B-154421, AUGUST 11, 1964, 44 COMP. GEN. 74

B-154421: Aug 11, 1964

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WHO SERVED 6 MONTHS ON ACTIVE DUTY AFTER RETIREMENT MAY NOT HAVE HIS RETIRED PAY RECOMPUTED UNDER 10 U.S.C. 1402 (A). IS CORRECT. 1964: REFERENCE IS MADE TO YOUR LETTER OF MAY 5. IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER 10 U.S.C. 1402 (A). YOU STATE THAT COMMANDER SLYE WAS RETIRED EFFECTIVE JULY 1. WITH 20 YEARS AND 20 DAYS OF SERVICE FOR BASIC PAY AND PERCENTAGE MULTIPLE PURPOSES AND THAT HE WAS RETAINED ON ACTIVE DUTY THROUGH DECEMBER 31. WHICH IS THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THAT SECTION IF HE HAD NOT BEEN SERVING ON ACTIVE DUTY WHEN THE NEW PAY ACT WAS ENACTED. WHICH WAS ADDED BY AMENDMENT CONTAINED IN SECTION 5 (1) OF PUBLIC LAW 88/132. IS AS FOLLOWS: 1.

B-154421, AUGUST 11, 1964, 44 COMP. GEN. 74

PAY - RETIRED - INCREASES - UNDER ACT OF MAY 20, 1958 - ACTIVE DUTY AFTER RETIREMENT A NAVAL OFFICER RETIRED EFFECTIVE JULY 1, 1963, PURSUANT TO 10 U.S.C. 6323, WITH 20 YEARS OF SERVICE, WHO SERVED 6 MONTHS ON ACTIVE DUTY AFTER RETIREMENT MAY NOT HAVE HIS RETIRED PAY RECOMPUTED UNDER 10 U.S.C. 1402 (A), AS AMENDED, ON THE BASIS OF 21 YEARS OF SERVICE, USING THE RATES AS BASIC PAY PRESCRIBED IN SECTION 2 OF THE ACT OF OCTOBER 2, 1963 (37 U.S.C. 203), THE OFFICER NOT HAVING MET THE REQUIREMENT OF AT LEAST 2 YEARS' CONTINUOUS SERVICE PRESCRIBED BY SECTION 5 (1) OF THE 1963 ACT FOR ENTITLEMENT TO THE RECOMPUTATION OF RETIRED PAY ON THE BASIS OF CREDIT FOR THE ACTIVE DUTY AFTER RETIREMENT; THEREFORE, THE OFFICER NOT ENTITLED TO A RECOMPUTATION OF HIS RETIRED PAY AT THE ACTIVE DUTY PAY RATE CURRENT AT THE TIME OF HIS RELEASE, THE COMPUTATION OF HIS RETIRED PAY UNDER THE 1963 ACT BASED ON 20 YEARS' SERVICE FOR PERCENTAGE MULTIPLE PURPOSES, IN ACCORDANCE WITH SECTION 5 (A) (1), IS CORRECT.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, AUGUST 11, 1964:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1964, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-777, REQUESTING DECISION AS TO WHETHER OR NOT COMMANDER WALTER C. SLYE, USNR, RETIRED, IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER 10 U.S.C. 1402 (A), AS AMENDED, ON THE BASIS OF 21 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES AND USING THE RATES OF BASIC PAY PRESCRIBED IN SECTION 2 OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210, 37 U.S.C. 203.

YOU STATE THAT COMMANDER SLYE WAS RETIRED EFFECTIVE JULY 1, 1963, PURSUANT TO 10 U.S.C. 6323, WITH 20 YEARS AND 20 DAYS OF SERVICE FOR BASIC PAY AND PERCENTAGE MULTIPLE PURPOSES AND THAT HE WAS RETAINED ON ACTIVE DUTY THROUGH DECEMBER 31, 1963, AT WHICH TIME HE HAD COMPLETED 20 YEARS, 6 MONTHS AND 20 DAYS OF SERVICE. YOU STATE THAT HIS RETIRED PAY HAS BEEN ESTABLISHED AT THE MONTHLY RATE OF $427.50 COMPUTED ON THE 1963 PAY RATE USING 20 YEARS FOR PERCENTAGE MULTIPLE PURPOSES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5 (A) (1) OF PUBLIC LAW 88 132, 10 U.S.C. 1402 NOTE (SUPP. I), WHICH IS THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THAT SECTION IF HE HAD NOT BEEN SERVING ON ACTIVE DUTY WHEN THE NEW PAY ACT WAS ENACTED. ENTITLEMENT AT THE MONTHLY RATE OF $448.88, WHICH REPRESENTS COMPUTATION BASED ON THE 1963 PAY RATES USING 21 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE, ALLOWING CREDIT FOR THE ACTIVE SERVICE AFTER RETIREMENT, HAS BEEN QUESTIONED IN VIEW OF THE LIMITATION IN FOOTNOTE (1) TO 10 U.S.C. 1402 (A).

THE FOOTNOTE IN QUESTION, WHICH WAS ADDED BY AMENDMENT CONTAINED IN SECTION 5 (1) OF PUBLIC LAW 88/132, IS AS FOLLOWS:

1. FOR A MEMBER WHO HAS BEEN ENTITLED, FOR A CONTINUOUS PERIOD OF AT LEAST 2 YEARS, TO BASIC PAY UNDER THE RATES OF BASIC PAY IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY, COMPUTE UNDER THOSE RATES. FOR A MEMBER WHO HAS BEEN ENTITLED TO BASIC PAY FOR A CONTINUOUS PERIOD OF AT LEAST 2 YEARS UPON THAT RELEASE FROM ACTIVE DUTY, BUT WHO IS NOT COVERED BY THE PRECEDING SENTENCE, COMPUTE UNDER THE RATES OF BASIC PAY REPLACED BY THOSE IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY. FOR ANY OTHER MEMBER, COMPUTE UNDER THE RATES OF BASIC PAY UNDER WHICH THE MEMBER'S RETIRED PAY OR RETAINER PAY WAS COMPUTED WHEN HE ENTERED ON THAT ACTIVE DUTY.

PRIOR TO PASSAGE OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 232, RETIRED MEMBERS GENERALLY WERE ENTITLED TO HAVE THEIR RETIRED PAY RECOMPUTED ON THE BASIS OF THE NEW PAY RATES WHENEVER THE ACTIVE DUTY PAY RATES FOR MILITARY PERSONNEL WERE INCREASED. SECTION 3 OF THE 1958 ACT, 37 U.S.C. 232 NOTE, TERMINATED SUCH AUTOMATIC RECOMPUTATION AND THE 1963 ACT CONTINUED THE PRINCIPLE THUS ESTABLISHED IN THE 1958 ACT. ACTIVE DUTY PERFORMED AFTER RETIREMENT IS AUTHORIZED TO BE INCLUDED IN THE COMPUTATION OF RETIRED PAY THEREAFTER AS PROVIDED IN 10 U.S.C. 1402. RECOMPUTATION OF RETIRED PAY IN THE CASE OF A MEMBER WHO SERVES ON ACTIVE DUTY AFTER RETIREMENT WAS CONSIDERED AT LENGTH BY THE CONGRESS BEFORE ENACTMENT OF PUBLIC LAW 88-132. ON PAGE 36 OF S.REPT. NO. 387 ON H.R. 5555, WHICH BECAME PUBLIC LAW 88-132, THERE APPEARS THE FOLLOWING EXPLANATION OF CHANGES IN THE BILL CONCERNING RECOMPUTATION UNDER NEW PAY RATES:

UNDER EXISTING LAW SECTION 1402 (A), TITLE 10, U.S.C. A MEMBER WHO HAS BEEN RETIRED AND LATER RECALLED TO ACTIVE SERVICE MAY RECOMPUTE HIS RETIRED PAY WHEN HE LEAVES ACTIVE SERVICE UNDER WHATEVER RATES OF PAY WERE IN EFFECT UPON HIS RE-RETIREMENT. THERE IS NO PRESCRIBED PERIOD OF TIME WHICH HE MUST SERVE IN A RECALLED STATUS.

THE BILL AS PASSED BY THE HOUSE CONTAINED A PROVISION REQUIRING 1 YEAR OF CONTINUOUS ACTIVE DUTY FOLLOWING RECALL IN ORDER TO RECOMPUTE UNDER ANY HIGHER RATES WHICH MIGHT BE IN EFFECT AT THE TIME OF HIS RE RETIREMENT. THE HOUSE PROVISION WOULD NOT REQUIRE ANY PRESCRIBED LENGTH OF SERVICE UNDER THE HIGHER RATES WHICH MIGHT BE IN EFFECT AT THE TIME THE OFFICER RE -RETIRED.

THE SENATE COMMITTEE ADOPTED A PROVISION REQUIRING THAT IN ORDER TO RECOMPUTE AT THE TIME AN OFFICER RETIRES FOR THE SECOND OR LATER TIME HE MUST HAVE SERVED AT LEAST 2 YEARS CONTINUOUSLY UNDER THE HIGHER RATES FOLLOWING RECALL IN ORDER TO RECOMPUTE UNDER ANY HIGHER RATES WHICH MAY BE IN EFFECT. IN THE CASE OF A NAVY OR MARINE CORPS OFFICER WHO HAS RECEIVED AN ADVANCEMENT ON THE RETIRED LIST BECAUSE OF A COMBAT CITATION AND WHO IS RECALLED IN A HIGHER RANK, LANGUAGE WAS INSERTED REQUIRING 3 YEARS UNDER THE NEW RATES IN ORDER TO RECEIVE THE BENEFIT OF THESE RATES UPON RE- RETIREMENT.

IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF THE 1963 ACT THAT IT WAS INTENDED THAT A MEMBER WHO SERVES ON ACTIVE DUTY AFTER RETIREMENT MAY RECOMPUTE HIS RETIRED PAY USING THE ACTIVE DUTY PAY RATE CURRENT AT TIME OF RELEASE ONLY IF HE MEETS THE REQUIREMENTS SPECIFIED IN SECTION 1402, AS AMENDED BY THAT ACT. SINCE COMMANDER SLYE SERVED ON ACTIVE DUTY AFTER RETIREMENT FOR A TOTAL OF 6 MONTHS, HE DOES NOT MEET THOSE REQUIREMENTS AND PAYMENT TO HIM OF RETIRED PAY AT THE MONTHLY RATE OF $448.88 IS NOT AUTHORIZED.