B-142236, MAY 13, 1960, 39 COMP. GEN. 770

B-142236: May 13, 1960

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THE PROVISION IN SECTION 7 (C) THAT "UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW" IS INTERPRETED AS AUTHORIZING THE COMPUTATION OF DISABILITY RETIRED PAY FOR A LIEUTENANT GENERAL. ON THE BASIS OF THE RETIRED PAY TO WHICH HE WAS ENTITLED ON MAY 31. THIS REQUEST WAS APPROVED FOR SUBMISSION BY THE DEPARTMENT OF DEFENSE. THAT LANGUAGE WAS USED. ALL OF WHICH WERE SERVED ON ACTIVE DUTY. HE ELECTED TO HAVE HIS RETIRED PAY COMPUTED ON PERCENTAGE OF DISABILITY AND HE RECEIVED RETIRED PAY OF $766.35 A MONTH (75 PERCENT OF $1. IT IS STATED THAT IN COMPUTING THE $802.65 MONTHLY RATE. WHICH WAS EQUAL TO 6 PERCENT ABOVE THE RATE HE WAS RECEIVING ON MAY 31. IT IS FURTHER STATED THAT A DETAILED ANALYSIS OF PUBLIC LAW 85 422 AND OF THE LEGISLATIVE HISTORY OF H.R. 11470.

B-142236, MAY 13, 1960, 39 COMP. GEN. 770

MILITARY PERSONNEL - RETIRED PAY - GENERALS AND ADMIRALS - INCREASES UNDER ACT OF MAY 20, 1958 IN VIEW OF THE INDICATION THAT CONGRESS IN ENACTING SECTION 7 OF THE ACT OF MAY 20, 1958, WHICH PERMITS THE RECOMPUTATION OF RETIRED PAY OF THREE- AND FOUR-STAR GENERALS AND ADMIRALS, INTENDED TO CONFER ON SUCH MEMBERS GREATER BENEFITS THAN THOSE IN SECTION 4 (A) RATHER THAN TO DEPRIVE THEM OF THEIR RIGHT TO THE PAY BENEFITS UNDER SECTION 4 (A) IF THE COMPUTATION THEREUNDER WOULD RESULT IN GREATER RETIRED PAY, THE PROVISION IN SECTION 7 (C) THAT "UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW" IS INTERPRETED AS AUTHORIZING THE COMPUTATION OF DISABILITY RETIRED PAY FOR A LIEUTENANT GENERAL, WHO HAD MORE THAN 180 DAYS OF SERVICE IN SUCH GRADE, ON THE BASIS OF THE RETIRED PAY TO WHICH HE WAS ENTITLED ON MAY 31, 1958, PLUS THE SIX PERCENT INCREASE AUTHORIZED UNDER SECTION 4 (A) OF THE ACT. 38 COMP. GEN. 281, ID. 701, MODIFIED

TO THE SECRETARY OF DEFENSE, MAY 13, 1960:

THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS UNITED STATES AIR FORCE, FORWARDED WITH TRANSMITTAL LETTER DATED MARCH 7, 1960, LETTER DATED FEBRUARY 12, 1960, FROM COLONEL R. P. MUHLBACH, USAF, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON AN ACCOMPANYING VOUCHER STATED IN FAVOR OF LIEUTENANT GENERAL BRYANT L. BOATNER, 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. 484, AND THE VOUCHER IN THE AMOUNT OF $9.68 REPRESENTS THE DIFFERENCE IN THE OFFICER'S RETIRED PAY AT THE RATE OF $802.65 A MONTH AND AT THE RATE OF $812.33 A MONTH FOR THE PERIOD FROM JANUARY 1 TO 31, 1960. THE ADJUSTMENT IN GENERAL BOATNER'S RETIRED PAY COVERED BY THE VOUCHER WOULD NOT APPEAR AUTHORIZED UNDER THE GENERAL LANGUAGE USED IN OUR DECISION TO YOU, B 136915, OCTOBER 7, 1958, 38 COMP. GEN. 281 (ANSWER TO QUESTION 3), AS MODIFIED IN B-136915, APRIL 16, 1959, 38 COMP. GEN. 701. THAT LANGUAGE WAS USED, HOWEVER, IN ANSWER TO A GENERAL QUESTION AND IT APPEARS THAT IT SHOULD BE RECONSIDERED IN THE LIGHT OF THE FACTS DISCLOSED IN GENERAL BOATNER'S CASE.

IT APPEARS FROM THE INFORMATION FURNISHED THAT GENERAL BOATNER RETIRED ON AUGUST 31, 1955, BY REASON OF 80 PERCENT PERMANENT DISABILITY, UNDER SECTION 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949 (CODIFIED AS 10 U.S.C. 1201, 1372); THAT AT THE TIME OF HIS RETIREMENT HE HAD COMPLETED 27 YEARS, 2 MONTHS AND 22 DAYS OF SERVICE FOR BASIC PAY PURPOSES, ALL OF WHICH WERE SERVED ON ACTIVE DUTY; AND THAT HE HAD SERVED IN THE GRADE OF LIEUTENANT GENERAL AT LEAST 180 DAYS. HE ELECTED TO HAVE HIS RETIRED PAY COMPUTED ON PERCENTAGE OF DISABILITY AND HE RECEIVED RETIRED PAY OF $766.35 A MONTH (75 PERCENT OF $1,021.80) TAX FREE, FROM SEPTEMBER 1, 1955, THROUGH MAY 31, 1958.

THE OFFICER'S RETIRED PAY FOR THE MONTH OF JANUARY 1960 AT THE RATE OF $812.33 HAS BEEN COMPUTED ON THE BASIS OF THE PROVISIONS OF SECTION 4 (A) OF PUBLIC LAW 85-422, ACT OF MAY 20, 1958, 72 STAT. 128, 10 U.S.C. 1401 NOTE. IT IS STATED THAT IN COMPUTING THE $802.65 MONTHLY RATE, UNDER THE INTERPRETATION PLACED ON 38 COMP. GEN. 701, GENERAL BOATNER FAILED TO RECEIVE AN INCREASE IN PAY EFFECTIVE JUNE 1, 1958, WHICH WAS EQUAL TO 6 PERCENT ABOVE THE RATE HE WAS RECEIVING ON MAY 31, 1958. IT IS FURTHER STATED THAT A DETAILED ANALYSIS OF PUBLIC LAW 85 422 AND OF THE LEGISLATIVE HISTORY OF H.R. 11470, WHICH BECAME PUBLIC LAW 85-422, SUPPORTS THE CONCLUSION THAT THE CONGRESS INTENDED TO PROVIDE AN INCREASE OF AT LEAST 6 PERCENT TO ALL RETIRED MEMBERS WITH MORE THAN 2 YEARS OF SERVICE AND THAT GENERAL BOATNER IS ENTITLED, UNDER THE LAW, TO THIS MINIMUM INCREASE OF 6 PERCENT.

SECTION 4 (A) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, AS AMENDED, PROVIDES AS FOLLOWS:

EXCEPT FOR MEMBERS COVERED BY SECTION 7 OF THIS ACT, MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, SHALL BE ENTITLED TO AN INCREASE OF 6 PERCENTUM OF THAT PAY TO WHICH THEY WERE ENTITLED ON THAT DATE.

SECTION 7 (C) OF THE ACT OF MAY 20, 1958, 72 STAT. 130, 37 U.S.C. 232 NOTE, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW EXCEPT SUBSECTION (A) OF THIS SECTION AND SECTIONS 3 (B) AND 6 (5) OF THIS ACT, THE RETIRED PAY OF ANY OFFICER ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT WHO SERVED ON ACTIVE DUTY BEFORE THAT DATE IN THE GRADE OF LIEUTENANT GENERAL OR VICE ADMIRAL FOR A PERIOD OF AT LEAST 180 DAYS, SHALL, UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW, BE RECOMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF PAY GRADE 10-8 FOR THE CUMULATIVE YEARS OF SERVICE CREDITABLE TO HIM ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS $100, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING HIS RETIRED PAY, MULTIPLIED BY 2 1/2 PERCENTUM, BUT NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH MONTHLY BASIC PAY AS INCREASED BY $100, PLUS 6 PERCENTUM OF THE PRODUCT THEREOF.

SECTION 7 (C) PROVIDES FOR THE RECOMPUTATION OF THE RETIRED PAY OF CERTAIN 3-STAR GENERALS AND ADMIRALS ON A YEARS-OF-SERVICE FORMULA--- USING A MULTIPLIER IN COMPUTING HIS RETIRED PAY,--- SUBJECT TO THE CONDITION THAT HE IS NOT "ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW.' WE THINK THAT A MEMBER RETIRED FOR DISABILITY COULD QUALIFY FOR THE BENEFITS OF SECTION 7 (C), SINCE A MEMBER RETIRED FOR DISABILITY MAY COMPUTE HIS RETIRED PAY UNDER EITHER A YEARS-OF-SERVICE FORMULA OR PERCENTAGE-OF-DISABILITY FORMULA AND IT IS CLEAR FROM THE LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED THAT ALL THE MEMBERS CONCERNED WOULD BE ELIGIBLE TO RECOMPUTE THEIR RETIRED PAY UNDER THAT SECTION.

IN VIEW OF THE LANGUAGE IN SECTION 4 (A) THAT " EXCEPT FOR MEMBERS COVERED BY SECTION 7" AND IN SECTION 7 THAT " NOTWITHSTANDING ANY OTHER PROVISION OF LAW * * * THE RETIRED PAY OF ANY OFFICER * * * SHALL, UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW," BE RECOMPUTED BY THE METHOD THERE PRESCRIBED, IT IS CLEAR THAT GENERAL BOATNER IS ENTITLED TO THE BENEFITS OF SECTION 4 (A) ONLY IF HE IS NOT COVERED BY SECTION 7 OR UNLESS SECTION 4 (A) IS "SOME OTHER PROVISION OF LAW" WITHIN THE MEANING OF SECTION 7.

UNDER THE LITERAL LANGUAGE OF SECTIONS 4 (A) AND 7 IT APPEARS TO US THAT GENERAL BOATNER WOULD BE COVERED BY THE PROVISIONS OF SECTION 7, THAT THE LANGUAGE IN THAT SECTION IS MANDATORY RATHER THAN PERMISSIVE, AND THAT SUCH LANGUAGE DOES NOT SUGGEST THAT SECTION 4 (A) IS "SOME OTHER PROVISION OF LAW.' HOWEVER, THE COURTS HAVE HELD THAT IN CONSTRUING OR CONSIDERING THE APPLICATION OF A STATUTE, IT IS PERMISSIBLE TO LOOK TO ITS EVIDENT SPIRIT AND PURPOSE AS WELL AS TO THE STRICT LETTER OF THE LAW; THAT THE STRICT LETTER MUST YIELD TO ITS EVIDENT SPIRIT AND PURPOSE WHEN THIS IS NECESSARY TO GIVE EFFECT TO THE INTENT OF CONGRESS; THAT UNJUST OR ABSURD CONSEQUENCES ARE, IF POSSIBLE, TO BE AVOIDED; THAT GENERAL TERMS SHOULD BE SO LIMITED IN THEIR APPLICATION AS NOT TO LEAD TO OPPRESSION, INJUSTICE, OR AN ABSURD CONSEQUENCE; THAT IT WILL ALWAYS BE PRESUMED THAT THE LEGISLATURE INTENDED EXCEPTIONS TO ITS LANGUAGE WHICH WOULD AVOID RESULTS OF THIS CHARACTER; THAT THE REASON OF THE LAW IN SUCH CASES SHOULD PREVAIL OVER ITS LETTER; AND THAT CONSTRUCTIONS OF STATUTES ARE TO BE MADE ACCORDING TO THE INTENTION OF THE MAKERS, AND SOMETIMES ARE TO BE EXPOUNDED AGAINST THE LETTER TO PRESERVE THE INTENT. SEE 19 COMP. GEN. 516, AND CASES THERE CITED. IT IS CLEAR THAT IF GENERAL BOATNER HAD SERVED AS A LIEUTENANT GENERAL FOR LESS THAN 180 DAYS, HE WOULD HAVE BEEN COVERED BY SECTION 4 (A) AND WOULD HAVE BEEN ENTITLED TO THE RETIRED PAY CLAIMED ON THE SUBMITTED VOUCHER. IT SEEMS UNREASONABLE TO CONCLUDE THAT THE CONGRESS INTENDED THAT HIS ADDITIONAL SERVICE IN THAT GRADE SHOULD RESULT IN HIS RECEIVING LESS RETIRED PAY ON AND AFTER JUNE 1, 1958. THERE ARE A NUMBER OF STATEMENTS APPEARING IN THE LEGISLATIVE HISTORY OF THE ACT OF MAY 20, 1958, WHICH INDICATE THAT THE CONGRESS INTENDED GENERALLY THAT MEMBERS THEN IN RECEIPT OF RETIRED PAY SHOULD RECEIVE AT LEAST A 6 PERCENT INCREASE IN SUCH PAY COMMENCING JUNE 1, 1958. IN THIS SAME CONNECTION, THE CONFERENCE REPORT ON THE BILL WHICH BECAME THE ACT OF MAY 20, 1958, H. REPORT NO. 1701, 85TH CONGRESS, SHOWS THAT THE CONGRESS INTENDED BY SECTION 7 TO PERMIT 3-STAR AND 4 STAR GENERALS AND ADMIRALS TO RECOMPUTE THEIR RETIRED PAY UNDER THE FORMULAS THERE PRESCRIBED. THAT REPORT STATES THAT THE ACT "PERMITS" THE MEMBERS CONCERNED TO COMPUTE THEIR RETIRED PAY, AND THAT THEY "WILL BE AUTHORIZED TO COMPUTE THEIR RETIRED PAY," ON THE BASIS THERE INDICATED. SEE PAGE 15 OF THE CONFERENCE REPORT. SUCH LEGISLATIVE DECLARATION OF INTENCT IS CONSISTENT WITH THE VIEW THAT SECTION 7 WAS INTENDED AS CONFERRING BENEFITS WHICH WERE GREATER THAN, RATHER THAN TO THE EXCLUSION OF, THOSE GRANTED UNDER SECTION 4 (A), AND IT APPEARS THAT THERE WAS NO INTENTION TO DEPRIVE THE MEMBERS CONCERNED OF THE RIGHT TO CONTINUE TO COMPUTE THEIR RETIRED PAY ON THE PERCENTAGE-OF DISABILITY FORMULA, IF COMPUTATION ON THAT BASIS WOULD RESULT IN GREATER RETIRED PAY THAN WOULD ACCRUE UNDER SECTION 7.

IN THAT VIEW OF THE MATTER, AND IN ORDER TO AVOID THE ABSURD RESULT INDICATED ABOVE, THE PROVISION IN SECTION 7 (C) THAT THE MEMBER SHALL COMPUTE HIS RETIRED PAY UNDER THAT SECTION "UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISIONS OF LAW" MAY BE INTERPRETED AS AUTHORIZING COMPUTATION OF DISABILITY RETIRED PAY ON THE BASIS OF THE DISABILITY RETIRED PAY TO WHICH ENTITLED ON MAY 31, 1958, PLUS THE SIX PERCENT INCREASE AUTHORIZED BY SECTION 4 (A) OF THE ACT. TO THE EXTENT THAT ANYTHING SAID IN OUR DECISION OF OCTOBER 7, 1958, 38 COMP. GEN. 281-- - CONCERNING WHICH MENTION IS MADE IN 38 COMP. GEN. 701--- IS IN CONFLICT WITH THE VIEWS EXPRESSED HEREIN, THAT DECISION WILL NO LONGER BE FOLLOWED.

ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH IS BEING RETURNED TO COLONEL MUHLBACH WITH A COPY OF THIS DECISION, IS AUTHORIZED.