B-161264, JULY 26, 1967, 47 COMP. GEN. 74

B-161264: Jul 26, 1967

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1966 IS PLACED AT HIS APPLICATION PURSUANT TO 10 U.S.C. 1293 ON THE RETIRED LIST AS A CHIEF WARRANT OFFICER W-2. IS NOT RESTRICTED TO PAYMENT ON THE BASIS OF HIS "RETIRED GRADE" OR "ANY WARRANT GRADE SATISFACTORILY HELD BY HIM ON ACTIVE DUTY" PRESCRIBED BY FORMULA 4 OF 10 U.S.C. 1401. THE MEMBER MAY BE PAID THE DIFFERENCE BETWEEN THE GRADES FOR THE PERIOD DURING WHICH HE WAS PAID THE LESSER AMOUNT OF RETIRED PAY. 1967: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 17. YOUR REQUEST WAS FORWARDED TO THIS OFFICE ON APRIL 11. YOU STATE THAT CHIEF WARRANT OFFICER NEUDORFF WAS RELIEVED FROM ASSIGNMENT IN HIS ENLISTED GRADE OF SERGEANT MAJOR (E-9) AND DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT ON SEPTEMBER 30.

B-161264, JULY 26, 1967, 47 COMP. GEN. 74

PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD - MOST FAVORABLE FORMULA - ADJUSTMENT OF RETIRED PAY THE RETIRED PAY OF A SERGEANT MAJOR DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT ON SEPTEMBER 30, 1966 IN GRADE E-9 AND ELIGIBLE TO RETIRE IN THAT GRADE, BUT WHO ON OCTOBER 1, 1966 IS PLACED AT HIS APPLICATION PURSUANT TO 10 U.S.C. 1293 ON THE RETIRED LIST AS A CHIEF WARRANT OFFICER W-2, IS NOT RESTRICTED TO PAYMENT ON THE BASIS OF HIS "RETIRED GRADE" OR "ANY WARRANT GRADE SATISFACTORILY HELD BY HIM ON ACTIVE DUTY" PRESCRIBED BY FORMULA 4 OF 10 U.S.C. 1401, THE SECTION ALSO PROVIDING FOR COMPUTATION OF RETIRED PAY ON THE BASIS OF THE MOST FAVORABLE FORMULA FOR PERSONS ENTITLED TO RETIRED PAY UNDER SECTION 1401 AS WELL AS "ANY OTHER PROVISION OF LAW," AND THE RETIRED PAY AT THE ENLISTED E-9 GRADE BEING GREATER THAN THAT PAYABLE AT THE WARRANT OFFICER W-2 GRADE, THE MEMBER MAY BE PAID THE DIFFERENCE BETWEEN THE GRADES FOR THE PERIOD DURING WHICH HE WAS PAID THE LESSER AMOUNT OF RETIRED PAY.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, JULY 26, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1967, YOUR REFERENCE FINCS-E NEUDORFF, KARL A., W2 150 347 (RETIRED), REQUESTING AN ADVANCE DECISION IN THE CASE OF CHIEF WARRANT OFFICER NEUDORFF AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $69.25 REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A SERGEANT MAJOR (E-9) AND A CHIEF WARRANT OFFICER (W-2) FOR THE PERIOD OCTOBER 1, 1966, TO FEBRUARY 28, 1967. YOUR REQUEST WAS FORWARDED TO THIS OFFICE ON APRIL 11, 1967, BY THE OFFICE OF THE CHIEF OF FINANCE AND HAS BEEN ASSIGNED D.O. NO. A-949 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT CHIEF WARRANT OFFICER NEUDORFF WAS RELIEVED FROM ASSIGNMENT IN HIS ENLISTED GRADE OF SERGEANT MAJOR (E-9) AND DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT ON SEPTEMBER 30, 1966, UNDER AUTHORITY OF PARAGRAPH 2-10, ARMY REGULATIONS 635-200. ON OCTOBER 1, 1966, HE WAS PLACED ON THE RETIRED LIST AS A CHIEF WARRANT OFFICER (W 2) UPON HIS OWN APPLICATION UNDER AUTHORITY OF 10 U.S.C. 1293, AS SHOWN BY AN EXTRACT COPY YOU ENCLOSED OF PARAGRAPH 168, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 193 DATED SEPTEMBER 20, 1966. YOU REFER TO ITEM 30 OF AGPZ FORM 977, DATA FOR RETIRED PAY (COPY OF WHICH YOU ALSO ENCLOSED) WHICH INDICATES THAT THE OFFICER WAS ALSO ELIGIBLE FOR RETIREMENT AND RETIRED PAY AS AN ENLISTED MAN UNDER 10 U.S.C. 3914.

YOU FURTHER STATE THAT THE OFFICER IS CREDITED WITH 21 YEARS, 3 MONTHS AND 27 DAYS TOTAL ACTUAL ACTIVE SERVICE AND SERVICE FOR BASIC PAY PURPOSES. YOU SAY THAT HIS GROSS RETIRED PAY ENTITLEMENT OF HIS RETIRED GRADE (CHIEF WARRANT OFFICER W-2) AND YEARS OF SERVICE WAS $285.39 A MONTH FROM OCTOBER 1 THROUGH NOVEMBER 30, 1966, INCREASED TO $295.95 A MONTH BEGINNING DECEMBER 1, 1966. THE GROSS RETIRED PAY ENTITLEMENT OF A SERGEANT MAJOR (E-9) WITH THE SAME SERVICE, HOWEVER, WAS $298.94 A MONTH FROM OCTOBER 1 THROUGH NOVEMBER 30, 1966, AND SUCH PAY WAS INCREASED TO $310 PER MONTH BEGINNING DECEMBER 1, 1966.

UNDER THE PROVISIONS OF 10 U.S.C. 1293, A WARRANT OFFICER WITH AT LEAST 20 YEARS OF ACTIVE SERVICE MAY, AT HIS REQUEST, BE RETIRED. SECTION 1371 OF TITLE 10, U.S. CODE, PROVIDES THAT UNLESS ENTITLED TO A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAW, A WARRANT OFFICER RETIRES "* * * IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE * * * THAT HE HELD ON THE DAY BEFORE THE DATE OF HIS RETIREMENT, OR IN ANY HIGHER WARRANT OFFICER GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY * * *.' SECTION 1371 IS NOT A RETIREMENT STATUTE AND RELATES ONLY TO THE GRADE IN WHICH RETIREMENT IS EFFECTIVE.

FORMULA 4 OF 10 U.S.C. 1401 PROVIDES THAT THE RETIRED PAY OF A PERSON RETIRED UNDER SECTION 1293 SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF HIS "RETIRED GRADE" OR "ANY WARRANT GRADE SATISFACTORILY HELD BY HIM ON ACTIVE DUTY.' SECTION 1401 FURTHER PROVIDES, HOWEVER, THAT "IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.'

UNDER 10 U.S.C. 3914, A REGULAR ENLISTED MAN OF THE ARMY WITH AT LEAST 20 BUT LESS THAN 30 YEARS SERVICE MAY UPON HIS REQUEST BE RETIRED. FORMULA C OF 10 U.S.C. 3991 PROVIDES THAT THE RETIRED PAY OF A PERSON RETIRED UNDER SECTION 3914 SHALL BE COMPUTED ON THE BASIS OF THE "MONTHLY BASIC PAY TO WHICH MEMBER WAS ENTITLED ON DAY BEFORE HE RETIRED.' SECTION 3991 CONTAINS A SAVINGS PROVISION SIMILAR TO SECTION 1401 EXCEPT THAT REFERENCE IS MADE TO "RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR THE TABLE IN SECTION 1401 OF THIS TITLE.'

YOU EXPRESS THE VIEW THAT UNDER THE ABOVE CITED PROVISIONS OF LAW AND THE HOLDING IN 36 COMP. GEN. 399, THERE IS NO AUTHORITY IN THE INSTANT CASE FOR USING THE RATE OF PAY APPLICABLE TO ANY GRADE OTHER THAN THE GRADE SPECIFIED UNDER FORMULA 4, 10 U.S.C. 1401, AND THAT, SINCE THE OFFICER MADE APPLICATION FOR RETIRED PAY IN HIS WARRANT GRADE, HE IS NOT ENTITLED TO RETIRED PAY UNDER ANY OTHER PROVISION OF LAW. YOU FURTHER STATE THAT THE PROVISION IN SECTION 1401 REQUIRING THE PAYMENT OF RETIRED PAY UNDER THE APPLICABLE FORMULA MOST FAVORABLE TO THE MEMBER APPARENTLY CONTEMPLATES SITUATIONS SUCH AS THOSE DISCUSSED IN 37 COMP. GEN. 446 AND 37 COMP. GEN. 794, AND THAT SUCH PROVISION DOES NOT APPEAR TO PERMIT PAYMENT OF THE RETIRED PAY OF AN ENLISTED MEMBER TO A RETIRED RESERVE WARRANT OFFICER SINCE THE OFFICER WOULD NOT BE "OTHERWISE ENTITLED TO RETIRED PAY" BY REASON OF SECTION 3914 UNLESS HE ACTUALLY IS RETIRED AS AN ENLISTED MEMBER.

YOU STATE THAT IT IS THE OPINION OF THE ADJUTANT GENERAL THAT WARRANT OFFICER NEUDORFF IS RETIRED IN A DUAL STATUS AND THAT SECTIONS 1371 AND 1293 OF TITLE 10 DO NOT PRECLUDE HIM FROM RECEIVING RETIRED PAY IN THE GRADE OF SERGEANT MAJOR (E-9), THE ENLISTED GRADE HELD ON ACTIVE DUTY AT TIME OF RETIREMENT.

IN 36 COMP. GEN. 399 CITED BY YOU, WE HAD BEFORE US THE QUESTION OF THE APPLICATION OF THE DUAL OFFICE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62 (1958 ED.), IN THOSE CASES WHERE "THE ARMY HAS PLACED MEMBERS HOLDING BOTH THE REGULAR GRADE OF WARRANT OFFICER AND THE RESERVE RANK OF COMMISSIONED OFFICER ON THE RETIRED LIST IN A DUAL STATUS WITH PAY COMPUTED ON THE BASIS OF WHICHEVER RANK RESULTS IN THE HIGHER PAY.' WE SAID THAT SIMULTANEOUS RETIREMENT AS A REGULAR WARRANT OFFICER (UNDER 10 U.S.C. 1293) AND AS A RESERVE COMMISSIONED OFFICER (UNDER 10 U.S.C. 3911) WAS NOT CONTEMPLATED BY THE LAW. WE WENT ON TO SAY THAT WHILE THE MEMBER MAY BE RETIRED EITHER AS A RESERVE COMMISSIONED OFFICER OR AS A REGULAR WARRANT OFFICER, WHEN HE IS RETIRED IN ONE OF SUCH STATUSES BASED ON 20 YEARS OF ACTIVE SERVICE IT WOULD BE MOST ANOMALOUS IF THE LAW AUTHORIZED HIM TO BE RETIRED IN THE OTHER STATUS, ALSO, BASED UPON THE SAME 20 YEARS OF ACTIVE SERVICE.

FOR THE REASON STATED IN THAT DECISION WE SAID THAT THE PROVISION IN SECTION 1401 DOES NOT PERMIT PAYMENT TO A RETIRED REGULAR WARRANT OFFICER OF THE RETIRED PAY OF A RESERVE COMMISSIONED OFFICER SINCE A PERSON DOES NOT APPEAR TO BE "OTHERWISE ENTITLED TO RETIRED PAY" BY REASON OF SECTION 3911 UNLESS HE ACTUALLY IS RETIRED AS A RESERVE COMMISSIONED OFFICER UNDER THAT SECTION.

UNLIKE THE SITUATION IN 36 COMP. GEN. 399, WARRANT OFFICER NEUDORFF WAS NOT SIMULTANEOUSLY RETIRED AS A WARRANT OFFICER AND AS AN ENLISTED MAN. RATHER, THE RECORD SHOWS THAT HE WAS RETIRED AS A WARRANT OFFICER EVEN THOUGH HE WAS ALSO ELIGIBLE TO RETIRE AS AN ENLISTED MAN. THE MERE FACT THAT HE RETIRED AS A WARRANT OFFICER UPON HIS OWN APPLICATION AFFORDS NO REASON FOR CONCLUDING THAT IN COMPUTING HIS RETIRED PAY HE IS NOT "OTHERWISE ENTITLED TO RETIRED PAY" UNDER ,ANY OTHER PROVISION OF LAW" WITHIN THE MEANING OF SECTION 1401 OF TITLE 10. THE TERM "PERSON" IN SECTION 1401 CLEARLY REFERS TO ANY MEMBER OF THE UNIFORMED SERVICES WHO BECOMES ENTITLED TO RECEIVE RETIRED PAY COMPUTED AS PROVIDED IN THAT SECTION. HENCE, IN ANY CASE WHERE A PERSON, WHETHER ENLISTED, OR COMMISSIONED, OR A WARRANT OFFICER, WHOSE RETIRED PAY MAY BE COMPUTED UNDER SECTION 1401 WOULD, "OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER * * * ANY OTHER PROVISION OF LAW," SUCH PERSON "IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.' COMP. GEN. 715.

IN 37 COMP. GEN. 794, CITED BY YOU, AND 38 COMP. GEN. 715 WE HELD THAT SINCE THE MEMBERS THERE INVOLVED HAD BEEN RETIRED FOR DISABILITY BUT WERE ALSO ENTITLED TO VOLUNTARY RETIREMENT WITH 20 YEARS OF SERVICE UNDER 10 U.S.C. 3911 AND 8911, RESPECTIVELY, THEY WERE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED UNDER WHICHEVER OF THE TWO METHODS GAVE THEM THE GREATEST BENEFITS IN ACCORDANCE WITH SECTION 1401. THE PROVISIONS OF SECTION 1401 ARE NOT LIMITED SOLELY TO SITUATIONS SUCH AS THOSE CONSIDERED IN 37 COMP. GEN. 446 AND 37 ID. 794. ANYTHING STATED IN 36 COMP. GEN. 399 WHICH MAY BE CONSIDERED INCONSISTENT WITH THE VIEWS HERE EXPRESSED, MAY BE DISREGARDED.

SINCE WARRANT OFFICER NEUDORFF WAS ALSO ELIGIBLE TO RETIRE AND RECEIVE RETIRED PAY AS A REGULAR ENLISTED MAN OF THE ARMY WITH OVER 20 YEARS OF SERVICE, HE MAY BE CONSIDERED AS BEING "OTHERWISE ENTITLED TO RETIRED PAY" UNDER "ANOTHER PROVISION OF LAW" WITHIN THE PURVIEW OF SECTION 1401 OF TITLE 10 SO AS TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY OF A SERGEANT MAJOR (E-9) THE GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY ON THE DAY PRIOR TO RETIREMENT IN ACCORDANCE WITH FORMULA C OF SECTION 3991. COMPARE 44 COMP. GEN. 510. ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED THEREON, IF OTHERWISE CORRECT.