B-172303, JUL 27, 1971

B-172303: Jul 27, 1971

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BRENINGSTALL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2. YOU SAY THAT SERGEANT BLACKBURN WAS RETIRED ON MARCH 31. IT IS STATED THAT FOLLOWING RETIREMENT HE HAD ADDITIONAL ACTIVE DUTY TOURS FROM NOVEMBER 1. DURING WHICH HE WAS PROMOTED TO MASTER SERGEANT (E 7). YOU FURTHER STATE THAT HIS RETIRED PAY WAS RECOMPUTED AS AN E-7 STARTING OCTOBER 1. THE MEMBER'S RETIRED PAY WAS FURTHER INCREASED UNDER 10 U.S.C. 1401AB) BY 4 PERCENT ON FEBRUARY 1. IS CORRECT IN VIEW OF THE PROVISIONS OF 10 U.S.C. 1401AE). WHO ARE OTHERWISE ENTITLED TO HAVE THEIR RETIRED PAY ADJUSTED AS PROVIDED IN 10 U.S.C. 1401AE). HE WAS IN EFFECT "RE-RETIRED" ON SEPTEMBER 30. RATES WERE APPLICABLE. WOULD BE ENTITLED UNDER 10 U.S.C. 1401AE) TO AN EQUATED PAY WITH SOMEONE WHO WAS EARLIER RETIRED (PRIOR TO OCTOBER 1.

B-172303, JUL 27, 1971

MILITARY PERSONNEL - RETIRED PAY - DATE OF RETIREMENT DECISION NOT AUTHORIZING A VOUCHER IN FAVOR OF MASTER SERGEANT JESSE C. BLACKBURN, RETIRED, FOR $64.04, REPRESENTING THE DIFFERENCE IN RETIRED PAY FOR THE PERIOD OCT. 1, 1968 THROUGH JANUARY 31, 1971. NOTWITHSTANDING CLAIMANT'S ADDITIONAL ACTIVE DUTY TOURS FROM NOV 1, 1962, THROUGH AUG 31, 1964 AND OCT 1, 1966, THROUGH SEPT 30, 1968, SINCE SGT. BLACKBURN INITIALLY RETIRED ON MARCH 31, 1961, HIS RETIRED STATUS DOES NOT BRING HIM WITHIN THE SCOPE OF 10 U.S.C. 1401AE) FOR PURPOSES OF RECOMPUTING HIS RETIRED PAY. SUCH PROVISION APPLIES ONLY TO MEMBERS RETIRING ON OR AFTER OCT 1, 1967 THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.

TO MR. N. R. BRENINGSTALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1971 (FILE REFERENCE RPTI), WITH ENCLOSURE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $64.04 IN FAVOR OF MASTER SERGEANT JESSE C. BLACKBURN, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY FOR THE PERIOD OCTOBER 1, 1968, THROUGH JANUARY 31, 1971, UNDER THE CIRCUMSTANCES DISCLOSED.

YOU SAY THAT SERGEANT BLACKBURN WAS RETIRED ON MARCH 31, 1961, IN THE GRADE OF TECHNICAL SERGEANT (E-6) UNDER 10 U.S.C. 8914 UPON COMPLETING 20 YEARS, 1 MONTH AND 23 DAYS' SERVICE (ALL ACTIVE DUTY). IT IS STATED THAT FOLLOWING RETIREMENT HE HAD ADDITIONAL ACTIVE DUTY TOURS FROM NOVEMBER 1, 1962, THROUGH AUGUST 31, 1964, AND OCTOBER 1, 1966, THROUGH SEPTEMBER 30, 1968, DURING WHICH HE WAS PROMOTED TO MASTER SERGEANT (E 7). YOU STATE THAT THIS GAVE HIM A TOTAL CREDIT FOR RETIRED PAY PURPOSES OF 23 YEARS, 11 MONTHS AND 23 DAYS COMMENCING OCTOBER 1, 1968.

YOU FURTHER STATE THAT HIS RETIRED PAY WAS RECOMPUTED AS AN E-7 STARTING OCTOBER 1, 1968, UNDER 10 U.S.C. 1402(A) BY APPLYING THE SECOND SENTENCE OF FOOTNOTE 1 OF THAT SECTION USING THE OCTOBER 1, 1967, BASIC PAY RATES PRESCRIBED IN THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 649, INCREASED BY 1.3 PERCENT, REPRESENTING THE CONSUMER PRICE INDEX INCREASE UNDER 10 U.S.C. 1401AD).

YOU EXPRESS THE VIEW THAT THE ABOVE METHOD OF COMPUTATION APPEARS TO CONFORM WITH THE METHOD AUTHORIZED IN OUR DECISION OF SEPTEMBER 30, 1970, B-170104, 50 COMP. GEN. , IN RESPONSE TO QUESTION "B". THE MEMBER'S RETIRED PAY WAS FURTHER INCREASED UNDER 10 U.S.C. 1401AB) BY 4 PERCENT ON FEBRUARY 1, 1969, 5.3 PERCENT ON NOVEMBER 1, 1969, AND 5.6 PERCENT ON AUGUST 1, 1970.

YOU QUESTION WHETHER THE RETIRED PAY HE RECEIVED, COMPUTED AS INDICATED ABOVE AND SET OUT IN YOUR SUBMISSION, IS CORRECT IN VIEW OF THE PROVISIONS OF 10 U.S.C. 1401AE).

YOU SEEM TO EQUATE SERGEANT BLACKBURN'S RETIRED PAY SITUATION WITH MEMBERS WHO RETIRED ON AND AFTER OCTOBER 1, 1967, AND WHO ARE OTHERWISE ENTITLED TO HAVE THEIR RETIRED PAY ADJUSTED AS PROVIDED IN 10 U.S.C. 1401AE). YOU SAY THAT ALTHOUGH SERGEANT BLACKBURN FIRST RETIRED ON MARCH 31, 1961, HE WAS IN EFFECT "RE-RETIRED" ON SEPTEMBER 30, 1968, WITH ENTITLEMENT TO RETIRED PAY RECOMPUTED FROM THE OCTOBER 1, 1967, BASIC PAY RATES.

YOU FURTHER STATE THAT SINCE ANYONE WHO ON A FIRST RETIREMENT, WHERE THE OCTOBER 1, 1967, RATES WERE APPLICABLE, WOULD BE ENTITLED UNDER 10 U.S.C. 1401AE) TO AN EQUATED PAY WITH SOMEONE WHO WAS EARLIER RETIRED (PRIOR TO OCTOBER 1, 1967), UNDER COMPARABLE CONDITIONS, IT WOULD APPEAR THAT THE SAME "SAVINGS" PROVISION IN SECTION 1401AE) WOULD APPLY ON A RE- RETIREMENT. IT IS YOUR BELIEF THAT THE INTENT OF SECTION 2 OF PUBLIC LAW 90-207 WAS THAT PERSONS WHOSE RETIRED PAY IS RECOMPUTED FROM A NEW BASE FOLLOWING ADDITIONAL ACTIVE DUTY SHOULD RECEIVE THE EQUIVALENT RETIRED PAY OF PERSONS WHOSE PAY IS COMPUTED FROM THE SAME BASE BUT DID NOT HAVE ADDITIONAL ACTIVE DUTY.

IN THE EVENT SERGEANT BLACKBURN COMES WITHIN THE SCOPE OF 10 U.S.C. 1401AE), YOU SAY THAT HIS RETIRED PAY WOULD BE RECOMPUTED AT THE RATES OF BASIC PAY IN EFFECT ON JULY 1, 1966, PLUS SUBSEQUENT CPI INCREASES, AND HE WOULD BE ENTITLED TO AN INCREASE IN RETIRED PAY IN THE AMOUNT OF $64.04 COVERING THE PERIOD OCTOBER 1, 1968, TO JANUARY 31, 1971, AS SHOWN IN THE COMPUTATION IN YOUR SUBMISSION.

SUBSECTION (E) OF SECTION 1401A, TITLE 10, U.S.C. AS ADDED BY SECTION 2 OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 652, WHICH BECAME EFFECTIVE OCTOBER 1, 1967, PROVIDES AS FOLLOWS:

"(E) NOTWITHSTANDING SUBSECTIONS (C) AND (D), THE ADJUSTED RETIRED PAY OR RETAINER PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE RETIRED ON OR AFTER OCTOBER 1, 1967, MAY NOT BE LESS THAN IT WOULD HAVE BEEN HAD HE BECOME ENTITLED TO RETIRED PAY OR RETAINER PAY BASED ON THE SAME PAY GRADE, YEARS OF SERVICE FOR PAY, YEARS OF SERVICE FOR RETIRED OR RETAINER PAY PURPOSES AND PERCENT OF DISABILITY, IF ANY, ON THE DAY BEFORE THE EFFECTIVE DATE OF THE RATES OF MONTHLY BASIC PAY ON WHICH HIS RETIRED PAY OR RETAINER PAY IS BASED."

THE PURPOSE OF ADDING SUBSECTION (E) OF SECTION 1401A IS EXPLAINED IN THE LEGISLATIVE HISTORY OF SECTION 2 OF PUBLIC LAW 90-207 ON PAGE 19 OF SENATE REPORT NO. 808 (TO ACCOMPANY H.R. 13510 WHICH BECAME PUBLIC LAW 90-207):

"CLAUSE 1: NEW SUBSECTION (E) IS A TECHNICAL AMENDMENT RECOMMENDED BY THE DEPARTMENT OF DEFENSE WITH RESPECT TO INCREASES FOR RETIRED PERSONNEL BASED ON ADVANCES IN THE CONSUMER PRICE INDEX. DESPITE THE PROVISIONS IN THE HOUSE VERSION MODIFYING THE CONSUMER PRICE INDEX FORMULA, THERE REMAINED A POSSIBLE INEQUITY RESULTING FROM A COMBINATION OF THE UPWARD MOVEMENT OF THE CONSUMER PRICE INDEX'S TOGETHER WITH THE TRANSITIONAL PROVISIONS CONTAINED ELSEWHERE IN THE BILL. WITHOUT THE FURTHER AMENDMENT, THERE WOULD HAVE BEEN SITUATIONS WHERE PERSONS RETIRING AFTER THE EFFECTIVE DATE OF THIS LEGISLATION IN THE SAME GRADE AND BASIC PAY WOULD RECEIVE LESS THAN CERTAIN INDIVIDUALS IN THE SAME CIRCUMSTANCES RETIRING PRIOR TO THE EFFECTIVE DATE OF THIS LEGISLATION. THE AMENDMENT ADOPTED IN COMMITTEE WILL INSURE THAT THOSE RETIRING AFTER THE EFFECTIVE DATE OF THIS BILL AND BEFORE THE NEXT PAY INCREASE WILL RECEIVE AS MUCH IN RETIRED PAY AS COMPARABLE MEMBERS RETIRING BEFORE THE EFFECTIVE DATE OF THE BILL."

CONCERNING THE APPLICATION OF SUBSECTION (E) OF SECTION 1401A, IN OUR DECISION OF OCTOBER 17, 1968, B-164762, 48 COMP. GEN. 204, CITED IN YOUR SUBMISSION, WE CONSIDERED THE CASE OF AN ENLISTED MAN WHO INITIALLY RETIRED ON JULY 1, 1962, AND THEREAFTER SERVED ON ACTIVE DUTY FROM MAY 26, 1966, TO MARCH 14, 1968. IN THAT DECISION WE SAID AT PAGE 208:

"INASMUCH AS SERGEANT BURRELL RETIRED EFFECTIVE JULY 1, 1962, HIS RETIRED PAY STATUS DOES NOT COME WITHIN THE PURVIEW OF SUBSECTION (E) OF SECTION 1401A, TITLE 10, U.S. CODE, AS AMENDED, WHICH IS APPLICABLE ONLY WHEN RETIREMENT BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967. HENCE, THE COMPUTATION OF HIS RETIRED PAY EFFECTIVE FROM APRIL 1, 1968, IS GOVERNED BY THE PROVISIONS OF SUBSECTION (C) OF SECTION 1401A, AS SHOWN ABOVE ($301.59 PER MONTH)."

IN ANOTHER CASE INVOLVING AN ENLISTED MAN WHO WAS INITIALLY RETIRED ON DECEMBER 1, 1965, AND THEREAFTER SERVED ON ACTIVE DUTY FROM AUGUST 1, 1966, TO JULY 31, 1968, WE SAID IN OUR DECISION OF JUNE 4, 1969, B 166335, CONCERNING THE APPLICATION OF SUBSECTION (E) OF SECTION 1401A THAT:

"BY ITS OWN TERMS, SUBSECTION (E) OF SECTION 1401A IS APPLICABLE ONLY WHEN RETIREMENT BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967. SEE B 164762, OCTOBER 17, 1968. SINCE SERGEANT HOUSTON INITIALLY RETIRED DECEMBER 1, 1965, HIS RETIRED STATUS DOES NOT COME WITHIN THE PURVIEW OF SUBSECTION (E)."

IN THE LIGHT OF THE ABOVE, SINCE SERGEANT BLACKBURN INITIALLY RETIRED ON MARCH 31, 1961 - NOT ON OR AFTER OCTOBER 1, 1967 - HIS RETIRED STATUS DOES NOT BRING HIM WITHIN THE SCOPE OF 10 U.S.C. 1401AE) FOR PURPOSES OF RECOMPUTING HIS RETIRED PAY UNDER THAT PROVISION OF LAW.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED HERE.