B-156191, MAR. 16, 1965

B-156191: Mar 16, 1965

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TO COMMANDER KENNETH RICHARDSON: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22. WHICH WAS DISALLOWED BY SETTLEMENT DATED JULY 13. THE CHIEF OF NAVAL PERSONNEL ADVISED YOU THAT THE SECRETARY OF THE NAVY HAD DETERMINED THAT YOU WERE INCAPACITATED TO PERFORM THE DUTIES OF YOUR GRADE BY REASON OF PHYSICAL DISABILITY AND THAT YOU WOULD BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1202 EFFECTIVE APRIL 1. PERMANENT CHANGES IN THE RATES OF ACTIVE DUTY PAY GENERALLY WERE REFLECTED IN THE COMPUTATION OF RETIRED PAY IN THE ABSENCE OF LEGISLATIVE INTENT OR STATUTORY PROVISION TO THE CONTRARY. " ADMINISTRATIVE ADJUSTMENTS IN RETIRED PAY WERE AUTHORIZED ON THE BASIS OF INCREASES IN THE COST OF LIVING AS REFLECTED IN CHANGES IN THE CONSUMER PRICE INDEX.

B-156191, MAR. 16, 1965

TO COMMANDER KENNETH RICHARDSON:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR RETIRED PAY BASED UPON THE RATES OF PAY PRESCRIBED IN THE UNIFORMED SERVICES PAY ACT OF 1963 RATHER THAN THE RATES PRESCRIBED IN THE 1958 MILITARY PAY ACT, WHICH WAS DISALLOWED BY SETTLEMENT DATED JULY 13, 1964, OF THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE.

BY LETTER DATED MARCH 20, 1963, THE CHIEF OF NAVAL PERSONNEL ADVISED YOU THAT THE SECRETARY OF THE NAVY HAD DETERMINED THAT YOU WERE INCAPACITATED TO PERFORM THE DUTIES OF YOUR GRADE BY REASON OF PHYSICAL DISABILITY AND THAT YOU WOULD BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1202 EFFECTIVE APRIL 1, 1963.

PRIOR TO JUNE 1, 1958, PERMANENT CHANGES IN THE RATES OF ACTIVE DUTY PAY GENERALLY WERE REFLECTED IN THE COMPUTATION OF RETIRED PAY IN THE ABSENCE OF LEGISLATIVE INTENT OR STATUTORY PROVISION TO THE CONTRARY. SECTION 3 OF THE MILITARY PAY ACT OF MAY 20, 1958, 72 STAT. 128, PUB.L. 85-422, EFFECTIVE JUNE 1, 1958, HOWEVER, EXPRESSLY PROVIDED, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT PERSONS RETIRED PRIOR TO THE EFFECTIVE DATE OF THAT ACT COULD NOT COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE 1958 ACT, BUT SHOULD RECEIVE A 6 PERCENT INCREASE IN RETIRED PAY.

SECTION 5 OF THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 212 215, PUB.L. 88-132, AUTHORIZED, AMONG OTHER THINGS, (1) RECOMPUTATION OF RETIRED PAY UNDER THE 1958 MILITARY PAY ACT RATES OR (2) AN INCREASE OF 5 PERCENT IN THE RETIRED PAY OF PERSONS RETIRED PRIOR TO JUNE 1958 AND (3) A 5 PERCENT INCREASE IN THE RETIRED PAY OF PERSONS RETIRED AFTER MAY 1958 AND PRIOR TO THE EFFECTIVE DATE OF THE 1963 ACT. THAT SECTION ALSO DELETED FROM TITLE 10, U.S. CODE, THE PROVISIONS OF LAW AUTHORIZING AUTOMATIC RECOMPUTATION OF RETIRED PAY BASED UPON CHANGES IN RATE OF ACTIVE DUTY PAY AND PROHIBITED THE RECOMPUTATION OF RETIRED PAY TO REFLECT ANY INCREASE IN THE RATES OF BASIC (ACTIVE DUTY) PAY "IF THAT INCREASE BECOMES EFFECTIVE AFTER THE EFFECTIVE DATE OF THIS SECTION" UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW. IN LIEU OF "RECOMPUTATION," ADMINISTRATIVE ADJUSTMENTS IN RETIRED PAY WERE AUTHORIZED ON THE BASIS OF INCREASES IN THE COST OF LIVING AS REFLECTED IN CHANGES IN THE CONSUMER PRICE INDEX. HOWEVER, IT AUTHORIZED PERSONS RETIRED ON OR AFTER APRIL 1, 1963, TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY PRESCRIBED IN THAT ACT EXCEPT A PERSON "WHO BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF SECTION 1 OF THE ACT OF APRIL 23, 1930, CH. 209, AS AMENDED (5 U.S.C. 47A)," GENERALLY REFERRED TO AS THE UNIFORM RETIREMENT DATE ACT, WHICH READS IN PERTINENT PART AS FOLLOWS:

"RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.'

THE RECORD INDICATES THAT A REPORT OF MEDICAL BOARD, U.S. NAVAL HOSPITAL, NNMC, BETHESDA, MARYLAND, DATED JANUARY 2, 1963, RECOMMENDED THAT YOU APPEAR BEFORE A PHYSICAL EVALUATION BOARD, WHICH ON JANUARY 8, 1963, FOUND YOU UNFIT TO PERFORM THE DUTIES OF YOUR RANK BECAUSE OF PHYSICAL DISABILITY. ON FEBRUARY 11, 1963, THE PHYSICAL REVIEW COUNCIL CONCURRED IN THAT FINDING AND APPROVED YOUR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST. UNDER DATE OF FEBRUARY 12, 1963, THE JUDGE ADVOCATE GENERAL APPROVED THAT ACTION AND DIRECTED THAT YOU BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH 100 PERCENT DISABILITY.

BY COMMUNICATION DATED FEBRUARY 18, 1963, ADDRESSED TO THE JUDGE ADVOCATE GENERAL VIA THE CHIEF OF NAVAL PERSONNEL, YOU REQUESTED THAT THE EFFECTIVE DATE OF YOUR RETIREMENT BE EXTENDED TO APRIL 1, 1963; BY SECOND ENDORSEMENT DATED FEBRUARY 19, 1963, THE CHIEF OF NAVAL PERSONNEL FORWARDED YOUR REQUEST FOR DELAY IN RETIREMENT TO THE JUDGE ADVOCATE GENERAL, WHO ON FEBRUARY 20, 1963, CANCELED THE ACTION OF FEBRUARY 12, 1963, DIRECTING YOUR RETIREMENT FOR DISABILITY. UNDERDATE OF MARCH 14, 1963, THE JUDGE ADVOCATE GENERAL AGAIN APPROVED YOUR RETIREMENT FOR DISABILITY. ORDERS DATED MARCH 20, 1963, DIRECTED THAT YOU BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1202 EFFECTIVE APRIL 1, 1963, IN THE GRADE OF COMMANDER. IT IS NOTED THAT ANOTHER OFFICER WHOSE NAME APPEARED ON THE FEBRUARY 12, 1963, LIST FOR DISABILITY RETIREMENT WAS RETIRED EFFECTIVE MARCH 1, 1963, AS WERE TWO OFFICERS ON THE LIST OF DISABILITY RETIREMENT APPROVED BY THE JUDGE ADVOCATE GENERAL ON FEBRUARY 20, 1963. IT THUS IS REASONABLE TO CONCLUDE THAT THE SECRETARY OF THE NAVY DELAYED YOUR RETIREMENT FROM MARCH 1 TO APRIL 1, 1963, BECAUSE OF YOUR REQUEST. IT DOES NOT NECESSARILY FOLLOW, HOWEVER, THAT YOU DID NOT BECOME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT SO AS TO BE ENTITLED TO COMPUTE YOUR RETIRED PAY ON THE BASIS OF THE 1963 PAY ACT RATES.

SECTION 1404 OF TITLE 10, U.S. CODE, PROVIDES THAT THE RETIREMENT PROVISIONS OF THAT TITLE ARE SUBJECT TO THE PROVISIONS OF 5 U.S.C. 47A. SECTION 1221 OF TITLE 10, U.S. CODE, PROVIDES THAT, NOTWITHSTANDING THE PROVISIONS OF 5 U.S.C. 47A, THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR THE RETIREMENT OF ANY MEMBER OF THE ARMED FORCES UNDER CHAPTER 61, TITLE 10 (WHICH GOVERNS RETIREMENT FOR PHYSICAL DISABILITY AND INCLUDES SECTION 1202, UNDER WHICH YOU WERE RETIRED), OR FOR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, THAT IS EARLIER THAN THE DATE PROVIDED FOR IN THAT SECTION (5 U.S.C. 47A).

IT THUS APPEARS THAT THE UNIFORM RETIREMENT DATE ACT GOVERNS THE RETIREMENT DATE OF MEMBERS OF THE ARMED SERVICES RETIRED FOR PHYSICAL DISABILITY UNLESS THE SECRETARY CONCERNED EXERCISES THE DISCRETION VESTED IN HIM BY THE PROVISIONS OF 10 U.S.C. 1221 TO PLACE A MEMBER ON THE DISABILITY RETIRED LIST ON A DATE THAT IS EARLIER THAN THE DATE PROVIDED FOR IN THAT ACT.

IN DECISION OF JANUARY 5, 1965, B-155458, 44 COMP. GEN. - , WE SAID:

"THE UNIFORM RETIREMENT DATE ACT OF 1930 REQUIRES THAT EVERY RETIREMENT (UNLESS SPECIFICALLY OR BY IMPLICATION EXEMPTED BY STATUTE) TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, BUT THAT THE RATE OF RETIRED PAY MUST BE COMPUTED AS OF THE DATE THE RETIREMENT WOULD HAVE OCCURRED IF THE UNIFORM RETIREMENT DATE ACT HAD NOT BEEN ENACTED. IN CONSTRUING THAT ACT IN DECISION OF OCTOBER 29, 1963, 43 COMP. GEN. 425, IN RELATION TO THE PROVISIONS OF THE 1963 PAY ACT, WE HELD THAT PERSONS VOLUNTARILY RETIRED EFFECTIVE APRIL 1, 1963, AFTER HAVING BECOME ELIGIBLE THEREFOR PRIOR TO MARCH 1, 1963, DID NOT BECOME ENTITLED TO RETIRED PAY EFFECTIVE APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT FOR THE REASON THAT THE RETIREMENT DATE WAS BASED ON ADMINISTRATIVE DISCRETION OR ELECTION OF THE PERSON RETIRED, AND THAT THEY THEREFORE ARE ENTITLED UNDER THE EXPRESS TERMS OF THE 1963 ACT TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF ACTIVE-DUTY PAY PRESCRIBED IN THAT ACT. WHERE A PERSON FIRST QUALIFIED FOR RETIREMENT FOR AGE AND SERVICE AFTER FEBRUARY 1963 AND WAS RETIRED EFFECTIVE APRIL 1, 1963, BECAUSE HE FAILED TO SPECIFY A DATE OF RETIREMENT LATER THAN THE DATE HE FIRST BECOME ELIGIBLE TO RECEIVE RETIRED PAY, AND WHERE A PERSON WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE APRIL 1, 1963, ON THE BASIS OF RETIREMENT ACTION OF THE SECRETARY CONCERNED AFTER FEBRUARY 1963 WITHOUT HIS HAVING SPECIFIED AN EARLIER RETIREMENT DATE UNDER THE PROVISIONS OF 10 U.S.C. 1221, WE HELD THAT THE MEMBERS CONCERNED BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT OF 1930, BECAUSE THERE WAS NO EXERCISE OF ADMINISTRATIVE DISCRETION IN FIXING THE DATE OF DISABILITY RETIREMENT OR ELECTION OF A DIFFERENT DATE BY THE PERSON RETIRED UNDER THE PROVISIONS OF A VOLUNTARY RETIREMENT ACT FOR AGE AND SERVICE. THEY ACCORDINGLY WERE HELD TO BE INELIGIBLE TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE PAY RATES PRESCRIBED IN THE 1963 PAY ACT.

"THE ABOVE CONCLUSIONS ARE CONSISTENT WITH OUR PRIOR DECISIONS RELATING TO THE EFFECTIVE DATE OF RETIREMENT UNDER THE UNIFORM RETIREMENT DATE ACT. IN SUMMARY, WHERE A MEMBER IS RETIRED FOR DISABILITY WITHOUT THE SECRETARY CONCERNED HAVING DESIGNATED AN EARLIER DATE OF RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1221, THE EFFECTIVE DATE OF RETIREMENT IS GOVERNED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. 43 COMP. GEN. 425. WHERE A MEMBER IS RETIRED FOR REASONS OTHER THAN DISABILITY IMMEDIATELY UPON BECOMING ELIGIBLE THEREFOR, THE RETIREMENT IS GOVERNED BY THE PROVISIONS OF, AND SUBJECT TO THE RESTRICTIVE PROVISIONS OF, THE UNIFORM RETIREMENT DATE ACT. 43 COMP. GEN. 425; 9 COMP. GEN. 512; 10 COMP. GEN. 28; 35 COMP. GEN. 633. WHERE A MEMBER IS RETIRED AT A TIME OTHER THAN THE DATE WHEN ELIGIBILITY FOR RETIREMENT FIRST EXISTS, AND THE DATE OF RETIREMENT IS FIXED ON THE BASIS OF ADMINISTRATIVE DISCRETION OR ELECTION OF THE MEMBER ON THE FIRST DAY OF A MONTH LATER THAN THAT REQUIRED BY THE UNIFORM RETIREMENT DATE ACT, THE RESTRICTIONS CONTAINED IN THAT ACT LIMITING RETIRED PAY TO THE AMOUNT THAT WOULD HAVE BEEN PAYABLE IF THAT LAW HAD NOT BEEN ENACTED ARE NOT FOR APPLICATION. SEE 10 COMP. GEN. 36.'

WHILE THE DEPARTMENT OF THE NAVY INITIATED ACTION IN FEBRUARY 1963 TO EFFECT YOUR RETIREMENT, SUCH ACTION WAS CANCELED AND RETIREMENT ORDERS WERE WITHHELD, AS A RESULT OF YOUR REQUEST THAT YOUR RETIREMENT BE DELAYED UNTIL APRIL 1, 1963. WHEN YOUR RETIREMENT WAS AGAIN APPROVED IN MARCH 1963 THE PROVISIONS OF 5 U.S.C. 47A REQUIRED THAT YOUR RETIREMENT BE EFFECTIVE APRIL 1, 1963, UNLESS THE SECRETARY OF THE NAVY DIRECTED AN EARLIER DATE. SINCE THE RETIREMENT ORDERS OF MARCH 20, 1963, DID NOT FIX AN EARLIER DATE AND DIRECTED YOUR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE APRIL 1, 1963, YOU WERE RETIRED ON THAT DATE BY VIRTUE OF THE ABOVE-CITED PROVISIONS OF 5 U.S.C. 47A.

CONCERNING THE CLAIMS OF JORDAN AND HUNTER TO WHICH YOU REFER AND WHICH WERE CONSIDERED IN OUR DECISION OF OCTOBER 29, 1963, B-152631, 43 COMP. GEN. 425, YOU ARE ADVISED THAT THE DECISION IN THAT CASE HAS NO BEARING ON YOUR RIGHTS. THOSE OFFICERS WERE RETIRED FOR YEARS OF SERVICE UNDER LAWS NOT APPLICABLE IN YOUR CASE AND THEY WOULD NOT HAVE BEEN RETIRED AT THAT TIME EXCEPT UPON THEIR OWN APPLICATIONS. YOUR RETIREMENT WAS MANDATORY UNDER 10 U.S.C. 1202 AND SECTION 1404 MADE SUCH RETIREMENT SUBJECT TO THE PROVISIONS OF 5 U.S.C. 47A. THE LATTER STATUTORY PROVISIONS WERE NOT APPLICABLE UNDER THE FACTS INVOLVED IN THE JORDON AND HUNTER CASES. INDICATED ABOVE, THE ADMINISTRATIVE ACTION TAKEN IN YOUR CASE REQUIRED YOUR RETIREMENT ON APRIL 1, 1963 (BECAUSE OF 5 U.S.C. 47A) AND YOU WOULD HAVE BEEN RETIRED A MONTH EARLIER IF YOU HAD NOT REQUESTED THE DELAY.

THE FACT THAT YOU SPECIFICALLY REQUESTED THAT YOUR RETIREMENT BE MADE EFFECTIVE APRIL 1, 1963, AND SUCH REQUEST WAS GRANTED BY THE SECRETARY OF THE NAVY DOES NOT REMOVE YOUR CASE FROM THE OPERATION OF THE RESTRICTIVE PROVISIONS OF SECTION 5 OF THE UNIFORMED SERVICES PAY ACT OF 1963, WHICH PROHIBITS THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE ACTIVE DUTY PAY RATES PRESCRIBED IN THAT ACT IN THE CASE OF ANY MEMBER "WHO BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF * * * THE ACT OF APRIL 23, 1930, CH. 209, AS AMENDED (5 U.S.C. 47A) * * *.' ACCORDINGLY, THERE IS NO PROPER LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND ITS DISALLOWANCE IS SUSTAINED.