B-164747, SEPTEMBER 26, 1968, 48 COMP. GEN. 164

B-164747: Sep 26, 1968

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A RIGHT THAT IS NOT AFFECTED BY DEATH PRIOR TO DECEMBER 16. 1968: FURTHER REFERENCE IS MADE TO LETTER OF JUNE 28. WERE INCREASED BY SECTION 1 (1) OF PUBLIC LAW 90- 207. ALTHOUGH THAT LAW WAS NOT APPROVED UNTIL DECEMBER 16. IT WAS MADE EFFECTIVE. THE FOLLOWING QUESTIONS ARE PRESENTED IN COMMITTEE ACTION NO. 418: 1. 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. IS ENTITLED TO HAVE HIS RETIRED PAY OR RETAINER PAY INCREASED BY 3.7 PERCENT. SUCH CONSUMER PRICE INDEX PERCENTAGE INCREASE IN RETIRED PAY WAS APPLICABLE ONLY TO THOSE MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY BEFORE DECEMBER 1.

B-164747, SEPTEMBER 26, 1968, 48 COMP. GEN. 164

PAY - RETIRED - INCREASES - COST-OF-LIVING INCREASES - DEATH OF MEMBER THE ONE-TIME 3.7 PERCENT COST-OF-LIVING INCREASE AUTHORIZED IN SECTION 2 (B) OF THE MILITARY PAY ACT OF 1967 (PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967), EFFECTIVE OCTOBER 1, 1967, FOR A ,PERSON"- - A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES--- ENTITLED TO RETIRED OR RETAINER PAY AFTER NOVEMBER 30, 1966, BECAUSE SUCH A PERSON DID NOT RECEIVE THE BENEFIT OF THE CONSUMER PRICE INDEX PERCENTAGE INCREASE PROVIDED BY PUBLIC LAW 89- 132 EFFECTIVE DECEMBER 1, 1966 FOR MEMBERS ENTITLED TO RETIRED OR RETAINER PAY BEFORE DECEMBER 1, 1966, DOES NOT APPLY TO MEMBERS RETIRED BETWEEN NOVEMBER 30, 1966 AND SEPTEMBER 29, 1967 WHO DIED BEFORE DECEMBER 16, 1967, THE DATE OF APPROVAL OF THE 1967 ACT, THE WORD "PERSON" IN SECTION 2 (B) REFERRING TO A PERSON LIVING ON DECEMBER 16, 1967. PAY - RETIRED - INCREASES - DEATH OF MEMBER THE BASIC PAY RATES PRESCRIBED BY THE MILITARY PAY ACT OF 1967 (PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967) EFFECTIVE OCTOBER 1, 1967, APPLY IN THE COMPUTATION OF THE RETIRED PAY OF MEMBERS RETIRED ON OR AFTER SEPTEMBER 30, 1967, BUT WHO DIED BEFORE DECEMBER 16, 1967, THE BENEFITS OF SECTION 6 OF THE ACT ACCRUING TO EVERY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO INITIALLY BECAME ENTITLED TO RECEIVE RETIRED OR RETAINER PAY ON OR AFTER OCTOBER 1, 1967, A RIGHT THAT IS NOT AFFECTED BY DEATH PRIOR TO DECEMBER 16, 1967 AND, THEREFORE, THE NEW PAY RATES PRESCRIBED BY THE ACT APPLY FROM OCTOBER 1, 1967, THE EFFECTIVE DATE OF THE ACT, UP TO AND INCLUDING THE DAY OF DEATH OF A MEMBER.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 26, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 28, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION WHETHER IN THE SITUATIONS SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 418, RETIRED PAY PROPERLY MAY BE COMPUTED ON THE RATES OF BASIC PAY PRESCRIBED IN THE MILITARY PAY ACT OF 1967 (PUBLIC LAW 90-207, APPROVED DECEMBER 16, 1967, 81 STAT. 649-655).

THE RATES OF ACTIVE DUTY MONTHLY BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES AS SET FORTH IN THE PAY TABLES CONTAINED IN SECTION 203 (A), TITLE 37, U.S. CODE, WERE INCREASED BY SECTION 1 (1) OF PUBLIC LAW 90- 207. ALTHOUGH THAT LAW WAS NOT APPROVED UNTIL DECEMBER 16, 1967, IT WAS MADE EFFECTIVE, SUBJECT TO CERTAIN RESTRICTIONS, AS OF OCTOBER 1, 1967 (SECTION 7, 37 U.S.C. 203 NOTE).

THE FOLLOWING QUESTIONS ARE PRESENTED IN COMMITTEE ACTION NO. 418:

1. DOES THE 3.7 PERCENT INCREASE AUTHORIZED UNDER THE MILITARY PAY ACT OF 1967 (PUBLIC LAW 90-207) ENACTED 16 DECEMBER 1967, APPLY TO THOSE MEMBERS WHO RETIRED BETWEEN 30 NOVEMBER 1966 AND 29 SEPTEMBER 1967 BUT WHO DIED BEFORE 16 DECEMBER 1967, THE DATE OF ENACTMENT OF THE MILITARY PAY ACT OF 1967?

2. DO THE RATES OF BASIC PAY PRESCRIBED BY THE FIRST SECTION OF THE MILITARY PAY ACT OF 1967 (PUBLIC LAW 90-207) ENACTED 16 DECEMBER 1967, APPLY IN THE COMPUTATION OF RETIRED PAY TO THOSE MEMBERS WHO RETIRED ON OR AFTER 30 SEPTEMBER 1967 BUT WHO DIED BEFORE 16 DECEMBER 1967, THE DATE OF ENACTMENT OF THE MILITARY PAY ACT OF 1967?

THE FIRST QUESTION PRESENTED ARISES BY REASON OF SECTION 2 (B) OF PUBLIC LAW 90-207, 10 U.S.C. 1401A NOTE, WHICH PROVIDES AS FOLLOWS:

(B) NOTWITHSTANDING SECTION 1401A (D) OF TITLE 10, UNITED STATES CODE, 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.

THE LAST CONSUMER PRICE INDEX PERCENTAGE INCREASE IN MILITARY RETIRED PAY PRECEDING OCTOBER 1, 1967 (AN INCREASE OF 3.7 PERCENT AUTHORIZED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1401A) BECAME EFFECTIVE DECEMBER 1, 1966. UNDER 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 IN RETIRED PAY WAS APPLICABLE ONLY TO THOSE MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY BEFORE DECEMBER 1, 1966. THE SPECIFIC INTENT OF SECTION 2 (B) OF PUBLIC LAW 90-207 WAS TO REMOVE THE INEQUITY WHICH HAD ARISEN IN THE CASE OF THOSE MEMBERS OF THE UNIFORMED SERVICES WHO RETIRED ON OR AFTER DECEMBER 1, 1966, AND THEREFORE WERE NOT ENTITLED TO RECEIVE THE 3.7 PERCENT CONSUMER PRICE INDEX INCREASE IN RETIRED PAY WHICH HAD BECOME EFFECTIVE ON DECEMBER 1, 1966. THE FOLLOWING STATEMENT APPEARS ON PAGE S17357, CONGRESSIONAL RECORD, SENATE, DAILY EDITION, NOVEMBER 29, 1967:

THIS BILL CORRECTS THESE INEQUITIES IN THE FOLLOWING MANNER:

FIRST. IT PROVIDES A ONE-TIME 3.7-PERCENT INCREASE FOR THOSE RETIRING AFTER DECEMBER 1966 AND BEFORE THE NEW SCALES IN THIS BILL TAKE EFFECT.

ALSO, SEE S.REPT. NO. 808, NOVEMBER 28, 1967, AT PAGES 11 AND 12 (IN PARTICULAR SEE TOP OF PAGE 12), AND H.REPT. NO. 787 (BEGINNING ON PAGE 9) TO ACCOMPANY H.R. 13510, 90TH CONGRESS, NOW PUBLIC LAW 90 207.

THE WORD "PERSON" IN THE PHRASE "A PERSON WHO IS A MEMBER OR FORMER MEMBER OF AN ARMED FORCE ON THE DATE OF ENACTMENT OF THIS ACT" CONTAINED IN SECTION 2 (B) OF PUBLIC LAW 90-207, OBVIOUSLY REFERS TO A LIVING PERSON WHO ON DECEMBER 16, 1967, WAS A MEMBER OR FORMER MEMBER OF AN ARMED FORCE AND WHO SUBSEQUENT TO NOVEMBER 30, 1966, BUT BEFORE OCTOBER 1, 1967, THE EFFECTIVE DATE OF THE NEXT INCREASE AFTER JULY 1, 1966, IN THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN 37 U.S.C. 203, INITIALLY BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY. THUS, THE LANGUAGE OF THE STATUTE FULLY SUPPORTS THE VIEW EXPRESSED IN COMMITTEE ACTION NO. 418 THAT SUCH WORDING EXCLUDES ANY RETIREES WHO DIED BEFORE DECEMBER 16, 1967. ACCORDINGLY, THE FIRST QUESTION MUST BE ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION IN COMMITTEE ACTION NO. 418 LIES WITHIN THE PURVIEW OF SECTION 6 OF PUBLIC LAW 90-207, 10 U.S.C. 1401 NOTE, WHICH PROVIDES AS FOLLOWS:

SEC. 6. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO INITIALLY BECOMES ENTITLED TO RETIRED PAY OR RETAINER PAY ON OR AFTER OCTOBER 1, 1967, SHALL BE ENTITLED TO HAVE THAT PAY COMPUTED USING THE RATES OF BASIC PAY PRESCRIBED BY THE FIRST SECTION OF THIS ACT.

UNDER SECTION 6 A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHOSE RETIRED PAY STATUS COMES WITHIN THE SCOPE OF THE QUOTED STATUTORY PROVISIONS IS ENTITLED TO HAVE THE RETIRED PAY OR RETAINER PAY WHICH ACCRUED TO HIM FROM AND AFTER OCTOBER 1, 1967, COMPUTED ON THE RATES OF MONTHLY ACTIVE DUTY BASIC PAY PRESCRIBED IN SECTION 1 OF PUBLIC LAW 90- 207. THERE IS NO REQUIREMENT IN THE STATUTE, EXPRESSED OR IMPLIED, THAT THE MEMBER OR FORMER MEMBER CONCERNED BE ALIVE AND ENTITLED TO RECEIVE RETIRED PAY OR RETAINER PAY ON DECEMBER 16, 1967. IT IS OUR VIEW, THEREFORE, THAT THE BENEFITS OF SECTION 6 HAVE ACCRUED TO EVERY MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO INITIALLY BECAME ENTITLED TO RECEIVE RETIRED PAY OR RETAINER PAY ON OR AFTER OCTOBER 1, 1967. THE DEATH OF SUCH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE PRIOR TO DECEMBER 16, 1967, DID NOT AFFECT THE RIGHT TO RETIRED PAY OR RETAINER PAY (IF OTHERWISE ENTITLED THERETO) FROM OCTOBER 1, 1967, UP TO AND INCLUDING THE DATE OF DEATH COMPUTED ON THE BASIS PRESCRIBED IN SECTION 6. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.