B-138977, MAY 29, 1959, 38 COMP. GEN. 806

B-138977, MAY 29, 1959, 38 COMP. GEN. 806

MILITARY PERSONNEL - PAY - RETIRED - INCREASES - SUBSEQUENT TRANSFER TO RETIRED LIST ALTHOUGH RETIRED MEMBERS OF THE UNIFORMED SERVICES WHOSE STATUS BRINGS THEM UNDER THE RETIRED PAY PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, WERE ENTITLED TO A RECOMPUTATION OF RETIRED PAY IF CONDITIONS CHANGED SO THAT ONE METHOD OF COMPUTATION PRODUCED A GREATER AMOUNT OF RETIRED PAY THAN THE METHOD UNDER WHICH THEIR PAY WAS THEN BEING COMPUTED, UNDER THE CAREER INCENTIVE ACT OF 1955, EFFECTIVE APRIL 1, 1955, NO FURTHER RECOMPUTATIONS OF RETIRED PAY BETWEEN METHODS (A) AND (B) WERE PROPER AND THE RETIRED PAY METHOD BECAME FIXED. AN ENLISTED MEMBER OF THE NAVY WHO WAS TRANSFERRED TO THE FLEET RESERVE WITH SLIGHTLY MORE THAN 20 YEARS OF SERVICE ON SEPTEMBER 24, 1948, WHO WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON SEPTEMBER 1, 1954, AND ADVANCED CONCURRENTLY TO THE RANK OF COMMISSIONED OFFICER, AND WHOSE RETIRED PAY STATUS BECAME FIXED AS OF APRIL 1, 1955, THE EFFECTIVE DATE OF THE CAREER INCENTIVE ACT OF 1955, UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, WAS NOT ELIGIBLE UPON THE COMPLETION OF 30 YEARS OF SERVICE ON SEPTEMBER 3, 1958, TO BE TRANSFERRED TO A RETIRED LIST OR ADVANCED ON THE RETIRED LIST; HENCE, HIS RIGHT TO RETIRED PAY IS NOT GOVERNED BY SECTION 3 (C) OF THE ARMED FORCES SALARY INCREASE ACT OF MAY 20, 1958, EFFECTIVE JUNE 1, 1958, AND HE MAY NOT RECEIVE AN ADDITIONAL 6 PERCENT INCREASE THEREUNDER FROM SEPTEMBER 4, 1958. THE RETIRED PAY STATUS OF A MEMBER OF THE FLEET RESERVE WHO BECAME ENTITLED TO RETAINER PAY PRIOR TO JUNE 1, 1958, THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND WHO UPON COMPLETION OF 30 YEARS OF SERVICE IS TRANSFERRED TO THE RETIRED LIST ON OR SUBSEQUENT TO JUNE 2, 1958, UNDER 10 U.S.C. 6331 (A), AS AMENDED, AND CONCURRENTLY ADVANCED ON THE RETIRED LIST TO A HIGHER GRADE IS LIMITED BY SECTION 3 (C) OF THE ARMED FORCES SALARY INCREASE ACT OF MAY 20, 1958, WHICH ENTITLES THE MEMBER TO THE BASIC RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AND IN EFFECT ON MAY 31, 1958, PLUS 6 PERCENT OF SUCH PAY.

TO COMMANDER R. A. WILSON, UNITED STATES NAVY, MAY 29, 1959:

YOUR LETTER OF JANUARY 29, 1959, WITH ENDORSEMENTS, PRESENTS FOR ADVANCE DECISION (UNDER MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N- 405) THE QUESTION AS TO THE PROPER RATE OF RETIRED PAY PAYABLE IN THE CASE OF CHIEF ELECTRICIAN FRANK E. PARKISON, UNITED STATES NAVY, RETIRED, AND ALSO TO OTHER RETIRED MEMBERS OF THE NAVAL SERVICE IN THE CIRCUMSTANCES SET FORTH HEREUNDER.

IT IS STATED THAT CHIEF ELECTRICIAN PARKISON WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F-6, AND RELEASED TO INACTIVE DUTY ON SEPTEMBER 24, 1948, HAVING COMPLETED A TOTAL OF 20 YEARS AND 21 DAYS' SERVICE. ALSO, IT IS REPORTED THAT HE WAS PLACED ON THE RETIRED LIST ON SEPTEMBER 1, 1954, BY REASON OF PHYSICAL DISABILITY AND ADVANCED, CONCURRENTLY, TO THE RANK OF CHIEF ELECTRICIAN PURSUANT TO THE PROVISIONS OF 34 U.S.C. 350I (B) (2), 1946 USED. HE COMPLETED 30 YEARS OF ACTIVE AND INACTIVE SERVICE ON SEPTEMBER 3, 1958, AND THE FIRST QUESTION PRESENTED RELATES TO THE PROPER RATE OF RETIRED PAY PAYABLE TO HIM EFFECTIVE FROM SEPTEMBER 4, 1958.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, IN PERTINENT PART PROVIDES:

ON AND AFTER THE EFFECTIVE DATE ( OCTOBER 1, 1949) OF THIS SECTION * * * (2) MEMBERS HERETOFORE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS:(A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *.

THE FIFTH PROVISO OF SECTION 511 PROVIDES:

THAT * * * ENLISTED PERSONS OR FORMER ENLISTED PERSONS OF THE REGULAR NAVY OR REGULAR MARINE CORPS WHO HAVE BEEN TRANSFERRED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF TITLE II OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SHALL NOT BE ENTITLED TO HAVE THEIR RETIRED PAY OR RETAINER PAY COMPUTED ON THE BASIS OF THE HIGHEST OFFICER OR WARRANT- OFFICER GRADE HELD BY THEM AS AUTHORIZED BY THIS SECTION UNTIL THEY HAVE COMPLETED THIRTY YEARS OF SERVICE, TO INCLUDE THE SUM OF THEIR ACTIVE SERVICE AND THEIR SERVICE ON THE RETIRED LIST OR IN THE FLEET RESERVE OR IN THE FLEET MARINE CORPS RESERVE, AS REQUIRED BY EXISTING LAW.

IT IS APPARENT THAT EFFECTIVE OCTOBER 1, 1949, PARKISON'S RETAINER AND RETIRED PAY STATUS WAS GOVERNED BY SECTION 511 OF THE 1949 LAW AND, ALSO, THAT UNTIL HE HAD COMPLETED 30 YEARS OF SERVICE (TO INCLUDE HIS ACTIVE SERVICE AND HIS SERVICE ON THE RETIRED LIST AND IN THE FLEET RESERVE) HE WOULD NOT BE ENTITLED TO RECEIVE RETIRED PAY COMPUTED ON THE BASIS OF HIS COMMISSIONED WARRANT OFFICER GRADE UNDER THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, 37 U.S.C. 311 (B). HOWEVER, UPON HIS RETIREMENT EFFECTIVE SEPTEMBER 1, 1954, DUE TO PHYSICAL DISABILITY, TOGETHER WITH HIS ADVANCEMENT, CONCURRENTLY, TO THE RANK OF CHIEF ELECTRICIAN ON THE RETIRED LIST, PARKISON WAS ENTITLED, UNDER THE PROVISIONS OF METHOD (A), 37 U.S.C. 311 (A), TO RECEIVE RETIRED PAY "COMPUTED AT THE RATE PRESCRIBED BY LAW * * * BUT BASED UPON SUCH HIGHER RANK" AS PROVIDED IN 34 U.S.C. 3501 (B) (2), 1946 USED. COMPUTED UNDER METHOD (A) OF SECTION 511, I.E., PURSUANT TO THE "PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT" OF THE CAREER COMPENSATION ACT OF 1949, PARKISON IS SHOWN TO HAVE RECEIVED RETIRED PAY, BASED ON THE RANK OF COMMISSIONED WARRANT OFFICER, AT THE RATE OF $141.96 PER MONTH EFFECTIVE FROM SEPTEMBER 1, 1954, INCREASED 6 PERCENT EFFECTIVE APRIL 1, 1955, TO $150.48 PER MONTH, PLUS AN ADDITIONAL 6 PERCENT INCREASE EFFECTIVE JUNE 1, 1958, TO $159.51 PER MONTH.

IN OUR DECISION OF JULY 17, 1957, 37 COMP. GEN. 31, TO THE SECRETARY OF DEFENSE, IT WAS POINTED OUT AT PAGE 34, IN THE ANSWER TO QUESTION 5, THAT SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 DOES NOT PROVIDE FOR AN ELECTION WITH RESPECT TO RETIRED PAY; THAT TWO METHODS OF COMPUTING RETIRED PAY ARE THERE PRESCRIBED AND RETIRED MEMBERS WHOSE RIGHTS ARE GOVERNED BY THAT SECTION ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED BY THE METHOD WHICH PRODUCES THE GREATER AMOUNT OF RETIRED PAY; AND THAT AFTER RECEIVING RETIRED PAY COMPUTED BY ONE METHOD, IF CONDITIONS CHANGE IN SUCH A MANNER THAT A RETIRED MEMBER'S PAY WOULD BE INCREASED BY COMPUTING HIS RETIRED PAY UNDER THE OTHER METHOD, SUCH RECOMPUTATION WAS AUTHORIZED AND REQUIRED UNDER SECTION 511 WITHOUT ANY ELECTION ON HIS PART. HOWEVER, IT WAS HELD THAT SUCH GENERAL INTERPRETATION OF SECTION 511 DOES NOT APPLY TO THE INCREASES IN RETIRED PAY AUTHORIZED IN THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, 37 U.S.C. 232 NOTE, AND THAT EFFECTIVE FROM APRIL 1, 1955 (THE EFFECTIVE DATE OF THE CAREER INCENTIVE ACT OF 1955) NO FURTHER RECOMPUTATIONS OF RETIRED PAY BETWEEN METHODS (A) AND (B) IN SECTION 511 WERE PROPER. THUS, THE RETIRED PAY OF THOSE RETIRED MEMBERS WHOSE STATUS CAME WITHIN THE SCOPE OF SECTION 511 BECAME FIXED EFFECTIVE APRIL 1, 1955, UNDER METHOD (A) OR METHOD (B), AS THE CASE MAY BE, WHICHEVER METHOD WAS APPLICABLE IN THE PARTICULAR CASE ON MARCH 31, 1955.

AS ABOVE SHOWN, CHIEF ELECTRICIAN PARKISON WAS IN RECEIPT OF RETIRED PAY ON MARCH 31, 1955, COMPUTED ON THE BASIS OF THE RANK OF COMMISSIONED WARRANT OFFICER IN ACCORDANCE WITH METHOD (A) OF SECTION 511. THE RIGHT TO COMPUTE RETIRED OR RETAINER PAY, ALTERNATIVELY, UNDER METHOD (A) OR METHOD (B) OF SECTION 511, WHICHEVER METHOD PRODUCED THE GREATER AMOUNT, HAVING TERMINATED ON APRIL 1, 1955, HIS RETIRED PAY STATUS BECAME FIXED UNDER METHOD (A) OF SECTION 511 EFFECTIVE APRIL 1, 1955, AND HE HAS NOT BEEN ENTITLED SINCE THAT DATE TO RECOMPUTE HIS RETIRED PAY UNDER METHOD (B).

IT APPEARING THAT CHIEF ELECTRICIAN PARKISON WAS RETIRED AND ADVANCED TO COMMISSIONED WARRANT OFFICER GRADE ON THE RETIRED LIST PRIOR TO JUNE 1, 1958, HE WAS NOT ELIGIBLE UPON THE COMPLETION OF 30 YEARS OF SERVICE ON SEPTEMBER 3, 1958, TO BE "TRANSFERRED TO A RETIRED LIST" OR "ADVANCED ON THE RETIRED LIST.' HENCE, HIS RIGHTS ARE NOT GOVERNED BY SECTION 3 (C) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, 37 U.S.C. 232 NOTE. THE QUESTION CONCERNING THE RETIRED PAY STATUS OF CHIEF ELECTRICIAN PARKISON EFFECTIVE FROM JUNE 1, 1958, IS ANSWERED ACCORDINGLY.

AN ADDITIONAL QUESTION CONCERNING THE APPLICABILITY OF SECTION 3 (C) OF THE 1958 ACT IS PRESENTED BY THE COMMANDING OFFICER, UNITED STATES NAVY FINANCE CENTER, IN THE FIRST ENDORSEMENT OF FEBRUARY 18, 1959. THIS QUESTION RELATES TO THE SITUATION OF A MEMBER OF THE FLEET RESERVE WHO IS TRANSFERRED TO THE RETIRED LIST ON OR SUBSEQUENT TO JUNE 2, 1958 (SEE SECTION 4 (B), ACT OF MAY 20, 1958, 10 U.S.C. 1401 NOTE), IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6331 (A), AS AMENDED, UPON THE COMPLETION OF 30 YEARS OF SERVICE.

SECTION 3 (C), ACT OF MAY 20, 1958, 72 STAT. 128, IN PERTINENT PART PROVIDES 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 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.

SUBSECTION (C) GOVERNS THE RETIRED PAY STATUS OF THOSE MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN A HIGHER GRADE PRIOR TO JUNE 1, 1958, THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND WHO THEREAFTER ARE TRANSFERRED TO A RETIRED LIST OR ADVANCED ON A RETIRED LIST TO SUCH HIGHER GRADE. IN SUCH A CASE, THE MEMBER IS ENTITLED TO COMPUTE HIS RETIRED PAY AS PROVIDED IN SECTION 3 (C) ON THE BASIS OF THE BASIC RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 ON MAY 31, 1958, PLUS 6 PERCENTUM OF THAT PAY.

THUS, THE RETIRED PAY STATUS OF A MEMBER OF THE FLEET RESERVE WHO BECAME ENTITLED TO RETAINER PAY PRIOR TO THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND WHO IS TRANSFERRED TO THE RETIRED LIST ON OR SUBSEQUENT TO JUNE 2, 1958, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6331 (A), AS AMENDED, AND CONCURRENTLY ADVANCED ON THE RETIRED LIST TO A HIGHER GRADE, FALLS SQUARELY WITHIN THE SCOPE AND PURVIEW OF SECTION 3 (C) OF THE 1958 LAW AND SUCH A MEMBER IS LIMITED TO THE BENEFITS PROVIDED IN THAT SECTION. THE ADDITIONAL QUESTION IS ANSWERED ACCORDINGLY.