B-165351, NOVEMBER 18, 1968, 48 COMP. GEN. 329

B-165351, NOVEMBER 18, 1968, 48 COMP. GEN. 329

PAY - RETIRED - DISABILITY - DISABILITY DETERMINATION SUBSEQUENT TO RELEASE - RECORD CORRECTION ACTION THE RETIRED PAY OF AN AIR FORCE OFFICER RETIRED EFFECTIVE APRIL 1, 1963, WHO BY A CORRECTION OF MILITARY RECORDS IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AS OF MARCH 31, 1963, WITH ENTITLEMENT TO DISABILITY RETIRED PAY EFFECTIVE APRIL 1, 1963, FROM WHICH LIST HE IS REMOVED ON MARCH 11, 1968, PROPERLY WAS FOR COMPUTATION UNDER SECTION 5 (A) (1) AND NOT 5 (A) (2) OF THE UNIFORMED SERVICES PAY ACT OF 1963, THE OFFICER'S ENTITLEMENT TO RETIRED PAY ON APRIL 1, 1963 NOT HAVING OCCURRED BY FORCE OF THE UNIFORM RETIREMENT DATE ACT, BUT BY THE ACTION OF THE SECRETARY, AND THE OFFICER, THEREFORE, WAS NOT OVERPAID RETIRED PAY COMMENCING OCTOBER 1, 1963, COMPUTED AT 75 PERCENT OF THE MONTHLY BASIC PAY OF HIS GRADE FIXED BY THE 1963 PAY ACT. PAY - RETIRED - DISABILITY - RECOMPUTATION OF RETIRED PAY UPON REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 11, 1968, AND PERMANENTLY RETIRED WITH 50 PERCENT DISABILITY, AN AIR FORCE OFFICER WHOSE ORIGINAL RETIREMENT EFFECTIVE APRIL 1, 1963, UNDER 10 U.S.C. 8911 HAD BEEN CORRECTED TO PLACE HIM WITH 100 PERCENT DISABILITY ON THE TEMPORARY DISABILITY RETIRED LIST BECAME ENTITLED TO RETIRED PAY RECOMPUTED UNDER THE THIRD SENTENCE OF 10 U.S.C. 1401 AS THOUGH HE HAD RETIRED IN THE FIRST INSTANCE UNDER SECTION 8911, AND THE OFFICER'S RETIRED PAY GREATER WHEN COMPUTED UNDER FORMULA B AT 72-1/2 PERCENT OF THE MONTHLY PAY OF HIS GRADE FIXED BY THE UNIFORMED SERVICES PAY ACT OF 1963 THAN IF COMPUTED AT HIS DISABILITY RATING OF 50 PERCENT, BEGINNING MARCH 11, 1968, THE OFFICER BECAME ENTITLED TO RETIRED PAY COMPUTED UNDER FORMULA B, AS INCREASED BY SUBSEQUENT LEGISLATION.

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, NOVEMBER 18, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 28, 1968 (ALRA), REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT OF A VOUCHER STATED IN THE AMOUNT OF $82.76 IN FAVOR OF COLONEL THOMAS L. CRYSTAL, JR., USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED ON THE JUNE 1, 1958, BASIC PAY RATES (WITH SUBSEQUENT PERCENTAGE INCREASES) AND THE OCTOBER 1, 1963, BASIC PAY RATES (WITH SUBSEQUENT PERCENTAGE INCREASES) FOR THE PERIOD JUNE 1 THROUGH JULY 31, 1968. YOUR REQUEST WAS FORWARDED HERE BY LETTER OF HEADQUARTERS UNITED STATES AIR FORCE DATED SEPTEMBER 27, 1968, APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO-AF-1020.

COLONEL CRYSTAL WAS RELIEVED FROM ACTIVE DUTY MARCH 31, 1963, AND RETIRED EFFECTIVE APRIL 1, 1963, UNDER THE PROVISIONS OF 10 U.S.C. 8911 HAVING COMPLETED 28 YEARS, 9 MONTHS AND 19 DAYS OF ACTIVE SERVICE. PURSUANT TO SECTION 5 (A) (1) OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 212, 10 U.S.C. 1402 NOTE, AND OUR DECISION OF OCTOBER 29, 1963, 43 COMP. GEN. 425, HIS RETIRED PAY WAS RECOMPUTED ON THE RATES OF BASIC PAY PRESCRIBED BY SECTION 2 OF THAT ACT, 37 U.S.C. 203, EFFECTIVE OCTOBER 1, 1963, AND HE WAS PAID RETIRED PAY ON THAT BASIS (WITH SUBSEQUENT PERCENTAGE INCREASES) THROUGH MAY 3U, 1968.

ON AUGUST 19, 1966, THE SECRETARY OF THE AIR FORCE DIRECTED THAT THE PERTINENT RECORDS OF THE AIR FORCE RELATING TO COLONEL CRYSTAL BE CORRECTED TO SHOW THAT ON MARCH 31, 1963, HE BECAME UNFIT FOR MILITARY SERVICE BY REASON OF 100 PERCENT PHYSICAL DISABILITY AND THAT ON THE SAME DAY HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, WITH ENTITLEMENT TO DISABILITY RETIRED PAY EFFECTIVE APRIL 1, 1963. AS THE RESULT OF THE RECORD CORRECTION AN ADJUSTMENT IN RETIRED PAY WAS MADE FOR THE PERIOD APRIL 1, 1963, THROUGH AUGUST 18, 1966, FOR THE DIFFERENCE BETWEEN RETIRED PAY RECEIVED BASED ON A MULTIPLYING FACTOR OF 72-1/2 PERCENT UNDER 10 U.S.C. 8911 AND A MULTIPLYING FACTOR OF 75 PERCENT UNDER 10 U.S.C. 1202, COMPUTED ON THE 1963 BASIC PAY RATES, WITH SUBSEQUENT PERCENTAGE INCREASES.

COLONEL CRYSTAL CONTINUED TO RECEIVE RETIRED PAY ON THE BASIS OF THE HIGHER PERCENTAGE OF DISABILITY THROUGH MARCH 10, 1968, WHEN, AS THE RESULT OF HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST AND PERMANENT RETIREMENT FOR 50 PERCENT DISABILITY UNDER 10 U.S.C. 1201 ON MARCH 11, 1968, HIS RETIRED PAY WAS AGAIN PAID ON THE BASIS OF HIS YEARS- OF-SERVICE PERCENTAGE OF 72-1/2 PERCENT COMPUTED ON THE 1963 BASIC PAY RATES (WITH SUBSEQUENT ADJUSTMENTS).

AS THE RESULT OF AN AUDIT OF COLONEL CRYSTAL'S RETIRED PAY ACCOUNT, IT WAS DETERMINED THAT HIS RETIREMENT FOR DISABILITY DID NOT ENTITLE HIM TO RETIRED PAY COMPUTED ON THE BASIS OF THE 1963 BASIC PAY RATES UNDER SECTION 5 (A) (1) OF THE 1963 PAY ACT AND HIS RETIRED PAY WAS ADJUSTED DOWNWARD EFFECTIVE JUNE 1, 1968, TO THAT PRESCRIBED BY SECTION 5 (A) (2) OF THAT ACT. SUCH ACTION RESULTED IN AN INDEBTEDNESS BEING ESTABLISHED AGAINST HIM FOR THE PERIOD OCTOBER 1, 1963, THROUGH MAY 31, 1968.

YOU SAY THAT SINCE THE DISABILITY WAS NOT DETECTED PRIOR TO ORIGINAL RETIREMENT, THE ENTITLEMENT DATE OF APRIL 1, 1963, WAS NOT FIXED BY VIRTUE OF THE "UNIFORM RETIREMENT DATE ACT.' HOWEVER, HE WAS NOT ENTITLED TO RETIRED PAY PRIOR TO APRIL 1, 1963, AND YOU THEREFORE EXPRESS DOUBT AS TO WHETHER OR NOT COLONEL CRYSTAL'S RETIRED PAY SHOULD BE COMPUTED IN ACCORDANCE WITH 43 COMP. GEN. 425. WHILE YOU REQUEST A DECISION ONLY ON THE PROPRIETY OF PAYMENT TO HIM OF ADDITIONAL RETIRED PAY FOR THE MONTHS OF JUNE AND JULY 1968, IT SEEMS CLEAR THAT YOUR DOUBT EXTENDS TO THE CORRECT AMOUNT OF RETIRED PAY DUE HIM FOR THE ENTIRE PERIOD FROM OCTOBER 1, 1963, THROUGH JULY 31, 1968, SINCE HE HAS QUESTIONED THE ESTABLISHMENT OF A DEBT AGAINST HIM.

SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963 PROVIDES AS FOLLOWS:

SEC. 5. (A) EXCEPT AS PROVIDED IN SECTION 1402 OF TITLE 10, UNITED STATES CODE, THE CHANGES MADE BY THIS ACT IN THE RATES OF BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES DO NOT INCREASE THE RETIRED PAY OR RETAINER PAY TO WHICH A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT. HOWEVER, EXCEPT FOR A MEMBER COVERED BY SECTION 6331 OF TITLE 10, U.S.C. WHO BECAME ENTITLED TO RETAINER PAY BEFORE APRIL 1, 1963, AND SUBJECT TO SUBSECTION (J) OF THIS SECTION, A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER MARCH 31, 1963, BUT BEFORE THE EFFECTIVE DATE OF THIS ACT, IS ENTITLED---

(1) TO HAVE THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT RECOMPUTED UNDER THE RATES OF BASIC PAY PRESCRIBED BY SECTION 2 OF THIS ACT; OR

(2) TO CONTINUE TO HAVE THAT PAY COMPUTED UNDER THE RATES OF BASIC PAY THAT WERE IN EFFECT UNDER SECTION 203 OF TITLE 37, UNITED STATES CODE, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS THE PERCENTAGE INCREASE PROVIDED BY SUBSECTION (E) OF THIS SECTION; WHICHEVER PAY IS THE GREATER. FOR THE PURPOSES OF THE PRECEDING SENTENCE, A MEMBER OR FORMER MEMBER WHO BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF SECTION 1 OF THE ACT OF APRIL 23, 1930, CH. 209, AS AMENDED (5 U.S.C. 47A), SHALL BE CONSIDERED AS HAVING BECOME ENTITLED TO THAT PAY BEFORE APRIL 1, 1963.

SECTION 1 OF THE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, 5 U.S.C. 47A (1964 ED.), KNOWN AS THE UNIFORM RETIREMENT DATE ACT, PROVIDED:

RETIREMENT AUTHORIZED BY LAW OR FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHAT EVER CAUSE RETIRED SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.

THE ABOVE PROVISION WAS RESTATED AND REENACTED BY THE ACT OF SEPTEMBER 6, 1966, PUBLIC LAW 89-554, 80 STAT. 378, 557, AS 5 U.S.C.8301.

THE UNIFORM RETIREMENT DATE ACT REQUIRES THAT EVERY RETIREMENT (UNLESS SPECIFICALLY OR BY IMPLICATION EXEMPTED BY STATUTE) TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, BUT THAT THE RATE OF RETIRED PAY MUST BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THE UNIFORM RETIREMENT DATE ACT HAD NOT BEEN ENACTED. IN CONSTRUING THE LAST SENTENCE OF SECTION 5 (A) OF THE 1963 PAY ACT, WE HELD IN 43 COMP. GEN. 425 THAT WHERE A MEMBER IS RETIRED FOR DISABILITY WITHOUT THE SECRETARY CONCERNED HAVING DESIGNATED AN EARLIER DATE OF RETIREMENT UNDER 10 U.S.C. 1221, THE EFFECTIVE DATE OF RETIREMENT IS GOVERNED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. ALSO, GENERALLY, WHERE A MEMBER IS RETIRED FOR REASONS OTHER THAN DISABILITY ON THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH HE BECOMES ELIGIBLE THEREFOR THE RETIREMENT IS GOVERNED BY THE 1930 ACT. HOWEVER, WHERE A MEMBER IS RETIRED AT A TIME OTHER THAN THE DATE WHEN ELIGIBILITY FOR RETIREMENT FIRST EXISTS AND THE DATE OF RETIREMENT IS FIXED ON THE BASIS OF ADMINISTRATIVE DISCRETION OR ELECTION OF THE MEMBER ON THE FIRST DAY OF A MONTH LATER THAN THAT REQUIRED BY THE UNIFORM RETIREMENT DATE ACT, THE RESTRICTION CONTAINED IN THAT ACT LIMITING RETIRED PAY TO THE AMOUNT THAT WOULD HAVE BEEN PAYABLE IF THAT LAW HAD NOT BEEN ENACTED IS NOT FOR APPLICATION.

IN OUR DECISION OF MARCH 26, 1965, 44 COMP. GEN. 584, THERE WAS CONSIDERED THE EFFECT OF THE UNIFORM RETIREMENT DATE ACT ON RETIREMENTS PURSUANT TO 10 U.S.C. 6323 (A), WHICH PROVIDES THAT AN OFFICER OF THE NAVY OR THE MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT.

WE THERE HELD IN EFFECT THAT SINCE RETIREMENTS UNDER 10 U.S.C. 6323 (A) ARE REQUIRED TO TAKE EFFECT ON THE FIRST DAY OF A MONTH DESIGNATED BY THE PRESIDENT, THE PRIMARY PURPOSE OF THE UNIFORM RETIREMENT DATE ACT TO FIX RETIREMENTS ON THE FIRST DAY OF A MONTH WAS FULFILLED AND THE RESTRICTIVE PROVISION OF THAT ACT DOES NOT APPLY TO OFFICERS RETIRED UNDER 10 U.S.C. 6323 (A). THAT IS TO SAY THAT WHERE A MEMBER WOULD HAVE RETIRED ON THE FIRST DAY OF A MONTH HAD THE UNIFORM RETIREMENT DATE ACT NOT BEEN ENACTED, IT CANNOT BE SAID THAT THE EFFECTIVE DATE OF HIS RETIREMENT IS FIXED BY THE FORCE OF THE UNIFORM RETIREMENT DATE ACT SO AS TO MAKE HIM SUBJECT TO THE RESTRICTIVE PROVISION OF THAT ACT.

UNDER 10 U.S.C. 1221 THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR A MEMBER'S RETIREMENT, OR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, THAT IS EARLIER THAN THE FIRST DAY OF THE MONTH AS REQUIRED BY THE UNIFORM RETIREMENT DATE ACT AND UNDER 10 U.S.C. 1552 THE SECRETARY OF A MILITARY DEPARTMENT MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS SUCH ACTION NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. THUS, THE SECRETARY OF THE AIR FORCE, IN CORRECTING THE MILITARY RECORD OF COLONEL CRYSTAL, COULD HAVE PLACED HIM ON THE TEMPORARY DISABILITY RETIRED LIST AND SPECIFIED ANY EFFECTIVE DATE FOR HIS RETIREMENT.

WHILE THE CORRECTED RECORD PURPORTS TO SHOW THAT COLONEL CRYSTAL WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 31, 1963, IT APPEARS THAT HE REMAINED IN AN ACTIVE DUTY STATUS THROUGH THAT DAY SINCE HE DID NOT BECOME ENTITLED TO DISABILITY RETIRED PAY UNTIL APRIL 1, 1963. IT SEEMS CLEAR THAT HE DID NOT BECOME ENTITLED TO RETIRED PAY ON THAT DAY BY FORCE OF THE UNIFORM RETIREMENT DATE ACT, BUT BECAUSE OF THE ACTION TAKEN BY THE SECRETARY OF THE AIR FORCE, IN CONNECTION WITH HIS DISABILITY. ACCORDINGLY, IT IS OUR VIEW THAT WHILE HE WAS ON THE TEMPORARY DISABILITY RETIRED LIST HE WAS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE MONTHLY BASIC PAY OF HIS GRADE FIXED BY THE 1963 PAY ACT COMMENCING OCTOBER 1, 1963 (WITH SUBSEQUENT INCREASES PROVIDED BY LAW), WHICH HE HAS RECEIVED, AND THAT THE INDEBTEDNESS ESTABLISHED AGAINST HIM FOR THE PERIOD FROM OCTOBER 1, 1963, THROUGH MAY 31, 1968, SHOULD BE CANCELED.

UPON BEING PERMANENTLY RETIRED FOR DISABILITY ON MARCH 11, 1968, WITH 50 PERCENT DISABILITY, COLONEL CRYSTAL WAS ENTITLED TO RECOMPUTE HIS RETIRED PAY UNDER THE THIRD SENTENCE OF 10 U.S.C. 1401 AS THOUGH HE HAD RETIRED IN THE FIRST INSTANCE UNDER 10 U.S.C. 8911 IF THE FORMULA APPLICABLE TO RETIREMENTS UNDER THAT SECTION, FORMULA B, 10 U.S.C. 8991, IS MORE FAVORABLE TO HIM. SINCE, UNDER 43 COMP. GEN. 425, HE WOULD HAVE BEEN ENTITLED TO RETIRED PAY COMPUTED AT 72-1/2 PERCENT OF THE MONTHLY PAY OF HIS GRADE FIXED BY THE 1963 PAY ACT UNDER FORMULA B AND SUCH RETIRED PAY IS GREATER THAN THAT PAYABLE IF COMPUTED ON HIS DISABILITY RATING OF 50 PERCENT, HE BECAME ENTITLED, BEGINNING MARCH 11, 1968, TO RETIRED PAY COMPUTED ON THAT BASIS UNDER FORMULA B (AS INCREASED BY SUBSEQUENT PAY RAISE LEGISLATION).

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.