B-165859, MARCH 18, 1969, 48 COMP. GEN. 618

B-165859, MARCH 18, 1969, 48 COMP. GEN. 618

PAY--RETIRED--ADVANCEMENT ON RETIRED LIST--RECOMPUTATION--RATES APPLICABLE ON RETIREMENT V. EFFECT OF MAY 20, 1958 ACT AN ARMY SERGEANT WHO AT THE TIME OF RETIREMENT ON JANUARY 1, 1960 UNDER 10 U.S.C. 3914 WAS RECEIVING ACTIVE DUTY PAY IN GRADE E-4 SUBJECT TO THE SAVINGS PROVISIONS OF THE ACT OF MAY 20, 1958, UPON ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF SERGEANT E-5 ON AUGUST 7, 1968 PURSUANT TO 10 U.S.C. 3964, IS NOT ENTITLED TO THE RECOMPUTATION OF HIS RETIRED PAY ON THE BASIS OF THE SAVED PAY RATE FOR GRADE E-5 AS THE ACT PROVIDES ONLY FOR THE SAVING OF THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT, AND THE SERGEANT ENTITLED ON MAY 20, 1958 TO THE PAY OF GRADE E-4, THE RECOMPUTATION OF HIS RETIRED PAY MAY NOT BE BASED ON THE SAVED PAY RATE OF GRADE E-5 BUT ON THE RATE PRESCRIBED IN THE 1958 ACT FOR GRADE E-5. B-156576, JULY 22, 1965, MODIFIED.

TO LIEUTENANT COLONEL J. E. FARR, DEPARTMENT OF THE ARMY, MARCH 18, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1968 (FILE REFERENCE FINCS-E ST. JOHN, GERALD, RA 6965868 (RETIRED)), FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER A-1027, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1.13 FOR THE PERIOD OCTOBER 1 TO 31, 1968, IN FAVOR OF SERGEANT GERALD ST. JOHN, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY OF SERGEANT, E-5, BASED ON A SAVED PAY STATUS COMPUTED UNDER A RATE OF BASIC PAY IN EFFECT ON APRIL 1, 1955, AND THE RATE OF PAY IN EFFECT ON JUNE 1, 1958.

SERGEANT ST. JOHN WAS RETIRED ON JANUARY 1, 1960, IN THE GRADE OF SPECIALIST 4 (E-4), UNDER THE PROVISIONS OF 10 U.S.C. 3914. HIS ACTUAL ACTIVE SERVICE TOTALED 21 YEARS, 4 MONTHS AND 24 DAYS. AT THE TIME OF RETIREMENT HE WAS RECEIVING ACTIVE DUTY BASIC PAY AT THE RATE OF $218.40 MONTHLY BY VIRTUE OF THE SAVINGS PROVISIONS PRESCRIBED IN SECTION 10 (1) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 130. RETIRED PAY WAS ESTABLISHED AT $114.66 MONTHLY COMPUTED AT 52 1/2 PERCENT OF THIS SAVED BASIC PAY RATE. SUBSEQUENT INCREASES IN RETIRED PAY UNDER AUTHORITY OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210, THE ACT OF AUGUST 21, 1965, PUBLIC LAW 89-132, 79 STAT. 545, AND SECTION 1401A OF TITLE 10, U.S. CODE, AS AMENDED, INCREASED HIS MONTHLY ENTITLEMENT TO $135.42, EFFECTIVE APRIL 1, 1968.

ON AUGUST 7, 1968, SERGEANT ST. JOHN WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF SERGEANT, E-5, PURSUANT TO 10 U.S.C. 3964 AND HE THEN WAS ENTITLED TO RECOMPUTE HIS RETIRED PAY AS PRESCRIBED IN 10 U.S.C. 3992. YOU INDICATE THAT THE MONTHLY ENTITLEMENT RECOMPUTED UNDER THE SAVED PAY RATE WOULD BE $149.95; AND THAT COMPUTED UNDER THE BASIC PAY RATE PRESCRIBED IN THE ACT OF MAY 20, 1958, THE MONTHLY ENTITLEMENT WOULD BE $148.82. THE AMOUNTS SO COMPUTED INCLUDE THE PERCENTAGE INCREASES AUTHORIZED UNDER SUBSEQUENT LEGISLATION. YOU STATE THE PROBLEM PRESENTED FOR AN ADVANCE DECISION AS FOLLOWS:

DOUBT EXISTS AS TO WHETHER SERGEANT ST. JOHN IS ENTITLED UPON ADVANCEMENT TO CONTINUE TO HAVE SAVED TO HIM THE 1955 BASIC PAY RATES AS THE GREATER AMOUNT APPLICABLE TO BOTH PAY GRADES E-4 AND E-5 WITH OVER 18 BUT LESS THAN 22 YEARS OF SERVICE OR IF THIS BASIC PAY RATE IS NO LONGER SAVED AND HE IS REQUIRED TO COME UNDER THE BASIC PAY RATES WHICH BECAME EFFECTIVE 1 JUNE 1958.

SECTION 10 OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 130, PROVIDES, IN PART, AS FOLLOWS:

THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---

(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT * * *.

IN DISCUSSING THE ABOVE PROVISION WE STATED IN 38 COMP. GEN. 281, 287, THAT:

SUCH PROVISIONS BY THEIR OWN TERMS GO NO FURTHER THAN TO SAVE TO THE MEMBERS CONCERNED THE BASIC PAY OR RETIRED PAY TO WHICH THEY WERE ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958. THE METHOD OF COMPUTING A MEMBER'S RETIRED PAY IS PRESCRIBED BY OTHER PROVISIONS OF LAW. * * * THE DETERMINATION TO BE MADE, THEN, IS WHETHER "ON THE DAY BEFORE THE EFFECTIVE DATE" OF THE ACT OF MAY 20, 1958, SERGEANT ST. JOHN WAS "ENTITLED" TO SAVED PAY RATES IN THE GRADE OF E-5 FOR PURPOSES OF THE AUGUST 7, 1968, RECOMPUTATION.

THE LEGISLATIVE HISTORY OF THE SAVED PAY PROVISION IN THE ACT OF MAY 20, 1958, DISCLOSES THAT THE PURPOSE THEREOF WAS TO INSURE THAT A MEMBER WOULD NOT SUFFER, BY REASON OF THE ENACTMENT OF THAT ACT, ANY REDUCTION IN BASIC OR RETIRED PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE ITS EFFECTIVE DATE. SEE S. REPT. NO. 1472, ON H.R. 11470, 85TH CONG; 2D SESS; 24-25. THE ONLY PAY TO WHICH SERGEANT ST. JOHN WAS ENTITLED ON THAT DATE WAS PAY IN THE GRADE OF E-4. THE SAVINGS PROVISION INSURED THAT SUCH RATE WOULD NOT BE REDUCED. THE DECISION QUOTED ABOVE (38 COMP. GEN. 281, 287) INDICATES THAT THE SAVINGS PROVISION GOES NO FURTHER THAN TO CONTINUE EXISTING ENTITLEMENTS, IN THIS CASE PAY IN THE GRADE OF E-4. IT DOES NOT JUSTIFY USING THE SAVED PAY RATE OF GRADE E-5 IN THE AUGUST 7, 1968, RECOMPUTATION, SINCE SERGEANT ST. JOHN WAS NOT ENTITLED TO PAYMENT AT THAT RATE PRIOR TO THE EFFECTIVE DATE OF THE 1958 ACT.

SECTION 3992 OF TITLE 10, U.S. CODE, PROVIDES THAT RECOMPUTATION SHOULD BE BASED ON THE RATE APPLICABLE ON THE DATE OF RETIREMENT. SINCE, FOR REASONS STATED ABOVE, ONLY PAY AT THE E-4 RATE WAS SAVED TO SERGEANT ST. JOHN, THE APPLICABLE RATE OF GRADE E-5 FOR PURPOSES OF THE COMPUTATION HERE INVOLVED IS THE RATE PRESCRIBED IN THE ACT OF MAY 20, 1958. THUS THE PROPER MONTHLY ENTITLEMENT IS $148.82. ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.

TO THE EXTENT THAT ANYTHING SAID IN OUR DECISION OF JULY 22, 1965, B- 156576, IS IN CONFLICT WITH THE VIEWS EXPRESSED HEREIN, THAT DECISION NO LONGER WILL BE FOLLOWED.