B-155940, FEB. 23, 1965, 44 COMP. GEN. 510

B-155940, FEB. 23, 1965, 44 COMP. GEN. 510

PAY - RETIRED - ADVANCEMENT ON RETIRED LIST - REDUCTION IN PAY EFFECT WHEN A MEMBER OF THE UNIFORMED SERVICES RECEIVES A LESSER RATE OF RETIRED PAY IN THE RECOMPUTATION OF HIS RETIRED PAY, IN ACCORDANCE WITH 10 U.S.C. 3992, UPON ADVANCEMENT TO WARRANT OFFICER, 2-1, ON THE RETIRED LIST AFTER COMPLETION OF 30 YEARS OF SERVICE, PURSUANT TO 10 U.S.C. 3964, THAN THAT ESTABLISHED UNDER 10 U.S.C. 3991 WHEN ORIGINALLY RETIRED UNDER THE AUTHORITY OF 10 U.S.C. 3914 AND 3961 IN THE GRADE OF SERGEANT E-9, A HIGHER ENLISTED PAY GRADE PRESCRIBED BY THE ACT OF MAY 20, 1958 THAN THAT OF WARRANT OFFICER, W-1, THE MEMBER SHOULD HAVE BEEN CONSULTED BEFORE ADVANCED ON THE RETIRED LIST, SECTION 3964 NOT IMPOSING AN ABSOLUTE REQUIREMENT FOR ADVANCEMENT, AND NEITHER THE MOST FAVORABLE PAYMENT FORMULA AUTHORIZED BY SECTION 3991, NOR ANY OTHER PROVISION OF LAW SAVING TO THE MEMBER THE RIGHT TO CONTINUE RECEIVING RETIRED PAY UNDER HIS ORIGINAL ENTITLEMENT; THEREFORE, THE ACTION OF ADVANCEMENT MAY BE RESCINDED ON THE BASIS OF A STATEMENT BY THE MEMBER THAT IT WAS CONTRARY TO HIS WISHES.

TO LIEUTENANT COLONEL P.M. CALLINAN, DEPARTMENT OF THE ARMY, FEBRUARY 23, 1965:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1964, WITH ENCLOSURES, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER DO-A-818, REQUESTING DECISION AS TO PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $79.75, IN FAVOR OF WARRANT OFFICER WILLIAM L. CURTIS, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A SERGEANT MAJOR, E-9, AND THAT OF A WARRANT OFFICER, W-1, FOR THE PERIOD NOVEMBER 1 TO 30, 1964.

YOU STATE THAT WARRANT OFFICER CURTIS WAS RETIRED JANUARY 1, 1964, IN THE GRADE OF SERGEANT MAJOR, E-9, UNDER AUTHORITY OF 10 U.S.C. 3914 AND 3961 WITH 29 YEARS, 3 MONTHS AND 18 DAYS OF SERVICE. HIS RETIRED PAY WAS ESTABLISHED AT $406 PER MONTH IN ACCORDANCE WITH 10 U.S.C. 3991, FORMULA C. EFFECTIVE SEPTEMBER 13, 1964, UPON COMPLETION OF 30 YEARS OF SERVICE INCLUDING TIME ON THE RETIRED LIST, HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF WARRANT OFFICER, W-1, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 3964. IF EFFECTIVE, THAT ADVANCEMENT IN GRADE ENTITLED HIM TO RECOMPUTATION OF HIS RETIRED PAY ON THE BASIS OF THE HIGHER GRADE UNDER 10 U.S.C. 3992, WHICH RECOMPUTATION RESULTS IN ENTITLEMENT TO $326.25 PER MONTH, OR $79.75 LESS THAN THE RATE TO WHICH HE WAS ENTITLED BEFORE THE ADVANCEMENT. HE WAS PAID AT THE HIGHER RATE THROUGH OCTOBER 31, 1964, AND YOU STATE THAT REFUND AT THE RATE OF $79.75 FOR THE PERIOD SEPTEMBER 13, 1964, THROUGH OCTOBER 31, 1964, HAS NOT BEEN REQUESTED PENDING CONCLUSION OF THIS DECISION.

SECTION 3964 PROVIDES:

EACH WARRANT OFFICER OF THE ARMY, AND EACH ENLISTED MEMBER OF THE REGULAR ARMY, WHO IS RETIRED BEFORE OR AFTER THIS TITLE IS ENACTED IS ENTITLED, WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY.

SECTION 3992 PROVIDES THAT A MEMBER OF THE ARMY WHO IS ADVANCED ON THE RETIRED LIST UNDER SECTION 3964 IS ENTITLED TO RECOMPUTE HIS RETIRED PAY BY MULTIPLYING THE MONTHLY BASIC PAY OF THE GRADE TO WHICH ADVANCED BY 2 1/2 PERCENT OF THE YEARS OF ACTIVE SERVICE, NOT TO EXCEED 75 PERCENT.

IN 29 COMP. GEN. 412, CITED BY YOU, WE HELD THAT A MEMBER WHOSE RETIRED PAY IS COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, 37 U.S.C. 311, MUST FOLLOW THE FORMULA THEREIN PRESCRIBED AS TO GRADE AS WELL AS PAY RATES. SIMILARLY IN RECOMPUTING RETIRED PAY UNDER 10 U.S.C. 311, MUST FOLLOW THE FORMULA THEREIN PRESCRIBED AS TO GRADE AS WELL AS PAY RATES. SIMILARLY IN RECOMPUTING RETIRED PAY UNDER 10 U.S.C. 3992, THERE IS NO AUTHORITY FOR USING THE RATE OF PAY APPLICABLE TO ANY GRADE OTHER THAN THE GRADE SPECIFIED THEREIN, THE "GRADE TO WHICH MEMBER IS ADVANCED ON RETIRED LIST.' UPON RETIREMENT, WARRANT OFFICER CURTIS WAS ENTITLED TO AND RECEIVED RETIRED PAY COMPUTED UNDER SECTION 3991, WHICH PROVIDES IN PART:

THE MONTHLY RETIRED PAY OF A PERSON ENTITLED THERETO UNDER THIS SUBTITLE IS COMPUTED ACCORDING TO THE FOLLOWING TABLE. * * * HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR THE TABLE IN SECTION 1401 OF THIS TITLE, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

AN ADVANCEMENT UNDER SECTION 3964 CREATES ENTITLEMENT TO THE RECOMPUTATION PROVIDED IN SECTION 3992. SINCE THE RECOMPUTATION IS NOT AUTHORIZED TO BE MADE UNDER ANY FORMULA CONTAINED IN SECTION 3991 OR IN SECTION 1401, THE PROVISION IN SECTION 3991, QUOTED ABOVE, AUTHORIZING PAYMENT UNDER THE MOST FAVORABLE FORMULA, DOES NOT SAVE TO THE MEMBER HERE INVOLVED THE RIGHT TO CONTINUE RECEIVING RETIRED PAY UNDER HIS ORIGINAL ENTITLEMENT.

PRIOR TO ENACTMENT OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 232, THE RATES OF PAY AUTHORIZED FOR WARRANT OFFICERS WERE INVARIABLY HIGHER THAN THE RATES OF PAY AUTHORIZED FOR ENLISTED MEMBERS. THAT ACT ADDED TWO NEW ENLISTED PAY GRADES, E-8 AND E-9, WITH HIGHER RATES OF PAY AND THE RATES THEREIN PROVIDED FOR A MEMBER IN GRADE E -9 EXCEED THE RATES PROVIDED FOR A WARRANT OFFICER IN A GRADE W-1. THESE GRADES, E-8 AND E-9, WERE ADDED TO PROVIDE BOTH AN INCENTIVE FOR ENLISTED MEMBERS TO MAKE A CAREER OF MILITARY SERVICE AND A REWARD FOR THOSE ENLISTED CAREER MEMBERS WHO WERE PERFORMING OUTSTANDING SERVICE IN THEIR FIELDS. SEE EXCERPTS FROM THE REPORTS OF CONGRESSIONAL COMMITTEES ON THE BILL WHICH WAS ENACTED AS PUBLIC LAW 85-422, QUOTED IN 38 COMP. GEN. 598. HOWEVER, WE HAVE FOUND NO PROVISION OF LAW WHICH WOULD SAVE TO ENLISTED MEMBERS PROMOTED TO THOSE GRADES THE BENEFITS THEREOF IN THE EVENT OF ADVANCEMENT ON THE RETIRED LIST TO A WARRANT OFFICER GRADE WITH LOWER RATES OF BASIC PAY.

IN B-154898, SEPTEMBER 11, 1964, ALSO CITED BY YOU, WE HELD THAT AN ENLISTED MEMBER OF THE MARINE CORPS WHO, UNDER CIRCUMSTANCES SIMILAR TO THOSE OF WARRANT OFFICER CURTIS, WAS TRANSFERRED FROM THE FLEET MARINE CORPS RESERVE TO THE RETIRED LIST UNDER 10 U.S.C. 6331 AND SIMULTANEOUSLY ADVANCED TO THE GRADE OF WARRANT OFFICER (W-2) UNDER 10 U.S.C. 6151, WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ONLY ON THE WARRANT OFFICER GRADE TO WHICH HE WAS ADVANCED. THAT DECISION WAS BASED LARGELY ON THE USE OF THE WORD "SHALL" APPEARING IN SUBSECTIONS 6151 (A) AND (C). THOSE SUBSECTIONS PROVIDE THAT A MEMBER "SHALL, WHEN RETIRED, BE ADVANCED" TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY, THAT A MEMBER WHEN SO ADVANCED "IS ENTITLED TO RETIRED PAY BASED UPON THE GRADE TO WHICH ADVANCED" AND THAT COMPUTATION OF RETIRED PAY UNDER THE NEW ENTITLEMENT THUS ESTABLISHED "SHALL BE" BASED ON THE GRADE TO WHICH ADVANCED. SINCE SECTION 6151 SPECIFIES THE RETIRED PAY ENTITLEMENT OF A MEMBER WHO COMES WITHIN THE PURVIEW OF THAT SECTION AND SUCH ENTITLEMENT DOES NOT INCLUDE ANY PROVISION SAVING TO THE MEMBER THE BENEFITS OF A PREVIOUS ENTITLEMENT, HIS RETIRED PAY MUST BE COMPUTED AS PROVIDED THEREIN.

THE SAME REASONING AS THAT USED IN B-154898 APPLIES WITH RESPECT TO COMPUTATION UNDER 10 U.S.C. 3992 OF RETIRED PAY IN THE CASE OF AN ARMY MEMBER ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964. ALTHOUGH SECTION 3964 PROVIDES THAT THE MEMBER "IS ENTITLED" TO BE ADVANCED ON THE RETIRED LIST WHEREAS SECTION 6151 PROVIDES THAT THE MEMBER "SHALL, WHEN RETIRED, BE ADVANCED," ONCE THE MEMBER IS ADVANCED HIS RETIRED PAY RIGHTS ARE FOR DETERMINATION UNDER THE SECTION GOVERNING SUCH ADVANCEMENT.

REVERSION TO THE FORMER WARRANT OFFICER OR ENLISTED GRADE IS AUTHORIZED UNDER CERTAIN CONDITIONS IN 10 U.S.C. 3965 FOR SUCH MEMBERS WHO WERE ADVANCED UNDER SECTION 3964 "TO A HIGHER COMMISSIONED GRADE.' SINCE A WARRANT OFFICER, W-1, IS NOT A COMMISSIONED OFFICER (SEE THE DEFINITIONS IN 10 U.S.C. 101 (14), (15) AND (16), THAT PROVISION COULD HAVE NO APPLICATION IN A SITUATION SUCH AS IS HERE INVOLVED.

AS WAS RECOGNIZED IN 29 COMP. GEN. 412, THE CONCLUSION THAT A PARTICULAR RETIRED MEMBER MUST ACCEPT A REDUCTION IN RETIRED PAY AS A RESULT OF BEING ADVANCED ON THE RETIRED LIST TO A HIGHER GRADE IS A HARSH ONE AND SUCH RESULT SHOULD FOLLOW ONLY WHERE THE CLEAR LANGUAGE OF A STATUTE SUCH AS 10 U.S.C. 6151 ADMITS OF NO OTHER INTERPRETATION. SECTION 3964 DOES NOT IMPOSE AN ABSOLUTE REQUIREMENT FOR ADVANCEMENT BUT MERELY PROVIDES THAT THE MEMBER CONCERNED "IS ENTITLED" TO BE ADVANCED UNDER THE CIRCUMSTANCES THERE PRESCRIBED. IT IS OUR VIEW THAT IN THE COMPARATIVELY FEW INSTANCES WHERE ADVANCEMENT UNDER THAT SECTION WILL RESULT IN AN UNAVOIDABLE REDUCTION IN RETIRED PAY, THE MEMBER INVOLVED SHOULD BE CONSULTED BEFORE HE IS SO ADVANCED. YOUR LETTER DOES NOT SHOW WHETHER WILLIAM L. CURTIS WAS GIVEN ANY OPPORTUNITY TO EXPRESS HIS WISHES CONCERNING HIS ENTITLEMENT TO ADVANCEMENT UNDER SECTION 3964. IN THIS CONNECTION SEE THE DISCUSSION OF THE WORD "ENTITLED" IN THE CASE OF MERRILL V. UNITED STATES, CT.CL. NO. 95-63, DECIDED NOVEMBER 13, 1964. IN THAT DECISION THE COURT POINTED OUT THE IMPORTANCE OF THE "CONTEXT, STRUCTURE AND PURPOSE" OF THE STATUTORY PROVISION USING THE WORK "ENTITLED," AS A GUIDE IN INTERPRETING ITS MEANING AND RECOGNIZED AS WITHIN THE CONNOTATION OF THAT WORD WHEN USED WITH RESPECT TO THE MILITARY RETIREMENT AND RETIRED PAY THERE INVOLVED, THE MEANINGS "QUALIFIED" AND "ELIGIBLE" AS WELL AS A MATTER OF RIGHT. CURTIS' ADVANCEMENT WAS EFFECTED SOLELY ON THE BASIS OF ADMINISTRATIVE DETERMINATION WITHOUT REGARD TO HIS WISHES AND HE SHOULD NOW STATE THAT SUCH ADVANCEMENT WAS CONTRARY TO HIS WISHES, WE SEE NO REASON WHY THE ACTION ADVANCING HIM ON THE RETIRED LIST UNDER SECTION 3964 COULD NOT NOW BE RESCINDED.

THE VOUCHER WITH RELATED PAPERS, FORWARDED WITH YOUR LETTER, IS RETURNED. PAYMENT THEREOF IS APPROVED ONLY UPON CONDITION THAT THE ADVANCEMENT IS RESCINDED IN ACCORDANCE WITH THE ABOVE STATEMENT.