B-154151, JUN. 25, 1964

B-154151: Jun 25, 1964

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USAR: REFERENCE IS MADE TO YOUR LETTER OF MAY 11. YOU SAY THAT AT THE PRESENT TIME YOU ARE CLAIMING INCREASED RETIRED PAY UNDER THE PROVISIONS OF SECTION 1402 (A). WAS ENTITLED. TO RECOMPUTE HIS RETIRED PAY (1) BY TAKING THE MONTHLY BASIC PAY OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY. A PART OF A YEAR THAT WAS 6 MONTHS OR MORE SHOULD BE CREDITED AS A WHOLE YEAR. IT APPEARS THAT YOUR CLAIM IS GROUNDED. THAT THE RECORDS SHOW YOU WERE PLACED ON THE RETIRED LIST IN THE GRADE OF "CWO-3" ON OCTOBER 31. 162 (THE PERTINENT PARTS OF WHICH ARE NOW CODIFIED IN 10 U.S.C. 1293 AND 10 U.S.C. 1401). YOU SAY THAT SINCE YOUR RETIREMENT YOU HAVE PERFORMED PERIODS OF ACTIVE DUTY FOR TRAINING AGGREGATING 4 MONTHS AND 4 DAYS AND THAT.

B-154151, JUN. 25, 1964

TO CHIEF WARRANT OFFICER J. B. COLLINS, USAR:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1964, IN WHICH YOU REFER TO YOUR LETTER OF APRIL 20, 1964, AND TO OUR SETTLEMENT OF APRIL 12, 1961, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY INCIDENT TO YOUR SERVICE IN THE ARMY. YOU SAY THAT AT THE PRESENT TIME YOU ARE CLAIMING INCREASED RETIRED PAY UNDER THE PROVISIONS OF SECTION 1402 (A), TITLE 10, UNITED STATES CODE.

EFFECTIVE AUGUST 10, 1956, THE SAID SECTION 1402 (A) SUPERSEDED SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 832, AND IT PROVIDED PERTINENTLY THAT A MEMBER OF AN ARMED FORCE WHO HAD BEEN RETIRED, AND WHO THEREAFTER SERVED ON ACTIVE DUTY, WAS ENTITLED, UPON RELEASE FROM THAT DUTY, TO RECOMPUTE HIS RETIRED PAY (1) BY TAKING THE MONTHLY BASIC PAY OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY, AND (2) MULTIPLYING SUCH MONTHLY BASIC PAY BY 2 1/2 PERCENT OF THE SUM OF (A) THE YEARS OF SERVICE THAT "MAY BE CREDITED TO HIM" IN COMPUTING HIS RETIRED PAY AND (B) HIS YEARS OF ACTIVE DUTY AFTER RETIREMENT. SUCH SECTION SPECIFIED THAT, BEFORE APPLYING THE PERCENTAGE FACTOR, A PART OF A YEAR THAT WAS 6 MONTHS OR MORE SHOULD BE CREDITED AS A WHOLE YEAR.

IT APPEARS THAT YOUR CLAIM IS GROUNDED, IN PART, ON THE STATEMENT

IN OUR SETTLEMENT OF APRIL 12, 1961, THAT THE RECORDS SHOW YOU WERE PLACED ON THE RETIRED LIST IN THE GRADE OF "CWO-3" ON OCTOBER 31, 1955, UNDER THE PROVISIONS OF SECTION 14 OF THE ACT OF MAY 29, 1954, CH. 249, 68 STAT. 157, 162 (THE PERTINENT PARTS OF WHICH ARE NOW CODIFIED IN 10 U.S.C. 1293 AND 10 U.S.C. 1401), WITH 20 YEARS, 2 MONTHS AND 1 DAY OF ACTIVE SERVICE AND SERVICE FOR BASIC PAY PURPOSES. YOU SAY THAT SINCE YOUR RETIREMENT YOU HAVE PERFORMED PERIODS OF ACTIVE DUTY FOR TRAINING AGGREGATING 4 MONTHS AND 4 DAYS AND THAT, THEREFORE, THE TOTAL OF YOUR ACTIVE DUTY FOR RETIREMENT PAY PURPOSES IS NOW 20 YEARS, 6 MONTHS AND 5 DAYS, AND YOU URGE THAT, UNDER THE PROVISIONS OF SECTION 1402 (A), YOUR RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF 21 YEARS OF SERVICE INSTEAD OF 20 YEARS OF SERVICE.

IN OUR DECISION OF SEPTEMBER 24, 1959, 39 COMP. GEN. 217, WE HELD THAT "ACTIVE DUTY FOR TRAINING" PERFORMED AFTER AUGUST 10, 1956, WAS TO BE REGARDED AS ACTIVE DUTY FOR INCREASING RETIRED PAY UNDER SECTION 1402 (A). SUBSEQUENTLY, SECTION 1402 (A) WAS AMENDED BY SECTION 1 (5) OF THE ACT OF JUNE 30, 1960, PUB.L. 88-559, 74 STAT. 265, BY ADDING THE FOLLOWING NEW SENTENCE AT THE END THEREOF:

"HOWEVER, A RESERVE OFFICER WHO IS OR HAS BEEN RETIRED UNDER SECTION 3911, 6323, OR 8911 OF THIS TITLE OR UNDER SECTION 232 OF TITLE 14, MAY NOT HAVE HIS RETIRED PAY RECOMPUTED UNDER THIS SUBSECTION ON THE BASIS OF ANY PERIOD OF ACTIVE DUTY THAT WAS OF LESS THAN SIX CONSECUTIVE MONTHS' DURATION OR ON THE BASIS OF ANY ACTIVE DUTY FOR TRAINING.'

SINCE YOU WERE NOT RETIRED UNDER ANY OF THE CITED SECTIONS OF TITLE 10, SUCH AMENDMENT WAS NOT APPLICABLE TO YOUR CASE. EFFECTIVE OCTOBER 1, 1963, HOWEVER, SECTION 1402 (A) WAS FURTHER AMENDED BY SECTION 5 (1) (1) OF THE ACT OF OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 214, AND THE TERM ,ACTIVE DUTY" WAS REPLACED BY THE TERM "ACTIVE DUTY (OTHER THAN FOR TRAINING).' A COPY OF PUBLIC LAW 88-132 IS ENCLOSED FOR YOUR INFORMATION.

THE STATEMENT OF SERVICE (DD FORM 13) IN YOUR CASE DISCLOSES THAT YOU FIRST ENLISTED IN THE REGULAR ARMY ON JUNE 24, 1935, AND SERVED TO JUNE 23, 1938, A PERIOD OF 3 YEARS. YOU AGAIN ENLISTED IN THE REGULAR ARMY ON SEPTEMBER 1, 1938, AND HAD CONTINUOUS MILITARY SERVICE UNTIL THE DATE OF YOUR RETIREMENT, OCTOBER 31, 1955, A TOTAL OF 17 YEARS AND 2 MONTHS. WHILE SERVING IN THE REGULAR ARMY AS AN ENLISTED MAN, HOWEVER, YOU HAD 60 DAYS' LOST TIME (JULY 16 TO 28, 1939, AND AUGUST 7 TO SEPTEMBER 22, 1939, INCLUSIVE). IN OUR DECISION OF FEBRUARY 5, 1943, B-31606, 22 COMP. GEN. 759, WE HELD THAT TIME LOST BY AN ENLISTED MAN WHILE HE WAS ABSENT BY REASON OF SICKNESS DUE TO HIS OWN MISCONDUCT, ABSENT WITHOUT LEAVE, ETC., MAY NOT BE COUNTED AS ENLISTED SERVICE FOR PAY PURPOSES. IT APPEARS, THEREFORE, THAT YOU HAD COMPLETED ONLY 20 YEARS AND 1 DAY OF SERVICE FOR RETIRED PAY PURPOSES AT THE TIME OF YOUR RETIREMENT ON OCTOBER 31, 1955.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOU HAVE NOT COMPLETED MORE THAN 20 YEARS AND 6 MONTHS OF ACTIVE DUTY FOR RETIRED PAY PURPOSES AND THAT YOU ARE NOT ENTITLED TO THE CLAIMED INCREASE IN RETIRED PAY.