B-165693, FEBRUARY 12, 1969, 48 COMP. GEN. 532

B-165693: Feb 12, 1969

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WHO THEN ON THE BASIS OF RETIREMENT UNDER SECTION 1331 IS PLACED ON THE AIR FORCE RESERVE RETIRED LIST AS A MAJOR EFFECTIVE AUGUST 9. IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS LIEUTENANT COMMANDER GRADE PROVIDED THE SECRETARY OF THE NAVY OR HIS DESIGNEE DETERMINES THE OFFICER SATISFACTORILY HELD THAT GRADE. 1969 FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE DEPUTY COMPTROLLER FOR ACCOUNTING AND FINANCE UNDER DATE OF DECEMBER 18. MASTER SERGEANT WHORLEY WAS PLACED ON THE UNITED STATES AIR FORCE RETIRED LIST AS OF SEPTEMBER 30. SERGEANT WHORLEY WAS RELIEVED FROM HIS ASSIGNMENT AS AN ENLISTED MAN IN THE AIR FORCE RESERVE.

B-165693, FEBRUARY 12, 1969, 48 COMP. GEN. 532

PAY - RETIRED - ADVANCEMENT ON RETIRED LIST - HIGHEST GRADE SATISFACTORILY HELD "AT ANY TIME IN THE ARMED FORCES" AN AIR FORCE MASTER SERGEANT RETIRED EFFECTIVE OCTOBER 1, 1966, PURSUANT TO 10 U.S.C. 1331 AND 1401, IN THE GRADE OF MAJOR, THE EQUIVALENT GRADE IN THE AIR FORCE TO THAT OF LIEUTENANT COMMANDER, THE HIGHEST GRADE HE SATISFACTORILY HELD IN THE NAVAL RESERVE WHERE HE SERVED FOR 20 YEARS, AND WHO THEN ON THE BASIS OF RETIREMENT UNDER SECTION 1331 IS PLACED ON THE AIR FORCE RESERVE RETIRED LIST AS A MAJOR EFFECTIVE AUGUST 9, 1967, IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS LIEUTENANT COMMANDER GRADE PROVIDED THE SECRETARY OF THE NAVY OR HIS DESIGNEE DETERMINES THE OFFICER SATISFACTORILY HELD THAT GRADE. THE MEMBER HAVING QUALIFIED FOR RETIRED PAY UNDER 10 U.S.C. 1331 BECAME ENTITLED TO RETIRED PAY COMPUTED UNDER FORMULA 3, SECTION 1401, WHICH PRESCRIBES THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE HIGHEST GRADE SATISFACTORILY HELD "AT ANY TIME IN THE ARMED FORCES.'

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, FEBRUARY 12, 1969

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1968 (FILE REFERENCE ALRA-1), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $69.44 IN FAVOR OF JACOB M. WHORLEY, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN THAT COMPUTED ON THE BASIS OF A MAJOR AND THAT OF A MASTER SERGEANT FOR THE PERIOD SEPTEMBER 1 TO 30, 1968. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE DEPUTY COMPTROLLER FOR ACCOUNTING AND FINANCE UNDER DATE OF DECEMBER 18, 1968, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1026 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM THE RECORD THAT BY ORDERS DATED MAY 31, 1967, DEPARTMENT OF THE AIR FORCE, HEADQUARTERS AIR RESERVE PERSONNEL CENTER, DENVER, COLORADO, MASTER SERGEANT WHORLEY WAS PLACED ON THE UNITED STATES AIR FORCE RETIRED LIST AS OF SEPTEMBER 30, 1966, AND RETIRED EFFECTIVE OCTOBER 1, 1966, WITH RETIRED PAY COMPUTED AS A MAJOR (HIGHEST GRADE SATISFACTORILY HELD) PURSUANT TO SECTIONS 1331 AND 1401, TITLE 10, U.S.C. THOSE ORDERS SHOW HIS THEN CURRENT GRADE IN THE AIR FORCE AS A MASTER SERGEANT.

THEREAFTER, BY ORDERS DATED AUGUST 16, 1967, ISSUED BY THE SAME HEADQUARTERS, SERGEANT WHORLEY WAS RELIEVED FROM HIS ASSIGNMENT AS AN ENLISTED MAN IN THE AIR FORCE RESERVE, APPOINTED A MAJOR AND ASSIGNED TO THE RETIRED RESERVE SECTION, AND PLACED ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST EFFECTIVE AUGUST 9, 1967. THOSE ORDERS CITED PARAGRAPH 40A, AIR FORCE MANUAL 35-7, AS AUTHORITY FOR THE ACTION TAKEN. THIS REGULATION PROVIDES THAT ELIGIBILITY FOR TRANSFER OR ASSIGNMENT TO THE RETIRED RESERVE IS ESTABLISHED WHEN A MEMBER OF A RESERVE COMPONENT HAS BEEN RETIRED OR GRANTED RETIRED PAY UNDER 10 U.S.C. 1331.

IT IS STATED IN YOUR LETTER THAT THE OFFICER HELD THE GRADE OF LIEUTENANT COMMANDER IN THE UNITED STATES NAVAL RESERVE (WHICH IS EQUIVALENT TO THE GRADE OF MAJOR IN THE AIR FORCE) AND THAT THE HIGHEST GRADE HELD BY HIM IN THE AIR FORCE WAS MASTER SERGEANT. OTHER INFORMATION SHOWS THAT HE WAS A MEMBER OF THE NAVAL RESERVE FROM MARCH 16, 1942, TO JUNE 30, 1962, AND THAT THE HIGHEST GRADE HELD BY HIM IN THAT CAPACITY WAS LIEUTENANT COMMANDER. IT IS FURTHER SHOWN THAT HE HAD SERVED IN THE NEW MEXICO NATIONAL GUARD FROM SEPTEMBER 12, 1962, TO SEPTEMBER 30, 1966. PRESUMABLY THIS WAS SERVICE AS AN ENLISTED MAN.

YOU REFER TO SEVERAL OF OUR DECISIONS AND TO THE DECISIONS OF THE COURT OF CLAIMS IN FRIESTEDT V UNITED STATES, 173 CT. CL. 447 (1965), AND MILLER V UNITED STATES, 180, CT. CL. 872 (1967), AND YOU EXPRESS THE VIEW THAT IN THE LIGHT OF OUR DECISION OF JUNE 10, 1968, 47 COMP. GEN. 722, UNDER 10 U.S.C. 1401, FORMULA 3, A RETIRED MEMBER OF ONE BRANCH OF THE UNIFORMED SERVICES WHO HELD A HIGHER GRADE IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF SUCH HIGHER GRADE. YOU SAY, HOWEVER, THAT, SINCE FORMULA 3 OF SECTION 1401 REFERS TO SERVICE IN THE "ARMED FORCES"--- LANGUAGE SEEMINGLY BROADER IN SCOPE THAN IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949--- YOU REQUEST A DECISION AS TO WHETHER SERGEANT WHORLEY CAN BE PAID AT THE RATE OF MAJOR BASED ON HIS GRADE OF LIEUTENANT COMMANDER HELD IN THE UNITED STATES NAVAL RESERVE.

IT APPEARS FROM THE RECORD THAT SINCE HIS RETIREMENT, THE OFFICER'S RETIRED PAY HAS BEEN COMPUTED ON THE BASIS OF HIS GRADE OF LIEUTENANT COMMANDER, BUT BECAUSE OF OUR DECISION OF JUNE 10, 1968, HIS RETIRED PAY WAS RECOMPUTED EFFECTIVE SEPTEMBER 1, 1968, ON THE BASIS OF HIS GRADE OF MASTER SERGEANT, THE HIGHEST GRADE HELD BY HIM IN THE AIR FORCE.

WE HAVE HELD IN CASES INVOLVING SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311 (1958 ED.), THAT A RETIRED MEMBER OF ONE BRANCH OF THE UNIFORMED SERVICES WHO SATISFACTORILY HELD A HIGHER RANK, GRADE OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE OR RATING. SEE 29 COMP. GEN. 437; 32 ID. 425; AND B-145892, DATED JULY 18, 1961. IN 32 COMP. GEN. 425, THE PROVISIONS OF SECTION 513 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 313, WERE DISTINGUISHED FROM THOSE OF SECTION 511 OF THAT ACT IN THAT SECTION 511 WAS ADDRESSED TO MEN THERETOFORE RETIRED WHILE SECTION 513 WAS ADDRESSED TO THOSE BOTH THERETOFORE AND THEREAFTER RETIRED APPLIED ONLY TO MEMBERS WHO HAD WORLD WAR I SERVICE. IN 33 COMP. GEN. 10 WE HELD THAT THE LIMITATION OF THE "SAME SERVICE" RULE APPLIED TO THOSE MEMBERS SEEKING THE RETIREMENT AND SEPARATION BENEFITS OF SECTIONS 402 AND 403 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 272 AND 273 (1952 ED.), RESPECTIVELY.

IN THE FRIESTEDT CASE, THE COURT OF CLAIMS HELD THAT AN ENLISTED MEMBER OF THE AIR FORCE RETIRED FOR DISABILITY WAS ENTITLED, WHEN ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 1372 (2), TO THE HIGHEST GRADE (FIRST LIEUTENANT) IN WHICH HE HAD SERVED SATISFACTORILY IN THE ARMY (WHEN THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY), AND THAT THEREFORE HE WAS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE PAY FOR THE GRADE OF FIRST LIEUTENANT. WE HELD IN DECISION OF APRIL 3, 1967, 46 COMP. GEN. 727, 730, THAT THE CONCLUSION OF THE COURT OF CLAIMS IN THE FRIESTEDT CASE WARRANTS MODIFICATION OF OUR DECISION IN 33 COMP. GEN. 10 ONLY TO THE EXTENT STATED IN THAT (LATER) DECISION.

IN THE MILLER CASE, THE COURT OF CLAIMS HELD THAT A RETIRED ENLISTED MEMBER OF THE COAST GUARD IS ENTITLED UNDER THE PROVISIONS OF 14 U.S.C. 362 TO COMPUTE HIS RETIRED PAY ON THE BASIS OF THE HIGHER GRADE IN WHICH HE HAD PREVIOUSLY SERVED SATISFACTORILY IN THE NAVY. WE CONCLUDED IN OUR DECISION OF JUNE 10, 1963, 47 COMP. GEN. 722, THAT WHILE THE STATUTORY PROVISIONS INVOLVED IN THE MILLER CASE WERE SOMEWHAT SIMILAR TO THE LANGUAGE OF SECTION 511 OF THE CAREER COMPENSATION ACT, THE MATTER WAS TOO DOUBTFUL TO WARRANT OUR HOLDING THAT THE RULE IN THE MILLER CASE SHOULD BE EXTENDED TO SIMILAR OR RELATED STATUTES. IN THAT CONNECTION WE NOTED THE DISINCLINATION OF THE COURT OF CLAIMS IN THE MILLER CASE TO DISCUSS THE CORRECTNESS OF OUR DECISIONS UNDER SECTION 511 OF THE CAREER COMPENSATION ACT AND THE DIFFERENCES BETWEEN THE VARIOUS RELATED STATUTES.

A NON-REGULAR MEMBER OF A UNIFORMED SERVICE WHO OTHERWISE QUALIFIES FOR RETIRED PAY UNDER 10 U.S.C. 1331-1337, IS ENTITLED TO RETIRED PAY COMPUTED UNDER FORMULA 3 OF SECTION 1401 OF TITLE 10, U.S. CODE, WHICH SPECIFIES THAT SUCH RETIRED PAY IS DETERMINED BY MULTIPLYING THE "MONTHLY BASIC PAY OF HIGHEST GRADE HELD SATISFACTORILY BY PERSON AT ANY TIME IN THE ARMED FORCES" BY "2-1/2 PERCENT OF YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1333.'

PRIOR TO THE CODIFICATION OF TITLE 10 BY THE ACT OF AUGUST 10, 1956, 70A STAT. 1, THE FORMULA FOR COMPUTATION OF SUCH RETIRED PAY WAS CONTAINED IN SECTION 303 OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1088, WHICH PROVIDED FOR THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM "DURING HIS ENTIRE PERIOD OF SERVICE.' THE CODIFIERS SUBSTITUTED THE WORDS "AT ANY TIME" FOR THE WORDS "DURING HIS ENTIRE PERIOD OF SERVICE.' SEE PAGE 115 OF H.REPT. NO. 970 DATED JUNE 28, 1955, TO ACCOMPANY H.R. 7049, WHICH REVISED, CODIFIED, AND ENACTED INTO LAW TITLE 10 OF THE UNITED STATES CODE.

IN DECISION OF JANUARY 3, 1951, 30 COMP. GEN. 262, WE CONSIDERED THE CASE OF AN ENLISTED MAN WHO SATISFACTORILY HELD THE GRADE OF CHIEF YEOMAN WHILE SERVING IN THE NAVY AND WHO THEREAFTER SERVED IN THE GRADE OF CORPORAL, NEW YORK NATIONAL GUARD, AND RETIRED IN THAT GRADE UNDER TITLE III OF THE ACT OF JUNE 29, 1948 (10 U.S.C. 1331-1337). SINCE THE GRADE OF CHIEF YEOMAN IN THE NAVY IS A HIGHER GRADE THAN THE GRADE OF CORPORAL IN THE ARMY, THE QUESTION AROSE WHETHER HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE GRADE OF CHIEF YEOMAN BECAUSE HE HELD SUCH GRADE IN A SERVICE DIFFERENT FROM THE SERVICE IN WHICH HE WAS GRANTED RETIRED PAY.

IN THAT DECISION WE CONSIDERED THE PROVISIONS OF SECTION 303 OF THE 1948 ACT PROVIDING FOR THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE HIGHEST GRADE SATISFACTORILY HELD "DURING HIS ENTIRE PERIOD OF SERVICE.' IN CONCLUDING THAT HE WAS ENTITLED TO HAVE HIS RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF A CHIEF YEOMAN IN THE NAVY, WE SAID (QUOTING FROM THE SYLLABUS):

A MEMBER OF THE NATIONAL GUARD RETIRED UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, WHICH GRANTS TO CERTAIN MEMBERS AND FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES RETIRED PAY BASED ON THE ACTIVE-DUTY PAY OF THE HIGHEST GRADE SATISFACTORILY HELD BY THEM IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF THE HIGHEST GRADE SATISFACTORILY HELD DURING HIS ENTIRE PERIOD OF SERVICE, EVEN THOUGH THAT GRADE WAS HELD IN A SERVICE DIFFERENT FROM THAT OF WHICH HE WAS A MEMBER AT THE TIME OF RETIREMENT.

UNLIKE THE LANGUAGE IN THE OTHER STATUTES, FORMULA 3 OF SECTION 1401 OF TITLE 10 CLEARLY SPECIFIES THAT FOR THOSE INDIVIDUALS RETIRED UNDER 10 U.S.C. 1331 THE MONTHLY RETIRED PAY IS TO BE BASED ON THE HIGHEST GRADE HELD SATISFACTORILY BY THE PERSON "AT ANY TIME IN THE ARMED FORCES.' THE LIGHT OF THIS LANGUAGE AND OUR HOLDING IN 30 COMP. GEN. 262, IT IS OUR VIEW THAT MR. WHORLEY IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS GRADE OF LIEUTENANT COMMANDER, THE HIGHEST GRADE HELD BY HIM IN THE NAVY, PROVIDED THE SECRETARY OF THE NAVY OR HIS DESIGNEE DETERMINES THAT HE SATISFACTORILY HELD THAT GRADE.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED ON THE BASIS INDICATED, IF OTHERWISE CORRECT.