B-171927, MAR 26, 1971

B-171927: Mar 26, 1971

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COMPUTATION OF RETIRED PAY DECISION HOLDING THAT THERE IS NO AUTHORITY FOR INCREASING THE RETIREMENT BENEFITS OF TECH. MILITARY SERVICE SUBSEQUENT TO DATE OF QUALIFICATION FOR RETIRED PAY UNDER 10 U.S.C. 67 MAY NOT BE CREDITED IN THE COMPUTATION OF THE MEMBER'S RETIRED PAY UNLESS HE WAS VALIDLY RETAINED ON ACTIVE DUTY UNDER 10 U.S.C. 676. BECAUSE CLAIMANT WAS NOT RETAINED UNDER THE AUTHORITY OF THAT SECTION. WAS WITHOUT EFFECT TO INCREASE HIS RIGHT TO RETIRED PAY UNDER 10 U.S.C. 67. BRENINGSTALL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22. YOU STATE THAT SERGEANT WESTON WAS RETIRED EFFECTIVE JANUARY 10. YOU REPORT THAT HE WAS NOT RETAINED ON ACTIVE DUTY UNDER AUTHORITY OF 10 U.S.C. 676 AFTER ELIGIBILITY FOR RETIREMENT UNDER CHAPTER 67 OF TITLE 10.

B-171927, MAR 26, 1971

COMPUTATION OF RETIRED PAY DECISION HOLDING THAT THERE IS NO AUTHORITY FOR INCREASING THE RETIREMENT BENEFITS OF TECH. SGT. SIDNEY E. WESTON, USAFR, RETIRED ON THE BASIS OF SERVICE IN AN ACTIVE DUTY STATUS SUBSEQUENT TO THE DATE HE QUALIFIED FOR RETIRED PAY. MILITARY SERVICE SUBSEQUENT TO DATE OF QUALIFICATION FOR RETIRED PAY UNDER 10 U.S.C. 67 MAY NOT BE CREDITED IN THE COMPUTATION OF THE MEMBER'S RETIRED PAY UNLESS HE WAS VALIDLY RETAINED ON ACTIVE DUTY UNDER 10 U.S.C. 676. BECAUSE CLAIMANT WAS NOT RETAINED UNDER THE AUTHORITY OF THAT SECTION, THE SERVICE PERFORMED BY HIM SUBSEQUENT TO JULY 8, 1970, DATE ON WHICH HE QUALIFIED FOR RETIRED PAY, MAY NOT BE CREDITED TO INCREASE THE RETIRED PAY BENEFITS AND HIS PROMOTION TO MASTER SERGEANT AFTER JULY 8, 1970, WAS WITHOUT EFFECT TO INCREASE HIS RIGHT TO RETIRED PAY UNDER 10 U.S.C. 67. THEREFORE THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.

TO MR. N. R. BRENINGSTALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1971, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $156.07 REPRESENTING THE DIFFERENCE IN THE RETIRED PAY OF A TECHNICAL SERGEANT AND A MASTER SERGEANT FOR THE PERIOD JANUARY 11, 1971, THROUGH FEBRUARY 28, 1971, IN THE CASE OF TECHNICAL SERGEANT SIDNEY E. WESTON, USAFR, RETIRED. THIS REQUEST HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1115 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT SERGEANT WESTON WAS RETIRED EFFECTIVE JANUARY 10, 1971, IN THE GRADE OF TECHNICAL SERGEANT UNDER SECTIONS 1331 AND 1401 OF TITLE 10, U.S.C. ON JULY 8, 1970, THE DATE HE FIRST QUALIFIED FOR RETIREMENT, HE HAD 28 YEARS, 16 DAYS' SERVICE FOR BASIC PAY PURPOSES, 23 YEARS, 3 MONTHS AND 17 DAYS' SATISFACTORY SERVICE COMPUTED UNDER SECTION 1332 OF TITLE 10, AND 17.91 YEARS OF SERVICE TO BE USED IN COMPUTING THE AMOUNT OF HIS RETIRED PAY UNDER 10 U.S.C. 1333. SERGEANT WESTON ATTAINED 60 YEARS OF AGE ON MARCH 14, 1965, BUT HE DID NOT MEET THE REQUIREMENT RELATING TO THE LAST 8 YEARS OF QUALIFYING SERVICE SPECIFIED IN 10 U.S.C. 1331A(3) UNTIL JULY 8, 1970. YOU REPORT THAT HE WAS NOT RETAINED ON ACTIVE DUTY UNDER AUTHORITY OF 10 U.S.C. 676 AFTER ELIGIBILITY FOR RETIREMENT UNDER CHAPTER 67 OF TITLE 10.

YOU STATE THAT EFFECTIVE NOVEMBER 2, 1970, SERGEANT WESTON WAS PROMOTED TO THE GRADE OF MASTER SERGEANT IN THE AIR FORCE RESERVE. SINCE HE WAS PROMOTED SUBSEQUENT TO HIS QUALIFICATION FOR RETIRED PAY UNDER 10 U.S.C. 1331, HE WAS RETIRED IN THE GRADE OF TECHNICAL SERGEANT AND IS BEING PAID AS A TECHNICAL SERGEANT WITH OVER 28 YEARS OF SERVICE FOR BASIC PAY PURPOSES. IN VIEW OF THESE CIRCUMSTANCES YOU EXPRESS DOUBT AS TO THE EFFECT OF HIS PROMOTION TO MASTER SERGEANT ON NOVEMBER 2, 1970, FOR RETIRED PAY PURPOSES IN VIEW OF B-171273, DECEMBER 22, 1970, AND CITATIONS THEREIN.

CHAPTER 67 OF TITLE 10, U.S. CODE, AUTHORIZES PAYMENT OF RETIRED PAY FOR NON-REGULAR SERVICE, UPON APPLICATION, TO A PERSON WHO IS AT LEAST 60 YEARS OF AGE AND HAS PERFORMED AT LEAST 20 YEARS OF QUALIFYING SERVICE UNDER THAT CHAPTER, THE LAST 8 OF WHICH WERE PERFORMED WHILE HE WAS A MEMBER OF ANY CATEGORY NAMED IN SECTION 1332(A)(1). THE RIGHT TO NON- REGULAR RETIRED PAY DOES NOT ACCRUE UNTIL APPLICATION FOR SUCH PAY IS MADE BY THE MEMBER AND THE RIGHT TO SUCH PAY ACCRUES, SUBJECT TO THE PROVISIONS OF 5 U.S.C. 8301, FROM THE DATE OF QUALIFICATION UNLESS THE APPLICATION SPECIFIES A LATER DATE. SEE 38 COMP. GEN. 146 (1958), ANSWER TO QUESTION 4.

SECTION 676, TITLE 10, U.S. CODE, PROVIDES:

"ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE MAY, WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, BE RETAINED ON ACTIVE DUTY, OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN SECTION 1332(B) OF THIS TITLE. A MEMBER SO RETAINED SHALL BE CREDITED WITH THAT SERVICE FOR ALL PURPOSES."

MILITARY SERVICE SUBSEQUENT TO DATE OF QUALIFICATION FOR RETIRED PAY UNDER CHAPTER 67 MAY NOT BE CREDITED IN THE COMPUTATION OF THE MEMBER'S RETIRED PAY UNLESS HE WAS VALIDLY RETAINED ON ACTIVE DUTY UNDER 10 U.S.C. 676. SEE 38 COMP. GEN. 647 (1959) AND B-171273, DECEMBER 22, 1970, 50 COMP. GEN. . SINCE YOU STATE THAT SERGEANT WESTON WAS NOT RETAINED UNDER THE AUTHORITY OF THAT SECTION, THE SERVICE PERFORMED BY HIM SUBSEQUENT TO JULY 8, 1970, MAY NOT BE CREDITED TO INCREASE THE RETIRED PAY BENEFITS TO WHICH HE BECAME ENTITLED ON THE BASIS OF HIS SERVICE AT THE TIME OF QUALIFICATION. LIKEWISE, A PROMOTION RECEIVED BY A MEMBER AFTER HE BECAME QUALIFIED FOR RETIRED PAY MAY NOT BE USED TO INCREASE HIS RETIRED PAY BENEFITS. SEE NAVARRO, ET AL. V UNITED STATES, 155 CT. CL. 717 (1961). SEE ALSO B-151824, AUGUST 12, 1963, COPY ENCLOSED.

ALTHOUGH SERGEANT WESTON CONTINUED TO SERVE IN AN ACTIVE STATUS AS A MEMBER OF THE AIR FORCE RESERVE SUBSEQUENT TO JULY 8, 1970, THE DATE HE QUALIFIED FOR RETIREMENT, THERE IS NO AUTHORITY FOR INCREASING HIS RETIREMENT BENEFITS ON THE BASIS OF THIS SERVICE AFTER THAT DATE AND HIS PROMOTION TO MASTER SERGEANT WAS WITHOUT EFFECT TO INCREASE HIS RIGHT TO RETIRED PAY UNDER CHAPTER 67 OF TITLE 10, U.S.C.

ACCORDINGLY, THERE BEING NO AUTHORITY FOR PAYMENT ON THE VOUCHER, IT WILL BE RETAINED HERE.