B-157826, NOV. 4, 1965, 45 COMP. GEN. 233

B-157826: Nov 4, 1965

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IS ENTITLED TO CREDIT FOR THE SERVICE PERFORMED FROM AUGUST 7. DO NOT APPLY AND THE MONTHLY RETIRED PAY OF THE OFFICER IS FOR COMPUTATION UNDER FORMULA A OF 10 U.S.C. 3991. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 10. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED OCTOBER 7. CORRECTED VOUCHER IN THE AMOUNT OF $68.70 WAS RECEIVED IN THIS OFFICE ON OCTOBER 26. YOU SAY THAT MAJOR WALDRON WAS APPOINTED SECOND LIEUTENANT. SHE WAS RETIRED UNDER THE REQUIREMENT OF 10 U.S.C. 3915. SHE WAS RETIRED FROM ACTIVE SERVICE UNDER THE REQUIREMENT OF 10 U.S.C. 3915 (B). GEN. 5 IS NOT APPLICABLE IN HER CASE AND THAT SHE IS ENTITLED TO BE CREDITED WITH ALL SERVICE THAT QUALIFIES UNDER THE PROVISIONS OF 10 U.S.C. 3927.

B-157826, NOV. 4, 1965, 45 COMP. GEN. 233

PAY - SERVICE CREDITS - RETENTION AFTER MANDATORY RETIREMENT AN ARMY MAJOR WHO AT THE TIME OF QUALIFYING FOR MANDATORY RETIREMENT UNDER 10 U.S.C. 3915 (B) ON AUGUST 6, 1963, EFFECTIVE SEPTEMBER 1, 1963, HAD 25 YEARS AND 30 DAYS OF SERVICE, BUT WHO, RETAINED ON THE ACTIVE LIST FOR THE PURPOSE OF COMPLETING 28 YEARS AND 30 DAYS, VOLUNTARILY RETIRED, WITH THE APPROVAL OF THE SECRETARY OF THE ARMY, ON SEPTEMBER 1, 1965, AFTER COMPLETING ONLY 2 YEARS AND 24 DAYS OF ADDITIONAL ACTIVE SERVICE, IS ENTITLED TO CREDIT FOR THE SERVICE PERFORMED FROM AUGUST 7, 1963, THROUGH AUGUST 31, 1965, UNDER SECTION 3927, THE RETIREMENT DATE HAVING BEEN FIXED ON THE BASIS OF THE OFFICER'S ELECTION OR ADMINISTRATIVE DISCRETION, THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, DO NOT APPLY AND THE MONTHLY RETIRED PAY OF THE OFFICER IS FOR COMPUTATION UNDER FORMULA A OF 10 U.S.C. 3991, ON THE BASIS OF THE MONTHLY BASIC PAY RATE APPLICABLE SEPTEMBER 1, 1965, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES PAY ACT OF 1965, TO THE GRADE OF MAJOR WITH OVER 23 YEARS OF SERVICE, MULTIPLIED BY 2 1/2 PERCENT TIMES THE 27 YEARS OF SERVICE CREDITED UNDER 10 U.S.C. 3927 (B).

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, NOVEMBER 4, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 10, 1965, FORWARDING FOR DECISION IN ADVANCE OF PAYMENT A VOUCHER IN THE AMOUNT OF $71.54, IN FAVOR OF MAJOR MIRIAM E. WALDRON, N 1 202, ANC, RETIRED, REPRESENTING AN ADJUSTMENT OF RETIRED PAY FOR THE MONTH OF SEPTEMBER 1965. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED OCTOBER 7, 1965, FROM THE CHIEF OF FINANCE AND HAS BEEN ASSIGNED D.O. NUMBER A-875 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. CORRECTED VOUCHER IN THE AMOUNT OF $68.70 WAS RECEIVED IN THIS OFFICE ON OCTOBER 26, 1965.

YOU SAY THAT MAJOR WALDRON WAS APPOINTED SECOND LIEUTENANT, ARMY NURSE CORPS RESERVE, ON DECEMBER 22, 1941, AND THAT SHE SERVED CONTINUOUSLY ON ACTIVE DUTY IN VARIOUS GRADES AND COMPONENTS OF THE ARMY UNTIL HER RETIREMENT ON SEPTEMBER 1, 1965. SHE COMPLETED 25 YEARS 0 MONTHS AND 30 DAYS OF SERVICE FOR RETIREMENT ON AUGUST 6, 1963. BY PARAGRAPH 164, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 170, DATED JULY 18, 1963, SHE WAS RETIRED UNDER THE REQUIREMENT OF 10 U.S.C. 3915, EFFECTIVE SEPTEMBER 1, 1963. HAVING BEEN SELECTED BY A BOARD OF SENIOR OFFICERS FOR RETENTION ON ACTIVE DUTY UNTIL SHE COMPLETED 28 YEARS AND 30 DAYS OF SERVICE, THE SECRETARY OF THE ARMY ON JULY 23, 1963, ACTING UNDER AUTHORITY CONTAINED IN 10 U.S.C. 3915 (B), APPROVED THE REQUEST OF THE SURGEON GENERAL THAT SHE BE RETAINED ON THE ACTIVE LIST. PARAGRAPH 167, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 184, DATED AUGUST 1, 1963, REVOKED THE ORDERS OF JULY 18, 1963, AND MAJOR WALDRON CONTINUED TO SERVE ON ACTIVE DUTY. PARAGRAPH 167, ARMY SPECIAL ORDERS NO. 175, DATED JULY 2, 1965, SHE WAS RETIRED FROM ACTIVE SERVICE UNDER THE REQUIREMENT OF 10 U.S.C. 3915 (B), RELIEVED FROM ASSIGNMENT AND DUTY ON AUGUST 31, 1965, AND PLACED ON THE U.S. ARMY RETIRED LIST, EFFECTIVE SEPTEMBER 1, 1965.

BASED ON OUR DECISION 38 COMP. GEN. 5, AND SINCE MAJOR WALDRON DID NOT COMPLETE 28 YEARS AND 30 DAYS OF SERVICE UNDER 10 U.S.C. 3915 (B), CREDIT HAS NOT BEEN ALLOWED IN THE COMPUTATION OF HER RETIRED PAY FOR THE 2 YEARS AND 24 DAYS OF ACTIVE SERVICE SHE PERFORMED FROM AUGUST 7, 1963, THROUGH AUGUST 31, 1965. NOTWITHSTANDING THE OPINION OF THE JUDGE ADVOCATE GENERAL, JAGA, 1965/4453, DATED AUGUST 4, 1965, THAT 38 COMP. GEN. 5 IS NOT APPLICABLE IN HER CASE AND THAT SHE IS ENTITLED TO BE CREDITED WITH ALL SERVICE THAT QUALIFIES UNDER THE PROVISIONS OF 10 U.S.C. 3927, INCLUDING SERVICE PERFORMED AFTER AUGUST 6, 1963, YOU SAY THAT MAJOR WALDRON'S RETIRED PAY HAS BEEN COMPUTED ON OVER 21 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND 25 YEARS OF SERVICE FOR PERCENTAGE PURPOSES BASED ON THE ACTIVE DUTY PAY RATES AUTHORIZED BY THE ACT OF AUGUST 12, 1964, PUBLIC LAW 88-422, 78 STAT. 395, IN ACCORDANCE WITH OUR DECISION OF JANUARY 5, 1965, 44 COMP. GEN. 373. SINCE IT APPEARS THAT SHE MAY BE ENTITLED TO HAVE HER RETIRED PAY COMPUTED UNDER THE ACTIVE DUTY PAY RATES SET FORTH IN THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 545, AND THE AMOUNT SHOWN ON THE CORRECTED VOUCHER REPRESENTS THE DIFFERENCE BETWEEN THE RETIRED PAY OF A MAJOR WITH OVER 23 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND 27 YEARS OF SERVICE FOR PERCENTAGE PURPOSES BASED ON THE 1965 RATES AND THE AMOUNT PAID AS THE RETIRED PAY OF A MAJOR WITH OVER 21 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND 25 YEARS OF SERVICE FOR PERCENTAGE PURPOSES BASED ON THE 1964 RATES, DOUBT IS EXPRESSED AS TO WHETHER

A. ACTIVE SERVICE DURING THE PERIOD 7 AUGUST 1963 THROUGH 31 AUGUST 1965 IS CREDITABLE IN THE COMPUTATION OF RETIRED PAY FOR BASIC PAY PURPOSES AND UNDER THE PROVISIONS OF TITLE 10, U.S. CODE, SECTION 3927.

B. RETIRED PAY MAY BE COMPUTED BASED ON ACTIVE DUTY PAY RATES AUTHORIZED BY THE UNIFORMED SERVICES PAY ACT OF 1965, APPROVED 21 AUGUST 1965, IF THE ANSWER TO QUESTIONS 8A IS "NO.'

C. THE ANSWER TO QUESTION 8B BE THE SAME IF CREDIT IS ALLOWED FOR ACTIVE SERVICE DURING THE PERIOD 7 AUGUST 1963 THROUGH 31 AUGUST 1965?

SUBSECTION (B) OF 10 U.S.C. 3915, UNDER THE AUTHORITY OF WHICH THE ACTIONS REFERRED TO ABOVE WERE TAKEN, PROVIDES THAT:

(B) UNLESS RETIRED OR SEPARATED AT AN EARLIER DATE, EACH OFFICER OF THE ARMY NURSE CORPS AND THE ARMY MEDICAL SPECIALIST CORPS WHOSE REGULAR GRADE IS MAJOR SHALL BE RETIRED, EXCEPT AS PROVIDED BY SECTION 47A OF TITLE 5, ON THE THIRTIETH DAY AFTER SHE COMPLETES 25 YEARS OF SERVICE COMPUTED UNDER SECTION 3927 (A) OF THIS TITLE. HOWEVER, IF HER NAME IS CARRIED ON A LIST OF OFFICERS RECOMMENDED FOR APPOINTMENT TO THE REGULAR GRADE OF LIEUTENANT COLONEL, SHE SHALL BE RETAINED ON THE ACTIVE LIST WHILE HER NAME IS SO CARRIED. IN ADDITION, IF THE AUTHORIZED STRENGTH OF THE CORPS CONCERNED IN OFFICERS ON THE ACTIVE LIST IS NOT EXCEEDED, THE SECRETARY OF THE ARMY MAY RETAIN HER ON THE ACTIVE LIST UNTIL SHE COMPLETES 28 YEARS OF SERVICE COMPUTED UNDER SECTION 3927 (A) OF THIS TITLE, IN WHICH CASE SHE SHALL BE RETIRED, EXCEPT AS PROVIDED BY SECTION 47A OF TITLE 5, ON THE THIRTIETH DAY AFTER SHE COMPLETES THAT SERVICE.

IN OUR DECISION OF JANUARY 5, 1965, RELATING TO THE USE OF THE PAY RATES ESTABLISHED BY THE 1964 PAY ACT IN RELATION TO THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A, WE SAID THAT,

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. SEE 10 COMP. GEN. 36.

MAJOR WALDRON QUALIFIED FOR MANDATORY RETIREMENT UNDER 10 U.S.C. 3915 (B) ON AUGUST 6, 1963, AND HAD HER ORIGINAL ORDERS TAKEN EFFECT SHE WOULD HAVE BEEN RETIRED BY VIRTUE OF THE PROVISIONS OF 5 U.S.C. 47A, EFFECTIVE SEPTEMBER 1, 1963. HOWEVER, HER RETIREMENT ORDERS WERE REVOKED BEFORE BECOMING EFFECTIVE AND SHE WAS RETAINED ON THE ACTIVE LIST UNDER THE THIRD SENTENCE OF 10 U.S.C. 3915 (B), WITH HER CONSENT. THEREAFTER SHE COULD AT ANY TIME PRIOR TO THE COMPLETION OF 28 YEARS AND 30 DAYS OF SERVICE APPLY FOR AND BE VOLUNTARILY RETIRED, WITH THE APPROVAL OF THE SECRETARY OF THE ARMY. THIS SHE DID AND HER RETIREMENT, WHICH BECAME EFFECTIVE ON SEPTEMBER 1, 1965, WAS NOT GOVERNED BY OR SUBJECT TO THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. THAT DATE WAS FIXED ON THE BASIS OF EITHER HER ELECTION OR ADMINISTRATIVE DISCRETION. THERE WAS NO RETENTION ON ACTIVE DUTY FOR A PART OF A MONTH UNDER THE PROVISIONS OF 5 U.S.C. 47A AS IN THE CASE CONSIDERED IN 38 COMP. GEN. 5.

THE DATE OF HER RETIREMENT WAS SEPTEMBER 1, 1965, AND HER RETIRED PAY WAS FOR COMPUTATION UNDER FORMULA A OF 10 U.S.C. 3991, ON THE BASIS OF THE MONTHLY BASIC PAY AT THE RATE APPLICABLE ON THAT DATE. THE ACT OF AUGUST 21, 1965, BECAME EFFECTIVE SEPTEMBER 1, 1965, AND THUS HER MONTHLY RETIRED PAY SHOULD BE COMPUTED ON THE MONTHLY BASIC PAY RATE THERE PROVIDED FOR HER GRADE OF MAJOR WITH OVER 23 YEARS OF SERVICE, MULTIPLIED BY 2 1/2 PERCENT TIMES 27 YEARS OF SERVICE CREDITED HER UNDER 10 U.S.C. 3927 (B/--- $804 TIMES 67 1/2 PERCENT OR $542.70. SINCE IT IS UNDERSTOOD THAT MAJOR WALDRON WAS ONLY PAID $474 FOR THE MONTH OF SEPTEMBER 1965, THE CORRECTED VOUCHER IN THE AMOUNT OF $68.70, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.