B-139546, AUG. 10, 1959

B-139546, AUG. 10, 1959

TO R. A. WILSON, DISBURSING OFFICER, SPECIAL PAYMENTS DEPARTMENT:

BY SECOND ENDORSEMENT DATED MAY 5, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF APRIL 24, 1959, REQUESTING A DECISION (ASSIGNED SUBMISSION NO. DO-N-416) AS TO THE PROPER RATE OF RETIRED PAY PAYABLE TO CHARLES E. TAYLOR, 349 17 62, NAVCAD, USNR (RETIRED), IN THE CIRCUMSTANCES DISCLOSED.

YOU SAY THAT ON JUNE 1, 1958, TAYLOR WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE RATE OF NAVAL AVIATION CADET, WITH 3 YEARS, 2 MONTHS, AND 1 DAY OF SERVICE FOR BASIC PAY PURPOSES, AND A DISABILITY RATED AT 75 PERCENT, PURSUANT TO THE PROVISIONS OF 10 U.S.C.

YOU SAY THAT PAYMENTS OF DISABILITY BENEFITS WERE WITHHELD UNTIL THE PROVISIONS OF 10 U.S.C. 1217 WERE AMENDED RETROACTIVELY TO PROVIDE NAVAL AVIATION CADETS WITH THE BENEFITS OF CHAPTER 61, TITLE 10, U.S.C. IN THAT CONNECTION, THE PROVISIONS OF 10 U.S.C. 1217 WERE AMENDED RETROACTIVELY TO AUGUST 10, 1956, BY SECTION 33 (A) (7) OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1564. SEE SECTION 33 (G) OF THAT ACT, 72 STAT. 1568.

YOU SAY THAT UNDER THE PROVISIONS OF 10 U.S.C. 1401, TAYLOR WAS ENTITLED, AT HIS ELECTION, TO RECEIVE RETIRED PAY COMPUTED BY EITHER--

"METHOD A--- MONTHLY BASIC PAY OF GRADE TO WHICH HE WAS ENTITLED ON DAY BEFORE PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST (111.15) TIMES PERCENTAGE OF DISABILITY (75 PERCENT).

"METHOD B--- MONTHLY BASIC PAY OF GRADE TO WHICH HE WAS ENTITLED ON DAY BEFORE PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST (111.15) TIMES 2 1/2 PERCENT TIMES YEARS ACTIVE SERVICE (4).'

YOU ALSO STATE THAT TAYLOR'S ACCOUNT WAS ESTABLISHED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF SEPTEMBER 2, 1958, RETROACTIVE TO JUNE 1, 1958, WITH MONTHLY RETIRED PAY AT THE RATE OF $83.36, INCREASED TO $88.36 (PURSUANT TO SECTION 4 (B) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, BASED ON HIS ELECTION UNDER METHOD A.

YOU REFER TO THE PROVISIONS OF SECTIONS 1372 AND 6912 OF TITLE 10, AS AMENDED, AND YOU ASK WHETHER IN VIEW OF THOSE PROVISIONS, TAYLOR IS ENTITLED TO RETIRED PAY AT THE GROSS MONTHLY RATE OF $120, BASED ON THE BASIC PAY PROVIDED FOR ENLISTED MEMBERS IN PAY GRADE E-4, WITH OVER THREE YEARS' SERVICE.

SECTION 1372 OF TITLE 10, PROVIDES, IN PART, AS FOLLOWS:

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204 OF THIS TITLE, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205 OF THIS TITLE, IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

"/1)THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.'

SECTION 6912 OF TITLE 10, AS AMENDED BY SECTION 1 (147) (A) OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1513, PROVIDES, IN PART, AS FOLLOWS:

"AVIATION CADETS: BENEFITS

"EXCEPT AS PROVIDED IN SECTION 251 (A) OF TITLE 37, AVIATION CADETS OR THEIR BENEFICIARIES ARE ENTITLED TO THE SAME ALLOWANCES, PENSIONS, GRATUITIES, AND OTHER BENEFITS AS ARE PROVIDED FOR ENLISTED MEMBERS IN PAY GRADE E-4. * * *"

AS ORIGINALLY CODIFIED, SECTION 6912 (A) OF TITLE 10, PRESCRIBED, AMONG OTHER THINGS, THE MONTHLY RATE OF PAY TO WHICH AN AVIATION CADET WAS ENTITLED WHILE ON ACTIVE DUTY, AND THE LANGUAGE OF SUBSECTION (C) OF THAT SECTION--- CARRIED FORWARD FROM SECTION 6 OF THE ACT OF AUGUST 4, 1942, 56 STAT. 738--- IS IDENTICAL TO THAT NOW CONTAINED IN SECTION 6912, AS AMENDED. THE EFFECT OF THE ACT OF SEPTEMBER 2, 1958, AMENDING SECTION 6912, WAS SIMPLY TO SEPARATE ITEMS RELATING TO ,BENEFITS" AND ITEMS RELATING TO PAY AND ALLOWANCES TO WHICH AVIATION CADETS ARE ENTITLED. CONNECTION WITH SECTION 6912, IT WAS STATED IN H.R. REPORT NO. 930, P. 60, AND SENATE REPORT NO. 2095, P. 75, TO ACCOMPANY H.R. 8943, WHICH BECAME THE ACT OF SEPTEMBER 2, 1958, THAT "THE SUBSTANCE OF FORMER SUBSECTIONS (A) (LESS CLAUSE (4) ( AND (B) IS COVERED BY THE CAREER COMPENSATION ACT, AS AMENDED BY THE ACT OF MARCH 31, 1955 (69 (69 STAT. 19) AND SECTION 10 OF THIS ACT.'

THE GRADE OF AVIATION CADET IS A SPECIAL ENLISTED GRADE IN THE NAVAL SERVICE. SEE 10 U.S.C. 6911 (A), WHICH SUPERSEDED SECTION 2 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737. SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 2 (3) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 19, 37 U.S.C. 232 (E), PROVIDES THAT AVIATION CADETS ENLISTED OR APPOINTED UNDER THE ARMY AVIATION CADET ACT, 55 STAT. 239, AS AMENDED, OR UNDER THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737, AS AMENDED, ARE ENTITLED TO MONTHLY PAY AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A COMMISSIONED OFFICER IN PAY GRADE C-1 WITH UNDER TWO CUMULATIVE YEARS OF SERVICE.

WHILE UNDER THE PROVISIONS OF SECTION 6912 OF TITLE 10, AS AMENDED, AN AVIATION CADET IS ENTITLED TO THE SAME "ALLOWANCES, PENSIONS, GRATUITIES, AND OTHER BENEFITS AS ARE PROVIDED FOR ENLISTED MEMBERS IN PAY GRADE E-4," WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT AN AVIATION CADET RETIRED BY REASON OF PHYSICAL DISABILITY IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY PRESCRIBED FOR MEMBERS IN PAY GRADE E-4. ON THE CONTRARY, SINCE CONGRESS HAS EXPRESSLY FIXED THE MONTHLY RATE OF PAY OF AVIATION CADETS, IT SEEMS REASONABLY CLEAR THAT THE PROVISIONS OF SECTION 6912 DO NOT PURPORT TO AFFECT EITHER THE RATE OF PAY OR THE GRADE IN WHICH THE MEMBER SERVED AS AN AVIATION CADET. COMPARE 30 COMP. GEN. 431 AND 35 COMP. GEN. 324.

SINCE TAYLOR WAS SERVING IN THE GRADE OF AVIATION CADET ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, IT FOLLOWS THAT HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE MONTHLY RATE OF PAY AS FIXED FOR AN AVIATION CADET, NAMELY, AS SHOWN IN THE COMPUTATION UNDER METHOD A OF YOUR SUBMISSION. HE IS NOT ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THAT OF AN ENLISTED MEMBER IN GRADE E-4 WITH OVER THREE YEARS' SERVICE. YOUR QUESTION IS ANSWERED ACCORDINGLY.