HIS YEARS OF ACTIVE SERVICE" AND INSERTING IN LIEU THEREOF "YEARS OF SERVICE CREDITABLE IN THE COMPUTATION OF SUCH BASIC PAY.' THIS CHANGE WAS EFFECTED TO MAKE THE RETIRED PAY COMPUTATION FORMULA IN SUBSECTION 14 (D) AGREE WITH THE MORE LIBERAL FORMULA CONTAINED IN SECTION 5 OF THE ACT OF AUGUST 21, 1941, AS AMENDED BY SUBSECTION 203 (C) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, 10 U.S.C. 594, SO AS NOT TO REQUIRE ANY REDUCTION IN THE RETIRED PAY AUTHORIZED FOR WARRANT OFFICERS BY THE AMENDED SECTION 5. SEE PAGES 3766 ANC 3767, PRINT NO. 68, SUBCOMMITTEE HEARINGS ON H.R. 6374, 83D CONGRESS, AND PAGE 13, SENATE REPORT NO. 1284, 83D CONGRESS, TO ACCOMPANY H.R. 6374. UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 21, 1941, AS AMENDED, A PERCENTAGE OF ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY WAS MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE FOR LONGEVITY PURPOSES AND A FRACTIONAL YEAR OF SIX MONTHS OR MORE OF ALL SERVICE CREDITABLE FOR LONGEVITY PURPOSES WAS CONSIDERED AS A FULL YEAR IN COMPUTING THE NUMBER OF YEARS' SERVICE BY WHICH THE PERCENTAGE WAS MULTIPLIED.

IN THE LIGHT OF THE FOREGOING, THE CONCLUSION APPEARS WARRANTED THAT THE PROVISIONS OF SECTION 14 (D) FOR CREDITING FRACTIONAL YEARS OF SERVICE WERE INTENDED TO INCLUDE ALL SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY AND THAT, NOTWITHSTANDING ITS ORDINARY MEANING, THE TERM "ACTIVE SERVICE" IN THOSE PROVISIONS IS TO BE REGARDED AS HAVING REFERENCE TO SUCH SERVICE. ACCORDINGLY, WE WILL INTERPOSE NO OBJECTION TO THE PAYMENT OF RETIRED PAY, UNDER THE SUBSECTION, COMPUTED ON THE BASIS OF THE TOTAL SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY, A FRACTIONAL YEAR OF 6 MONTHS OR MORE APPEARING IN SUCH TOTAL TO COUNT AS A FULL YEAR IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN THE COMPUTATION.

SINCE MR. CHAPMAN HAS A TOTAL OF 20 YEARS, 9 MONTHS, AND 5 DAYS OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES, HE IS ENTITLED TO BE CREDITED WITH 21 YEARS' SERVICE IN COMPUTING THE PERCENTAGE MULTIPLE TO BE APPLIED TO BASIC PAY IN THE COMPUTATION OF HIS RETIRED PAY.