B-146466, AUGUST 15, 1961, 41 COMP. GEN. 116

B-146466, AUGUST 15, 1961, 41 COMP. GEN. 116

PAY - RETIRED - INCREASES UNDER ACT OF MAY 20, 1958--- GENERALS, ADMIRALS, ETC. A MARINE CORPS OFFICER SERVING ON ACTIVE DUTY AS MAJOR GENERAL WHO ON THE DATE OF RETIREMENT IS APPOINTED TO THE GRADE OF LIEUTENANT GENERAL UNDER 10 U.S.C. 5233 AND WHO AFTER MAY 20, 1958--- THE DATE OF THE ACT INCREASING THE PAY RATES AND CREATING NEW PAY GRADES FOR LIEUTENANT GENERALS--- SERVES ON ACTIVE DUTY IN THE GRADE OF LIEUTENANT GENERAL FOR MORE THAN THE PERIOD PRESCRIBED BY SECTION 3 (B) OF THE 1958 ACT IS CONSIDERED TO HAVE BEEN RETIRED IN THE GRADE OF LIEUTENANT GENERAL UNDER 10 U.S.C. 5233 SO THAT UPON RETURN TO AN INACTIVE STATUS HIS RIGHT TO HAVE HIS RETIRED PAY RECOMPUTED AS SPECIFICALLY PROVIDED IN SECTION 3 (B) OF THE 1958 ACT IS NOT ABRIDGED BY 10 U.S.C. 1402 (A) WHICH AUTHORIZES MEMBERS WHO SERVE ON ACTIVE DUTY AFTER RETIREMENT TO HAVE THEIR RETIRED PAY BASED ON THE GRADE IN WHICH THE MEMBER IS ELIGIBLE TO RETIRE.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 15, 1961:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1961, REQUESTING A DECISION AS TO THE CORRECT METHOD OF COMPUTATION OF RETIRED PAY IN THE CASE OF LIEUTENANT GENERAL ROBERT H. PEPPER, USMC, RETIRED, UPON HIS RELEASE FROM ACTIVE DUTY IN AUGUST 1961. THE REQUEST FOR DECISION HAS BEEN ASSIGNED NO. DO-MC- 590 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER DISCLOSES THAT GENERAL PEPPER WAS RETIRED EFFECTIVE MAY 1, 1957, UNDER THE PROVISIONS OF 10 U.S.C. 6390 UPON REACHING THE AGE OF 62 YEARS; THAT HE WAS SERVING ON ACTIVE DUTY AS A MAJOR GENERAL AT THAT TIME AND THAT UPON RETIREMENT HE WAS APPOINTED A LIEUTENANT GENERAL ON THE RETIRED LIST UNDER 10 U.S.C. 5233, HAVING SERVED PREVIOUSLY AS COMMANDING GENERAL, FLEET MARINE FORCE, PACIFIC, WITH THE GRADE AND RANK OF LIEUTENANT GENERAL UNDER THE PROVISIONS OF LAW CODIFIED IN 10 U.S.C. 5232. AT THE TIME OF GENERAL PEPPER'S RETIREMENT, SECTION 5233 PROVIDED THAT HIS APPOINTMENT AS LIEUTENANT GENERAL ON THE RETIRED LIST "DOES NOT INCREASE THE RETIRED PAY OF THE OFFICER.' YOUR LETTER STATES, ALSO, THAT HE WAS RECALLED TO ACTIVE DUTY IN JULY 1960 IN THE GRADE OF LIEUTENANT GENERAL AND THAT HE WILL HAVE SERVED FOR MORE THAN 1 YEAR ON CONTINUOUS ACTIVE DUTY IN THAT GRADE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. THE PROVISIONS OF 10 U.S.C. 1402 (A) AUTHORIZE A MEMBER WHO SERVES ON ACTIVE DUTY AFTER RETIREMENT TO RECOMPUTE HIS RETIRED PAY UPON RELEASE FROM ACTIVE DUTY TO INCLUDE CREDIT FOR SUCH SUBSEQUENT ACTIVE DUTY, WITH RETIRED PAY BASED ON THE "GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY.' SECTION 5233 OF TITLE 10, U.S. CODE, WAS AMENDED BY SUBSECTION 6 (4) OF THE ACT OF MAY 20, 1958, 72 STAT. 122, 129, TO AUTHORIZE COMPUTATION OF RETIRED PAY ON THE HIGHEST GRADE HELD UNDER SECTION 5232 IF THE OFFICER UPON RETIREMENT IS APPOINTED TO THAT GRADE BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. BY VIRTUE OF THE PROVISIONS OF THE LAST PARAGRAPH OF SECTION 6 OF THE 1958 ACT THE PROVISIONS OF SUBSECTION 6 (4) THEREOF APPLY TO OFFICERS RETIRED BEFORE THE EFFECTIVE DATE OF THE 1958 ACT.

YOUR LETTER INDICATES THAT THE REQUIREMENTS OF SECTION 5233 WERE MET UPON THE OFFICER'S RETIREMENT IN 1957 AND THAT HE WAS APPOINTED A LIEUTENANT GENERAL ON THE RETIRED LIST AT THAT TIME BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. IN THIS CONNECTION SEE 38 COMP. GEN. 340.

PRIOR TO THE 1958 PAY ACT THE RETIRED PAY OF A LIEUTENANT GENERAL WAS THE SAME AS THAT OF A MAJOR GENERAL, THE RETIRED PAY FOR EACH BEING BASED ON PAY GRADE O-8. THE 1958 ACT CREATED TWO NEW PAY GRADES, O-9 AND O-10, WITH NEW PAY RATES, AND LIEUTENANT GENERALS WERE ASSIGNED TO PAY GRADE 0- 9. GENERAL PEPPER DID NOT BECOME ENTITLED TO RETIRED PAY BASED ON THOSE RATES EVEN THOUGH SECTION 5233 WAS AMENDED TO PERMIT OFFICERS THERETOFORE RETIRED TO RECEIVE RETIRED PAY BASED ON THE GRADE OF LIEUTENANT GENERAL, SINCE UNDER OTHER PROVISIONS OF THAT ACT OFFICERS RETIRED PRIOR TO JUNE 1958 COULD NOT QUALIFY TO RECEIVE RETIRED PAY BASED ON THE NEW RATES OF PAY UNLESS THEY SERVED ON ACTIVE DUTY FOR A PRESCRIBED PERIOD OF TIME ENDING AFTER MAY 1958. SECTION 3 (B) OF THE 1958 ACT, 37 U.S.C. 232 NOTE, AUTHORIZES RECOMPUTATION OF RETIRED PAY BASED ON THE RATES OF PAY SET FORTH IN THAT ACT FOR ALL RETIRED MEMBERS WHO PERFORM A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST ONE YEAR AFTER RETIREMENT AND ARE RELEASED FROM ACTIVE DUTY AFTER THE EFFECTIVE DATE OF THE ACT, WITH THE SOLE EXCEPTION OF THOSE MEMBERS COVERED BY 10 U.S.C. 6483 (C) WHICH INVOLVES CERTAIN HONORARY PROMOTIONS.

PRIOR TO THE DATE GENERAL PEPPER WAS ORDERED TO ACTIVE DUTY, HE APPARENTLY WAS ENTITLED TO RETIRED PAY AS A LIEUTENANT GENERAL AND IN VIEW OF HIS YEARS OF SERVICE IT APPEARS THAT SUCH PAY WAS AT THE MAXIMUM RATE PROVIDED BY LAW FOR AN OFFICER OF THAT RANK COMPUTED ON THE BASIS OF THE PAY RATES IN EFFECT PRIOR TO THE ACT OF MAY 20, 1958, 72 STAT. 122, 37 U.S.C. 232. HE HAS SERVED AS A LIEUTENANT GENERAL ON ACTIVE DUTY FOR MORE THAN A YEAR AS SPECIFIED IN SECTION 3 (B) OF THAT ACT AND UPON HIS RETURN TO AN INACTIVE RETIRED STATUS AS A LIEUTENANT GENERAL HE IS ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED AS SPECIFICALLY PROVIDED IN THAT SECTION ON THE BASIS OF THE RATES OF PAY FIXED IN THE ACT OF MAY 20, 1958. THE RIGHT TO THAT RECOMPUTATION IS NOT ABRIDGED BY 10 U.S.C. 1402. ACCORDINGLY, HE IS ENTITLED TO RECOMPUTE HIS RETIRED PAY WHEN RELEASED FROM ACTIVE DUTY ON THE BASIS OF THE PAY PROVIDED IN THE 1958 ACT FOR OFFICERS IN PAY GRADE O-9.