B-152751, DECEMBER 24, 1963, 43 COMP. GEN. 491

B-152751, DECEMBER 24, 1963, 43 COMP. GEN. 491

PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - GENERALLY. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - ADVANCEMENT ON RETIRED LIST AFTER SEPTEMBER 30, 1963. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - ADVANCEMENT ON RETIRED LIST AFTER SEPTEMBER 30, 1963. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - TRANSFER TO PERMANENT DISABILITY LIST AFTER SEPTEMBER 30, 1963 WHEN THE RETIRED OR RETAINER PAY STATUS OF MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES IS NOT WITHIN THE PURVIEW OF SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE), THE MEMBERS HAVING BEEN RETIRED PRIOR TO APRIL 1, 1963, NOT BEING ENTITLED TO RECOMPUTATION OF RETIRED OR RETAINER PAY FROM OCTOBER 1, 1963, THE EFFECTIVE DATE OF THE ACT, AT THE RATES OF PAY PRESCRIBED IN THE ACT, THE CONGRESS INTENDING TO COVER ALL PERSONNEL WHO BECAME ENTITLED TO RECEIVE RETIRED OR RETAINER PAY PRIOR TO OCTOBER 1, 1963, THE RETIRED PAY STATUS OF SUCH MEMBERS IS FOR CONSIDERATION UNDER THE ADJUSTMENT PROVISIONS OF SECTIONS 5 (C) AND (E), SECTION 5 (C) ENTITLING MEMBERS TO A RECOMPUTATION OF THE RETIRED OR RETAINER PAY THEY WERE RECEIVING ON THE RECOMPUTATION OF THE RETIRED OR RETAINER PAY UNDER THE RATES THAT WERE IN EFFECT ON SEPTEMBER 30, 1963, THAT IS, ON THE RATES OF BASIC PAY PRESCRIBED IN THE ACT OF MAY 20, 1958, EFFECTIVE JUNE 1, 1958, OR A 5 PERCENT INCREASE, WHICHEVER PAY IS GREATER, AND SECTION 5 (E) AUTHORIZING A 5 PERCENT INCREASE FOR THOSE MEMBERS OTHERWISE NOT COVERED. A MEMBER TRANSFERRED ON APRIL 1, 1955 TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF MASTER SERGEANT AND ON OCTOBER 1, 1963, UNDER 10 U.S.C. 6331 (A), TO THE RETIRED LIST OF ENLISTED MEMBERS AND THEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN, PURSUANT TO 10 U.S.C. 6151 (A), WITH ENTITLEMENT TO PAY COMPUTED UNDER THE RATES OF BASIC PAY IN EFFECT UNDER THE CAREER COMPENSATION ACT OF 1949 PRIOR TO JUNE 1, 1958, PLUS THE PERCENTAGE INCREASE PROVIDED BY THE ACT OF MAY 29, 1958, ALTHOUGH HIS RETIRED PAY STATUS FOR ADJUSTMENT PURPOSES ON SEPTEMBER 30, 1963, UNDER SECTION 5 (C) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE) IS THAT OF AN ENLISTED MEMBER RECEIVING RETAINER PAY HE, NEVERTHELESS, MAY HAVE HIS RETIRED PAY ADJUSTED ON THE BASIS OF THE GRADE OF CAPTAIN TO WHICH ADVANCED ON OCTOBER 1, 1963, NOTHING IN THE LEGISLATIVE HISTORY OF THE 1963 ACT REQUIRING SECTION 5 (C) TO BE CONSTRUED IN FAVOR OF THE FLEET MARINE CORPS RESERVIST TRANSFERRED TO THE RETIRED LIST AND ADVANCED TO AN OFFICER GRADE UNDER 10 U.S.C. 6151 PRIOR TO OCTOBER 1, 1963. A MASTER SERGEANT TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON FEBRUARY 29, 1960, AND TO THE RETIRED LIST OF ENLISTED MEMBERS ON OCTOBER 1, 1963 AND ADVANCED PURSUANT TO 10 U.S.C. 6151 (A) TO THE GRADE OF COMMISSIONED WARRANT OFFICER (W-2), WITH ENTITLEMENT TO PAY UNDER THE FORMULA PRESCRIBED IN 10 U.S.C. 6151 (C), WHO ON SEPTEMBER 30, 1963, WAS RECEIVING RETAINER PAY AS AN ENLISTED MEMBER COMPUTED AT THE RATES OF BASIC PAY PRESCRIBED IN THE ACT OF MAY 20, 1958 (37 U.S.C. 232, ET SEQ.) IS ENTITLED UNDER SECTION 5 (E) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE), EFFECTIVE OCTOBER 1, 1963, TO A 5 PERCENT INCREASE IN HIS RETIRED PAY ON THE GRADE OF A COMMISSIONED WARRANT OFFICER, NOTWITHSTANDING THE MEMBER WAS TRANSFERRED AFTER SEPTEMBER 30, 1963, SECTION 5 (E) BEING PROPERLY FOR CONSTRUCTION TO GIVE THE MEMBER NO LESSER AMOUNT THAN IF TRANSFERRED TO AND ADVANCED ON THE RETIRED LIST PRIOR TO OCTOBER 1, 1963. THE RETIRED PAY STATUS OF AN ENLISTED MEMBER OF THE MARINE CORPS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST ON OCTOBER 1, 1963, PURSUANT TO 10 U.S.C. 1201 AND 1210, WHOSE RETIRED PAY ON SEPTEMBER 30, 1963 WAS COMPUTED UNDER FORMULA NO. 2, 10 U.S.C. 1401--- 50 PERCENT OF HIS ACTIVE DUTY PAY UNDER ACT OF MARCH 31, 1955, BY VIRTUE OF THE SAVINGS PROVISIONS IN SECTION 10 (1) OF THE ACT OF MAY 20, 1958--- IS WITHIN THE PURVIEW OF SECTION 5 (C) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (14 U.S.C. 1402 NOTE), THE MEMBER NOT HAVING BY REASON OF TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST AFTER SEPTEMBER 30, 1963 LOST THE INCREASE IN RETIRED PAY PRESCRIBED FOR MEMBERS TRANSFERRED UNDER IDENTICAL CIRCUMSTANCES PRIOR TO OCTOBER 1, 1963, AND HIS RETIRED PAY COMING WITHIN THE PURVIEW OF SECTION 5 (C), AND CLAUSE 2 OF THAT SECTION PROVIDING THE GREATER AMOUNT, THE MEMBER IS ENTITLED TO A 5 PERCENT INCREASE IN RETIRED PAY RATHER THAN A RECOMPUTATION OF RETIRED PAY UNDER CLAUSE 1.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, DECEMBER 24, 1963:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1963, REQUESTING DECISION CONCERNING THE EFFECT OF SECTION 5 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, 77 STAT. 212-215, 10 U.S.C. 1402 NOTE, IN COMPUTING THE RETIRED PAY OF THREE MEMBERS OF THE MARINE CORPS ON AND AFTER OCTOBER 1, 1963, IN THE CIRCUMSTANCES THEREIN SET FORTH. YOUR REQUEST FOR AN ADVANCE DECISION WAS FORWARDED HERE BY FIRST INDORSEMENT DATED OCTOBER 21, 1963, FROM COMMANDANT OF THE MARINE CORPS UNDER NO. DO- MC-731, ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FIRST CASE PRESENTED IS THAT OF CAPTAIN JOHN L. TACKETT WHO WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF MASTER SERGEANT ON APRIL 1, 1955. ON OCTOBER 1, 1963, HE WAS TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEMBERS OF THE MARINE CORPS AS PROVIDED IN 10 U.S.C. 6331 (A). PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6151 (A) HE WAS THEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN WHICH ENTITLES HIM TO COMPUTE HIS RETIRED PAY IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN 10 U.S.C. 6151 (C). YOU STATE THAT ON SEPTEMBER 30, 1963, TACKETT WAS RECEIVING RETAINER PAY AS AN ENLISTED MEMBER OF THE FLEET MARINE CORPS RESERVE IN THE AMOUNT OF $177.97 PER MONTH COMPUTED ON THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 NOTE, AS AMENDED BY THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, CH. 20, 69 STAT. 18-23, 37 U.S.C. 232 NOTE, PLUS THE 6 PERCENT INCREASE, EFFECTIVE JUNE 1, 1958, PRESCRIBED IN SECTION 4 (A) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 128, 10 U.S.C. 1401 NOTE. YOU POINT OUT THAT UNDER 10 U.S.C. 6151 (C) AND SECTION 5 (C) (1) OF THE 1963 LAW TACKETT'S RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN WOULD BE $280.88 PER MONTH EFFECTIVE FROM OCTOBER 1, 1963, WHEREAS UNDER 10 U.S.C. 6151 (C) AND SECTION 5 (C) (2) OF THE 1963 LAW IT WOULD AMOUNT TO $300.81 PER MONTH. YOU EXPRESS UNCERTAINTY AS TO HIS RIGHT TO RECEIVE THE AMOUNT OF $300.81 PER MONTH UNDER THE TERMS OF SECTION 5 (C) (2), SINCE ONLY THE RETIRED PAY OR RETAINER PAY TO WHICH SUCH A MEMBER WAS ENTITLED ON SEPTEMBER 30, 1963, MAY BE INCREASED BY 5 PERCENT.

THE SECOND CASE YOU PRESENT IS THAT OF CHIEF WARRANT OFFICER RALPHWHALEY WHO WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF MASTER SERGEANT ON FEBRUARY 29, 1960. HE WAS TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEMBERS OF THE MARINE CORPS EFFECTIVE OCTOBER 1, 1963, AND THEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (W-2) AS PROVIDED IN 10 U.S.C. 6151 (A) WITH ENTITLEMENT TO RECEIVE RETIRED PAY UNDER THE FORMULA PRESCRIBED IN 10 U.S.C. 6151 (C). IT IS STATED THAT ON SEPTEMBER 30, 1963, WHALEY WAS RECEIVING RETAINER PAY AS AN ENLISTED MEMBER OF THE FLEET MARINE CORPS RESERVE IN THE AMOUNT OF $175 PER MONTH COMPUTED ON THE RATES OF BASIC PAY PRESCRIBED IN THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122-132, 37 U.S.C. 232, ET SEQ.

IN THIS CASE IT IS INDICATED THAT WHALEY MAY BE ENTITLED UNDER THE PROVISIONS OF 10 U.S.C. 6151 (C) AND SECTION 5 (E) OF THE 1963 LAW TO RETIRED PAY IN THE AMOUNT OF $231 PER MONTH. YOU POINT OUT THAT WHALEY WAS NOT IN RECEIPT OF THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER (W -2) ON SEPTEMBER 30, 1963. YOUR DOUBT IN THE MATTER THUS STEMS FROM THE FACT THAT SECTION 5 (E) PROVIDES FOR AN INCREASE OF 5 PERCENT IN THE RETIRED PAY OR RETAINER PAY TO WHICH A MEMBER WAS ENTITLED ON SEPTEMBER 30, 1963.

IN THE THIRD CASE PRIVATE JEROME E. BARVITSKIE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS EFFECTIVE FEBRUARY 1, 1959, WITH A DISABILITY RATING OF 30 PERCENT. AT THE TIME OF SUCH TRANSFER HE WAS RECEIVING BY VIRTUE OF THE SAVINGS PROVISIONS PRESCRIBED IN SECTION 10 (1) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85 422, 72 STAT. 130, 37 U.S.C. 232 NOTE, WHICH BECAME EFFECTIVE JUNE 1, 1958, ACTIVE DUTY BASIC PAY AT THE RATE OF $106.60 PER MONTH, THE RATE PRESCRIBED IN THE ACT OF MARCH 31, 1955, CH. 20, 69 STAT. 18-23, FOR A PRIVATE WITH OVER 4 YEARS OF CREDITABLE CUMULATIVE SERVICE FOR BASIC PAY PURPOSES. HENCE, ON SEPTEMBER 30, 1963, HE WAS IN RECEIPT OF RETIRED PAY COMPUTED UNDER FORMULA NO. 2, 10 U.S.C. 1401, THE AMOUNT OF $53.30 PER MONTH (50 PERCENT OF $106.60). ON OCTOBER 1, 1963, UNDER AUTHORITY OF 10 U.S.C. 1201 AND 1210, PRIVATE BARVITSKIE WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST OF THE MARINE CORPS WITH A DISABILITY RATING OF 60 PERCENT.

IN THIS SITUATION YOU STATE THAT FORMULA NO. 1 OF 10 U.S.C. 1401, TOGETHER WITH THE PROVISIONS OF SECTION 5 (C) (1) OF THE 1963 LAW WOULD SEEM TO PERMIT BARVITSKIE TO RECOMPUTE HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, UNDER THE RATE OF BASIC PAY PRESCRIBED IN THE 1958 LAW FOR A PRIVATE WITH OVER 4 YEARS OF CREDITABLE CUMULATIVE SERVICE, I.E., $105 TIMES 60 PERCENT, OR $63 PER MONTH. YOU FURTHER STATE, HOWEVER, THAT IT IS NOT CLEAR WHETHER HE IS ENTITLED TO RECOMPUTE HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, ON THE BASIS OF THE MONTHLY RATE OF ACTIVE DUTY BASIC PAY, $106.60, PRESCRIBED IN THE 1955 LAW AND WHICH HE WAS RECEIVING (BY VIRTUE OF THE SAVINGS PROVISIONS CONTAINED IN THE 1958 ACT) WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST FEBRUARY 1, 1959, AND, IF SO, WHETHER HIS RETIRED PAY AS SO RECOMPUTED MAY BE INCREASED BY 5 PERCENT UNDER THE PROVISIONS OF SECTION 5 (C) (2) OF THE 1963 LAW. THE LATTER METHOD WOULD ENTITLE PRIVATE BARVITSKIE TO RETIRED PAY IN THE AMOUNT OF $67.16 PER MONTH EFFECTIVE FROM OCTOBER 1, 1963.

THE LEGISLATIVE HISTORY AND BACKGROUND OF THE 1963 ACT CLEARLY DISCLOSE THAT THE CONGRESS NOT ONLY DID NOT RETREAT FROM THE POLICY ADOPTED IN 1958 IN THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122-132, TO DISCONTINUE THE RECOMPUTATION OF RETIRED PAY ON THE BASIS OF THE ACTIVE DUTY RATES OF PAY CURRENTLY IN EFFECT AT ANY GIVEN TIME, BUT RESTATED SUCH POLICY IN EVEN CLEARER AND FIRMER LANGUAGE BY ADDING NEW SECTION 1401A TO CHAPTER 71, TITLE 10, U.S. CODE, PROVIDING FOR THE ADJUSTMENT OF RETIRED PAY AND RETAINER PAY ON A COST OF LIVING BASIS TO REFLECT FUTURE CHANGES IN THE CONSUMER PRICE INDEX. SEE SECTION 5 (G), 77 STAT. 213-214. ADHERING TO SUCH POLICY A NUMBER OF ADJUSTMENTS WERE MADE BY THE CONGRESS WITH RESPECT TO MEMBERS OF THE UNIFORMED SERVICES ALREADY IN RECEIPT OF RETIRED OR RETAINER PAY AND SUCH ADJUSTMENTS ARE REFLECTED IN THE SEVERAL EXCEPTIONS CONTAINED IN SECTION 5 (A), AS WELL AS THOSE FOUND IN THE PROVISIONS OF SUBSECTIONS (B), (C), (D) AND (E) OF SECTION 5.

THE BASIC RULE GOVERNING THE SCOPE AND OPERATION OF SECTION 5 IS FOUND IN THE FIRST SENTENCE OF SUBSECTION (A) WHICH PROVIDES THAT,"* * * 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.'

THE SECOND SENTENCE OF SECTION 5 (A) PROVIDES, HOWEVER, THAT, EXCEPT FOR A MEMBER RETIRED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6331 WHO HAD BECOME ENTITLED TO RETAINER PAY BEFORE APRIL 1, 1963, A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER MARCH 31, 1963, BUT BEFORE OCTOBER 1, 1963, IS ENTITLED (1) TO HAVE THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1963, RECOMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED IN THE 1963 LAW OR (2) TO CONTINUE TO HAVE THAT PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER 37 U.S.C. 203 ON SEPTEMBER 30, 1963, PLUS THE 5 PERCENT INCREASE THEREIN AS PRESCRIBED IN SECTION 5 (E), WHICHEVER PAY IS THE GREATER.

TACKETT AND WHALEY BECAME ENTITLED TO RETAINER PAY AND BARVITSKIE TO RETIRED PAY PRIOR TO APRIL 1, 1963. HENCE THEY ARE NOT ENTITLED TO RECOMPUTE THEIR RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, ON THE RATES OF PAY PRESCRIBED IN THE 1963 ACT. INASMUCH AS THE RETIRED PAY STATUS OF THESE THREE MEMBERS IS NOT WITHIN THE PURVIEW OF SECTION 5 (A), AND SINCE IT IS CLEAR THAT IN ENACTING SECTION 5 THE CONGRESS INTENDED TO COVER ALL PERSONNEL WHO BECAME ENTITLED TO RECEIVE RETIRED PAY OR RETAINER PAY PRIOR TO OCTOBER 1, 1963, IT FOLLOWS NECESSARILY THAT THEIR RETIRED PAY STATUS MUST COME WITHIN THE PROVISIONS OF SOME OTHER SUBSECTION OF SECTION 5. THE ONLY OTHER PROVISIONS OF SECTION 5 WHICH ARE APPLICABLE IN THE CIRCUMSTANCES HERE PRESENTED ARE SUBSECTIONS (C) AND (E), WHICH ARE AS FOLLOWS:

(C) 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.

(E) A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO WAS ENTITLED TO RETIRED PAY OR RETAINER PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, OTHER THAN A MEMBER OR FORMER MEMBER WHO IS COVERED BY SUBSECTION (B), (C), OR (D) OF THIS SECTION, IS ENTITLED 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.

ALSO, SEE SUBSECTION (J) OF SECTION 5 WHICH PROVIDES THAT:

(J) A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE IS NOT ENTITLED TO AN INCREASE IN HIS RETIRED PAY OR RETAINER PAY BECAUSE OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD BEFORE THE EFFECTIVE DATE OF THIS ACT.

UNDER SECTION 13 (B) OF THE 1963 LAW, 77 STAT. 218, 37 U.S.C. 203 NOTE, ENACTMENT OF THAT LAW DID NOT REDUCE THE BASIC PAY OR THE RETIRED PAY OR THE RETAINER PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON SEPTEMBER 30, 1963. BY SECTION 14, 37 U.S.C. 201 NOTE, THE 1963 ACT WAS MADE EFFECTIVE AS OF OCTOBER 1, 1963.

AS PREVIOUSLY STATED, TACKETT, ON SEPTEMBER 30, 1963, WAS RECEIVING RETAINER PAY AS AN ENLISTED MEMBER OF THE FLEET MARINE CORPS RESERVE IN THE AMOUNT OF $177.97 PER MONTH COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THE CAREER COMPENSATION ACT OF 1949 BEFORE JUNE 1, 1958, PLUS THE 6 PERCENT INCREASE IN SUCH PAY EFFECTIVE JUNE 1, 1958, AS PRESCRIBED IN SECTION 4 (A) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 128. HIS RETIRED PAY STATUS FOR PURPOSES OF THE 1963 ACT THEREFORE MUST COME WITHIN THE SCOPE OF SECTION 5 (C) AND UNDER THOSE STATUTORY PROVISIONS HE IS ENTITLED (1) TO HAVE "THAT PAY" RECOMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT ON SEPTEMBER 30, 1963, THAT IS, ON THE RATES OF BASIC PAY PRESCRIBED IN THE 1958 LAW, OR (2) TO AN INCREASE OF 5 PERCENT IN THE RATE OF RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1963, WHICHEVER PAY IS THE GREATER.

SINCE TACKETT WAS NOT TRANSFERRED TO THE RETIRED LIST UNTIL OCTOBER 1, 1963, HE DID NOT BECOME ELIGIBLE BEFORE THAT DATE TO BE ADVANCED TO CAPTAIN ON THE RETIRED LIST AS PRESCRIBED IN 10 U.S.C. 6151 (A) AND AS A CONSEQUENCE OF SUCH ADVANCEMENT TO HAVE HIS RETIRED PAY COMPUTED AS PROVIDED IN 10 U.S.C. 6151 (C) ON THE BASIS OF SUCH HIGHER GRADE. HOWEVER, IF HIS TRANSFER TO THE RETIRED LIST AND ADVANCEMENT THEREON TO THE GRADE OF CAPTAIN UNDER 10 U.S.C. 6151 (A) HAD OCCURRED PRIOR TO OCTOBER 1, 1963, HE WOULD BE ENTITLED UNDER THE PROVISIONS OF 10 U.S.C. 6151 (C) TO RECOMPUTE HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, UNDER AUTHORITY OF SECTION 5 (C) OF THE 1963 LAW ON THE BASIS OF THE GRADE OF CAPTAIN. NOTHING APPEARS IN THE LEGISLATIVE HISTORY OF THE 1963 LAW WHICH REQUIRES THAT THE LANGUAGE OF SECTION 5 (C) OF THAT ACT SHOULD BE CONSTRUED SOLELY IN FAVOR OF THE FLEET MARINE CORPS RESERVIST WHO WAS TRANSFERRED TO THE RETIRED LIST AND ADVANCED TO A HIGHER GRADE THEREON UNDER 10 U.S.C. 6151 (A) PRIOR TO OCTOBER 1, 1963, WITH RESULTING ENTITLEMENT TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE GRADE TO WHICH ADVANCED AS PROVIDED IN 10 U.S.C. 6151 (C), AND TO THE DISADVANTAGE OF THE FLEET MARINE CORPS RESERVISTS WHO IS TRANSFERRED AND ADVANCED ON THE RETIRED LIST UNDER THE SAME STATUTORY PROVISIONS AFTER SEPTEMBER 30, 1963. ACCORDINGLY, WE CONCLUDE THAT EFFECTIVE OCTOBER 1, 1963, TACKETT BECAME ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 5 (C) OF THE 1963 LAW COMPUTED ON THE BASIS OF THE GRADE OF CAPTAIN. UNDER CLAUSE (1) OF SECTION 5 (C) HE IS ENTITLED TO RETIRED PAY BASED ON THE PAY OF A CAPTAIN AT THE RATE OF $280.88 PER MONTH AND UNDER CLAUSE (2) AT THE RATE OF $300.81 PER MONTH. SINCE THE LATTER IS THE GREATER AMOUNT, HE IS ENTITLED TO RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, AT THE RATE OF $300.81 PER MONTH. IT IS APPARENT FROM THE FACTS STATED CONCERNING WHALEY THAT HIS RETIRED PAY STATUS COMES WITHIN THE SCOPE OF SECTION 5 (E) OF THE 1963 LAW. THERE IS PRESENTED HERE THE SAME QUESTION OF INTERPRETATION WITH RESPECT TO THE PROVISIONS OF SECTION 5 (E) AS AROSE IN CONNECTION WITH THE PROVISIONS OF SECTION 5 (C), NAMELY, WHETHER A MEMBER OF THE FLEET MARINE CORPS RESERVE WHO IS TRANSFERRED TO THE RETIRED LIST OF THE MARINE CORPS AFTER SEPTEMBER 30, 1963, SHOULD RECEIVE LESS RETIRED PAY THAN THE FLEET MARINE CORPS RESERVIST WHO, IN IDENTICAL CIRCUMSTANCES, WAS TRANSFERRED TO THE RETIRED LIST PRIOR TO OCTOBER 1, 1963. IT IS OUR VIEW THAT THE PROVISIONS OF SECTION 5 (E) WERE NOT INTENDED TO OPERATE IN SUCH A MANNER AND THAT THOSE PROVISIONS PROPERLY SHOULD BE CONSTRUED AS AUTHORIZING PAYMENT OF RETIRED PAY TO WHALEY EFFECTIVE FROM OCTOBER 1, 1963, IN AN AMOUNT NOT LESS THAN THAT WHICH HE WOULD HAVE RECEIVED IF HIS TRANSFER TO, AND ADVANCEMENT ON, THE RETIRED LIST HAD IN FACT OCCURRED PRIOR TO OCTOBER 1, 1963. COMPARE SECTION 13 (B) OF THE ACT, 77 STAT. 218. ACCORDINGLY, WHALEY IS ENTITLED TO RETIRED PAY OF A CHIEF WARRANT OFFICER (W-2) EFFECTIVE FROM OCTOBER 1, 1963, AT THE RATE OF $231 PER MONTH, THAT IS, TO RETIRED PAY BASED ON THE RATES ESTABLISHED BY THE 1958 ACT PLUS 5 PERCENT.

THE SAME CONCLUSION IS REACHED WITH RESPECT TO PRIVATE BARVITSKIE, WHOSE RETIRED PAY STATUS COMES WITHIN THE PURVIEW OF SECTION 5 (C) OF THE 1963 LAW. IN THIS, AS IN THE PRECEDING TWO CASES, IT WOULD NOT BE APPROPRIATE TO CONCLUDE THAT, BY HAVING BEEN TRANSFERRED FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT DISABILITY RETIRED LIST AFTER SEPTEMBER 30, 1963, HE HAS THEREBY LOST THE BENEFITS OF THE 1963 ACT PRESCRIBED FOR MEMBERS TRANSFERRED UNDER IDENTICAL CIRCUMSTANCES PRIOR TO OCTOBER 1, 1963. UNDER CLAUSE (1) OF SECTION 5 (C) HE IS ENTITLED TO RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, AT THE RATE OF $63 PER MONTH, AND UNDER CLAUSE (2) AT THE RATE OF $67.16 PER MONTH. ACCORDINGLY, HE IS ENTITLED TO RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1963, AT THE RATE OF $67.16 PER MONTH.