B-140332, SEPTEMBER 29, 1959, 39 COMP. GEN. 241

B-140332, SEPTEMBER 29, 1959, 39 COMP. GEN. 241

MILITARY PERSONNEL - RETIRED PAY - SERVICE CREDITS - ACTIVE DUTY AFTER RETIREMENT - TRAINING DUTY THE PROVISION IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 THAT, EXCEPT FOR ACTIVE SERVICE, THE SERVICE CREDIT AUTHORIZED THEREIN FOR PERIODS ON THE RETIRED LIST SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY RELATES TO INCREASES IN THE LONGEVITY PAY FACTOR IN THE COMPUTATION OF RETIRED PAY RATHER THAN TO THE MULTIPLIER FACTOR AND DOES NOT PROHIBIT RETIRED MEMBERS FROM COUNTING ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN THE MULTIPLIER FACTOR TO INCREASE RETIRED PAY, SO THAT A RETIRED MEMBER WHO PERFORMED 15 DAYS' ACTIVE DUTY AFTER RETIREMENT ON JUNE 30, 1953, MAY HAVE SUCH DUTY CREDITED TO INCREASE THE MULTIPLIER FACTOR IN COMPUTATION OF RETIRED PAY. TRAINING DUTY PERFORMED BY RETIRED MEMBERS OF THE UNIFORMED SERVICES AFTER RETIREMENT, BUT PRIOR TO AUGUST 10, 1956, MAY NOT BE INCLUDED IN THE COMPUTATION OF LENGTH OF ACTIVE SERVICE TO INCREASE RETIRED PAY, THERE BEING NO INDICATION OF CONGRESSIONAL INTENTION THAT 10 U.S.C. 101 (22), AS ENACTED INTO POSITIVE LAW BY THE ACT OF AUGUST 10, 1956, WHICH EFFECTED A SUBSTANTIVE CHANGE IN THE DEFINITION OF ACTIVE DUTY TO INCLUDE TRAINING DUTY, SHOULD HAVE RETROACTIVE APPLICATION.

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

THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE ( COMPTROLLER), USAF, FORWARDED BY LETTER OF JULY 24, 1959, YOUR LETTER OF JULY 1, 1959, AND ENCLOSURES, INCLUDING A VOUCHER PRESENTED TO YOU FOR PAYMENT STATED IN FAVOR OF MAJOR JOHNNIE F. HARLOW, USAF ( RET.), FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM JANUARY 9 THROUGH APRIL 30, 1959. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. 438 BY THE PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

YOU STATE THAT MAJOR HARLOW WAS RETIRED AS A MASTER SERGEANT ON JUNE 30, 1953, UNDER AUTHORITY OF PUBLIC LAW 190, 79TH CONGRESS, AS AMENDED (NOW CODIFIED INTO SECTION 8914, TITLE 10, UNITED STATES CODE), AND TRANSFERRED TO THE AIR FORCE RESERVE AFTER COMPLETING 24 YEARS, 5 MONTHS AND 22 DAYS OF ACTIVE SERVICE AND 24 YEARS, 5 MONTHS AND 24 DAYS SERVICE FOR BASIC PAY PURPOSES. EIGHT YEARS, 2 MONTHS AND 16 DAYS OF HIS TOTAL ACTIVE SERVICE WAS ACTIVE COMMISSIONED SERVICE.

MAJOR HARLOW WAS ORDERED TO 15 DAYS ACTIVE DUTY FOR TRAINING IN HIS RESERVE GRADE OF MAJOR FOR THE PERIOD JUNE 6 THROUGH 20, 1955. HE WAS RECERTIFIED TO YOUR HEADQUARTERS ON JUNE 21, 1955, FOR RETIRED PAY IN GRADE OF MASTER SERGEANT AND WAS CREDITED WITH 15 DAYS ACTIVE DUTY FOR TRAINING WHICH WAS PERFORMED SUBSEQUENT TO HIS INITIAL RETIREMENT. THIS ADDITIONAL 15 DAYS INCREASED HIS TOTAL ACTIVE SERVICE TO 24 YEARS, 6 MONTHS AND 7 DAYS, AND TOTAL SERVICE FOR BASIC PAY PURPOSES TO 24 YEARS, 6 MONTHS AND 9 DAYS. WITH THE ADDITIONAL CREDIT OF 15 DAYS ACTIVE FEDERAL SERVICE, HIS RETIRED PAY WAS RECOMPUTED BASED ON 62 1/2 PERCENT OF THE BASIC PAY OF A MASTER SERGEANT WITH 24 YEARS, 6 MONTHS, AND 7 DAYS SERVICE, AND HE WAS PAID RETIRED PAY ON THIS BASIS FOR THE PERIOD FROM JUNE 21, 1955, THROUGH JANUARY 8, 1959.

IT IS FURTHER STATED IN THE SUBMISSION THAT, HAVING COMPLETED 30 YEARS SERVICE ON JANUARY 8, 1959, THE MEMBER WAS ADVANCED FROM MASTER SERGEANT TO THE GRADE OF MAJOR ON JANUARY 9, 1959, UNDER THE PROVISIONS OF SECTION 8964, TITLE 10, U.S. CODE, AND AUTHORIZED RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 8992 OF TITLE 10. HE WAS PAID RETIRED PAY AT THE MONTHLY RATE OF $367.10 BASED ON 60 PERCENT OF BASIC PAY OF A MAJOR WITH 24 YEARS, 5 MONTHS AND 22 DAYS SERVICE INSTEAD OF 62 1/2 PERCENT FROM JANUARY 9 THROUGH APRIL 30, 1959.

YOUR SUBMISSION CITES SECTION 202 (B), PUBLIC LAW 351, 81ST CONGRESS, AND YOU STATE THAT IN VIEW OF ITS PROVISIONS DOUBT EXISTS AS TO WHETHER THE 15 DAYS ACTIVE SERVICE FROM JUNE 6 THOUGH JUNE 20, 1955, WAS PROPERLY USED TO INCREASE THE MULTIPLIER IN COMPUTING RETIRED PAY AS A MASTER SERGEANT FOR THE PERIOD JUNE 21, 1955, THROUGH JANUARY 8, 1956, OR WHETHER IT CAN NOW BE USED TO INCREASE RETIRED PAY FROM 60 PERCENT TO 62 1/2 PERCENT BASED ON THE GRADE OF MAJOR FOR THE PERIOD JANUARY 9 TO APRIL 30, 1959, AS CONTEMPLATED BY THE ATTACHED VOUCHER.

SECTION 202 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (B) PROVIDES, IN PERTINENT PART, THAT:

MEMBERS OF THE UNIFORMED SERVICES SHALL ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS WHILE ON * * * A RETIRED LIST OF ANY OF THE UNIFORMED SERVICES, OR WHILE AUTHORIZED TO RECEIVE RETIRED PAY, * * * PROVIDED, THAT, EXCEPT FOR ACTIVE SERVICE * * * THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY *

THAT PROVISION RELATES TO INCREASES IN THE LONGEVITY PAY FACTOR IN THE COMPUTATION OF RETIRED PAY RATHER THAN TO THE MULTIPLIER FACTOR AND RECOGNIZES THAT ACTIVE SERVICE AFTER RETIREMENT MAY INCREASE THE LONGEVITY PAY FACTOR. THERE IS NOTHING IN THAT SUBSECTION WHICH PROHIBITS RETIRED MEMBERS FROM COUNTING ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN THE MULTIPLIER FACTOR TO INCREASE RETIRED PAY.

SECTION 516 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 316, NOW CODIFIED IN 10 U.S.C. 1402 (A), PROVIDED THAT RETIRED MEMBERS SHOULD BE ENTITLED TO RECEIVE INCREASES (IN THE MULTIPLIER FACTOR) IN RETIRED PAY "FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT.' SECTION 1402 (A) ALSO AUTHORIZES RECOMPUTATION OF THE RETIRED PAY OF A RETIRED MEMBER BASED UPON SUBSEQUENT ACTIVE SERVICE ON THE BASIS OF "2 1/2 PERCENT OF THE SUM OF--- (1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM IN COMPUTING RETIRED OR RETAINER PAY; AND (2) HIS YEARS OF ACTIVE SERVE AFTER RETIREMENT OR BECOMING ENTITLED TO RETAINER PAY.'

SECTION 101 (22), TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART:

(22) "ACTIVE DUTY" MEANS FULL TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY * * *

IN OUR DECISION OF OCTOBER 18, 1957, 37 COMP. GEN. 264, WE SAID THAT OUR CONCLUSION IN 36 COMP. GEN. 179, THAT THE TERM "ACTIVE SERVICE" AS USED IN SECTION 203 (B) OF THE 1949 ACT AS AMENDED, 37 U.S.C., SUPP. IV, 234 (B) (WHICH GRANTED ADDITIONAL SPECIAL PAY TO PHYSICIANS AND DENTISTS IN AMOUNTS DEPENDENT UPON THE NUMBER OF YEARS OF ACTIVE SERVICE AS PHYSICIANS AND DENTISTS), DOES NOT INCLUDE ACTIVE DUTY FOR TRAINING WAS BASED ON THE DEFINITION OF THE TERM "ACTIVE DUTY" AS USED IN SECTION 101 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, 50 U.S.C. 901 (B), AND THAT SINCE SECTION 101 (B) OF THE 1952 ACT WAS REPEALED BY SECTION 53 OF PUBLIC LAW 1028, 70A STAT. 641, 682, APPROVED AUGUST 10, 1956, AND 10 U.S.C. 101 (22) NOW DEFINES ACTIVE DUTY AS INCLUDING "FULL TIME TRAINING DUTY," THERE APPEARS TO BE NO REASON WHY SUCH DUTY SHOULD NOT NOW BE REGARDED AS "ACTIVE SERVICE" WITHIN THE MEANING OF SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949. WE CONSIDERED IN B 137016, 38 COMP. GEN. 251, THE QUESTION OF WHETHER ACTIVE DUTY FOR TRAINING PERFORMED PRIOR TO AUGUST 10, 1956, MAY BE REGARDED AS "ACTIVE DUTY," THAT IS, WHETHER THE PROVISIONS OF 10 U.S.C. 101 (22) ENACTED AUGUST 10, 1956, PUBLIC LAW 1028, MAY BE CONSTRUED TO APPLY RETROACTIVELY OR WHETHER THOSE PROVISIONS APPLY PROSPECTIVELY ONLY. WE CONCLUDED THAT ITS TERMS BECAME EFFECTIVE AUGUST 10, 1956, AND WERE NOT RETROACTIVE; THAT IS, THAT PERIODS OF ACTIVE DUTY FOR TRAINING PERFORMED PRIOR TO AUGUST 10, 1956, MAY NOT BE INCLUDED IN THE COMPUTATION OF YEARS OF ACTIVE SERVICE IN ORDER TO DETERMINE THE RATE OF SPECIAL PAY FOR PHYSICIANS AND DENTISTS.

THE SAME REASONING APPLIES TO THE PRESENT CASE AND IT MUST BE HELD THAT FOR THE PURPOSES OF THE PROVISO IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (B), AND SECTION 1402 (A) OF TITLE 10, U.S. CODE, THE TERMS "ACTIVE SERVICE" AND "ACTIVE DUTY" USED THEREIN ARE SYNONYMOUS, MEANING FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, INCLUDING DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, AND ANNUAL TRAINING DUTY. HOWEVER, AS WE POINTED OUT IN 38 COMP. GEN. 251, THERE WAS A SUBSTANTIVE CHANGE IN THE DEFINITION OF ACTIVE DUTY IN 10 U.S.C. 101 (22) FROM THE DEFINITIONS IN THE DERIVATIVE STATUTES WHICH EXCLUDED ACTIVE DUTY FOR TRAINING AND THERE WAS NO CLEAR AND EXPLICIT SHOWING OF A CONGRESSIONAL INTENTION THAT 10 U.S.C. 101 (22), AS ENACTED INTO POSITIVE LAW BY THE ACT OF AUGUST 10, 1956, SHOULD HAVE RETROACTIVE APPLICATION. MOREOVER, THE CREDITING OF TRAINING DUTY PERFORMED PRIOR TO AUGUST 10, 1956, AS ACTIVE DUTY IN COMPUTING THE SPECIAL PAY OF PHYSICIANS AND DENTISTS WOULD CONTRAVENE THE PROVISIONS OF SECTION 49 (F) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, 32 U.S.C. 49 (F), WHICH PROVIDES THAT ITS ENACTMENT DOES NOT INCREASE THE PAY OF ANY PERSON. HENCE, WE HELD IN THAT DECISION THAT THE APPLICATION OF THE NEW DEFINITION WITH RESPECT TO TRAINING DUTY PERFORMED PRIOR TO AUGUST 10, 1956, IS PRECLUDED.

ACCORDINGLY, TRAINING DUTY PERFORMED BY THE MEMBER HEREIN PRIOR TO AUGUST 10, 1956, THE DATE THE DEFINITION OF ACTIVE DUTY WAS CHANGED TO INCLUDE TRAINING DUTY, MAY NOT BE INCLUDED IN THE COMPUTATION OF LENGTH OF ACTIVE SERVICE TO INCREASE RETIRED PAY.