B-178054, B-174959, B-153784, AUG 31, 1973, 53 COMP GEN 135

B-153784,B-178054,B-174959: Aug 31, 1973

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PAY - RETIRED - INCREASES - MEMBERS RETAINED ON ACTIVE DUTY AFTER RETIREMENT DATE OFFICERS OF THE AIR FORCE AND OTHER MILITARY SERVICES WHOSE MONTHLY BASIC PAY INCREASED WHILE THEY WERE HELD ON ACTIVE DUTY BEYOND MANDATORY RETIREMENT FOR PHYSICAL EVALUATION PURPOSES ARE ENTITLED. THEY ALSO MAY HAVE CREDIT FOR THE ADDITIONAL ACTIVE DUTY FOR LONGEVITY PURPOSES. WHICH HELD THAT REGULAR COAST GUARD OFFICERS CONTINUED ON ACTIVE DUTY FOR PHYSICAL EVALUATION WERE ENTITLED TO "NO LESS" THAN MEMBERS ENTITLED TO COMPUTE THEIR RETIRED PAY AT THE JULY 1 HIGHER RATES BECAUSE THEY WERE NOT PRECLUDED FROM VOLUNTARILY RETIRING ON JUNE 30. RETROACTIVE APPLICATION OF THE CHESTER CASE IS RESTRICTED BY THE OCTOBER 9.

B-178054, B-174959, B-153784, AUG 31, 1973, 53 COMP GEN 135

PAY - RETIRED - INCREASES - MEMBERS RETAINED ON ACTIVE DUTY AFTER RETIREMENT DATE OFFICERS OF THE AIR FORCE AND OTHER MILITARY SERVICES WHOSE MONTHLY BASIC PAY INCREASED WHILE THEY WERE HELD ON ACTIVE DUTY BEYOND MANDATORY RETIREMENT FOR PHYSICAL EVALUATION PURPOSES ARE ENTITLED, TO THE EXTENT FEASIBLE, TO THE COMPUTATION OF DISABILITY RETIRED PAY AT THE HIGHER BASIC PAY IN EFFECT ON THEIR RESPECTIVE DATES OF RETIREMENT AND TO AN ADJUSTMENT FOR THE UNDERPAYMENTS THAT RESULTED BECAUSE RETIRED PAY HAD BEEN COMPUTED AT THE LOWER RATES IN EFFECT ON THEIR MANDATORY RETIREMENT DATES, AND THEY ALSO MAY HAVE CREDIT FOR THE ADDITIONAL ACTIVE DUTY FOR LONGEVITY PURPOSES, IN VIEW OF EDWARD P. CHESTER, ET AL. V. UNITED STATES, 199 CT. CL. 687, WHICH HELD THAT REGULAR COAST GUARD OFFICERS CONTINUED ON ACTIVE DUTY FOR PHYSICAL EVALUATION WERE ENTITLED TO "NO LESS" THAN MEMBERS ENTITLED TO COMPUTE THEIR RETIRED PAY AT THE JULY 1 HIGHER RATES BECAUSE THEY WERE NOT PRECLUDED FROM VOLUNTARILY RETIRING ON JUNE 30, THEIR MANDATORY RETIREMENT DATES. RETROACTIVE APPLICATION OF THE CHESTER CASE IS RESTRICTED BY THE OCTOBER 9, 1940 BARRING ACT, AND DOUBTFUL CASES SHOULD BE SUBMITTED TO GAO. OVERRULES 43 COMP. GEN. 742, B-153784, SEPTEMBER 17, 1969, B-172047, FEBRUARY 23, 1972, AND OTHER SIMILAR DECISIONS.

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, AUGUST 31, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 22, 1973, FILE REFERENCE RPTT, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON 12 VOUCHERS COVERING INCREASED RETIRED PAY ON BEHALF OF THE FOLLOWING 11 RETIRED REGULAR AIR FORCE OFFICERS AND THE WIDOW OF ONE RETIRED REGULAR AIR FORCE OFFICER:

1. DONLEY, JOHN BLAND (COL.) XXX-XX-XXXX

2. FITZWATER, JOHN T. (BRIG. GEN.) XXX-XX-XXXX

3. CELLINI, OLIVER G. (COL.) XXX-XX-XXXX

4. SIMERAL, GEORGE A. (COL.) XXX-XX-XXXX

5. BANE, EDWIN RONALD (COL.) XXX-XX-XXXX

6. PLOETZ, MRS. THELMA, WIDOW OF FREDERICK F. (COL.) XXX-XX-XXXX

7. CREYTS, HAROLD G. (COL.) XXX-XX-XXXX

8. SEALY, HARRY H. (COL.) XXX-XX-XXXX

9. REMELE, COURTNEY A. (LT. COL.) XXX-XX-XXXX

10. THOMPSON, DONALD V. (COL) XXX-XX-XXXX

11. MAGERS, JAMES W. (LT. COL.) XXX-XX-XXXX

12. LITTLE, ROBERT D. (COL.) XXX-XX-XXXX

THE VOUCHERS REPRESENT THE DIFFERENCE IN THE RETIRED PAY OF EACH OFFICER COMPUTED ON THE RATES OF ACTIVE DUTY PAY IN EFFECT ON THEIR MANDATORY RETIREMENT DATES AND THE HIGHER RATES EFFECTIVE AT THE TIME OF THEIR ACTUAL RELEASE FROM ACTIVE DUTY.

YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE (HQ USAF) DATED FEBRUARY 16, 1973, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF 1182 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

APPARENTLY ALL 12 OFFICERS WERE SUBJECT TO MANDATORY RETIREMENT UNDER THE PROVISIONS OF 10 U.S. CODE 8916, 8921, OR 8922. YOU SAY THAT IN ALL 12 CASES THE OFFICERS WERE HELD ON ACTIVE DUTY PAST THEIR MANDATORY RETIREMENT DATES FOR PHYSICAL EVALUATION PURPOSES AND AFTER BEING SO HELD OVER, NINE OF THE OFFICERS WERE THEN RETIRED FOR PHYSICAL DISABILITY UNDER 10 U.S.C. 1201 AND THE OTHER THREE WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202.

YOU SAY FURTHER THAT IN EACH OFFICER'S CASE THERE WAS A CHANGE (INCREASE) IN THE MONTHLY BASIC PAY TO WHICH HE WAS ENTITLED WHILE ON ACTIVE DUTY WHICH CHANGE OCCURRED AFTER EACH OFFICER'S MANDATORY RETIREMENT DATE BUT BEFORE HIS ACTUAL RELEASE FROM ACTIVE DUTY.

IN COLONEL DONLEY'S CASE THE CHANGE IN BASIC PAY WAS A LONGEVITY INCREASE WHICH RESULTED FROM HIS COMPLETION OF 26 YEARS OF DUTY FOR PAY PURPOSES ON MARCH 2, 1968, AFTER HIS JANUARY 23, 1968, MANDATORY RETIREMENT DATE. THE REMAINING CASES THE INCREASES IN BASIC PAY WERE THE RESULT OF THE GENERAL ACTIVE DUTY PAY RAISES EFFECTIVE EITHER JULY 1, 1968, OR JULY 1, 1969.

YOU SAY THAT IN VIEW OF THE RULING BY THIS OFFICE IN 43 COMP. GEN. 742 (1964), WHICH RULING WAS UPHELD AND REAFFIRMED IN B-165038(1), JUNE 2, 1969; AND B-153784, SEPTEMBER 17 AND OCTOBER 27, 1969, THE RETIRED PAY OF ALL THE OFFICERS HERE INVOLVED HAS BEEN COMPUTED AND PAID ON THE LOWER RATES OF ACTIVE DUTY PAY IN EFFECT ON THEIR MANDATORY RETIREMENT DATES RATHER THAN THE HIGHER RATES IN EFFECT ON THE DATES THEY WERE RELEASED FROM ACTIVE DUTY. HOWEVER, YOU SAY THAT IN THE RECENT CASE OF EDWARD P. CHESTER, ET AL. V. UNITED STATES, 199 CT. CL. 687, DECIDED OCTOBER 13, 1972, THE COURT OF CLAIMS REJECTED THE POSITION THAT THIS OFFICE TOOK IN OUR DECISION B-165038(1), JUNE 2, 1969, WITH RESPECT TO PLAINTIFF CHESTER.

SINCE THE CASES OF THE TWELVE CLAIMANTS IN THE SUBMISSION ARE SIMILAR TO THOSE IN THE CLASS TYPIFIED BY THE CASE OF THE PLAINTIFF CHESTER, YOU NOW ASK WHETHER, BASED ON THE RULING OF THE COURT OF CLAIMS IN THE CHESTER CASE, THE RETIRED PAY OF THE BEFORE-LISTED MEMBERS MAY BE ADJUSTED TO REFLECT THE HIGHER RATES OF BASIC PAY IN EFFECT ON THEIR RESPECTIVE DATES OF RETIREMENT.

IN THE CHESTER CASE THE PLAINTIFFS WERE REGULAR COAST GUARD CAPTAINS WHO IN JUNE 1968 OR 1969 BECAME SUBJECT TO THE MANDATORY RETIREMENT PROVISIONS OF 14 U.S.C. 288 AND WHO WERE ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER OTHER PROVISIONS OF LAW IN JUNE 1968 OR 1969.

THE MANDATORY RETIREMENT STATUTE TO WHICH THE PLAINTIFFS WERE SUBJECT, 14 U.S.C. 288, PROVIDES THAT A COAST GUARD CAPTAIN IN THEIR CIRCUMSTANCES "SHALL, IF NOT EARLIER RETIRED," BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH HE, OR ANY CAPTAIN JUNIOR TO HIM, COMPLETES 30 YEARS OF ACTIVE COMMISSIONED SERVICE IN THE COAST GUARD. UNDER THE PROVISIONS OF THAT STATUTE AND THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301, WE HAD HELD THAT MEMBERS IN THEIR CIRCUMSTANCES WERE ENTITLED TO COMPUTE THEIR RETIRED PAY BASED ON THE ACTIVE DUTY PAY RATES IN EFFECT ON JUNE 30 OF 1968 OR 1969, AS THE CASE MAY BE, AND NOT ON THE HIGHER RATES EFFECTIVE JULY 1 OF THOSE YEARS. AND, IT WAS OUR VIEW THAT ALTHOUGH THEY WERE ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER OTHER STATUTES ON JUNE 30 WHICH WOULD HAVE AUTHORIZED THEM TO COMPUTE THEIR RETIRED PAY AT THE RATES EFFECTIVE JULY 1, BECAUSE OF THE MANDATORY NATURE OF 14 U.S.C. 288 AND THE LANGUAGE OF THE STATUTE WHICH PROVIDED "IF NOT EARLIER" RETIRED, THEY COULD NOT BE RETIRED VOLUNTARILY ON THE SAME DAY THEY WERE TO BE MANDATORILY RETIRED. SEE B 165038, JANUARY 6, 1969, AND B-165038(1) AND (2), JUNE 2, 1969.

IN THE CHESTER CASE, THE COURT HELD THAT THE PLAINTIFFS WERE NOT PRECLUDED FROM VOLUNTARILY RETIRING ON JUNE 30, THE MANDATORY RETIREMENT DATE TO WHICH THEY WERE SUBJECT UNDER 14 U.S.C. 288(A), AND THEY WERE THEREFORE ENTITLED TO COMPUTE THEIR PAY AT THE HIGHER RATES EFFECTIVE JULY 1. IN REGARD TO THOSE MEMBERS HELD ON ACTIVE DUTY BEYOND JUNE 30 FOR PHYSICAL EVALUATION, THE COURT HELD THAT THEY WERE ENTITLED TO "NO LESS" THAN THE OTHER PLAINTIFFS.

IN OUR DECISION OF AUGUST 16, 1973, 53 COMP. GEN. 94, COPY OMITTED, ADDRESSED TO THE SECRETARY OF TRANSPORTATION, WE SAID THAT WE WILL NOW FOLLOW THE COURT'S RULING IN THE CHESTER CASE IN THE COMPUTATION OF THE RETIRED PAY OF OTHER COAST GUARD OFFICERS SIMILARLY SITUATED, BOTH RETROACTIVELY AND PROSPECTIVELY. HOWEVER, WE LIMITED RETROACTIVE APPLICATION OF THAT DECISION TO THE PERIOD (GENERALLY 10 YEARS) PROVIDED BY THE BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WITH DOUBTFUL CASES TO BE SUBMITTED HERE FOR DETERMINATION. SEE THE ANSWER TO QUESTION 2 OF THE DECISION OF AUGUST 16, 1973.

WHILE THE MANDATORY RETIREMENT STATUTES APPLICABLE TO THE AIR FORCE AND THE OTHER ARMED SERVICES ARE NOT IDENTICAL TO THOSE OF THE COAST GUARD, IN VIEW OF THE GENERAL CONGRESSIONAL POLICY IN RECENT YEARS TO TREAT THE SERVICES UNIFORMLY IN PAY AND ALLOWANCES MATTERS, WHEN PRACTICABLE, WE WILL FOLLOW THE RULES ENUNCIATED IN THE CHESTER CASE TO THE EXTENT FEASIBLE IN COMPUTING THE DISABILITY RETIRED PAY OF MEMBERS OF THE OTHER SERVICES, INCLUDING THE AIR FORCE. THEREFORE, OFFICERS OF THE AIR FORCE WHO ARE RETAINED ON ACTIVE DUTY BEYOND THEIR MANDATORY RETIREMENT DATES FOR PHYSICAL EVALUATION TO DETERMINE THEIR ELIGIBILITY FOR DISABILITY RETIREMENT AND ARE SO RETIRED MAY COUNT SUCH ADDITIONAL ACTIVE DUTY FOR LONGEVITY PURPOSES AND FOR DETERMINING THE EFFECTIVE RATES OF ACTIVE DUTY PAY UPON WHICH THEIR RETIRED PAY IS TO BE COMPUTED. TO THE EXTENT THAT OUR DECISIONS 43 COMP. GEN. 742 (1964); B 153784, SEPTEMBER 17, 1969; B- 172047, FEBRUARY 23, 1972; AND OTHER SIMILAR DECISIONS CONFLICT WITH THE ABOVE, THEY WILL NO LONGER BE FOLLOWED. IN THIS REGARD, IT IS TO BE NOTED THAT IN ADDITION TO THE CASE OF COLONEL HARRY H. SEALY (B-153784, SEPTEMBER 17, 1969), THE VOUCHER IN THE CASE OF COLONEL GEORGE A. SIMERAL WAS THE SUBJECT MATTER OF OUR EARLIER DECISION, 51 COMP. GEN. 563 (1972).

ACCORDINGLY, IF OTHERWISE CORRECT, PAYMENT MAY BE MADE ON THE VOUCHERS SUBMITTED WITH YOUR LETTER, WHICH VOUCHERS ARE RETURNED HEREWITH.