B-165038, JAN. 6, 1969

B-165038, JAN. 6, 1969

TO MISS C. C. GORDON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1968, REQUESTING DECISION WHETHER IN THE CIRCUMSTANCES SET FORTH HEREUNDER CAPTAIN EDWIN B. ING, 1674, USCG, RETIRED, AND CHIEF WARRANT OFFICER (W-4) FOISTER E. BLAIR, 26636, USCG, RETIRED, MAY BE PAID RETIRED PAY COMPUTED ON RATES OF BASIC PAY WHICH BECAME EFFECTIVE JULY 1, 1968.

IT APPEARS THAT "IF NOT EARLIER RETIRED" CAPTAIN ING WAS SUBJECT, UNDER THE PROVISIONS OF SECTION 288 (A), TITLE 14, U.S.C. (AS ENACTED IN SECTION 1 (10) (C), PUBLIC LAW 88-130, SEPTEMBER 24, 1963, 77 STAT. 185, 186), TO MANDATORY RETIREMENT ON JUNE 30, 1968. UNDER SECTION 1305 (A), TITLE 10, U.S. CODE, AS AMENDED, AND THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253 (NOW 5 U.S.C. 8301), THE EFFECTIVE DATE OF MANDATORY RETIREMENT IN THE CASE OF CHIEF WARRANT OFFICER BLAIR WAS JULY 1, 1968.

SINCE SECTION 288 (A), TITLE 14, U.S. CODE, EXPRESSLY REQUIRED THAT "IF NOT EARLIER RETIRED" CAPTAIN ING BE RETIRED ON JUNE 30, 1968, AND SINCE THE RESTRICTIVE PROVISIONS OF SUBSECTION (B) OF 5 U.S.C. 8301 APPLICABLE IN THE CASE OF CHIEF WARRANT OFFICER BLAIR WOULD PRECLUDE USE OF THE HIGHER RATES OF ACTIVE DUTY BASIC PAY WHICH BECAME EFFECTIVE JULY 1, 1968, THE MANDATORY RETIREMENT OF THESE TWO OFFICERS UNDER THE ABOVE-CITED PROVISIONS OF LAW WOULD IN BOTH INSTANCES RESULT IN THE COMPUTATION OF RETIRED PAY BASED ON THE ACTIVE DUTY RATES OF BASIC PAY WHICH WERE IN EFFECT IN JUNE 1968.

IT FURTHER APPEARS THAT, PRIOR TO THE MANDATORY RETIREMENT DATES PRESCRIBED IN THE STATUTORY PROVISIONS ABOVE REFERRED TO, NEW RETIREMENT ORDERS WERE ISSUED IN THE MONTH OF JUNE 1968 APPROVING CAPTAIN ING'S REQUEST FOR VOLUNTARY RETIREMENT UNDER AUTHORITY OF 14 U.S.C. 291 TO BECOME EFFECTIVE JULY 1, 1968, AND APPROVING CHIEF WARRANT OFFICER BLAIR'S REQUEST FOR VOLUNTARY RETIREMENT EFFECTIVE JULY 1, 1968, UNDER AUTHORITY OF 10 U.S.C. 1293.

IN CAPTAIN ING'S CASE SECTIONS 288 (A) AND 291, TITLE 14, U.S. CODE, AS ENACTED IN PUBLIC LAW 88-130, PROVIDE AS FOLLOWS:

"SEC. 288. REGULAR CAPTAINS; RETIREMENT

"/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.'

"SEC. 291. VOLUNTARY RETIREMENT AFTER TWENTY YEARS' SERVICE

"ANY REGULAR COMMISSIONED OFFICER WHO HAS COMPLETED TWENTY YEARS' ACTIVE SERVICE IN THE COAST GUARD, NAVY, ARMY, AIR FORCE, OR MARINE CORPS, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE WITH WHICH RETIRED.'

IT WAS STATED ON PAGE 4 IN DECISION OF JULY 23, 1968, B-164842 (SPECIFIC REFERENCE IS MADE TO THAT DECISION IN THE LAST PARAGRAPH OF YOUR SUBMISSION LETTER) THAT "IT IS AXIOMATIC IN STATUTORY CONSTRUCTION THAT WORDS ARE NOT INSERTED INTO AN ACT WITHOUT SOME PURPOSE.' IN THAT CASE IT WAS HELD THAT THE PHRASE "NOTWITHSTANDING ANY OTHER PROVISION OF LAW" WAS EMPLOYED IN SECTION 1 (I) OF PUBLIC LAW 86-155, AUGUST 11, 1959, 73 STAT. 335,

"* * * FOR THE PURPOSE OF PRECLUDING THE OPERATION OF -ANY OTHER PROVISION OF LAW- AUTHORIZING VOLUNTARY RETIREMENT, UNLESS THE VOLUNTARY RETIREMENT OF THE INDIVIDUAL CONCERNED UNDER SUCH -OTHER PROVISION OF LAW- BECAME EFFECTIVE BEFORE JUNE 30 OF THE FISCAL YEAR PRESCRIBED IN THAT SECTION.'

THE PHRASE "IF NOT EARLIER RETIRED" CONTAINED IN SECTION 288 (A), TITLE 14, U.S. CODE, AND WHICH IN CAPTAIN ING'S SITUATION HAS REFERENCE TO JUNE 30, 1968, DOES NOT APPEAR TO BE ADMINISTRATIVELY CONSIDERED BY THE COAST GUARD AS CONSTITUTING ANY BAR TO HIS VOLUNTARY RETIREMENT EFFECTIVE JULY 1, 1968, UNDER AUTHORITY OF 14 U.S.C. 291. HENCE, THE PROPER STATUTORY CONSTRUCTION AND THE FORCE AND EFFECT REQUIRED TO BE ACCORDED TO THAT PHRASE FORMS THE BASIS UPON WHICH TO DETERMINE, IN THE CONTEXT OF SECTION 288 (A) AND IN THE CIRCUMSTANCES ABOVE SET FORTH, WHETHER CAPTAIN ING WAS MANDATORILY RETIRED BY OPERATION OF LAW ON JUNE 30, 1968, OR WHETHER HE WAS RETIRED VOLUNTARILY ON HIS APPLICATION EFFECTIVE JULY 1, 1968.

IN HOUSE REPORT NO. 583, JULY 25, 1963, ACCOMPANYING H.R. 5623, 88TH CONGRESS (THE BILL WHICH LATER BECAME PUBLIC LAW 88-130), IT WAS STATED IN PERTINENT PART (AT PAGE 24):

"SECTION 288 PROVIDES FOR COMPULSORY RETIREMENT OF ALL CAPTAINS WHO ARE NOT ON AN APPROVED LIST FOR PROMOTION TO FLAG GRADE ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY COMPLETE 30 YEARS OF ACTIVE COMMISSIONED SERVICE.'

THUS, THE EXPRESSED CONGRESSIONAL INTENT UNDERLYING ENACTMENT OF SECTION 288 (A), TITLE 14, U.S. CODE, REQUIRES THE COMPULSORY RETIREMENT ON JUNE 30 OF THE FISCAL YEAR IN WHICH A COAST GUARD CAPTAIN (WHOSE NAME IS NOT ON AN APPROVED LIST FOR PROMOTION TO FLAG GRADE) COMPLETES 30 YEARS OF ACTIVE COMMISSIONED SERVICE. ADMINISTRATIVE COMMENTS (ON THE PROVISIONS OF H.R. 5623, 88TH CONGRESS), DISCLOSE A SIMILAR UNDERSTANDING THAT AS TO CAPTAINS

"THE PROPOSED BILL ELIMINATES THE ANNUAL 30 AND 8 BOARD. INSTEAD, ALL CAPTAINS WILL BE REQUIRED TO RETIRE ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY COMPLETE 30 YEARS OF ACTIVE COMMISSIONED SERVICE IN THE COAST GUARD. * * *" (SEE THAT PART OF SUPPLEMENT NO. 1 TO COMMANDANT'S BULLETIN NO. 21- 63 WHICH IS PUBLISHED AT PAGE 39 IN THE HEARINGS (JUNE 26, 1963) BEFORE THE SUBCOMMITTEE ON COAST GUARD, COAST AND GEODETIC SURVEY, AND NAVIGATION OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES.)

THE ABOVE-QUOTED LEGISLATIVE AND ADMINISTRATIVE COMMENTS RELATIVE TO THE PROVISIONS OF SECTION 288 (A), TITLE 14, U.S. CODE, AS ADDED BY PUBLIC LAW 88-130, SUPPORT THE VIEW THAT RETIREMENT IS REQUIRED ON JUNE 30 OF THE FISCAL YEAR IN THE CASE OF A CAPTAIN IN THE REGULAR COAST GUARD WHOSE NAME IS NOT ON AN APPROVED LIST FOR PROMOTION TO FLAG GRADE AND WHO IN THAT SAME FISCAL YEAR COMPLETES 30 YEARS OF ACTIVE COMMISSIONED SERVICE IN THE COAST GUARD. WHILE THE LEGISLATIVE AND ADMINISTRATIVE COMMENTS, ABOVE REFERRED TO, WOULD NOT BY THEMSELVES REQUIRE THE CONCLUSION THAT AN OFFICER WITHIN THE MANDATORY RETIREMENT PROVISIONS OF 14 U.S.C. 288 (A) MAY NOT RETIRE VOLUNTARILY UNDER SOME OTHER PROVISIONS OF LAW (FOR EXAMPLE, SECTION 291, TITLE 14, U.S. CODE, IN CAPTAIN ING'S CASE), WHERE SUCH VOLUNTARY RETIREMENT BECOMES EFFECTIVE ON THE SAME DATE THAT MANDATORY RETIREMENT IS REQUIRED UNDER SECTION 288 (A), OTHER PROVISIONS IN THE SAME LAW (PUBLIC LAW 88-130) INDICATE MORE CLEARLY THE CONGRESSIONAL INTENT UNDERLYING ENACTMENT OF SECTION 288 (A).

SUBSECTION (G) OF SECTION 289, TITLE 14, U.S.C. (ENACTED IN THE SAME ACT, PUBLIC LAW 88-130, SEPTEMBER 24, 1963, 77 STAT. 186), PROVIDES THAT:

"/G)EACH OFFICER WHO IS CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON ACTIVE DUTY UNDER THE PROVISIONS OF THIS SECTION SHALL, UNLESS RETIRED UNDER SOME OTHER PROVISION OF LAW, BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH THE REPORT OF THE CONTINUATION BOARD CONVENED UNDER THIS SECTION IS APPROVED, OR THE LAST DAY OF THE MONTH IN WHICH HE COMPLETES TWENTY YEARS OF ACTIVE SERVICE, WHICHEVER IS LATER.'

UNDER SECTION 289 (G) AN OFFICER "UNLESS RETIRED UNDER SOME OTHER PROVISION OF LAW" IS REQUIRED TO BE RETIRED ON JUNE 30 OF THE FISCAL YEAR THEREIN PRESCRIBED OR THE LAST DAY OF THE MONTH IN WHICH HE COMPLETES 20 YEARS OF ACTIVE SERVICE, WHICHEVER IS LATER. SECTION 289 (G) THUS PERMITS AN ALTERNATE BASIS OF RETIREMENT "UNDER SOME OTHER PROVISION OF LAW" EFFECTIVE ON THE SAME DATE AS THE MANDATORY RETIREMENT DATE THEREIN SET FORTH.

SUCH CLEAR AND SPECIFIC STATUTORY LANGUAGE DEMONSTRATES THAT CONGRESS WAS AWARE THAT SOME OFFICERS WHOSE STATUS WOULD FALL WITHIN THE MANDATORY RETIREMENT PROVISIONS OF SECTION 289 (G) MIGHT ALSO BE QUALIFIED FOR RETIREMENT UNDER SOME OTHER PROVISION OF LAW. BY INCLUDING IN SECTION 289 (G) THE PHRASE "UNLESS RETIRED UNDER SOME OTHER PROVISION OF LAW," CONGRESS CLEARLY DISCLOSED AN INTENT THAT SUCH OFFICERS COULD BE RETIRED UNDER SOME OTHER PROVISION OF LAW ON THE SAME DATE THAT THEIR MANDATORY RETIREMENT IS REQUIRED BY SECTION 289 (G).

SIMILARLY, CONGRESSIONAL AWARENESS OF ELIGIBILITY OF CERTAIN OFFICERS FOR RETIREMENT UNDER SOME OTHER PROVISION OF LAW IS INHERENT IN THE PHRASE "IF NOT EARLIER RETIRED" CONTAINED IN SECTION 288 (A). THE LANGUAGE OF THIS PHRASE, WHEN COMPARED TO AND CONTRASTED WITH THE PHRASE "UNLESS RETIRED UNDER SOME OTHER PROVISION OF LAW" CONTAINED IN SECTION 289 (G), STRONGLY SUGGESTS THE CONGRESSIONAL INTENT THAT VOLUNTARY RETIREMENT SOUGHT UNDER SOME OTHER PROVISION OF LAW DOES NOT BECOME EFFECTIVE UNLESS ACCOMPLISHED ON A DATE WHICH IS EARLIER THAN THE COMPULSORY RETIREMENT DATE PRESCRIBED IN SECTION 288 (A).

THE ORDERS OF JUNE 10, 1968, WHICH DETACHED CAPTAIN ING "FROM ALL DUTIES EFFECTIVE 30 JUNE 1968 * * * IN CONNECTION WITH RETIREMENT" UNDER AUTHORITY OF SECTION 291, TITLE 14, U.S. CODE, DID NOT ACCOMPLISH HIS RETIREMENT ON A DATE PRIOR TO JUNE 30, 1968. HENCE, UNDER THE SPECIFIC PROVISIONS OF 14 U.S.C. 288 (A), CAPTAIN ING WAS MANDATORILY RETIRED ON JUNE 30, 1968, AND CONSEQUENTLY, THE COMPUTATION OF HIS RETIRED PAY UNDER THE PROVISIONS OF 14 U.S.C. 423 EFFECTIVE FROM JULY 1, 1968, IS REQUIRED TO BE BASED ON THE RATES OF ACTIVE DUTY BASIC PAY WHICH WERE IN EFFECT ON JUNE 30, 1968.

THE RECORD INDICATES THAT CHIEF WARRANT OFFICER BLAIR COMPLETED 30 YEARS OF ACTIVE SERVICE IN APRIL 1968. SUBSECTION (A) OF SECTION 1305, TITLE 10, U.S.C. (1964 ED. SUPP. III) PROVIDES:

"/A) A PERMANENT REGULAR WARRANT OFFICER WHO HAS AT LEAST 30 YEARS OF ACTIVE SERVICE THAT COULD BE CREDITED TO HIM UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (70 STAT. 114) SHALL BE RETIRED 60 DAYS AFTER HE COMPLETES THAT SERVICE, EXCEPT AS PROVIDED BY SECTION 8301 OF TITLE 5.'

SECTION 8301 OF TITLE 5, U.S.C. (1964 ED. SUPP III), PROVIDES AS FOLLOWS:

"/A) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY THIS TITLE OR OTHER STATUTE, RETIREMENT AUTHORIZED BY STATUTE IS EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

"/B) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE IS COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SUBSECTION (A) OF THIS SECTION.'

UNDER THE PROVISIONS OF 10 U.S.C. 1305 (A) AND 5 U.S.C. 8301 (A) THE MANDATORY RETIREMENT DATE IN THE CASE OF CHIEF WARRANT OFFICER BLAIR WAS JULY 1, 1968. IN THE EVENT OF HIS MANDATORY RETIREMENT UNDER THE ABOVE- CITED STATUTORY PROVISIONS THE RESTRICTIVE PROVISIONS OF SUBSECTION (B) OF 5 U.S.C. 8301 WOULD PRECLUDE USE OF THE HIGHER RATE OF ACTIVE DUTY BASIC PAY WHICH BECAME EFFECTIVE JULY 1, 1968, AND IN SUCH A CASE THE COMPUTATION OF HIS RETIRED PAY WOULD BE REQUIRED TO BE BASED ON THE ACTIVE DUTY RATES OF PAY THAT WERE IN EFFECT IN JUNE 1968. HOWEVER, AS INDICATED ABOVE, THE MANDATORY RETIREMENT ORDERS FOR CHIEF WARRANT OFFICER BLAIR WERE CANCELLED BEFORE THEIR EFFECTIVE DATE (JULY 1, 1968) AND NEW RETIREMENT ORDERS WERE ISSUED JUNE 7, 1968, DETACHING HIM FROM ALL DUTIES EFFECTIVE JUNE 30, 1968, AND APPROVING HIS REQUEST FOR VOLUNTARY RETIREMENT UNDER SECTION 1293, TITLE 10, U.S. CODE, WHICH PROVIDES AS FOLLOWS:

"THE SECRETARY CONCERNED MAY, UPON THE WARRANT OFFICER'S REQUEST, RETIRE A WARRANT OFFICER OF ANY ARMED FORCE UNDER HIS JURISDICTION WHO HAS AT LEAST 20 YEARS OF ACTIVE SERVICE THAT COULD BE CREDITED TO HIM UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (70 STAT. 114).'

SECTION 1315, TITLE 10, U.S. CODE, EXPRESSLY PROVIDES THAT MEMBERS OF THE ARMED FORCES RETIRED UNDER SECTION 1293 OR SECTION 1305 ARE ENTITLED TO RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1401. FORMULA 4 OF SECTION 1401 (APPLICABLE WHEN RETIREMENT IS EFFECTED IN ACCORDANCE WITH SECTION 1293) PROVIDES THAT RETIRED PAY SHALL BE COMPUTED ON THE BASIS OF "MONTHLY BASIC PAY TO WHICH MEMBER WOULD HAVE BEEN ENTITLED IF HE HAD SERVED ON ACTIVE DUTY IN HIS RETIRED GRADE ON DAY BEFORE RETIREMENT * * *.'

IN DECISION OF OCTOBER 29, 1968, B-164842 (48 COMP. GEN. ---) THERE WAS PRESENTED, AMONG OTHERS, THE CASE OF CHIEF WARRANT OFFICER ROBERT J. NOONAN, U.S. NAVY, RETIRED, WHO WAS SCHEDULED FOR INVOLUNTARY RETIREMENT EFFECTIVE JULY 1, 1968, UNDER 10 U.S.C. 564 (A) BUT PRIOR TO THAT DATE AND AT HIS REQUEST HIS VOLUNTARY RETIREMENT WAS APPROVED EFFECTIVE JULY 1, 1968, UNDER 10 U.S.C. 1293, 1315 AND 1371. UNDER FORMULA 4 OF 10 U.S.C. 1401 (THE FORMULA FOR COMPUTATION OF RETIRED PAY IN THE CASE OF RETIREMENT UNDER 10 U.S.C. 1293) THE OFFICER'S RETIRED PAY WAS REQUIRED TO BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY TO WHICH HE WOULD HAVE BEEN ENTITLED IF HE HAD SERVED ON ACTIVE DUTY IN HIS RETIRED GRADE ON THE DAY BEFORE RETIREMENT AND SINCE WE WERE NOT AWARE OF ANY OTHER FORMULA OR OTHER PROVISION OF LAW UNDER WHICH HE WOULD HAVE BEEN ENTITLED TO COMPUTE HIS RETIRED PAY ON A BASIS MORE FAVORABLE TO HIM, IT WAS HELD THAT HE WAS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE JULY 1, 1968. THE SAME PROVISIONS OF LAW (10 U.S.C. 1293, 1315, 1371 AND FORMULA 4 OF 10 U.S.C. 1401) APPLY TO CHIEF WARRANT OFFICER BLAIR AND HENCE, THE SAME CONCLUSION IS REQUIRED WITH RESPECT TO THE BASIS ON WHICH HIS RETIRED PAY PROPERLY MAY BE COMPUTED EFFECTIVE FROM JULY 1, 1968.