B-135436, MAY 27, 1958, 37 COMP. GEN. 794

B-135436: May 27, 1958

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IS ENTITLED TO INCLUDE CONSTRUCTIVE SERVICE BY VIRTUE OF 37 U.S.C. 233 (A) IN COMPUTATION OF BASIC PAY PURPOSES MAY ALSO RECEIVE CONSTRUCTIVE SERVICE CREDIT IN DETERMINATION OF MULTIPLIER FACTOR FOR RETIRED PAY UNDER FORMULA B IN 10 U.S.C. 3991 IN VIEW OF 10 U.S.C. 1401. COLONEL GARDNER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY WITH A DISABILITY RATING OF 60 PERCENT PURSUANT TO THE PROVISIONS OF SECTIONS 1202 AND 1372. ON THE DATE THAT HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ( JUNE 19. IT IS STATED THAT COLONEL GARDNER IS IN RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 70 PERCENT (27 YEARS. COLONEL GARDNER IS SEEKING TO HAVE THE CONSTRUCTIVE SERVICE CREDIT TO WHICH HE APPEARS TO BE ENTITLED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF APRIL 30.

B-135436, MAY 27, 1958, 37 COMP. GEN. 794

MILITARY PERSONNEL - RETIRED PAY - CONSTRUCTIVE SERVICE FOR MULTIPLIER FACTOR PURPOSES ARMY OFFICER WHO, INCIDENT TO PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST PURSUANT TO 10 U.S.C. 1202 AND 1372, IS ENTITLED TO INCLUDE CONSTRUCTIVE SERVICE BY VIRTUE OF 37 U.S.C. 233 (A) IN COMPUTATION OF BASIC PAY PURPOSES MAY ALSO RECEIVE CONSTRUCTIVE SERVICE CREDIT IN DETERMINATION OF MULTIPLIER FACTOR FOR RETIRED PAY UNDER FORMULA B IN 10 U.S.C. 3991 IN VIEW OF 10 U.S.C. 1401, WHICH PERMITS ELECTION OF MOST FAVORABLE OF ANY OF OTHER THREE FORMULAS, EVEN THOUGH CONSTRUCTIVE SERVICE CREDIT MAY NOT BE INCLUDED IN DETERMINATION OF MULTIPLIER FACTOR UNDER FORMULA 2 OF 10 U.S.C. 1401.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, MAY 27, 1958:

THE OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, HAS FORWARDED WITH AN ENDORSEMENT DATED MARCH 3, 1958, YOUR LETTER OF FEBRUARY 20, 1958 ( DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, D.O. NO. 320), AND ENCLOSURES, INCLUDING A VOUCHER PRESENTED TO YOU FOR PAYMENT STATED IN FAVOR OF COLONEL JAMES D. GARDNER, O-18280, U.S. ARMY ( MC), RETIRED, FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM JUNE 20, 1957, TO JANUARY 31, 1958, INCLUSIVE.

COLONEL GARDNER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY WITH A DISABILITY RATING OF 60 PERCENT PURSUANT TO THE PROVISIONS OF SECTIONS 1202 AND 1372, TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 92, 105, RESPECTIVELY. ON THE DATE THAT HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ( JUNE 19, 1957) COLONEL GARDNER HAD 27 YEARS, 11 MONTHS, AND 19 DAYS OF ACTUAL ACTIVE SERVICE AND APPROXIMATELY 28 YEARS AND 23 DAYS' ACTIVE AND INACTIVE SERVICE FOR BASIC PAY PURPOSES. THUS, BY INCLUDING THE CONSTRUCTIVE SERVICE CREDIT (FOUR YEARS) TO WHICH HE APPEARS TO BE ENTITLED UNDER AUTHORITY OF SECTION 2, PUBLIC LAW 497, ACT OF APRIL 30, 1956, 70 STAT. 121, 37 U.S.C. 233, COLONEL GARDNER HAD A TOTAL OF OVER 32 YEARS' SERVICE FOR THE PURPOSE OF COMPUTING HIS BASIC PAY. SEE CLAUSE (7) AS ADDED TO SECTION 202 (A), 37 U.S.C. 233 (A), OF THE CAREER COMPENSATION ACT OF 1949 BY SECTION 2 OF THE ACT OF APRIL 30, 1956, 70 STAT. 121, PUBLIC LAW 497.

IT IS STATED THAT COLONEL GARDNER IS IN RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 70 PERCENT (27 YEARS, 11 MONTHS, AND 19 DAYS EQUAL 28 X 2 1/2 PERCENT EQUAL 70 PERCENT) OF THE ACTIVE-DUTY PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE AMOUNTING TO $567.84 PER MONTH ($811.20 X 70 PERCENT). COLONEL GARDNER CLAIMS THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT (BASED ON A TOTAL OF OVER 30 YEARS' SERVICE, WHICH INCLUDES A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS, AND COMPUTED THUS--- 30 X 2 1/2 PERCENT EQUAL 75 PERCENT) OF THE ACTIVE-DUTY PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE AND THE RETIRED PAY HE HAS RECEIVED FOR THE PERIOD COVERED BY THE VOUCHER. HENCE, AS INDICATED IN YOUR LETTER OF FEBRUARY 20, 1958, AND ALSO IN THE TRANSMITTAL ENDORSEMENT OF MARCH 3, 1958, COLONEL GARDNER IS SEEKING TO HAVE THE CONSTRUCTIVE SERVICE CREDIT TO WHICH HE APPEARS TO BE ENTITLED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF APRIL 30, 1956, INCLUDED IN DETERMINING THE PROPER MULTIPLIER FACTOR TO BE USED IN THE COMPUTATION OF HIS RETIRED PAY.

COLONEL GARDNER BECAME ENTITLED, INCIDENT TO THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE AUTHORITY OF SECTION 1202, TITLE 10, U.S. CODE, TO RECEIVE ,RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE.' FORMULA NO. 2, PRESCRIBED IN SECTION 1401, TITLE 10, U.S. CODE, 70A STAT. 106, FOR PERSONS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY UNDER AUTHORITY OF SECTION 1202, PROVIDES THAT THE MONTHLY BASIC PAY OF THE GRADE TO WHICH THE MEMBER IS ENTITLED UNDER SECTION 1372 IS TO BE MULTIPLIED, AS THE MEMBER MAY ELECT, BY (1) 2 1/2 PERCENT OF THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1208 OR (2) THE PERCENTAGE OF DISABILITY ON THE DATE HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

SECTION 1208, TITLE 10 U.S. CODE, 70A STAT. 94, 95, IN PERTINENT PART, PROVIDES THAT FOR PURPOSES OF THAT CHAPTER A MEMBER OF A REGULAR COMPONENT SHALL BE CREDITED WITH THE GREATER OF THE FOLLOWING SERVICE-- (1) THE SERVICE THAT HE IS CONSIDERED TO HAVE FOR THE PURPOSE OF OR MANDATORY ELIMINATION FROM THE ACTIVE LIST OR:

(2) THE SUM OF---

(A) HIS ACTIVE SERVICE AS A MEMBER OF THE ARMED FORCES, A NURSE, A RESERVE NURSE AFTER FEBRUARY 2, 1901, A CONTRACT SURGEON, A CONTRACT DENTAL SURGEON, OR AN ACTING DENTAL SURGEON;

(B) HIS ACTIVE SERVICE AS A MEMBER OF THE COAST AND GEODETIC SURVEY OR THE PUBLIC HEALTH SERVICE; AND

(C) HIS SERVICE WHILE PARTICIPATING IN EXERCISES OR PERFORMING DUTIES UNDER SECTIONS 502, 503, 504, AND 505 OF TITLE 32.

CLAUSE (7) WAS ADDED TO SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949 BY SECTION 2, ACT OF APRIL 30, 1956 ( PUBLIC LAW 497) 70 STAT 121, AND INSOFAR AS HEREIN APPLICABLE EXPRESSLY PROVIDES THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW:

* * * THE SERVICE CREDIT AUTHORIZED BY THIS CLAUSE SHALL NOT---

(A) BE INCLUDED IN ESTABLISHING ELIGIBILITY FOR VOLUNTARY OR INVOLUNTARY RETIREMENT OR SEPARATION FROM THE SERVICE, UNDER ANY PROVISION OF LAW.

CONSEQUENTLY, THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN CLAUSE (7), SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, MAY NOT BE INCLUDED FOR THE PURPOSES OF CLAUSE (1) IN SECTION 1208 (A). FURTHERMORE, THE PROVISIONS OF CLAUSE (7) AS ADDED TO SECTION 202 (A) OF THE CAREER COMPENSATION ACT BY SECTION 2 OF THE ACT OF APRIL 30, 1956, RELATE TO THE SERVICE CREDITABLE FOR THE PURPOSE OF COMPUTING MONTHLY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949. HENCE, THOSE PROVISIONS ARE NOT INCONSISTENT WITH THE PROVISIONS OF CLAUSE (2), ABOVE QUOTED, OF SECTION 1208 (A) AND CONSEQUENTLY DO NOT COME WITHIN THE SCOPE AND PURVIEW OF THE SECOND SENTENCE CONTAINED IN SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, 32 U.S.C. 49 (A). ACCORDINGLY, IT IS CONCLUDED THAT THE CONSTRUCTIVE SERVICE CREDIT TO WHICH COLONEL GARDNER IS STATED TO BE ENTITLED UNDER AUTHORITY OF SECTION 2 OF THE ACT OF APRIL 30, 1956 ( PUBLIC LAW 497), IN COMPUTING THE RATE OF HIS MONTHLY BASIC PAY MAY NOT BE INCLUDED IN DETERMINING THE MULTIPLIER FACTOR (WHICH IS REQUIRED TO BE BASED ON THE "YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1208") TO BE USED IN COMPUTING HIS RETIRED PAY UNDER FORMULA NO. 2 CONTAINED IN SECTION 1401, TITLE 10, U.S.C.

SECTION 1401, IN PERTINENT PART, FURTHER PROVIDES THAT " HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.' ( ITALICS SUPPLIED.)

THUS, IF COLONEL GARDNER IS OTHERWISE ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER ANY ONE OF THE OTHER THREE FORMULAS PRESCRIBED IN SECTION 1401 OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID RETIRED PAY UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM. IT DOES NOT APPEAR THAT COLONEL GARDNER WOULD BE ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER FORMULA 1, 3 OR 4, AS PRESCRIBED IN SECTION 1401. HOWEVER, IT WOULD APPEAR, ON THE BASIS OF THE MILITARY SERVICE SET FORTH IN YOUR LETTER OF FEBRUARY 20, 1958, THAT COLONEL GARDNER OTHERWISE QUALIFIES FOR RETIREMENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3911, TITLE 10, U.S. CODE, 70A STAT. 224.

SECTION 3911 PROVIDES THAT " THE SECRETARY OF THE ARMY MAY, UPON THE OFFICER'S REQUEST, RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE ARMY WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THIS TITLE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER.' AN OFFICER WHO MEETS THE SERVICE REQUIREMENTS SPECIFIED IN SECTION 3926, TITLE 10, U.S. CODE, 70A STAT. 228, AND WHO IS RETIRED ON THE AUTHORITY OF SECTION 3911 IS ENTITLED TO RECEIVE MONTHLY RETIRED PAY COMPUTED AS PRESCRIBED IN FORMULA (B) CONTAINED IN SECTION 3991, TITLE 10, U.S. CODE, 70A STAT. 232 (ORIGINALLY FORMULA (C/--- SEE SECTION 101 (23), ACT OF AUGUST 21, 1957, 71 STAT. 380). UNDER CURRENT FORMULA (B), SECTION 3991, COLONEL GARDNER WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY IN THE FOLLOWING MANNER: THE MONTHLY BASIC PAY OF HIS RETIRED GRADE (COLONEL) X 2 1/2 PERCENT X THE NUMBER OF YEARS OF SERVICE CREDITED TO HIM IN DETERMINING THE RATE OF HIS BASIC PAY. SINCE COLONEL GARDNER IS ENTITLED TO INCLUDE THE NUMBER OF YEARS OF CONSTRUCTIVE SERVICE CREDITABLE TO HIM BY VIRTUE OF SECTION 2 OF THE ACT OF APRIL 30, 1956, FOR THE PURPOSE OF COMPUTING HIS MONTHLY BASIC PAY, IT FOLLOWS THAT SUCH CONSTRUCTIVE SERVICE ALSO MAY BE INCLUDED IN DETERMINING THE PROPER MULTIPLIER FACTOR IN HIS CASE UNDER THE AUTHORITY OF CURRENT FORMULA (B), SECTION 3991, TITLE 10, U.S.C.

THEREFORE, IN VIEW OF THE EXPRESS PROVISIONS OF SECTION 1401, TITLE 10, U.S. CODE, COLONEL GARDNER IS ENTITLED TO BE PAID RETIRED PAY UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM, THAT IS, IN ACCORDANCE WITH THE PROVISIONS OF CURRENT FORMULA (B) AS CONTAINED IN SECTION 3991, TITLE 10, U.S.C.

ACCORDINGLY, PAYMENT IS AUTHORIZED, IF OTHERWISE CORRECT, ON THE VOUCHER STATED IN FAVOR OF COLONEL GARDNER. A SPECIFIC REFERENCE TO THIS DECISION SHOULD BE NOTED ON THE VOUCHER, WHICH IS RETURNED HEREWITH.