B-168238, JANUARY 20, 1970, 49 COMP. GEN. 440

B-168238: Jan 20, 1970

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IS NOT SUBJECT TO RECOMPUTATION UNDER 10 U.S.C. 3992 AT THE RATE "APPLICABLE ON DATE OF RETIREMENT. THE MEMBER'S RETIRED PAY WAS GREATER UNDER SECTION 511(A). RECOMPUTATION IS PERMITTED UNDER SECTION 511(B) TO PROVIDE THE GREATER AMOUNT OF RETIRED PAY PRESCRIBED BY THE SECTION. 1970: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 29. WHICH WAS FORWARDED HERE BY LETTER DATED OCTOBER 27. IT IS INDICATED IN YOUR LETTER AND ENCLOSURES THAT AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS ON APRIL 17. LIEUTENANT FLYNN WAS RETIRED DECEMBER 1. THE RECORD FURTHER SHOWS HE WAS SUBSEQUENTLY ADVANCED ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT (0-2) UPON COMPLETING 30 YEARS OF SERVICE TO INCLUDE THE SUM OF ACTIVE DUTY AND INACTIVE TIME ON THE RETIRED LIST AS PROVIDED IN SECTION 203(E) OF THE ACT OF JUNE 29.

B-168238, JANUARY 20, 1970, 49 COMP. GEN. 440

PAY -- RETIRED -- ADVANCEMENT ON RETIRED LIST -- HIGHEST PAY BENEFITS UPON THE CORRECTION OF MILITARY RECORDS ON APRIL 17, 1969, PURSUANT TO 10 U.S.C. 1552, TO SHOW RETIREMENT UNDER 10 U.S.C. 3914 OF A PRIVATE E-1 ON DECEMBER 1, 1945, WITH OVER 20 YEARS OF SERVICE, IN LIEU OF DISCHARGE FROM THE REGULAR ARMY, AND ADVANCEMENT ON THE RETIRED LIST EFFECTIVE FEBRUARY 2, 1955, TO FIRST LIEUTENANT BASED ON 30 YEARS OF ACTIVE DUTY AND INACTIVE TIME ON THE RETIRED LIST AS PROVIDED IN 10 U.S.C. 3964, THE RETIRED PAY OF THE MEMBER FOR THE PERIOD FEBRUARY 2, 1955, TO APRIL 16, 1969, IS NOT SUBJECT TO RECOMPUTATION UNDER 10 U.S.C. 3992 AT THE RATE "APPLICABLE ON DATE OF RETIREMENT," BUT IN ACCORDANCE WITH THE ACT OF MAY 20, 1958, AT THE RATES PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. ALTHOUGH ON OCTOBER 1, 1949, THE MEMBER'S RETIRED PAY WAS GREATER UNDER SECTION 511(A), RECOMPUTATION IS PERMITTED UNDER SECTION 511(B) TO PROVIDE THE GREATER AMOUNT OF RETIRED PAY PRESCRIBED BY THE SECTION, ON THE BASIS THE ADVANCEMENT ON THE RETIRED LIST CONSTITUTED A CHANGED CONDITION.

TO R. W. TUDOR, DEPARTMENT OF THE ARMY, JANUARY 20, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 29, 1969, WHICH WAS FORWARDED HERE BY LETTER DATED OCTOBER 27, 1969, FROM THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $5,081.13 IN FAVOR OF FIRST LIEUTENANT JOSEPH R. FLYNN, 01 300 014, RETIRED, REPRESENTING DIFFERENCE IN RETIRED PAY FOR THE PERIOD FEBRUARY 2, 1955, THROUGH APRIL 16, 1969, UPON ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT. YOUR REQUEST HAS BEEN ASSIGNED DO-A NO. 1055 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS INDICATED IN YOUR LETTER AND ENCLOSURES THAT AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS ON APRIL 17, 1969, LIEUTENANT FLYNN WAS RETIRED DECEMBER 1, 1945, IN THE GRADE OF PRIVATE (E-1) WITH 20 YEARS, 9 MONTHS AND 29 DAYS OF SERVICE FOR RETIREMENT AND BASIC PAY PURPOSES AS PROVIDED IN SECTION 4 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 539, NOW CODIFIED IN PART IN 10 U.S.C. 3914, IN LIEU OF DISCHARGE FROM THE REGULAR ARMY. THE RECORD FURTHER SHOWS HE WAS SUBSEQUENTLY ADVANCED ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT (0-2) UPON COMPLETING 30 YEARS OF SERVICE TO INCLUDE THE SUM OF ACTIVE DUTY AND INACTIVE TIME ON THE RETIRED LIST AS PROVIDED IN SECTION 203(E) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1086, NOW CODIFIED IN 10 U.S.C. 3964.

AT THE OUTSET, IT IS WELL ESTABLISHED THAT UPON CORRECTION OF THE RECORDS PURSUANT TO 10 U.S.C. 1552 A SERVICEMAN'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY AND ALLOWANCES DUE UPON APPLICATION OF THE PAY STATUTES IN EFFECT DURING THE PERIOD INVOLVED TO THE FACTS IN HIS CASE AS THEY APPEAR FROM THE CORRECTED RECORD. SEE 45 COMP. GEN. 47, 48 (1965) AND THE AUTHORITY THERE CITED.

WHEN LIEUTENANT FLYNN RETIRED AS AN ENLISTED MAN ON DECEMBER 1, 1945, PURSUANT TO THE RECORD CORRECTION, THE LAW PROVIDED IN SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS AMENDED, 10 U.S.C. 948 (1946 ED.) (NOW IN 10 U.S.C. 3914) THAT A REGULAR ENLISTED MAN OF THE ARMY WITH AT LEAST 20 BUT LESS THAN 30 YEARS OF ACTUAL ACTIVE SERVICE MAY, UPON HIS REQUEST, BE RETIRED AND HAVE HIS RETIRED PAY COMPUTED AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE HELD ON DATE OF APPLICATION MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE AS THERE PROVIDED. FORMULA C OF 10 U.S.C. 3991, CURRENTLY PROVIDES FOR COMPUTING RETIRED PAY FOR MEMBERS RETIRED UNDER SECTION 3914 OF TITLE 10, U.S.C.

AT THE TIME OF HIS ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT EFFECTIVE FEBRUARY 2, 1955, THE LAW PROVIDED IN SECTION 203(E) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1086 (NOW IN 10 U.S.C. 3964), THAT EACH ENLISTED MEMBER OF THE REGULAR ARMY HERETOFORE OR HEREAFTER RETIRED, SHALL, UPON THE COMPLETION OF 30 YEARS' SERVICE, TO INCLUDE ACTIVE SERVICE AND SERVICE ON THE RETIRED LIST, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY COMMISSIONED, WARRANT OR ENLISTED GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY AS DETERMINED BY THE SECRETARY OF THE ARMY, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW FOR HIS LENGTH OF SERVICE "AT THE TIME OF RETIREMENT" BUT BASED ON THE HIGHEST GRADE HELD.

UNDER THE PROVISIONS OF 10 U.S.C. 3992 WHICH YOU CITE, A MEMBER OF THE ARMY WHO IS ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964 IS ENTITLED TO RECOMPUTE HIS RETIRED PAY BY TAKING THE MONTHLY BASIC PAY OF THE GRADE TO WHICH HE IS ADVANCED AND MULTIPLYING THAT FIGURE BY THE TOTAL OF 2-1/2 PERCENT FOR EACH OF HIS YEARS OF ACTIVE SERVICE. FOOTNOTE 1 OF SECTION 3992 REQUIRES THAT THE RECOMPUTATION OF RETIRED PAY BE AT THE RATE "APPLICABLE ON DATE OF RETIREMENT."

BEGINNING OCTOBER 1, 1949, THE COMPUTATION OF LIEUTENANT FLYNN'S RETIRED PAY WAS GOVERNED BY SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311 (SUPP. III, 1946 ED.), WHICH PROVIDED THAT SUCH RETIRED PAY SHOULD BE PAID IN THE AMOUNT, WHICHEVER IS GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) MONTHLY RETIRED PAY IN THE AMOUNT AUTHORIZED FOR HIM BY PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, OR (B) MONTHLY RETIRED PAY COMPUTED AT 2-1/2 PERCENTUM OF THE MONTHLY BASIC PAY (PROVIDED IN THAT ACT) OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE OR RATING SATISFACTORILY HELD BY HIM MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM. NO ELECTION OR CHOICE BETWEEN THESE TWO METHODS WAS AUTHORIZED.

IN 37 COMP. GEN. 31, 34 (1957), WE HELD THAT:

*** AFTER RECEIVING RETIRED PAY COMPUTED BY ONE METHOD, IF CONDITIONS CHANGE IN SUCH A MANNER THAT A RETIRED MEMBER'S PAY WOULD INCREASE BY COMPUTING HIS RETIRED PAY UNDER THE OTHER METHOD, SUCH RECOMPUTATION WAS AUTHORIZED AND REQUIRED UNDER SECTION 511 WITHOUT ANY ELECTION ON HIS PART. 29 COMP. GEN. 404, 407-408. WE FURTHER HELD THAT THE AUTHORITY FOR SUCH RECOMPUTATION UNDER SECTION 511 WAS TERMINATED BY THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, CH. 20, 69 STAT. 18, 37 U.S.C. 232 NOTE.

SUBSEQUENTLY, THE COURT OF CLAIMS, IN THE CASE OF FAGAN, ET AL. (GOVER) V UNITED STATES, 149 CT. CL. 716 (1960), HELD THAT THE 1955 ACT DID NOT TERMINATE THE RIGHT TO RECOMPUTE UNDER THE ALTERNATIVE METHODS PRESCRIBED IN SECTION 511 OF THE 1949 ACT, BUT THAT UPON A CHANGE IN CONDITIONS THE MEMBER'S RETIRED PAY MUST BE COMPUTED UNDER THE METHOD WHICH WOULD RESULT IN THE HIGHEST RETIRED PAY. SINCE THE PLAINTIFF GOVER'S RETIRED PAY WAS GREATER IF COMPUTED UNDER METHOD (B) OF SECTION 511, USING THE NEW RATES OF PAY PROVIDED IN THE 1955 ACT THAN IF COMPUTED UNDER METHOD (A) WITH THE PERCENTAGE INCREASES PROVIDED IN THAT ACT, THE COURT HELD THAT GOVER SHOULD BE PAID UNDER METHOD (B), EFFECTIVE APRIL 1, 1955. IN OUR DECISION REPORTED AT 40 COMP. GEN. 222 (1960), WE SAID THAT WE WOULD FOLLOW THE FAGAN (GOVER) DECISION. HOWEVER, THE RIGHT TO CHANGE FROM ONE METHOD TO ANOTHER WAS TERMINATED EFFECTIVE JUNE 1, 1958, BY THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 231 NOTE. SEE 41 COMP. GEN. 363, 366 (1961).

YOU STATE THAT AS A PRIVATE E-1, LIEUTENANT FLYNN BECAME ENTITLED TO RETIRED PAY OF $34.13 EFFECTIVE DECEMBER 1, 1945; $51.19 EFFECTIVE JULY 1, 1945 (1946); $53.24 EFFECTIVE MAY 1, 1952; AND UPON ADVANCEMENT TO GRADE OF FIRST LIEUTENANT EFFECTIVE FEBRUARY 2, 1955, HE WOULD BE ENTITLED TO $163.26 COMPUTED ON PAY RATES IN EFFECT PRIOR TO OCTOBER 1, 1949. UNDER THE PROVISIONS OF SECTION 511(B) OF THE 1949 ACT YOU SAY THAT HE WOULD BE ENTITLED TO 52-1/2 PERCENT OF $363.10 FOR AN OFFICER 0 2 WITH OVER 20 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND 21 YEARS OF ACTUAL ACTIVE SERVICE, OR $190.36 EFFECTIVE FEBRUARY 2, 1955.

YOU EXPRESS THE VIEW THAT, SINCE THE RATE OF RETIRED PAY UNDER THE PROVISIONS OF SECTION 511(A) WAS GREATER ON OCTOBER 1, 1949, THAN UNDER SECTION 511(B) ($51.19 V $49.88), RECOMPUTATION UNDER SECTION 511(B) WOULD NOT BE APPROPRIATE UNTIL SOME CHANGE IN CONDITIONS BECOMES APPARENT. YOU EXPRESS DOUBT AS TO WHETHER ADVANCEMENT ON THE RETIRED LIST CONSTITUTES A CHANGE IN CONDITIONS WHICH WOULD VALIDATE RECOMPUTATION OF RETIRED PAY UNDER SECTION 511(B) BASED ON PAY RATES AUTHORIZED BY THE 1949 ACT, OR WHETHER FOOTNOTE 1 OF 10 U.S.C. 3992 SHOULD GOVERN, SINCE PROVISIONS OF SECTION 511(A) WERE APPLICABLE ON OCTOBER 1, 1949.

IN OUR DECISION OF APRIL 8, 1966, 45 COMP. GEN. 631, AND B-156593, APRIL 8, 1966, WE CONSIDERED THE EFFECT OF THE LANGUAGE "RATES APPLICABLE ON DATE OF RETIREMENT," AS PROVIDED IN SECTION 3992 (ARMY) AND A LIKE PROVISION IN SECTION 3992 (AIR FORCE) AND THE LANGUAGE OF SECTION 3(C) OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 128. THE LATTER LAW AUTHORIZED THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 ON MAY 31, 1958, PLUS 6 PER CENTUM OF THAT PAY FOR THOSE MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN A HIGHER GRADE PRIOR TO JUNE 1, 1958, THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, AND WHO THEREAFTER WERE ADVANCED ON A RETIRED LIST TO SUCH HIGHER GRADE. IN CONCLUDING THAT THE INDIVIDUALS THERE INVOLVED WERE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED AT THE RATES OF PAY IN EFFECT ON MAY 31, 1958, WE SAID THAT SECTIONS 3992 AND 8992 OF TITLE 10 MUST BE READ IN CONJUNCTION WITH THE PROVISIONS OF SECTION (3) OF THE 1958 ACT.

AS INDICATED ABOVE, THE RIGHT TO RECOMPUTE RETIRED PAY FROM METHOD (A) OF SECTION 511 OF THE 1949 ACT TO METHOD (B) WAS NOT TERMINATED UNTIL MAY 31, 1958. TO HOLD THAT SECTION 3992 OF TITLE 10 IS THE ONLY LAW TO BE USED IN DETERMINING THE RATE OF RETIRED PAY IN RECOMPUTING RETIRED PAY IN SECTION 511 CASES WOULD HAVE THE EFFECT OF NULLIFYING THE PURPOSE OF THE LATTER SECTION. WE DOUBT THAT CONGRESS INTENDED ANY SUCH INTERPRETATION. IT IS OUR VIEW THAT THE PROVISIONS OF SECTION 3992 MUST BE READ IN CONJUNCTION WITH THE PROVISIONS OF SECTION 511 OF THE 1949 ACT. 45 COMP. GEN. 631. SINCE THE ADVANCEMENT OF LIEUTENANT FLYNN ON THE RETIRED LIST EFFECTIVE FEBRUARY 2, 1955, SEEMS TO BE A CHANGE IN HIS SITUATION WITHIN THE RULE STATED IN 37 COMP. GEN. 31 WHICH WOULD AUTHORIZE RECOMPUTATION OF HIS RETIRED PAY UNDER THE PROVISIONS OF SECTION 511(B), HIS RETIRED PAY SHOULD BE COMPUTED COMMENCING THAT DATE ON THE RATES OF BASIC PAY THEN IN EFFECT.

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