B-152678, SEP. 3, 1964

B-152678, SEP. 3, 1964

TO MAJOR J. H. WEBB, USAF, ACCOUNTING AND FINANCE OFFICER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1964, ARRA, AND ENCLOSURES, FORWARDED HERE BY LETTER DATED MAY 18, 1964, OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS UNITED STATES AIR FORCE, UNDER DO-AF-769 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING THE ACCOMPANYING VOUCHER FOR $118.50 IN FAVOR OF MASTER SERGEANT WILLIAM L. WALTON, AF 656 6289, RETIRED. SUCH AMOUNT REPRESENTS THE DIFFERENCE IN RETIRED PAY AT $183.75 PER MONTH, COMPUTED ON THE GRADE OF MASTER SERGEANT, E-7, AT 52 1/2 PERCENT, AND $203.50 PER MONTH, COMPUTED ON THE GRADE OF SENIOR MASTER SERGEANT, E-8, AT 55 PERCENT, FOR THE PERIOD OCTOBER 1, 1963, TO MARCH 31, 1964.

THE RECORDS SHOW THAT SERGEANT WALTON WAS RETIRED FROM THE REGULAR AIR FORCE ON JANUARY 31, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 8914, AS A MASTER SERGEANT (E-7) AND THAT HE BECAME A MEMBER OF THE AIR FORCE RESERVE ON THAT DATE. HE HAD COMPLETED 20 YEARS, 8 MONTHS, AND 3 DAYS OF ACTIVE SERVICE, WHICH, UNDER THE PROVISIONS OF 10 U.S.C. 8991, WAS COUNTED AS 21 YEARS FOR THE PURPOSE OF COMPUTING RETIRED PAY, AND HIS MONTHLY RETIRED PAY OF $159.71 REPRESENTED 52 1/2 PERCENT (2 1/2 PERCENT TIMES 21 YEARS) OF $304.20 (THE MONTHLY BASIC PAY OF PAY GRADE E-7 WITH 18 CUMULATIVE YEARS OF SERVICE). EFFECTIVE JUNE 1, 1958, HIS MONTHLY RETIRED PAY OF $159.71 WAS INCREASED BY 6 PERCENT TO $169.29 UNDER THE PROVISIONS OF SECTION 4 (A) OF THE ACT OF MAY 20, 1958, PUB.L. 85-422, 72 STAT. 128. THEREAFTER PERFORMED THREE 15 DAY PERIODS OF TRAINING DUTY AND, EFFECTIVE OCTOBER 1, 1961, HE WAS RECALLED TO EXTENDED ACTIVE DUTY FROM WHICH HE WAS RELEASED ON AUGUST 27, 1962, AFTER HAVING PERFORMED CONTINUOUS ACTIVE DUTY FOR 10 MONTHS AND 27 DAYS. SUCH EXTENDED ACTIVE DUTY WAS PERFORMED IN THE GRADE OF SENIOR MASTER SERGEANT, E-8, TO WHICH HE APPARENTLY HAD BEEN PROMOTED IN HIS RESERVE STATUS AFTER RETIREMENT. UPON HIS RELEASE FROM ACTIVE DUTY, HE WAS PAID MONTHLY RETIRED PAY AT THE RATE OF $169.29--- THE SAME RATE AT WHICH HE WAS BEING PAID AT THE TIME OF HIS RETURN TO ACTIVE DUTY--- AND HE WAS PAID AT THAT RATE THROUGH SEPTEMBER 30, 1963.

YOU SAY THAT EFFECTIVE OCTOBER 1, 1963, IT WAS TO SERGEANT WALTON'S ADVANTAGE TO HAVE HIS RETIRED PAY RECOMPUTED UNDER THE RATES OF BASIC PAY ESTABLISHED BY THE 1958 ACT, AS PROVIDED IN SECTION 5 (C) OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUB.L. 88-132, 77 STAT. 213, AND THAT HE IS RECEIVING RETIRED PAY AT THE MONTHLY RATE OF $183.75 (52 1/2 PERCENT OF $350, THE MONTHLY BASIC PAY OF PAY GRADE E-7 WITH 20 CUMULATIVE YEARS OF SERVICE, AS PROVIDED IN THE 1958 ACT). YOU POINT OUT THAT SUCH MONTHLY RETIRED PAY IS BASED ON THE GRADE OF MASTER SERGEANT (E-7/--- NOT ON THE HIGHER GRADE OF SENIOR MASTER SERGEANT (E 8/--- AND THAT THE ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING PERFORMED AFTER RETIREMENT ARE NOT INCLUDED IN THE MULTIPLIER FACTOR.

IN OUR DECISION OF NOVEMBER 14, 1963, B-152678, 43 COMP. GEN. 442, TO YOU, WE CONSIDERED THE QUESTION WHETHER, FOR THE MONTH OF AUGUST 1963, SERGEANT WALTON WAS ENTITLED TO HAVE THE RETIRED PAY TO WHICH HE WAS ENTITLED ON MAY 31, 1958, INCREASED BY 6 PERCENT IF HIS ADDITIONAL ACTIVE SERVICE AFTER RETIREMENT WAS INCLUDED IN THE MULTIPLIER FACTOR AND THE QUESTION WHETHER HE WAS ENTITLED TO RETIRED PAY IN THE GRADE OF SENIOR MASTER SERGEANT (AT 55 PERCENT), SINCE HE WAS HOLDING THAT GRADE WHEN RELEASED FROM ACTIVE DUTY ON AUGUST 27, 1962. WE POINTED OUT IN THAT DECISION THAT SECTION 3 (A) OF THE 1958 ACT PROVIDED, GENERALLY, THAT THE CHANGES IN RATES OF BASIC PAY MADE BY THAT ACT DID NOT INCREASE THE AMOUNT OF RETIRED PAY TO WHICH ANY PERSON WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT AND THAT SERGEANT WALTON WAS NOT ENTITLED UNDER SECTION 3 (B) OF THE ACT TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY RATES PRESCRIBED IN THAT ACT, BECAUSE, ALTHOUGH HIS COMBINED ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING PERFORMED AFTER RETIREMENT TOTALED MORE THAN 1 YEAR, HE DID NOT PERFORM "A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST ONE YEAR" AS REQUIRED IN SUCH SECTION. WE ALSO THERE POINTED OUT THAT WHILE 10 U.S.C. 1402 (A), AS IN EFFECT DURING AUGUST 1963, PROVIDED, GENERALLY, THAT A MEMBER WHO SERVED ON ACTIVE DUTY AFTER RETIREMENT WAS ENTITLED UPON RELEASE TO RECOMPUTE HIS RETIRED PAY TO INCLUDE IN THE MULTIPLIER FACTOR HIS ACTIVE DUTY AFTER RETIREMENT, USING IN SUCH RECOMPUTATION THE MONTHLY BASIC PAY "OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY," SERGEANT WALTON WAS NOT AUTHORIZED TO COMPUTE HIS RETIRED PAY ON THE BASIC PAY OF THE GRADE OF SENIOR MASTER SERGEANT (E-8) BECAUSE OF THE FACT THAT SUCH GRADE WAS FIRST ESTABLISHED BY THE 1958 ACT AND HE WAS NOT AUTHORIZED TO USE THE RATES OF BASIC PAY PROVIDED IN THAT ACT IN THE COMPUTATION OF HIS RETIRED PAY. WE EXPLAINED THAT UNDER THE PROVISIONS OF 10 U.S.C. 1402 (A) SERGEANT WALTON WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY AT 55 PERCENT, INCLUDING CREDIT FOR HIS ACTIVE SERVICE AFTER RETIREMENT, OF THE BASIC PAY OF A MASTER SERGEANT WITH OVER 18 YEARS OF SERVICE, USING THE RATE OF PAY IN EFFECT ON MAY 31, 1958, BUT THAT SINCE THE 6 PERCENT INCREASE PROVIDED IN SECTION 4 (A) OF THE 1958 ACT WAS AUTHORIZED ONLY AS "AN INCREASE OF 6 PERCENTUM OF THAT PAY TO WHICH * * * HE WAS ENTITLED" ON MAY 31, 1958, AND SINCE HE WAS NOT ENTITLED TO RETIRED PAY COMPUTED AT 55 PERCENT ON MAY 31, 1958, HE WAS NOT ENTITLED TO AN INCREASE OF 6 PERCENT IN HIS RETIRED PAY SO COMPUTED. WE THEN CONCLUDED THAT SERGEANT WALTON'S RETIRED PAY FOR THE MONTH OF AUGUST 1963 WAS AUTHORIZED TO BE PAID AT THE RATE OF $169.29, AN INCREASE OF 6 PERCENT OVER THE AMOUNT TO WHICH HE WAS ENTITLED ON MAY 31, 1958, THAT RATE BEING GREATER THAN $167.31 (55 PERCENT OF $304.20, THE BASIC PAY OF A MASTER SERGEANT WITH OVER 18 YEARS OF SERVICE AS OF MAY 31, 1958).

YOU SAY THAT IN VIEW OF OUR HOLDING IN THE DECISION OF NOVEMBER 14, 1963, DOUBT EXISTS (1) AS TO THE AUTHORITY OF LAW FOR COMPUTING SERGEANT WALTON'S RETIRED PAY ON THE HIGHER GRADE OF SENIOR MASTER SERGEANT (E-8), EVEN THOUGH THE UNIFORMED SERVICES PAY ACT OF 1963 PROVIDES THAT A RETIRED MEMBER WHO IS ENTITLED TO RETIRED PAY BASED ON THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THE CAREER COMPENSATION ACT BEFORE JUNE 1, 1958, IS NOW ENTITLED TO HAVE "THAT PAY" RECOMPUTED UNDER THE RATES OF BASIC PAY ESTABLISHED BY THE 1958 ACT, AND (2) AS TO WHETHER HE IS ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED AT 55 PERCENT OF THE HIGHER GRADE INCLUDING ACTIVE SERVICE AFTER RETIREMENT UNDER THE RATES OF BASIC PAY ESTABLISHED BY THE 1958 ACT. ALSO, YOU SAY THAT IF WE HOLD THAT HIS RETIRED GRADE MUST REMAIN THAT OF MASTER SERGEANT, YOU WISH A DECISION AS TO WHETHER HE WOULD BE ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED AT 55 PERCENT, INCLUDING ACTIVE SERVICE AFTER RETIREMENT, BASED ON OVER 20 YEARS OF SERVICE USING THE RATES OF PAY ESTABLISHED ON JUNE 1, 1958.

SECTION 5 (C) OF THE 1963 ACT PROVIDES:

"A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO RETIRED PAY OR RETAINER PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THE CAREER COMPENSATION ACT OF 1949 BEFORE JUNE 1, 1958, * * * IS ENTITLED---

(1) TO HAVE THAT PAY RECOMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THAT ACT ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT; OR

(2) TO AN INCREASE OF 5 PERCENT IN THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT; WHICHEVER PAY IS THE GREATER.'

SECTION 1402 (A), TITLE 10, U.S. CODE, WAS AMENDED BY PARAGRAPH (1) OF SECTION 5 (1) OF THE 1963 ACT, EFFECTIVE OCTOBER 1, 1963, TO PROVIDE PERTINENTLY THAT A MEMBER OF AN ARMED FORCE WHO HAS BECOME ENTITLED TO RETIRED PAY, AND WHO THEREAFTER SERVES ON ACTIVE DUTY (OTHER THAN FOR TRAINING), IS ENTITLED TO RECOMPUTE HIS RETIRED PAY UPON HIS RELEASE FROM THAT DUTY (1) BY TAKING THE MONTHLY BASIC PAY OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY, AND (2) MULTIPLYING SUCH MONTHLY BASIC PAY BY 2 1/2 PERCENT OF THE SUM OF (A) THE YEARS OF SERVICE "THAT MAY BE CREDITED TO HIM" IN COMPUTING RETIRED PAY AND (B) HIS YEARS OF ACTIVE SERVICE AFTER BECOMING ENTITLED TO RETIRED PAY. IT IS SPECIFIED THAT, BEFORE APPLYING THE PERCENTAGE FACTOR, A PART OF A YEAR THAT IS 6 MONTHS OR MORE SHALL BE CREDITED AS A WHOLE YEAR. FOOTNOTE 1 RELATING TO "MONTHLY BASIC PAY" READS AS FOLLOWS:

"FOR A MEMBER WHO HAS BEEN ENTITLED, FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS, TO BASIC PAY UNDER THE RATES OF BASIC PAY IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY, COMPUTE UNDER THOSE RATES. FOR A MEMBER WHO HAS BEEN ENTITLED TO BASIC PAY FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS UPON THAT RELEASE FROM ACTIVE DUTY, BUT WHO IS NOT COVERED BY THE PRECEDING SENTENCE, COMPUTE UNDER THE RATES OF BASIC PAY REPLACED BY THOSE IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY. FOR ANY OTHER MEMBER, COMPUTE UNDER THE RATES OF BASIC PAY UNDER WHICH THE MEMBER'S RETIRED PAY OR RETAINER PAY WAS COMPUTED WHEN HE ENTERED ON THAT ACTIVE DUTY.'

THE STATUTORY PROVISIONS NOW CONTAINED IN 10 U.S.C. 1402 (A) APPLY ONLY TO THOSE MEMBERS WHO ARE RELEASED FROM ACTIVE DUTY ON OR AFTER OCTOBER 1, 1963, AND WE FIND NOTHING IN SUCH STATUTORY PROVISIONS WHICH WOULD AUTHORIZE THE COMPUTATION OF SERGEANT WALTON'S RETIRED PAY, BEGINNING OCTOBER 1, 1963, ON THE BASIS OF THE BASIC PAY OF SENIOR MASTER SERGEANT (E-8) WHICH HE WAS RECEIVING WHEN HE WAS RELEASED FROM ACTIVE DUTY ON AUGUST 27, 1962. FURTHERMORE, SINCE THE STATUTORY PROVISIONS IN 10 U.S.C. 1402 (A) THAT WERE IN EFFECT ON SEPTEMBER 30, 1963--- AND WHICH MIGHT OTHERWISE HAVE AUTHORIZED COMPUTATION OF HIS RETIRED PAY ON THE BASIS OF THE GRADE OF SENIOR MASTER SERGEANT--- WERE REPLACED BY THE 1963 AMENDMENT EFFECTIVE OCTOBER 1, 1963, SUCH PROVISIONS ARE NOT FOR CONSIDERATION IN THE COMPUTATION OF HIS RETIRED PAY BEGINNING OCTOBER 1, 1963.

SERGEANT WALTON WAS RECEIVING MONTHLY RETIRED PAY OF $169.29 ON SEPTEMBER 30, 1963, AND IF SUCH PAY WERE INCREASED BY 5 PERCENT AS PROVIDED IN SECTION 5 (C) (2) OF THE 1963 ACT, IT WOULD AMOUNT TO $177.75. SINCE OCTOBER 1, 1963, HE HAS RECEIVED MONTHLY RETIRED PAY OF $183.75 (52 1/2 PERCENT OF $350, THE MONTHLY BASIC PAY OF PAY GRADE E 7 WITH 20 CUMULATIVE YEARS OF SERVICE, AS PROVIDED IN THE 1958 ACT), COMPUTED UNDER SECTION 5 (C) (1) OF THE 1963 ACT), COMPUTED UNDER SECTION 5 (C) (1) OF THE 1963 ACT, AND HE IS ENTITLED TO SUCH PAY, SINCE IT IS GREATER THAN THE PAY HE WOULD RECEIVE UNDER SECTION 5 (C) (2) OF THAT ACT. WE FIND NO BASIS, HOWEVER, FOR PAYING HIM RETIRED PAY AT A MONTHLY RATE IN EXCESS OF $183.75.

THE VOUCHER PRESENTED IS BEING RETAINED HERE INASMUCH AS PAYMENT THEREON IS NOT AUTHORIZED.