B-153038, JANUARY 30, 1964, 43 COMP. GEN. 533

B-153038, JANUARY 30, 1964, 43 COMP. GEN. 533

PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - GENERALS, ADMIRALS, ETC. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - GENERALS, ADMIRALS, ETC. PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - GENERALS, ADMIRALS, ETC. IN RECOMPUTING RETIRED PAY UNDER SECTION 5 (C) (1) OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE), THE SPECIAL FORMULAE BASED ON GRADE 0-8 IN SECTIONS 7 (B) AND (C) OF THE ACT OF MAY 20, 1958 (37 U.S.C. 232 NOTE) FOR RECOMPUTING THE RETIRED PAY FOR GENERALS AND ADMIRALS HAVING NO APPLICABILITY, THE EXACT FORMULAE SPECIFIED IN THE 1958 ACT, SUBSTITUTING THE APPLICABLE BASIC PAY RATE IN EFFECT ON SEPTEMBER 30, 1963 FOR PAY GRADE 0-8 MAY NOT BE USED, SECTION 5 (C) OF THE 1963 ACT PLACING THE MEMBERS ON THE SAME BASIS AS ALL OTHER RETIRED MEMBERS, YET SAVING TO THEM, IF TO THEIR ADVANTAGE, THE 5 PERCENT INCREASE PROVIDED IN SECTION 5 (C) (2); THEREFORE, EACH MEMBER COVERED BY SECTION 5 (C) OF THE 1963 ACT IS ENTITLED TO RETIRED PAY RECOMPUTED UNDER THE RATES OF PAY PRESCRIBED IN THE 1958 ACT BY THE METHOD APPLICABLE AT THE TIME OF RETIREMENT IN EACH INDIVIDUAL CASE, UNLESS THE 5 PERCENT INCREASE FORMULA WILL RESULT IN GREATER RETIRED PAY. A VICE ADMIRAL WHO WAS SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT AND ADVANCED TO THE RANK OF ADMIRAL, AND AFTER SERVING MORE THAN 180 DAYS RETIRED IN THAT RANK WITH RETIRED PAY SINCE JUNE 1, 1958 COMPUTED UNDER THE FORMULA SPECIFIED IN SECTION 7 (B) OF THE ACT OF MAY 20, 1958 (37 U.S.C. 232 NOTE) IS NOT ENTITLED TO THE RECOMPUTATION OF HIS RETIRED PAY PURSUANT TO SECTION 5 (C) (1) OF THE ACT OF OCTOBER 2, 1963 (10 U.S.C. 1402 NOTE) ON THE BASIS OF THE SPECIAL FORMULA PRESCRIBED IN SECTION 7 (B) OF THE 1958 ACT, SUBSTITUTING HIS BASIC PAY GRADE 0-10 IN EFFECT ON SEPTEMBER 30, 1963 FOR THE PAY GRADE 0-8 SPECIFIED IN SECTION 7 (B), AND THE LEGISLATIVE HISTORY OF THE 1963 ACT INDICATING ALL RETIRED MEMBERS ARE TO BE PLACED ON THE SAME BASIS, THE OFFICER'S RETIRED PAY IS FOR RECOMPUTATION ON HIS BASIC PAY GRADE 0-10, SUBJECT TO 10 U.S.C. 6150-- - HIGHER RETIRED GRADE FOR OFFICERS SPECIALLY COMMENDED--- OR IF GREATER HIS PRESENT RETIRED PAY INCREASED BY 5 PERCENT, UNDER SECTION 5 (C) (2) OF THE 1963 ACT. AN OFFICER RETIRED AS VICE ADMIRAL UNDER 34 U.S.C. 417 AND 350G (A), SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTIVE COMBAT AND ADVANCED ON THE RETIRED LIST TO THE RANK OF ADMIRAL WITH RETIRED PAY COMPUTED SINCE JUNE 1, 1958 (37 U.S.C. 232 NOTE) IS NOT ENTITLED TO RECOMPUTATION OF HIS RETIRED PAY UNDER SECTION 5 (C) (1) OF THE ACT OF OCTOBER 2, 1963 (10 U.S.C. 1402 NOTE) ON THE BASIS OF THE SPECIAL FORMULA SPECIFIED IN SECTION 7 (C) OF THE 1958 ACT, SUBSTITUTING HIS BASIC PAY GRADE 0-9 IN EFFECT ON SEPTEMBER 30, 1963 FOR THE PAY GRADE 0 8 PROVIDED IN SECTION 7 (C), SECTION 5 (C) OF THE 1963 ACT NOT PROVIDING SPECIAL CONSIDERATION FOR MEMBERS COVERED IN SECTION 7 (C), THE RETIRED PAY OF THE OFFICER IS FOR RECOMPUTATION ON PAY GRADE 0-9, SUBJECT TO 10 U.S.C. 6150, OR IF GREATER HE IS ENTITLED TO HIS PRESENT RETIRED PAY INCREASED BY 5 PERCENT UNDER SECTION 5 (C) (2) OF THE 1963 ACT.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, JANUARY 30, 1964:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 15, 1963, FORWARDED HERE BY SECOND INDORSEMENT DATED DECEMBER 5, 1963, OF THE COMPTROLLER OF THE NAVY, REQUESTING A DECISION AS TO THE APPLICABILITY OF SECTIONS 7 (B) AND (C) OF PUBLIC LAW 85-422, ACT OF MAY 20, 1958, 72 STAT. 130, 37 U.S.C. 232 NOTE, WITH RESPECT TO THE METHOD OF RECOMPUTING RETIRED PAY AUTHORIZED UNDER SECTION 5 (C) (1), UNIFORMED SERVICES PAY ACT OF 1963, 10 U.S.C. 1402 NOTE, PUBLIC LAW 88-132, 77 STAT. 213. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-734 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU DESCRIBE AND CITE THE CASES OF ADMIRAL JOHN J. BALLENTINE, USN (RETIRED), AND ADMIRAL AUBREY W. FITCH, USN (RETIRED), AS REPRESENTATIVE OF THE TYPE OF CASES ABOUT WHICH THERE IS DOUBT. THE CIRCUMSTANCES ARE STATED AS FOLLOWS:

A. ADM JOHN J. BALLENTINE, USN (RETIRED), 17095, WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON 1 MAY 1954 WITH OVER 30 YEARS ACTIVE SERVICE, AND TO THE PERMANENT DISABILITY RETIRED LIST ON 1 JANUARY 1959. HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, HE WAS PLACED ON THE RETIRED LIST IN THE RANK OF ADMIRAL; THE HIGHEST GRADE SATISFACTORILY HELD BY HIM FOR PAY PURPOSES IS VICE ADMIRAL. HOWEVER, HAVING SERVED IN THE GRADE OF ADMIRAL FOR MORE THAN 180 DAYS, HIS RETIRED PAY HAS BEEN COMPUTED UNDER THE PROVISIONS OF SECTION 7 (B) OF PUBLIC LAW 422 SINCE 1 JUNE 1958.

B. ADM AUBREY W. FITCH, USN (RETIRED), 5813, WAS PLACED ON THE RETIRED LIST ON 1 JULY 1947, IN THE RANK OF VICE ADMIRAL UNDER 34 U.S.C. 417 AND 350G (A). HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF ADMIRAL. SINCE HE SERVED ON ACTIVE DUTY IN THE GRADE OF VICE ADMIRAL FOR MORE THAN 180 DAYS, HIS RETIRED PAY HAS BEEN COMPUTED UNDER THE PROVISIONS OF SECTION 7 (C) OF PUBLIC LAW 422 SINCE 1 JUNE 1958.

SECTIONS 7 (B) AND (C) OF PUBLIC LAW 85-422, SUPRA, PROVIDE:

(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW EXCEPT SUBSECTION (A) OF THIS SECTION AND SECTION 3 (B) AND 6 (5) OF THIS ACT, THE RETIRED PAY OF ANY OFFICER ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT WHO SERVED ON ACTIVE DUTY BEFORE THAT DATE IN THE GRADE OF GENERAL OR ADMIRAL FOR A PERIOD OF AT LEAST 180 DAYS, SHALL, UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW, BE RECOMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF PAY GRADE 0-8 FOR THE CUMULATIVE YEARS OF SERVICE CREDITABLE TO HIM ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS $200, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING HIS RETIRED PAY, MULTIPLIED BY 2 1/2 PERCENTUM, BUT NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH MONTHLY BASIC PAY AS INCREASED BY $200, PLUS 6 PERCENTUM OF THE PERIOD THEREOF.

(C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW EXCEPT SUBSECTION (A) OF THIS SECTION AND SECTION 3 (B) AND 6 (5) OF THIS ACT, THE RETIRED PAY OF ANY OFFICER ENTITLED TO RETIRED PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT WHO SERVED ON ACTIVE DUTY BEFORE THAT DATE IN THE GRADE OF LIEUTENANT GENERAL OR VICE ADMIRAL FOR A PERIOD OF AT LEAST 180 DAYS, SHALL, UNLESS HE IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW, BE RECOMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF PAY GRADE 0 -8 FOR THE CUMULATIVE YEARS OF SERVICE CREDITABLE TO HIM ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS $100, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING HIS RETIRED PAY, MULTIPLIED BY 2 1/2 PERCENTUM, BUT NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH MONTHLY BASIC PAY AS INCREASED BY $100, PLUS 6 PERCENTUM OF THE PRODUCT THEREOF.

SECTION 5 (C) OF PUBLIC LAW 88-132, ACT OF OCTOBER 2, 1963, 77 STAT. 213, PROVIDES THAT:

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, INCLUDING A MEMBER OR FORMER MEMBER WHO IS ENTITLED TO RETIRED PAY UNDER SECTION 7 (B) OR (C) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422 (72 STAT. 130), 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.

YOU STATE THAT "UNDER A LITERAL INTERPRETATION OF SECTION 5 (C) OF PUBLIC LAW 132, RETIRED PAY WOULD BE RECOMPUTED UNDER SECTION 7 (B) AND (C) OF PUBLIC LAW 422 BY USING THE EXACT FORMULA SPECIFIED THEREIN BUT SUBSTITUTING THE APPLICABLE BASIC PAY RATE IN EFFECT ON 30 SEPTEMBER 1963 FOR PAY GRADE 0-8.' YOU STATE FURTHER THAT NOTWITHSTANDING THE ABOVE IT APPEARS FROM THE CHART ON PAGE 31 OF S.REPT. NO. 387, CALENDER NO. 363, FILED AUGUST 5, 1963, THAT IT MAY HAVE BEEN INTENDED THAT RETIRED PAY UNDER SECTION 7 (B) AND (C) OF PUBLIC LAW 85-422 SHOULD BE RECOMPUTED ON THE BASIS OF THE APPLICABLE BASIC PAY RATES FOR PAY GRADES 0-10 AND 0-9 IN EFFECT ON SEPTEMBER 30, 1963, AND WITHOUT THE ADDITIONAL $200 OR $100, AND WITHOUT THE 6 PERCENT, SINCE THE CHART SHOWING ANNUAL RATES OF RETIRED PAY UNDER THE BILL WERE COMPUTED IN THAT MANNER.

SPECIFICALLY, DECISION IS REQUESTED AS TO WHICH OF THE FOLLOWING METHODS SHOULD BE USED IN RECOMPUTING THE RETIRED PAY OF ADMIRALS AND VICE ADMIRALS CONCERNED, UNDER SECTION 5 (C) OF PUBLIC LAW 88-132;

A. BASIC PAY IN EFFECT ON SEPTEMBER 30, 1963, FOR PAY GRADES 0-8, PLUS $200 OR $100 FOR AN ADMIRAL OR VICE ADMIRAL, RESPECTIVELY, WITH THE RESULTANT RATE OF RETIRED PAY INCREASED BY 6 PERCENT.

B. BASIC PAY IN EFFECT ON SEPTEMBER 30, 1963, FOR PAY GRADE 0-8, PLUS $200 OR $100 FOR ADMIRAL OR VICE ADMIRAL, RESPECTIVELY.

C. BASIC PAY IN EFFECT ON SEPTEMBER 30, 1963, FOR PAY GRADE 0-8 FOR BOTH ADMIRALS AND VICE ADMIRALS.

D. BASIC PAY IN EFFECT ON SEPTEMBER 30, 1963, FOR PAY GRADE 0-10 AND 0-9 FOR ADMIRALS AND VICE ADMIRALS, RESPECTIVELY.

WE CANNOT AGREE THAT A "LITERAL INTERPRETATION" OF SECTION 5 (C) OF PUBLIC LAW 88-132 REQUIRES THE SUBSTITUTION OF THE BASIC PAY RATES FOR PAY GRADE 0-8 IN EFFECT ON SEPTEMBER 30, 1963, IN THE FORMULA SPECIFIED IN SECTIONS 7 (B) AND (C) OF PUBLIC LAW 85-422. IF FULL EFFECT IS GIVEN TO THE WORD "INCLUDING" CONTAINED IN SAID SECTION 5 (C), IT IS APPARENT THAT NO SPECIAL CONSIDERATION WAS GIVEN TO THE MEMBERS AND FORMER MEMBERS COVERED BY SECTIONS 7 (B) AND (C). IT IS OUR OPINION THAT THE PURPOSE OF SECTION 5 (C) OF PUBLIC LAW 88-132 IS TO PLACE THOSE MEMBERS ON THE SAME BASIS AS ALL OTHER RETIRED MEMBERS MENTIONED THEREIN INSOFAR AS THAT PARTICULAR SECTION IS CONCERNED, YET SAVING TO THEM, IF TO THEIR ADVANTAGE, THE RIGHT TO THE 5 PERCENT INCREASE FORMULA PROVIDED IN SECTION 5 (C) (2). IN OTHER WORDS, EACH MEMBER COVERED BY SECTION 5 (C) IS TO HAVE HIS RETIRED PAY RECOMPUTED UNDER THE RATES OF PAY PRESCRIBED IN THE 1958 ACT BY THE METHOD APPLICABLE AT THE TIME OF RETIREMENT IN EACH INDIVIDUAL CASE, UNLESS THE 5 PERCENT INCREASE FORMULA WILL RESULT IN GREATER RETIRED PAY.

THIS VIEW OF THE MATTER FINDS SUPPORT IN THE CITED SENATE COMMITTEE REPORT, NOT ONLY IN THE CHART OF EXAMPLES IN THE REPORT, BUT IN THE COMMITTEE'S STATEMENT, ON PAGE 40 OF THE REPORT, AS FOLLOWS:

SECTION 5 (C), IN EFFECT, PROVIDES THAT MEMBERS RETIRED BEFORE JUNE 1, 1958, AND WHO ARE RECEIVING RETIRED PAY UNDER THE CAREER COMPENSATION ACT OF 1949 WILL BE ENTITLED TO RECOMPUTE THEIR RETIRED PAY UNDER THE RATES OF BASIC PAY ENACTED IN 1958, OR TO RECEIVE A 5 PERCENT INCREASE IN PRESENT RETIRED PAY, WHICHEVER IS GREATER.

IT MAY BE OBSERVED THAT THE SAID SECTIONS 7 (B) AND (C) OF THE 1958 ACT ARE SPECIAL IN NATURE. IF THE CONGRESS HAD INTENDED THAT THE EXCEPTIONAL METHODS OF COMPUTING RETIRED PAY THERE PROVIDED SHOULD BE CONTINUED UNDER SECTION 5 (C) (1) OF THE 1963 ACT DESPITE THE IMPLICATION TO THE CONTRARY GIVEN BY THE WORD "INCLUDING," IT WOULD SEEM THAT APPROPRIATE LANGUAGE EVIDENCING SUCH INTENT WOULD HAVE BEEN INCLUDED IN THAT ACT OR IN THE COMMITTEE REPORTS ON THE THEN PROPOSED LEGISLATION. IN THE ABSENCE OF SUCH LANGUAGE AND IN VIEW OF THE PROPOSED INCREASED RETIRED PAY RATES SHOWN IN THE CHART ON PAGE 31 OF THE SENATE COMMITTEE REPORT, IT IS CONCLUDED THAT METHOD (D) ABOVE IS THE CORRECT METHOD TO BE APPLIED--- SUBJECT TO 10 U.S.C. 6150--- IN THE RECOMPUTATION OF THE RETIRED PAY IN THE TYPICAL CASES CITED, OR, IF GREATER, THEIR PRESENT RETIRED PAY INCREASED BY 5 PERCENT.