B-137806, JANUARY 8, 1959, 38 COMP. GEN. 485

B-137806: Jan 8, 1959

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IS DISCHARGED FROM A RETIRED ENLISTED STATUS AND RETURNED AS AN OFFICER UNDER 10 U.S.C. 8911 ON AUGUST 31. IS NOT PRECLUDED BY REASON OF CONCURRENT ENLISTED AND COMMISSIONED STATUS IN THE RESERVES FROM HAVING THE CONCURRENT RESERVE COMMISSIONED SERVICE CREDITED IN DETERMINATION OF THE PERCENTAGE MULTIPLE FOR RETIRED PAY PURPOSES AND. THE MEMBER IS CONSIDERED AS HAVING BECOME ENTITLED TO RETIRED PAY BEFORE JUNE 1. SO THAT RETIRED PAY IS FOR COMPUTATION AT THE FORMER RATES IN EFFECT ON MAY 31. HEADQUARTERS UNITED STATES AIR FORCE FORWARDED YOUR LETTER OF OCTOBER 3 REQUESTING A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER IN FAVOR OF COLONEL DONALD K. YOUR REQUEST FOR DECISION WAS ASSIGNED AIR FORCE REQUEST NO. 376.

B-137806, JANUARY 8, 1959, 38 COMP. GEN. 485

MILITARY PERSONNEL - RETIRED PAY - RETIRED ENLISTED MEMBER RETIRING AS OFFICER - SERVICE CREDITS - PAY RATE A MEMBER OF THE UNIFORMED SERVICES WHO, UPON APPLICATION, IS DISCHARGED FROM A RETIRED ENLISTED STATUS AND RETURNED AS AN OFFICER UNDER 10 U.S.C. 8911 ON AUGUST 31, 1958, IS NOT PRECLUDED BY REASON OF CONCURRENT ENLISTED AND COMMISSIONED STATUS IN THE RESERVES FROM HAVING THE CONCURRENT RESERVE COMMISSIONED SERVICE CREDITED IN DETERMINATION OF THE PERCENTAGE MULTIPLE FOR RETIRED PAY PURPOSES AND, WITH RESPECT TO THE BASIC PAY RATES, THE MEMBER IS CONSIDERED AS HAVING BECOME ENTITLED TO RETIRED PAY BEFORE JUNE 1, 1958--- THE EFFECTIVE DATE OF THE MILITARY PAY INCREASE ACT OF MAY 20, 1958--- AND AFTER THAT DATE AS TRANSFERRED TO A RETIRED LIST IN A HIGHER GRADE UNDER SECTION 3 (C), 37 U.S.C. 232 NOTE, SO THAT RETIRED PAY IS FOR COMPUTATION AT THE FORMER RATES IN EFFECT ON MAY 31, 1958.

TO COLONEL R. P. MUHLBACH, UNITED STATES AIR FORCE, JANUARY 8, 1959:

BY LETTER OF OCTOBER 27, 1958, HEADQUARTERS UNITED STATES AIR FORCE FORWARDED YOUR LETTER OF OCTOBER 3 REQUESTING A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED VOUCHER IN FAVOR OF COLONEL DONALD K. FARGO, USAF, RETIRED. THE VOUCHER PROPOSES PAYMENT TO COLONEL FARGO OF THE DIFFERENCE IN RETIRED PAY OF A COLONEL BASED ON 72 1/2 PERCENT OF THE BASIC PAY OF A COLONEL WITH OVER 29 YEARS OF SERVICE AT THE PAY RATES EFFECTIVE JUNE 1, 1958, AND 60 PERCENT OF SUCH PAY WITH OVER 23 YEARS OF SERVICE AT THE PAY RATES IN EFFECT PRIOR TO JUNE 1, 1958, PLUS 6 PERCENT. YOUR REQUEST FOR DECISION WAS ASSIGNED AIR FORCE REQUEST NO. 376.

IT APPEARS FROM THE INFORMATION FURNISHED THAT AFTER ENLISTED SERVICE IN THE ARMY, NAVY AND ENLISTED RESERVE CORPS, COLONEL FARGO, ON APRIL 9, 1935, ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT IN THE AIR CORPS RESERVE. FOLLOWING PROMOTIONS IN VARIOUS NONREGULAR COMPONENTS, HE WAS GIVEN AN APPOINTMENT AS COLONEL IN THE OFFICERS' RESERVE CORPS ON JUNE 27, 1947, WHICH APPOINTMENT TERMINATED APRIL 1, 1953. FROM JULY 1, 1949, TO MARCH 31, 1953, HE ALSO WAS ENLISTED IN THE REGULAR AIR FORCE. ON JUNE 15, 1953, HE ACCEPTED AN INDEFINITE TERM APPOINTMENT AS COLONEL, UNITED STATES AIR FORCE RESERVE.

YOU SAY THAT COLONEL FARGO WAS RETIRED AS A MASTER SERGEANT ON MARCH 31, 1953, UNDER AUTHORITY OF PUBLIC LAW 190, 79TH CONGRESS, AS AMENDED (NOW CODIFIED INTO SECTION 8914, TITLE 10 OF THE UNITED STATES CODE) AFTER COMPLETING 20 YEARS, 3 MONTHS AND 24 DAYS OF ACTIVE SERVICE AND 23 YEARS, 8 MONTHS AND 11 DAYS OF SERVICE FOR BASIC PAY PURPOSES, AND WAS TRANSFERRED TO THE AIR FORCE RESERVE. AT THAT TIME HE HAD COMPLETED 11 YEARS, 9 MONTHS AND 20 DAYS OF ACTIVE COMMISSIONED SERVICE. HE WAS PAID RETIRED PAY FOR THE PERIOD APRIL 1, 1953, THROUGH AUGUST 31, 1958, IN THE GRADE OF MASTER SERGEANT. BY PARAGRAPH 3 OF AIR FORCE SPECIAL ORDERS C- 432, DATED AUGUST 15, 1958, THE OFFICER, UPON HIS OWN APPLICATION, WAS DISCHARGED EFFECTIVE AUGUST 31, 1958, FROM HIS RETIRED STATUS AND FROM HIS STATUS AS A MASTER SERGEANT, AIR FORCE RESERVE, AND, ON THE SAME DATE WAS RETIRED UNDER THE PROVISIONS OF SECTION 8911, TITLE 10 OF THE UNITED STATES CODE. AS A RESULT OF THIS LAST RETIREMENT, HE HAS BEEN CERTIFIED FOR RETIRED PAY COMMENCING SEPTEMBER 1, 1958, IN THE GRADE OF COLONEL WITH 20 YEARS, 3 MONTHS AND 24 DAYS OF ACTIVE SERVICE AND 29 YEARS, 1 MONTH AND 11 DAYS OF SERVICE FOR BASIC PAY PURPOSES, WHICH INCLUDES 5 YEARS AND 5 MONTHS ON THE RETIRED LIST IN AN INACTIVE STATUS OF MASTER SERGEANT.

UNDER THE PROVISIONS OF SECTION 202 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 233 (A) (2), MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO COUNT FOR BASIC PAY PURPOSES FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS IN ANY OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES, OR IN THE REGULAR ARMY RESERVE, THE ENLISTED RESERVE CORPS, AND THE AIR FORCE RESERVE. SECTION 8991 OF TITLE 10 OF THE U.S.C. PRESCRIBES THE METHOD FOR COMPUTING RETIRED PAY FOR RETIREMENT UNDER SECTION 8911 OF THE CODE AS FOLLOWS: THE AMOUNT OF THE MONTHLY BASIC PAY OF THE MEMBER'S RETIRED GRADE MULTIPLIED BY 2 1/2 PERCENT OF THE YEARS OF SERVICE CREDITED TO HIM IN DETERMINING BASIC PAY. IN DECISION OF MAY 26, 1958, 37 COMP. GEN. 789, WE HELD IN EFFECT THAT, SINCE THE PROVISIONS OF SECTION 202 (B) OF THE 1949 ACT, 37 U.S.C. 233 (B), PROHIBITING THE INCLUSION OF THE INACTIVE RETIRED SERVICE CREDIT AUTHORIZED BY SECTION 202 (A), 37 U.S.C. 233 (A), TO INCREASE RETIRED PAY DO NOT BAR CREDIT OF SUCH SERVICE IN DETERMINING BASIC PAY, A MEMBER OF THE UNIFORMED SERVICES WHO PROPERLY HELD A COMMISSION IN THE AIR FORCE RESERVE CONCURRENTLY WITH A STATUS AS A RETIRED ENLISTED MAN IN THE ENLISTED RESERVE CORPS IS ENTITLED TO COUNT HIS CONCURRENT RESERVE COMMISSIONED SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE FOR PURPOSES OF 10 U.S.C. 8991.

SINCE THE PROVISIONS OF SECTION 224 OF THE ARMED FORCES RESERVE ACT, 66 STAT. 487, 50 U.S.C. 948, AND SECTION 41 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 636, SPECIFICALLY AUTHORIZE INDEFINITE RESERVE COMMISSIONS IN COLONEL FARGO'S SITUATION, WE SEE NO BASIS FOR QUESTIONING THE VALIDITY OF HIS APPOINTMENT AS COLONEL IN THE AIR FORCE RESERVE. CONSEQUENTLY, IF ANY PROHIBITION AGAINST A DUAL STATUS IN THE AIR FORCE RESERVE IS APPLICABLE IN HIS CASE, IT DOES NOT AFFECT HIS COMMISSIONED STATUS OR HIS STATUS AS A RETIRED REGULAR ENLISTED MAN AND, AS HE HAD A CONTINUOUS RESERVE STATUS, EITHER AS AN OFFICER, OR AN ENLISTED MAN, FROM MARCH 31, 1953, TO AUGUST 31, 1958, IN ANY CASE, HE IS ENTITLED UNDER THE PRINCIPLE OF 37 COMP. GEN. 789, TO CREDIT FOR SUCH RESERVE SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE FOR THE PURPOSES OF 10 U.S.C. 8991.

SECTION 3 (C) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, EFFECTIVE JUNE 1, 1958, 37 U.S.C. 232 NOTE, PROVIDES INSOFAR AS HERE MATERIAL, THAT:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW * * * A MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED OR RETAINER PAY BEFORE THE EFFECTIVE DATE OF THIS ACT, AND WHO ON OR AFTER THAT DATE IS ADVANCED ON THE RETIRED LIST TO, OR IS TRANSFERRED TO A RETIRED LIST, IN, A GRADE HIGHER THAN THE GRADE HE HELD ON THE DATE WHEN HE BECAME ENTITLED TO THAT RETIRED OR RETAINER PAY, SHALL HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE 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.

COLONEL FARGO "BECAME ENTITLED TO RETIRED * * * PAY" BEFORE THE EFFECTIVE DATE OF THAT ACT AND AFTER THAT DATE HE WAS "TRANSFERRED TO A RETIRED LIST IN, A GRADE HIGHER THAN THE GRADE HE HELD ON THE DATE WHEN HE BECAME ENTITLED TO THAT RETIRED PAY.' ACCORDINGLY, HIS CASE COMES WITHIN THE PURVIEW OF SECTION 3 (C) AND HIS RETIRED PAY IS FOR COMPUTATION ON THE BASIS OF THE BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949 ON MAY 31, 1958, FOR A COLONEL WITH OVER 29 YEARS OF SERVICE, PLUS 6 PERCENT OF THAT RETIRED PAY, AND NOT ON THE BASIS OF THE RATES EFFECTIVE JUNE 1, 1958.

THE PAYMENT PROPOSED ON THE SUBMITTED VOUCHER DOES NOT REPRESENT THE CORRECT DIFFERENCE IN RETIRED PAY BECAUSE IT IS PREDICTED ON THE PAY RATES IN EFFECT ON JUNE 1, 1958. IF SUCH VOUCHER, WHICH WE ARE RETURNING TO YOU, IS AMENDED TO STATE THE CORRECT DIFFERENCE, PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT.