B-163525, MAR. 21, 1968

B-163525, MAR. 21, 1968

TO LIEUTENANT COLONEL J. R. KELLIHER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 29, 1967 (ALRA-1), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $289.94 IN FAVOR OF CHIEF WARRANT OFFICER CHARLES BRESKE, USAF, RETIRED, REPRESENTING RETIRED PAY WITHHELD FOR THE PERIOD FROM MAY 15 THROUGH JUNE 30, 1967, UNDER THE CIRCUMSTANCES DESCRIBED THEREIN. YOUR LETTER WAS FORWARDED HERE UNDER THE DATE OF FEBRUARY 8, 1968, BY THE DIRECTORATE OF ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-961 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. AC-10601, DATED MAY 24, 1965, MR. BRESKE WAS RETIRED EFFECTIVE JULY 29, 1965, IN THE GRADE OF CAPTAIN BECAUSE OF PHYSICAL DISABILITY RATED AT 30 PERCENT. SUCH ACTION WAS TAKEN PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1201. ON JULY 28, 1965, HE WAS SERVING ON ACTIVE DUTY AS A REGULAR CHIEF WARRANT OFFICER, W-4, AND ALSO HELD A COMMISSION AS CAPTAIN, UNITED STATES AIR FORCE RESERVE. HE HAD 28 YEARS, 1 MONTH AND 16 DAYS OF ACTIVE SERVICE FOR RETIREMENT AND 28 YEARS, 6 MONTHS AND 1 DAY OF SERVICE FOR BASIC PAY PURPOSES. THUS, HE ALSO QUALIFIED FOR RETIREMENT ON A YEARS OF SERVICE BASIS UNDER THE PROVISIONS OF 10 U.S.C. 1293. HE IS BEING PAID RETIRED PAY BASED ON THE REGULAR WARRANT OFFICER GRADE HE HELD IMMEDIATELY PRIOR TO RETIREMENT.

UPON BEING ADVISED THAT MR. BRESKE BECAME A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY EFFECTIVE MAY 15, 1967, HIS RETIRED PAY WAS REDUCED AS OF THAT DATE IN ACCORDANCE WITH 5 U.S.C. 5532 AND OUR DECISION B-157665 OF DECEMBER 6, 1966, 46 COMP. GEN. 549. HOWEVER, DOUBT IS EXPRESSED AS TO WHETHER HE IS SUBJECT TO THE PROVISIONS OF 5 U.S.C. 5532 AND YOU REQUEST A DECISION IN THE MATTER.

THE REDUCTION FORMULA PROVIDED BY 5 U.S.C. 5532 APPLIES ONLY TO "A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE.' WHEN MR. BRESKE WAS RETIRED FOR PHYSICAL DISABILITY UNDER 10 U.S.C. 1201, HE WAS ENTITLED UNDER 10 U.S.C. 1372 (1) TO THE HIGHEST GRADE OR RANK IN WHICH HE WAS SERVING ON THE DATE WHEN HE WAS RETIRED. SINCE HE HELD A COMMISSION AS CAPTAIN IN THE AIR FORCE RESERVE AT THAT TIME, HE WAS ACTUALLY RETIRED IN THAT GRADE UNDER THE RULE IN THE CASE OF JAKWAY V UNITED STATES, 146 CT. CL. 482 (1959). WE ARE FOLLOWING THE COURT'S DECISION IN THAT CASE. SEE 39 COMP. GEN. 855.

ON RETIREMENT CAPTAIN BRESKE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA 1 OF 10 U.S.C. 1401 ON THE MONTHLY BASIC PAY OF A CAPTAIN WITH OVER 26 YEARS OF SERVICE. SINCE HE WAS ALSO QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 1293, HE WAS ENTITLED UNDER THE INTRODUCTORY CLAUSE OF 10 U.S.C. 1401 TO HAVE HIS RETIRED PAY COMPUTED ON THE MONTHLY BASIC PAY OF A CHIEF WARRANT OFFICER, W-4, WITH OVER 26 YEARS OF SERVICE UNDER FORMULA 4 OF THE TABLE THERE PROVIDED, IF THAT FORMULA WAS MOST FAVORABLE TO HIM. 39 COMP. GEN. 715. IN HIS CASE, FORMULA 4 WAS THE MOST FAVORABLE.

WHILE FORMULA 4 APPLIES EXCLUSIVELY TO WARRANT OFFICERS, A PERSON QUALIFIED FOR RETIREMENT UNDER ONE OF THE SECTIONS TO WHICH THAT FORMULA APPLIES MAY HAVE HIS RETIRED PAY COMPUTED ON THAT BASIS WITHOUT AFFECTING HIS GRADE OR STATUS ON THE RETIRED LIST SINCE 10 U.S.C. 1401 APPLIES ONLY TO THE RATE OF PAY AND NOT A PERSON'S GRADE. PURSUANT TO 10 U.S.C. 1372 (1) AS INTERPRETED BY THE COURT OF CLAIMS, CAPTAIN BRESKE RETIRED AS A RESERVE COMMISSIONED OFFICER IN THE GRADE OF CAPTAIN IN WHICH HE WAS "SERVING" ON THE DATE HE WAS RETIRED AND THE METHOD BY WHICH HIS RETIRED PAY IS AUTHORIZED TO BE COMPUTED DOES NOT AFFECT THAT GRADE AND STATUS ON THE RETIREMENT LIST. AS A RETIRED RESERVIST HE IS EXEMPT FROM THE PROVISIONS OF 5 U.S.C. 5532.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.