B-153191, JUNE 18, 1964, 43 COMP. GEN. 805

B-153191: Jun 18, 1964

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PAY - RETIRED - DISABILITY - EXTRAORDINARY HEROISM NAVY MEMBERS WHO HAVE BEEN TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE AND WHO SUBSEQUENTLY ARE PLACED ON THE TEMPORARY OR PERMANENT DISABILITY RETIRED LISTS BECOME ENTITLED TO RECEIVE DISABILITY RETIRED PAY UNDER 10 U.S.C. 1401. WAS RETAINED ON ACTIVE DUTY UNTIL PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST AT WHICH TIME HE WAS NOT ELIGIBLE FOR EITHER VOLUNTARY OR INVOLUNTARY NONDISABILITY RETIREMENT MAY NOT. SUCH MEMBER WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND SUBSEQUENTLY ON THE PERMANENT DISABILITY RETIRED LIST IS LIMITED TO RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401 AND MAY NOT RECEIVE A GREATER AMOUNT AS RETAINER PAY UNDER 10 U.S.C. 6330.

B-153191, JUNE 18, 1964, 43 COMP. GEN. 805

PAY - RETIRED - FLEET RESERVISTS - DISABILITY V. OTHER RETIREMENT. PAY RETIRED - FLEET RESERVISTS - DISABILITY V. OTHER RETIREMENT. PAY - RETIRED - DISABILITY - EXTRAORDINARY HEROISM NAVY MEMBERS WHO HAVE BEEN TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE AND WHO SUBSEQUENTLY ARE PLACED ON THE TEMPORARY OR PERMANENT DISABILITY RETIRED LISTS BECOME ENTITLED TO RECEIVE DISABILITY RETIRED PAY UNDER 10 U.S.C. 1401, AND, THEREFORE, MAY NOT BE PAID RETAINER PAY AS MEMBERS OF A FLEET RESERVE. A NAVY MEMBER WHO, AFTER TRANSFER TO THE FLEET RESERVE, WAS RETAINED ON ACTIVE DUTY UNTIL PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST AT WHICH TIME HE WAS NOT ELIGIBLE FOR EITHER VOLUNTARY OR INVOLUNTARY NONDISABILITY RETIREMENT MAY NOT, BY REASON OF ENTITLEMENT TO RETAINER PAY AS A MEMBER OF THE FLEET RESERVE IF HE HAD BEEN RELEASED TO INACTIVE DUTY, BE CONSIDERED WITHIN THE RETIRED PAY SAVINGS PROVISO IN SECTION 402 (F) OF THE CAREER COMPENSATION ACT OF 1949 RELATING TO VOLUNTARY OR INVOLUNTARY RETIREMENT AND, THEREFORE, SUCH MEMBER WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND SUBSEQUENTLY ON THE PERMANENT DISABILITY RETIRED LIST IS LIMITED TO RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401 AND MAY NOT RECEIVE A GREATER AMOUNT AS RETAINER PAY UNDER 10 U.S.C. 6330. A NAVY MEMBER WHO, AFTER TRANSFER TO THE FLEET RESERVE AT WHICH TIME HE WAS ENTITLED TO CREDIT FOR EXTRAORDINARY HEROISM, WAS RETAINED ON ACTIVE DUTY UNTIL PLACEMENT ON THE TEMPORARY AND SUBSEQUENTLY THE PERMANENT DISABILITY RETIRED LIST MAY NOT HAVE A 10 PERCENT INCREASE FOR EXTRAORDINARY HEROISM INCLUDED IN THE COMPUTATION OF DISABILITY RETIRED PAY IN THE ABSENCE OF ANY PROVISION IN THE RETIRED PAY FORMULAS IN 10 U.S.C. 1401 FOR SUCH INCREASE.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, JUNE 18, 1964:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1963, FORWARDED HERE BY THE COMPTROLLER OF THE NAVY UNDER SECOND INDORSEMENT DATED JANUARY 2, 1964, REQUESTING DECISION "AS TO WHETHER JOSEPH M. HEPWORTH, 368 24 13, U.S.N. (RETIRED), IS ENTITLED TO RETAINER PAY COMPUTED UNDER 10 U.S.C. 6330 FROM 1 FEBRUARY 1954, IN LIEU OF THE RETIRED PAY HE ELECTED TO RECEIVE UNDER 10 U.S.C. 1401.' YOUR REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. DO-N-738 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER DISCLOSES THAT MR. HEPWORTH WAS TRANSFERRED TO THE FLEET RESERVE ON AUGUST 13, 1953, WITH 19 YEARS, 7 MONTHS AND 26 DAYS OF ACTIVE SERVICE CREDITABLE FOR PERCENTAGE AND BASIC PAY PURPOSES AND WITH CREDIT FOR EXTRAORDINARY HEROISM. HE WAS RETAINED ON ACTIVE DUTY THROUGH JANUARY 31, 1954. EFFECTIVE FEBRUARY 1, 1954 HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH TOTAL ACTIVE SERVICE OF 20 YEARS, 1 MONTH AND 13 DAYS. HE WAS TRANSFERRED FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1957.

YOU STATE THAT HEPWORTH ELECTED TO RECEIVE PAY ON THE 2 1/2 PERCENT BASIS PRESCRIBED IN FORMULAS 1 AND 2 OF 10 U.S.C. 1401 WHILE ON THE TEMPORARY AND PERMANENT DISABILITY RETIRED LISTS. YOU POINT OUT THAT IF HE HAD BEEN RELEASED TO INACTIVE DUTY IN THE FLEET RESERVE HE WOULD HAVE BEEN ENTITLED TO RECEIVE RETAINER PAY UNDER 10 U.S.C. 6330 BASED ON 20 YEARS OF ACTIVE SERVICE CREDITABLE FOR PERCENTAGE AND BASIC PAY PURPOSES, PLUS A 10 PERCENT INCREASE IN SUCH RETAINER PAY FOR EXTRAORDINARY HEROISM. YOU ADD THAT YOU ARE NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD SAVE TO HIM THE GREATER AMOUNT HE WOULD HAVE RECEIVED AS "RETAINER PAY" IF HE HAD NOT BEEN RETAINED ON ACTIVE DUTY AND INCURRED A PHYSICAL DISABILITY. YOU EXPRESS THE VIEW THAT "HOWEVER, IT APPEARS POSSIBLE THAT IT MAY BE CONSIDERED THAT HE HAS A VESTED RIGHT TO THE HIGHER RATE OF PAY.'

THIS OFFICE LIKEWISE IS UNAWARE OF ANY PROVISION OF LAW WHICH WOULD SAVE TO HEPWORTH THE RETAINER PAY HE WOULD OTHERWISE HAVE BEEN ENTITLED TO RECEIVE IF HE HAD BEEN RELEASED TO INACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE IN LIEU OF BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

THE PROVISIONS OF 10 U.S.C. 1401 AND 6330, ABOVE REFERRED TO, WERE ENACTED INTO LAW BY THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 106 AND 396, RESPECTIVELY. CONSEQUENTLY, THOSE STATUTORY PROVISIONS WERE NOT IN FORCE ON FEBRUARY 1, 1954, THE DATE THAT HEPWORTH WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ESTABLISHED UNDER AUTHORITY OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816, 37 U.S.C. 271 (1952 ED.). IT APPEARS THAT HE WAS TRANSFERRED TO THE FLEET RESERVE ON AUGUST 13, 1953, UNDER AUTHORITY OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1179), AS AMENDED BY SECTION 2 OF THE ACT APPROVED AUGUST 10, 1946, CH. 952, 60 STAT. 993, 34 U.S.C. 854C (1952 ED.). AFTER TRANSFER TO THE FLEET RESERVE HE WAS ENTITLED UNDERTHOSE STATUTORY PROVISIONS "EXCEPT WHEN ON ACTIVE DUTY" TO BE PAID AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY HE WAS RECEIVING AT TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF HIS ACTIVE FEDERAL SERVICE. THE "PAY" PRESCRIBED FOR MEMBERS TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204 WAS INCREASED BY 10 PERCENTUM (SEE THE FIRST PROVISO OF THAT SECTION) "FOR ALL MEN WHO MAY BE CREDITED WITH EXTRAORDINARY HEROISM IN THE LINE OF DUTY.'

SECTION 204 FURTHER PROVIDED (IN THE FOURTH PROVISO) THAT ALL ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE AS AUTHORIZED IN THAT SECTION "SHALL, UPON COMPLETION OF 30 YEARS' SERVICE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY, WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE.' ALTHOUGH SECTION 204 REFERRED ONLY TO THE "PAY" MEMBERS OF THE FLEET RESERVE WERE THEN ENTITLED TO RECEIVE, IT IS EVIDENT THAT UNDER THOSE STATUTORY PROVISIONS A MEMBER OF THE FLEET RESERVE DID NOT BECOME ENTITLED TO RECEIVE "RETIRED PAY" AS DISTINGUISHED FROM "RETAINER PAY" UNTIL HE HAD ACTUALLY BEEN TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY.

MEMBERS OF THE UNIFORMED SERVICES WHO WERE FOUND PHYSICALLY DISABLED AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ESTABLISHED PURSUANT TO SECTION 401 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 271 (B) (1952 ED.), WERE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SECTION 402 (D) OF THAT ACT, 37 U.S.C. 272 (D) (1952 ED.). IN DECISION OF DECEMBER 30, 1957, 37 COMP. GEN. 446, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MEMBER OF THE U.S. COAST GUARD WHO HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 1, 1953, UNDER AUTHORITY OF SECTION 402 (F) OF THE 1949 LAW, 37 U.S.C. 272 (F) (1952 ED.). ON THAT SAME DATE THE MEMBER CONCERNED COULD HAVE BEEN ALLOWED TO RETIRE UNDER THE PROVISIONS OF 14 U.S.C. 355 (1952 ED.) WHICH PERMITTED ENLISTED MEMBERS OF THE COAST GUARD TO RETIRE VOLUNTARILY AFTER 20 YEARS OF ACTIVE SERVICE. HAD THE MEMBER BEEN PERMITTED TO SO RETIRE VOLUNTARILY HE WOULD HAVE BEEN ENTITLED UNDER THE PROVISIONS OF 14 U.S.C. 423 TO RECEIVE RETIRED PAY FROM MARCH 1, 1953, IN THE SAME AMOUNT AS THE DISABILITY RETIREMENT PAY WHICH HE WAS ENTITLED TO RECEIVE UNDER SECTION 402 (D) OF THE 1949 LAW (2 1/2 PERCENT TIMES HIS YEARS OF ACTIVE SERVICE), PLUS AN ADDITIONAL 10 PERCENTUM FOR GOOD CONDUCT MARKS AS AUTHORIZED IN 14 U.S.C. 357 (C). THUS, THE BASIC ISSUE DECIDED IN THAT CASE BEARS A CLOSE SIMILARITY TO THE QUESTION NOW PRESENTED WITH RESPECT TO HEPWORTH, NAMELY, WHETHER AN INDIVIDUAL WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ESTABLISHED UNDER AUTHORITY TO TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, WAS LIMITED TO THE AMOUNT OF DISABILITY RETIREMENT PAY PRESCRIBED IN THOSE STATUTORY PROVISIONS OR WHETHER SUCH AN INDIVIDUAL, IF OTHERWISE QUALIFIED THEREFOR, PROPERLY COULD BE PAID GREATER RETIRED PAY UNDER SOME OTHER PROVISION OF LAW.

IN REACHING A NEGATIVE CONCLUSION ON THAT POINT IT WAS POINTED OUT IN THE DECISION OF DECEMBER 30, 1957 (SEE PAGE 448) THAT THE EFFECT OF THE PROVISO IN SUBSECTION 402 (F) WHICH READ---

PROVIDED, THAT THE PROVISIONS OF THIS SECTION (SECTION 402) SHALL NOT BE INTERPRETED TO LIMIT THE APPLICATION OF ANY PROVISIONS OF LAW RELATING TO VOLUNTARY OR INVOLUNTARY RETIREMENT.

WAS TO PERMIT MEMBERS WHOSE RETIREMENT FOR PHYSICAL DISABILITY WAS REQUIRED BY ANY PROVISION OF SECTION 402 TO BE RETIRED UNDER ANY PROVISION OF LAW RELATING TO VOLUNTARY OR INVOLUNTARY RETIREMENT IN LIEU OF BEING RETIRED FOR PHYSICAL DISABILITY. IN THAT CONNECTION IT WAS STATED---

WE FIND NO SUBSTANTIAL BASIS FOR CONCLUDING, HOWEVER, THAT, IN THE ABSENCE OF A RETIREMENT UNDER THE PROVISIONS OF LAW AUTHORIZING VOLUNTARY OR INVOLUNTARY NONDISABILITY RETIREMENT, THE PROVISO CONFERRED ON THE MEMBERS CONCERNED ANY RIGHT TO THE RETIRED PAY AUTHORIZED IN THE CASE OF SUCH VOLUNTARY OR INVOLUNTARY RETIREMENT.

AS PREVIOUSLY STATED, HEPWORTH WAS TRANSFERRED TO THE FLEET RESERVE ON AUGUST 13, 1953. IT DOES NOT APPEAR THAN WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON FEBRUARY 1, 1954, HE WAS EVEN ELIGIBLE UNDER ANY PROVISIONS OF LAW FOR VOLUNTARY OR INVOLUNTARY NONDISABILITY RETIREMENT AND WHILE HE WOULD HAVE BEEN ENTITLED TO RECEIVE "RETAINER PAY" AS A MEMBER OF THE FLEET RESERVE IF HE HAD BEEN RELEASED TO INACTIVE DUTY STATUS ON FEBRUARY 1, 1954, SUCH ACTION WOULD NOT HAVE BROUGHT HIM WITHIN THE SCOPE OF THE PROVISO OF SECTION 402 (F). CONSEQUENTLY, UNDER THE HOLDING IN 37 COMP. GEN. 446, HE WAS ENTITLED TO RECEIVE DURING THE TIME HE WAS ON THE TEMPORARY DISABILITY RETIRED LIST FROM FEBRUARY 1, 1954, TO JUNE 30, 1957, ONLY DISABILITY RETIREMENT PAY AS PRESCRIBED IN SECTION 402 (D) OF THE 1949 LAW.

IT WAS ALSO HELD IN THE DECISION OF DECEMBER 30, 1957, 37 COMP. GEN. 446, THAT WHILE THE DISABILITY RETIREMENT PROVISIONS CONTAINED IN SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 WERE REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 641, 680, AND RESTATED IN THAT SAME ACT IN VARIOUS SECTIONS OF NEW TITLE 10, U.S. CODE, THE PROVISIONS OF SECTION 402 CONTINUED TO APPLY TO THE INDIVIDUAL THERE CONCERNED AS LONG AS HE REMAINED ON THE TEMPORARY DISABILITY RETIRED LIST. THAT HOLDING REFLECTED THE CONCLUSION PREVIOUSLY REACHED IN OUR DECISION OF SEPTEMBER 4, 1957, 37 COMP. GEN. 166, THAT WHEN PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OCCURRED BEFORE THE ACT OF AUGUST 10, 1956, WAS PASSED IT WAS A PROCEEDING BEGUN PRIOR TO ENACTMENT OF NEW TITLE 10, U.S. CODE, WITHIN THE CONTEMPLATION OF SECTION 53 OF THAT ACT AND THE CASES OF INDIVIDUALS SO SITUATED PROPERLY WERE TO BE PROCESSED AFTER AUGUST 10, 1956, UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 BY VIRTUE OF THE SAVINGS PROVISION CONTAINED IN SECTION 53 OF THE 1956 ACT. IT WAS FURTHER HELD IN 37 COMP. GEN. 446, THAT IN VIEW OF THE PROVISIONS OF SUBSECTION 49 (C) OF THE 1956 ACT, 70A STAT. 640, SUCH FURTHER ACTION AFTER IT HAD BEEN TAKEN IN ANY PARTICULAR CASE WAS TO BE CONSIDERED AS HAVING BEEN TAKEN UNDER THE CORRESPONDING PROVISIONS OF TITLE 10, U.S. CODE, AS ENACTED BY THE 1956 ACT, AND THAT THE RETIRED PAY RIGHTS OF AN INDIVIDUAL IN SUCH A CASE WOULD THENCEFORTH BE FOR DETERMINATION UNDER THE PERTINENT PROVISIONS OF TITLE 10.

UNDER THAT HOLDING UPON TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST, EFFECTIVE JULY 1, 1957, HEPWORTH'S RETIRED PAY STATUS THENCEFORTH WAS GOVERNED BY THE PROVISIONS OF 10 U.S.C. 1401, SPECIFICALLY FORMULA NO. 1 THEREIN, ENTITLING HIM TO RECEIVE RETIRED PAY AT 50 PERCENT (2 1/2 PERCENT TIMES 20 YEARS OF ACTIVE SERVICE) OF HIS MONTHLY BASIC ACTIVE DUTY PAY. SECTION 1401 FURTHER PROVIDES:

HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE (CONTAINED IN SECTION 1401) OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

THE ABOVE-QUOTED STATUTORY PROVISIONS WERE THE BASIS OF OUR DECISION OF NOVEMBER 27, 1961, 41 COMP. GEN. 337, A CASE WHICH INVOLVED A MARINE CORPS MEMBER WHO, WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1961, UNDER AUTHORITY OF 10 U.S.C. 1202, MET THE SERVICE REQUIREMENTS (WITH 21 YEARS, 8 MONTHS AND 19 DAYS OF ACTIVE SERVICE) FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 (B). UNDER FORMULA NO. 2 IN 10 U.S.C. 1401, PRESCRIBED FOR PERSONS ENTITLED TO "RETIRED PAY" UNDER AUTHORITY OF SECTIONS 1202 AND 1205, HE WAS ENTITLED TO COMPUTE HIS "RETIRED PAY" AS WITH OVER 20 BUT NOT OVER 22 YEARS OF SERVICE. ON THE OTHER HAND, HAD THIS SAME MARINE CORPS MEMBER BEEN TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ON JULY 1, 1961, UNDER AUTHORITY OF 10 U.S.C. 6330 (B) HE WOULD HAVE BEEN ENTITLED TO RECEIVE "RETAINER PAY" COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 6330 (D) ON THE BASIS OF OVER 22 YEARS OF SERVICE.

IT WAS POINTED OUT IN THE DECISION OF NOVEMBER 27, 1961, THAT WHILE IT HAS BEEN HELD THAT ,RETAINER PAY" IS IN THE NATURE OF REDUCED RETIRED PAY (SEE 26 COMP. GEN. 152, 157, AND DECISIONS THERE CITED) THE TERM "RETIRED PAY" GENERALLY HAS REFERENCE ONLY TO THAT PERCENTAGE OF BASE AND LONGEVITY PAY OR BASIC PAY FIXED BY A PARTICULAR STATUTE TO BE PAID TO A "RETIRED" MEMBER AND THAT NOTHING HAD BEEN FOUND IN THE LEGISLATIVE HISTORY OF 10 U.S.C. 1401 TO SHOW THAT THE TERM "RETIRED PAY" AS USED THEREIN WAS INTENDED TO HAVE OTHER THAN ITS USUAL MEANING. IT WAS HELD THEREFORE THAT THE "RETAINER PAY" AUTHORIZED UNDER THE PROVISIONS OF 10 U.S.C. 6330 MAY NOT BE CONSIDERED AS "RETIRED PAY" AS THE LATTER TERM IS USED IN SECTION 1401, AND HENCE THAT THE MEMBER THERE CONCERNED WAS NOT ENTITLED TO "RECEIVE RETAINER PAY SO LONG AS HE REMAINS ON THE TEMPORARY DISABILITY RETIRED LIST.'

WHILE THE DECISION OF NOVEMBER 27, 1961, REFERS ONLY TO THE PERIOD OF TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST (DUE TO THE PARTICULAR FACTS IN THAT CASE) THE CONCLUSION THEREIN REACHED EXTENDS AS WELL TO ALL SIMILAR INSTANCES WHERE THE INDIVIDUAL CONCERNED IS ON THE PERMANENT DISABILITY RETIRED LIST. MEMBERS WHO HAVE BEEN TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE AND WHO SUBSEQUENTLY ARE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR THE PERMANENT DISABILITY RETIRED LIST THEREBY BECOMING ENTITLED TO RECEIVE "RETIRED PAY" COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 1401 MAY NOT PROPERLY BE PAID "RETAINER PAY.' THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE.

THE RECORD NOW DISCLOSES THAT WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON FEBRUARY 1, 1954, HEPWORTH WAS OFFERED "RETIRED PAY FOR PHYSICAL DISABILITY" AS FOLLOWS: METHOD A: MONTHLY BASIC PAY OF $275.18 FOR CHIEF PERSONNEL MAN MULTIPLIED BY 50 PERCENT OR 40 PERCENT DISABILITY (WHICHEVER IS GREATER) WHICH WOULD AMOUNT TO $137.59 MONTHLY GROSS RETIRED PAY. (NOT TO EXCEED 75 PERCENT) (HIGHEST RATING OR RANK "SATISFACTORILY HELD FOR PAY PURPOSES" IN BASIC LETTER)

METHOD B: MONTHLY BASIC PAY OF $275.18 FOR CHIEF PERSONNEL MAN MULTIPLIED BY 2 1/2 PERCENT OF 20 YEARS ACTIVE SERVICE AMOUNTING TO $151.35 (INCLUDES 10 PERCENT EXTRAORDINARY HEROISM PERS-B222D-1-EVD MM 368 24 13 7/1/53) MONTHLY GROSS RETIRED PAY. (NOT TO EXCEED 75 PERCENT)

HEPWORTH ELECTED METHOD B AT THE RATE OF $151.35 PER MONTH WHICH INCLUDED AN INCREASE OF 10 PERCENTUM FOR EXTRAORDINARY HEROISM. SIMILARLY, WHEN TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1957, HE WAS OFFERED AND ELECTED TO RECEIVE RETIRED PAY FOR PHYSICAL DISABILITY ON THE SAME BASIS, THAT IS, AT $167.31 PER MONTH, REPRESENTING $152.10 (50 PERCENT OF $304.20, THE APPLICABLE RATE OF ACTIVE DUTY BASIC PAY THEN IN EFFECT), PLUS AN INCREASE OF 10 PERCENTUM, $15.21, FOR EXTRAORDINARY HEROISM.

THE FORMULAS PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND IN 10 U.S.C. 1401 FOR THE COMPUTATION OF HEPWORTH'S DISABILITY RETIREMENT PAY WHILE ON THE TEMPORARY AND PERMANENT DISABILITY RETIRED LISTS, RESPECTIVELY, DO NOT AUTHORIZE ANY INCREASE IN SUCH RETIRED PAY FOR EXTRAORDINARY HEROISM OR FOR ANY OTHER REASON. CONSEQUENTLY, THE INCLUSION OF A 10 PERCENT INCREASE FOR EXTRAORDINARY HEROISM IN THE DISABILITY RETIREMENT PAY PAID TO HEPWORTH WAS IMPROPER.