B-156575, MAY 19, 1965, 44 COMP. GEN. 743

B-156575, MAY 19, 1965, 44 COMP. GEN. 743

PAY - RETIRED - INCREASES - UNIFORMED SERVICES PAY ACT OF 1963 - GENERALS, ADMIRALS, ETC. AN ADMIRAL WHO WAS RECEIVING RETIRED PAY IMMEDIATELY PRIOR TO THE 1963 MILITARY PAY ACT ON A PERCENTAGE MULTIPLE LESS THAN 75 PERCENT (72 1/2 ( ON THE BASIS OF AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, TO RECEIVE RETIRED PAY UNDER THE YEARS-OF- SERVICE FORMULA IN THAT ACT RATHER THAN ON THE 75 PERCENT FORMULA OF THE DISABILITY RETIREMENT LAWS IN EFFECT PRIOR TO THE 1949 ACT, HAS ABANDONED HIS RIGHT TO RETIRED PAY ON THE 75 PERCENT FORMULA AND IS NOT ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED UNDER SECTION 5 (C) OF THE 1963 MILITARY PAY ACT, 77 STAT. 213, AT 75 PERCENT APPLICABLE AT DATE OF RETIREMENT ON THE BASIC PAY RATES PRESCRIBED FOR AN ADMIRAL IN THE 1958 PAY ACT.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, MAY 19, 1965:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1965, FORWARDED HERE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY ON APRIL 19, 1965, REQUESTING A DECISION CONCERNING THE COMPUTATION OF THE RETIRED PAY OF ADMIRAL BEN MOREELL, CEC, USN (RETIRED), BEGINNING OCTOBER 1, 1963. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. DO-N 841 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT ADMIRAL MOREELL WAS TRANSFERRED TO THE RETIRED LIST ON OCTOBER 1, 1946, WITH THE RANK OF VICE ADMIRAL PURSUANT TO THE PROVISIONS OF 34 U.S.C. 417 AND 350G (A) (1946 ED.), AND WAS ADVANCED TO THE TEMPORARY RANK OF ADMIRAL UNDER 34 U.S.C. 350I (1946 ED.). HIS RETIRED PAY WAS COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF AN ADMIRAL PURSUANT TO PARAGRAPH 4, SECTION 15, OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115 (1946 ED.) FOR THE PERIOD OCTOBER 1, 1946, THROUGH SEPTEMBER 30, 1949, SINCE HE HAD SERVED ON ACTIVE DUTY AS AN OFFICER OF THE REGULAR NAVY CONTINUOUSLY FROM JUNE 28, 1917, THROUGH SEPTEMBER 30, 1949 (29 YEARS, 3 MONTHS AND 3 DAYS).

UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, HE ELECTED TO RECEIVE RETIRED PAY FOR THE PERIOD BEGINNING OCTOBER 1, 1949, UNDER THE YEARS-OF-SERVICE FORMULA (29 YEARS OF ACTIVE SERVICE TIMES 2 1/2 PERCENT OR 72 1/2 PERCENT) AT $671.53, AND RECEIVED RETIRED PAY UNDER THAT FORMULA DURING THE PERIOD OCTOBER 1, 1949, THROUGH MAY 31, 1958, WITH INCREASES EFFECTIVE MAY 1, 1952, AND APRIL 1, 1955, UNDER THE 1952 AND 1955 MILITARY PAY ACTS APPROVED MAY 19, 1952, PUBLIC LAW 346, 82D CONGRESS, AND MARCH 31, 1955, PUBLIC LAW 20, 84TH CONGRESS, RESPECTIVELY.

EFFECTIVE JUNE 1, 1958, ADMIRAL MOREELL'S RETIRED PAY WAS ADJUSTED UNDER SECTION 7 (C) OF THE 1958 MILITARY PAY ACT, PUB.L. 85-422, 72 STAT. 130, APPROVED MAY 20, 1958, BASED UPON THE RANK OF VICE ADMIRAL AND 29 YEARS OF ACTIVE SERVICE FOR PERCENTAGE MULTIPLE PURPOSES (OR 72 1/2 PERCENT). YOU STATE THAT HIS PAY WAS AGAIN ADJUSTED EFFECTIVE OCTOBER 1, 1963, UNDER SECTION 5 (C) (1) OF THE 1963 MILITARY PAY ACT, PUB.L. 88-132, 77 STAT. 213, APPROVED OCTOBER 2, 1963, COMPUTED ON THE BASIC PAY OF AN ADMIRAL WITH OVER 26 YEARS' SERVICE FOR BASIC PAY PURPOSES MULTIPLIED BY 72 1/2 PERCENT.

YOU STATE FURTHER THAT DECISION OF JANUARY 30, 1964, 43 COMP. GEN. 533, INDICATES THAT EACH MEMBER COVERED BY SECTION 5 (C) OF THE 1963 MILITARY PAY ACT "IS TO HAVE HIS RETIRED PAY RECOMPUTED UNDER THE RATES OF PAY PRESCRIBED IN THE 1958 ACT BY THE METHOD APPLICABLE AT THE TIME OF RETIREMENT IN EACH INDIVIDUAL CASE, UNLESS THE 5 PERCENT INCREASE FORMULA WILL RESULT IN GREATER RETIRED PAY.' YOU RAISE A QUESTION AS TO WHETHER SUCH STATEMENT WAS INTENDED TO MEAN THAT, IN A CASE SUCH AS ADMIRAL MOREELL'S WHERE THE METHOD OF PAY COMPUTATION AT THE TIME OF HIS RETIREMENT WAS 75 PERCENT OF HIS ACTIVE DUTY PAY, HE IS ENTITLED TO RETIRED PAY COMPUTED UNDER SECTION 5 (C) OF THE 1963 MILITARY PAY ACT AT 75 PERCENT OF THE 1958 BASIC PAY OF AN ADMIRAL WITH OVER 26 YEARS' SERVICE.

ADMIRAL MOREELL WAS AUTHORIZED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT BECAUSE HE WAS RETIRED FOR DISABILITY (SEE 34 U.S.C. 417 AND 991 (1946 ED.) ( AND WAS ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 367, 37 U.S.C. 115 (1946 ED.). UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, MEMBERS WHO HAD BEEN RETIRED FOR DISABILITY PRIOR TO OCTOBER 1, 1949, WERE AUTHORIZED TO ELECT TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 OF THAT ACT WITH RETIRED PAY COMPUTED AS PRESCRIBED IN SECTION 402 (D) OF THAT ACT. IF SUCH ELECTION WAS MADE, THE MEMBER COULD NOT THEREAFTER COMPUTE HIS RETIRED PAY ON THE BASIS OF THE DISABILITY RETIRED PAY FORMULA (75 PERCENT OF ACTIVE DUTY PAY) APPLICABLE UNDER THE DISABILITY LAWS IN EFFECT PRIOR TO OCTOBER 1949, NOR COULD HE RECEIVE DISABILITY RETIRED PAY UNDER THE RATES PRESCRIBED IN THE CAREER COMPENSATION ACT AND IN ADDITION RECEIVE THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, NAMELY, THE 75 PERCENT MULTIPLE THERE PRESCRIBED. SEE DECISION OF AUGUST 13, 1951, 31 COMP. GEN. 28; PALMER V. UNITED STATES, 139 CT.CL. 376 (1957), AND BRANDT V. UNITED STATES, 155 CT.CL. 345 (1961). COMPARE DECISION OF FEBRUARY 16, 1951, 30 COMP. GEN. 350.

THE LANGUAGE USED IN OUR DECISION OF JANUARY 30, 1964, WAS APPROPRIATE WITH RESPECT TO EACH OF THE TWO ILLUSTRATIVE CASES THERE CONSIDERED, WHERE EACH OF THE OFFICERS THERE INVOLVED WAS ENTITLED TO COMPUTE HIS RETIRED PAY UNDER THE 75 PERCENT FORMULA NOT ONLY AT THE TIME OF RETIREMENT, BUT ALSO UNDER THE FORMULA APPLICABLE FOR COMPUTING HIS RETIRED PAY UNDER THE 1963 MILITARY PAY ACT, SINCE EACH OF THEM HAD SERVED ON ACTIVE DUTY FOR MORE THAN 30 YEARS. IN THEIR CASES THERE WAS NO DIFFERENCE IN THE PERCENTAGE MULTIPLE INVOLVED AT THE TIME OF RETIREMENT AND THE EFFECTIVE DATE OF THE 1963 MILITARY PAY ACT. ADMIRAL MOREELL, HOWEVER, WHO HAD NOT SERVED ON ACTIVE DUTY FOR 30 YEARS, ABANDONED HIS RIGHT TO COMPUTE HIS RETIRED PAY UNDER THE 75 PERCENT FORMULA OF THE DISABILITY RETIREMENT LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT AND OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WHEN HE ELECTED UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 TO RECEIVE HIS RETIRED PAY UNDER THE YEARS-OF-SERVICE FORMULA PROVIDED IN THAT ACT. SUCH ELECTION RESULTED IN THE USE OF A PERCENTAGE MULTIPLE OF 72 1/2 FOR COMPUTING HIS RETIRED PAY. WHERE THE FACTS ARE AS IN ADMIRAL MOREELL'S CASE, THAT IS, WHERE RETIRED PAY IS AUTHORIZED IMMEDIATELY PRIOR TO THE 1963 ACT ON THE BASIS OF A PERCENTAGE FIGURE OF 72 1/2, OUR DECISION OF JANUARY 30, 1964, WAS NOT INTENDED TO AUTHORIZE COMPUTATION OF RETIRED PAY UNDER SECTION 5 (C) OF THE 1963 MILITARY PAY ACT AT 75 PERCENT (APPLICABLE AT DATE OF RETIREMENT) OF THE 1958 BASIC PAY OF AN ADMIRAL. YOUR QUESTION IS ANSWERED IN THE NEGATIVE.