B-174191, NOV 15, 1971

B-174191, NOV 15, 1971

MILITARY PERSONNEL - YEARS OF SERVICE - RETIRED PAY DECISION SUSTAINING DISALLOWANCE BY CLAIMS DIVISION OF CLAIM FOR RETIRED PAY COMPUTED ON THE BASIS OF A GRADE OTHER THAN THE GRADE ON WHICH SUCH PAY IS NOW BEING COMPUTED. BECAUSE CLAIMANT WAS SERVING AS A WARRANT OFFICER IN THE ARMY IMMEDIATELY PRECEDING THE DATE OF HIS RETIREMENT, HE WAS PROPERLY RETIRED IN THAT GRADE UNDER 10 U.S.C. 1293. FURTHER, WHILE CLAIMANT WAS RETIRED WITH 20 YEARS AND 9 DAYS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES, HE MAY NOT BE ADVANCED TO THE GRADE OF COMMANDER (0-5) IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, UNTIL SUCH TIME AS HIS TOTAL SERVICE EQUALS 30 YEARS PURSUANT TO 10 U.S.C. 3964. DISALLOWANCE OF THE CLAIM IS THEREFORE SUSTAINED.

TO CW3 KENNETH W. LUNDEBY (RETIRED):

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14, 1971, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR RETIRED PAY COMPUTED ON THE BASIS OF A GRADE OTHER THAN THE GRADE ON WHICH SUCH PAY IS NOW BEING COMPUTED.

THE RECORD INDICATES THAT YOU WERE RETIRED FROM THE ARMY EFFECTIVE SEPTEMBER 1, 1969, UNDER THE PROVISIONS OF 10 U.S.C. 1293, IN THE GRADE OF CHIEF WARRANT OFFICER (CW-3), WITH 27 YEARS, 3 MONTHS AND 1 DAY OF SERVICE FOR BASIC PAY PURPOSES AND 20 YEARS AND 9 DAYS OF SERVICE FOR RETIREMENT PURPOSES OR ACTUAL ACTIVE SERVICE.

YOU STATE THAT YOU BELIEVE THAT ON YOUR RETIREMENT FROM THE ARMY YOUR RETIRED PAY SHOULD HAVE BEEN BASED ON THE GRADE OF COMMANDER (0-5), DUE TO SERVICE IN THE COAST GUARD RESERVE.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 24, 1971. IN THE SETTLEMENT IT WAS EXPLAINED THAT 10 U.S.C. 1293 PROVIDES THAT THE SECRETARY CONCERNED MAY, UPON THE MEMBER'S REQUEST, RETIRE A WARRANT OFFICER WHO HAS AT LEAST 20 YEARS' ACTIVE SERVICE. WAS FURTHER STATED IN THAT SETTLEMENT THAT UNDER THE PROVISIONS OF 10 U.S.C. 1371 RETIREMENT IS AUTHORIZED IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE HELD ON THE DAY BEFORE THE DATE OF RETIREMENT OR ANY HIGHER WARRANT OFFICER GRADE IN WHICH THE MEMBER SERVED ON ACTIVE DUTY SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE ARMY.

IT WAS ALSO STATED IN THE CLAIMS DIVISION SETTLEMENT THAT 10 U.S.C. 3964 PROVIDES THAT A RETIRED WARRANT OFFICER IS ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE ARMY WHEN HIS ACTIVE SERVICE TOGETHER WITH HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS.

YOU REQUEST RECONSIDERATION OF YOUR CLAIM ON THE BASIS THAT SECTION 3911 OF TITLE 10, U.S. CODE, AND OUR DECISION B-164281, MARCH 23, 1970, 49 COMP. GEN. 618, AUTHORIZE YOUR RETIREMENT IN THE GRADE OF COMMANDER (0-5), U.S. COAST GUARD, AND THEREFORE, THAT YOUR RETIRED PAY SHOULD BE COMPUTED ON THAT GRADE.

SECTION 3911, TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

"SEC 3911. TWENTY YEARS OR MORE: REGULAR OR RESERVE COMMISSIONED OFFICERS

"THE SECRETARY OF THE ARMY MAY, UPON THE OFFICER'S REQUEST, RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE ARMY WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THIS TITLE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER."

THE ABOVE-QUOTED PROVISION OF LAW CLEARLY BY ITS OWN TERMS APPLIES ONLY TO REGULAR OR RESERVE COMMISSIONED OFFICERS OF THE ARMY WHO HOLD COMMISSIONS AT THE TIME OF THEIR RETIREMENT. THE RECORD INDICATES THAT YOU HAVE NEVER HELD A COMMISSION EITHER REGULAR OR RESERVE IN THE ARMY. THEREFORE, IT WILL BE SEEN THAT THIS PROVISION MAY NOT BE APPLIED IN YOUR CASE.

AS NOTED BEFORE, YOU WERE RETIRED FROM THE ARMY UNDER THE PROVISIONS OF 10 U.S.C. 1293 IN THE GRADE OF CHIEF WARRANT OFFICER (CW-3), WITH 20 YEARS AND 9 DAYS OF SERVICE FOR RETIREMENT PURPOSES. THAT PROVISION OF LAW PROVIDES AS FOLLOWS:

"SEC 1293. TWENTY YEARS OR MORE: WARRANT OFFICERS

"THE SECRETARY CONCERNED MAY, UPON THE WARRANT OFFICER'S REQUEST, RETIRE A WARRANT OFFICER OF ANY ARMED FORCE UNDER HIS JURISDICTION WHO HAS AT LEAST 20 YEARS OF ACTIVE SERVICE THAT COULD BE CREDITED TO HIM UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (70 STAT. 114)."

IMMEDIATELY PRECEDING THE DATE OF YOUR RETIREMENT YOU WERE SERVING AS A WARRANT OFFICER IN THE ARMY AND IN VIEW OF YOUR ACTIVE SERVICE AND THE ABOVE-QUOTED PROVISION IT APPEARS CLEAR THAT THAT PROVISION WAS THE APPROPRIATE PROVISION OF LAW UNDER WHICH YOU SHOULD HAVE BEEN RETIRED.

THE SECTION TO BE APPLIED IN DETERMINING THE GRADE IN WHICH A WARRANT OFFICER IS TO BE RETIRED IS 10 U.S.C. 1371 WHICH IS AS FOLLOWS:

"SEC 1371. WARRANT OFFICERS: GENERAL RULE

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, A WARRANT OFFICER RETIRES, AS DETERMINED BY THE SECRETARY CONCERNED, IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE, IF ANY, THAT HE HELD ON THE DAY BEFORE THE DATE OF HIS RETIREMENT, OR IN ANY HIGHER WARRANT OFFICER GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY, FOR A PERIOD OF MORE THAN 30 DAYS."

UNDER THIS PROVISION, UNLESS AUTHORIZED BY ANOTHER PROVISION OF LAW, A MEMBER OF THE ARMED FORCES RETIRING AS A WARRANT OFFICER IS LIMITED TO THE HIGHEST WARRANT OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY. ON THE RECORD BEFORE US WE ARE UNAWARE OF ANY PROVISION OF LAW WHICH WOULD AUTHORIZE YOU TO BE RETIRED IN A GRADE OTHER THAN A WARRANT OFFICER GRADE.

UNDER 10 U.S.C. 3964 A WARRANT OFFICER OF THE ARMY WHO IS RETIRED MAY BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS. SINCE, AT THE TIME OF YOUR RETIREMENT, SEPTEMBER 1, 1969, YOU HAD ONLY 20 YEARS AND 9 DAYS OF ACTIVE SERVICE, YOU MAY NOT BE ADVANCED TO THE HIGHEST GRADE IN WHICH YOU SERVED ON ACTIVE DUTY SATISFACTORILY IN ANY EVENT UNTIL SUCH TIME AS YOUR TOTAL SERVICE, THAT IS, ACTIVE SERVICE AND SERVICE ON THE RETIRED LIST EQUALS 30 YEARS.

YOU REFER TO OUR DECISION B-164281, MARCH 23, 1970, 49 COMP. GEN. 618, AS PROVIDING A BASIS FOR YOUR CONTENTION THAT YOU SHOULD HAVE BEEN RETIRED IN A GRADE EQUIVALENT TO COMMANDER OF THE COAST GUARD. YOU STATE THAT THE DECISION OF MARCH 23, 1970, DOES NOT MAKE REFERENCE TO 30 YEARS COMBINED ACTIVE AND RETIRED LIST SERVICE NOR DOES IT STATE THAT A MEMBER MUST HOLD A RESERVE COMMISSION AT THE TIME OF HIS RETIREMENT.

IN THAT DECISION IT WAS HELD THAT:

" *** WHERE AN EXISTING STATUTE AUTHORIZES COMPUTATION OF THE RETIRED PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED SERVICE ON THE BASIS OF THE PAY OF THE GRADE IN WHICH THE INDIVIDUAL HAS SERVED SATISFACTORILY AND WHICH IS HIGHER THAN THE PAY OF THE GRADE ON WHICH HE OTHERWISE IS ENTITLED TO COMPUTE HIS RETIRED PAY, WE WILL AUTHORIZE PAYMENT, OR PASS TO CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS, A PAYMENT OF RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER GRADE, WITHOUT REGARD TO WHETHER THAT GRADE WAS A TEMPORARY OR PERMANENT GRADE, EVEN THOUGH THE ARMED SERVICE IN WHICH THE INDIVIDUAL HELD THAT HIGHER GRADE IS NOT THE SERVICE IN WHICH HE RETIRED,

THAT DECISION APPLIES GENERALLY TO THE DISTINCTIONS WHICH WERE FORMERLY DRAWN BETWEEN TEMPORARY AND PERMANENT GRADES AS A RESULT OF STATUTORY LANGUAGE WHICH REFERRED TO ONLY TEMPORARY GRADES. THAT DECISION ALSO INDICATED THAT, WHERE AN EXISTING STATUTE AUTHORIZED COMPUTATION OF RETIRED PAY ON A HIGHER GRADE, IT WOULD BE APPLIED REGARDLESS OF THE SERVICE IN WHICH THE HIGHER GRADE WAS HELD. IT IS NOT FOR APPLICATION IN A CASE SUCH AS YOURS WHERE THERE IS NO EXISTING STATUTORY AUTHORITY FOR THE COMPUTATION OF RETIRED PAY ON THE BASIS OF A HIGHER GRADE, EITHER PERMANENT OR TEMPORARY, WITHOUT REGARD TO THE AMOUNT OF SERVICE WHICH IS CREDITABLE FOR RETIREMENT PURPOSES.

THEREFORE, UNTIL SUCH TIME AS YOU MEET THE REQUIREMENTS OF LAW AUTHORIZING THE COMPUTATION OF YOUR RETIRED PAY ON A HIGHER GRADE THAN THAT IN WHICH YOU ARE RETIRED, YOU ARE NOT ENTITLED IN ANY CASE TO BE ADVANCED ON THE RETIRED LIST OR TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF YOUR RESERVE COMMISSION OF COMMANDER IN THE COAST GUARD.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY OUR CLAIMS DIVISION WAS CORRECT AND MUST BE SUSTAINED.