B-171537, MAR 26, 1971, 50 COMP GEN 677

B-171537: Mar 26, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PAY - RETIRED - DISABILITY - ACTIVE DUTY RECALL - SUBSEQUENT RETIREMENT AN AIR FORCE OFFICER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF MAJOR EFFECTIVE JUNE 1. IS ENTITLED TO PAYMENT OF THE DIFFERENCE IN RETIRED PAY BETWEEN THE GRADES OF LIEUTENANT COLONEL AND MAJOR FOR THE MONTHS OF JUNE AND JULY 1970. THE OFFICER'S ENTITLEMENT TO RETIRED PAY AT THE HIGHER GRADE FOR THE 2 MONTHS INVOLVED IS NOT UNDER 10 U.S.C. 8963(A). 1971: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 19. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF DECEMBER 11. WAS RELEASED FROM ACTIVE DUTY ON MAY 31. WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND WAS RECALLED TO ACTIVE DUTY IN THE GRADE OF LIEUTENANT COLONEL (TEMPORARY) FOR ONE DAY EFFECTIVE JUNE 30.

B-171537, MAR 26, 1971, 50 COMP GEN 677

PAY - RETIRED - DISABILITY - ACTIVE DUTY RECALL - SUBSEQUENT RETIREMENT AN AIR FORCE OFFICER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF MAJOR EFFECTIVE JUNE 1, 1968, RECALLED UNDER 10 U.S.C. 1211 TO ACTIVE DUTY IN THE TEMPORARY GRADE OF LIEUTENANT COLONEL FOR 1 DAY, JUNE 30, 1970, WITH DATE OF RANK FROM JULY 19, 1968, AND THEN RETIRED FOR YEARS OF SERVICE UNDER 10 U.S.C. 8911 IN THE GRADE OF LIEUTENANT COLONEL EFFECTIVE JULY 1, 1970, IS ENTITLED TO PAYMENT OF THE DIFFERENCE IN RETIRED PAY BETWEEN THE GRADES OF LIEUTENANT COLONEL AND MAJOR FOR THE MONTHS OF JUNE AND JULY 1970, SINCE PRIOR TO JULY 1, 1970, THE OFFICER SATISFIED THE REQUIREMENTS OF 10 U.S.C. 1211(A)(1). THE OFFICER'S ENTITLEMENT TO RETIRED PAY AT THE HIGHER GRADE FOR THE 2 MONTHS INVOLVED IS NOT UNDER 10 U.S.C. 8963(A), AS HE ONLY "SERVED" 1 DAY IN THE TEMPORARY GRADE, BUT UNDER 10 U.S.C. 8961, WHICH AUTHORIZES AN OFFICER TO RETIRE IN THE GRADE HE "HOLDS" NOT THE GRADE IN WHICH HE "SERVED" ON DATE OF RETIREMENT.

TO LIEUTENANT COLONEL N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, MARCH 26, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 19, 1970 (FILE REFERENCE RPTI), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $253.50 IN FAVOR OF LIEUTENANT COLONEL ROBERT E. CANN, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN THE GRADE OF LIEUTENANT COLONEL AND THAT OF A MAJOR FOR JUNE AND JULY 1970, UNDER THE CIRCUMSTANCES THERE DISCLOSED. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF DECEMBER 11, 1970, BY THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1107 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT BY RETIREMENT ORDERS DATED APRIL 26, 1968, MAJOR CANN, REGULAR AIR FORCE, WAS RELEASED FROM ACTIVE DUTY ON MAY 31, 1968, AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF MAJOR EFFECTIVE JUNE 1, 1968. BY SPECIAL ORDER AB-1143 DATED MAY 26, 1970, THE OFFICER, HAVING BEEN FOUND PHYSICALLY QUALIFIED, WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND WAS RECALLED TO ACTIVE DUTY IN THE GRADE OF LIEUTENANT COLONEL (TEMPORARY) FOR ONE DAY EFFECTIVE JUNE 30, 1970.

BY RETIREMENT ORDERS DATED MAY 25, 1970, THE OFFICER WAS TO BE RELEASED FROM ACTIVE DUTY ON JUNE 30, 1970, AND RETIRED FOR YEARS OF SERVICE (10 U.S.C. 8911) IN THE GRADE OF LIEUTENANT COLONEL EFFECTIVE JULY 1, 1970. THEREAFTER, BY ORDERS DATED JUNE 8, 1970, THE OFFICER WAS REAPPOINTED TO THE ACTIVE LIST OF THE REGULAR AIR FORCE UNDER 10 U.S.C. 1211 IN THE GRADE OF LIEUTENANT COLONEL WITH DATE OF RANK JULY 19, 1968, AND LIEUTENANT COLONEL USAF (TEMPORARY) WITH DATE OF RANK JULY 19, 1968, WITH THE NOTATION ON THE ORDERS THAT HE REMAIN ASSIGNED TO HIS PRESENT ORGANIZATION AND STATION.

YOU QUOTE SECTION 1211(A) OF TITLE 10, U.S. CODE, AND YOU REFER TO THE HOLDING IN OUR DECISION OF AUGUST 30, 1967, 47 COMP. GEN. 141. YOU SAY THAT DOUBT ALSO EXISTS AS TO WHETHER THE OFFICER IS ENTITLED TO RETIRED PAY IN THE GRADE OF LIEUTENANT COLONEL UNDER SECTION 8961 OF TITLE 10. YOU EXPRESS THE VIEW THAT HE WOULD NOT BE ENTITLED TO RETIRED PAY IN THE TEMPORARY GRADE OF LIEUTENANT COLONEL UNDER SECTION 8963.

SECTION 1211(A) OF TITLE 10, PROVIDES IN PERTINENT PART THAT, WITH HIS CONSENT, ANY MEMBER OF THE ARMY OR AIR FORCE WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST AND WHO IS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, GRADE, OR RANK SHALL:

(1) IF A COMMISSIONED OFFICER OF A REGULAR COMPONENT, BE RECALLED TO ACTIVE DUTY AND, AS SOON AS PRACTICABLE, MAY BE REAPPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO THE ACTIVE LIST OF HIS REGULAR COMPONENT IN THE REGULAR GRADE HELD BY HIM WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IN THE NEXT HIGHER REGULAR GRADE;

IN OUR DECISION OF AUGUST 30, 1967, 47 COMP. GEN. 141, CITED ABOVE, WE CONSIDERED SEVERAL QUESTIONS CONCERNING THE APPLICABILITY OF CERTAIN PROVISIONS OF LAW INCLUDING 10 U.S.C. 1211(A), IN THE CASE OF THOSE MEMBERS OF THE REGULAR COMPONENTS OF THE ARMY AND AIR FORCE WHO ARE SUBJECT TO REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST BECAUSE OF FIT-FOR-DUTY DETERMINATIONS BUT WHO, BEING OTHERWISE QUALIFIED, DESIRE TO RETIRE UNDER OTHER STATUTORY PROVISIONS RATHER THAN BEING RETURNED TO ACTIVE DUTY. IN ANSWERING QUESTIONS 1, 2 AND 3 IN THE NEGATIVE, WE SAID AT PAGES 144 AND 145:

*** IT IS READILY SEEN WHY A REAPPOINTMENT IN THE CASE OF AN OFFICER AND REENLISTMENT IN THE CASE OF AN ENLISTED MEMBER, TOGETHER WITH AN ACTUAL RECALL TO ACTIVE DUTY AS REQUIRED BY THE STATUTE, IS NECESSARY IF THE INDIVIDUAL CONCERNED IS TO BE RETURNED TO ACTIVE DUTY AND REGAIN HIS FORMER STATUS ON THE ACTIVE LIST OF HIS UNIFORMED SERVICE. IT WOULD APPEAR, THEREFORE, THAT WHEN THE NAME OF A MEMBER OF THE REGULAR ARMY OR REGULAR AIR FORCE IS REQUIRED TO BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST OTHER THAN FOR THE PURPOSE OF TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST OR SEPARATION FROM THE SERVICE, HIS RETIRED STATUS IS TERMINATED AND HE HAS NO ACTIVE STATUS. IN THE ABSENCE OF SOME STATUTORY PROVISION AUTHORIZING THE PLACEMENT OF SUCH A MEMBER ON A RETIRED LIST, WE ARE OF THE OPINION THAT HE MUST BE REAPPOINTED OR REENLISTED, AS THE CASE MAY BE, AND PLACED ON THE ACTIVE LIST OF HIS REGULAR COMPONENT AS PROVIDED IN 10 U.S.C. 1211 IN ORDER TO ESTABLISH A PROPER BASIS OF ELIGIBILITY FOR RETIREMENT UNDER OTHER APPLICABLE STATUTORY PROVISIONS.

THE ABOVE DECISION STANDS FOR THE PROPOSITION THAT UNLESS A MEMBER OF A REGULAR COMPONENT, WHOSE NAME IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST, MEETS ALL THE REQUIREMENTS OF 10 U.S.C. 1211 APPLICABLE TO HIM, NO PROPER BASIS WOULD EXIST FOR RETIRING HIM UNDER SOME OTHER STATUTORY PROVISION.

A REGULAR OR RESERVE AIR FORCE COMMISSIONED OFFICER WHO IS RETIRED OR TO WHOM RETIRED PAY IS GRANTED, IS ENTITLED TO A RETIRED GRADE EQUAL TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE AIR FORCE, FOR NOT LESS THAN 6 MONTHS. SEE 10 U.S.C. 8963(A). UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, SECTION 8961 OF TITLE 10 PROVIDES THAT A REGULAR OR RESERVE OF THE AIR FORCE WHO RETIRES OTHER THAN FOR PHYSICAL DISABILITY, RETIRES IN THE REGULAR OR RESERVE GRADE THAT HE "HOLDS" ON THE DATE OF HIS RETIREMENT.

IT WOULD SEEM THAT AT THE TIME THE RETIREMENT ORDERS OF MAY 25, 1970, WERE ISSUED THERE WAS SOME BASIS FOR QUESTIONING THEIR VALIDITY SINCE THE OFFICER HAD NOT THEN BEEN RECALLED TO ACTIVE DUTY, NOR HAD HE BEEN REAPPOINTED TO THE ACTIVE LIST OF THE REGULAR AIR FORCE AS A LIEUTENANT COLONEL. HOWEVER, HE WAS RECALLED TO ACTIVE DUTY BY ORDERS WHICH WERE ISSUED ON THE FOLLOWING DAY. ALSO, YOUR ATTENTION IS INVITED TO THE FACT THAT ON MAY 12, 1970, ROBERT E. CANN'S NOMINATION TO THE GRADE OF LIEUTENANT COLONEL WAS CONFIRMED BY THE UNITED STATES SENATE. SEE PAGE S. 7060, CONGRESSIONAL RECORD DATED MAY 12, 1970 (116 CONG. REC. 15142).

SINCE UNDER THE RETIREMENT ORDERS THE OFFICER WAS NOT TO BE RETIRED UNTIL JULY 1, 1970, AND SINCE PRIOR TO THAT TIME HE WAS RECALLED TO ACTIVE DUTY AND REAPPOINTED TO THE ACTIVE LIST OF THE REGULAR AIR FORCE IN THE GRADE OF LIEUTENANT COLONEL, THE OFFICER MAY BE CONSIDERED AS HAVING MET THE REQUIREMENTS OF 10 U.S.C. 1211(A)(1).

IN VIEW OF THE FACT THAT THE OFFICER WAS ORDERED TO ACTIVE DUTY IN HIS TEMPORARY GRADE OF LIEUTENANT COLONEL AND "SERVED" ONLY ONE DAY IN THAT GRADE, HE IS NOT ENTITLED UNDER 10 U.S.C. 8963(A) TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF SUCH TEMPORARY GRADE. HOWEVER, UNDER THE LANGUAGE IN SECTION 8961 OF TITLE 10, AN OFFICER IS ENTITLED TO RETIRE IN THE REGULAR OR RESERVE GRADE THAT HE "HOLDS," NOT THE GRADE IN WHICH HE "SERVED," ON THE DATE OF RETIREMENT. SINCE THERE APPEARS TO BE NO BASIS FOR QUESTIONING THAT THE OFFICER IN THIS CASE HELD THE PERMANENT GRADE OF LIEUTENANT COLONEL IN THE REGULAR AIR FORCE ON THE DATE OF HIS RETIREMENT, HE IS ENTITLED UNDER SECTION 8961 TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF THAT GRADE.

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