B-149057, JUN. 22, 1962

B-149057: Jun 22, 1962

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YOUR REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. WHO WAS BORN OCTOBER 1. THE OFFICER WAS NOTIFIED BY THE BUREAU OF NAVAL PERSONNEL THAT HAVING COMPLETED AT LEAST 20 YEARS OF SATISFACTORY FEDERAL SERVICE AND ATTAINED THE AGE OF 60 ON OCTOBER 1. THE MATTER WAS SUBMITTED TO THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR DECISION AND ON NOVEMBER 9. THAT OFFICIAL CONCLUDED THAT THE ACTION TAKEN IN THE CASE WAS CORRECT. THAT HIS DATE OF ENTITLEMENT TO RETIRED PAY IS OCTOBER 1. WHILE THERE IS AUTHORITY FOR THE VIEW THAT A PERSON ATTAINS A GIVEN AGE AT THE FIRST MOMENT OF THE DAY PRECEDING THE ANNIVERSARY OF HIS BIRTH. THE ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY HAVE VIEWED DIFFERENT LAWS AUTHORIZING RETIREMENT WITH PAY UPON THE ATTAINMENT OF A CERTAIN AGE AS REQUIRING THAT THE FULL STATUTORY PERIOD MUST ELAPSE BEFORE RETIREMENT MAY BE LEGALLY EFFECTUATED.

B-149057, JUN. 22, 1962

TO RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER:

BY SECOND ENDORSEMENT DATED MAY 29, 1962, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF APRIL 25, 1962, REQUESTING AN ADVANCE DECISION REGARDING THE DATE ON WHICH A PERSON ATTAINS THE AGE OF 60 YEARS WITHIN THE MEANING OF 10 U.S.C. 1331. YOUR REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. DO-N-646 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE CASE INVOLVED IN THAT OF CAPTAIN RUSSELL S. TONNESON, CEC, USNR, RETIRED, 87741, WHO WAS BORN OCTOBER 1, 1901. IT APPEARS THAT ON AUGUST 2, 1961, CAPTAIN TONNESON APPLIED FOR RETIREMENT UNDER THE PROVISIONS OF CHAPTER 67 OF TITLE 10, U.S. CODE, MAINTAINING THAT HE WOULD BECOME ENTITLED TO RETIRED PAY ON OCTOBER 1, 1961. ON DECEMBER 12, 1961, THE OFFICER WAS NOTIFIED BY THE BUREAU OF NAVAL PERSONNEL THAT HAVING COMPLETED AT LEAST 20 YEARS OF SATISFACTORY FEDERAL SERVICE AND ATTAINED THE AGE OF 60 ON OCTOBER 1, 1961, HIS REQUEST TO BE TRANSFERRED FROM THE RETIRED RESERVE TO THE NAVY RESERVE RETIRED LIST PURSUANT TO 10 U.S.C. 1331, HAD BEEN APPROVED BY THE SECRETARY OF THE NAVY, EFFECTIVE NOVEMBER 1, 1961. THE MATTER WAS SUBMITTED TO THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR DECISION AND ON NOVEMBER 9, 1961, THAT OFFICIAL CONCLUDED THAT THE ACTION TAKEN IN THE CASE WAS CORRECT. HOWEVER, CAPTAIN TONNESON, IN LETTER OF MARCH 12, 1962, CONTENDED THAT HE ATTAINED THE AGE OF 60 YEARS AT MIDNIGHT ON SEPTEMBER 29, 1961, AND THAT HIS DATE OF ENTITLEMENT TO RETIRED PAY IS OCTOBER 1, 1961, AS APPROVED BY THE SECRETARY, AND HE CLAIMS RETIREMENT PAY IN THE AMOUNT OF $425.70 FOR THE MONTH OF OCTOBER. THE OFFICER CITED IN SUPPORT OF HIS POSITION BOUVIER'S LAW DICTIONARY AND THE REGULATIONS OF THE SOCIAL SECURITY ADMINISTRATION BOTH TO THE EFFECT THAT AN INDIVIDUAL'S AGE CHANGES ON THE FIRST MOMENT OF THE DAY PRECEDING THE ANNIVERSARY OF HIS BIRTH CORRESPONDING TO SUCH AGE. YOU REQUEST AN ADVANCE DECISION FOR YOUR GUIDANCE IN THIS MATTER.

WHILE THERE IS AUTHORITY FOR THE VIEW THAT A PERSON ATTAINS A GIVEN AGE AT THE FIRST MOMENT OF THE DAY PRECEDING THE ANNIVERSARY OF HIS BIRTH, THE ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY HAVE VIEWED DIFFERENT LAWS AUTHORIZING RETIREMENT WITH PAY UPON THE ATTAINMENT OF A CERTAIN AGE AS REQUIRING THAT THE FULL STATUTORY PERIOD MUST ELAPSE BEFORE RETIREMENT MAY BE LEGALLY EFFECTUATED. SEE 10 COMP. GEN. 28. THAT IS TO SAY, THAT WHILE IT MAY BE PROPER TO REGARD PERSON AS HAVING ATTAINED THE AGE OF 60 ON THE DAY BEFORE HIS 60TH BIRTHDAY, HIS BIRTHDAY IS THE ONE WHICH IS LEGALLY SIGNIFICANT IN DETERMINING WHEN A RIGHT TO RETIRED PAY ACCRUES.

THE VIEWS EXPRESSED ABOVE RECEIVE SUPPORT FROM THE LEGISLATIVE HISTORY OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, NOW CODIFIED IN CHAPTER 67, 10 U.S.C. WHEN THE THEN PROPOSED LEGISLATION WAS BEING DEBATED ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES, MR. JOHNSON OF CALIFORNIA DISCUSSED AN EXAMPLE CITED BY HIM. WHILE HE STATED THAT THE MAN HE HAD IN MIND ,QUALIFIED FOR RETIREMENT PAY ON REACHING AGE 60," HE ADDED THAT "THE PAY WOULD START ON THE FIRST OF THE MONTH AFTER HIS SIXTIETH BIRTHDAY (ANNIVERSARY OF HIS BIRTH).' SEE 94 CONGRESSIONAL RECORD, 2482-2483 (1948).

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 23, 5 U.S.C. 47A, PROVIDES, IN SUBSTANCE, THAT AFTER JULY 1, 1930, THE RETIREMENT OF FEDERAL PERSONNEL FOR WHATEVER CAUSE SHALL TAKE EFFECT AND BE EFFECTIVE FOR ALL PURPOSES ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE. THAT ACT APPLIES TO RETIREMENTS UNDER CHAPTER 67 OF TITLE 10. SEE 38 COMP. GEN. 146, AND B- 139692, AUGUST 24, 1959.

IF IT IS PROPER TO REGARD CAPTAIN TONNESON AS HAVING ATTAINED THE AGE OF 60 YEARS ON SEPTEMBER 30, 1961, THE EFFECTIVE DATE OF HIS RETIREMENT NEVERTHELESS WOULD HAVE BEEN OCTOBER 1, 1961, EXCEPT FOR THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. SINCE HIS RETIREMENT WOULD THUS HAVE BECOME EFFECTIVE DURING THE MONTH OF OCTOBER 1961, HIS RIGHT TO RETIRED PAY DID NOT COMMENCE UNTIL THE "FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE" WHICH WAS NOVEMBER 1, 1961. ACCORDINGLY, ESTABLISHING CAPTAIN TONNESON'S ENTITLEMENT TO RETIRED PAY UNDER CHAPTER 67, OF TITLE 10 AS OF NOVEMBER 1, 1961, WAS CORRECT AND THERE IS NO AUTHORITY UNDER PRESENT LAW FOR PAYMENT OF THE ADDITIONAL AMOUNT CLAIMED BY HIM.