B-139911, JUL. 16, 1959

B-139911, JUL. 16, 1959

TO COLONEL R. P. MUHLBACH, USAF, CHIEF, ALLOTMENT AND RETIRED PAY DIVISION, HEADQUARTERS, U.S. AIR FORCE:

THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE, FORWARDED WITH TRANSMITTAL LETTER DATED JUNE 11, 1959, YOUR LETTER OF MAY 4, 1959, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER FORWARDED THEREWITH STATED IN FAVOR OF RANDLE TAYLOR, TRUSTEE FOR MAJOR LEVERN A. FEE, A RETIRED AIR FORCE OFFICER. THIS REQUEST WAS APPROVED FOR SUBMISSION BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. 422, AND THE AMOUNT OF $886.99 STATED IN THE VOUCHER REPRESENTS THE DIFFERENCE IN THE OFFICER'S DISABILITY RETIRED PAY AS A MAJOR WITH OVER 22 YEARS' SERVICE AND AS A MAJOR WITH OVER 26 YEARS' SERVICE FOR THE PERIOD AUGUST 1, 1952, TO DECEMBER 31, 1958.

THE PERTINENT FACTS CONCERNING THE OFFICER'S RETIRED STATUS AS PRESENTED IN YOUR SUBMISSION SHOW THAT BY ORDERS OF JULY 22, 1952, THE OFFICER WAS RELEASED FROM ACTIVE DUTY AND RETIRED IN THE GRADE OF CAPTAIN EFFECTIVE JULY 31, 1952, UNDER THE PROVISIONS OF SECTIONS 402 AND 409, PUBLIC LAW 351, 81ST CONGRESS, 63 STAT. 816, 823, BY REASON OF 100 PERCENT PERMANENT DISABILITY. COUNTING JULY 31, 1952, AS A DAY OF ACTIVE SERVICE, HE HAD COMPLETED CONTINUOUS ACTIVE SERVICE, AS ENLISTED MAN AND OFFICER OF 26 YEARS, 0 MONTHS, AND ONE DAY, FOR BOTH ACTIVE DUTY AND BASIC PAY PURPOSES. IT IS STATED THAT RETIRED PAY HAS BEEN PAID FOR THE PERIOD AUGUST 1, 1952, THROUGH DECEMBER 31, 1958, BASED ON 75 PERCENT OF THE ACTIVE DUTY PAY RATE FOR A CAPTAIN WITH OVER 22 YEARS OF SERVICE FOR PAY PURPOSES, THERE BEING NO FURTHER INCREMENT FOR AN OFFICER OF THAT GRADE WITH GREATER SERVICE. IT IS FURTHER STATED THAT PURSUANT TO COMPTROLLER GENERAL'S DECISION, B-123643, DATED MARCH 7, 1958, HE WAS RECERTIFIED FOR RETIREMENT PAY PURPOSES IN THE GRADE OF MAJOR WITH THE SAME SERVICE OF 26 YEARS, 0 MONTHS AND ONE DAY. SINCE AN OVER 26 YEAR LONGEVITY BRACKET IS APPLICABLE IN DETERMINING THE ACTIVE DUTY PAY RATES FOR THE GRADE OF MAJOR, AND INASMUCH AS MAJOR FEE COMPLETED 26 YEARS' SERVICE ON JULY 30, 1952, IT IS STATED THAT A QUESTION ARISES AS TO THE PROPRIETY OF RECOMPUTING HIS RETIRED PAY BASED ON THE GRADE OF MAJOR WITH OVER 26 YEARS SERVICE FOR PAY PURPOSES.

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D), PROVIDES FOR THE PAYMENT OF DISABILITY RETIREMENT PAY COMPUTED BY ONE OF THE METHODS THERE PRESCRIBED ON THE BASIS OF "THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT.'

SECTION 201 (A) OF THE CAREER COMPENSATION ACT, 37 U.S. CODE, 232 (A), PROVIDES THAT FOR THE PURPOSE OF COMPUTING THE BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, PAY GRADES ARE PRESCRIBED AND MONTHLY BASIC PAY FOR SUCH MEMBERS IS ESTABLISHED WITHIN EACH PAY GRADE ACCORDING TO CUMULATIVE YEARS OF SERVICE.

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930 (QUOTING FROM 5 U.S.C. 47 (A), PROVIDES:

"RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.'

WHILE THE 31ST DAY OF ANY MONTH IS EXCLUDED IN THE COMPUTATION OF PAY, SEE SECTION 6, ACT OF JUNE 30, 1906, AS AMENDED, 5 U.S.C. 84, AN INCREASE IN PAY ON THE BASIS OF CUMULATIVE YEARS OF SERVICE IS EARNED BY ACTUAL SERVICE. SINCE MAJOR FEE'S SERVICE BEGAN ON JULY 31, 1926, THAT DAY IS A DAY OF SERVICE TO BE COUNTED IN DETERMINING HIS YEARS OF SERVICE, AND HIS 26 YEARS OF SERVICE WERE COMPLETED ON THE DAY OF THE MONTH NEXT PRECEDING THE ANNIVERSARY DATE OF HIS ENTRANCE INTO SERVICE, OR JULY 30, 1952. SECTION 202 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (A), ENUMERATES THE SERVICE WHICH IS CREDITABLE IN COMPUTING THE CUMULATIVE YEARS OF SERVICE "TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE.' WHERE A MEMBER COMPLETES 26 CUMULATIVE YEARS OF SERVICE ON A CERTAIN DATE, HIS RIGHT TO RECEIVE MONTHLY BASIC PAY AT THE NEXT HIGHER RATE PRESCRIBED FOR HIS PAY GRADE BY SECTION 201 OF THAT ACT, THAT IS, "OVER 26" CUMULATIVE YEARS OF SERVICE, BECOMES EFFECTIVE ON THE FOLLOWING DAY. WHILE THE ORDERS OF JULY 22, 1952, PROVIDED FOR MAJOR FEE'S RELEASE FROM ACTIVE DUTY AND RETIREMENT ON JULY 31, 1952, SUCH ORDERS APPARENTLY CONTEMPLATED THAT HIS ACTIVE DUTY STATUS SHOULD CONTINUE THROUGH THAT DAY SINCE, BY REASON OF THE ACT OF APRIL 23, 1930, HE COULD NOT LEGALLY BE PLACED ON THE RETIRED LIST PRIOR TO AUGUST 1, 1952. THUS, HAVING COMPLETED 26 YEARS AND ONE DAY OF SERVICE PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT, AUGUST 1, 1952, IT FOLLOWS THAT HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF "OVER 26" YEARS OF SERVICE AS PRESCRIBED BY SECTIONS 201 (A) AND 402 (D) OF THE CAREER COMPENSATION ACT. COMPARE 36 COMP. GEN. 612 (ANSWER TO SECOND QUESTION), AND DECISION IN THE CASE OF LAMBERT V. UNITED STATES, 121 C.CLS. 333.

ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.