B-156593, APR. 8, 1966

B-156593, APR. 8, 1966

TO THE COMPTROLLER, ACCOUNTING AND FINANCE DIVISION, AIR FORCE ACCOUNTING AND FINANCE CENTER:

FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER (ALRA-3) FORWARDED HERE BY LETTER DATED FEBRUARY 3, 1966, OF HEADQUARTERS, UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $124.38, STATED IN FAVOR OF CAPTAIN EUGENE PULLIAM, AO 88 5380, USAF, RETIRED. YOUR REQUEST HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-890 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 11 OF SPECIAL ORDERS NUMBER 6, DATED JANUARY 10, 1955, PURSUANT TO SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH 393, 59 STAT. 539, AS AMENDED, NOW 10 U.S.C. 3914 AND 8914, MASTER SERGEANT EUGENE PULLIAM WAS RELIEVED FROM HIS CURRENT ASSIGNMENT, TRANSFERRED TO THE AIR FORCE RESERVE AND RETIRED, EFFECTIVE JANUARY 31, 1955, UPON COMPLETION OF 20 YEARS, 1 MONTH AND 28 DAYS OF ACTIVE SERVICE AND SERVICE FOR BASIC PAY PURPOSES. HE WAS PAID RETIRED PAY COMPUTED ON HIS GRADE OF MASTER SERGEANT THROUGH DECEMBER 2, 1964, WHEN, HAVING COMPLETED 30 YEARS OF ACTIVE SERVICE AND SERVICE ON THE RETIRED LIST, HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN PURSUANT TO 10 U.S.C. 8964, EFFECTIVE DECEMBER 3, 1964, AND AUTHORIZED RETIRED PAY UNDER 10 U.S.C. 8992. HIS PAY WAS RECOMPUTED AT 50 PERCENT OF $535 OR $267.50 A MONTH, BASED ON THE GRADE OF CAPTAIN CREDITED WITH OVER 4 YEARS OF ACTIVE SERVICE AS AN ENLISTED MAN AND WITH OVER 20 YEARS OF SERVICE FOR PAY PURPOSES UNDER THE RATES EFFECTIVE JUNE 1, 1958, PROVIDED BY THE ACT OF MAY 20, 1958, PUB.L. 85-422, 72 STAT. 123, AND HE HAS BEEN PAID RETIRED PAY ON THAT BASIS FROM DECEMBER 3, 1964, INCREASED BY 4.4 PERCENT TO $279.27 A MONTH, EFFECTIVE SEPTEMBER 1, 1965.

A CLAIM WAS SUBMITTED FOR $30.24 REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY FOR THE PERIOD DECEMBER 3, 1964, TO FEBRUARY 28, 1965, COMPUTED AT 50 PERCENT OF $535 OR $267.50 A MONTH BASED ON THE GRADE OF CAPTAIN CREDITED WITH OVER 4 YEARS OF ACTIVE SERVICE AS AN ENLISTED MAN UNDER THE RATES PROVIDED IN THE 1958 ACT TO WHICH CAPTAIN PULLIAM WOULD BE ENTITLED UNDER SUBSECTION 5 (C) 1 OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 213, AND 50 PERCENT OF $499.20 OR $249.60 A MONTH BASED ON THE GRADE OF CAPTAIN UNDER THE RATES PROVIDED IN THE ACT OF MARCH 31, 1955, CH 20, 69 STAT. 18, INCREASED BY 6 PERCENT UNDER THE 1958 ACT TO $264.58 AND INCREASED BY 5 PERCENT UNDER SUBSECTION 5 (C) 2 OF THE 1963 ACT TO $277.81. THIS CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JUNE 23, 1965, ON THE BASIS THAT UNDER THE TERMS OF NOTE 1 TO 10 U.S.C. 8992, THERE IS NO AUTHORITY OF LAW FOR RECOMPUTING CAPTAIN PULLIAM'S RETIRED PAY UNDER THE 1955 RATES AND ADDING THE PERCENTAGE INCREASES PROVIDED IN THE 1958 AND 1963 ACTS, SUCH RECOMPUTATION BEING REQUIRED TO BE MADE AT RATES IN EFFECT AT THE TIME OF ORIGINAL RETIREMENT.

THE PRESENT VOUCHER REPRESENTS THE SAME DIFFERENCE IN RETIRED PAY AT $267.50 AND $277.81 FOR THE PERIOD DECEMBER 3, 1964, THROUGH AUGUST 31, 1965, INCREASED BY 4.4 PERCENT TO $279.27 AND $290.03, RESPECTIVELY, FOR THE PERIOD SEPTEMBER 1, 1965, THROUGH NOVEMBER 30, 1965. YOU INVITE ATTENTION TO SUBSECTION 3 (C) OF THE 1958 ACT AND STATE THAT THE EFFECT THEREOF IS AT NOTE 1 TO 10 U.S.C. 8992 DOES NOT APPLY IN THE CASE OF ADVANCEMENT ON OR AFTER JUNE 1, 1958, OF A MEMBER WHO BECAME ENTITLED TO RETIRED PAY BEFORE JUNE 1, 1958. YOU ALSO STATE THAT IF NOTE 1 IS APPLICABLE, IT WOULD SEEM TO PRECLUDE THE COMPUTATION UNDER EITHER OF THE TWO ALTERNATIVES PROVIDED IN SUBSECTION 5 (C) OF THE 1963 ACT.

IN OUR DECISION, B-152751, OF DECEMBER 24, 1963, 43 COMP. GEN. 491, WE HELD THAT A MEMBER MAY HAVE HIS RETIRED PAY RECOMPUTED UNDER SUBSECTION 5 (C) 1 OR SUBSECTION 5 (C) 2 OF THE 1963 ACT ON THE BASIS OF THE OFFICER GRADE TO WHICH ADVANCED ON OCTOBER 1, 1963, EVEN THOUGH HIS RETIRED STATUS FOR ADJUSTMENT PURPOSES ON SEPTEMBER 30, 1963, WAS THAT OF AN ENLISTED MEMBER RECEIVING RETAINER (RETIRED) PAY. SUBSECTION 3 (C) OF THE ACT OF MAY 20, 1958, PROVIDES THAT:

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SUBDIVISION (B) OF THIS SECTION, A MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED OR RETAINER PAY BEFORE THE EFFECTIVE DATE OF THIS ACT, AND WHO ON OR AFTER THAT DATE IS ADVANCED ON THE RETIRED LIST TO, OR IS TRANSFERRED TO A RETIRED LIST IN, A GRADE HIGHER THAN THE GRADE HE HELD ON THE DATE WHEN HE BECAME ENTITLED TO THAT RETIRED OR RETAINER PAY, SHALL HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949 ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS 6 PERCENTUM OF THAT PAY.'

WE SAID IN DECISION OF MAY 29, 1959, B-138977, 38 COMP. GEN. 806 AT 809 THAT:

"SUBSECTION (C) GOVERNS THE RETIRED PAY STATUS OF THOSE MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN A HIGHER GRADE PRIOR TO JUNE 1, 1958, THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND WHO THEREAFTER ARE TRANSFERRED TO A RETIRED LIST OR ADVANCED ON A RETIRED LIST TO SUCH HIGHER GRADE. IN SUCH A CASE, THE MEMBER IS ENTITLED TO COMPUTE HIS RETIRED PAY AS PROVIDED IN SECTION 3 (C) ON THE BASIS OF THE BASIC RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 ON MAY 31, 1958, PLUS 6 PERCENTUM OF THAT PAY.'

THUS CAPTAIN PULLIAM, WHO BECAME ENTITLED TO RETIRED PAY PRIOR TO THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND WAS ADVANCED ON THE RETIRED LIST TO A HIGHER GRADE IN 1964, FALLS WITHIN THE SCOPE OF SUBSECTION 3 (C) OF THE 1958 LAW AND, ON THE BASIS OF THE RULE STATED IN 43 COMP. GEN. 491, HE IS ENTITLED TO THE BENEFITS OF SUBSECTION 5 (C) OF THE ACT OF OCTOBER 2, 1963. SINCE RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN UNDER THE RATES PROVIDED IN THE 1955 ACT IN EFFECT BEFORE JUNE 1, 1958, PLUS 6 PERCENT UNDER SUBSECTION 3 (C) OF THE 1958 ACT AND 5 PERCENT UNDER SUBSECTION 5 (C) 2 OF THE 1963 ACT RESULTS IN GREATER RETIRED PAY THAN HE RECEIVED UNDER SUBSECTION 5 (C) 1, HE IS ENTITLED TO RETIRED PAY AT THE RATE OF $277.81 A MONTH FROM DECEMBER 3, 1964, THROUGH AUGUST 31, 1965, AND A 4.4 PERCENT INCREASE OF $290.03 A MONTH BEGINNING ON SEPTEMBER 1, 1965. SEE B-156576 DATED TODAY.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.