B-147156, NOVEMBER 27, 1961, 41 COMP. GEN. 337

B-147156: Nov 27, 1961

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MET THE SERVICE REQUIREMENTS FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 IS REGARDED AS HAVING HIS PAY RIGHTS FIXED BY THE LAWS RELATING TO DISABILITY RETIREMENT RATHER THAN THE LAWS APPLICABLE TO PERSONS RELEASED TO INACTIVE DUTY AS FLEET RESERVISTS. SO LONG AS THE MEMBER REMAINS ON THE TEMPORARY DISABILITY RETIRED LIST HE IS NOT ENTITLED TO RETAINER PAY. ALTHOUGH RETAINER PAY FOR NAVY AND MARINE CORPS MEMBERS TRANSFERRED TO THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE IS IN THE NATURE OF REDUCED RETIRED PAY. REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF RETAINER PAY TO FIRST SERGEANT WILLARD F. YOU STATE THAT FIRST SERGEANT KIRSCHBAUM WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE UNITED STATES MARINE CORPS ON JULY 1.

B-147156, NOVEMBER 27, 1961, 41 COMP. GEN. 337

PAY - RETIRED - FLEET RESERVISTS - DISABILITY V. OTHER RETIREMENT--- WORDS AND PHRASES - "RETIRED PAY" A MARINE CORP MEMBER WHO, WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, MET THE SERVICE REQUIREMENTS FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 IS REGARDED AS HAVING HIS PAY RIGHTS FIXED BY THE LAWS RELATING TO DISABILITY RETIREMENT RATHER THAN THE LAWS APPLICABLE TO PERSONS RELEASED TO INACTIVE DUTY AS FLEET RESERVISTS, AND ALTHOUGH RETAINER PAY COMPUTED UNDER 10 U.S.C. 6330 WOULD ENTITLE THE MEMBER TO A LARGER AMOUNT, THE TERM "RETIRED PAY" IN 10 U.S.C. 1401 MUST BE ACCORDED ITS USUAL MEANING WHICH DOES NOT INCLUDE "RETAINER PAY" IN THE ABSENCE OF ANYTHING IN THE LEGISLATIVE HISTORY OF THE SECTION TO INDICATE A DIFFERENT CONGRESSIONAL INTENT; THEREFORE, SO LONG AS THE MEMBER REMAINS ON THE TEMPORARY DISABILITY RETIRED LIST HE IS NOT ENTITLED TO RETAINER PAY. ALTHOUGH RETAINER PAY FOR NAVY AND MARINE CORPS MEMBERS TRANSFERRED TO THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE IS IN THE NATURE OF REDUCED RETIRED PAY, THE TERM "RETIRED PAY" GENERALLY HAS REFERENCE ONLY TO THAT PERCENTAGE OF BASE AND LONGEVITY PAY OR BASIC PAY FIXED BY A PARTICULAR STATUTE TO BE PAID TO A RETIRED MEMBER; THEREFORE, THE TERM AS USED IN 10 U.S.C. 1401 WHICH GIVES MEMBERS ENTITLED TO RETIRED PAY THE BENEFIT OF THE MOST FAVORABLE METHOD OF COMPUTATION MUST BE ACCORDED ITS USUAL MEANING AND MAY NOT BE CONSTRUED AS INCLUDING RETAINER PAY.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, NOVEMBER 27, 1961:

BY FIRST ENDORSEMENT DATED SEPTEMBER 8, 1961, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF AUGUST 30, 1961, CDH/JR, REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF RETAINER PAY TO FIRST SERGEANT WILLARD F. KIRSCHBAUM, 275356, UNITED STATES MARINE CORPS, RETIRED, FROM AND AFTER JULY 1, 1961, BASED ON THE MONTHLY BASIC PAY OF AN ENLISTED MEMBER IN PAY GRADE E-8 WITH OVER 22 YEARS OF SERVICE FOR BASIC PAY PURPOSES ($380) RATHER THAN RETIRED PAY BASED ON THE MONTHLY BASIC PAY OF AN ENLISTED MEMBER IN PAY GRADE E-8 WITH OVER 20 YEARS OF SERVICE FOR BASIC PAY PURPOSES ($370). THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. DO-MC-605 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT FIRST SERGEANT KIRSCHBAUM WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE UNITED STATES MARINE CORPS ON JULY 1, 1961, UNDER 10 U.S.C. 1203, WITH A DISABILITY RATING OF 10 PERCENT. AT THE TIME OF HIS TRANSFER, HE HAD COMPLETED 21 YEARS 8 MONTHS AND 19 DAYS OF ACTIVE SERVICE IN THE REGULAR MARINE COR SINCE JULY 1, 1961, FIRST SERGEANT KIRSCHBAUM HAS BEEN CREDITED RETIRED PAY EQUIVALENT TO 55 PERCENT (2 1/2 TIMES 22 YEARS OF ACTIVE SERVICE) OF THE MONTHLY BASIC PAY OF AN ENLISTED MEMBER IN PAY GRADE E-8 WITH OVER 20, BUT NOT OVER 22 YEARS OF SERVICE, AS PROVIDED FOR BY FORMULA 2 AND FOOTNOTE 3 OF 10 U.S.C. 1401.

THE ELEMENT GIVING RISE TO THE QUESTION PRESENTED FOR DECISION IS THAT THE MEMBER MET THE SERVICE REQUIREMENTS FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE ON JULY 1, 1961, UNDER 10 U.S.C. 6330 (B). HAD HE BEEN SO TRANSFERRED, HE WOULD HAVE BEEN ENTITLED TO "RETAINER PAY" EQUIVALENT TO 55 PERCENT (2 1/2 TIMES 22 YEARS OF ACTIVE SERVICE) COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF AN ENLISTED MEMBER IN PAY GRADE E-8 WITH OVER 22 YEARS OF SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 6330 (D).

FORMULA NO. 2, PRESCRIBED IN 10 U.S.C. 1401, FOR PERSONS ENTITLED TO RECEIVE DISABILITY "RETIRED PAY" UNDER AUTHORITY OF SECTION 1202, PROVIDES THAT THE MONTHLY BASIC PAY OF THE GRADE TO WHICH THE MEMBER IS ENTITLED UNDER SECTION 1372, COMPUTED AT RATES APPLICABLE WHEN THE MEMBER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, IS TO BE MULTIPLIED AS THE MEMBER MAY ELECT BY (1) 2 1/2 PERCENT OF THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1208 OR (2) THE PERCENTAGE OF DISABILITY ON THE DATE HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. SECTION 1401 FURTHER PROVIDES THAT- -

HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

WHILE IT HAS BEEN HELD THAT RETAINER PAY IS IN THE NATURE OF REDUCED RETIRED PAY, THE TERM ,RETIRED PAY" GENERALLY HAS REFERENCE ONLY TO THAT PERCENTAGE OF BASE AND LONGEVITY PAY OR BASIC PAY FIXED BY A PARTICULAR STATUTE TO BE PAID TO A RETIRED MEMBER AND NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF 10 U.S.C. 1401 TO SHOW THAT THE TERM "RETIRED PAY" AS USED THEREIN WAS INTENDED TO HAVE OTHER THAN ITS USUAL MEANING. CONSIDERED IN 40 COMP. GEN. 43 WHETHER A MEMBER WHO WAS RETAINED ON ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE AND SUBSEQUENTLY RETIRED FOR DISABILITY UNDER SECTIONS 402 (B), 37 U.S.C. 272 (B), AND 402 (F), 37 U.S.C. 272 (F), OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817 AND 820, RATHER THAN BEING RELEASED TO INACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE, IS REGARDED AS HAVING BEEN RETIRED FOR PHYSICAL DISABILITY WITH RIGHTS FOR DETERMINATION ON THE BASIS OF THE LAW RELATING TO DISABILITY RETIREMENTS. WE CONCLUDED THAT SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316 (1952 USED.), AS IT RELATED TO FLEET RESERVISTS SERVING ON ACTIVE DUTY, WAS APPLICABLE ONLY IN SITUATIONS WHEN THE PERSON CONCERNED REVERTED TO HIS FLEET RESERVE STATUS UPON HIS RELEASE FROM ACTIVE DUTY.

THE SAME REASONING APPLIES IN THE PRESENT CASE AND IT MUST BE HELD THAT "RETAINER PAY" GRANTED UNDER 10 U.S.C. 6330 MAY NOT BE CONSIDERED AS "RETIRED PAY" AS THAT TERM IS USED IN SECTION 1401. THEREFORE, THE MEMBER MAY NOT RECEIVE RETAINER PAY SO LONG AS HE REMAINS ON THE TEMPORARY DISABILITY RETIRED LIST. CF. 33 COMP. GEN. 300 AND 37 COMP. GEN. 446, 450.