B-163770, APRIL 15, 1968, 47 COMP. GEN. 549

B-163770, APRIL 15, 1968, 47 COMP. GEN. 549

PAY - INCREASES - EFFECTIVE DATE - UNDER PUBLIC LAW 90-207 MEMBERS OF THE UNIFORMED SERVICES ENTITLED PURSUANT TO PUBLIC LAW 90 207, APPROVED DECEMBER 16, 1967, TO PAY INCREASES COMPARABLE TO THOSE PRESCRIBED FOR CIVILIAN EMPLOYEES UNDER THE FEDERAL SALARY ACT OF 1967, THE SECOND OF A THREE-STAGE UPWARD ADJUSTMENT THAT IS EFFECTIVE FOR CIVILIAN EMPLOYEES ON THE "FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1968," MAY BE MADE EFFECTIVE FOR MILITARY PERSONNEL ON JULY 1, 1968, AS THE MONTHLY PAY BASIS FIXED BY 37 U.S.C. 203 (A) MEETS THE STANDARD THAT THE PAY INCREASE FOR BOTH CIVILIAN AND MILITARY PERSONNEL COMMENCE ON THE FIRST DAY OF THE FIRST PAY PERIOD STARTING JULY 1, 1968. PAY - RETIRED - INCREASES - UNDER PUBLIC LAW 90-207 WHILE PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967, WHICH PRESCRIBES PAY INCREASES FOR MEMBERS OF THE UNIFORMED SERVICES COMPARABLE TO THOSE PROVIDED FOR CIVILIAN EMPLOYEES BY THE FEDERAL SALARY ACT OF 1967, DOES NOT INDICATE THAT ALL MEMBERS RETIRED ON JULY 1, 1968, WILL BE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED AT THE INCREASED RATES TO BE ESTABLISHED BY THE ACT, IN COMPUTING THE RETIRED PAY OF MEMBERS WHO WILL RETIRE ON JULY 1, 1968 UNDER DIFFERENT PROVISIONS OF LAW, THE PRINCIPLES IN 43 COMP. GEN. 425 AND 44 COMP. GEN. 373; ID. 584, ARE FOR APPLICATION.

TO THE SECRETARY OF DEFENSE, APRIL 15, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 6, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO THE EFFECTIVE DATE OF THE UPWARD ADJUSTMENT OF BASIC PAY OF MILITARY PERSONNEL AUTHORIZED BY SECTION 8 OF PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967, 81 STAT. 649, 654, 37 U.S.C. 203 NOTE. IN THE EVENT IT IS HELD THAT THE EFFECTIVE DATE OF THE MILITARY PAY INCREASE IS JULY 1, 1968, A SECOND QUESTION IS ASKED AS TO THE RATE OF BASIC PAY TO BE USED IN COMPUTING THE RETIRED PAY OF MEMBERS RETIRED ON THAT DATE. THE QUESTIONS ARE DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 410.

AN INCREASE IN BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES WAS AUTHORIZED IN PUBLIC LAW 90-207 "EFFECTIVE AS OF OCTOBER 1, 1967.' THIS LAW FURTHER PROVIDES IN SECTION 8 (A) THAT WHENEVER THE GENERAL SCHEDULE OF COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES IS ADJUSTED UPWARDS,"THERE SHALL IMMEDIATELY BE PLACED INTO EFFECT A COMPARABLE UPWARD ADJUSTMENT IN THE MONTHLY BASIC PAY AUTHORIZED MEMBERS OF THE UNIFORMED SERVICES BY SECTION 203 (A) OF TITLE 37, UNITED STATES CODE.' SECTION 8 (B) PROVIDES IN PART THAT SUCH UPWARD ADJUSTMENT SHALL "/2) CARRY THE SAME EFFECTIVE DATE AS THAT APPLYING TO THE COMPENSATION ADJUSTMENTS PROVIDED GENERAL SCHEDULE EMPLOYEES.'

TITLE II OF THE FEDERAL SALARY ACT OF 1967, PUBLIC LAW 90-206, DATED DECEMBER 16, 1967, 81 STAT. 624, PROVIDED AMONG OTHER THINGS, FOR AN INCREASE IN COMPENSATION FOR FEDERAL CLASSIFIED EMPLOYEES UNDER THE GENERAL SCHEDULE TO "BECOME EFFECTIVE AS OF THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER OCTOBER 1, 1967.' SEE SECTION 220 (A) (2) OF PUBLIC LAW 90-206, 5 U.S.C. 5332 NOTE. THIS WAS THE FIRST STAGE OF A THREE-STAGE PAY RAISE PROGRAM PROVIDED IN THE LAW. IN IMPLEMENTING THE CIVILIAN SALARY COMPARABILITY POLICY IN 1968 AND 1969, THE LAW PROVIDES IN SECTION 212, 5 U.S.C. 5304 NOTE, FOR A SECOND ADJUSTMENT OF THE RATES OF CIVILIAN PAY, AS THERE INDICATED, TO BE "/1) EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1968," AND A THIRD ADJUSTMENT TO BE MADE "/2) EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1969.'

THE QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 410 ARE AS FOLLOWS:

1. WHAT WOULD BE THE EFFECTIVE DATE OF ANY UPWARD ADJUSTMENT IN THE MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES AUTHORIZED BY SECTION 8 OF PUBLIC LAW 90-207?

2. IN THE EVENT THAT 1 JULY 1968 IS THE ANSWER TO QUESTION 1 AND IN THE ABSENCE OF DEFINITIVE LEGISLATION WHICH WOULD ENTITLE ALL MEMBERS RETIRED ON SUCH DATE TO HAVE THEIR RETIRED PAY COMPUTED ON SUCH INCREASED RATES, WOULD THE PRINCIPLES APPLIED IN 43 COMP GEN 425 AND 44 COMP GEN 373; ID. 584 BE FOR APPLICATION IN THE COMPUTATION OF THE RETIRED PAY OF SUCH MEMBERS?

THE ASSISTANT SECRETARY IN HIS LETTER POINTS OUT THAT THE BEGINNING DATE OF PAY PERIODS OF CIVILIAN EMPLOYEES IS NOT UNIFORM FOR ALL GOVERNMENT AGENCIES. IN VIEW THEREOF, AND THE FACT THAT INCREASES IN PAY AND ALLOWANCES OF MILITARY PERSONNEL ARE FIXED BY STATUTE ON A MONTHLY BASIS AND TRADITIONALLY HAVE BEEN EFFECTIVE ON THE FIRST OF THE MONTH, THE VIEW IS EXPRESSED THAT WHATEVER DOUBT MAY EXIST SHOULD BE RESOLVED IN FAVOR OF A JULY 1, 1968, EFFECTIVE DATE. SUCH RESOLUTION OF THE MATTER, THE ASSISTANT SECRETARY SAYS, WOULD PRECLUDE THE ENORMOUS ADMINISTRATIVE WORKLOAD OF TWO SEPARATE COMPUTATIONS OF PAY AND ALLOWANCE FOR THE MONTH OF JULY. THE VIEW IS ALSO EXPRESSED THAT IN THE LIGHT OF OUR DECISIONS (CITED IN QUESTION 2 OF COMMITTEE ACTION NO. 410), MEMBERS RETIRED ON JULY 1, 1968, WOULD HAVE THEIR RETIRED PAY COMPUTED ON EITHER THE INCREASED RATES OF BASIC PAY EFFECTIVE JULY 1 OR ON THE OLD RATES IN EFFECT ON JUNE 30, DEPENDING ON THE PARTICULAR LAW UNDER WHICH RETIRED.

IN SUPPORT OF THE VIEW THAT JULY 1, 1968, THE FIRST DAY OF A PAY PERIOD FOR ALL MILITARY SERVICES, IS THE INTENDED EFFECTIVE DATE FOR THE MILITARY PAY RAISE, COMMITTEE ACTION NO. 410 REFERS TO CERTAIN REMARKS MADE IN REPORTS OF THE ARMED SERVICES COMMITTEES OF THE SENATE AND HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 13510 WHICH BECAME THE MILITARY PAY INCREASE LAW, PUBLIC LAW 90-207. ON PAGE 14 OF H. REPT. NO. 787, DATED OCTOBER 17, 1967, THE STATEMENT IS MADE THAT:

THE FOREGOING PROVISIONS IN H.R. 7977 (WHICH BILL ULTIMATELY BECAME THE CIVILIAN PAY INCREASE LAW, PUBLIC LAW 90-206), THEREFORE, IF ENACTED INTO LAW, REQUIRE AN AUTOMATIC ADJUSTMENT IN COMPENSATION OF CLASSIFIED EMPLOYEES EFFECTIVE JULY 1, 1968, AND A SUBSEQUENT INCREASE ON APRIL 1, 1969. IT IS STATED ON PAGE 22 OF S. REPT. NO. 808, DATED NOVEMBER 28, 1967, THAT "LEGISLATION ON CIVILIAN PAY WHICH HAS PASSED THE HOUSE AND IS PRESENTLY UNDER CONSIDERATION IN THE SENATE PROVIDES NOT ONLY FOR CIVILIAN INCREASE EFFECTIVE OCTOBER 1, 1967, BUT FOR ADDITIONAL AUTOMATIC INCREASES TO BE EFFECTIVE BEGINNING JULY 1, 1968, AND JULY 1, 1969.'

SINCE THE RATES OF BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES ARE FIXED ON A MONTHLY BASIS (37 U.S.C. 203 (A) (, AND SINCE IT SEEMS CLEAR THAT THE CONGRESS INTENDED THE PAY INCREASE FOR BOTH CIVILIAN AND MILITARY PERSONNEL TO COMMENCE ON THE FIRST DAY OF THE FIRST PAY PERIOD STARTING ON OR AFTER JULY 1, 1968, JULY 1, 1968, IS THE DATE THAT MEETS THAT STANDARD FOR MILITARY PERSONNEL. HENCE, WE CONCUR WITH THE VIEWS EXPRESSED BY THE ASSISTANT SECRETARY THAT, FOR THE PURPOSES OF SECTION 8 (B) (2) OF PUBLIC LAW 90-207, THE EFFECTIVE DATE FOR THE MILITARY PAY INCREASE SHOULD BE JULY 1, 1968. QUESTION 1 IS ANSWERED ACCORDINGLY.

WITH RESPECT TO QUESTION 2, COMMITTEE ACTION NO. 410 POINTS OUT THAT PUBLIC LAW 88-422 DATED AUGUST 12, 1964, 78 STAT. 395, 37 U.S.C. 203, WHICH PROVIDED AN INCREASE IN THE RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES, CONTAINED NO PROVISION TO THE EFFECT THAT ALL MEMBERS RETIRED ON ITS EFFECTIVE DATE SHOULD BE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE INCREASED RATES. IN THIS RESPECT, SECTION 6 OF PUBLIC LAW 90-207, 10 U.S.C. 1401, PROVIDES THAT A MEMBER OR FORMER MEMBER WHO INITIALLY BECOMES ENTITLED TO RETIRED OR RETAINER PAY "ON OR AFTER OCTOBER 1, 1967," IS ENTITLED TO HAVE THAT PAY COMPUTED ON THE INCREASED RATES THERE PRESCRIBED. IN A SECTIONAL ANALYSIS OF PUBLIC LAW 90-207, IT IS STATED ON PAGE 21 OF S. REPT. NO. 808, DATED NOVEMBER 28, 1967, CONCERNING THE EFFECT OF SECTION 6 AS FOLLOWS:

THIS PROVISION WILL ENTITLE MEMBERS OF THE UNIFORMED SERVICES WHOSE RETIREMENT BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967, TO COMPUTE THEIR RETIRED PAY ENTITLEMENT ON THE BASIS OF THE HIGHER BASIC PAY PROPOSED IN THE BILL.

IN THE ABSENCE OF THIS PROVISION SUCH A RETIRED MEMBER WOULD BE REQUIRED, UNDER THE PROVISIONS OF SECTION 1401 OF TITLE 10, UNITED STATES CODE, TO UTILIZE, IN THE COMPUTATION OF HIS RETIREMENT PAY, THE BASIC PAY "TO WHICH HE WAS ENTITLED ON THE DAY BEFORE RETIREMENT.'

THE DATE OF RETIREMENT IS ORDINARILY GOVERNED BY THE "UNIFORMED RETIREMENT ACT," 5 U.S.C. 8301, WHICH PROVIDES THAT "RETIREMENT AUTHORIZED BY STATUTE IS EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.'

WHILE THE FOREGOING STATEMENT INDICATES THAT IN THE ABSENCE OF LANGUAGE SUCH AS THAT CONTAINED IN SECTION 6 OF PUBLIC LAW 90-207, THERE WOULD BE NO BASIS FOR COMPUTING RETIRED PAY AT THE INCREASED RATE FOR A MEMBER ENTITLED TO RETIRED PAY "ON OR AFTER OCTOBER 1, 1967," IT DOES NOT NECESSARILY FOLLOW THAT THE ABSENCE OF SIMILAR LANGUAGE RELATING TO MEMBERS WHO WILL RETIRE ON JULY 1, 1968, BARS ALL MEMBERS WHO WILL RETIRE ON THAT DATE FROM COMPUTING THEIR RETIRED PAY ON THE HIGHER RATES OF BASIC PAY WHICH WILL THEN BECOME EFFECTIVE.

WHILE WE FIND NOTHING IN PUBLIC LAW 90-207 OR ITS LEGLISLATIVE HISTORY TO INDICATE THAT ALL MEMBERS WHO WILL RETIRE ON JULY 1, 1968, WILL BE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE INCREASED RATES TO BE ESTABLISHED UNDER SECTION 8 OF THAT LAW--- HAD CONGRESS INTENDED THAT RESULT WE BELIEVE APPROPRIATE LANGUAGE SIMILAR TO SECTION 6 OF THE SAME ACT WOULD HAVE BEEN USED--- IT IS OUR VIEW THAT WITH RESPECT TO COMPUTING RETIRED PAY OF MEMBERS WHO WILL RETIRE ON JULY 1, 1968, UNDER THE DIFFERENT PROVISIONS OF LAW WHICH WILL BE APPLICABLE IN SUCH CASES, THE PRINCIPLES SET FORTH IN OUR DECISIONS NOTED IN QUESTION 2 ARE FOR APPLICATION. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.