B-136878, AUGUST 28, 1958, 38 COMP. GEN. 167

B-136878, AUGUST 28, 1958, 38 COMP. GEN. 167

MILITARY PERSONNEL - RETIREMENT - EFFECTIVE DATE - ARMED FORCES SALARY INCREASE ACT AN ARMY OFFICER WHO WAS ISSUED RETIREMENT ORDERS PURPORTING TO TAKE EFFECT ON MAY 31, 1958, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A, WHICH PRECLUDES PLACEMENT ON THE RETIRED LIST PRIOR TO JUNE 1, 1958, IS REGARDED AS CONTINUING IN AN ACTIVE-DUTY STATUS THROUGH MAY 31, 1958, AND AS BEING RETIRED ON JUNE 1, 1958--- THE EFFECTIVE DATE OF THE ARMED FORCES SALARY INCREASE ACT OF MAY 20, 1958; THEREFORE, RETIRED PAY IS FOR COMPUTATION UNDER SECTION 4 (B) OF THE ACT, APPLICABLE TO MEMBERS RETIRED ON JUNE 1, 1958, RATHER THAN UNDER SECTION 7 (B) APPLICABLE TO MEMBERS RETIRED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE SALARY INCREASE ACT.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, AUGUST 28, 1958:

YOUR LETTER OF JULY 7, 1958, FINCS-B 201 VAN FLEET, JAMES A. O3 847, FORWARDED UNDER D.O. NO. 360 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY AN ATTACHED VOUCHER, TOTALING $260.26, IN THE CASE OF GENERAL JAMES A. VAN FLEET, REPRESENTING ADJUSTMENT IN RETIRED PAY FOR THE PERIOD JUNE 1 THROUGH JUNE 30, 1958.

IT APPEARS THAT ON MARCH 31, 1953, GENERAL VAN FLEET, THEN HAVING COMPLETED OVER 41 YEARS OF SERVICE, WAS RETIRED IN THE GRADE OF MAJOR GENERAL UNDER THE PROVISIONS OF SECTION 514 (D) (1) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 903, 904, 10 U.S.C. 941A (D) (1). SINCE HE HAD SERVED AS A GENERAL DURING WORLD WAR II HE WAS ADVANCED TO THE GRADE OF GENERAL ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 504 (D) OF THAT ACT, 61 STAT. 888, 10 U.S.C. 506B (D). THIS ADVANCEMENT, HOWEVER, DID NOT ENTITLE HIM TO RETIRED PAY BASED ON THE ACTIVE-DUTY PAY AUTHORIZED FOR A GENERAL. SUBSEQUENTLY GENERAL VAN FLEET'S MILITARY RECORDS WERE CORRECTED UNDER THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A, TO SHOW THAT HE HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 31, 1953, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816 AND 823, 37 U.S.C. 272 AND 279, WITH DISABILITY RATED AT 100 PERCENT. BY VIRTUE OF THE CORRECTION OF HIS RECORDS GENERAL VAN FLEET WAS ENTITLED TO TEMPORARY DISABILITY RETIRED PAY BASED UPON THE ACTIVE-DUTY PAY OF THE HIGHEST GRADE HELD BY HIM ON THE ACTIVE LIST. HE WAS NOT PERMANENTLY RETIRED FOR DISABILITY, HOWEVER, BUT, UNDER THE PROVISIONS OF 10 U.S.C. 1211, WAS REAPPOINTED EFFECTIVE APRIL 30, 1958, TO THE ACTIVE LIST OF THE REGULAR ARMY IN THE GRADE OF MAJOR GENERAL TO RANK FROM AUGUST 1, 1944. BY PARAGRAPH 1, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 96, DATED MAY 13, 1958, HE WAS RETIRED EFFECTIVE MAY 31, 1958, IN THE GRADE OF GENERAL UNDER THE PROVISIONS OF 10 U.S.C. 3885, PROVIDING FOR THE RETIREMENT OF MAJOR GENERALS UPON REACHING 62 YEARS OF AGE, AND 10 U.S.C. 3962A, PROVIDING THAT UPON RETIREMENT CERTAIN OFFICERS OF THE REGULAR ARMY MAY BE RETIRED--- BY AND WITH THE ADVICE AND CONSENT OF THE SENATE--- IN THE HIGHEST GRADE HELD BY THEM AT ANY TIME ON THE ACTIVE LIST. SUCH ORDERS ALSO RELIEVED HIM FROM ACTIVE DUTY ON MAY 31, 1958. IN VIEW OF THE AMENDMENT MADE TO FOOTNOTE 1 OF THE TABLE IN 10 U.S.C. 3991 BY SECTION 6 (1) OF PUBLIC LAW 85-422, APPROVED MAY 20, 1958, 72 STAT. 129, GENERAL VAN FLEET IS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIC PAY AUTHORIZED FOR A GENERAL, IT BEING UNDERSTOOD THAT THE SENATE HAS CONSENTED TO HIS RETIREMENT IN THAT GRADE.

THE ACT OF MAY 20, 1958 ( PUBLIC LAW 85-422), 72 STAT. 122, 37 U.S.C. 232, AMENDED THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, EFFECTIVE JUNE 1, 1958, TO ADJUST THE METHOD OF COMPUTING THE PAY OF MEMBERS OF THE UNIFORMED SERVICES. THE OFFICER GRADE STRUCTURE WAS INCREASED BY TWO NEW GRADES, O-9 AND O-10, AND LIEUTENANT GENERALS AND GENERALS WERE ASSIGNED TO PAY GRADE O-8. THE BASIC PAY OF SUCH OFFICERS WAS SUBSTANTIALLY INCREASED. PROVISION ALSO WAS MADE FOR INCREASES IN RETIRED PAY TO MEMBERS PREVIOUSLY RETIRED. WITH RESPECT TO THE MATTER HERE INVOLVED, SECTION 4 (B) OF THE ACT OF MAY 20, 1958, 10 U.S.C. 1401 NOTE, PROVIDES, IN MATERIAL PART, THAT:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A MEMBER OF A UNIFORMED SERVICE RETIRED UNDER ANY PROVISION OF LAW * * * ON THE EFFECTIVE DATE OF THIS ACT SHALL HAVE HIS RETIRED PAY * * * COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THIS ACT, OR ON THE RATES OF BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949 ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS 6 PERCENTUM OF THAT PAY, WHICHEVER IS GREATER.

AND SECTION 7 (B) OF THE LAW, 37 U.S.C. 232 NOTE, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW EXCEPT SUBSECTION (A) OF THIS SECTION AND SECTIONS 3 (B) AND 6 (5) OF THIS ACT, THE RETIRED PAY OF ANY OFFICER ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT WHO SERVED ON ACTIVE DUTY BEFORE THAT DATE IN THE GRADE OF GENERAL OR ADMIRAL FOR A PERIOD OF AT LEAST 180 DAYS, SHALL UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW, BE RECOMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF PAY GRADE O-8 FOR THE CUMULATIVE YEARS OF SERVICE CREDITABLE TO HIM ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS $200, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING HIS RETIRED PAY, MULTIPLIED BY 2 1/2 PERCENTUM, BUT NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH MONTHLY BASIC PAY AS INCREASED BY $200, PLUS 6 PERCENTUM OF THE PRODUCT THEREOF.

IN VIEW OF THE CORRECTION OF GENERAL VAN FLEET'S MILITARY RECORDS AND HIS REAPPOINTMENT TO THE ACTIVE LIST OF THE REGULAR ARMY ON APRIL 30, 1958, IT IS OUR VIEW THAT HIS RETIRED PAY RIGHTS UNDER THE FOREGOING PROVISIONS ARE FOR DETERMINATION ON THE BASIS OF HIS RETIREMENT ORDERS OF MAY 13, 1958, WITHOUT REGARD TO THE RETIREMENT ACTIONS WHICH PREVIOUSLY WERE TAKEN IN HIS CASE.

SECTION 3885 OF TITLE 10, UNDER WHICH GENERAL VAN FLEET'S RETIREMENT OF MAY 31, 1958, WAS EFFECTED, PROVIDES:

UNLESS RETIRED OR SEPARATED AT AN EARLIER DATE OR UNLESS RETAINED UNDER SECTION 3923 (2) OF THIS TITLE, EACH COMMISSIONED OFFICER WHOSE REGULAR GRADE IS MAJOR GENERAL SHALL BE RETIRED WHEN HE BECOMES 62 YEARS OF AGE, EXCEPT AS PROVIDED BY SECTION 47A OF TITLE 5.

SECTION 47A OF TITLE 5 OF THE U.S.C. IS A CODIFICATION OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, PROVIDING THAT RETIREMENTS ARE TO BE EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH A RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

THUS, WHILE GENERAL VAN FLEET'S RETIREMENT ORDERS PURPORT TO EFFECT HIS RETIREMENT ON MAY 31, 1958, HIS RETIREMENT IS SUBJECT TO THE UNIFORM RETIREMENT DATE ACT AND THEREFORE HE COULD NOT LEGALLY BE PLACED ON THE RETIRED LIST PRIOR TO JUNE 1, 1958. COMPARE 35 COMP. GEN. 633, ANSWER TO QUESTION "D.' IN THIS RESPECT IT MAY BE NOTED THAT SINCE THE ORDERS OF MAY 13, 1958, EFFECTED HIS RELEASE FROM ACTIVE DUTY ON MAY 31, 1958, SUCH ORDERS APPARENTLY CONTEMPLATED THAT HIS ACTIVE DUTY STATUS SHOULD CONTINUE THROUGH THAT DAY. HENCE, GENERAL VAN FLEET IS REGARDED AS HAVING BEEN PLACED ON THE RETIRED LIST ON JUNE 1, 1958, AND, THEREFORE, RETIRED "ON THE EFFECTIVE DATE" OF THE ACT OF MAY 20, 1958. IT FOLLOWS THAT HIS RETIRED PAY IS FOR COMPUTATION UNDER THE PROVISIONS OF SECTION 4 (B) OF THAT ACT AND NOT UNDER THE PROVISIONS OF SECTION 7 (B).

IT IS ASSUMED THAT GENERAL VAN FLEET HAS BEEN PAID ON THE BASIS PRESCRIBED IN SECTION 7 (B). ON THAT BASIS, IT APPEARS THAT THE ADDITIONAL RETIRED PAY PAYMENT OF $260.29 FOR JUNE 1958, AS PROPOSED ON THE SUBMITTED VOUCHER, PLUS THE RETIRED PAY ALREADY RECEIVED BY HIM FOR THAT MONTH WILL RESULT IN THE PAYMENT TO HIM OF RETIRED PAY IN THE PROPER AMOUNT AUTHORIZED FOR A GENERAL WITH HIS LENGTH OF SERVICE COMPUTED ON THE BASIS OF THE BASIC PAY RATES PROVIDED BY THE ACT OF MAY 20, 1958, FOR PAY GRADE O-10.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH WE ARE RETURNING TO YOU, IS AUTHORIZED IF OTHERWISE CORRECT.