B-163384, MAR. 4, 1968

B-163384: Mar 4, 1968

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1967 WHEN HE WAS NOT GIVEN CREDIT FOR ALL ACTIVE SERVICE AS REQUIRED BY 10 U.S.C. 3925 MAY HAVE UNDERPAYMENT OFFSET AGAINST DEBT. FC: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 24. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND WAS ASSIGNED D.O. THE FOLLOWING FACTS ARE SET OUT IN YOUR LETTER. HE WAS PROPERLY PAID RETIRED PAY FOR THE PERIOD NOVEMBER 1. LIEUTENANT HAIGHT'S RETIRED PAY WAS ERRONEOUSLY RECOMPUTED UNDER THE BASIC PAY RATES ESTABLISHED BY THE ACT OF MAY 20. HE WAS PAID ON THAT BASIS AT $183.75 PER MONTH AS INCREASED BY 5 PERCENT EFFECTIVE OCTOBER 1. WHEN LIEUTENANT HAIGHT WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT PURSUANT TO 10 U.S.C. 3964.

B-163384, MAR. 4, 1968

ARMED SERVICE - RETIRED PAY - RE-RETIREMENT DECISION TO ARMY FINANCE OFFICER CONCERNING PROPRIETY OF OFFSET OF UNDERPAYMENT OF RETIRED PAY AGAINST PRIOR OVERPAYMENT. RETIRED ARMY OFFICER WHO HAD DEBT FOR OVERPAYMENT OF RETIRED PAY AS WELL AS UNDERPAYMENT FOR PERIOD FROM JUNE 1, 1967 WHEN HE WAS NOT GIVEN CREDIT FOR ALL ACTIVE SERVICE AS REQUIRED BY 10 U.S.C. 3925 MAY HAVE UNDERPAYMENT OFFSET AGAINST DEBT.

TO LIEUTENANT COLONEL FRANK BERRISH, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 24, 1967, REQUESTING AN ADVANCE DECISION IN THE CASE OF SECOND LIEUTENANT WILLIAM C. HAIGHT, 01 597 121, RETIRED, AS TO WHETHER THE AMOUNT OF $45.12, REPRESENTING ADDITIONAL RETIRED PAY, MAY BE USED AS AN OFFSET AGAINST AN OVERPAYMENT ,TOTALING $522.88," IN THE CIRCUMSTANCES DESCRIBED THEREIN. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND WAS ASSIGNED D.O. NUMBER 983 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FOLLOWING FACTS ARE SET OUT IN YOUR LETTER. LIEUTENANT HAIGHT RETIRED ON OCTOBER 31, 1956, IN THE GRADE OF MASTER SERGEANT, E-7, UNDER THE PROVISIONS OF 10 U.S.C. 3914. ON THAT DATE HE HAD TO HIS CREDIT 20 YEARS AND 28 DAYS OF ACTIVE SERVICE AND 21 YEARS, 3 MONTHS AND 5 DAYS OF SERVICE FOR BASIC PAY PURPOSES. HE WAS PROPERLY PAID RETIRED PAY FOR THE PERIOD NOVEMBER 1, 1956, TO OCTOBER 10, 1961, ON WHICH DATE HE ENTERED ON ACTIVE DUTY AND SERVED THROUGH AUGUST 10, 1962, A TOTAL OF 10 MONTHS AND 1 DAY, THEREBY INCREASING HIS ACTIVE SERVICE TO 20 YEARS, 10 MONTHS AND 29 DAYS AND HIS SERVICE FOR BASIC PAY PURPOSES TO 22 YEARS, 1 MONTH AND 6 DAYS.

UPON RELEASE FROM ACTIVE DUTY, LIEUTENANT HAIGHT'S RETIRED PAY WAS ERRONEOUSLY RECOMPUTED UNDER THE BASIC PAY RATES ESTABLISHED BY THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, AND HE WAS PAID ON THAT BASIS AT $183.75 PER MONTH AS INCREASED BY 5 PERCENT EFFECTIVE OCTOBER 1, 1963, TO $192.94 PER MONTH, AND BY 4.4 PERCENT EFFECTIVE SEPTEMBER 1, 1965, TO $201.43 PER MONTH, UNDER THE PROVISIONS OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210.

ON OCTOBER 3, 1966, WHEN LIEUTENANT HAIGHT WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT PURSUANT TO 10 U.S.C. 3964, HIS RETIRED PAY WAS RECOMPUTED ON THE BASIS OF THE PAY OF THAT GRADE AT THE RATES PROVIDED IN THE 1958 ACT AND HE WAS PAID RETIRED PAY AT THE RATE OF $230.20 PER MONTH, INCREASED BY 3.7 PERCENT EFFECTIVE DECEMBER 1, 1966, TO $238.72. BEGINNING JUNE 1, 1967, HIS PAY WAS REDUCED TO $225.57 PER MONTH, THE RETIRED PAY OF A SECOND LIEUTENANT WITH OVER 14 YEARS OF SERVICE (MAXIMUM RATE) UNDER THE BASIC PAY RATES ESTABLISHED BY THE ACT OF MARCH 31, 1955, CH. 20, 69 STAT. 18, PLUS THE PERCENTAGE INCREASES PROVIDED BY LAW.

FOR THE REASONS SET FORTH IN YOUR LETTER, QUESTION HAS BEEN RAISED AS TO WHETHER LIEUTENANT HAIGHT'S RETIRED PAY COMMENCING DECEMBER 1, 1966, SHOULD HAVE BEEN COMPUTED ON THE BASIS OF THE 1955 PAY RATES WITH CREDIT IN THE PERCENTAGE MULTIPLIER FOR HIS ACTIVE SERVICE IN 1961 AND 1962 WITH THE SUBSEQUENT PERCENTAGE INCREASES PROVIDED BY LAW, OR $236.85 PER MONTH. IN VIEW OF THE DOUBT AS TO THE CORRECT COMPUTATION OF THE INDEBTEDNESS FROM OCTOBER 1, 1963, AND THE AMOUNTS DUE FROM JUNE 1, 1967, YOU REQUEST OUR DECISION IN THE MATTER.

AT THE TIME LIEUTENANT HAIGHT WAS RELEASED FROM ACTIVE DUTY ON AUGUST 10, 1962, HE WAS ENTITLED, UNDER 10 U.S.C. 1402 (A) AS THEN IN EFFECT, TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF 2-1/2 PERCENT OF THE MONTHLY BASIC PAY OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY (MASTER SERGEANT, E-7, WITH OVER 22 YEARS OF SERVICE, OR $319.80, THE RATE PROVIDED IN THE 1955 ACT) FOR EACH YEAR OF THE SUM OF (1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM IN COMPUTING RETIRED PAY AND (2) HIS YEARS OF ACTIVE SERVICE AFTER RETIREMENT, CREDITING A PART OF A YEAR THAT IS 6 MONTHS OR MORE AS A WHOLE YEAR, OR IN HIS CASE 52-1/2 PERCENT, FOR A NEW RATE OF RETIRED PAY AT $167.90 PER MONTH. HE WAS NOT ENTITLED TO RECOMPUTATION OF HIS RETIRED PAY UNDER THE RATES ESTABLISHED BY THE 1958 ACT BECAUSE HIS ACTIVE SERVICE AFTER RETIREMENT DID NOT AMOUNT TO "A PERIOD OF ACTIVE DUTY OF AT LEAST ONE YEAR" AS REQUIRED BY SECTION 3 (B) OF THAT ACT. HAVING BEEN PAID AT THE RATE OF $183.75 A MONTH ($350 TIMES 52-1/2 PERCENT), WE AGREE THAT AN OVERPAYMENT OF $15.85 PER MONTH EXISTS FOR THE PERIOD AUGUST 11, 1962, THROUGH SEPTEMBER 30, 1963, IN THE TOTAL AMOUNT OF $216.62.

BEGINNING OCTOBER 1, 1963, LIEUTENANT HAIGHT WAS ENTITLED TO THE BENEFITS OF SECTION 5 (C) OF THE ACT OF OCTOBER 2, 1963, WHICH PROVIDES AS FOLLOWS:

"/C) A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO RETIRED PAY OR RETAINER PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THE CAREER COMPENSATION ACT OF 1949 BEFORE JUNE 1, 1958, INCLUDING A MEMBER OR FORMER MEMBER WHO IS ENTITLED TO RETIRED PAY UNDER SECTION 7 (B) OR (C) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422 (72 STAT. 130), IS ENTITLED---

"/1) TO HAVE THAT PAY RECOMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER THAT ACT ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT; OR

"/2) TO AN INCREASE OF 5 PERCENT IN THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT; WHICHEVER PAY IS THE GREATER.'

THE CIRCUMSTANCES IN LIEUTENANT HAIGHT'S CASE PARALLEL THOSE OF THE MEMBER INVOLVED IN OUR DECISION OF NOVEMBER 14, 1963, B-152678, 43 COMP. GEN. 442, EXCEPT THAT HIS ACTIVE DUTY AFTER RETIREMENT INCREASED NOT ONLY HIS PERCENTAGE MULTIPLIER BUT ALSO HIS YEARS OF SERVICE FOR BASIC PAY PURPOSES TO PLACE HIM IN A HIGHER LONGEVITY STEP. THE PAY HE WAS ENTITLED TO RECEIVE ON SEPTEMBER 30, 1963, WAS THE RETIRED PAY OF A MASTER SERGEANT WITH OVER 22 YEARS OF SERVICE FOR BASIC PAY PURPOSES. ACCORDINGLY, UNDER SECTION 5 (C) (1), HE WAS ENTITLED TO RETIRED PAY IN THE AMOUNT OF $183.75 PER MONTH ($350 TIMES 52-1/2 PERCENT) AND UNDER SECTION 5 (C) (2) HIS RETIRED PAY ENTITLEDMENT WAS $176.30 ($167.90 PLUS 5 PERCENT). THUS, WE FIND THAT HE WAS ENTITLED TO PAYMENT AT THE RATE OF $183.75 PER MONTH FOR THE PERIOD OCTOBER 1, 1963, THROUGH AUGUST 31, 1965, INSTEAD OF THE $192.94 PER MONTH HE WAS PAID (AN OVERPAYMENT OF $9.19 A MONTH) AND AT THE RATE OF $191.84 A MONTH FROM SEPTEMBER 1, 1965, THROUGH OCTOBER 2, 1966, INSTEAD OF THE $201.43 PER MONTH HE WAS PAID (AN OVERPAYMENT OF $9.59 A MONTH FOR THAT PERIOD).

ON AND AFTER OCTOBER 3, 1966, WHEN LIEUTENANT HAIGHT QUALIFIED FOR ADVANCEMENT ON THE RETIRED LIST PURSUANT TO 10 U.S.C. 3964, HE BECAME ENTITLED TO RECOMPUTATION OF HIS RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 3992 AND SECTION 3 (C) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85- 422, 72 STAT. 128, AS CONSTRUED IN 45 COMP. GEN. 631. UNDER THOSE PROVISIONS HIS RETIRED PAY WAS 2-1/2 PERCENT OF THE MONTHLY BASIC PAY OF THE GRADE TO WHICH ADVANCED, AT THE RATE APPLICABLE ON MAY 31, 1958, FOR EACH OF THE YEARS OF ACTIVE SERVICE CREDITED TO HIM UNDER 10 U.S.C. 3925, AS INCREASED BY THE PERCENTAGES AUTHORIZED BY SUBSEQUENT RETIRED PAY INCREASE LEGISLATION. ON THAT BASIS HE SHOULD HAVE BEEN PAID AT THE RATE OF $228.40 PER MONTH FROM OCTOBER 3, 1966, INCREASED TO $236.85 PER MONTH EFFECTIVE DECEMBER 1, 1966. HE WAS ERRONEOUSLY PAID AT THE RATE OF $230.20 PER MONTH, INCREASED TO $238.72 EFFECTIVE DECEMBER 1, 1966. THUS, IT APPEARS THAT HE WAS OVERPAID AT THE RATE OF $1.80 PER MONTH FOR THE PERIOD OCTOBER 3, 1966, THROUGH NOVEMBER 30, 1966, AND AT THE RATE OF $1.87 PER MONTH FROM DECEMBER 1, 1966, THROUGH MAY 31, 1967. SUCH OVERPAYMENTS TOTAL $568 INSTEAD OF $522.88 AS SHOWN IN YOUR LETTER.

INASMUCH AS RETIRED PAY COMPUTED AT THE RATE OF $225.57 ESTABLISHED AS OF JUNE 1, 1967, DOES NOT GIVE CREDIT FOR ALL OF LIEUTENANT HAIGHT'S ACTIVE SERVICE AS REQUIRED BY 10 U.S.C. 3925, HE HAS BEEN UNDERPAID AT THE RATE OF $11.28 PER MONTH FROM THAT DATE.

ACCORDINGLY, THE AMOUNT OF THE VOUCHER WHICH IS RETURNED HEREWITH, REPRESENTING THE UNDERPAYMENT FOR THE PERIOD FROM JUNE 1, 1967, THROUGH SEPTEMBER 30, 1967, MAY PROPERLY BE USED AS AN OFFSET AGAINST THE INDEBTEDNESS RESULTING FROM THE OVERPAYMENT OF THE OFFICER'S RETIRED PAY DURING THE PERIOD AUGUST 11, 1962, TO MAY 31, 1967.