B-136895, AUGUST 28, 1958, 38 COMP. GEN. 170

B-136895: Aug 28, 1958

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FOR OFFICERS WHO ARE ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT. ARE APPLICABLE TO ALL QUALIFIED RETIRED OFFICERS WITHOUT REGARD TO THE BASIS ON WHICH THEY WERE ORIGINALLY RETIRED OR ON THE BASIS ON WHICH THEIR RETIRED PAY WAS COMPUTED. WAS IN RECEIPT OF RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY OF A LIEUTENANT GENERAL WITH OVER 30 YEARS OF SERVICE AND WHO SERVED FOR MORE THAN 180 DAYS IS ENTITLED ON JUNE 1. REQUESTS A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ATTACHED VOUCHER FOR $79.50 IN FAVOR OF LIEUTENANT GENERAL LLOYD R. WAS RETIRED MARCH 31. SINCE HE HELD THE TEMPORARY RANK OF LIEUTENANT GENERAL HE WAS ENTITLED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 29.

B-136895, AUGUST 28, 1958, 38 COMP. GEN. 170

MILITARY PERSONNEL - RETIRED PAY - ARMED FORCES SALARY INCREASE ACT - LIEUTENANT GENERALS THE INCREASED RETIRED PAY BENEFITS PROVIDED IN SECTION 7 (D) OF THE ACT OF MAY 20, 1958, FOR OFFICERS WHO ARE ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT--- JUNE 1, 1958--- AND WHO BEFORE THAT DATE SERVED FOR AT LEAST 180 DAYS IN THE GRADE OF LIEUTENANT GENERAL- -- ARE APPLICABLE TO ALL QUALIFIED RETIRED OFFICERS WITHOUT REGARD TO THE BASIS ON WHICH THEY WERE ORIGINALLY RETIRED OR ON THE BASIS ON WHICH THEIR RETIRED PAY WAS COMPUTED; THEREFORE, A RETIRED ARMY OFFICER WHO ON MAY 31, 1958, WAS IN RECEIPT OF RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY OF A LIEUTENANT GENERAL WITH OVER 30 YEARS OF SERVICE AND WHO SERVED FOR MORE THAN 180 DAYS IS ENTITLED ON JUNE 1, 1958, TO RETIRED PAY COMPUTED UNDER SECTION 7 (D).

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

YOUR LETTER OF JUNE 23, 1958, FINCS 201 FREDENDALL, LLOYD R., 102 197, FORWARDED UNDER D.O. NO. 358 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ATTACHED VOUCHER FOR $79.50 IN FAVOR OF LIEUTENANT GENERAL LLOYD R. FREDENDALL, REPRESENTING ADDITIONAL RETIRED PAY FOR THE PERIOD JUNE 1 THROUGH JUNE 30, 1958.

YOU REPORT THAT GENERAL FREDENDALL, THEN A PERMANENT BRIGADIER GENERAL, WAS RETIRED MARCH 31, 1946, FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF SECTION 1251 OF THE REVISED STATUTES (10 U.S.C. 933, 1946 USED.). AT THE TIME OF HIS RETIREMENT HE HAD COMPLETED OVER 40 YEARS OF SERVICE. SINCE HE HELD THE TEMPORARY RANK OF LIEUTENANT GENERAL HE WAS ENTITLED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, 36 U.S.C. 11, TO RETIRED PAY COMPUTED ON THE BASE AND LONGEVITY PAY AUTHORIZED FOR A LIEUTENANT GENERAL WITH HIS LENGTH OF SERVICE. APPEARS THAT HE MADE NO ELECTION UNDER THE PROVISIONS OF SECTION 411 OR 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823 AND 829, 37 U.S.C. 281 AND 311, TO HAVE HIS RETIRED PAY COMPUTED UNDER THAT ACT, AND THAT ON MAY 31, 1958, HE WAS RECEIVING RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY AUTHORIZED FOR A LIEUTENANT GENERAL WITH OVER 30 YEARS OF SERVICE AS INCREASED BY THE ACTS OF JUNE 29, 1946, 60 STAT. 343, 37 U.S.C. 101 (1946 USED.), MAY 19, 1952, 66 STAT. 79, 37 U.S.C. 232, AND MARCH 31, 1955, 69 STAT. 18, 37 U.S.C. 232. THE 75 PERCENT RATE WAS COMPUTED WITHOUT REFERENCE TO HIS PERCENTAGE OF DISABILITY OR TO ANY PERCENTAGE MULTIPLE BASED ON HIS YEARS OF SERVICE.

SECTION 4 (A) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, 10 U.S.C. 1401 NOTE, WITH CERTAIN EXCEPTIONS, GRANTS TO MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RETIRED PAY ON MAY 31, 1958, A 6 PERCENT INCREASE IN RETIRED PAY EFFECTIVE JUNE 1, 1958. YOUR STATEMENT, THAT GENERAL FREDENDALL'S RETIRED PAY HAS BEEN INCREASED BY 6 PERCENTUM EFFECTIVE JUNE 1, 1958, UNDER THAT ACT, INDICATES THAT HE HAS RECEIVED THE INCREASE AUTHORIZED UNDER SECTION 4 (A) OF THE ACT. AS AN EXCEPTION TO SECTION 4 (A), HOWEVER, SECTION 7 (C) OF THAT ACT, 72 STAT. 130, 37 U.S.C. NOTE, PROVIDES THAT:

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 LIEUTENANT GENERAL OR VICE 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 $100, 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 $100, PLUS 6 PERCENTUM OF THE PRODUCT THEREOF. ( ITALICS SUPPLIED.)

SUCH SECTION APPLIES TO "ANY OFFICER ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE" OF THE ACT OF MAY 20, 1958, AND WHO BEFORE THAT DATE HAD SERVED FOR AT LEAST 180 DAYS IN THE GRADE OF LIEUTENANT GENERAL. NO DISTINCTION IS MADE AMONG SUCH OFFICERS ON ACCOUNT OF THE BASIS ON WHICH THEY WERE ORIGINALLY RETIRED, OR ON ACCOUNT OF THE BASIS ON WHICH THEIR RETIRED PAY WAS COMPUTED, AND THE LEGISLATIVE HISTORY OF THAT SECTION SHOWS CLEARLY THAT ITS PROVISIONS ARE TO APPLY IN THE CASE OF ALL QUALIFIED RETIRED OFFICERS. SEE PAGES 14 AND 15 OF THE HOUSE OF REPRESENTATIVES REPORT NO. 1701, 85TH CONGRESS, ON H.R. 11470 WHICH BECAME THE ACT OF MAY 20, 1958.

SINCE GENERAL FREDENDALL WAS ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND IT IS REPORTED THAT HE SERVED FOR MORE THAN 180 DAYS IN THE GRADE OF LIEUTENANT GENERAL BEFORE THAT DATE, HE IS ENTITLED EFFECTIVE JUNE 1, 1958, TO RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7 (C).

IT APPEARS THAT THE PAYMENT PROPOSED ON THE SUBMITTED VOUCHER DOES NOT REPRESENT THE CORRECT DIFFERENCE BETWEEN THE RETIRED PAY WHICH YOU INDICATE WAS RECEIVED BY GENERAL FREDENDALL FOR THE MONTH OF JUNE 1958 AND THE RETIRED PAY TO WHICH HE IS ENTITLED FOR THAT MONTH UNDER THE PROVISIONS OF SECTION 7 (C). IF SUCH VOUCHER, WHICH WE ARE RETURNING TO YOU, IS AMENDED TO STATE THE CORRECT DIFFERENCE, PAYMENT THEREON IS AUTHORIZED IF OTHERWISE CORRECT.