B-156576, MAR. 10, 1967

B-156576, MAR. 10, 1967

TO CHIEF WARRANT OFFICER HARRY O. WALSH, SR., RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1967, REQUESTING FURTHER CONSIDERATION OF THE MATTER OF YOUR INDEBTEDNESS TO THE GOVERNMENT ARISING OUT OF PAYMENT OF RETIRED PAY BENEFITS.

YOU REFER TO OUR DECISION, B-156576 DATED APRIL 8, 1966, AND YOU SAY THAT AS A RESULT OF THAT DECISION THE FINANCE OFFICER, RETIRED PAY DIVISION, U.S. ARMY FINANCE CENTER, CONTENDS THAT YOU OWE THE GOVERNMENT $726.99 AND THAT $20 A MONTH IS BEING DEDUCTED FROM YOUR RETIRED PAY TO LIQUIDATE THIS INDEBTEDNESS. YOU ALSO SAY THAT IF THERE WAS AN OVERPAYMENT, IT WAS NOT THROUGH YOUR FAULT SINCE YOUR RETIRED PAY WAS COMPUTED BY THE RETIRED PAY DIVISION.

YOU FURTHER STATE THAT SINCE YOU HELD THE RANK OF CHIEF WARRANT OFFICER, W-2, FOR A PERIOD OF OVER FOUR YEARS BEFORE YOU RETIRED, YOUR RETIRED PAY SHOULD HAVE BEEN COMPUTED AS A CHIEF WARRANT OFFICER, W-2, AT 65 PERCENT OF THE PAY OF THAT GRADE WITH OVER 25 1/2 YEARS OF SERVICE, PLUS PERCENTAGE INCREASES AUTHORIZED BY LAW. IT APPEARS THAT YOUR RETIRED PAY IS NOW BEING COMPUTED ON THE BASIS OF THE GRADE OF WARRANT OFFICER, W-1. YOU ALSO CITE OUR DECISION,B-156593 DATED APRIL 8, 1966, AND YOU SEEM TO BE OF THE VIEW THAT SUCH DECISION LENDS SUPPORT TO YOUR CLAIM THAT THE DEDUCTIONS FROM YOUR RETIRED PAY SHOULD BE STOPPED AND THE SUM PREVIOUSLY DEDUCTED BE REFUNDED TO YOU.

THE QUESTION OF THE AMOUNT OF OVERPAYMENT OF RETIRED PAY WHICH SHOULD BE COLLECTED FROM YOU, AND THE PROPER METHOD OF RECOMPUTATION OF YOUR RETIRED PAY UPON ADVANCEMENT ON THE RETIRED LIST FROM WARRANT OFFICER, W-1, TO CHIEF WARRANT OFFICER, W-2, EFFECTIVE NOVEMBER 16, 1962, PURSUANT TO 10 U.S.C. 3964, WAS THE SUBJECT OF ONE OF THE DECISIONS YOU MENTION, AND A COPY THEREOF IS ENCLOSED FOR YOUR INFORMATION.

AS POINTED OUT IN THAT DECISION, WHEN YOU RETIRED ON DECEMBER 31, 1953, IN THE GRADE OF WARRANT OFFICER, W-1, YOU HAD ACTUAL ACTIVE SERVICE TOTALING 21 YEARS, 1 MONTH AND 15 DAYS, AND FOR BASIC PAY PURPOSES YOU HAD 25 YEARS AND 7 MONTHS (INCLUDING INACTIVE SERVICE). THE LAW UNDER WHICH YOU RETIRED (SECTION 5 OF THE ACT OF AUGUST 21, 1941, CH. 384, 55 STAT. 653, AS AMENDED BY SECTION 203 (C) OF THE ACT OF JUNE 28, 1948, CH. 708, 62 STAT. 1085, 10 U.S.C. 594 (1952 ED.) ( AUTHORIZED THE COUNTING OF BOTH ACTIVE AND INACTIVE SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING RETIRED PAY. THUS, ON JANUARY 1, 1954, YOU BECAME ENTITLED TO RETIRED PAY COMPUTED AT 65 PERCENT (2 1/2 PERCENT TIMES 26 YEARS) OF THE PAY OF A WARRANT OFFICER, W-1, WITH OVER 22 AND LESS THAN 26 CUMULATIVE YEARS OF SERVICE.

ON NOVEMBER 16, 1962, HOWEVER, WHEN YOU ACCUMULATED 30 YEARS OF SERVICE (ACTIVE AND INACTIVE) AND BECAME ENTITLED UNDER 10 U.S.C. 3964 TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH YOU SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, YOU WERE ENTITLED UNDER 10 U.S.C. 3992 TO RECOMPUTATION OF YOUR RETIRED PAY TO REFLECT SUCH ADVANCEMENT, IT BEING PROVIDED 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 TIMES "YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 3925," NOT TO EXCEED 75 PERCENT. COMPUTING THE YEARS OF SERVICE UNDER 10 U.S.C. 3925, ONLY "ACTIVE SERVICE" IS AUTHORIZED TO BE USED. HENCE, IN RECOMPUTING THE RETIRED PAY OF A MEMBER WHO, LIKE YOURSELF, WAS ADVANCED ON THE RETIRED LIST UNDER SECTION 3964 THE PROVISIONS OF SECTIONS 3992 AND 3925 AUTHORIZE THE USE OF ONLY ACTIVE SERVICE IN THE DETERMINATION OF THE PERCENTAGE MULTIPLIER TO BE USED IN COMPUTING RETIRED PAY FOR THE HIGHER GRADE.

IN VIEW OF THOSE STATUTORY PROVISIONS, AND AS POINTED OUT IN OUR DECISION OF APRIL 8, 1966, YOU WERE ERRONEOUSLY PAID RETIRED PAY AS A WARRANT OFFICER, W-2, COMPUTED AT 65 PERCENT FOR THE PERIOD NOVEMBER 16, 1962, TO DECEMBER 31, 1964. YOU WERE OVERPAID IN THE AMOUNT BY WHICH SUCH PAYMENTS EXCEED A PROPER COMPUTATION AT 52 1/2 PERCENT OF THE PAY OF A WARRANT OFFICER, W-2 (BASED ON ACTIVE SERVICE ONLY, 2 1/2 PERCENT TIMES 21 YEARS), OR, AT YOUR ELECTION, THE RETIRED PAY TO WHICH YOU WOULD HAVE BEEN ENTITLED AS A WARRANT OFFICER, W-1, COMPUTED AT 65 PERCENT. THE AMOUNT OF YOUR OVERPAYMENT AS STATED IN OUR DECISION B-156576, FOR THE PERIOD NOVEMBER 16, 1962, TO DECEMBER 31, 1964, WAS $1,366.17 AS A WARRANT OFFICER, W-2, OR $726.99 AS A WARRANT OFFICER, W-1.

SINCE YOUR RETIRED PAY AS A WARRANT OFFICER, W-1, COMPUTED ON THE BASIS INDICATED IN THAT DECISION IS GREATER THAN THAT OF A CHIEF WARRANT OFFICER, W-2, IT WAS TO YOUR ADVANTAGE TO ELECT TO HAVE YOUR RETIRED PAY COMPUTED AS A WARRANT OFFICER, W-1. COMPUTED ON THAT BASIS, YOUR INDEBTEDNESS IS CONSIDERABLY LESS AS INDICATED ABOVE.

IN OUR OTHER DECISION OF APRIL 8, 1966, CITED BY YOU, B-156593, COPY ENCLOSED, THE INDIVIDUAL THERE INVOLVED HAD COMPLETED 20 YEARS, 1 MONTH AND 28 DAYS OF ACTIVE SERVICE AND WAS CREDITED WITH THE SAME AMOUNT OF SERVICE FOR BASIC PAY PURPOSES. UNLIKE THE FACTS IN YOUR CASE, THERE WAS NOT INVOLVED THE QUESTION OF INCLUDING "INACTIVE SERVICE" IN DETERMINING THE PERCENTAGE MULTIPLIER IN RECOMPUTING RETIRED PAY UPON ADVANCEMENT TO A HIGHER GRADE. THAT DECISION (B 156593) AND THE DECISION (B-156576) IN YOUR CASE, ARE ALIKE IN THAT THEY RECOGNIZED THE CITED STATUTORY PROVISIONS AS AUTHORIZING THE RECOMPUTATION OF RETIRED PAY UNDER THE OPTIONS PROVIDED IN SECTION 5 (C) (1) AND (2) OF THE ACT OF OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 213. YOUR RETIRED PAY WAS RECOMPUTED UNDER THE SAME STATUTORY PROVISIONS AS WERE INVOLVED IN B-156593.

CONCERNING YOUR APPARENT BELIEF THAT YOU SHOULD HAVE HAD YOUR RETIRED PAY COMPUTED ON YOUR TEMPORARY W-2 GRADE WHEN YOU FIRST RETIRED SINCE YOU HAD HELD THAT GRADE FOR FOUR YEARS PRIOR TO YOUR RETIREMENT, IT APPEARS THAT SECTION 203 (C) OF THE AMENDATORY ACT OF JUNE 29, 1948 (CITED ABOVE), UNDER WHICH YOU WERE RETIRED, DID NOT CONTEMPLATE RETIREMENT IN A HIGHER TEMPORARY GRADE SINCE PROVISION WAS THERE MADE FOR ADVANCEMENT ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE SATISFACTORILY HELD "UPON THE COMPLETION OF THIRTY YEARS' SERVICE, TO INCLUDE THE SUM OF HIS ACTIVE SERVICE AND HIS SERVICE ON THE RETIRED LIST.' YOUR RETIREMENT ORDERS DATED DECEMBER 16, 1953, TERMINATED YOUR TEMPORARY CHIEF WARRANT OFFICER GRADE (W-2) EFFECTIVE DECEMBER 31, 1953, AND PROPERLY DIRECTED YOUR RETIREMENT "AS WOJG (W-1), 31 DEC 1953.'

WE ARE AWARE THAT CERTAIN RESERVE OFFICERS ARE RECEIVING RETIRED PAY BASED ON A GRADE HIGHER THAN THAT IN WHICH THEY SERVED. THIS MATTER WAS THE SUBJECT OF OUR REPORT TO THE CONGRESS ON AUGUST 10, 1966, B-146551. WHILE IT IS UNFORTUNATE THAT YOUR RETIRED PAY WAS ERRONEOUSLY RECOMPUTED COMMENCING NOVEMBER 16, 1962, AND THAT AN OVERPAYMENT RESULTED, THAT FACT AFFORDS NO BASIS FOR ALLOWING YOU TO RETAIN THE AMOUNTS PAID TO THE EXTENT THAT SUCH AMOUNTS EXCEEDED THOSE ..END :