B-165038/1), JUN. 2, 1969

B-165038/1): Jun 2, 1969

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C. GORDON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 20. YOU SAY THAT EACH OF THE ABOVE-MENTIONED OFFICERS WAS SUBJECT TO INVOLUNTARY RETIREMENT ON JUNE 30. THAT THE FACTS IN EACH CASE ARE SOMEWHAT DIFFERENT. THAT THE EVENTS LEADING TO THEIR RETIREMENT ARE AS STATED BELOW. ADMIRAL CARPENTER WAS NOTIFIED BY LETTER DATED FEBRUARY 26. RETIREMENT ORDERS WERE ISSUED ON JUNE 10. WAS ADVISED THAT HE WOULD BE RETIRED ON JULY 1. HE WAS DIRECTED TO PROCEED WITH THE REQUIRED PHYSICAL EXAMINATION DURING THE MONTH OF MARCH 1968 AND WAS ADVISED THAT RETIREMENT ORDERS WOULD BE ISSUED 2 MONTHS IN ADVANCE OF HIS RETIREMENT. CERTAIN PHYSICAL DEFECTS WERE NOTED DURING HIS PHYSICAL EXAMINATION AND HE WAS RETAINED BEYOND JUNE 30.

B-165038/1), JUN. 2, 1969

TO MISS C. C. GORDON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1969, REQUESTING A DECISION WHETHER REAR ADMIRALS ALBERT J. CARPENTER AND WILLIAM W. CHILDRESS, CAPTAIN EDWARD P. CHESTER, JR., COMMANDERS JOSEPH N. GONYEAR AND OLIVER W. HARRISON, AND LIEUTENANT COMMANDER WILLIAM I. JANICKE MAY COMPUTE THEIR RETIRED PAY ON THE RATES OF BASIC PAY WHICH BECAME EFFECTIVE JULY 1, 1968.

YOU SAY THAT EACH OF THE ABOVE-MENTIONED OFFICERS WAS SUBJECT TO INVOLUNTARY RETIREMENT ON JUNE 30, 1968; THAT THE FACTS IN EACH CASE ARE SOMEWHAT DIFFERENT; AND THAT THE EVENTS LEADING TO THEIR RETIREMENT ARE AS STATED BELOW.

ADMIRAL CARPENTER WAS NOTIFIED BY LETTER DATED FEBRUARY 26, 1968, THAT HE WOULD BE RETIRED ON JULY 1, 1968, UNDER 14 U.S.C. 290, PROVIDING FOR INVOLUNTARY RETIREMENT. ON MAY 14, 1968, HE REQUESTED VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF 14 U.S.C. 292. RETIREMENT ORDERS WERE ISSUED ON JUNE 10, 1968, WHICH HAD THE EFFECT OF RETIRING HIM ON JULY 1, 1968, UNDER 14 U.S.C. 292.

BY LETTER DATED FEBRUARY 26, 1968, ADMIRAL CHILDRESS, THE SECOND OFFICER MENTIONED, WAS ADVISED THAT HE WOULD BE RETIRED ON JULY 1, 1968, UNDER 14 U.S.C. 290. HE WAS DIRECTED TO PROCEED WITH THE REQUIRED PHYSICAL EXAMINATION DURING THE MONTH OF MARCH 1968 AND WAS ADVISED THAT RETIREMENT ORDERS WOULD BE ISSUED 2 MONTHS IN ADVANCE OF HIS RETIREMENT. CERTAIN PHYSICAL DEFECTS WERE NOTED DURING HIS PHYSICAL EXAMINATION AND HE WAS RETAINED BEYOND JUNE 30, 1968. HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON JULY 12, 1968, WITH 30 PERCENT DISABILITY. REQUESTED TO BE VOLUNTARILY RETIRED UNDER 14 U.S.C. 292.

THE THIRD OFFICER, CAPTAIN CHESTER, WAS ADVISED THAT HE WOULD BE RETIRED ON JULY 1, 1968, UNDER THE PROVISIONS OF 14 U.S.C. 288, FOR INVOLUNTARY RETIREMENT. A PHYSICAL EXAMINATION WAS DIRECTED WITH RETIREMENT ORDERS TO FOLLOW. ON MAY 16, 1968, HE REQUESTED THAT HE BE VOLUNTARILY RETIRED ON JULY 1, 1968, UNDER 14 U.S.C. 292. AS A RESULT OF CERTAIN DEFECTS FOUND AT THE TIME OF HIS EXAMINATION HE WAS NOT RETIRED ON JULY 1, 1968. APPEARED BEFORE THE PHYSICAL EVALUATION BOARD AND WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON DECEMBER 1, 1968, WITH 20 PERCENT DISABILITY.

THE NEXT TWO OFFICERS, COMMANDER GONYEAU AND LIEUTENANT COMMANDER JANICKE, WERE INFORMED THAT THEY WOULD BE DETACHED FROM DUTY ON JUNE 30, 1968, UNDER 14 U.S.C. 285, RETIREMENT FOR FAILURE OF SELECTION FOR PROMOTION, AND THAT RETIREMENT ORDERS WOULD BE ISSUED AT A LATER DATE. BOTH OFFICERS REQUESTED VOLUNTARY RETIREMENT UNDER 14 U.S.C. 291. THEIR REQUESTS WERE APPROVED AND APPROPRIATE ORDERS WERE ISSUED SO RETIRING THEM ON JULY 1, 1968, AT WHICH TIME COMMANDER GONYEAU HAD 20 YEARS AND 9 DAYS OF ACTIVE SERVICE AND LIEUTENANT COMMANDER JANICKE HAD 23 YEARS, 1 MONTH AND 9 DAYS OF ACTIVE SERVICE.

COMMANDER HARRISON, THE LAST OFFICER HERE INVOLVED, ALSO WAS ADVISED THAT HE WOULD BE INVOLUNTARILY RETIRED ON JUNE 30, 1968,UNDER 14 U.S.C. 285. ON MAY 14, 1968, HE REQUESTED THAT HE BE RETIRED ON JULY 1, 1968, UNDER 14 U.S.C. 291, VOLUNTARY RETIREMENT AFTER 20 YEARS SERVICE, ON WHICH DATE HE HAD SERVED ON ACTIVE DUTY FOR MORE THAN 23 YEARS. HOWEVER, ON MAY 31, 1968, HE WAS HOSPITALIZED WHICH REQUIRED RETENTION BEYOND THE JUNE 30 RETIREMENT DATE. AS A RESULT HE WAS DIRECTED TO BE DETACHED FROM HIS DUTIES ON JULY 31, 1968, AND TO PROCEED TO HIS HOME IN CONNECTION WITH RETIREMENT. FORM CCHQ-3433, DATED AUGUST 1, 1968, INDICATES THAT COMMANDER HARRISON WAS RETIRED UNDER 14 U.S.C. 291 EFFECTIVE AUGUST 1, 1968.

YOU SAY THAT IN OUR DECISION OF JANUARY 6, 1969, B-165038, WE SAID THAT WHERE THE PHRASE ,UNLESS RETIRED UNDER SOME OTHER PROVISIONS OF LAW" APPEARS IN COAST GUARD INVOLUNTARY RETIREMENT LAWS, OFFICERS COULD BE RETIRED UNDER A LAW PROVIDING FOR VOLUNTARY RETIREMENT ON THE SAME DATE THEIR MANDATORY RETIREMENT IS REQUIRED AND THAT FOR THIS REASON IT IS BELIEVED THAT THOSE OFFICERS WHO WERE TO BE RETIRED UNDER 14 U.S.C. 285 AND 290 AND SUBSEQUENTLY REQUESTED VOLUNTARY RETIREMENT UNDER 14 U.S.C. 291 AND 292 COULD PROPERLY HAVE THEIR RETIRED PAY COMPUTED UNDER THE HIGHER RATES OF BASIC PAY THAT BECAME EFFECTIVE ON JULY 1, 1968, RATHER THAN SUCH RATES OF PAY THAT WERE IN EFFECT ON JUNE 30, 1968, CONSIDERING OUR PREVIOUS RULINGS ON THE APPLICATION OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301, UNDER THESE CIRCUMSTANCES.

SINCE ADMIRAL CARPENTER AND LIEUTENANT COMMANDER JANICKE REQUESTED TO BE RETIRED AND ACTUALLY WERE RETIRED UNDER A VOLUNTARY RETIREMENT STATUTE, YOU SUGGEST THAT THEY ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE RATES OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE ON JULY 1, 1968, AND THAT ADMIRAL CHILDRESS AND COMMANDER HARRISON ALSO MAY COMPUTE THEIR RETIRED PAY ON THE JULY 1, 1968, RATES EVEN THOUGH THEY WERE NOT RETIRED UNTIL JULY 12 AND 31 (AUGUST 1), 1968, RESPECTIVELY, AND NOTWITHSTANDING THE FACT THAT THE PERIOD OF RETENTION AFTER JULY 1, 1968, INCREASED THEIR ACTIVE DUTY PAY.

WE AGREE THAT ADMIRAL CARPENTER AND LIEUTENANT COMMANDER JANICKE MAY COMPUTE THEIR RETIRED PAY UNDER THE RATES OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE ON JULY 1, 1968, SINCE THEY WERE IN FACT RETIRED UNDER VOLUNTARY RETIREMENT STATUTES AT A TIME OTHER THAN WHEN THEY FIRST BECAME ELIGIBLE THEREFOR AND THE PROVISIONS OF LAW UNDER WHICH THEY WERE OTHERWISE REQUIRED TO BE RETIRED PERMITTED THEM TO BE RETIRED UNDER A VOLUNTARY RETIREMENT STATUTE AT THAT TIME.

SINCE DISABILITY RETIRED PAY IS COMPUTED UNDER FORMULAS 1 AND 2 OF 10 U.S.C. 1401, WHICH AUTHORIZES COMPUTATION OF RETIRED PAY UNDER THE MOST FAVORABLE FORMULA PROVISION, AND SINCE ADMIRAL CHILDRESS WAS ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT ON JULY 1, 1968, AND THAT DATE WAS NOT THE EARLIEST DATE ON WHICH HE WAS SO ELIGIBLE, AND SINCE SECTION 290 DID NOT PRECLUDE VOLUNTARY RETIREMENT OR DISABILITY RETIREMENT ON THAT DATE, WE DO NOT BELIEVE THAT HIS LATER DISABILITY RETIREMENT PREJUDICED HIS RIGHTS UNDER 14 U.S.C. 292. HENCE, WE CONCUR IN YOUR CONCLUSION THAT HE ALSO WAS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE ON JULY 1, 1968.

YOU SAY THAT COMMANDER GONYEAU RETIRED UNDER A VOLUNTARY RETIREMENT STATUTE, HAVING COMPLETED 20 YEARS OF SERVICE IN JUNE 1968. HENCE, HE FIRST BECAME QUALIFIED FOR RETIREMENT UNDER 14 U.S.C. 291 DURING THE MONTH OF JUNE 1968 AND BEGAN RECEIVING RETIRED PAY ON JULY 1, 8 1968, THE EARLIEST DATE HE COULD HAVE RECEIVED RETIRED PAY UNDER THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301. UNDER SUCH CIRCUMSTANCES, HIS RETIRED PAY MUST BE COMPUTED UNDER THE RATES OF ACTIVE DUTY PAY IN EFFECT ON JUNE 30, 1968. WE AGREE WITH YOUR CONCLUSION IN THIS OFFICER'S CASE.

YOU STATE THAT IF CAPTAIN CHESTER HAD NOT BEEN RETAINED FOR PHYSICAL REASONS, HE WOULD HAVE BEEN INVOLUNTARILY RETIRED ON JUNE 30, 1968, UNDER 14 U.S.C. 288 AND THAT THEREFORE HE COULD NOT COMPUTE HIS RETIRED PAY ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE ON JULY 1, 1968. YOU POINT OUT THAT IN DECISION OF MAY 25, 1964, 43 COMP. GEN. 742, WE HELD THAT AN ARMY OFFICER WHO WAS RETAINED BEYOND HIS MANDATORY RETIREMENT DATE FOR PHYSICAL EVALUATION AND SUBSEQUENT DISABILITY RETIREMENT COULD NOT COUNT THE PERIOD OF RETENTION FOR BASIC PAY PURPOSES TO INCREASE HIS RETIRED PAY.

WE THERE SAID THAT IN THE ABSENCE OF A PROVISION OF LAW EXEMPTING OFFICERS FOUND TO BE PHYSICALLY DISQUALIFIED FOR FURTHER ACTIVE SERVICE FROM THE POSITIVE REQUIREMENTS OF 10 U.S.C. 3916 (A) PROVIDING FOR MANDATORY RETIREMENT ON A CERTAIN DATE, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, THE FACT THAT THE ARMY FAILED TO ACCOMPLISH HIS INVOLUNTARY RETIREMENT ON THE DATE REQUIRED BY LAW DID NOT ADD TO HIS RIGHTS IN ANY WAY IN COMPUTING THE AMOUNT OF RETIRED PAY TO WHICH HE WAS ENTITLED. IS OUR OPINION THAT A SIMILAR CONCLUSION IS REQUIRED IN THE CASE OF CAPTAIN CHESTER AND THAT HIS RETIRED PAY IS PROPERLY BEING COMPUTED ON THE APPLICABLE RATE OF BASIC PAY WHICH WAS IN EFFECT ON JUNE 30, 1968.

SINCE COMMANDER HARRISON HAD SERVED ON ACTIVE DUTY FOR MORE THAN 23 YEARS AND WAS ELIGIBLE FOR VOLUNTARY RETIREMENT ON JULY 1, 1968,AND WAS IN FACT RETIRED UNDER 14 U.S.C. 291 (VOLUNTARY RETIREMENT AFTER 20 YEARS' SERVICE) EFFECTIVE AUGUST 1, 1968, AFTER HAVING BEEN RETAINED ON ACTIVE DUTY FOR PHYSICAL EVALUATION AND POSSIBLE DISABILITY RETIREMENT, AND SINCE WE CONCLUDE THAT SUCH RETENTION DID NOT PREJUDICE HIS RIGHTS, HE IS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE APPLICABLE ACTIVE DUTY PAY RATE THAT BECAME EFFECTIVE ON JULY 1, 1968.