B-156799, JUL. 30, 1965

B-156799: Jul 30, 1965

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FC: REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. WAS RETIRED EFFECTIVE SEPTEMBER 1. THAT "THIS ACTION WILL REDUCE HIM TO THE GRADE OF E-6 IN BOTH THE REGULAR ARMY AND THE ARMY RESERVE. YOU FURTHER STATE THAT A SPECIAL FINDING WAS MADE THAT THE SERVICES OF SERGEANT ADCOCK WERE INDISPENSABLE TO THE READY RESERVE BASED ON HIS EMPLOYMENT AS A USAR TECHNICIAN. SERGEANT ADCOCK'S RETIRED PAY WAS REDUCED FROM $230 A MONTH TO $189.75 A MONTH FROM DECEMBER 1. WAS INCREASED TO $230 A MONTH EFFECTIVE JANUARY 8. PERTINENT PART SECTION 3991 PROVIDES THAT THE MONTHLY RETIRED PAY OF A MEMBER RETIRED UNDER SECTION 3914 IS COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY TO WHICH MEMBER WAS ENTITLED ON DAY BEFORE HE RETIRED MULTIPLIED BY 2 1/2 PERCENT OF YEARS OF CREDITABLE SERVICE.

B-156799, JUL. 30, 1965

TO LIEUTENANT COLONEL H. W. KASSERMAN, FC:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1965, FORWARDED BY FIRST INDORSEMENT DATED MAY 13, 1965, OF THE OFFICE, CHIEF OF FINANCE, REQUESTING A DECISION WHETHER YOU SHOULD MAKE A PAYMENT ON THE ENCLOSED VOUCHER TO MASTER SERGEANT (E-7) ARLON O. ADCOCK, RA 38 050 877, RETIRED, IN THE AMOUNT OF $49.64, REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY IN THE GRADE OF STAFF SERGEANT (E-6) AND MASTER SERGEANT (E-7) FOR THE PERIOD DECEMBER 1, 1964, THROUGH JANUARY 7, 1965. YOUR REQUEST FOR DECISION HAS BEEN ALLOCATED NO. DO-A-846 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT MASTER SERGEANT ADCOCK, BY ORDERS DATED APRIL 7, 1964, WAS RETIRED EFFECTIVE SEPTEMBER 1, 1964, AND TRANSFERRED TO THE USAR (RETIRED RESERVE) UNDER THE PROVISIONS OF 10 U.S.C. 3914, IN THE GRADE OF MASTER SERGEANT (E-7) IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 3961, WITH HIS RETIRED PAY BEING BASED ON THE MONTHLY PAY OF A MASTER SERGEANT (E-7) WITH OVER 24 YEARS' SERVICE FOR BASIC PAY PURPOSES AT THE RATE OF $400 A MONTH. ON JULY 30, 1964, HE APPLIED FOR TRANSFER FROM THE RETIRED RESERVE TO THE READY RESERVE AND REQUESTED VOLUNTARY REDUCTION, WITHOUT PREJUDICE, TO THE GRADE OF E-6 FOR THE PURPOSE OF BEING ASSIGNED TO A TOE VACANCY IN A USAR UNIT.

YOU STATE THAT IN AN OPINION DATED OCTOBER 13, 1964, THE JUDGE ADVOCATE GENERAL HELD THAT SERGEANT ADCOCK COULD BE VOLUNTARILY REDUCED FROM GRADE E-7 TO GRADE E-6 WITHOUT PREJUDICE IN ORDER TO ACCEPT AN ASSIGNMENT TO AN EXISTING VACANCY IN A LOWER GRADE, BUT THAT "THIS ACTION WILL REDUCE HIM TO THE GRADE OF E-6 IN BOTH THE REGULAR ARMY AND THE ARMY RESERVE, THUS REDUCING HIS RETIRED PAY," AND THAT UPON COMPLETION OF 30 YEARS OF SERVICE HE COULD BE ADVANCED ON THE RETIRED LIST TO GRADE E-7 UNDER THE PROVISIONS OF 10 U.S.C. 3964 (WITH RECOMPUTATION OF RETIRED PAY BASED ON THAT GRADE UNDER THE PROVISIONS OF 10 U.S.C. 3992). YOU FURTHER STATE THAT THE JUDGE ADVOCATE GENERAL RECONSIDERED, HOWEVER, AND HELD IN OPINION OF MARCH 29, 1965, THAT REDUCTION IN SERGEANT ADCOCK'S RESERVE GRADE "WOULD" NOT AFFECT HIS REGULAR ARMY GRADE SO AS TO REDUCE HIS RETIRED PAY.'

YOU FURTHER STATE THAT A SPECIAL FINDING WAS MADE THAT THE SERVICES OF SERGEANT ADCOCK WERE INDISPENSABLE TO THE READY RESERVE BASED ON HIS EMPLOYMENT AS A USAR TECHNICIAN. ORDERS DATED DECEMBER 30, 1964, SHOW ASSIGNMENT TO USAR CONTROL GROUP (REINFORCEMENT), VIII U.S. ARMY CORPS, IN THE GRADE OF E-7 EFFECTIVE JANUARY 8, 1965, UNDER AUTHORITY OF PARAGRAPH 16E, AR 140-10.

BASED ON THE OPINION OF THE JUDGE ADVOCATE GENERAL DATED OCTOBER 13, 1964, SERGEANT ADCOCK'S RETIRED PAY WAS REDUCED FROM $230 A MONTH TO $189.75 A MONTH FROM DECEMBER 1, 1964, THROUGH JANUARY 7, 1965, COMPUTED ON THE BASIS OF GRADE E-6, AND WAS INCREASED TO $230 A MONTH EFFECTIVE JANUARY 8, 1965, BASED ON THE ORDERS OF DECEMBER 30, 1964.

SECTION 3914, TITLE 10, U.S. CODE, PROVIDES THAT A REGULAR ENLISTED MEMBER OF THE ARMY WHO HAS AT LEAST 20, BUT LESS THAN 30, YEARS OF SERVICE MAY BE RETIRED. HE THEN BECOMES A MEMBER OF THE ARMY RESERVE WITH AN OBLIGATION TO PERFORM SUCH ACTIVE DUTY AS MAY BE PRESCRIBED BY LAW UNTIL HE COMPLETES 30 YEARS OF SERVICE. SECTION 3961 PROVIDES THAT, UNLESS ENTITLED TO A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAW, A REGULAR OR RESERVE OF THE ARMY WHO RETIRES FOR OTHER THAN PHYSICAL DISABILITY RETIRES IN THE REGULAR OR RESERVE GRADE HE HOLDSON THE DATE OF HIS RETIREMENT. PERTINENT PART SECTION 3991 PROVIDES THAT THE MONTHLY RETIRED PAY OF A MEMBER RETIRED UNDER SECTION 3914 IS COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY TO WHICH MEMBER WAS ENTITLED ON DAY BEFORE HE RETIRED MULTIPLIED BY 2 1/2 PERCENT OF YEARS OF CREDITABLE SERVICE.

IT IS NOT ENTIRELY CLEAR WHY SERGEANT ADCOCK'S RETIRED PAY WAS REDUCED TO $189.75 EFFECTIVE DECEMBER 1, 1964, COMPUTED ON THE BASIS OF GRADE E-6. WHILE A COPY OF HIS LETTER OF JANUARY 10, 1965, TO THE FINANCE CENTER, INDICATES THAT HE HAD RECEIVED A COMMUNICATION ADVISING HIM THAT HE HAD BEEN REDUCED TO GRADE E-6 "EFFECTIVE 11 DECEMBER 1964," NEITHER A COPY OF SUCH COMMUNICATION NOR ANY OTHER OFFICIAL PAPER EFFECTING OR PURPORTING TO EFFECT A REDUCTION IN GRADE WAS FORWARDED WITH YOUR LETTER. SINCE HIS REQUEST FOR A VOLUNTARY REDUCTION TO GRADE E-6 WAS SUBMITTED IN CONNECTION WITH HIS APPLICATION FOR A TRANSFER FROM THE RETIRED RESERVE TO THE READY RESERVE FOR THE PURPOSE OF BEING ASSIGNED TO A TOE VACANCY (APPARENTLY INVOLVING AN E-6 GRADE) IN A READY RESERVE UNIT, THERE WOULD SEEM TO BE NO REASON OR PURPOSE IN REDUCING HIS GRADE PRIOR TO SUCH TRANSFER. ALSO, NO INFORMATION HAS BEEN FURNISHED SHOWING THAT HE HAS EVER SERVED IN AN E-6 GRADE IN THE READY RESERVE.

SERGEANT ADCOCK'S RETIREMENT ORDERS OF APRIL 7, 1964, EFFECTED HIS RETIREMENT IN GRADE E-7 AND TRANSFER TO THE RETIRED RESERVE EFFECTIVE SEPTEMBER 1, 1964, AND ASSIGNED HIM TO "USAR CONT. OP (RET)," U.S. ARMY RECORDS CENTER, ST. LOUIS, MISSOURI. SUCH ASSIGNMENT APPEARS TO HAVE REMAINED UNCHANGED UNTIL JANUARY 8, 1965, THE DATE HE WAS ASSIGNED IN GRADE E-7 TO THE USAR CONTROL GROUP (REINFORCEMENT) VIII U.S. AIR CORPS. THE ACTION TAKEN BY ORDER OF THE SECRETARY OF THE ARMY IN SECOND INDORSEMENT OF NOVEMBER 5, 1964, IN MAKING A FINDING AS TO THE INDISPENSABILITY OF SERGEANT ADCOCK'S SERVICES TO THE READY RESERVE, DID NOT MENTION A REDUCTION IN GRADE AND REQUESTED ONLY THAT HE BE TRANSFERRED FROM THE RETIRED RESERVE TO THE READY RESERVE. SUCH TRANSFER WAS ACCOMPLISHED BY THE ORDERS OF DECEMBER 30, 1964, EFFECTIVE JANUARY 8, 1965, WITHOUT PURPORTING TO AFFECT HIS E-7 GRADE. HE DID NOT REQUEST A REDUCTION IN HIS RETIRED PAY AND FROM THE INFORMATION ACCOMPANYING YOUR LETTER APPARENTLY NO CHANGE WAS MADE IN HIS RETIRED STATUS DURING THE PERIOD COVERED BY THE VOUCHER. IN VIEW OF THE CLEAR REQUIREMENT IN 10 U.S.C. 3991 THAT HIS RETIRED PAY BE COMPUTED ON THE "MONTHLY BASIC PAY TO WHICH MEMBER WAS ENTITLED ON DAY BEFORE HE RETIRED," NO OBJECTION IS PERCEIVED TO THE PAYMENT PROPOSED.

THAT CONCLUSION IS NOT CONSIDERED TO BE IN CONFLICT WITH OUR DECISION OF DECEMBER 12, 1961, 41 COMP. GEN. 399. IN THAT DECISION, INSOFAR AS THE RECORD BEFORE THIS OFFICE DISCLOSED, THE RETIRED ENLISTED MEMBER OF THE ARMY WAS RECALLED TO ACTIVE DUTY DURING THE KOREAN CAMPAIGN FOR A PERIOD OF 20 MONTHS APPARENTLY IN HIS STATUS AS A RETIRED MEMBER OF THE ARMY RATHER THAN AS A MEMBER OF THE ENLISTED RESERVE CORPS OF THE ARMY. SEE 10 U.S.C. 3504 AND 50 U.S.C. APP. 471 (1952 ED.). SHORTLY AFTER RELEASE FROM ACTIVE DUTY HE WAS TRIED BY A GENERAL COURT-MARTIAL FOR AN OFFENSE COMMITTED ON ACTIVE DUTY AFTER RETIREMENT AND THE SENTENCE INCLUDED, BY OPERATION OF LAW, A REDUCTION IN GRADE. IT APPEARED FROM THE RECORD BEFORE THIS OFFICE THAT THE SENTENCE WAS INTENDED TO AFFECT HIS RETIRED STATUS (INDEED, AS ORIGINALLY APPROVED--- BEFORE REMISSION--- THE SENTENCE INCLUDED DISHONORABLE DISCHARGE FROM THE SERVICE), AND HENCE WE THERE CONCLUDED THAT, IN VIEW OF THE AUTOMATIC PAY GRADE REDUCTION PROVISION OF THE MANUAL FOR COURTS-MARTIAL, THE MATTER WAS TOO DOUBTFUL TO PERMIT PAYMENT OF RETIRED PAY IN EXCESS OF THAT COMPUTED ON THE BASIS OF THE PAY OF THE GRADE TO WHICH REDUCED. COMPARE 20 COMP. GEN. 76.

IF OTHERWISE CORRECT, PAYMENT ON THE VOUCHER IS PROPER AND IT IS RETURNED HEREWITH.