B-155003, DEC. 14, 1964, 44 COMP. GEN. 336

B-155003, DEC. 14, 1964, 44 COMP. GEN. 336

PAY - RETIRED - INCREASES - UNDER ACT OF MAY 20, 1958 - ENLISTED SERVICE CREDIT AN ARMY CAPTAIN CREDITED WITH OVER 14 YEARS' SERVICE AS A COMMISSIONED OFFICER AND OVER 4 YEARS' ACTIVE SERVICE AS AN ENLISTED MEMBER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JANUARY 31, 1955 AND EFFECTIVE NOVEMBER 1, 1959, ON THE ARMY OF THE UNITED STATES RETIRED LIST IS ENTITLED AS OF OCTOBER 1, 1963, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES PAY ACT OF 1963 (10 U.S.C. 1402 NOTE), TO RECEIVE RETIRED PAY BASED ON THE SPECIAL RATES OF BASIC PAY ESTABLISHED BY THE ACT OF MAY 20, 1958, AMENDING SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 (37 U.S.C. 232 (A) ( FOR OFFICERS IN GRADES 0-1, 0-2, AND 0-3 CREDITED WITH OVER 4 YEARS' ACTIVE ENLISTED SERVICE, SECTION 5 (C) (1) OF THE 1963 ACT AUTHORIZING THE RECOMPUTATION OF RETIRED OR RETAINER PAY IN EFFECT UNDER 37 U.S.C. 232 (A) BEFORE OCTOBER 1, 1963 OPERATING IN A MANNER TO PROVIDE THAT A MEMBER LIKE THE CAPTAIN WOULD RECEIVE THE SAME RETIRED PAY TO WHICH A FELLOW OFFICER WITH THE SAME GRADE AND LENGTH OF SERVICE BECAME ENTITLED UPON TRANSFER TO THE RETIRED LIST IN IDENTICAL CIRCUMSTANCES AFTER JUNE 1, 1958, THE EFFECTIVE DATE OF THE MAY 20, 1958 ACT.

TO COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, DECEMBER 14, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1964, WITH ENCLOSURES, PRESENTING FOR DECISION AS TO THE PROPRIETY OF PAYMENT THEREON A VOUCHER IN THE AMOUNT OF $49 IN FAVOR OF CAPTAIN CONWAY G. NOLAN, 0 1 015 766, AUS, RETIRED. THE SUBMISSION WAS ASSIGNED NO. DO-A 794 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE VOUCHER COVERS THE DIFFERENCE BETWEEN RETIRED PAY RECOMPUTED UNDER THE RATE OF BASIC PAY OF A CAPTAIN CREDITED WITH OVER 14 YEARS' SERVICE FOR BASIC PAY PURPOSES AND OVER 4 YEARS' ACTIVE SERVICE AS AN ENLISTED MEMBER AS PRESCRIBED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 805, 37 U.S.C. 232 (A), AS AMENDED BY THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 123, EFFECTIVE JUNE 1, 1958 ($374.50 PER MONTH) AND RETIRED PAY RECOMPUTED UNDER THE RATE OF BASIC PAY OF A CAPTAIN WITH OVER 14 YEARS' SERVICE FOR BASIC PAY PURPOSES--- WITH NO CREDIT FOR ACTIVE SERVICE AS AN ENLISTED MEMBER--- ($367.50 PER MONTH) FOR THE PERIOD FROM OCTOBER 1, 1963, THROUGH APRIL 30, 1964.

THE INFORMATION FURNISHED SHOWS THAT CAPTAIN NOLAN WAS PLACED ON THE E TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JANUARY 31, 1955, BY REASON OF 40 PERCENT DISABILITY. HE WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST EFFECTIVE NOVEMBER 1, 1959, BY REASON OF 70 PERCENT PERMANENT DISABILITY, WITH THE GRADE AND RETIRED PAY OF A CAPTAIN, UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1372.

SECTION 5 (C) OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88- 132, 77 STAT. 213, 10 U.S.C. 1402 NOTE, PROVIDES THAT:

(C) A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO RETIRED PAY OR RETAINER PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THE CAREER COMPENSATION ACT OF 1949 BEFORE JUNE 1, 1958, * * * IS ENTITLED---

(1) TO HAVE THAT PAY RECOMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THAT ACT ON THE DAY BEFORE THE EFFECTIVE DAY OF THIS ACT; OR

(2) TO AN INCREASE OF 5 PERCENT IN THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT; WHICHEVER PAY IS THE GREATER.

BY SECTION 14 THE 1963 ACT, 37 U.S.C. 201 NOTE, WAS MADE EFFECTIVE AS OF OCTOBER 1, 1963.

IT IS OUR VIEW THAT THE PROVISIONS OF SUBSECTION 5 (C) (1) OF THE 1963 LAW WERE INTENDED TO OPERATE IN SUCH A MANNER THAT A MEMBER LIKE CAPTAIN NOLAN WOULD RECEIVE THE SAME RETIRED PAY TO WHICH A FELLOW OFFICER WITH THE SAME GRADE AND LENGTH OF SERVICE BECAME ENTITLED UPON TRANSFER TO THE RETIRED LIST IN IDENTICAL CIRCUMSTANCES AFTER THE EFFECTIVE DATE OF PUBLIC LAW 85-422. THEREFORE, CAPTAIN NOLAN IS ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF $374.50 PER MONTH, EFFECTIVE OCTOBER 1, 1963, THAT IS, TO RETIRED PAY BASED ON THE SPECIAL RATES OF BASIC PAY ESTABLISHED BY PUBLIC LAW 85-422 FOR OFFICERS IN GRADES 0-1, 0-2 AND 0-3 CREDITED WITH OVER 4 YEARS' ACTIVE ENLISTED SERVICE. SEE IN THIS CONNECTION 43 COMP. GEN. 533, HOLDING THAT RETIRED PAY MAY BE RECOMPUTED UNDER SUBSECTION 5 (C) (1) OF PUBLIC LAW 88-132, AT THE RATES PRESCRIBED IN PUBLIC LAW 85-422 FOR THE NEW PAY GRADES 0-9 AND 0-10 CREATED BY THE LATTER LAW. CF. 43 COMP. GEN. 491.

ACCORDINGLY THE VOUCHER IS RETURNED HEREWITH AND MAY BE PAID IF OTHERWISE CORRECT.