B-147288, NOVEMBER 29, 1961, 41 COMP. GEN. 363

B-147288: Nov 29, 1961

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IS NOT REQUIRED TO MAKE A RETIRED PAY ELECTION UNDER EITHER SECTION 202 (D) OR 511 (B). - A MEMBER IS ENTITLED TO RETIRED PAY UNDER THE PROVISION WHICH GIVES HIM THE GREATER RETIRED PAY AND IF CONDITIONS CHANGE. - HE IS ENTITLED TO A RECOMPUTATION UNDER THE MORE FAVORABLE METHOD- . - HE IS NOT ENTITLED TO RETIRED PAY AS A WARRANT OFFICER IN THE ABSENCE OF A SATISFACTORY SERVICE DETERMINATION REQUIRED UNDER SECTION 511 (B). REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT TO WARRANT OFFICER WILBUR M. WELLEMEYER'S CASE ARE STATED AS FOLLOWS: (A) AS OF 31 JULY 1934. WAS CREDITED WITH 3 YEARS. (B) HE WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE RETIRED LIST OF THE MARINE CORPS IN THE ENLISTED GRADE OF QUARTERMASTER SERGEANT ON 1 AUGUST 1934 UNDER THE ACT OF MARCH 2.

B-147288, NOVEMBER 29, 1961, 41 COMP. GEN. 363

PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD - MOST FAVORABLE FORMULA ALTHOUGH A RETIRED MARINE CORPS MEMBER WHO, WITHOUT A RETIRED PAY ELECTION, HAS BEEN RECEIVING RETIRED PAY COMPUTED UNDER SECTION 202 (D) OF THE CAREER COMPENSATION ACT OF 1949 FOR A RETIREMENT IN 1934 IN AN ENLISTED GRADE, EVEN THOUGH HE HAD BEEN ADVANCED ON THE RETIRED LIST TO QUARTERMASTER CLERK (WARRANT OFFICER) UNDER THE ACT OF MAY 7, 1932, IS NOT REQUIRED TO MAKE A RETIRED PAY ELECTION UNDER EITHER SECTION 202 (D) OR 511 (B), BECAUSE FROM OCTOBER 1, 1949--- DATE OF THE CAREER COMPENSATION ACT OF 1949--- A MEMBER IS ENTITLED TO RETIRED PAY UNDER THE PROVISION WHICH GIVES HIM THE GREATER RETIRED PAY AND IF CONDITIONS CHANGE--- AS THEY DID FOR THE MEMBER UNDER SECTION 5 OF THE CAREER INCENTIVE ACT OF 1955--- HE IS ENTITLED TO A RECOMPUTATION UNDER THE MORE FAVORABLE METHOD- -- SUCH RIGHT TO CHANGE NOT HAVING BEEN TERMINATED UNTIL JUNE 1, 1958--- HE IS NOT ENTITLED TO RETIRED PAY AS A WARRANT OFFICER IN THE ABSENCE OF A SATISFACTORY SERVICE DETERMINATION REQUIRED UNDER SECTION 511 (B).

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, NOVEMBER 29, 1961:

BY FIRST ENDORSEMENT DATED SEPTEMBER 25, 1961, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF SEPTEMBER 8, 1961, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT TO WARRANT OFFICER WILBUR M. WELLEMEYER, O3553, U.S. MARINE CORPS, RETIRED, OF THE DIFFERENCE BETWEEN THE RETIRED PAY PAID TO HIM DURING THE PERIOD FROM APRIL 1, 1955, THROUGH AUGUST 31, 1961, AND THAT APPLICABLE TO HIM AS A WARRANT OFFICER UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, DURING THE SAME PERIOD.

THE MATERIAL FACTS IN MR. WELLEMEYER'S CASE ARE STATED AS FOLLOWS:

(A) AS OF 31 JULY 1934, HE HAD COMPLETED 28 YEARS, 8 MONTHS, AND 18 DAYS OF ACTIVE SERVICE IN THE REGULAR MARINE CORPS, AND WAS CREDITED WITH 3 YEARS, 6 MONTHS, AND 24 DAYS OF DOUBLE TIME UNDER THE STATUTORY PROVISIONS CITED IN THE HISTORICAL AND REVISION NOTES TO 10 U.S.C. 3914 (1958 EDITION), MAKING A TOTAL OF 32 YEARS, 3 MONTHS, AND 12 DAYS OF SERVICE FOR RETIREMENT PURPOSES.

(B) HE WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE RETIRED LIST OF THE MARINE CORPS IN THE ENLISTED GRADE OF QUARTERMASTER SERGEANT ON 1 AUGUST 1934 UNDER THE ACT OF MARCH 2, 1907 (34 STAT. 1217).

(C) HAVING SERVED CREDITABLY AS A QUARTERMASTER CLERK (WARRANT OFFICER)DURING WORLD WAR I, HE WAS ADVANCED TO THAT GRADE ON THE RETIRED LIST ON 14 AUGUST 1934 UNDER THE ACT OF MAY 7, 1932 (47 STAT. 150).

(D) THE SECRETARY OF THE NAVY HAS NOT DETERMINED THAT HE "SATISFACTORILY HELD" THE GRADE OF QUARTERMASTER CLERK, PRESUMABLY BECAUSE A DETERMINATION WAS MADE BY THE ACTING SECRETARY OF THE NAVY IN 1934 THAT HIS SERVICE AS A QUARTERMASTER CLERK HAD BEEN "CREDITABLE" (SEE ENCLOSURE (3) (, THE TWO TERMS PERHAPS BEING CONSIDERED AS SYNONYMOUS FOR THE PURPOSES OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

(E) THE RANK OF QUARTERMASTER SERGEANT WAS CHANGED TO MASTER SERGEANT AFTER HE RETIRED BUT BEFORE 1 OCTOBER 1949. RETIRED MASTER SERGEANTS WERE ASSIGNED TO PAY GRADE E-7 EFFECTIVE 1 OCTOBER 1949 UNDER SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949.

(F) HE HAS BEEN PAID THE MAXIMUM MONTHLY RETIRED PAY PROVIDED FOR THE GRADE IN WHICH HE RETIRED SINCE 1 OCTOBER 1949 UNDER SECTION 202 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS FOLLOWS:

1 OCTOBER 1949-30 APRIL 1952

$220.50 ( BASIC PAY OF $294.00 MULTIPLIED BY 75 PERCENT)

1 MAY 1952-31 MARCH 1955

$229.32 ( BASIC PAY OF $350.76 MULTIPLIED BY 75 PERCENT)

(SEE SECTION 2 (A) OF THE ACT OF MAY 19, 1952, 68 STAT. 80.)

1 APRIL 1955-31 MAY 1958

$251.55 ( BASIC PAY OF $335.40 MULTIPLIED BY 75 PERCENT)

(SEE SECTION 5 OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 22.)

1 JUNE 1958-31 AUGUST 1961

$266.64 ( RETIRED PAY OF $251.55 INCREASED BY 6 PERCENT)

(SEE SECTION 4 (A) OF ACT OF MAY 20, 1958, 72 STAT. 128.)

YOU SAY THAT THE RETIRED PAY CREDITED TO MR. WELLEMEYER EFFECTIVE OCTOBER 1, 1949, IS GREATER THAN THE RETIRED PAY HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1949, AND YOU POINT OUT THAT THE RETIRED PAY HE RECEIVED FROM OCTOBER 1, 1949, THROUGH MARCH 31, 1955, ALSO IS GREATER THAN THAT PROVIDED BY METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT FOR A WARRANT OFFICER IN PAY GRADE W-1 WITH 28 YEARS AND 8 MONTHS OF ACTIVE SERVICE, $216.25 FROM OCTOBER 1, 1949, AND $224.90 FROM MAY 1, 1952. SINCE APRIL 1, 1955, HOWEVER, THE RETIRED PAY APPLICABLE TO HIM AS A WARRANT OFFICER IN PAY GRADE W-1 UNDER METHOD (B/--- $266.95 FROM APRIL 1, 1955, AND $282.97 FROM JUNE 1, 1958 -- HAS BEEN GREATER THAN THE RETIRED PAY HE HAS BEEN PAID FROM THAT DATE.

YOU REFER TO OUR DECISION OF SEPTEMBER 6, 1950, B-93945, AND YOU SAY IT IS THERE INDICATED THAT A MEMBER WHO RETIRED BEFORE OCTOBER 1, 1949, FOR REASONS OTHER THAN PHYSICAL DISABILITY MUST BE PAID RETIRED PAY UNDER SECTION 511 OF THE CAREER COMPENSATION ACT UNLESS HE IS ELIGIBLE FOR, AND ELECTS TO RECEIVE, RETIRED PAY UNDER SECTION 202 (D) OF THAT ACT, 37 U.S.C. 233 (D). YOU STATE THAT HEADQUARTERS, UNITED STATES MARINE CORPS, DID NOT AFFORD MR. WELLEMEYER AN OPPORTUNITY TO ELECT TO RECEIVE PAY UNDER SECTION 202 (D), BUT INSTEAD PAID HIM IN ACCORDANCE WITH THAT SECTION WITHOUT ANY ELECTION OR OTHER ACTION ON HIS PART. YOU SAY THAT, SINCE THE CAREER COMPENSATION ACT DOES NOT EXPRESSLY REQUIRE THAT AN ELECTION BE MADE TO RECEIVE RETIRED PAY UNDER SECTION 202 (D) THEREOF, THE QUESTION ARISES WHETHER IN THE ABSENCE OF AN ELECTION TO THAT EFFECT HE IS ENTITLED TO RETIRED PAY COMPUTED ONLY ON THE BASIS OF THE GRADE OF WARRANT OFFICER FROM OCTOBER 1, 1949, UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OR WHETHER HE IS ENTITLED TO RETIRED PAY EFFECTIVE OCTOBER 1, 1949, MAY 1, 1952, AND APRIL 1, 1955, COMPUTED UNDER EITHER SECTION 202 (D) OR METHOD (B) OF SECTION 511, WHICHEVER RESULTS IN THE GREATER AMOUNT ON THOSE DATES.

WHEN MR. WELLEMEYER WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF QUARTERMASTER CLERK (WARRANT OFFICER) UNDER THE ACT OF MAY 7, 1932, 47 STAT. 150, 34 U.S.C. 399E (1952 USED.), HIS ADVANCEMENT WAS SUBJECT TO THE PROVISIONS OF THAT ACT TO THE EFFECT THAT SUCH ACTION WOULD RESULT IN "NO INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES.' IT APPEARS THAT, FOR SUCH REASON, HE CONTINUED TO RECEIVE THE RETIRED PAY OF A QUARTERMASTER SERGEANT WITH OVER 30 YEARS' SERVICE UNTIL OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT, SECTION 511 OF WHICH, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B)MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * *, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM * * *. ( ITALICS SUPPLIED.)

SECTION 202 (D) OF THE CAREER COMPENSATION ACT PROVIDES THAT---

THE PERIOD OF TIME TO BE COUNTED IN THE COMPUTATION OF BASIC PAY SHALL BE THE TOTAL OF ALL PERIODS AUTHORIZED TO BE COUNTED FOR SUCH PURPOSE IN ANY OF THE UNIFORMED SERVICES, BUT THE SAME PERIOD OF TIME SHALL NOT, FOR ANY REASON, BE COUNTED MORE THAN ONCE: PROVIDED, THAT RETIRED ENLISTED MEN HERETOFORE OR HEREAFTER RETIRED WITH CREDIT FOR THIRTY YEARS' SERVICE IN THE ARMY, NAVY, OR MARINE CORPS, AND WHO SERVED BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES BETWEEN 1898 1912, SUCH SERVICE HEAVING BEEN COMPUTED UNDER PREVIOUS LAWS AS DOUBLE TIME TOWARD RETIREMENT, SHALL BE ENTITLED TO RECEIVE THE MAXIMUM RETIRED PAY NOW OR HEREAFTER PROVIDED FOR THE GRADE IN WHICH RETIRED * * *.

IN OUR DECISION OF JULY 17, 1957, B-131700, 37 COMP. GEN. 31, TO THE SECRETARY OF DEFENSE, IT WAS POINTED OUT AT PAGE 34, IN ANSWER TO QUESTION 5, THAT SECTION 511 OF THE CAREER COMPENSATION ACT DOES NOT PROVIDE FOR AN ELECTION WITH RESPECT TO RETIRED PAY; THAT TWO METHODS OF COMPUTING RETIRED PAY ARE THERE PROVIDED AND RETIRED MEMBERS WHOSE RIGHTS ARE GOVERNED BY SUCH PROVISIONS OF LAW ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED BY THE METHOD WHICH PRODUCES THE GREATER AMOUNT OF RETIRED PAY; AND THAT AFTER RECEIVING RETIRED PAY COMPUTED BY ONE METHOD, IF CONDITIONS CHANGE IN SUCH A MANNER THAT A RETIRED MEMBER'S PAY WOULD BE INCREASED BY COMPUTING HIS RETIRED PAY UNDER THE OTHER METHOD, SUCH RECOMPUTATION WAS AUTHORIZED AND REQUIRED UNDER SECTION 511 WITHOUT ANY ELECTION ON HIS PART. THE CAREER COMPENSATION ACT DOES NOT EXPRESSLY REQUIRE THAT AN ELECTION BE MADE TO RECEIVE RETIRED PAY UNDER SECTION 202 (D). ACCORDINGLY, WE SEE NO REASON WHY OUR RULING OF JULY 17, 1957, SHOULD NOT BE EQUALLY APPLICABLE TO CASES WHERE THE RETIRED PAY OF RETIRED MEMBERS MAY BE COMPUTED EITHER UNDER SECTION 202 (D) OR UNDER SECTION 511. HOWEVER, THE RIGHT TO CHANGE FROM ONE METHOD TO ANOTHER WAS TERMINATED EFFECTIVE JUNE 1, 1958, BY THE ACT OF MAY 20, 1958, 72 STAT. 122. SEE DECISION OF MAY 4, 1960, OF THE COURT OF CLAIMS IN THE CASE OF LOUIS E. FAGAN, ET AL. V. UNITED STATES, 149 CT. CL. 716, IN FAVOR OF LEWIS L. GOVER, PLAINTIFF NO. 2, AND OUR DECISION OF OCTOBER 20, 1960, B-131700, 40 COMP. GEN. 222.

IT IS OUR VIEW, HOWEVER, THAT IN THE ABSENCE OF A SPECIFIC DETERMINATION BY THE SECRETARY OF THE NAVY UNDER THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT THAT MR. WELLEMEYER SATISFACTORILY HELD THE GRADE OF WARRANT OFFICER, NO PROPER BASIS HAS BEEN PRESENTED FOR PAYING HIM THE RETIRED PAY OF THAT GRADE. SEE OUR DECISIONS OF JANUARY 28, 1955, AND JUNE 21, 1955, B-121773. COMPARE OUR DECISION OF JANUARY 9, 1952, B- 106251, 31 COMP. GEN. 254, 256.