B-164960, DECEMBER 12, 1968, 48 COMP. GEN. 398

B-164960: Dec 12, 1968

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AMENDING 10 U.S.C. 1402 (A) NOT CHANGING THE CONCLUSION IN PRIOR DECISIONS THAT THE INCLUSION OF INACTIVE DUTY TIME ON THE RETIRED LIST IS PRECLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR PURPOSES OF COMPUTING RETIRED PAY. THE ENLISTED MAN WHO HAD SERVED LESS THAN 2 YEARS AS MASTER SERGEANT IS PURSUANT TO THE SECOND SENTENCE IN FOOTNOTE 1. 1968: FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER (FORWARDED HERE WITH HEADQUARTERS. YOUR REQUEST FOR DECISION WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. IT APPEARS THAT SERGEANT ZUPANCIC WAS PLACED ON THE RETIRED LIST EFFECTIVE JANUARY 1. IT WAS REPORTED THAT HE WAS PAID RETIRED PAY AT THE GROSS RATE OF $342.60 PER MONTH FOR THE PERIOD DECEMBER 1.

B-164960, DECEMBER 12, 1968, 48 COMP. GEN. 398

PAY - RETIRED - RE-RETIREMENT - INACTIVE SERVICE CREDITS PUBLIC LAW 88-132, EFFECTIVE OCTOBER 1, 1963, AMENDING 10 U.S.C. 1402 (A) NOT CHANGING THE CONCLUSION IN PRIOR DECISIONS THAT THE INCLUSION OF INACTIVE DUTY TIME ON THE RETIRED LIST IS PRECLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR PURPOSES OF COMPUTING RETIRED PAY, A MASTER SERGEANT UPON RE-RETIREMENT MAY NOT BE CREDITED WITH THE 3 YEARS AND 4 MONTHS OF INACTIVE SERVICE BETWEEN DATE OF RETIREMENT, JANUARY 1, 1960, UNDER 10 U.S.C. 8914, AND RETURN TO ACTIVE DUTY IN THE GRADE OF TECHNICAL SERGEANT ON MAY 1, 1963. HOWEVER, UNDER SECTION 1402 (A) UPON RE- RETIREMENT DECEMBER 1, 1967, THE ENLISTED MAN WHO HAD SERVED LESS THAN 2 YEARS AS MASTER SERGEANT IS PURSUANT TO THE SECOND SENTENCE IN FOOTNOTE 1, SECTION 1402 (A) ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY RATE IN EFFECT AT TIME OF RE RETIREMENT AND A MULTIPLIER FACTOR THAT REFLECTS THE 4 YEARS AND 7 MONTHS OF ADDITIONAL ACTIVE SERVICE.

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, DECEMBER 12, 1968:

FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER (FORWARDED HERE WITH HEADQUARTERS, UNITED STATES AIR FORCE LETTER DATED JULY 29, 1968), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF $77.71 AS ADDITIONAL RETIRED PAY ON A VOUCHER (STANDARD FORM 1034, ATTACHMENT NO. 1 WITH YOUR LETTER) STATED IN FAVOR OF MASTER SERGEANT RUDOLPH N. ZUPANCIC, USAF, RETIRED, AF 6997360, COVERING THE PERIOD MARCH AND APRIL 1968. YOUR REQUEST FOR DECISION WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO-AF-1013.

IT APPEARS THAT SERGEANT ZUPANCIC WAS PLACED ON THE RETIRED LIST EFFECTIVE JANUARY 1, 1960, IN THE GRADE OF TECHNICAL SERGEANT IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 8914. IT FURTHER APPEARS THAT HE SUBSEQUENTLY ATTAINED THE HIGHER GRADE OF MASTER SERGEANT WHILE SERVING ON ACTIVE DUTY DURING THE PERIOD MAY 1, 1963, TO NOVEMBER 30, 1967, INCLUSIVE.

IN HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER LETTER DATED AUGUST 28, 1968, IT WAS REPORTED THAT HE WAS PAID RETIRED PAY AT THE GROSS RATE OF $342.60 PER MONTH FOR THE PERIOD DECEMBER 1, 1967, TO FEBRUARY 29, 1968, INCLUSIVE; $304.49 FOR THE MONTH OF MARCH 1968; AND AT THE RATE OF $316.36 PER MONTH EFFECTIVE FROM APRIL 1, 1968. THESE PAYMENTS ARE EXPLAINED AS FOLLOWS IN PARAGRAPHS 2 AND 3, LETTER OF AUGUST 28, 1968:

2. FOR THE PERIOD 1 DEC THROUGH 28 FEB 1968 SGT ZUPANCIC WAS PAID AS A MASTER SERGEANT WITH OVER 26 YEARS FOR BASIC PAY AND 24 YEARS, 7 MONTHS ACTIVE DUTY TIME. UNDER PAY RATES ESTABLISHED BY PUBLIC LAW 89 501 (EFFECTIVE 1 JUL 1966 AND INCREASED 3.7 PERCENT ON 1 DEC 1966), HE WAS PAID 62.5 PERCENT OF $548.16 OR $342.60 MONTHLY GROSS RETIRED PAY.

3. HOWEVER, ON 1 MAR 1968 WE REDUCED HIS RETIRED PAY TO THAT OF A MASTER SERGEANT WITH OVER 22 YEARS FOR BASIC PAY AND 24 YEARS, 7 MONTHS ACTIVE DUTY TIME--- PENDING COMPTROLLER GENERAL DECISION ON THIS CASE. SGT ZUPANCIC'S PAY WAS INCREASED BY 3.9 PERCENT IN ACCORDANCE WITH PUBLIC LAW 90-207, EFFECTIVE 1 APR 1968.

A COPY OF DD FORM 424 (ATTACHMENT NO. 4 RECEIVED WITH THE SUBMISSION LETTER) INDICATES THAT WHEN PLACED ON THE RETIRED LIST (EFFECTIVE JANUARY 1, 1960), SERGEANT ZUPANCIC HAD 20 YEARS AND 25 DAYS OF SERVICE (ALL ACTIVE SERVICE) CREDITABLE FOR PURPOSES OF ACTIVE DUTY BASIC PAY AND RETIREMENT. THUS, HE HAD COMPLETED 24 YEARS, 7 MONTHS AND 25 DAYS OF ACTIVE SERVICE WHEN HE WAS RELEASED FROM ACTIVE DUTY ON NOVEMBER 30, 1967, AND WHEN ADDED TO 3 YEARS AND 4 MONTHS OF INACTIVE TIME ON THE RETIRED LIST (JANUARY 1, 1960 TO APRIL 30, 1963, INCLUSIVE) HE HAD A TOTAL OF 27 YEARS, 11 MONTHS AND 25 DAYS OF SERVICE CREDITABLE TO HIM ON NOVEMBER 30, 1967, FOR ACTIVE DUTY BASIC PAY.

THE SERVICE AUTHORIZED TO BE CREDITED IN COMPUTING THE ACTIVE DUTY BASIC PAY OF A MEMBER OF A UNIFORMED SERVICE IS SET FORTH IN CLAUSES (1) TO (9) IN SUBSECTION (A) OF SECTION 205, TITLE 37, U.S.C. THE FIRST SENTENCE FOLLOWING CLAUSE (9) IN SUBSECTION (A) PROVIDES AS FOLLOWS: EXCEPT FOR ANY PERIOD OF ACTIVE SERVICE DESCRIBED IN CLAUSE (1) OF THIS SUBSECTION AND EXCEPT AS PROVIDED BY SECTION 1402 (B/-/D) OF TITLE 10, A PERIOD OF SERVICE DESCRIBED IN CLAUSES (2/-/9) OF THIS SUBSECTION THAT IS PERFORMED WHILE ON A RETIRED LIST, IN A RETIRED STATUS, OR IN A FLEET RESERVE OR FLEET MARINE CORPS RESERVE, MAY NOT BE INCLUDED TO INCREASE RETIRED PAY, RETIREMENT PAYMENT, OR RETAINER PAY.

THE BASIC ISSUE RAISED IN THE SUBMISSION LETTER IS WHETHER THE INCLUSION OF THE PERIOD OF INACTIVE TIME ON THE RETIRED LIST (3 YEARS AND 4 MONTHS) IN ESTABLISHING THE RATE OF MONTHLY ACTIVE DUTY BASIC PAY THAT WAS USED IN RECOMPUTING SERGEANT ZUPANCIC'S MONTHLY RETIRED PAY DURING THE PERIOD DECEMBER 1, 1967, TO FEBRUARY 29, 1968, INCLUSIVE, WAS INCONSISTENT WITH THE PROVISIONS OF 37 U.S.C. 205 (A). IN CONNECTION, REFERENCE IS MADE IN THE SUBMISSION LETTER TO THREE DECISIONS OF THIS OFFICE RELATING TO THE PROPER BASIS ON WHICH TO RECOMPUTE THE RETIRED PAY OF THOSE MEMBERS OF THE UNIFORMED SERVICES WHOSE RETIRED PAY STATUS BY REASON OF ACTIVE DUTY PERFORMED AFTER RETIREMENT COMES WITHIN THE PURVIEW OF SECTION 1402 (A), TITLE 10, U.S.C.

THE FIRST TWO DECISIONS TO WHICH REFERENCE IS MADE (SEPTEMBER 29, 1959, 39 COMP. GEN. 241 AND DECEMBER 29, 1960, 40 COMP. GEN. 387), WERE RENDERED PRIOR TO ENACTMENT ON OCTOBER 2, 1963, OF PUBLIC LAW 88 132. INSOFAR AS HERE PERTINENT SECTION 5 (1) (1) OF THAT LAW, 77 STAT. 214, 215, AMENDED SECTION 1402 (A), TITLE 10, U.S. CODE, EFFECTIVE OCTOBER 1, 1963, BY CHANGING FOOTNOTE 1 TO READ AS FOLLOWS:

1. FOR A MEMBER WHO HAS BEEN ENTITLED, FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS, TO BASIC PAY UNDER THE RATES OF BASIC PAY IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY, COMPUTE UNDER THOSE RATES. FOR A MEMBER WHO HAS BEEN ENTITLED TO BASIC PAY FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS UPON THAT RELEASE FROM ACTIVE DUTY, BUT WHO IS NOT COVERED BY THE PRECEDING SENTENCE, COMPUTE UNDER THE RATES OF BASIC PAY REPLACED BY THOSE IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY. FOR ANY OTHER MEMBER, COMPUTE UNDER THE RATES OF BASIC PAY UNDER WHICH THE MEMBER'S RETIRED PAY OR RETAINER PAY WAS COMPUTED WHEN HE ENTERED ON THAT ACTIVE DUTY.

UPON REVERSION TO AN INACTIVE STATUS ON THE RETIRED LIST ON DECEMBER 1, 1967, SERGEANT ZUPANCIC BECAME ENTITLED UNDER THE PROVISIONS OF SUBSECTION (A) OF SECTION 1402, TITLE 10, U.S. CODE, TO RECEIVE RETIRED PAY RECOMPUTED BY MULTIPLYING THE MONTHLY BASIC PAY (SUBJECT TO THE PROVISIONS OF FOOTNOTE 1, QUOTED ABOVE, GOVERNING THE APPLICABLE RATE OF MONTHLY BASIC PAY) OF THE GRADE IN WHICH HE WOULD HAVE BEEN ELIGIBLE TO RETIRE IF HE HAD BEEN RETIRING UPON THAT RELEASE FROM ACTIVE DUTY, BY THE TOTAL OF 2 -1/2 PERCENT FOR EACH YEAR OF SERVICE CREDITABLE IN COMPUTING HIS RETIRED PAY AND EACH YEAR OF ACTIVE SERVICE AFTER BECOMING ENTITLED TO RETIRED PAY.

THE FIRST PARAGRAPH OF THE SYLLABUS IN THE DECISION OF SEPTEMBER 29, 1959, 39 COMP. GEN. 241, READS AS FOLLOWS:

THE PROVISION IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 THAT, EXCEPT FOR ACTIVE SERVICE, THE SERVICE CREDIT AUTHORIZED THEREIN FOR PERIODS ON THE RETIRED LIST SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY RELATES TO INCREASES IN THE LONGEVITY PAY FACTOR IN THE COMPUTATION OF RETIRED PAY RATHER THAN TO THE MULTIPLIER FACTOR AND DOES NOT PROHIBIT RETIRED MEMBERS FROM COUNTING ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN THE MULTIPLIER FACTOR TO INCREASE RETIRED PAY, SO THAT A RETIRED MEMBER WHO PERFORMED 15 DAYS' ACTIVE DUTY AFTER RETIREMENT ON JUNE 30, 1953, MAY HAVE SUCH DUTY CREDITED TO INCREASE THE MULTIPLIER FACTOR IN COMPUTATION OF RETIRED PAY.

THE SECOND PARAGRAPH OF THE SYLLABUS IN THE DECISION OF DECEMBER 29, 1960, IS AS FOLLOWS:

THE EXCEPTION PRESCRIBED IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 TO THE PROHIBITION AGAINST THE INCLUSION OF INACTIVE TIME ON THE RETIRED LIST TO INCREASE RETIRED PAY IS APPLICABLE TO TITLE IV OF THE ACT AND DOES NOT APPLY TO THE PROVISIONS OF SECTION 516 WHICH WERE CONTAINED IN TITLE V OF THE 1949 LAW; THEREFORE, SINCE SECTION 516 WAS SUPERSEDED AND REPLACED BY 10 U.S.C. 1402 (A) WITHOUT SUBSTANTIVE CHANGE, INACTIVE TIME ON THE RETIRED LIST MAY NOT BE INCLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR COMPUTATION OF RETIRED PAY UNDER 10 U.S.C. 1402 (A).

THE THIRD DECISION (OCTOBER 19, 1966, 46 COMP. GEN. 334) IS MENTIONED AS FOLLOWS IN PARAGRAPH 6 OF THE SUBMISSION LETTER:

6. DECISION B-159848, 19 OCTOBER 1966 (46 COMP. GEN. 334) HAS BEEN NOTED. HOWEVER, IN THAT CASE THE MEMBER'S BASIC PAY RATE WAS NOT AFFECTED BY ADDING THE TIME SPENT ON THE RETIRED LIST SINCE IT WAS ALREADY AT THE MAXIMUM RATE FOR AN E-6. IN MASTER SERGEANT ZUPANCIC'S CASE, THE TIME ON THE RETIRED LIST DID IN FACT INCREASE THE BASIC PAY RATE WHILE ON ACTIVE DUTY FROM THAT OF AN E-7 WITH OVER 22 YEARS OF SERVICE TO E-7 WITH OVER 26 YEARS OF SERVICE.

IN THE NEXT PARAGRAPH (PARAGRAPH 7) OF THE SUBMISSION LETTER IT IS POINTED OUT THAT SINCE THE FIRST TWO DECISIONS WERE RENDERED PRIOR TO THE 1963 AMENDMENT OF SECTION 1402 (A), TITLE 10, U.S. CODE, DOUBT HAS ARISEN "AS TO WHETHER INCLUSION OF INACTIVE DUTY TIME ON THE RETIRED LIST IS PRECLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR PURPOSES OF COMPUTING RETIRED PAY UNDER THE CURRENT 10 U.S.C. 1402 (A)" AND DECISION IS REQUESTED "WHETHER MASTER SERGEANT ZUPANCIC IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED BASED ON 27 YEARS OF SERVICE FOR BASIC PAY PURPOSES, I.E., INCLUDING THE YEARS SPENT ON THE USAF RETIRED LIST.'

THE LEGISLATIVE HISTORY OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132 CLEARLY DISCLOSES THE CONGRESSIONAL INTENT AND PURPOSE UNDERLYING THE LANGUAGE EMPLOYED IN NEW FOOTNOTE 1 THAT WAS ADDED TO SECTION 1402 (A), TITLE 10, U.S.C. IN S.REPT. NO. 387, AUGUST 5, 1963, TO ACCOMPANY H.R. 5555, 88TH CONGRESS (WHICH BECAME PUBLIC LAW 88-132), IT WAS STATED AT PAGE 36: REQUIRED PERIODS OF ACTIVE SERVICE FOLLOWING RECALL FROM A RETIRED STATUS TO RECOMPUTE RETIRED PAY UNDER HIGHER RATES

UNDER EXISTING LAW SECTION 1402 (A), TITLE 10. U.S.C. A MEMBER WHO HAS BEEN RETIRED AND LATER RECALLED TO ACTIVE SERVICE MAY RECOMPUTE HIS RETIRED PAY WHEN HE LEAVES ACTIVE SERVICE UNDER WHATEVER RATES OF PAY WERE IN EFFECT UPON HIS RE-RETIREMENT. THERE IS NO PRESCRIBED PERIOD OF TIME WHICH HE MUST SERVE IN A RECALLED STATUS.

THE BILL AS PASSED BY THE HOUSE CONTAINED A PROVISION REQUIRING 1 YEAR OF CONTINUOUS ACTIVE DUTY FOLLOWING RECALL IN ORDER TO RECOMPUTE UNDER ANY HIGHER RATES WHICH MIGHT BE IN EFFECT AT THE TIME OF HIS RE RETIREMENT. THE HOUSE PROVISION WOULD NOT REQUIRE ANY PRESCRIBED LENGTH OF SERVICE UNDER THE HIGHER RATES WHICH MIGHT BE IN EFFECT AT THE TIME THE OFFICER RE -RETIRED.

THE SENATE COMMITTEE ADOPTED A PROVISION REQUIRING THAT IN ORDER TO RECOMPUTE AT THE TIME AN OFFICER RETIRES FOR THE SECOND OR LATER TIME HE MUST HAVE SERVED AT LEAST 2 YEARS CONTINUOUSLY UNDER THE HIGHER RATES FOLLOWING RECALL IN ORDER TO RECOMPUTE UNDER ANY HIGHER RATES WHICH MAY BE IN EFFECT. * * *

IT SHOULD BE NOTED THAT THE 2- AND 3-YEAR RULE DOES NOT AFFECT EXISTING LAW INSOFAR AS THE USE OF ADDITIONAL TIME AS A RETIREMENT MULTIPLIER IS CONCERNED. THE HOUSE VERSION WOULD HAVE REQUIRED THE ADDITIONAL 1 YEAR IN ORDER TO RECEIVE ANY ADVANTAGE FOR THE PURPOSE OF ADDING THE RECALL PERIOD TO PRIOR SERVICE FOR PURPOSES OF A RETIREMENT MULTIPLIER.

WE FIND NOTHING IN THE FOREGOING WHICH INDICATES THAT THE 1963 CHANGES MADE IN SECTION 1402 (A), TITLE 10, U.S. CODE, WERE DIRECTED AT THE CONCLUSIONS REACHED BY THIS OFFICE IN THE DECISIONS OF SEPTEMBER 29, 1959, 39 COMP. GEN. 241, AND DECEMBER 29, 1960, 40 COMP. GEN. 387, OR THAT IT WAS INTENDED TO LESSEN IN ANY WAY THE RESTRICTION AGAINST THE COUNTING OF INACTIVE TIME ON THE RETIRED LIST TO INCREASE RETIRED PAY AFTER A PERIOD OF ACTIVE DUTY. HENCE, THE RULE IN THE LATTER DECISION HOLDING THAT "INACTIVE TIME ON THE RETIRED LIST MAY NOT BE INCLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR COMPUTATION OF RETIRED PAY UNDER 10 U.S.C. 1402 (A)" WAS NOT AFFECTED BY THE PROVISIONS OF THE 1963 LAW.

THE QUESTION "WHETHER INCLUSION OF INACTIVE DUTY TIME ON THE RETIRED LIST IS PRECLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR PURPOSES OF COMPUTING RETIRED PAY UNDER THE CURRENT (PROVISIONS OF) 10 U.S.C. 1402 (A)" IS ANSWERED IN THE AFFIRMATIVE AND THE QUESTION "WHETHER MASTER SERGEANT ZUPANCIC IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED BASED ON 27 YEARS OF SERVICE FOR BASIC PAY PURPOSES, I.E., INCLUDING THE YEARS SPENT ON THE USAF RETIRED LIST" IS ANSWERED IN THE NEGATIVE. ACCORDINGLY, THE VOUCHER STATED IN FAVOR OF SERGEANT ZUPANCIC FOR ADDITIONAL RETIRED PAY FOR THE MONTHS OF MARCH AND APRIL 1968 BASED ON THE COUNTING OF INACTIVE SERVICE ON THE RETIRED LIST IS NOT FOR PAYMENT AND WILL BE RETAINED HERE.

IT IS NOTED THAT IN ADDITION TO THE OVERPAYMENT OF RETIRED PAY MADE TO SERGEANT ZUPANCIC DURING THE PERIOD DECEMBER 1, 1967, TO FEBRUARY 29, 1968, INCLUSIVE, THE AMOUNT OF $304.49 IS STATED TO HAVE BEEN PAID TO HIM FOR THE MONTH OF MARCH 1968. APPARENTLY, THE AMOUNT OF $304.49 REPRESENTS AN INCREASE OF 3.7 PERCENT ($10.86) IN THE AMOUNT OF RETIRED PAY ($293.63) ADMINISTRATIVELY FOUND TO BE DUE HIM UNDER APPLICABLE PROVISIONS OF LAW ON THE DATE (DECEMBER 1, 1967) THAT HE REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST. THE GROSS AMOUNT OF $316.36 PER MONTH REPORTED AS HAVING BEEN PAID TO HIM EFFECTIVE FROM APRIL 1, 1968, IS STATED TO REPRESENT THE CONSUMER PRICE INDEX INCREASE OF 3.9 PERCENT WHICH BECAME EFFECTIVE APRIL 1, 1968 ($11.87) IN THE AMOUNT OF RETIRED PAY ($304.49) THAT WAS PAID TO HIM FOR THE MONTH OF MARCH 1968.

WHEN SERGEANT ZUPANCIC REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST ON DECEMBER 1, 1967, HIS RETIRED PAY STATUS CAME SQUARELY WITHIN THE PROVISIONS OF SUBSECTION (A) OF SECTION 1402, TITLE 10, U.S.C. WHILE HE HAD BEEN RECEIVING PAY AT THE APPROPRIATE RATE PRESCRIBED IN SECTION 301 OF THE ACT OF JULY 13, 1966, PUBLIC LAW 89-501, 80 STAT. 276, HE HAD RECEIVED SUCH PAY FOR LESS THAN 2 YEARS. HENCE, UNDER THE SECOND SENTENCE IN NEW FOOTNOTE 1, SECTION 1402 (A) HE BECAME ENTITLED TO RECEIVE (RECOMPUTED) RETIRED PAY EFFECTIVE DECEMBER 1, 1967, IN THE GROSS AMOUNT OF $284.44 PER MONTH REPRESENTING 62-1/2 PERCENT (HIS NEW MULTIPLIER FACTOR REFLECTING THE 4 YEARS AND 7 MONTHS OF ACTIVE SERVICE PERFORMED BY HIM SUBSEQUENT TO HIS RETIREMENT) OF $455.10, THE RATE OF MONTHLY ACTIVE DUTY BASIC PAY PRESCRIBED IN SECTION 1 OF THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 545, FOR A MASTER SERGEANT (ENLISTED PAY GRADE E-7) WITH OVER 22 BUT NOT OVER 26 YEARS OF CREDITABLE SERVICE. SINCE SERGEANT ZUPANCIC WAS NOT ON ACTIVE DUTY ON THE DATE OF ENACTMENT OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90 207, 81 STAT. 649, HE DID NOT BECOME ENTITLED TO ACTIVE DUTY PAY AT THE RATES PRESCRIBED IN THAT ACT. SEE SECTION 7 OF THE ACT, 81 STAT 654, 37 U.S.C. 203 NOTE.

THE GROSS AMOUNT OF RETIRED PAY ($284.44 PER MONTH) TO WHICH HE WAS ENTITLED UNDER THE PROVISIONS OF 10 U.S.C. 1402 (A) DURING THE PERIOD DECEMBER 1, 1967, TO MARCH 31, 1968, INCLUSIVE, IS REQUIRED TO BE INCREASED TO $294.96 BY THE 3.7 PERCENT CONSUMER PRICE INDEX INCREASE IN RETIRED PAY ($10.52) WHICH BECAME EFFECTIVE DECEMBER 1, 1966. A CONSUMER PRICE INDEX INCREASE OF 3.9 PERCENT IN MILITARY RETIRED PAY BECAME EFFECTIVE APRIL 1, 1968, AND UNDER APPLICABLE PROVISIONS OF LAW SERGEANT ZUPANCIC APPEARS TO HAVE BEEN ENTITLED, EFFECTIVE AS OF APRIL 1, 1968, TO A CORRESPONDING INCREASE (3.9 PERCENT, $11.50) IN THE MONTHLY GROSS AMOUNT ($294.96 PER MONTH) OF RETIRED PAY THAT HE WAS ENTITLED TO RECEIVE DURING THE PERIOD DECEMBER 1, 1967, TO MARCH 31, 1968, OR A TOTAL OF $306.46 PER MONTH EFFECTIVE APRIL 1, 1968.

ACCORDINGLY, HIS RETIRED PAY ACCOUNT SHOULD BE ADJUSTED EFFECTIVE DECEMBER 1, 1967, ON THE BASIS ABOVE SET FORTH.