B-139150, JUN 16, 1959

B-139150: Jun 16, 1959

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MARINE CORPS: REFERENCE IS MADE TO YOUR LETTER OF MARCH 18. THIS REQUEST WAS ASSIGNED SUBMISSION NO. IT APPEARS THAT HARRIS WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON MAY 1. 22 DAYS WAS ACTIVE SERVICE. HE WAS CREDITED WITH RETIRED PAY AT THE RATE OF $62.40 PER MONTH. THAT ON THE SAME BASIS HE WAS CREDITED WITH RETIRED PAY AT THE RATE OF $66.30 PER MONTH EFFECTIVE APRIL 1. HE WAS CREDITED EFFECTIVE JUNE 1. IT IS INDICATED THAT HARRIS' DISABILITY RATING DECREASED FROM 50 PERCENT TO LESS THAN 30 PERCENT. THAT HE WAS SEPARATED FROM THE SERVICE EFFECTIVE JANUARY 31. 1210(E)) AND WAS PAID SEVERANCE PAY IN THE AMOUNT OF $2. THAT: "THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE - "(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT ***.".

B-139150, JUN 16, 1959

PRECIS-UNAVAILABLE

MAJOR R. M. BURRILL, U.S. MARINE CORPS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1959, REQUESTING A DECISION AS TO THE PROPER AMOUNT OF DISABILITY SEVERANCE PAY IN THE CASE OF HENRY W. HARRIS, FORMER PRIVATE, FIRST CLASS, UNITED STATES MARINE CORPS. THIS REQUEST WAS ASSIGNED SUBMISSION NO. DO-MC-408 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT APPEARS THAT HARRIS WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON MAY 1, 1954, WITH A DISABILITY RATING OF 50 PERCENT, AND WITH TOTAL SERVICE OF 10 YEARS, 3 MONTHS, 7 DAYS, OF WHICH 10 YEARS, 2 MONTHS, 22 DAYS WAS ACTIVE SERVICE. IT ALSO APPEARS THAT EFFECTIVE MAY 1, 1954, HE WAS CREDITED WITH RETIRED PAY AT THE RATE OF $62.40 PER MONTH, 50 PERCENT OF THE ACTIVE-DUTY PAY OF A PRIVATE, FIRST CLASS, WITH 10 YEARS' SERVICE; THAT ON THE SAME BASIS HE WAS CREDITED WITH RETIRED PAY AT THE RATE OF $66.30 PER MONTH EFFECTIVE APRIL 1, 1955; AND THAT PURSUANT TO SECTION 4 OF THE ACT OF MAY 20, 1958, 72 STAT. 128, HE WAS CREDITED EFFECTIVE JUNE 1, 1958, WITH RETIRED PAY AT THE RATE OF $70.28 PER MONTH, $66.30 INCREASED BY 6 PERCENT.

IT IS INDICATED THAT HARRIS' DISABILITY RATING DECREASED FROM 50 PERCENT TO LESS THAN 30 PERCENT, AND THAT HE WAS SEPARATED FROM THE SERVICE EFFECTIVE JANUARY 31, 1959, UNDER APPLICABLE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 (NOW 10 U.S.C. 1203, 1210(E)) AND WAS PAID SEVERANCE PAY IN THE AMOUNT OF $2,160 PURSUANT TO THE PROVISIONS OF THAT TITLE CODIFIED IN 10 U.S.C. 1212. COMPARE 37 COMP. GEN. 166 AND 446.

SECTION 10 OF THE ABOVE ACT OF MAY 20, 1958, 72 STAT. 130 (QUOTING FROM 37 U.S.C.A. 232, NOTE), PROVIDES, IN PERTINENT PART, THAT:

"THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE -

"(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT ***."

SECTION 1212 OF TITLE 10, U.S. CODE, PROVIDES, IN PERTINENT PART, THAT:

"(A) UPON SEPARATION FROM HIS ARMED FORCE UNDER SECTION 1203 OR 1206 OF THIS TITLE, A MEMBER IS ENTITLED TO DISABILITY SEVERANCE PAY COMPUTED BY MULTIPLYING (1) HIS YEARS OF SERVICE, BUT NOT MORE THAN 12, COMPUTED UNDER SECTION 1208 OF THIS TITLE, BY (2) THE HIGHEST OF THE FOLLOWING AMOUNTS:

"(A) TWICE THE AMOUNT OF MONTHLY BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING (I) ON ACTIVE DUTY ON THE DATE WHEN HE IS SEPARATED AND (II) IN THE GRADE AND RANK IN WHICH HE WAS SERVING ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED."

PARAGRAPHS (B), (C), AND (D), OF SUBSECTION (A) RELATE TO CONDITIONS NOT PRESENT IN HARRIS' CASE AND HENCE ARE NOT MATERIAL HERE.

YOUR LETTER PRESENTS FOR CONSIDERATION THREE POSSIBLE METHODS OF COMPUTATION OF HARRIS' DISABILITY SEVERANCE PAY AS FOLLOWS:

"A. BASIC PAY OF E-2 OVER 14 YEARS UNDER PL 85-422, 85TH CONGRESS, $108.00 TIMES 2(MONTHS) TIMES 10 (YEARS ACTIVE DUTY), RESULTING IN $2,160.00.

"B. BASIC PAY OF E-2 OVER 10 YEARS UNDER PL 346-82ND CONGRESS, $124.80 TIMES 2(MONTHS) TIMES 10 (YEARS ACTIVE DUTY), RESULTING IN $2,496.00. IS TO BE NOTED THAT HARRIS WAS ACTUALLY IN RECEIPT OF $124.80 PER MONTH AT TIME OF TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON 1 MAY 1954.

"C. BASIC PAY OF E-2 OVER 14 YEARS UNDER PL 20-84TH CONGRESS, $132.60 TIMES 2(MONTHS) TIMES 10 (YEARS ACTIVE DUTY), OR $2,652.00. THIS COMPUTATION IS BASED ON THE PREMISE THAT HAD HARRIS REMAINED ON ACTIVE DUTY IN LIEU OF BEING TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON 1 MAY 1954 HE WOULD HAVE BEEN IN RECEIPT OF $132.60 PER MONTH ON 31 MAY 1958 AND WOULD HAVE REMAINED IN A 'SAVED-PAY' STATUS."

IT IS STATED THAT HARRIS WAS PAID DISABILITY SEVERANCE PAY IN THE AMOUNT OF $2,160, COMPUTED UNDER METHOD A.

IT WAS HELD IN 19 COMP. GEN. 573 THAT THE SAVED-PAY PROVISIONS OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, SAVED TO AN OFFICER, RETIRED PRIOR TO THE EFFECTIVE DATE OF THAT ACT, THE RIGHT TO BOTH ACTIVE-DUTY PAY AND RETIRED PAY ON THE BASIS OF THE LAWS IN EFFECT ON THE DAY PRECEDING SUCH EFFECTIVE DATE. ALSO, IT HAS BEEN HELD THAT THE SAVINGS PROVISIONS OF SECTION 10 OF THE ACT OF MAY 10, 1958, RELATING TO ACTIVE DUTY PAY, ARE NOT RESTRICTED SOLELY TO THE PROTECTION OF THE RATE OF SUCH PAY ACTUALLY ACCRUING TO A MEMBER ON MAY 31, 1958. SEE 38 COMP. GEN. 47, 49-50, ANSWERS TO QUESTIONS H AND I, AND 38 COMP. GEN. 50, BOTH DECISIONS HOLDING THAT SUCH SAVINGS PROVISIONS APPLY TO MEMBERS WHO WERE IN A NONPAY STATUS ON MAY 31, 1958, SAVING TO THEM THE RATE OF PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY BEEN ON ACTIVE DUTY ON THAT DAY. COMPARE 29 COMP. GEN. 241, 253, ANSWER TO QUESTION 11, A SIMILAR HOLDING AS TO THE SAVED- PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949.

IN CONSONANCE WITH THE ABOVE DECISIONS WE THINK THAT SECTION 10 OF THE ACT OF MAY 20, 1958, OPERATES IN THE PRESENT CASE TO SAVE TO HARRIS THE RIGHT TO ACTIVE-DUTY PAY, SHOULD ANY ACCRUE TO HIM AFTER MAY 31, 1958, COMPUTED ON THE BASIS OF THE PAY TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD BEEN ON ACTIVE DUTY ON THAT DAY. SINCE HIS DISABILITY SEVERANCE PAY IS FOR COMPUTATION ON THE BASIS OF THE ACTIVE DUTY PAY TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD SERVED ON ACTIVE DUTY ON JANUARY 31, 1959, IT FOLLOWS THAT SUCH SEVERANCE PAY SHOULD HAVE BEEN COMPUTED ON THE RATE OF 132.60 PER MONTH AS SET OUT IN METHOD C, ABOVE.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.