B-156554, JUN. 22, 1965, 44 COMP. GEN. 813

B-156554: Jun 22, 1965

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THE FACT THAT HIS RETIREMENT UNDER SECTION 1293 WAS NOT FOR PHYSICAL DISABILITY DOES NOT PRECLUDE CREDIT FOR THE INACTIVE PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST FOR BASIC PAY PURPOSES. WILL NOT RESULT IN AN INCREASE IN RETIRED PAY WITHIN THE MEANING OF SECTION 202 (B). 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 22. YOUR REQUEST WAS ASSIGNED NO. TEAM WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1202 AND 1372 EFFECTIVE AUGUST 26. WAS A DAY OF ACTIVE DUTY. UPON A DETERMINATION UNDER THE PROVISIONS OF 10 U.S.C. 1210 (F) THAT HE WAS PHYSICALLY FIT AND AS PROVIDED IN 10 U.S.C. 1211 (A) (2). WAS RECALLED TO ACTIVE DUTY EFFECTIVE AUGUST 1.

B-156554, JUN. 22, 1965, 44 COMP. GEN. 813

PAY - SERVICE CREDITS - TEMPORARY DISABILITY RETIRED LIST A CHIEF WARRANT OFFICER RETIRED UNDER 10 U.S.C. 1293, EFFECTIVE NOVEMBER 30, 1961, AFTER HAVING BEEN ON THE TEMPORARY DISABILITY RETIRED LIST FOR APPROXIMATELY 3 YEARS UNTIL FOUND PHYSICALLY FIT AND RECALLED TO ACTIVE DUTY MAY BE CREDITED FOR THE PERIOD OF INACTIVE STATUS ON THE TEMPORARY DISABILITY RETIRED LIST AS WELL AS THE SUBSEQUENT PERIOD OF ACTIVE SERVICE TO GIVE HIM OVER 30 YEARS OF CREDITABLE CUMULATIVE SERVICE FOR THE COMPUTATION OF HIS RETIRED PAY, THE FACT THAT HIS RETIREMENT UNDER SECTION 1293 WAS NOT FOR PHYSICAL DISABILITY DOES NOT PRECLUDE CREDIT FOR THE INACTIVE PERIOD ON THE TEMPORARY DISABILITY RETIRED LIST FOR BASIC PAY PURPOSES, SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B) (1952 ED.), ONLY PROHIBITING THE USE OF SUCH INACTIVE TIME TO INCREASE RETIRED PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, OR IN A RETIRED STATUS, AND THE MEMBER HAVING ACQUIRED A "NEW" RETIRED STATUS PURSUANT TO 10 U.S.C. 1293, USE OF THE INACTIVE TIME HE SPENT ON THE TEMPORARY DISABILITY RETIRED LIST IN COMPUTING HIS RETIRED PAY FROM DECEMBER 1, 1961, WILL NOT RESULT IN AN INCREASE IN RETIRED PAY WITHIN THE MEANING OF SECTION 202 (B).

TO MISS N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, JUNE 22, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1965, AND ENCLOSURES, REQUESTING DECISION CONCERNING THE PROPER BASIS ON WHICH TO COMPUTE THE RETIRED PAY OF CHIEF WARRANT OFFICER (W-4) DONALD Z. TEAM, 951233E, INCIDENT TO HIS RETIREMENT EFFECTIVE DECEMBER 1, 1961, UNDER THE PROVISIONS OF 10 U.S.C. 1293. YOUR REQUEST WAS ASSIGNED NO. DO-AF 842 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE STATEMENTS CONTAINED IN YOUR LETTER AND THE ENCLOSURES RECEIVED THEREWITH DISCLOSE THAT WHEN MR. TEAM WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1202 AND 1372 EFFECTIVE AUGUST 26, 1958 (THE PRECEDING DAY, AUGUST 25, 1958, WAS A DAY OF ACTIVE DUTY, HE HAD COMPLETED 29 YEARS AND 3 MONTHS OF ACTIVE SERVICE. APPROXIMATELY 3 YEARS LATER, UPON A DETERMINATION UNDER THE PROVISIONS OF 10 U.S.C. 1210 (F) THAT HE WAS PHYSICALLY FIT AND AS PROVIDED IN 10 U.S.C. 1211 (A) (2), MR. TEAM, WITH HIS CONSENT, WAS RECALLED TO ACTIVE DUTY EFFECTIVE AUGUST 1, 1961. ON NOVEMBER 14, 1961, HE WAS REAPPOINTED TO THE PERMANENT GRADE OF CHIEF WARRANT OFFICER (W-4) IN THE REGULAR AIR FORCE AS PROVIDED IN 10 U.S.C. 1211 (A) (2).

PARAGRAPH 1, DEPARTMENT OF THE AIR FORCE SPECIAL ORDER NO. AB-10371 DATED NOVEMBER 29, 1961, IN PERTINENT PART PROVIDED THAT:

"CWO, W4 DONALD Z TEAM, 951233E IS RELIEVED FROM ASSIGNMENT * * * AND RETIRED PER SEC 1293, TITLE 10, U.S.C. EFFECTIVE 30 NOV 61, * * *. AUTHORIZED RETIRED PAY PER SEC 1401, TITLE 10, U.S.C. ACTIVE SERVICE FOR RETIREMENT: 29 YEARS, 7 MONTHS; SERVICE FOR BASIC PAY: 32YEARS, 6 MONTHS, 5 DAYS * * *.'

SECTION 1293, TITLE 10, U.S. CODE, 1958 ED. (IN EFFECT IN NOVEMBER 1961) PROVIDED THAT THE SECRETARY CONCERNED---

"* * * MAY, UPON THE WARRANT OFFICER'S REQUEST, RETIRE A WARRANT OFFICER OF ANY ARMED FORCE UNDER HIS JURISDICTION WHO HAS AT LEAST 20 YEARS OF ACTIVE SERVICE THAT COULD BE CREDITED TO HIM UNDER SECTION 311 OF TITLE 37 (1958 ED.).'

A WARRANT OFFICER RETIRED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1293 IS ENTITLED TO COMPUTE HIS MONTHLY RETIRED PAY AS PRESCRIBED IN FORMULA NO. 4, SECTION 1401, TITLE 10, U.S. CODE, ON THE BASIS OF THE MONTHLY BASIC PAY OF THE WARRANT OFFICER GRADE AS THEREIN PRESCRIBED MULTIPLIED BY 2 1/2 PERCENT TIMES THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM UNDER SECTION 1405, TITLE 10, U.S.C. SINCE MR. TEAM HAD OVER 20 YEARS OF ACTIVE SERVICE HE WAS ELIGIBLE FOR RETIREMENT ON DECEMBER 1, 1961, UNDER THE PROVISIONS OF 10 U.S.C. 1293 AND IN ACCORDANCE WITH THE PROVISIONS OF FORMULA NO. 4 OF SECTION 1401 HE BECAME ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE DECEMBER 1, 1961, AT THE MONTHLY RATE OF $446.25 COMPUTED ON THE BASIS OF THE MONTHLY ACTIVE DUTY BASIC PAY ($595) OF A CHIEF WARRANT OFFICER, W-4, WITH OVER 30 YEARS OF CREDITABLE CUMULATIVE SERVICE (SEE 37 U.S.C. 233 (B), 1958 ED.) MULTIPLIED BY 75 PERCENT (29 YEARS AND 7 MONTHS OF ACTIVE SERVICE CREDITABLE UNDER 10 U.S.C. 1405 CONVERTED TO 30 YEARS TIMES 2 1/2 PERCENT).

AT ISSUE IS THE QUESTION WHETHER IN DETERMINING THE RATE OF THE BASIC PAY TO BE USED IN COMPUTING MR. TEAM'S RETIRED PAY EFFECTIVE FROM DECEMBER 1, 1961, INCIDENT TO HIS RETIREMENT UNDER AUTHORITY OF 10 U.S.C. 1293, HE IS ENTITLED TO BE CREDITED WITH THE PERIOD AUGUST 26, 1958, TO JULY 31, 1961, INCLUSIVE, 2 YEARS, 11 MONTHS AND 5 DAYS, WHILE HE WAS IN AN INACTIVE STATUS ON THE TEMPORARY DISABILITY RETIRED LIST. CREDITING THE PERIOD THAT HE WAS INACTIVE ON THE TEMPORARY DISABILITY RETIRED LIST GIVES HIM OVER 30 YEARS OF CREDITABLE CUMULATIVE SERVICE AND WITHOUT CREDIT FOR THAT PERIOD HIS RETIRED PAY WOULD BE COMPUTED ON THE PAY OF A MEMBER WITH OVER 26 BUT NOT OVER 30 YEARS OF CREDITABLE CUMULATIVE SERVICE. DOUBT IN THE MATTER APPEARS TO HAVE ARISEN UNDER THE VIEW THAT, SINCE MR. TEAM'S RETIREMENT ON DECEMBER 1, 1961, WAS NOT BY REASON OF PHYSICAL DISABILITY, CREDIT FOR THE INACTIVE PERIOD OF TIME HE WAS ON THE TEMPORARY DISABILITY RETIRED LIST IS PRECLUDED BY THE CONCLUSIONS REACHED IN DECISIONS OF THIS OFFICE DATED JULY 17, 1957, B-131700, 37 COMP. GEN. 31 AND DECEMBER 29, 1960, B-144464, 40 COMP. GEN. 387.

NEITHER ONE OF THE TWO DECISIONS REFERRED TO APPLIES IN MR. TEAM'S SITUATION. THE DECISION OF JULY 17, 1957, RELATES TO THOSE MEMBERS OF THE UNIFORMED SERVICES "WHO, AFTER RETIREMENT FOR PHYSICAL DISABILITY, ARE RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY RETURNED TO AN INACTIVE DUTY STATUS" ON THE RETIRED LIST AND THE DECISION OF DECEMBER 29, 1960, INVOLVES A COAST GUARD OFFICER WHO WAS RETIRED FOR PHYSICAL DISABILITY ON JUNE 1, 1946, REMAINING INACTIVE ON THE RETIRED LIST THROUGH FEBRUARY 1, 1951. THAT OFFICER WAS RECALLED TO ACTIVE DUTY EFFECTIVE FEBRUARY 2, 1951, AND ON AUGUST 1, 1960, HE REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST. IT WILL BE NOTED, AND WE EMPHASIZE THIS POINT, THAT IN EACH OF THE ABOVE-MENTIONED CASES, THE INDIVIDUAL CONCERNED REVERTED TO THE SAME "RETIRED" STATUS FROM WHICH HE HAD BEEN RECALLED TO ACTIVE DUTY. THE FACTS IN MR. TEAM'S CASE DIFFER IN THIS RESPECT.

IN DECISION OF NOVEMBER 28, 1956, B-129541, 36 COMP. GEN. 431, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN WHO HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JANUARY 1, 1952, AND REMOVED FROM THAT LIST BY DISCHARGE FROM THE SERVICE ON NOVEMBER 30, 1953. REENLISTED IN THE REGULAR AIR FORCE ON JUNE 15, 1955, AND SERVED ON ACTIVE DUTY THROUGH JULY 31, 1956, WHEN HE WAS AGAIN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 1, 1956. ONE OF THE QUESTIONS PRESENTED FOR DECISION IN THAT CASE WAS WHETHER THE TIME HE HAD SPENT ON THE TEMPORARY DISABILITY RETIRED LIST FROM JANUARY 1, 1952, TO NOVEMBER 30, 1953, INCLUSIVE, COULD BE INCLUDED TOGETHER WITH HIS SUBSEQUENT PERIOD OF ACTIVE SERVICE IN COMPUTING THE AMOUNT OF HIS RETIRED PAY COMMENCING AUGUST 1, 1956.

IN ANSWERING THAT QUESTION IN THE AFFIRMATIVE IT WAS HELD THAT THE TIME PREVIOUSLY SPENT ON THE TEMPORARY DISABILITY RETIRED LIST COULD BE INCLUDED IN COMPUTING SUCH RETIRED PAY SINCE SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 808, 37 U.S.C. 233 (B), 1952 ED. AUTHORIZED THE ACCRUAL OF ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES FOR PERIODS WHILE ON SUCH LIST. IT WAS EXPLAINED THAT WHILE THE PROVISO IN THAT SECTION DID NOT PERMIT THE USE OF SUCH INACTIVE SERVICE CREDIT TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST OR IN A RETIRED STATUS, SUCH PROVISO "IS BELIEVED TO REFER TO MEMBERS WHO HAVE BEEN RETIRED AND ARE IN RECEIPT OF RETIRED OR RETIREMENT PAY AND THUS HAVE A PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" MAY APPLY.' CONSEQUENTLY, IT WAS CONCLUDED THAT ALTHOUGH THE INDIVIDUAL THERE CONCERNED HAD RECEIVED DISABILITY RETIREMENT PAY FOR A TIME (JANUARY 1, 1952, TO NOVEMBER 30, 1953, INCLUSIVE) THE COUNTING OF SUCH TIME IN COMPUTING THE AMOUNT OF RETIRED PAY DUE HIM FROM AUGUST 1, 1956,"WILL NOT RESULT IN ANY "INCREASE" IN RETIRED PAY "WHILE ON" A RETIRED LIST OR TEMPORARY DISABILITY RETIRED LIST, WITHIN THE MEANING OF SECTION 202 (B) OF THE CAREER COMPENSATION ACT.' COMPARE DECISION OF SEPTEMBER 23, 1959, B 140388, 39 COMP. GEN. 213.

MR. TEAM'S RETIRED STATUS ON THE TEMPORARY DISABILITY RETIRED LIST WAS TERMINATED PRIOR TO DECEMBER 1, 1961, WHEN, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1293, HE ACQUIRED A "NEW" RETIRED STATUS. HENCE THE CREDITING OF THE INACTIVE PERIOD OF TIME THAT HE SPENT ON THE TEMPORARY DISABILITY RETIRED LIST (AUGUST 26, 1958, TO JULY 31, 1961, INCLUSIVE) IN COMPUTING HIS RETIRED PAY EFFECTIVE FROM DECEMBER 1, 1961, WILL NOT RESULT IN ANY INCREASE IN HIS RETIRED PAY "WHILE ON RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, (OR) IN A RETIRED STATUS," WITHIN THE MEANING OF SECTION 202 (B) OF THE 1949 LAW IN EFFECT ON DECEMBER 1, 1961. ACCORDINGLY, PAYMENT ON THE VOUCHER STATED IN FAVOR OF MR. TEAM (AND RETURNED HEREWITH) IS PROPER, IF OTHERWISE CORRECT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER OR A CITATION THERETO PLACED THEREON.