B-149499, AUGUST 20, 1962, 42 COMP. GEN. 116

B-149499, AUGUST 20, 1962, 42 COMP. GEN. 116

PAY - SERVICE CREDITS - TEMPORARY DISABILITY RETIRED LIST THE RESTRICTION IN THE MILITARY PAY INCREASE ACT OF MAY 20, 1958, WHICH CHANGED THE FORMULA FOR COMPUTATION OF RETIRED PAY TO PREVENT THE ACCUMULATION AFTER MAY 31, 1958, OF FURTHER CREDIT FOR INACTIVE SERVICE (10 U.S.C. 1405) SHOULD BE APPLIED PROSPECTIVELY ONLY SO THAT A REGULAR ARMY OFFICER WHO, AFTER 3 YEARS ON THE TEMPORARY DISABILITY RETIRED LIST FROM 1957 TO 1960, IS RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY MAKES APPLICATION FOR RETIREMENT ON LENGTH OF SERVICE UNDER 10 U.S.C. 3911, IS NOT PRECLUDED FROM HAVING THE INACTIVE SERVICE ON THE TEMPORARY DISABILITY RETIRED LIST EARNED THROUGH MAY 31, 1958, INCLUDED FOR PERCENTAGE MULTIPLIER PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY.

TO THE SECRETARY OF THE ARMY, AUGUST 20, 1962:

REFERENCE IS MADE TO THE LETTER OF JULY 17, 1962, FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY, PRESENTING FOR DECISION A QUESTION AS TO THE PROPRIETY, IN COMPUTING RETIRED PAY UNDER FORMULA B OF 10 U.S.C. 3991, OF INCLUDING CREDIT FOR PERCENTAGE MULTIPLE PURPOSES FOR THE TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST IN THE CASE OF AN OFFICER OF THE REGULAR ARMY NOW ON THAT LIST WHO HAS BEEN FOUND PHYSICALLY FIT FOR ACTIVE DUTY AND WHO CONTEMPLATES RETIREMENT UNDER 10 U.S.C. 3911 FOLLOWING A PERIOD OF ACTIVE DUTY AFTER HIS RECALL TO ACTIVE DUTY HAS BEEN ACCOMPLISHED. THE REQUEST FOR DECISION WAS CLEARED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND WAS ASSIGNED SUBMISSION NUMBER SS-A-664.

CHAPTER 61 OF TITLE 10, U.S. CODE, GOVERNS RETIREMENT OR SEPARATION FROM THE MILITARY SERVICE BY REASON OF PHYSICAL DISABILITY AND AUTHORIZES MEMBERS WHOSE DISABILITY "MAY BE OF A PERMANENT NATURE" TO BE PLACED ON A TEMPORARY DISABILITY RETIRED LIST WITH RETIRED PAY FOR A PERIOD NOT TO EXCEED 5 YEARS. SECTION 1210 OF TITLE 10 PROVIDES THAT IF A MEMBER ON A TEMPORARY DISABILITY RETIRED LIST IS FOUND TO BE PHYSICALLY FIT FOR ACTIVE DUTY THE SECRETARY SHALL TREAT HIM AS PROVIDED IN SECTION 1211 OF THAT TITLE. SECTION 1211 PROVIDES THAT SUCH MEMBER, IF A COMMISSIONED OFFICER OF A REGULAR COMPONENT, SHALL BE RECALLED TO ACTIVE DUTY, WITH HIS CONSENT, AND, AS SOON AS PRACTICABLE, MAY BE REAPPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE TO THE ACTIVE LIST OF HIS REGULAR COMPONENT IN THE REGULAR GRADE HELD BY HIM WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR IN THE NEXT HIGHER REGULAR GRADE.

SECTION 202 (B) OF THE CAREER. COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 808, 37 U.S.C. 233 (B) (1952 ED.), PROVIDES THAT MEMBERS SHALL ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES FOR CERTAIN PERIODS, INCLUDING PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST, WITH A PROVISO WHICH PROHIBITS THE USE OF SUCH INACTIVE SERVICE CREDIT "TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT.' TITLE IV CONTAINED THE PROVISIONS GOVERNING RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY, WHICH PROVISIONS ARE NOW CONTAINED IN TITLE 10, U.S.C. IT HAS BEEN HELD THAT THE PROVISO CITED ABOVE REFERS TO MEMBERS WHO HAVE BEEN RETIRED AND ARE IN RECEIPT OF RETIRED OR RETIREMENT PAY AND THUS HAVE A PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" MAY APPLY. 36 COMP. GEN. 431. ALTHOUGH THE OFFICER HERE INVOLVED HAS BEEN DRAWING RETIRED PAY WHILE ON THE TEMPORARY DISABILITY RETIRED LIST HIS ENTITLEMENT THERETO WILL CEASE UPON HIS RECALL TO ACTIVE DUTY. AFTER HIS RECALL, THEREFORE, HE WILL HAVE NO RETIRED PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" COULD APPLY.

IT IS REPORTED THAT THE OFFICER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE OCTOBER 1, 1957, WITH 27 YEARS OF ACTIVE SERVICE AND THAT SUCH SERVICE PLUS THE TIME ON THE TEMPORARY DISABILITY RETIRED LIST WILL TOTAL 30 YEARS' SERVICE FOR BASIC PAY PURPOSES. UNDER 10 U.S.C. 3911 A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE ARMY MAY BE RETIRED UPON HIS OWN REQUEST IF HE HAS COMPLETED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THAT TITLE, AT LEAST 10 YEARS OF WHICH WAS ACTIVE SERVICE AS A COMMISSIONED OFFICER.

THE RETIRED PAY OF OFFICERS RETIRED UNDER SECTION 3911 IS COMPUTED UNDER FORMULA B OF SECTION 3991 AS FOLLOWS: MONTHLY BASIC PAY OF MEMBER'S RETIRED GRADE MULTIPLIED BY 2 1/2 PERCENT OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF TITLE 10. SECTION 1405, WHICH WAS ADDED BY SECTION 11 OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 130, SPECIFIES THE SERVICE CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLE AND INCLUDES, IN ADDITION TO ACTIVE SERVICE:

(3) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1) OR (2) WITH WHICH HE WAS ENTITLED TO BE CREDITED, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS SECTION, IN COMPUTING HIS BASIC PAY; AND

(4) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1), (2), OR (3), WITH WHICH HE WOULD BE ENTITLED TO BE CREDITED UNDER SECTION 1333 OF THIS TITLE, IF HE WERE ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE.

PRIOR TO JUNE 1, 1958, THE APPLICABLE FORMULA 9 SECTION 3991 PRESCRIBED COMPUTATION OF RETIRED PAY FOR MEMBERS RETIRED UNDER SECTION 3911 ON THE MONTHLY BASIC PAY OF MEMBER'S RETIRED GRADE MULTIPLIED BY 2 1/2 PERCENT OF YEARS OF SERVICE CREDITABLE TO HIM IN DETERMINING BASIC PAY.

THE LEGISLATIVE HISTORY OF THE ACT OF MAY 20, 1958, SHOWS THAT THE ABOVE- CITED CHANGE IN THE FORMULA FOR COMPUTING RETIRED PAY WAS MADE FOR THE PURPOSE OF PREVENTING ACCUMULATION AFTER MAY 31, 1958, OF FURTHER CREDIT FOR INACTIVE SERVICE FOR USE AS A MULTIPLIER EXCEPT AS PROVIDED IN SECTION 1333. THE NEW RESTRICTION, HOWEVER WAS CLEARLY INTENDED TO BE PROSPECTIVE ONLY AND NOT TO TAKE AWAY ANY ENTITLEMENT TO SERVICE CREDIT FOR INACTIVE SERVICE WHICH HAD ACCRUED TO A MEMBER PRIOR TO JUNE 1, 1958.

THE OFFICER IN QUESTION, THEREFORE, AFTER BEING RECALLED TO ACTIVE DUTY UNDER SECTION 1211 AND RETIRED UNDER SECTION 3911, WILL BE ENTITLED TO USE AS A MULTIPLIER IN COMPUTATION OF HIS RETIRED PAY UNDER FORMULA B OF SECTION 3991 ALL OF HIS ACTIVE SERVICE PLUS HIS INACTIVE TIME ON THE TEMPORARY DISABILITY RETIRED LIST FROM DATE OF PLACEMENT THEREON, OCTOBER 1, 1957, THROUGH MAY 31, 1958.