B-156571, MAY 12, 1965, 44 COMP. GEN. 710

B-156571: May 12, 1965

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WAS RELEASED AND TRANSFERRED TO THE RETIRED LIST IN THE GRADE OF ADMIRAL ON AUGUST 1. WAS APPOINTED AMBASSADOR TO PORTUGAL IN WHICH POSITION HE DID NOT RECEIVE RETIRED PAY. PRESCRIBING RETIRED PAY FOR PERSONS WHO WERE ENTITLED TO RETIRED PAY ON SEPTEMBER 30. NOT ONLY ARE THE EXPRESS PROVISIONS OF SECTION 5 (D) AUTHORIZING A 5 PERCENT INCREASE IN RETIRED PAY APPLICABLE BY REASON OF THE OFFICER'S RETIREMENT IN AUGUST 1963 WHILE SERVING AS CHIEF OF NAVAL OPERATIONS BUT OTHER PROVISIONS OF THE 1963 ACT WHICH WOULD BE FAVORABLE TO THE OFFICER. 1965: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26. YOUR REQUEST FOR DECISION WAS ASSIGNED NO. YOU SAY THAT AFTER HAVING COMPLETED MORE THAN 30 YEARS OF ACTIVE SERVICE ADMIRAL ANDERSON WAS RELEASED FROM ACTIVE DUTY ON JULY 31.

B-156571, MAY 12, 1965, 44 COMP. GEN. 710

PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - GENERALS, ADMIRALS, ETC. A NAVY OFFICER WHO, AFTER SERVICE AS CHIEF OF NAVAL OPERATIONS, WAS RELEASED AND TRANSFERRED TO THE RETIRED LIST IN THE GRADE OF ADMIRAL ON AUGUST 1, 1963, UNDER 10 U.S.C. 6322 AND 5083, AND THEN ON SEPTEMBER 3, 1963, WAS APPOINTED AMBASSADOR TO PORTUGAL IN WHICH POSITION HE DID NOT RECEIVE RETIRED PAY, COMES UNDER SECTION 5 (D) OF THE UNIFORMED SERVICES PAY ACT OF 1963, PRESCRIBING RETIRED PAY FOR PERSONS WHO WERE ENTITLED TO RETIRED PAY ON SEPTEMBER 30, 1963, AND WHO HAD SERVED AS CHIEF OF NAVAL OPERATIONS, AND, THEREFORE, NOT ONLY ARE THE EXPRESS PROVISIONS OF SECTION 5 (D) AUTHORIZING A 5 PERCENT INCREASE IN RETIRED PAY APPLICABLE BY REASON OF THE OFFICER'S RETIREMENT IN AUGUST 1963 WHILE SERVING AS CHIEF OF NAVAL OPERATIONS BUT OTHER PROVISIONS OF THE 1963 ACT WHICH WOULD BE FAVORABLE TO THE OFFICER, SUCH AS THE NEW BASIC RATES PRESCRIBED FOR COMMISSIONED OFFICERS UNDER SECTION 5 (A), MAY BE APPLIED IN DETERMINING THE OFFICER'S RATE OF RETIRED PAY.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, MAY 12, 1965:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1965, FORWARDED HERE BY SECOND ENDORSEMENT DATED APRIL 19, 1965, OF THE COMPTROLLER OF THE NAVY, REQUESTING A DECISION CONCERNING THE COMPUTATION OF THE RATE OF RETIRED PAY IN THE CASE OF ADMIRAL ANDERSON, FORMER CHIEF OF NAVAL OPERATIONS. YOUR REQUEST FOR DECISION WAS ASSIGNED NO. DO-N-844 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT AFTER HAVING COMPLETED MORE THAN 30 YEARS OF ACTIVE SERVICE ADMIRAL ANDERSON WAS RELEASED FROM ACTIVE DUTY ON JULY 31, 1963, WHILE SERVING AS CHIEF OF NAVAL OPERATIONS, AND WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE AUGUST 1, 1963, WITH THE GRADE OF ADMIRAL (0-10) PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6322 AND 5083, WITH RETIRED PAY AT THE RATE OF $1,406.25, COMPUTED AT THE RATE OF 75 PERCENT OF THE APPLICABLE ACTIVE DUTY PAY RATE PRESCRIBED IN THE 1958 MILITARY PAY ACT. SEE FOOTNOTE 1 TO THE BASIC PAY TABLE FOR COMMISSIONED OFFICERS IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 AS AMENDED BY SECTION 1 (1) OF PUB.L. 85- 422 (THE 1958 MILITARY PAY ACT), APPROVED MAY 20, 1958, 72 STAT. 122.

ADMIRAL ANDERSON WAS APPOINTED BY THE PRESIDENT AS AMERICAN AMBASSADOR TO PORTUGAL ON SEPTEMBER 3, 1963, AND IN ACCORDANCE WITH THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A, HE WAS PAID NO RETIRED PAY DURING THE PERIOD SEPTEMBER 3, 1963, THROUGH NOVEMBER 30, 1964. HAVING ELECTED ON DECEMBER 18, 1964, TO BECOME SUBJECT TO THE RETIRED PAY LIMITATIONS IN SECTION 201 (A) OF THE DUAL COMPENSATION ACT OF 1964, PUB.L. 88 448, APPROVED AUGUST 19, 1964, 78 STAT. 484, PAYMENT OF RETIRED PAY TO HIM WAS RESUMED EFFECTIVE DECEMBER 1, 1964, ON THE BASIS OF THE GROSS RATE OF $1,476.56, WHICH IT IS STATED REPRESENTS RETIRED PAY AT THE RATE OF $1,406.25 INCREASED BY 5 PERCENT UNDER THE UNIFORMED SERVICES PAY ACT OF 1963, PUB.L. 88-132, APPROVED OCTOBER 2, 1963, 77 STAT. 210.

INSOFAR AS HERE MATERIAL, SECTION 5 (D) OF THE 1963 ACT PROVIDES THAT EFFECTIVE OCTOBER 1, 1963, A MEMBER WHO WAS ENTITLED TO RETIRED PAY ON SEPTEMBER 30, 1963, AND WHO SERVED AS CHIEF OF NAVAL OPERATIONS IS ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED UNDER THE FORMULA FOR COMPUTING RETIRED PAY APPLICABLE TO HIM WHEN HE RETIRED USING AS HIS RATE OF BASIC PAY THE RATE OF BASIC PAY PRESCRIBED IN FOOTNOTE 1 TO SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 AS AMENDED BY SECTION 1 (1) OF THE 1958 MILITARY PAY ACT, OR TO AN INCREASE OF 5 PERCENT IN THE RETIRED PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1963, WHICHEVER IS THE GREATER.

YOU STATE THAT ALTHOUGH ADMIRAL ANDERSON WAS ENTITLED TO RETIRED PAY ON SEPTEMBER 30, 1963, AND HAD SERVED AS CHIEF OF NAVAL OPERATIONS, A QUESTION ARISES AS TO WHETHER SECTION 5 (D) OF THE 1963 ACT SHOULD BE APPLIED IN HIS CASE OR IN ANY SIMILAR CASE WHERE RETIREMENT OCCURRED AFTER MAY 31, 1958, SINCE, BY VIRTUE OF SECTION 6 (2) OF THE 1958 MILITARY PAY ACT, PUB.L. 85-422, AMENDING 10 U.S.C. 5083 TO PROVIDE THAT THE RETIRED PAY OF AN OFFICER WHO IS RETIRED WHILE SERVING AS CHIEF OF NAVAL OPERATIONS SHALL BE COMPUTED AT THE HIGHEST RATE OF BASIC PAY APPLICABLE TO HIM WHILE HE SERVED IN THAT OFFICE, ENTITLEMENT TO RETIRED PAY BASED ON THE RATES OF BASIC PAY PRESCRIBED IN THE 1958 MILITARY PAY ACT EXISTED PRIOR TO OCTOBER 1, 1963.

THE QUESTIONS PRESENTED ARE (1) WHETHER SECTION 5 (D) OF PUBLIC LAW 88- 132 IS APPLICABLE IN ADMIRAL ANDERSON'S CASE AND, IF SO, (2) WHETHER HE IS RESTRICTED TO PAY COMPUTED UNDER SUCH SECTION OR (3) WHETHER HE IS ENTITLED TO PAY AT THE GROSS MONTHLY RATE OF $1,477.50 COMPUTED UNDER SECTION 5 (A) (1) OF PUBLIC LAW 88-132 BASED ON THE BASIC PAY PRESCRIBED IN FOOTNOTE 1 TO THE BASIC PAY TABLE FOR COMMISSIONED OFFICERS IN SECTION 2 OF THAT ACT.

THE 1958 MILITARY PAY ACT CREATED TWO NEW PAY GRADES FOR OFFICERS, 0-9 AND 0-10, ASSIGNED ADMIRALS TO PAY GRADE 0-10, AND AUTHORIZED $1,875 MONTHLY BASIC PAY FOR THE CHIEF OF STAFF OF THE ARMY, THE CHIEF OF STAFF OF THE AIR FORCE, THE CHIEF OF NAVAL OPERATIONS, THE COMMANDANT OF THE MARINE CORPS, AND THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF, OR $175 PER MONTH MORE BASIC PAY THAN ALL OTHER OFFICERS OF EQUAL GRADE. THAT ACT AMENDED EXISTING LAW NOT ONLY "TO INSURE THAT THOSE WHO RETIRE FROM ACTIVE DUTY IN THE FUTURE IN THE GRADES 0-9 AND 0-10 WILL BE ENABLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE NEW BASIC PAY PRESCRIBED IN" THAT ACT "FOR THOSE GRADES," BUT IN ADDITION AMENDED

"* * * EXISTING LAW IN ORDER TO INSURE THAT FUTURE RETIRED CHIEFS OF STAFF OF THE ARMY, CHIEFS OF NAVAL OPERATIONS, CHIEFS OF STAFF OF AIR FORCE, AND COMMANDANTS OF THE MARINE CORPS WILL BE ENABLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE HIGHEST RATES OF BASIC PAY PRESCRIBED FOR THOSE OFFICERS WHILE SERVING IN SUCH AN OFFICE.'

SEE S.REPT. NO. 1472, 85TH CONGRESS, 2D SESS. 22, ON H.R. 11470 WHICH BECAME THE 1958 MILITARY PAY ACT.

SECTION 5 OF THE UNIFORMED SERVICES PAY ACT OF 1963 AUTHORIZED, AMONG OTHER THINGS, A 5 PERCENT INCREASE IN RETIRED PAY OF PERSONS RETIRED AFTER MAY 1958 AND PRIOR TO THE EFFECTIVE DATE OF THE 1963 MILITARY PAY ACT. THAT SECTION ALSO DELETED FROM TITLE 10, U.S. CODE, THE PROVISIONS OF LAW AUTHORIZING RECOMPUTATION OF RETIRED PAY BASED UPON CHANGES IN RATES 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.

PERSONS WHO BECAME ENTITLED TO RETIRED PAY AFTER MARCH 1963 AND PRIOR TO OCTOBER 1, 1963, THE EFFECTIVE DATE OF THE 1963 MILITARY PAY ACT, WERE BY SECTION 5 (A) OF THAT ACT ALSO AUTHORIZED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE ACTIVE DUTY PAY RATES PRESCRIBED IN THAT ACT UNLESS THEY BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, AS AMENDED (5 U.S.C. 47A).

SINCE ADMIRAL ANDERSON WAS RETIRED EFFECTIVE AUGUST 1, 1963, WHILE SERVING AS CHIEF OF NAVAL OPERATIONS WITH THE GRADE OF ADMIRAL AFTER 30 YEARS OF ACTIVE SERVICE PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6322 AND 5083, HE WAS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE HIGHEST RATE OF BASIC PAY APPLICABLE TO HIM WHILE HE SERVED IN THAT OFFICE, THAT IS, ON THE BASIS OF $1,875 PRESCRIBED FOR THE CHIEF OF NAVAL OPERATIONS IN FOOTNOTE 1 TO THE TABLE OF BASIC PAY RATES FOR COMMISSIONED OFFICERS IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE 1958 MILITARY PAY ACT, 72 STAT. 122, CODIFIED IN 37 U.S.C. 203 BY PUB.L. 87-649, 76 STAT. 456, APPROVED SEPTEMBER 7, 1962, OR $1,406.25. THERE IS NOT APPARENT ANY REASON WHY THE EXPRESS PROVISIONS OF SECTION 5 (D) OF THE 1963 MILITARY PAY ACT, WHICH SPECIFICALLY COVER SITUATIONS SUCH AS THAT OF ADMIRAL ANDERSON, AUTHORIZING AN INCREASE OF 5 PERCENT IN THE RATE OF HIS RETIRED PAY, SHOULD NOT BE APPLIED IN THE COMPUTATION OF HIS RETIRED PAY. YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE ANSWER TO THAT QUESTION DOES NOT MEAN, HOWEVER, THAT HE MAY NOT RECEIVE THE BENEFITS AUTHORIZED BY OTHER PROVISIONS OF THE 1963 ACT WHICH ARE FAVORABLE TO HIM. SECTION 5 (A) OF THE 1963 MILITARY PAY ACT PROVIDES, WITH EXCEPTIONS NOT HERE MATERIAL, THAT A MEMBER OF THE UNIFORMED SERVICES WHO BECAME ENTITLED TO RETIRED PAY AFTER MARCH 1963 BUT BEFORE OCTOBER 1, 1963, IS ENTITLED TO HAVE THE RETIRED PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1963, RECOMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 2 OF THAT ACT, OR TO CONTINUE TO HAVE THAT PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT ON SEPTEMBER 30, 1963, UNDER 37 U.S.C. 203, PLUS A 5 PERCENT INCREASE IN THAT PAY, WHICHEVER PAY IS THE GREATER. SECTION 2 OF THAT ACT AMENDED 37 U.S.C. 203 TO PROVIDE A NEW TABLE OF RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES. FOOTNOTE 1 TO THAT TABLE OF BASIC PAY RATES FOR COMMISSIONED OFFICERS ESTABLISHED THE RATE OF BASIC PAY FOR THE CHIEF OF NAVAL OPERATIONS AT THE MONTHLY RATE OF $1,970, 75 PERCENT OF WHICH IS $1,477.50. UNDER THE SPECIFIC PROVISIONS OF SECTION 5 (A) OF THE 1963 MILITARY PAY ACT ADMIRAL ANDERSON IS ENTITLED TO COMPUTE HIS RETIRED PAY AT THE RATE OF $1,477.50 EFFECTIVE OCTOBER 1, 1963. QUESTION (2) IS ANSWERED IN THE NEGATIVE AND QUESTION (3) IS ANSWERED IN THE AFFIRMATIVE.