B-152631, OCTOBER 29, 1963, 43 COMP. GEN. 425

B-152631: Oct 29, 1963

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ARE NOT FOR APPLICATION WHERE A MARINE CORPS STAFF SERGEANT WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE APRIL 1. UNDER SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE) THE MEMBER IS CONSIDERED AS HAVING BECOME ENTITLED TO RETIRED PAY BEFORE APRIL 1. A MARINE CORPS CHIEF WARRANT OFFICER WHO HAVING COMPLETED 24 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES IS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1. IS NOT PRECLUDED BY SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE) FROM ENTITLEMENT TO THE RETIRED PAY INCREASE AUTHORIZED BY THAT ACT. 1963 BEING THE RESULT OF HIS REQUEST HE IS NOT SUBJECT TO THE REQUIREMENT IN SECTION 5 (A) THAT HIS RETIRED PAY BE CONSIDERED AS BEING EFFECTIVE BEFORE APRIL 1.

B-152631, OCTOBER 29, 1963, 43 COMP. GEN. 425

PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - RETIRED PAY EFFECTIVE APRIL 1, 1963. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - RETIRED PAY EFFECTIVE APRIL 1, 1963. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - RETIRED PAY EFFECTIVE APRIL 1, 1963. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - RETIRED PAY EFFECTIVE APRIL 1, 1963 THE RETIRED PAY INCREASE PROVISIONS OF THE UNIFORMED SERVICES PAY ACT OF 1963 FOR MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER MARCH 31, 1963, BUT BEFORE OCTOBER 1, 1963, THE EFFECTIVE DATE OF THE ACT, ARE NOT FOR APPLICATION WHERE A MARINE CORPS STAFF SERGEANT WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 1202, APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY ON MARCH 19, 1963, THE SECRETARY NOT HAVING SPECIFIED A DIFFERENT DATE UNDER THE AUTHORITY IN 10 U.S.C. 1221, THE MEMBER BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, WHICH POSTPONED HIS RIGHT TO RETIRED PAY TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE QUALIFIED FOR RETIREMENT, AND, THEREFORE, UNDER SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE) THE MEMBER IS CONSIDERED AS HAVING BECOME ENTITLED TO RETIRED PAY BEFORE APRIL 1, 1963, AND PRECLUDED FROM THE BENEFITS OF THE ACT. A MARINE CORPS CHIEF WARRANT OFFICER WHO HAVING COMPLETED 24 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES IS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1, 1963 UNDER 10 U.S.C. 1293, PURSUANT TO HIS REQUEST OF JANUARY 16, 1963, APPROVED BY THE UNDER SECRETARY OF THE NAVY ON MARCH 8, 1963, DID NOT BECOME ENTITLED TO RETIRED PAY BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, AND, THEREFORE, IS NOT PRECLUDED BY SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE) FROM ENTITLEMENT TO THE RETIRED PAY INCREASE AUTHORIZED BY THAT ACT, THE MEMBER NOT HAVING REQUESTED RETIREMENT WHEN HE MET THE ELIGIBILITY QUALIFICATION OF 10 U.S.C. 1293, THE SITUATION CONTEMPLATED TO GIVE EFFECT TO THE PURPOSE AND INTENT OF THE UNIFORM RETIREMENT DATE ACT NO LONGER EXISTED, AND THE EXERCISE OF ADMINISTRATIVE DISCRETION IN RETIRING THE MEMBER EFFECTIVE APRIL 1, 1963 BEING THE RESULT OF HIS REQUEST HE IS NOT SUBJECT TO THE REQUIREMENT IN SECTION 5 (A) THAT HIS RETIRED PAY BE CONSIDERED AS BEING EFFECTIVE BEFORE APRIL 1, 1962. A MARINE CORPS OFFICER COMPLETING 20 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES ON JANUARY 18, 1963, WHO AT HIS REQUEST DATED JANUARY 31, 1963, APPROVED MARCH 6, 1963, IS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 6323, PROVIDING FOR RETIREMENT AT THE DISCRETION OF THE PRESIDENT, IS ENTITLED TO THE RETIRED PAY INCREASE AUTHORIZED BY THE UNIFORMED SERVICES PAY ACT OF 1963, THE OFFICER HAVING BEEN RETIRED UNDER CIRCUMSTANCES WHICH COULD NOT GIVE RISE TO THE APPLICATION OF THE UNIFORMED RETIREMENT DATE ACT, 5 U.S.C. 47A, PROVIDING FOR RETIREMENT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, HE IS NOT WITHIN THE PURVIEW OF SECTION 5 (A) OF THE UNIFORMED SERVICES PAY (10 U.S.C. 1402 NOTE), WHICH PRECLUDES MEMBERS ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, FROM RECEIVING THE RETIRED PAY INCREASE BENEFITS OF THE ACT. OFFICERS OF THE MARINE CORPS WHO COMPLETED 20 YEARS OF SERVICE COMPUTED IN ACCORDANCE WITH 10 U.S.C. 1332 IN MARCH 1963 AND APPLIED FOR RETIRED PAY EFFECTIVE APRIL 1, 1963 UNDER SECTION 1331 (A/--- AGE AND SERVICE--- ARE NOT ENTITLED TO THE INCREASE IN RETIRED PAY AUTHORIZED BY THE UNIFORMED SERVICES PAY ACT OF 1963 FOR MEMBERS BECOMING ENTITLED TO RETIRED PAY AFTER MARCH 31, 1963, BUT BEFORE OCTOBER 1, 1963, THE EFFECTIVE DATE OF THE ACT, THE OFFICERS HAVING FAILED TO SPECIFY A DATE LATER THAN THE DATE OF QUALIFYING FOR RETIREMENT BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963 BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, POSTPONING THE RIGHT TO RETIRED PAY TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH OF QUALIFYING FOR RETIREMENT, AND, THEREFORE, ARE SUBJECT TO THE REQUIREMENT IN SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT (10 U.S.C. 1402 NOTE) THAT FOR THE PURPOSES OF THE ACT THE MEMBERS BE CONSIDERED ENTITLED TO RETIRED PAY BEFORE APRIL 1, 1963.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, OCTOBER 29, 1963:

BY FIRST INDORSEMENT DATED OCTOBER 4, 1963, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF OCTOBER 2, 1963, REQUESTING A DECISION WHETHER THE RETIRED PAY TO WHICH CERTAIN MEMBERS WERE ENTITLED ON SEPTEMBER 30, 1963, MAY BE RECOMPUTED EFFECTIVE OCTOBER 1, 1963, UNDER THE NEW RATES OF MONTHLY BASIC PAY PRESCRIBED BY SECTION 2 OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210, 37 U.S.C. 203. THIS REQUEST FOR DECISION WAS ASSIGNED NO. DO- MC-729 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT RECOMPUTATION UNDER THE NEW RATES OF MONTHLY BASIC PAY WILL RESULT IN GREATER RETIRED PAY FOR THE MEMBERS THAN THEY WOULD RECEIVE UNDER CLAUSE (2) OF SECTION 5 (A) OF THE 1963 ACT, 10 U.S.C. 1402 NOTE, AND THAT THE LAST SENTENCE OF SECTION 5 (A) OF THE ACT GIVES RISE TO THE DOUBT IN THESE CASES.

SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 PROVIDES AS FOLLOWS:

EXCEPT AS PROVIDED IN SECTION 1402 OF TITLE 10, U.S.C. THE CHANGES MADE BY THIS ACT IN THE RATES OF BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES DO NOT INCREASE THE RETIRED PAY OR RETAINER PAY TO WHICH A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT. HOWEVER, EXCEPT FOR A MEMBER COVERED BY SECTION 6331 OF THE TITLE 10, U.S.C. WHO BECAME ENTITLED TO RETAINER PAY BEFORE APRIL 1, 1963, AND SUBJECT TO SUBSECTION (J) OF THIS SECTION, A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER MARCH 31, 1963, BUT BEFORE THE EFFECTIVE DATE OF THIS ACT, IS ENTITLED---

(1) TO HAVE THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT RECOMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 2 OF THIS ACT; OR

(2) TO CONTINUE TO HAVE THAT PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER SECTION 203 OF TITLE 37, UNITED STATES CODE, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS THE PERCENTAGE INCREASE PROVIDED BY SUBSECTION (E) OF THIS SECTION;

WHICHEVER PAY IS THE GREATER. FOR THE PURPOSES OF THE PRECEDING SENTENCE, A MEMBER OR FORMER MEMBER WHO BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF SECTION 1 OF THE ACT OF APRIL 23, 1930, CH. 209, AS AMENDED (5 U.S.C. 47A), SHALL BE CONSIDERED AS HAVING BECOME ENTITLED TO THAT PAY BEFORE APRIL 1, 1963.

SECTION 1 OF THE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, AS AMENDED, 5 U.S.C. 47A, PROVIDES AS FOLLOWS (QUOTING FROM 5 U.S.C. 47A):

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.

IT IS REPORTED THAT STAFF SERGEANT FRED E. MULLINS, USMC, WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 1202. HIS TRANSFER WAS APPROVED BY DIRECTION OF THE SECRETARY OF THE NAVY ON MARCH 19, 1963.

THE ACT OF AUGUST 2, 1956, CH. 876, 70 STAT. 933, AMENDED THE ACT OF APRIL 23, 1930, BY ADDING A NEW SUBSECTION (B) OF THE ACT, 5 U.S.C. 47A (B) (1952 ED., SUPP. V), RELATING TO THE EFFECTIVE DATE OF RETIREMENT FOR PERMANENT PHYSICAL DISABILITY OR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OF MEMBERS OF THE UNIFORMED SERVICES. THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-861, 72 STAT. 1437, REPEALED THE ACT OF AUGUST 2, 1956 (SUBSECTION (B) OF THE 1930 ACT, AS AMENDED), AND ADDED SECTION 1221, OF TITLE 10, UNITED STATES CODE. SECTION 1221 PROVIDES IN SUBSTANCE THAT THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR RETIREMENT OF A MEMBER FOR PHYSICAL DISABILITY OR FOR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST THAT IS EARLIER THAN THE DATE PROVIDED IN SECTION 1 OF THE 1930 ACT.

SINCE THE EFFECTIVE DATE OF THE TRANSFER OF SERGEANT MULLINS TO THE TEMPORARY DISABILITY RETIRED LIST WAS APPROVED ON MARCH 19, 1963, AS APRIL 1, 1963, THE DATE PROVIDED BY THE 1930 ACT AS THE EFFECTIVE DATE OF HIS RETIREMENT AND SINCE THE SECRETARY OF THE NAVY DID NOT SPECIFY AN EARLIER DATE UNDER AUTHORITY OF 10 U.S.C. 1221, IT IS OUR VIEW THAT HE MUST BE CONSIDERED AS HAVING BECOME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE 1930 ACT, WITHIN THE MEANING OF THE LAST SENTENCE OF SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963.

IT IS REPORTED THAT CHIEF WARRANT OFFICER ROBERT H. JORDAN, USMC, COMPLETED 24 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES ON MARCH 22, 1963. ON JANUARY 16, 1963, HE REQUESTED THAT HE BE RETIRED ON APRIL 1, 1963. HE WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 1293, AND WAS ADVANCED ON THE SAME DATE ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT UNDER 10 U.S.C. 6151. HIS TRANSFER TO THE RETIRED LIST WAS APPROVED BY THE UNDER SECRETARY OF THE NAVY ON MARCH 8, 1963.

UNDER 10 U.S.C. 1293, THE SECRETARY CONCERNED MAY, UPON A WARRANT OFFICER'S REQUEST, RETIRE THE MEMBER IF HE HAS COMPLETED AT LEAST 20 YEARS OF ACTIVE SERVICE THAT IS PROPERLY CREDITABLE TO HIM. IF MR. JORDAN HAD COMPLETED 20 YEARS OF QUALIFYING SERVICE ON MARCH 22, 1963, AND HAD REQUESTED RETIREMENT AT THAT TIME, THE EFFECTIVE DATE OF HIS RETIREMENT WOULD HAVE BEEN FIXED AS APRIL 1, 1963, UNDER THE 1930 ACT. HOWEVER,SINCE HE DID NOT REQUEST RETIREMENT WHEN HE MET THE ELIGIBILITY QUALIFICATIONS OF THE STATUTE, THE SITUATION CONTEMPLATED TO GIVE EFFECT TO THE PURPOSE AND INTENT OF THE 1930 ACT NO LONGER EXISTED IN HIS CASE. THE EXERCISE OF THE ADMINISTRATIVE DISCRETION TO RETIRE HIM EFFECTIVE APRIL 1, 1963, WAS THE RESULT SOLELY OF HIS REQUEST TO THAT EFFECT. IN SUCH CIRCUMSTANCE, THERE IS NO BASIS FOR A CONCLUSION THAT HE BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE 1930 ACT. COMPARE 10 COMP. GEN. 36.

IT IS REPORTED THAT MAJOR DANIEL B. HUNTER, USMC, COMPLETED 20 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES ON JANUARY 18, 1963. ON JANUARY 31, 1963, HE REQUESTED THAT HE BE TRANSFERRED TO THE RETIRED LIST ON APRIL 1, 1963. HE WAS TRANSFERRED TO THE RETIRED LIST LIST EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 6323. HIS TRANSFER WAS APPROVED ON MARCH 6, 1963.

UNDER 10 U.S.C. 6323 (A), AN OFFICER OF THE NAVY OR MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE MAY,"IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT.' SINCE MAJOR HUNTER WAS RETIRED EFFECTIVE APRIL 1, 1963, PURSUANT TO SUCH STATUTORY AUTHORITY, UNDER CIRCUMSTANCES WHICH COULD NOT GIVE RISE TO AN APPLICATION OF THE 1930 ACT, THERE IS NO BASIS FOR A CONCLUSION THAT HE BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THAT ACT.

IT IS REPORTED THAT LIEUTENANT COLONEL WILLIAM C. SELSOR, JR., USMCR, COMPLETED 20 YEARS OF SERVICE AS COMPUTED UNDER 10 U.S.C. 1332 ON MARCH 22, 1963. HIS DATE OF BIRTH IS OCTOBER 21, 1902. ON APRIL 29 AND MAY 21, 1963, HE APPLIED FOR RETIRED PAY EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 1331. HIS APPLICATION WAS APPROVED ON MAY 31, 1963, EFFECTIVE APRIL 1, 1963, BY THE UNDER SECRETARY OF THE NAVY AND HE WAS PLACED ON THE RETIRED LIST EFFECTIVE APRIL 1, 1963, BY ORDERS ISSUED ON JUNE 5, 1963.

IT IS FURTHER REPORTED THAT LIEUTENANT COLONEL PERCY S. MACDONALD, USMCR, COMPLETED 20 YEARS OF SERVICE AS COMPUTED UNDER 10 U.S.C. 1332, ON MARCH 5, 1963. HIS DATE OF BIRTH IS AUGUST 24, 1901. ON OCTOBER 16 AND 23, 1962, HE APPLIED FOR RETIRED PAY EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 1331. HIS APPLICATION WAS APPROVED ON DECEMBER 19, 1962, EFFECTIVE APRIL 1, 1963, BY THE UNDER SECRETARY OF THE NAVY AND HE WAS PLACED ON THE RETIRED LIST EFFECTIVE APRIL 1, 1963, BY ORDERS ISSUED ON APRIL 1, 1963.

UNDER 10 U.S.C. 1331 (A), A QUALIFIED PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY IF HE HAS MET THE STATUTORY AGE REQUIREMENT AND PERFORMED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER 10 U.S.C. 1332. IT APPEARS THAT NEITHER OF THE OFFICERS INVOLVED HERE COMPLETED 20 YEARS OF SERVICE, AS COMPUTED UNDER 10 U.S.C. 1332, UNTIL MARCH 1963. IN 38 COMP. GEN. 146, WE TOOK THE VIEW THAT IF THE APPLICATION FOR RETIRED PAY DOES NOT SPECIFY A LATER DATE, THE RIGHT OF A MEMBER TO RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 67, OF TITLE 10, U.S.C. AND THEIR ANTECEDENT PROVISIONS, ACCRUES ON THE DATE OF HIS QUALIFICATION FOR SUCH RETIRED PAY BUT THAT THE ACT OF APRIL 23, 1930, POSTPONES SUCH RIGHT TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE MEMBER QUALIFIES. THAT DATE WAS APRIL 1, 1963, IN THE CASES OF COLONEL SELSOR AND COLONEL MACDONALD, SINCE THEY DID NOT SPECIFY A LATER DATE IN THEIR APPLICATIONS FOR RETIRED PAY. HENCE, IT IS CONCLUDED THAT THEY BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE 1930 ACT.