B-153593, JUNE 30, 1964, 43 COMP. GEN. 831

B-153593: Jun 30, 1964

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SERVED ON ACTIVE DUTY IN THE TEMPORARY GRADE OF MAJOR GENERAL FOR ONE MONTH AND WAS THEN RELEASED FROM SUCH DUTY ON OCTOBER 31. THE MEMBER'S RETIRED PAY IS FOR COMPUTATION ON NOVEMBER 1. 1964: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27. SHOW THAT GENERAL LANSDALE WAS MANDATORILY RETIRED AS A BRIGADIER GENERAL. IT APPEARS THAT GENERAL LANSDALE WAS ORDERED TO EXTENDED ACTIVE DUTY (VOLUNTARY) AS A RETIRED MEMBER OF THE REGULAR AIR FORCE. HE WAS RELEASED FROM ACTIVE DUTY AT THAT GRADE ON OCTOBER 31. THIS PERIOD OF ACTIVE DUTY ONLY 1 MONTH (OCTOBER 1963) WAS COVERED BY THE HIGHER BASIC PAY RATES AUTHORIZED BY PUBLIC LAW 88-132. UPON RELEASE FROM ACTIVE DUTY HE WAS ADVANCED ON THE REGULAR AIR FORCE RETIRED LIST TO THE GRADE OF MAJOR GENERAL.

B-153593, JUNE 30, 1964, 43 COMP. GEN. 831

PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - ACTIVE DUTY RECALL WHILE AN AIR FORCE OFFICER WHO, AFTER MANDATORY RETIREMENT ON JUNE 1, 1963, AS A BRIGADIER GENERAL UNDER 10 U.S.C. 8921, SERVED ON ACTIVE DUTY IN THE TEMPORARY GRADE OF MAJOR GENERAL FOR ONE MONTH AND WAS THEN RELEASED FROM SUCH DUTY ON OCTOBER 31, 1963, AND ADVANCED ON THE RETIRED LIST TO MAJOR GENERAL, COMES WITHIN THE ADDITIONAL RETIRED PAY PROVISIONS OF SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963, EFFECTIVE OCTOBER 1, 1963, AS A MEMBER ENTITLED TO RETIRED PAY AFTER MARCH 31, 1963, HE DOES NOT MEET EITHER THE 2 YEARS' CONTINUOUS SERVICE REQUIREMENT UNDER THE HIGHER RATES FOLLOWING RECALL UNDER FOOTNOTE 1 OF 10 U.S.C. 1402 (A), AS AMENDED, IN 1963, OR THE 1-YEAR CONTINUOUS ACTIVE DUTY REQUIREMENT UNDER SECTION 5 (L) OF THE 1963 ACT, AND, THEREFORE, THE MEMBER'S RETIRED PAY IS FOR COMPUTATION ON NOVEMBER 1, 1963, ON THE BASIS OF THE RATES PRESCRIBED FOR A MAJOR GENERAL UNDER THE LAW IN EFFECT BEFORE THE UNIFORMED SERVICES PAY ACT OF 1963.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, JUNE 30, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1964, TRANSMITTED HERE BY LETTER OF THE OFFICE OF DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, DATED FEBRUARY 25, 1964 (AIR FORCE REQUEST NO. 747), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $52.50 ISSUED IN FAVOR OF MAJOR GENERAL EDWARD G. LANSDALE, 2534A, RETIRED. THIS PAYMENT REPRESENTS THE DIFFERENCE IN THE RETIRED PAY OF A MAJOR GENERAL COMPUTED ON THE BASIS OF THE RATES PRESCRIBED BY THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 232, EFFECTIVE JUNE 1, 1958, AND THE RATES PRESCRIBED BY THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210, 37 U.S.C. 203, EFFECTIVE OCTOBER 1, 1963, FOR THE MONTH OF NOVEMBER 1963.

DEPARTMENT OF THE AIR FORCE ORDERS OF MAY 20, 1963, SHOW THAT GENERAL LANSDALE WAS MANDATORILY RETIRED AS A BRIGADIER GENERAL, UNDER THE PROVISIONS OF 10 U.S.C. 8921, ON JUNE 1, 1963. YOU REPORT THAT AT THE TIME OF RETIREMENT HE HAD COMPLETED 20 YEARS, 4 MONTHS AND 15 DAYS OF ACTIVE SERVICE, 28 YEARS, 3 MONTHS AND 24 DAYS'S SERVICE FOR BASIC PAY PURPOSES AND 30 YEARS AND 1 MONTH OF SERVICE FOR COMPULSORY RETIREMENT PURPOSES COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 8927 (A).

IT APPEARS THAT GENERAL LANSDALE WAS ORDERED TO EXTENDED ACTIVE DUTY (VOLUNTARY) AS A RETIRED MEMBER OF THE REGULAR AIR FORCE, UNDER THE PROVISIONS OF 10 U.S.C. 8504 (A), AND APPOINTED TO THE TEMPORARY GRADE OF MAJOR GENERAL, EFFECTIVE JUNE 1, 1963. HE WAS RELEASED FROM ACTIVE DUTY AT THAT GRADE ON OCTOBER 31, 1963, AND REVERTED TO HIS RETIRED STATUS. THIS PERIOD OF ACTIVE DUTY ONLY 1 MONTH (OCTOBER 1963) WAS COVERED BY THE HIGHER BASIC PAY RATES AUTHORIZED BY PUBLIC LAW 88-132. UPON RELEASE FROM ACTIVE DUTY HE WAS ADVANCED ON THE REGULAR AIR FORCE RETIRED LIST TO THE GRADE OF MAJOR GENERAL. AT THE TIME OF HIS RETIREMENT ON JUNE 1, 1963, GENERAL LANSDALE ALSO WAS SERVING IN THE TEMPORARY GRADE OF MAJOR GENERAL BUT HE HAD LESS THAN 6 MONTHS' SERVICE IN THAT GRADE. YOU STATE THAT THE OFFICER'S RETIRED PAY WAS RECOMPUTED, EFFECTIVE NOVEMBER 1, 1963, BASED ON THE GRADE OF MAJOR GENERAL, USING THE BASIC PAY RATES PRESCRIBED BY PUBLIC LAW 85-422.

SECTION 5 (A) OF PUBLIC LAW 88-132, 10 U.S.C. 1402 NOTE, PROVIDES IN PERTINENT PART, AS OLLOWS:

SEC. 5. (A) EXCEPT AS PROVIDED IN SECTION 1402 OF TITLE 10, UNITED STATES CODE, 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 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; * * *.

WHILE IT APPEARS THAT GENERAL LANSDALE BECAME ENTITLED TO RETIRED PAY AFTER MARCH 31, 1963, WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISIONS OF LAW (CF. 38 COMP. GEN. 843, 847), SUCH STATUTORY PROVISIONS DO NOT AUTHORIZE PAYMENT OF THE AMOUNT CLAIMED SINCE RECOMPUTATION OF HIS RETIRED PAY COULD BE MADE ONLY ON THE BASIS OF THE RETIRED PAY OF A BRIGADIER GENERAL TO WHICH HE BECAME ENTITLED ON JUNE 1, 1963.

PRIOR TO THE ENACTMENT OF PUBLIC LAW 88-132, 10 U.S.C. 1402 (A) PROVIDED THAT A MEMBER OF AN ARMED FORCE WHO HAS BEEN RETIRED AND WHO THEREAFTER SERVES ON ACTIVE DUTY IS ENTITLED, UPON RELEASE FROM THAT DUTY, TO "RECOMPUTE" HIS RETIRED PAY IN ACCORDANCE WITH THE FORMULA THEREIN STATED. SUCH FORMULA PROVIDED THAT RETIRED PAY SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF THE GRADE IN WHICH THE MEMBER CONCERNED WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY, MULTIPLIED BY 2 1/2 PERCENT OF THE SUM OF (1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM IN COMPUTING HIS RETIRED PAY AND (2) HIS YEARS OF ACTIVE SERVICE AFTER RETIREMENT. IN DETERMINING THE PERCENTAGE FACTOR FOR USE IN THIS FORMULA, IT WAS FURTHER PROVIDED IN FOOTNOTE 1 TO SECTION 1402 (A) THAT A PART OF A YEAR THAT IS 6 MONTHS OR MORE SHALL BE CREDITED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN 6 MONTHS SHALL BE DISREGARDED. THERE WAS NO PRESCRIBED TIME DURING WHICH THE OFFICER WAS REQUIRED TO SERVE IN HIS RECALLED STATUS, BEFORE A RECOMPUTATION OF HIS RETIRED PAY WAS PERMITTED.

SECTION 5 (L) (1) OF PUBLIC LAW 88-132 AMENDED 10 U.S.C. 1402 (A)BY SUBSTITUTING A NEW FOOTNOTE 1 PROVIDING THAT IN THE CASE WHERE A RETIRED OFFICER IS RECALLED TO ACTIVE DUTY HE MAY RECOMPUTE HIS RETIRED PAY UNDER THE HIGHER RATES WHICH MAY BE IN EFFECT WHEN HE LEAVES ACTIVE SERVICE ONLY IF HE HAS SERVED ON ACTIVE DUTY FOR 2 YEARS UNDER THE HIGHER RATES. OTHERWISE, HIS RETIRED PAY IS TO BE COMPUTED UNDER THE RATES OF BASIC PAY WHICH WERE USED IN COMPUTING HIS RETIRED PAY WHEN HE ENTERED ON THAT ACTIVE DUTY.

IN THE CIRCUMSTANCES, WE CONCUR WITH THE ADMINISTRATIVE VIEW THAT GENERAL LANSDALE BECAME ENTITLED TO RETIRED PAY ON NOVEMBER 1, 1963, COMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY PUBLIC LAW 85-422 FOR A MAJOR GENERAL WITH HIS SERVICE FOR BASIC PAY PURPOSES, $1,012.50 PER MONTH. PERCEIVE NO REASON WHY ANY ADDITIONAL RETIRED PAY (UNDER THE HIGHER RATES OF BASIC PAY AUTHORIZED BY PUBLIC LAW 88-132) SHOULD BE PAID INCIDENT TO HIS SERVICE PERFORMED AFTER MAY 31, 1963, SINCE HE DID NOT MEET EITHER THE REQUIREMENT OF 2 YEARS' CONTINUOUS ENTITLEMENT TO BASIC PAY UNDER THE HIGHER RATES FOLLOWING RECALL TO ACTIVE SERVICE AS SET OUT IN FOOTNOTE 1 TO 10 U.S.C. 1402 (A), AS AMENDED BY PUBLIC LAW 88-132, OR THE REQUIREMENT OF 1 YEAR OF CONTINUOUS ACTIVE DUTY FOLLOWING RECALL PRESCRIBED BY PARAGRAPH (2) OF SECTION 1402 (A) AS ADDED BY SECTION 5 (L) OF THE 1963 LAW.

ACCORDINGLY, PAYMENT ON THE VOUCHER SUBMITTED IS NOT AUTHORIZED AND SUCH VOUCHER WILL BE RETAINED HERE.