B-161673, AUG. 2, 1967

B-161673, AUG. 2, 1967

ARMED SERVICES - RETIRED PAY - ADJUSTMENT DECISION TO ARMY FINANCE OFFICER CONCERNING PROPRIETY OF ADJUSTMENT IN RETIRED PAY BETWEEN 10 U.S.C. 1331-1337 AND 10 U.S.C. 3914. MEMBER WHO WAS QUALIFIED AND COULD HAVE OBTAINED RETIRED STATUS UNDER 10 U.S.C. 3914 WHEN HE APPLIED FOR BENEFITS UNDER 1331, MAY BE CONSIDERED TO HAVE MADE A SELECTION OF BENEFITS UNDER SEC. 1331 OVER THOSE HE WAS ELIGIBLE TO RECEIVE UNDER 3914 AND FACT THAT ARMY SOUGHT TO IMPLEMENT HIS APPLICATION BY EFFECTING-DISCHARGE AND ISSUING LETTER ORDERS DID NOT ENTITLE HIM TO RETIRED PAY. THEREFORE UNLESS RECORD IS CORRECTED TO GIVE RISE TO HIS ENTITLEMENT TO RETIRED PAY AS AN ENLISTED MAN UNDER 10 U.S.C. 3914 AND 3991 OR AS AN OFFICER UNDER 10 U.S.C. 1331 AND 1401 NO ADJUSTMENT MAY BE MADE. MERRILL V. U.S. 168 CT. CL. 1 (1964)

TO LIEUTENANT COLONEL FRANK BERRISH, FC, DIRECTOR, FINANCE AND ACCOUNTING OPERATIONS, THROUGH OFFICE OF THE COMPTROLLER OF THE ARMY, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1966, FORWARDED HERE MAY 29, 1967, UNDER D. O. NUMBER A 953 (ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES COMMITTEE), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER STATED IN FAVOR OF MAVER J. CAMPBELL IN THE AMOUNT OF $228.20 REPRESENTING THE DIFFERENCE IN RETIRED PAY ENTITLEMENT UNDER 10 U.S.C. 1331-1337 AND 10 U.S.C. 3914.

IT APPEARS THAT FOLLOWING SERVICE AS A MEMBER OF THE NATIONAL GUARD AND THE OFFICERS' RESERVE CORPS, MR. CAMPBELL WAS ORDERED TO ACTIVE DUTY ON FEBRUARY 18, 1942. HE THEREAFTER SERVED ON ACTIVE DUTY IN A COMMISSIONED OFFICER STATUS IN THE ARMY OF THE UNITED STATES UNTIL HIS RELEASE ON MARCH 31, 1950. HE ENLISTED IN THE REGULAR ARMY ON APRIL 1, 1950, AND THEREAFTER SERVED CONTINUOUSLY AS AN ENLISTED MAN UNDER CONSECUTIVE ENLISTMENTS UNTIL HIS ULTIMATE DISCHARGE ON FEBRUARY 28, 1966. APPARENTLY, HE WAS ADVANCED TO THE RANK OF MAJOR, USAR, ON OCTOBER 14, 1952, AND WAS TRANSFERRED TO THE RETIRED RESERVE ON MARCH 3, 1960.

IT APPEARS THAT MR. CAMPBELL HAD REQUISITE ACTIVE SERVICE (OVER 24 YEARS) TO MAKE HIM ELIGIBLE FOR RETIREMENT AS AN ENLISTED MAN UNDER 10 U.S.C. 3914 AT THE TIME OF HIS DISCHARGE. LETTER ORDERS OF MARCH 8, 1966, PURPORTED TO PLACE HIM ON THE AUS RETIRED LIST UNDER 10 U.S.C. 1331 EFFECTIVE MARCH 1, 1966, IN THE GRADE OF MAJOR. YOU REPORT THAT HE WAS PAID RETIRED PAY AT THE RATE OF $533.29 PER MONTH COMMENCING MARCH 1, 1966, BUT THAT SUCH PAY WAS REDUCED TO $307.26 EFFECTIVE SEPTEMBER 1, 1966, THE LATTER AMOUNT BEING 60 PERCENT (2 1/2 PERCENT TIMES 24 YEARS' ACTIVE SERVICE) OF THE BASIC PAY OF HIS ENLISTED GRADE, E-7, WITH OVER 30 YEARS OF SERVICE FOR BASIC PAY PURPOSES.

SECTION 1331 PROVIDES THAT AN OTHERWISE QUALIFIED PERSON IS NOT ENTITLED TO THE RETIRED PAY THERE AUTHORIZED IF HE IS ENTITLED TO RETIRED PAY "UNDER ANY OTHER PROVISION OF LAW.' BASED ON THE LEGISLATIVE HISTORY OF THE PROVISIONS OF LAW FROM WHICH SECTION 1331 WAS DERIVED--DISCLOSING THAT AN AMENDMENT TO THE THEN PROPOSED LEGISLATION WAS REJECTED WHICH WOULD HAVE PERMITTED THE SELECTION BY AN INDIVIDUAL OF THE TYPE OF RETIRED PAY HE WISHED TO RECEIVE--WE CONCLUDED IN OUR DECISION OF JANUARY 15, 1962, B- 147716, 41 COMP. GEN. 458, THAT THE CONGRESS INTENDED THAT SUCH LEGISLATION SHOULD BE APPLICABLE ONLY TO RESERVE MEMBERS AND FORMER MEMBERS WHO WERE NOT COVERED BY ANY OTHER RETIREMENT LAW. WE THERE EXPRESSED THE VIEW THAT IN ENACTING SUCH LEGISLATION THE CONGRESS DID NOT INTEND TO ENHANCE THE RIGHTS OF PERSONS ON THE RETIRED LIST OR OTHERS WHO MIGHT BECOME ENTITLED TO RETIRED PAY UNDER SOME OTHER PROVISION OF LAW, OR TO PROVIDE AN ALTERNATE METHOD OF COMPUTING RETIRED PAY IF CIRCUMSTANCES SHOULD MAKE A CHANGE ADVANTAGEOUS.

LANGUAGE EXPRESSING OUR CONCLUSIONS IN THE DECISION OF JANUARY 15, 1962, WAS QUOTED WITH APPROVAL BY THE COURT OF CLAIMS IN THE CASE OF MERRILL V. UNITED STATES, 168 CT. CL. 1 (1964) THE WORDS "NOT ENTITLED" IN SECTION 1331/A) (4) WERE INTERPRETED BY THE COURT TO MEAN "NOT ALIFIED," "NOT ELIGIBLE" OR "NOT ABLE TO OBTAIN.'

SINCE MR. CAMPBELL WAS QUALIFIED FOR AND COULD HAVE OBTAINED A RETIRED STATUS UNDER SECTION 3914 WHEN HE MADE APPLICATION FOR THE RETIRED PAY BENEFITS OF SECTION 1331, NO RETIRED PAY RIGHTS COULD ACCRUE TO HIM UNDER SECTION 1331. HIS APPLICATION MAY NOT BE CONSIDERED A SELECTION OF BENEFITS UNDER SECTION 1331 OVER THOSE HE WAS ELIGIBLE TO RECEIVE BY RETIREMENT UNDER SECTION 3914. THE FACT THAT THE DEPARTMENT OF THE ARMY SOUGHT TO IMPLEMENT HIS APPLICATION BY EFFECTING HIS DISCHARGE AND ISSUING THE LETTER ORDERS OF MARCH 8, 1966, DID NOT INCREASE HIS RIGHTS IN ANY WAY. SUCH ADMINISTRATIVE ACTION DID NOT ENTITLE HIM TO RETIRED PAY.

ACCORDINGLY, PAYMENT ON THE VOUCHER, RETAINED HERE, IS NOT AUTHORIZED AND NO FURTHER PAYMENTS OF RETIRED PAY SHOULD BE MADE TO MR. CAMPBELL UNLESS HIS RECORD IS CORRECTED UNDER 10 U.S.C. 1552 IN SUCH A MANNER AS TO GIVE RISE TO HIS ENTITLEMENT TO RETIRED PAY AS AN ENLISTED MAN UNDER 10 U.S.C. 3914 AND 3991 OR AS AN OFFICER UNDER 10 U.S.C. 1331 AND 1401.