B-174499, FEB 3, 1972

B-174499: Feb 3, 1972

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HIS RETIREMENT ORDERS WERE ISSUED DECEMBER 11. HIS PAY WAS BASED ON THE APRIL 15. THE EFFECTIVE RETIREMENT DATE IS THE FIRST DAY FOR WHICH RETIRED PAY IS RECEIVED. PROVIDE THAT A MEMBER WHO IS ENTITLED TO PAY DETERMINED BY MORE THAN ONE PAY FORMULA MAY BE PAID BY THE MOST FAVORABLE RATE. BRENINGSTALL: FURTHER REFERENCE IS MADE TO YOUR LETTER REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $169.42 IN FAVOR OF SENIOR MASTER SERGEANT JACK T. YOU INDICATE IN YOUR LETTER THAT SERGEANT TABER WAS RETIRED ON JANUARY 1. YOU SAY THAT HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF 28 YEARS. BECAUSE SERGEANT TABER'S RETIREMENT ORDERS WERE DATED IN THE MONTH PRECEDING HIS DATE OF RETIREMENT.

B-174499, FEB 3, 1972

MILITARY PERSONNEL - ENTITLEMENT TO RETIRED PAY - RATE OF COMPUTATION DECISION ALLOWING PAYMENT TO SGT. JACK T. TABER, USAF, RETIRED, OF THE MORE FAVORABLE OF THE APPLICABLE RETIRED PAY RATES. SGT. TABER RETIRED ON JANUARY 1, 1971, BUT HIS RETIREMENT ORDERS WERE ISSUED DECEMBER 11, 1970, AND, THEREFORE, HIS PAY WAS BASED ON THE APRIL 15, 1970, PAY RATE UNDER THE UNIFORM RETIREMENT DATE ACT, WHICH AUTHORIZES USE OF THE RATE APPLICABLE WHEN THE MEMBER'S RETIREMENT BECAME EFFECTIVE. IT HAS PREVIOUSLY BEEN HELD THAT FOR THOSE WHO COMPUTE THEIR RETIREMENT PAY RATE BY FORMULA C, 10 U.S.C. 3991 AND 8991, THE EFFECTIVE RETIREMENT DATE IS THE FIRST DAY FOR WHICH RETIRED PAY IS RECEIVED. UNDER THESE CIRCUMSTANCES THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT NEED NOT APPLY. FURTHER, SECTIONS 1401 AND 8991 OF TITLE 10, U.S. CODE, PROVIDE THAT A MEMBER WHO IS ENTITLED TO PAY DETERMINED BY MORE THAN ONE PAY FORMULA MAY BE PAID BY THE MOST FAVORABLE RATE.

TO MR. N. R. BRENINGSTALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $169.42 IN FAVOR OF SENIOR MASTER SERGEANT JACK T. TABER, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY FOR THE PERIOD JANUARY 1, 1971, THROUGH JULY 31, 1971, COMPUTED UNDER THE JANUARY 1, 1971, BASIC PAY RATES RATHER THAN THE APRIL 15, 1970, BASIC PAY RATES. THIS REQUEST HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1137 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU INDICATE IN YOUR LETTER THAT SERGEANT TABER WAS RETIRED ON JANUARY 1, 1971, FOR DISABILITY WITH A RATING OF 30 PERCENT, BY A RETIREMENT ORDER DATED DECEMBER 11, 1970. YOU SAY THAT HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF 28 YEARS, 4 MONTHS, AND 7 DAYS OF ACTIVE SERVICE. BECAUSE SERGEANT TABER'S RETIREMENT ORDERS WERE DATED IN THE MONTH PRECEDING HIS DATE OF RETIREMENT, YOU HAVE COMPUTED HIS RETIRED PAY AS IF THE UNIFORM RETIREMENT DATE ACT RESTRICTION IN 5 U.S.C. 8301(B) APPLIED AND HIS RETIRED PAY HAS BEEN BASED ON THE APRIL 15, 1970, BASIC PAY RATES PLUS THE 2.5 PERCENT COST-OF-LIVING INCREASE OF AUGUST 1, 1970.

IT IS FURTHER STATED THAT SERGEANT TABER HAD QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 8914 EIGHT YEARS EARLIER AND THAT A LETTER FROM THE USAF MILITARY PERSONNEL CENTER INDICATES THAT HE ORIGINALLY SUBMITTED AN APPLICATION FOR VOLUNTARY RETIREMENT TO BE EFFECTIVE JANUARY 1, 1971.

YOU SPECIFICALLY REQUEST A DECISION AS TO WHETHER A MEMBER WHO IS RETIRED FOR DISABILITY AS OF THE FIRST DAY OF A MONTH UNDER RETIREMENT ORDERS DATED IN THE PRECEDING MONTH, BUT WHO HAS OTHERWISE QUALIFIED FOR VOLUNTARY RETIREMENT UNDER ANOTHER PROVISION OF LAW EARLIER THAN THAT PRECEDING MONTH, IS CONSIDERED TO RECEIVE RETIRED PAY AS OF THAT FIRST DAY OF THE MONTH BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT AND, IS THEREFORE SUBJECT TO 5 U.S.C. 8301(B); OR WHETHER, BY OPERATION OF THE "MOST FAVORABLE FORMULA" PROVISION IN 10 U.S.C. 1401, HE CAN BE CONSIDERED AS NOT SUBJECT TO THE UNIFORM RETIREMENT DATE ACT RESTRICTION EVEN THOUGH THE MULTIPLIER FACTOR IN THE COMPUTATION UNDER BOTH LAWS IS THE SAME.

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, NOW CODIFIED IN 5 U.S.C. 8301 (FORMERLY 5 U.S.C. 47A) PROVIDES AS FOLLOWS:

"(A) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY THIS TITLE OR OTHER STATUTE, RETIREMENT AUTHORIZED BY STATUTE IS EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

"(B) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE IS COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SUBSECTION (A) OF THIS SECTION."

UNDER THE ABOVE-QUOTED PROVISION OF LAW, WHICH IS APPLICABLE TO PHYSICAL DISABILITY RETIREMENTS UNDER THE PROVISIONS OF CHAPTER 61, TITLE 10, U.S. CODE, WHICH ARE NOT EFFECTED ON A DATE PRESCRIBED PURSUANT TO 10 U.S.C. 1221, THE EFFECTIVE DATE OF RETIREMENT IS THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, WITH RETIRED PAY COMPUTED ON THE BASIS OF THE PAY RATES IN EFFECT AT SUCH TIME.

THE RETIRED PAY OF AIR FORCE ENLISTED MEMBERS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 8914 IS COMPUTED UNDER FORMULA C OF 10 U.S.C. 8991. THAT FORMULA PROVIDES IN PART THAT RETIRED PAY IS TO BE BASED ON THE MONTHLY BASIC PAY TO WHICH MEMBER WAS ENTITLED ON THE DAY BEFORE HE RETIRED, AS QUALIFIED BY FOOTNOTE 3 OF THAT SECTION, WHICH PROVIDES, "COMPUTE AT RATES APPLICABLE ON DATE OF RETIREMENT *** ." IN DECISION B- 155458, JANUARY 5, 1965, 44 COMP. GEN. 373, IT WAS HELD WITH REGARD TO ARMY AND AIR FORCE ENLISTED MEMBERS WHO RETIRE UNDER THE PROVISIONS OF 10 U.S.C. 3914 AND 8914 AND COMPUTE THEIR RETIRED PAY UNDER THE PROVISIONS OF FORMULA C OF 10 U.S.C. 3991 AND 8991, THAT THE DATE OF RETIREMENT WAS THE FIRST DAY FOR WHICH RETIRED PAY WAS RECEIVED.

THAT DECISION ALSO INDICATED FOR THE REASONS STATED THEREIN, THAT IN CIRCUMSTANCES WHERE AN ENLISTED MEMBER RETIRES AND HIS RETIRED PAY IS COMPUTED UNDER THE ABOVE-CITED PROVISIONS OF FORMULA C, THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT ARE NOT FOR APPLICATION.

SECTION 1401 OF TITLE 10, U.S. CODE, WHICH GOVERNS THE COMPUTATION OF DISABILITY RETIRED PAY, PROVIDES IN PART AS FOLLOWS:

"THE MONTHLY RETIRED PAY OF A PERSON ENTITLED THERETO UNDER THIS SUBTITLE IS COMPUTED ACCORDING TO THE FOLLOWING TABLE. FOR EACH CASE COVERED BY A SECTION OF THIS TITLE NAMED IN THE COLUMN HEADED 'FOR SECTIONS', RETIRED PAY IS COMPUTED BY TAKING, IN ORDER, THE STEPS PRESCRIBED OPPOSITE IT IN COLUMNS 1, 2, 3, AND 4, AS MODIFIED BY THE APPLICABLE FOOTNOTES. HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM. *** "

A RECIPROCAL MOST FAVORABLE FORMULA PROVISION IS CONTAINED IN 10 U.S.C. 8991.

IN B-164842, AUGUST 8, 1969, 49 COMP. GEN. 80, QUESTIONS SIMILAR TO THE ONE BEFORE US NOW WERE PRESENTED FOR DECISION, INVOLVING PHYSICAL DISABILITY RETIREMENTS OF COMMISSIONED OFFICERS, EFFECTIVE THE SAME DATE AS NEW RATES OF ACTIVE DUTY PAY WERE EFFECTIVE, WHERE THE OFFICERS INVOLVED WERE ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT.

IN RESPONSE TO THE FIRST QUESTION PRESENTED IN THAT DECISION, WHICH INVOLVED A NAVY OFFICER RETIRED FOR PHYSICAL DISABILITY UNDER CIRCUMSTANCES IN WHICH THE UNIFORM RETIREMENT DATE ACT APPEARED TO BE APPLICABLE, BUT WHO WAS ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 6323, WE INDICATED THAT, SINCE THE UNIFORM RETIREMENT DATE ACT WAS NOT APPLICABLE TO SECTION 6323, WHICH PROVISION WAS THE "OTHER PROVISION" OF LAW MOST FAVORABLE TO THAT OFFICER, HE WAS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE BASIS OF HIGHER BASIC PAY RATES WHICH BECAME EFFECTIVE ON THE EFFECTIVE DATE OF HIS RETIREMENT.

HENCE, SINCE THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT ARE NOT FOR APPLICATION IN THE CASE OF AIR FORCE ENLISTED MEMBERS RETIRING UNDER THE PROVISIONS OF 10 U.S.C. 8914 AND COMPUTING THEIR RETIRED PAY UNDER FORMULA C OF 10 U.S.C. 8991, IT IS OUR OPINION THAT COMPUTATION OF RETIRED PAY UNDER THE LATTER PROVISION OF LAW IS THE "OTHER PROVISION" OF LAW MOST FAVORABLE TO SERGEANT TABER.

ACCORDINGLY, SERGEANT TABER'S RETIRED PAY MAY BE COMPUTED ON THE BASIS OF THE HIGHER BASIC PAY RATES THAT BECAME EFFECTIVE JANUARY 1, 1971. THE VOUCHER IS RETURNED HEREWITH AND IF OTHERWISE CORRECT, PAYMENT IS AUTHORIZED THEREON.