B-136124, AUGUST 26, 1958, 38 COMP. GEN. 159

B-136124, AUGUST 26, 1958, 38 COMP. GEN. 159

MILITARY PERSONNEL - RETIRED PAY - RETENTION AFTER QUALIFICATION FOR RETIRED PAY - SERVICE CREDITS - COMPUTATION PURPOSES ACTIVE SERVICE PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES WHO ARE RETAINED IN THE SERVICE AFTER MEETING THE ELIGIBILITY REQUIREMENTS FOR RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 IS CREDITABLE FOR SERVICE PURPOSES AS WELL AS FOR INCLUSION FOR BASIC PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY UNDER 10 U.S.C. 676.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, AUGUST 26, 1958:

ON MAY 9, 1958, THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, FORWARDED YOUR LETTER OF MARCH 31, 1958, REQUESTING AN ADVANCE DECISION ON TWO QUESTIONS RELATING TO THE MATTER OF WHICH OF TWO PROVISIONS OF LAW GOVERNS THE COMPUTATION OF THE RETIRED PAY OF COMMANDER PAAL TORLAND, MEDICAL CORPS, USNR, RETIRED, AFTER HIS RELEASE TO INACTIVE DUTY SUBSEQUENT TO HIS RETIREMENT. THE MILITARY PAY AND ALLOWANCE COMMITTEE HAS ASSIGNED NO. 342 TO THIS REQUEST FOR DECISION.

YOU REPORT THAT COMMANDER TORLAND WAS TRANSFERRED TO THE RETIRED LIST ON AUGUST 1, 1955, IN THE RANK OF COMMANDER, WITH 6,022 POINTS UPON WHICH TO COMPUTE THE RETIRED PAY TO WHICH HE WAS ENTITLED UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036. THE DATE OF HIS RETIREMENT, HE HAD COMPLETED 21 YEARS, 2 MONTHS, AND 8 DAYS' SERVICE FOR BASIC PAY PURPOSES. HE WAS RETAINED ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT AND WAS RELEASED TO INACTIVE DUTY JUNE 30, 1957, HIS TOTAL SERVICE ON THAT DATE BEING 23 YEARS, 1 MONTH, AND 8 DAYS.

THE QUESTIONS ON WHICH A DECISION IS REQUESTED ARE AS FOLLOWS:

A. SHOULD COMMANDER TORLAND'S RETIRED PAY BE COMPUTED UNDER SECTION 303 OF REFERENCE (D) EFFECTIVE 1 JULY 1957? IF AFFIRMATIVE, IS HE ENTITLED, BY VIRTUE OF SECTION 302 (E) OF REFERENCE (D), TO ADDITIONAL POINTS FOR HIS ACTIVE SERVICE AFTER RETIREMENT AND TO INCLUDE SUCH SERVICE FOR BASIC PAY PURPOSES IN COMPUTING HIS RETIRED PAY UNDER THE AFOREMENTIONED SECTION 303?

B. IF YOUR REPLY TO THE FIRST QUESTION IS IN THE NEGATIVE, SHOULD COMMANDER TORLAND'S RETIRED PAY BE COMPUTED, UNDER SECTION 516 OF REFERENCE (C) EFFECTIVE 1 JULY 1957? IF AFFIRMATIVE, SHOULD HIS ACTIVE SERVICE BE DETERMINED BY ADDING POINTS CREDITABLE ON DATE OF RETIREMENT TO POINTS CREDITABLE FOR HIS ACTIVE DUTY SUBSEQUENT TO RETIREMENT, DIVIDING THE SUM BY 300 DAYS, AND COUNTING ANY FRACTION OF 50 PERCENT OR MORE APPEARING IN THE QUOTIENT AS A FULL YEAR OR DISREGARDING ANY FRACTION LESS THAN 50 PERCENT APPEARING IN THE QUOTIENT?

REFERENCE "/C)" IS THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 NOTE, AND REFERENCE "/D)" IS THE ACT OF JUNE 29, 1948, 10 U.S.C. 1036.

SECTION 302 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, NOW CODIFIED IN 10 U.S.C. 676, PROVIDES AS FOLLOWS:

ANY PERSON WHO, UPON ATTAINING THE AGE OF SIXTY YEARS, HAS QUALIFIED FOR RETIREMENT WITH PAY PURSUANT TO THIS TITLE, MAY, WITH HIS CONSENT AND BY ORDER OF THE COGNIZANT SECRETARY, BE RETAINED ON DUTY TO PERFORM FEDERAL SERVICE. ANY PERSON SO RETAINED SHALL BE CREDITED WITH EQUIVALENT PERIODS OF FEDERAL SERVICE FOR THE PERFORMANCE OF SUCH DUTIES.

A SYSTEM OF RETIREMENT PAY WAS ESTABLISHED BY TITLE III OF THE 1948 ACT FOR CERTAIN MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES WHICH WAS RADICALLY DIFFERENT FROM THAT PROVIDED FOR MEMBERS GENERALLY, NOT ONLY WITH RESPECT TO QUALIFICATION FOR RETIRED PAY, BUT AS TO THE METHOD OF COMPUTING SUCH PAY AS WELL. SUCH COMPUTATION IS BASED ON YEARS OF SATISFACTORY " FEDERAL SERVICE," MEMBERSHIP IN A RESERVE COMPONENT AND RESERVE AND ACTIVE SERVICE BEING TRANSLATED INTO EQUIVALENT YEARS OF SERVICE UNDER A POINT SYSTEM. THE PROVISIONS OF SECTION 302 (E) RELATING TO THE RETENTION ON DUTY OF A PERSON WHO "HAS QUALIFIED" FOR RETIREMENT WITH PAY UNDER THAT TITLE AND THE CREDITING OF EQUIVALENT PERIODS OF " FEDERAL SERVICE" INDICATE A CONGRESSIONAL INTENT THAT THE SAME METHOD OF COMPUTING RETIRED PAY SHOULD APPLY TO PERIODS OF SERVICE BOTH BEFORE AND AFTER A PERSON MEETS THE ELIGIBILITY REQUIREMENTS OF THAT ACT. ALSO, SINCE BOTH A PERSON HAS THE ELIGIBILITY QUALIFICATIONS FOR SUCH RETIREMENT WITH PAY AND ONE WHO ACTUALLY IS GRANTED RETIRED PAY, WE VIEW BOTH PERSONS AS BEING COVERED BY THE PROVISIONS OF SECTION 302 (E) IF THEY ARE RETAINED ON ACTIVE DUTY WITH THEIR CONSENT AFTER SO QUALIFYING.

SECTION 615 OF THE CAREER COMPENSATION ACT OF 1949, AS CODIFIED IN 10 U.S.C. 1402 (A), AUTHORIZES THE RECOMPUTATION OF RETIRED PAY OF A "MEMBER OF AN ARMED FORCE WHO HAS BEEN RETIRED * * * AND WHO THEREAFTER SERVES ON ACTIVE DUTY," BY THE METHOD THERE PRESCRIBED. WHILE "FORMER BERS," AS WELL AS MEMBERS OF THE UNIFORMED SERVICES, WERE SPECIFICALLY MENTIONED IN SECTION 516 AS ORIGINALLY ENACTED, AND SUCH LANGUAGE APPEARS BROAD ENOUGH TO INCLUDE PERSONS GRANTED RETIRED PAY UNDER TITLE III OF THE 1948 ACT, IT IS NOT BELIEVED THAT THE CONGRESS INTENDED TO INCLUDE THEM WITHIN THE COVERAGE OF SECTION 516, SINCE SECTION 302 (E) OF THE 1948 ACT WAS NOT EXPRESSLY REPEALED BY THE 1949 ACT. ANY THOUGHT OF A REPEAL BY IMPLICATION WOULD APPEAR TO BE SET AT REST BY THE LANGUAGE OF SECTION 512 OF THE LATTER ACT, 37 U.S.C. 312, WHICH PROVIDED THAT A PERSON GRANTED RETIRED PAY UNDER TITLE III "SHALL HAVE HIS RETIRED PAY COMPUTED AS AUTHORIZED BY THE AFORESAID TITLE III ON THE BASIS OF THE PAY PROVIDED FOR IN THIS ACT.' THE REPEAL OF SECTION 512 BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 680, IS NOT REGARDED AS SIGNIFICANT AS FAR AS THE PROBLEM HERE INVOLVED IS CONCERNED, SINCE THE DECISION TO OMIT THAT SECTION FROM THE NEW TITLE 10, U.S. CODE, AS "EXECUTED AND UNNECESSARY" (SEE PAGE 1102, REPORT NO. 970, COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, ON THE THEN PROPOSED LEGISLATION) RELATED TO THE RATES, RATHER THAN THE METHOD, OF COMPUTING RETIRED PAY.

AS TO THE MATTER OF WHETHER COMMANDER TORLAND'S ACTIVE SERVICE AFTER RETIREMENT MAY BE INCLUDED FOR BASIC PAY PURPOSES IN COMPUTING HIS RETIRED PAY, 10 U.S.C. 676 SPECIFICALLY PROVIDES THAT SUCH SERVICE FOLLOWING RETENTION SHALL BE CREDITED "FOR ALL PURPOSES.'

THERE HAS NOT BEEN OVERLOOKED THE CASE OF YARNALL V. UNITES STATES, 131 C.1CLS. 111, IN WHICH IT WAS HELD THAT A PERSON WHO WAS GRANTED RETIRED PAY UNDER TITLE III OF THE 1948 ACT, WAS "RETIRED" WITHIN THE MEANING OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, 34 U.S.C. 410N, AND THUS WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED BY THE THREE-FOURTHS PAY PROVISION PRESCRIBED IN THE LATTER ACT FOR A RETIRED OFFICER SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN COMBAT. IT SHOULD BE REMEMBERED THAT WHILE THE MATTER OF THE EFFECT OF DUTY FOLLOWING RETENTION AFTER QUALIFYING FOR TITLE III RETIRED PAY WAS EXPRESSLY COVERED IN THE 1948 ACT, THAT ACT CONTAINED NO PROVISION WHICH DEALT WITH THE RIGHTS OF PERSONS WHO WERE COMMENDED FOR THE PERFORMANCE OF DUTY IN COMBAT. ALSO, NO PROVISION COMPARABLE TO SECTION 512 OF THE 1949 ACT WAS APPLICABLE IN THE YARNALL CASE.

ACCORDINGLY, BOTH PARTS OF QUESTION A ARE ANSWERED IN THE AFFIRMATIVE AND NO ANSWER TO QUESTION B IS REQUIRED.