B-157130, JUL. 26, 1965, 45 COMP. GEN. 49

B-157130, JUL. 26, 1965, 45 COMP. GEN. 49

PAY - RETIRED - EFFECTIVE DATE - RATE UNDER 1963 OR 1964 PAY ACTS - ARMY AND AIR FORCE OFFICERS AN OFFICER OF THE UNIFORMED SERVICES ON ACTIVE DUTY THROUGH AUGUST 31, 1964, WHO HAVING COMPLETED MORE THAN 32 YEARS OF SERVICE UNDER 10 U.S.C. CH. 67, WHICH DOES NOT SPECIFY A DATE OF RETIREMENT, IS RETIRED UPON HIS OWN APPLICATION EFFECTIVE SEPTEMBER 1, 1964, UNDER 10 U.S.C. 1331, WITH RETIRED PAY COMPUTED PURSUANT TO FORMULA 3 OF 10 U.S.C. 1401, IS ENTITLED TO THE COMPUTATION OF HIS RETIRED PAY NOT AT THE BASIC PAY RATES IN THE MILITARY SERVICES PAY ACT OF 1964, EFFECTIVE SEPTEMBER 1, 1964, BUT AT THE RATES IN THE UNIFORMED SERVICES PAY ACT OF 1963, THE ARMY OFFICER QUALIFYING FOR RETIREMENT IN AUGUST 1964 AND RECEIVING RETIRED PAY BEGINNING SEPTEMBER 1, 1964, THE EARLIEST POSSIBLE DATE UNDER THE UNIFORM RETIREMENT DATE ACT OF 1930 (5 U.S.C. 47A), HIS RETIRED PAY MUST BE COMPUTED AT THE BASIC PAY RATES IN EFFECT FOR HIS GRADE AND LENGTH OF SERVICE IN AUGUST 1964, WHICH ARE THE RATES PRESCRIBED BY THE UNIFORMED SERVICES PAY ACT; HOWEVER, HAD THE OFFICER QUALIFIED FOR RETIREMENT PRIOR TO AUGUST 1964 AND SPECIFIED RETIREMENT EFFECTIVE SEPTEMBER 1, 1964, THE MILITARY SERVICES PAY ACT RATES WOULD APPLY.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, JULY 26, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1965, FORWARDED HERE BY FIRST INDORSEMENT OF OFFICE, CHIEF OF FINANCE, UNDER DATE OF JUNE 24, 1965, REQUESTING A DECISION CONCERNING THE RATE OF BASIC PAY ON WHICH THE RETIRED PAY OF COLONEL WILL M. CLARK, O 258 865, AUS, RETIRED, SHOULD BE COMPUTED. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NUMBER A-855 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REPORT THAT COLONEL CLARK WAS BORN ON AUGUST 17, 1904, AND SERVED ON ACTIVE DUTY CONTINUOUSLY FROM NOVEMBER 3, 1949, THROUGH AUGUST 31, 1964, AND COMPLETED MORE THAN 32 YEARS OF SERVICE COMPUTED UNDER CHAPTER 67, TITLE 10, U.S.C. HE APPLIED FOR RETIREMENT ON JUNE 15, 1964, TO BE EFFECTIVE SEPTEMBER 1, 1964. HE WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1964, UNDER AUTHORITY OF THE PROVISIONS OF 10 U.S.C. 1331, WITH RETIRED PAY COMPUTED UNDER THE PROVISIONS OF FORMULA 3 OF 10 U.S.C. 1401.

YOU POINT OUT THAT CHAPTER 67 OF TITLE 10, U.S.C. DOES NOT SPECIFY A DATE OF RETIREMENT, BUT THAT IN 38 COMP. GEN. 146 (1958) WE HELD THAT THE RIGHT OF A MEMBER TO RETIRED PAY THEREUNDER ACCRUES FROM THE DATE OF QUALIFICATION FOR SUCH PAY OR FROM A LATER DATE STIPULATED IN THE MEMBER'S APPLICATION, SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A. YOU ALSO SAY THAT OUR DECISION OF JANUARY 5, 1965, B-155458, 44 COMP. GEN. 373, CONCERNING THE APPLICATION OF THE UNIFORM RETIREMENT DATE ACT IN DETERMINING WHETHER PERSONS RETIRED EFFECTIVE SEPTEMBER 1, 1964, SHOULD COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE BASIC PAY RATES PRESCRIBED IN THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210, OR THOSE PRESCRIBED IN THE MILITARY SERVICES PAY ACT OF 1964, APPROVED AUGUST 12, 1964, PUBLIC LAW 88-422, 78 STAT. 395, WHICH BECAME EFFECTIVE SEPTEMBER 1, 1964, WAS SILENT WITH RESPECT TO PERSONS RETIRED UNDER THE PROVISIONS OF CHAPTER 67, TITLE 10, UNITED STATES CODE.

SINCE THE MILITARY SERVICES PAY ACT OF 1964 DOES NOT CONTAIN A PROVISION AUTHORIZING MEMBERS RETIRED ON THE EFFECTIVE DATE OF THAT ACT (SEPTEMBER 1, 1964) TO COMPUTE THEIR PAY ON THE BASIS OF THE BASIC PAY PRESCRIBED IN THAT ACT, YOU SAY THAT DOUBT EXISTS AS TO WHETHER--

A. FOOTNOTE 2 OF TITLE 10, U.S. CODE, SECTION 1401, MAY BE CONSTRUED AS AUTHORITY FOR COMPUTING COLONEL CLARK'S RETIRED PAY UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 1 OF THE MILITARY SERVICES PAY ACT OF 1964; OR

B. THE DECISION REQUIRES HIS RETIRED PAY TO BE COMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED IN SECTION 2 (A), OF THE UNIFORMED SERVICES PAY ACT OF 1963.

YOU ALSO ASK WHETHER THE ANSWER TO EITHER QUESTION A OR B WOULD BE DIFFERENT IF THE OFFICER HAD BECOME FULLY QUALIFIED FOR RETIREMENT PRIOR TO AUGUST 1964 AND SPECIFIED RETIREMENT EFFECTIVE SEPTEMBER 1, 1964.

FOOTNOTE 2 TO THE RETIRED PAY FORMULA IN 10 U.S.C. 1401, APPLICABLE IN THE CASE OF COLONEL CLARK, PROVIDES THAT RETIRED PAY WILL BE COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY ,APPLICABLE ON DATE WHEN RETIRED PAY IS GRANTED.' AS POINTED OUT IN OUR DECISION OF JANUARY 5, 1965, 44 COMP. GEN. 373, HOWEVER, SECTION 1404 OF TITLE 10, U.S.C. PROVIDES THAT THE RETIREMENT PROVISIONS OF THAT TITLE ARE SUBJECT TO THE PROVISIONS OF 5 U.S.C. 47A, THE UNIFORM RETIREMENT DATE ACT OF 1930. IN THAT DECISION WE HELD THAT THE UNIFORM RETIREMENT DATE ACT REQUIRES THAT EVERY RETIREMENT (UNLESS SPECIFICALLY OR BY IMPLICATION EXEMPTED BY STATUTE) TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT OTHERWISE WOULD BE EFFECTIVE, BUT THAT THE RATE OF RETIRED PAY MUST BE COMPUTED AS OF THE DATE THE RETIREMENT WOULD HAVE OCCURRED IF THE UNIFORM RETIREMENT DATE ACT HAD NOT BEEN ENACTED. IN SUMMARIZING OUR DECISIONS INTERPRETING THAT ACT WE SAID:

* * * WHERE A MEMBER IS RETIRED FOR REASON/S) OTHER THAN DISABILITY IMMEDIATELY UPON BECOMING ELIGIBLE THEREFOR, THE RETIREMENT IS GOVERNED BY THE PROVISIONS OF, AND SUBJECT TO THE RESTRICTIVE PROVISIONS OF, THE UNIFORM RETIREMENT DATE ACT. * * * WHERE A MEMBER IS RETIRED AT A TIME OTHER THAN THE DATE WHEN ELIGIBILITY FOR RETIREMENT FIRST EXISTS, AND THE DATE OF RETIREMENT IS FIXED ON THE BASIS OF ADMINISTRATIVE DISCRETION OR ELECTION OF THE MEMBER ON THE FIRST DAY OF A MONTH LATER THAN THAT REQUIRED BY THE UNIFORM RETIREMENT DATE ACT, THE RESTRICTIONS CONTAINED IN THAT ACT LIMITING RETIRED PAY TO THE AMOUNT THAT WOULD HAVE BEEN PAYABLE IF THAT LAW HAD NOT BEEN ENACTED ARE NOT FOR APPLICATION.

COLONEL CLARK, WHO HAD ALREADY COMPLETED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER 10 U.S.C. 1332, ATTAINED THE AGE OF 60 YEARS DURING THE MONTH OF AUGUST 1964 AND BEGAN TO RECEIVE RETIRED PAY EFFECTIVE SEPTEMBER 1, 1964. SINCE HE FIRST BECAME QUALIFIED FOR RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1331 DURING THE MONTH OF AUGUST 1964 AND BEGAN RECEIVING RETIRED PAY ON SEPTEMBER 1, 1964, THE EARLIEST DATE HE COULD HAVE BEGUN RECEIVING SUCH PAY UNDER THE UNIFORM RETIREMENT DATE ACT, HIS RETIRED PAY MUST BE COMPUTED ON THE BASIS OF THE RATE OF BASIC PAY IN EFFECT FOR HIS GRADE AND LENGTH OF SERVICE IN AUGUST 1964 AS REQUIRED BY THAT ACT. ACCORDINGLY HIS RETIRED PAY MUST BE COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY PRESCRIBED IN THE UNIFORMED SERVICES PAY ACT OF 1963 RATHER THAN ON THE BASIS OF THE RATES PRESCRIBED IN THE MILITARY SERVICES PAY ACT OF 1964. QUESTION A IS ANSWERED IN THE NEGATIVE AND QUESTION B IS ANSWERED IN THE AFFIRMATIVE.

IF THE OFFICER HAD BECOME FULLY QUALIFIED FOR RETIREMENT PRIOR TO AUGUST 1964 AND SPECIFIED RETIREMENT EFFECTIVE SEPTEMBER 1, 1964, HE WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE RATES OF BASIC PAY IN EFFECT ON SEPTEMBER 1, 1964, AS PRESCRIBED IN THE MILITARY SERVICES PAY ACT OF 1964.