B-162829, JULY 16, 1968, 48 COMP. GEN. 15

B-162829, JULY 16, 1968, 48 COMP. GEN. 15

PAY - RETIRED - INCREASES - COST-OF-LIVING INCREASES - RETROACTIVE AUTHORITY AN ARMY SERGEANT WHO FOLLOWING RETIREMENT ON JULY 1, 1964, UNDER 10 U.S.C. 3914, SERVES ON ACTIVE DUTY FROM JULY 11, 1966, THROUGH MARCH 23, 1967, RETIRING ON PHYSICAL DISABILITY WITH ENTITLEMENT TO RETIRED PAY COMPUTED UNDER 10 U.S.C. 1402 (D) (2), AND WHO WAS HELD INELIGIBLE TO RECEIVE THE 3.7 CONSUMER PRICE INDEX PERCENTAGE INCREASE IN RETIRED PAY EFFECTIVE DECEMBER 1, 1966, MAY BE PAID A 3.7 PERCENTUM INCREASE FOR THE PERIOD MAY 1, 1967, TO JANUARY 31, 1968, ON THE BASIS HIS RETIRED PAY IS WITHIN THE PURVIEW OF SECTION 2 (B), PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967, AND EFFECTIVE OCTOBER 1, 1967, WHICH AUTHORIZES A COST-OF-LIVING INCREASE, RETROACTIVELY EFFECTIVE FROM DATE OF RETIREMENT, TO THOSE MEMBERS WHO BECAME ENTITLED TO RETIRED PAY ON OR AFTER DECEMBER 1, 1966, BUT BEFORE OCTOBER 1, 1967, AND WHO HAD NOT RECEIVED ANY BENEFIT FROM THE DECEMBER 1, 1966 PERCENTAGE INCREASE.

TO CAPTAIN A. E. VELEZ, DEPARTMENT OF THE ARMY, JULY 16, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1968, REQUESTING AN ADVANCE DECISION CONCERNING THE PAYMENT PROPOSED TO BE MADE ON VOUCHER (FCUSA FORMS 20-41 AND 20-43, ENCLOSURES 1 AND 2 RECEIVED WITH YOUR LETTER), STATED IN FAVOR OF STAFF SERGEANT WOODROW W. KITCHENS, RA 18 110 523, RETIRED, IN THE AMOUNT OF $77.40 REPRESENTING A 3.7 PERCENTUM INCREASE IN HIS RETIRED PAY FOR THE PERIOD MAY 1, 1967, TO JANUARY 31, 1968, INCLUSIVE. YOUR REQUEST WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY WITH TRANSMITTAL LETTER DATED MAY 1, 1968, UNDER D.O. NO. 996, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT KITCHENST WAS RETIRED EFFECTIVE JULY 1, 1964, UPON HIS OWN APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 3914. HE WAS RECALLED TO ACTIVE DUTY EFFECTIVE JULY 11, 1966, AND HE SERVED ON ACTIVE DUTY THROUGH MARCH 23, 1967. HE REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST ON MARCH 24, 1967, HAVING BEEN DETERMINED TO BE PHYSICALLY UNFIT FOR FURTHER MILITARY SERVICE. IT APPEARS THAT HE ELECTED UNDER AUTHORITY OF 10 U.S.C. 1402 (B) TO RECEIVE RETIRED PAY EFFECTIVE FROM MARCH 24, 1967, RECOMPUTED AS PRESCRIBED IN CLAUSE (2) OF 10 U.S.C. 1402 (D) ON THE BASIS OF THE PERCENTAGE OF HIS PHYSICAL DISABILITY (60 PERCENTUM).

WHILE SERVING ON ACTIVE DUTY DURING THE PERIOD FROM JULY 11, 1966 TO MARCH 23, 1967, INCLUSIVE, SERGEANT KITCHENS RECEIVED MONTHLY BASIC PAY IN THE AMOUNT ($387.60) PRESCRIBED IN SECTION 203 (A), TITLE 37, U.S.C. (AS AMENDED EFFECTIVE JULY 1, 1966, BY SECTION 301, PUBLIC LAW 89-501, JULY 13, 1966, 80 STAT. 278), FOR ENLISTED GRADE E-6 WITH OVER 22 YEARS OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES. THUS HE BECAME ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE MARCH 24, 1967, COMPUTED UNDER CLAUSE (2) OF 10 U.S.C. 1402 (D) IN THE AMOUNT OF $232.56 PER MONTH (60 PERCENTUM OF $387.60).

IN DECISION OF DECEMBER 8, 1967, 47 COMP. GEN. 327, REFERRED TO IN YOUR LETTER IT WAS HELD THAT SERGEANT KITCHENS WAS NOT ENTITLED TO THE 3.7 CONSUMER PRICE INDEX PERCENTAGE INCREASE IN RETIRED PAY THAT BECAME EFFECTIVE ON DECEMBER 1, 1966, FOR THE REASON THAT UNDER THE SPECIFIC TERMS OF 10 U.S.C. 1401A (B) AS AMENDED BY SECTION 5 (B) OF PUBLIC LAW 89- 132, AUGUST 21, 1965, 79 STAT. 547, SUCH CONSUMER PRICE INDEX PERCENTAGE INCREASE WAS APPLICABLE ONLY TO THOSE "MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECOME ENTITLED TO THAT PAY" BEFORE DECEMBER 1, 1966. CONSEQUENTLY IT WAS CONCLUDED THAT:

* * * INASMUCH AS SERGEANT KITCHENS DID NOT BECOME ENTITLED TO RETIRED PAY RECOMPUTED ON THE BASIS OF THE (JULY 1) 1966 RATES OF ACTIVE DUTY PAY AT ANY TIME PRIOR TO DECEMBER 1, 1966, NO PROPER BASIS IS PRESENTED TO INCREASE HIS PRESENT RETIRED PAY, $232.56 PER MONTH EFFECTIVE FROM MARCH 24, 1967, BY THE 3.7 CONSUMER PRICE INDEX PERCENTAGE INCREASE THAT BECAME EFFECTIVE ON DECEMBER 1, 1966.

THE VOUCHER YOU NOW SUBMIT FOR AN ADVANCE DECISION PROPOSES TO ALLOW SERGEANT KITCHENS A 3.7 PERCENTAGE INCREASE IN HIS RETIRED PAY FOR THE PERIOD MAY 1, 1967 TO JANUARY 31, 1968, INCLUSIVE, BY REASON OF THE PROVISIONS OF SECTION 2 (B), PUBLIC LAW 90-207, DECEMBER 16, 1967, 81 STAT. 653, 10 U.S.C. 1401A NOTE. SECTION 2 (B) BECAME EFFECTIVE OCTOBER 1, 1967 (SEE SECTION 7 OF THAT ACT, 37 U.S.C. 203 NOTE) AND PROVIDES AS FOLLOWS:

(B) NOTWITHSTANDING SECTION 1401A (D) OF TITLE 10, U.S.C. A PERSON WHO IS A MEMBER OR FORMER MEMBER OF AN ARMED FORCE ON THE DATE OF ENACTMENT OF THIS ACT AND WHO INITIALLY BECAME, OR HEREAFTER INITIALLY BECOMES, ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER NOVEMBER 30, 1966, BUT BEFORE THE EFFECTIVE DATE OF THE NEXT INCREASE AFTER JULY 1, 1966, IN THE RATES OF MONTHLY BASIC PAY PRESCRIBED BY SECTION 203 OF TITLE 37, U.S.C. IS ENTITLED TO HAVE HIS RETIRED PAY OR RETAINER PAY INCREASED BY 3.7 PERCENT, EFFECTIVE AS OF THE DATE OF HIS ENTITLEMENT TO THAT PAY.

AFTER NOTING THAT UNDER THE PROVISIONS OF SECTION 2 (B) THOSE MEMBERS OF THE UNIFORMED SERVICES WHO "INITIALLY" BECAME ENTITLED TO RETIRED PAY ON OR AFTER DECEMBER 1, 1966, BUT BEFORE OCTOBER 1, 1967, WERE ENTITLED TO RECEIVE A 3.7 PERCENTAGE INCREASE IN THEIR RETIRED PAY, YOU POINT OUT HAT:

* * * AS A CONSEQUENCE, IT APPEARS THAT ALL MEMBERS WHO WERE RETIRED BEFORE 30 SEPTEMBER 1967 HAVE NOW BECOME ENTITLED TO THAT PERCENTAGE INCREASE WITH THE SEEMING EXCEPTION OF THOSE MEMBERS WHO WERE RECEIVING RETIRED PAY AND WHO WERE RECALLED TO ACTIVE DUTY BEFORE 30 NOVEMBER 1966 AND WHO REVERTED TO A RETIRED STATUS DURING THE PERIOD 1 DECEMBER 1966 THROUGH 30 SEPTEMBER 1967.

YOU ADD THAT:

* * * THE INCLUSION OF THE WORD "INITIALLY" IN CONNECTION WITH THOSE WHO BECAME OR HEREAFTER BECOMES ENTITLED TO RETIRED PAY AFTER 30 NOVEMBER 1966, BUT BEFORE (OCTOBER 1, 1967) THE EFFECTIVE DATE OF THE NEXT INCREASE AFTER 1 JULY 1966, IN THE RATES OF MONTHLY BASIC PAY, SEEMS TO CONTINUE TO EXCLUDE SUCH MEMBERS.

THE ADVERB "INITIALLY" WAS INSERTED BEFORE THE WORD "BECAME" AND ALSO BEFORE THE WORD "BECOMES" IN SECTION 2 (B) OF H.R. 13510, 90TH CONG. (NOW PUBLIC LAW 90-207), BY THE SENATE COMMITTEE ON ARMED SERVICES. SEE THE SECOND ITEM ON PAGE 2 IN S.REPT. NO. 808, NOVEMBER 28, 1967. IT APPEARS THAT THIS ACTION WAS TAKEN FOR THE PURPOSE OF PRECLUDING THE 3.7 PERCENTAGE INCREASE IN RETIRED PAY THEREIN AUTHORIZED FROM ACCRUING TO PERSONNEL WHO HAD BEEN TRANSFERRED TO THE FLEET RESERVE PRIOR TO DECEMBER 1, 1966, AND WHO LATER WERE FURTHER TRANSFERRED FROM THAT LIST TO THE RETIRED LIST BETWEEN DECEMBER 1, 1966 AND SEPTEMBER 30, 1967, INCLUSIVE. AS EXPLAINED IN THE THIRD PARAGRAPH ON PAGE 12 OF THE SENATE REPORT:

* * * SUCH A PERSON WOULD RECEIVE NO INCREASE UNDER THIS BILL SINCE HE WOULD ALREADY HAVE RECEIVED THE RETIRED PAY INCREASE EFFECTIVE DECEMBER 1, 1966, BY VIRTUE OF HIS INITIAL ENTITLEMENT TO RETAINER PAY.

IRRESPECTIVE OF THE PARTICULAR REASON ABOVE RELATED FOR INSERTING THE ADVERB "INITIALLY" IN SECTION 2 (B) THE PRIMARY PURPOSE OF THAT SECTION WAS TO EXTEND TO THAT GROUP OF MILITARY RETIREES WHO WERE RETIRED ON OR AFTER DECEMBER 1, 1966, AND BEFORE OCTOBER 1, 1967, A 3.7 PERCENTUM INCREASE IN THEIR RETIRED PAY RETROACTIVELY EFFECTIVE FROM THE DATE OF THEIR RETIREMENT. AS STATED IN THE SENATE REPORT (SECOND PARAGRAPH ON PAGE 12):

THE RATIONALE FOR THIS INCREASE IS TO GIVE THEM THE SAME BENEFITS AS THOSE WHO RETIRED BETWEEN JULY 1, 1966, AND DECEMBER 1, 1966, WHO WERE ABLE TO TAKE ADVANTAGE OF BOTH THE STATUTORY INCREASES IN PAY (WHICH BECAME EFFECTIVE JULY 1, 1966) AND CPI INCREASES (WHICH BECAME EFFECTIVE DECEMBER 1, 1966) FOR RETIREMENT PURPOSES.

THE SENATE COMMITTEE COMMENTED ON THE FAVORABLE SITUATION WHICH PERMITTED A MEMBER OF THE UNIFORMED SERVICES WHO, AFTER HAVING RECEIVED AN INCREASE IN ACTIVE DUTY BASIC PAY EFFECTIVE JULY 1, 1966, RETIRED PRIOR TO DECEMBER 1, 1966, AND THEN RECEIVED EFFECTIVE AS OF DECEMBER 1, 1966, THE FULL 3.7 CONSUMER PRICE INDEX PERCENTAGE INCREASE IN HIS RETIRED PAY. THE COMMITTEE FELT THAT THE SAME SITUATION OPERATED INEQUITABLY IN THE CASE OF THOSE MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED AFTER DECEMBER 1, 1966, AND PRIOR TO OCTOBER 1, 1967, SINCE THEY DID NOT RECEIVE ANY BENEFIT FROM THE DECEMBER 1, 1966, CONSUMER PRICE INDEX PERCENTAGE INCREASE IN RETIRED PAY. IT WAS FOR THE BENEFIT OF THIS LATTER GROUP THAT SECTION 2 (B) WAS ENACTED INTO LAW.

AS PREVIOUSLY STATED THIS OFFICE HELD IN THE DECISION OF DECEMBER 8, 1967, THAT IN RECOMPUTING HIS RETIRED PAY EFFECTIVE FROM MARCH 24, 1967, UNDER AUTHORITY OF CLAUSE (2) OF 10 U.S.C. 1402 (D), SERGEANT KITCHENS WAS NOT ENTITLED TO THE 3.7 CONSUMER PRICE INDEX PERCENTAGE INCREASE IN RETIRED PAY WHICH BECAME EFFECTIVE DECEMBER 1, 1966, BECAUSE THE CLEAR AND SPECIFIC LANGUAGE OF 10 U.S.C. 1401A (B), AS AMENDED BY PUBLIC LAW 89-132, RESTRICTED SUCH CONSUMER PRICE INDEX PERCENTAGE INCREASE IN RETIRED PAY TO THOSE MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO HAD BECOME ENTITLED TO RETIRED PAY BEFORE DECEMBER 1, 1966. INHERENT IN THAT HOLDING WAS THE CONCLUSION THAT IF SERGEANT KITCHENS HAD BECOME ENTITLED PRIOR TO DECEMBER 1, 1966, TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THE HIGHEST MONTHLY ACTIVE DUTY BASIC PAY ($387.60 EFFECTIVE JULY 1, 1966) WHICH HE RECEIVED WHILE SERVING ON ACTIVE DUTY, HE WOULD HAVE BEEN ENTITLED TO THE 3.7 CONSUMMER INDEX PERCENTAGE INCREASE IN HIS RETIRED PAY EFFECTIVE FROM DECEMBER 1, 1966.

SERGENT KITCHENS' SITUATION WITH RESPECT TO HIS ELIGIBILITY TO RECEIVE THE DECEMBER 1, 1966, CONSUMER PRICE INDEX PERCENTAGE INCREASE IN HIS RETIRED PAY SEEMS TO INVOLVE THE VERY TYPE OF INEQUITY WHICH SECTION 2 (B) OF PUBLIC LAW 90-207 WAS INTENDED TO CORRECT. MOREOVER, WHILE THE WORDS "INITIALLY" AS NOW CONTAINED IN SECTION 2 (B) HAVE SPECIAL SIGNIFICANCE FOR THOSE MEMBERS OF THE NAVAL SERVICE WHO WERE IN RECEIPT OF RETAINER PAY PRIOR TO DECEMBER 1, 1966, IT DOES NOT APPEAR IMPROPER TO CONCLUDE THAT EFFECTIVE AS OF MARCH 24, 1967, SERGEANT KITCHENS' RETIRED PAY STATUS FELL WITHIN THE PURVIEW OF THE CITED STATUTORY PROVISIONS SINCE HE DID NOT "INITIALLY" BECOME ENTITLED TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THE JULY 1, 1966, RATES OF ACTIVE DUTY BASIC PAY UNTIL AFTER NOVEMBER 30, 1966, AND BEFORE OCTOBER 1, 1967.

ACCORDINGLY, AND IF OTHERWISE CORRECT, THE VOUCHER STATED IN FAVOR OF SERGEANT KITCHENS, IS PROPER FOR PAYMENT AND IS RETURNED HEREWITH TOGETHER WITH ENCLOSURES 3 TO 7, INCLUSIVE. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER IN SUPPORT OF THE PAYMENT MADE THEREON.