B-157977, DEC. 2, 1965, 45 COMP. GEN. 303

B-157977, DEC. 2, 1965, 45 COMP. GEN. 303

PAY - RETIRED - EFFECTIVE DATE - FIRST OF MONTH FOLLOWING APPLICATION A COAST GUARD ENLISTED MEMBER RETIRED IN AUGUST 1965 UNDER 14 U.S.C. 355 UPON COMPLETION OF MORE THAN 20 YEARS OF SERVICE WHO PURSUANT TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, IS VOLUNTARILY RETIRED SEPTEMBER 1, 1965, IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE BASIC PAY RATES ESTABLISHED BY THE ACT OF AUGUST 21, 1965, EFFECTIVE SEPTEMBER 1, 1965--- THE FIRST DAY OF THE FIRST CALENDAR MONTH BEGINNING AFTER DATE OF ENACTMENT--- THE MEMBER HAVING TAKEN NO ACTION TO DELAY RETIREMENT LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING ELIGIBILITY FOR RETIREMENT, ABSENT EXEMPTION FROM THE UNIFORM RETIREMENT DATE ACT, THAT ACT APPLIES, AND THE MEMBER IS ENTITLED TO RETIRED PAY ON SEPTEMBER 1, 1965 AT THE RATE OF RETIRED PAY EFFECTIVE ON THE DATE HIS RETIREMENT WOULD HAVE OCCURRED IN AUGUST 1965 BUT FOR THE UNIFORM RETIREMENT DATE ACT.

TO C. C. GORDON, UNITED STATES COAST GUARD, DECEMBER 2, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 3, 1965, REQUESTING A DECISION AS TO WHETHER OR NOT THE RETIRED PAY OF ROY L. GRAHAM, 271 785, CS1, U.S. COAST GUARD, RETIRED, WHO WAS VOLUNTARILY RETIRED ON SEPTEMBER 1, 1965, MAY BE COMPUTED ON THE BASIC PAY RATES ESTABLISHED BY THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 545.

YOU SAY THAT MR. GRAHAM WAS RETIRED UNDER THE AUTHORITY CONTAINED IN 14 U.S.C. 355, AFTER COMPLETION OF 20 YEARS AND 2 DAYS OF SERVICE. HIS RETIRED PAY HAS BEEN COMPUTED AND PAID BASED ON THE BASIC PAY RATES IN EFFECT PRIOR TO SEPTEMBER 1, 1965. SINCE HE FIRST BECAME ELIGIBLE FOR VOLUNTARY RETIREMENT DURING AUGUST 1965, YOU REQUEST A DECISION AS TO WHETHER OR NOT THE LANGUAGE CONTAINED IN 14 U.S.C. 423 MAY BE APPLIED TO COAST GUARD MEMBERS IN THE SAME MANNER AS FORMULA C OF 10 U.S.C. 3991 WAS APPLIED IN THE CASE OF U.S. ARMY MEMBERS IN OUR DECISION IN 44 COMP. GEN. 373.

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A, PROVIDES THAT ALL RETIREMENTS SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE BUT THAT THE RATE OF RETIRED PAY MUST BE COMPUTED AS OF THE DATE THE RETIREMENT WOULD HAVE OCCURRED IF THAT ACT HAD NOT BEEN ENACTED. WHERE A MEMBER IS RETIRED FOR REASONS OTHER THAN DISABILITY AND SUCH RETIREMENT WOULD OTHERWISE BE EFFECTED 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. 43 COMP. GEN. 425; 9 ID. 512; 10 ID. 28; 35 ID. 633.

WE HELD IN OUR JANUARY 5, 1965, DECISION THAT SECTION 6 (8) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 129, 10 U.S.C. 3991, EFFECTED A SUBSTANTIVE CHANGE IN THE LAW IN A MANNER WHICH SUGGESTS THAT THE LAST CLAUSE OF THE UNIFORM RETIREMENT DATE ACT IS NOT FOR APPLICATION TO ENLISTED MEN COVERED BY FORMULA C OF 10 U.S.C. 3991. THUS ARMY ENLISTED MEN RETIRED UNDER 10 U.S.C. 3914 EFFECTIVE SEPTEMBER 1, 1964, WERE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT REGARDLESS OF WHETHER THEY FIRST QUALIFIED FOR SUCH RETIREMENT IN AUGUST 1964 OR PRIOR THERETO.

SECTION 355, TITLE 14, U.S. CODE, UNDER WHICH MR. GRAHAM WAS RETIRED, PROVIDES:

ANY ENLISTED MAN WHO HAS COMPLETED TWENTY YEARS' SERVICE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE COMMANDANT, BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE OR RATING WITH WHICH RETIRED.

SECTION 423, TITLE 14, U.S. CODE, UNDER WHICH HIS RETIRED PAY IS REQUIRED TO BE COMPUTED PROVIDES, IN PERTINENT PART, THAT:

THE RETIRED PAY OF A GRADE OR RATING SHALL BE COMPUTED AT THE RATE OF 2 1/2 PERCENT OF THE SUM OF THE BASIC PAY OF THAT GRADE OR RATING, AND ALL PERMANENT ADDITIONS THERETO INCLUDING LONGEVITY CREDIT TO WHICH THE OFFICER OR ENLISTED MAN CONCERNED WAS ENTITLED AT THE TIME OF RETIREMENT, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF TITLE 10. * * *

MR. GRAHAM TOOK NO ACTION TO HAVE HIS RETIREMENT BECOME EFFECTIVE AT A DATE LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH HE BECAME ELIGIBLE THEREFOR. WE FIND NO PROVISION OF LAW APPLICABLE TO THE COAST GUARD WHICH SPECIFICALLY OR BY IMPLICATION EXEMPTS HIM FROM THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. HE BECAME ENTITLED TO RETIRED PAY ON SEPTEMBER 1, 1965, BY VIRTUE OF THAT ACT. ACCORDINGLY, THERE IS NO AUTHORITY FOR ALLOWANCE OF THE CLAIM FOR THE DIFFERENCE BETWEEN AMOUNT OF RETIRED PAY RECEIVED AND THE AMOUNT OF RETIRED PAY COMPUTED ON THE BASIC PAY RATES ESTABLISHED BY THE 1965 PAY ACT. THE CLAIM FORWARDED WITH YOUR LETTER WILL BE RETAINED HERE.