B-164936, AUG. 26, 1968

B-164936: Aug 26, 1968

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COAST GUARD: FURTHER REFERENCE IS MADE TO LETTER OF THE ACTING COMMANDANT DATED JULY 24. WILL BE ENTITLED TO THE MAXIMUM RETIRED PAY WHEN RETIRED ON JUNE 30. CAPTAIN MONTGOMERY'S RIGHT TO RETIRED PAY IN 1975 WILL DEPEND ON HIS STATUS AT THAT TIME AND THE LAWS THEN IN EFFECT. THE QUESTION PRESENTED WILL BE CONSIDERED ON THE BASIS OF THE FACTS STATED AND THE LAW NOW IN EFFECT BUT NOTHING STATED HEREIN IS TO BE UNDERSTOOD AS FIXING THE OFFICER'S RIGHT TO PAY IN 1975. IT IS REPORTED THAT CAPTAIN MONTGOMERY WAS COMMISSIONED IN THE COAST GUARD AS A REGULAR LIEUTENANT COMMANDER ON OCTOBER 4. ALL OF WHICH SERVICE WAS INACTIVE DUTY EXCEPT 14 DAYS OF ACTIVE DUTY FOR TRAINING FROM MARCH 19 TO APRIL 1.

B-164936, AUG. 26, 1968

TO COMMANDANT, U.S. COAST GUARD:

FURTHER REFERENCE IS MADE TO LETTER OF THE ACTING COMMANDANT DATED JULY 24, 1968, REQUESTING A DECISION AS TO WHETHER CAPTAIN WILLIAM A. MONTGOMERY, 5860, U.S. COAST GUARD, WILL BE ENTITLED TO THE MAXIMUM RETIRED PAY WHEN RETIRED ON JUNE 30, 1975.

OF COURSE, CAPTAIN MONTGOMERY'S RIGHT TO RETIRED PAY IN 1975 WILL DEPEND ON HIS STATUS AT THAT TIME AND THE LAWS THEN IN EFFECT. THE QUESTION PRESENTED WILL BE CONSIDERED ON THE BASIS OF THE FACTS STATED AND THE LAW NOW IN EFFECT BUT NOTHING STATED HEREIN IS TO BE UNDERSTOOD AS FIXING THE OFFICER'S RIGHT TO PAY IN 1975.

IT IS REPORTED THAT CAPTAIN MONTGOMERY WAS COMMISSIONED IN THE COAST GUARD AS A REGULAR LIEUTENANT COMMANDER ON OCTOBER 4, 1956; THAT HE PREVIOUSLY HAD SERVED 13 YEARS, 2 MONTHS AND 13 DAYS IN THE U.S. NAVAL RESERVE, ALL OF WHICH SERVICE WAS INACTIVE DUTY EXCEPT 14 DAYS OF ACTIVE DUTY FOR TRAINING FROM MARCH 19 TO APRIL 1, 1950; THAT HIS POSITION ON THE ACTIVE DUTY PROMOTION LIST IS SUCH THAT ON JUNE 30, 1975, HE WILL BE REQUIRED TO RETIRE UNDER THE PROVISIONS OF 14 U.S.C. 288; AND THAT AT THAT TIME HE WILL HAVE 18 YEARS, 9 MONTHS AND 11 DAYS OF ACTIVE DUTY AND A TOTAL OF MORE THAN 30 YEARS OF ACTIVE AND INACTIVE SERVICE.

IT IS PROVIDED IN 14 U.S.C. 288 THAT:

"/A) EACH OFFICER OF THE REGULAR COAST GUARD SERVING IN THE GRADE OF CAPTAIN WHOSE NAME IS NOT CARRIED ON AN APPROVED LIST OF OFFICERS SELECTED FOR PROMOTION TO THE GRADE OF REAR ADMIRAL SHALL, IF NOT EARLIER RETIRED, BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH HE, OR ANY CAPTAIN JUNIOR TO HIM ON THE ACTIVE DUTY PROMOTION LIST WHO HAS NOT LOST NUMBERS OR PRECEDENCE, COMPLETES THIRTY YEARS OF ACTIVE COMMISSIONED SERVICE IN THE COAST GUARD.

"/B) NOTWITHSTANDING SECTION 423 OF THIS TITLE, THE RETIRED PAY OF AN OFFICER RETIRED UNDER THIS SECTION SHALL NOT BE LESS THAN 50 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF HIS RETIRED PAY IS BASED.'

SECTION 423, TITLE 14, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

"THE RETIRED PAY OF A GRADE OR RATING SHALL BE COMPUTED AT THE RATE OF 2- 1/2 PERCENT OF THE SUM OF THE BASIC PAY OF THAT GRADE OR RATING, AND ALL PERMANENT ADDITIONS THERETO INCLUDING LONGEVITY CREDIT TO WHICH THE OFFICER OR ENLISTED MAN CONCERNED WAS ENTITLED AT THE TIME OF RETIREMENT, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF TITLE 10.'

A REGULAR COAST GUARD CAPTAIN COMING WITHIN THE PROVISIONS OF 14 U.S.C. 288 IS REQUIRED TO BE RETIRED WITHOUT REGARD TO HIS YEARS OF ACTIVE SERVICE AND HE BECOMES ENTITLED TO RETIRED PAY OF AT LEAST 50 PERCENT OF HIS BASIC PAY. BEING ENTITLED TO BE RETIRED, HIS RETIRED PAY IS FOR COMPUTATION UNDER THE PROVISIONS OF 10 U.S.C. 423 COMPUTED AT THE RATE OF 2-1/2 PERCENT OF HIS BASIC PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE YEARS OF SERVICE CREDITED TO HIM UNDER 10 U.S.C. 1405 WHICH SPECIFIES THAT IN ADDITION TO ACTIVE SERVICE, INACTIVE SERVICE PRIOR TO JUNE 1, 1958, IS CREDITABLE IN DETERMINING THE YEARS OF SERVICE MULTIPLIER, NOT TO EXCEED 75 PERCENT OF HIS ACTIVE DUTY PAY (14 U.S.C. 424).

ACCORDINGLY, IF CAPTAIN MONTGOMERY IS RETIRED AS STATED ON JUNE 30, 1975, HE WILL BE ENTITLED UNDER THE PRESENT LAW TO RECEIVE RETIRED PAY AT 75 PERCENT OF HIS BASIC PAY AFTER JUNE 30, 1975.