B-138719, APRIL 23, 1959, 38 COMP. GEN. 715

B-138719, APRIL 23, 1959, 38 COMP. GEN. 715

MILITARY PERSONNEL - PAY - RETIRED - DISABILITY - COMPUTATION - MOST FAVORABLE FORMULA THE TERM "PERSON" IN 10 U.S.C. 1401 WHICH PERMITS PAYMENT OF MILITARY RETIRED PAY ON THE BASIS OF THE MOST FAVORABLE FORMULA APPLIES TO ALL MEMBERS WHETHER ENLISTED OR COMMISSIONED OFFICERS OR WARRANT OFFICERS WHOSE RETIRED PAY IS FOR COMPUTATION UNDER 10 U.S.C. 1401 OR ANY OTHER PROVISION OF LAW. THE FACT THAT AN OFFICER WAS SERVING ON ACTIVE DUTY IN AN ENLISTED STATUS RATHER THAN UNDER HIS INDEFINITE APPOINTMENT AS LIEUTENANT COLONEL IN THE AIR FORCE RESERVE ON THE DATE OF PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST DOES NOT AFFECT HIS RIGHT TO HAVE RETIRED PAY COMPUTED UNDER THE FORMULA MOST FAVORABLE TO HIM.

TO COLONEL R. P. MUHLBACH, UNITED STATES AIR FORCE, APRIL 29, 1959:

BY LETTER OF FEBRUARY 10, 1959, THE DIRECTOR OF ACCOUNTING AND FINANCE FORWARDED YOUR LETTER OF DECEMBER 23, 1958, REQUESTING AN ADVANCE DECISION ( AIR FORCE REQUEST NO. 398), CONCERNING THE PAYMENT PROPOSED ON A VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL ADOLPHE J. GADLER, UNITED STATES AIR FORCE RESERVE, RETIRED, ON HIS CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM AUGUST 20, 1957, TO DECEMBER 31, 1958, INCLUSIVE, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED AT THE RATE OF 67 1/2 PERCENT, AND THAT COMPUTED AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 26 YEARS' SERVICE FOR BASIC PAY PURPOSES.

THE PERTINENT FACTS CONCERNING LIEUTENANT COLONEL GADLER'S RETIRED PAY STATUS ARE AS FOLLOWS:

(1) ON AUGUST 19, 1957, HE WAS RELIEVED FROM ACTIVE DUTY WHILE SERVING IN THE ENLISTED GRADE OF TECHNICAL SERGEANT AND PLACED ON THE PERMANENT DISABILITY RETIRED LIST (IN THE GRADE OF MAJOR), WITH A 50 PER CENTUM PHYSICAL DISABILITY RATING PURSUANT TO THE PROVISIONS OF SECTIONS 1201 AND 1372, TITLE 10, U.S. CODE, 73A STAT. 91, 106, RESPECTIVELY.

(2) AT THE TIME OF HIS RETIREMENT HE HAD COMPLETED 20 YEARS, 3 MONTHS, AND 21 DAYS' ACTIVE SERVICE AND 27 YEARS, 1 MONTH AND 21 DAYS' TOTAL SERVICE FOR BASIC PAY PURPOSES.

(3) ON THE BASIS OF THE HOLDING IN TRACY V. UNITED STATES, 136 C.1CLS. 211, THE CONCLUSION REACHED IN OUR DECISION OF MARCH 7, 1958, 37 COMP. GEN. 585, TO FOLLOW THE RULE OF THE TRACY CASE, HE HAS RECEIVED RETIRED PAY EFFECTIVE FROM AUGUST 20, 1957, COMPUTED AT THE RATE OF 50 PERCENT (REPRESENTING THE PERCENTAGE OF HIS PHYSICAL DISABILITY) OF THE BASIC PAY OF A LIEUTENANT COLONEL (BASED ON HIS INDEFINITE APPOINTMENT IN THAT GRADE IN THE AIR FORCE RESERVE) WITH OVER 26 YEARS' SERVICE FOR BASIC PAY PURPOSES.

THE PLACEMENT OF LIEUTENANT COLONEL GADLER ON THE PERMANENT DISABILITY RETIRED LIST UNDER AUTHORITY OF 10 U.S.C. 1201 ENTITLES HIM TO RECEIVE "RETIRED PAY COMPUTED UNDER SECTION 1401" OF THAT TITLE. ON AUGUST 20, 1957, THE EFFECTIVE DATE OF LIEUTENANT COLONEL GADLER'S RETIREMENT, FORMULA NO. 1 (AS THEN PRESCRIBED IN SECTION 1401, TITLE 10, U.S. CODE, 73A STAT. 106, FOR "A PERSON" ENTITLED TO RECEIVE RETIREMENT PAY UNDER AUTHORITY OF SECTION 1201), PROVIDED THAT THE MONTHLY BASIC PAY OF THE GRADE TO WHICH THE "MEMBER" IS ENTITLED UNDER SECTION 1372 WOULD BE MULTIPLIED, AS THE "MEMBER" ELECTS, BY (1) 2 1/2 PERCENT OF THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1208, OR (2) THE PERCENTAGE OF DISABILITY ON DATE WHEN RETIRED. IT THUS APPEARS THAT LIEUTENANT COLONEL GADLER HAS RECEIVED RETIRED PAY COMPUTED IN ACCORDANCE WITH FORMULA NO. 1, THAT IS, AT THE RATE OF 50 PER CENTUM (HIS DISABILITY RATING) OF THE MONTHLY BASIC PAY OF A LIEUTENANT COLONEL (WITH OVER 26-YEARS OF SERVICE), HIS PERMANENT GRADE IN THE AIR FORCE RESERVE.

IT WAS POINTED OUT IN OUR DECISION OF MAY 27, 1958, B-135436, 37 COMP. GEN. 794, THAT SECTION 1401 IN PERTINENT PART ALSO PROVIDES "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.) IN THAT CASE, THE COMMISSIONED OFFICER THERE CONCERNED ( COLONEL GARDNER) HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER AUTHORITY OF 10 U.S.C. 1202, 70 A STAT. 92, AND HENCE WAS ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER FORMULA NO. 2 IN SECTION 1401. IT FURTHER APPEARED, HOWEVER, THAT HE WAS OTHERWISE QUALIFIED FOR RETIREMENT IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 3911, 73A STAT. 224. AN OFFICER RETIRED PURSUANT TO SECTION 3911 IS ENTITLED (SEE SECTION 3929, 70A STAT. 230) TO RECEIVE MONTHLY RETIRED PAY COMPUTED AS PRESCRIBED IN FORMULA B, TITLE 10, U.S. CODE, SECTION 3991, 70A STAT. 232 (SEE SECTION 101 (23), ACT OF AUGUST 21, 1957, 71 STAT. 380). THE RATE OF RETIRED PAY DUE COLONEL GARDNER WAS GREATER WHEN COMPUTED UNDER FORMULA B OF SECTION 3991 THAN THE AMOUNT OF RETIRED PAY OTHERWISE DUE HIM UNDER FORMULA NO. 2 IN SECTION 1401. HENCE, IT WAS HELD THAT IN VIEW OF THE PROVISIONS OF SECTION 1401 ABOVE QUOTED, COLONEL GARDNER WAS ENTITLED TO BE PAID RETIRED PAY COMPUTED UNDER FORMULA B IN SECTION 3991.

THE SOLE ISSUE RAISED IN THE PRESENT SUBMISSION IS WHETHER THE HOLDING IN THE DECISION OF MAY 27, 1958--- CONSTRUING THE PROVISIONS OF SECTION 1401 IN THE CASE OF A COMMISSIONED OFFICER IN THE REGULAR ARMY- - IS APPLICABLE IN THE CASE OF LIEUTENANT COLONEL GADLER WHO, AS ABOVE INDICATED, WAS RELIEVED FROM ACTIVE DUTY AND RETIRED FOR PHYSICAL DISABILITY WHILE SERVING IN AN ENLISTED STATUS.

THE TERM "PERSON" IN SECTION 1401 CLEARLY REFERS TO ANY MEMBER OF THE UNIFORMED SERVICES WHO BECOMES ENTITLED TO RECEIVE RETIRED PAY COMPUTED AS PROVIDED IN THAT SECTION. FORMULAS NO. 1 AND 2 RELATE TO THOSE MEMBERS OF THE UNIFORMED SERVICES WHO ARE PLACED ON THE TEMPORARY OR PERMANENT DISABILITY RETIRED LISTS. FORMULA NO. 3 RELATES TO RETIREMENTS OF NONREGULAR PERSONNEL FOR AGE AND SERVICE, AND FORMULA NO. 4 PERTAINS EXCLUSIVELY TO WARRANT OFFICER PERSONNEL. THUS, IT SEEMS REASONABLY CLEAR THAT WITH THE SOLE EXCEPTION OF FORMULA NO. 4, RELATING TO WARRANT OFFICERS, THE TERM "PERSON" IN SECTION 1401 APPLIES TO ALL MEMBERS OF THE UNIFORMED SERVICES, ENLISTED AND COMMISSIONED, WHOSE RETIRED STATUS PLACES THEM WITHIN THE SCOPE OF FORMULAS 1, 2, OR 3, AS THE CASE MAY BE. HENCE, IN ANY CASE WHERE A PERSON, WHETHER ENLISTED, OR COMMISSIONED, OR A WARRANT OFFICER, WHOSE RETIRED PAY MAY BE COMPUTED UNDER SECTION 1401,"WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER * * * ANY OTHER PROVISION OF LAW," SUCH PERSON "IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.'

IN YOUR REQUEST FOR AN ADVANCE DECISION IN THE MATTER, YOU STATE THAT "RECORDS IN THIS HEADQUARTERS SHOW THAT LT. COLONEL GADLER HAD 20 YEARS ACTIVE SERVICE, 10 YEARS OF WHICH WERE IN A COMMISSIONED GRADE AS REQUIRED BY SECTION 8911, TITLE 10, U.S.C. OTHER FACTS WHICH MAY BE NECESSARY TO CONTRIBUTE TO HIS ELIGIBILITY UNDER THIS SECTION ARE NOT EVIDENT.'

SECTION 8911, TITLE 10, U.S.C. 70A STAT. 549, PROVIDES THAT "THE SECRETARY OF THE AIR FORCE MAY, UPON THE OFFICER'S REQUEST, RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE AIR FORCE WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 8926 OF THIS TITLE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER.' THE ABOVE-QUOTED PROVISIONS OF SECTION 8911 WERE RESTATED FROM SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED BY SECTION 202 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1084, FORMERLY 10 U.S.C. 971B, 1952 USED.

IN ANSWER TO THE SEVENTH AND LAST QUESTION CONSIDERED IN OUR DECISION OF MAY 20, 1949, B-83703, 28 COMP. GEN. 655 (SEE PAGES 661, 662/--- AS TO WHETHER THE PROVISIONS OF SECTION 202 OF THE 1948 LAW REQUIRED THAT AN OFFICER OF THE RESERVE COMPONENTS, IF OTHERWISE QUALIFIED, BE (A) ON ACTIVE DUTY AT THE TIME THAT APPLICATION FOR RETIREMENT THEREUNDER IS MADE, OR (B) ON AN ACTIVE DUTY LIST, AS DISTINGUISHED FROM AN INACTIVE LIST, AT THE TIME SUCH APPLICATION IS MADE--- IT WAS HELD THAT:

SUCH PROVISION REFERS BROADLY TO "ANY OFFICER OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES" AND NOTHING HAS BEEN FOUND IN THE STATUTE, OR IN ITS LEGISLATIVE HISTORY, WHICH WOULD FURNISH ANY SUBSTANTIAL BASIS FOR CONCLUDING THAT THE SAID PROVISION WAS INTENDED TO APPLY ONLY TO RESERVE OFFICERS ON ACTIVE DUTY OR RESERVE OFFICERS ON AN ACTIVE LIST. THE BENEFITS GRANTED BY SUCH PROVISION INSOFAR AS A RESERVE OFFICER IS CONCERNED ARE IN RECOGNITION OF THE FACT THAT THE OFFICER SERVED ON ACTIVE DUTY FOR A PERIOD OF NOT LESS THAN TWENTY YEARS, AT LEAST 10 YEARS OF WHICH MUST HAVE BEEN COMMISSIONED SERVICE, AND THAT IS THE ONLY REQUIREMENT HE MUST MEET, AS AN OFFICER OF ONE OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, IN ORDER TO BE ELIGIBLE TO BE RETIRED UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE SECRETARY OF THE ARMY. ACCORDINGLY, AN OTHERWISE QUALIFIED RESERVE OFFICER MAY BE RETIRED UNDER SECTION 202 REGARDLESS OF WHETHER OR NOT HE IS ON ACTIVE DUTY ON THE DATE OF HIS APPLICATION FOR RETIREMENT AND WITHOUT REGARD TO THE MATTER OF WHETHER HE IS ON AN ACTIVE LIST OR AN INACTIVE LIST ON THAT DATE.

THEREFORE, THE FACT THAT LIEUTENANT COLONEL GADLER WAS NOT SERVING ON ACTIVE DUTY UNDER HIS INDEFINITE TERM APPOINTMENT AS A LIEUTENANT COLONEL IN THE AIR FORCE RESERVE ON AUGUST 19, 1957, THE DATE THAT HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST, DOES NOT AFFECT HIS RIGHT, IF HE IS OTHERWISE ELIGIBLE AND MEETS THE REQUIREMENTS SPECIFIED IN SECTION 8911, TO HAVE HIS RETIRED PAY COMPUTED UNDER THE APPLICABLE FORMULA MOST FAVORABLE TO HIM, THAT IS, UNDER FORMULA B IN SECTION 8991 (SEE SECTION 301 (22), ACT OF AUGUST 21, 1957, 71 STAT. 389). UNDER FORMULA B THE COMPUTATION OF THE RETIRED PAY OF MEMBERS RETIRED UNDER SECTION 8911 (SEE SECTION 8929, 73A STAT. 554) WAS AUTHORIZED ON THE BASIS OF THE MONTHLY BASIC PAY OF THE MEMBER'S RETIRED GRADE MULTIPLIED BY "2 1/2 PERCENT OF YEARS OF SERVICE CREDITED TO HIM IN DETERMINING BASIC PAY.' UNDER THE FORMULA, LIEUTENANT COLONEL GADLER WOULD BE ENTITLED TO RECEIVE MONTHLY RETIRED PAY COMPUTED AT THE RATE OF 67 1/2 PERCENT (2 1/2 PERCENT TIMES 27 YEARS OF SERVICE) OF THE MONTHLY BASIC PAY OF A LIEUTENANT COLONEL (HIS RETIRED GRADE) WITH OVER 26 YEARS' SERVICE FOR PURPOSES OF BASIC PAY.

THE VOUCHER RECEIVED WITH THE REQUEST FOR ADVANCE DECISION IS RETURNED HEREWITH, PAYMENT THEREON BEING PROPER, IF OTHERWISE CORRECT, IT APPEARING THAT THE REQUIREMENTS SPECIFIED IN 10 U.S.C. 8911 HAVE BEEN FULLY MET BY LIEUTENANT COLONEL GADLER.