B-175403, SEP 18, 1972

B-175403: Sep 18, 1972

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SINCE THE SECRETARY HAS FIXED AN EFFECTIVE DATE FOR PLACEMENT OF THE MEMBER'S NAME ON THE RETIRED LIST THAT IS LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE DETERMINED THE MEMBER'S DISABILITY. THE RESTRICTION UNDER 5 U.S.C. 8301(B) IS NOT APPLICABLE AND. THE MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATES IN EFFECT ON THE DATE OF RETIREMENT ADMINISTRATIVELY DETERMINED BY THE SECRETARY. GENERAL COATES IS ENTITLED TO DISABILITY RETIRED PAY COMPUTED AT THE RATES EFFECTIVE ON JANUARY 1. C. SAMARKOS: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 9. WHICH WAS FORWARDED HERE BY LETTER DATED MARCH 3. WAS SUBJECT TO THE PROVISIONS OF 10 U.S.C. 3883.

B-175403, SEP 18, 1972

MILITARY PERSONNEL - RETIREMENT PAY DECISION ALLOWING PAYMENT OF A VOUCHER IN FAVOR OF BRIGADIER GENERAL JOHN B. COATES, JR., RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED ON ACTIVE DUTY PAY RATES EFFECTIVE JANUARY 1, 1972, AND THE RATES EFFECTIVE JANUARY 1, 1971, FOR THE PERIOD JANUARY 1 TO JANUARY 31, 1972. SINCE IT HAS BEEN RECOGNIZED THAT A DISABILITY RETIREMENT DATE MAY BE FIXED AT A LATER MONTH THAN THAT PROVIDED UNDER 10 U.S.C. 1221, SEE GREENWALD V. UNITED STATES, 88 CT. CL. 264 (1939), AND SINCE THE SECRETARY HAS FIXED AN EFFECTIVE DATE FOR PLACEMENT OF THE MEMBER'S NAME ON THE RETIRED LIST THAT IS LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE DETERMINED THE MEMBER'S DISABILITY, THE RESTRICTION UNDER 5 U.S.C. 8301(B) IS NOT APPLICABLE AND, ON THE BASIS OF FOOTNOTE 1 OF 10 U.S.C. 1401, THE MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATES IN EFFECT ON THE DATE OF RETIREMENT ADMINISTRATIVELY DETERMINED BY THE SECRETARY. THEREFORE, GENERAL COATES IS ENTITLED TO DISABILITY RETIRED PAY COMPUTED AT THE RATES EFFECTIVE ON JANUARY 1, 1972.

TO LIEUTENANT COLONEL A. C. SAMARKOS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 9, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED MARCH 3, 1972, OF THE OFFICE OF THE COMPTROLLER OF THE ARMY, DACA-FIS-PP, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $101.69 IN FAVOR OF BRIGADIER GENERAL JOHN B. COATES, JR., RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY RATES EFFECTIVE JANUARY 1, 1972, AND THE RATES IN EFFECT ON JANUARY 1, 1971, FOR THE PERIOD JANUARY 1 TO 31, 1972, UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-A-1149 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

GENERAL COATES RETIRED JANUARY 1, 1972, UNDER THE PROVISIONS OF 10 U.S.C. 1201 WITH OVER 30 YEARS OF ACTIVE SERVICE AND SERVICE FOR BASIC PAY PURPOSES AND 70 PERCENT DISABILITY UNDER RETIREMENT ORDER DATED OCTOBER 26, 1971. HE BECAME 60 YEARS OF AGE ON DECEMBER 30, 1971, AND WAS SUBJECT TO THE PROVISIONS OF 10 U.S.C. 3883. HE ALSO WAS QUALIFIED FOR VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 3918.

YOU EXPRESSED DOUBT AS TO WHETHER AN OFFICER WHO IS RETIRED FOR DISABILITY MAY HAVE THE EFFECTIVE DATE OF HIS RETIREMENT DEFERRED UNTIL THE FIRST DAY OF THE THIRD MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WAS ORDERED. YOU ALSO DOUBT WHETHER IN COMPUTING RETIREMENT AT THE RATE MOST FAVORABLE WHERE, AS HERE, THE OFFICER WAS ALSO QUALIFIED FOR RETIREMENT FOR 30 YEARS (NOTWITHSTANDING HE DID NOT REQUEST VOLUNTARY RETIREMENT FOR 30 YEARS (NOTWITHSTANDING HE DID NOT REQUEST VOLUNTARY RETIREMENT FOR LENGTH OF SERVICE UNDER 10 U.S.C. 3918), HE IS ENTITLED TO COMPUTE HIS RETIRED PAY UNDER THE RATES ESTABLISHED BY EXECUTIVE ORDER 11638, DECEMBER 22, 1971, EFFECTIVE JANUARY 1, 1972.

SECTION 3883, TITLE 10, U.S. CODE, PROVIDES THAT:

"UNLESS RETIRED OR SEPARATED AT AN EARLIER DATE, EACH COMMISSIONED OFFICER WHOSE REGULAR GRADE IS BELOW MAJOR GENERAL, OTHER THAN A PROFESSOR OR THE REGISTRAR OF THE UNITED STATES MILITARY ACADEMY, SHALL BE RETIRED WHEN HE BECOMES 60 YEARS OF AGE, EXCEPT AS PROVIDED BY SECTION 8301 OF TITLE 5."

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, NOW CODIFIED IN 5 U.S.C. 8301 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."

SECTION 1221, TITLE 10, U.S. CODE, PROVIDES THAT:

"NOTWITHSTANDING SECTION 8301 OF TITLE 5, THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR THE RETIREMENT OF ANY MEMBER OF THE ARMED FORCES UNDER THIS CHAPTER, OR FOR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, THAT IS EARLIER THAN THE DATE PROVIDED FOR IN THAT SECTION."

IT IS PROVIDED IN 10 U.S.C. 3918 THAT:

"A REGULAR COMMISSIONED OFFICER OF THE ARMY WHO HAS AT LEAST 30 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THIS TITLE MAY BE RETIRED UPON HIS REQUEST, IN THE DISCRETION OF THE PRESIDENT."

THE MONTHLY RETIRED PAY OF A PERSON RETIRED UNDER 10 U.S.C. 3883 IS COMPUTED UNDER FORMULA A OF 10 U.S.C. 3991. ARMY OFFICERS WHO ARE OTHERWISE ELIGIBLE FOR RETIREMENT FOR YEARS OF SERVICE ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED UNDER FORMULA B OF 10 U.S.C. 3991 SUBJECT TO FOOTNOTE 2 ON THE MONTHLY BASIC PAY"*** AT RATES APPLICABLE ON DATE OF RETIREMENT ***."

RETIRED PAY BY REASON OF DISABILITY UNDER 10 U.S.C. 1201 IS COMPUTED UNDER FORMULA 1 OF 10 U.S.C. 1401 SUBJECT TO FOOTNOTE 1 ON THE MONTHLY BASIC PAY RATES "*** APPLICABLE ON DATE OF RETIREMENT OR DATE WHEN MEMBER'S NAME WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST, AS THE CASE MAY BE ***."

IN BOTH 10 U.S.C. 1401 AND 3991 IT IS PROVIDED THAT IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THE TABLES THERE PROVIDED OR ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

WHILE 10 U.S.C. 1221 ONLY PERMITS THE FIXING OF A DATE THAT IS EARLIER THAN THE "FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE," IT HAS BEEN RECOGNIZED THAT THE EFFECTIVE DATE OF DISABILITY RETIREMENT MAY BE FIXED AT THE FIRST OF A LATER MONTH. SEE GREENWALD V. UNITED STATES, 88 CT. CL. 264 (1939). COMPARE 24 COMP. GEN. 934, 940 (1945). CONSEQUENTLY, WHERE, AS IN GENERAL COATES' CASE, THE SECRETARY FIXES AN EFFECTIVE DATE FOR PLACEMENT OF A MEMBER'S NAME ON THE RETIRED LIST THAT IS LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE DETERMINES THE MEMBER'S DISABILITY, THE RESTRICTION UNDER 5 U.S.C. 8301(B) IS NOT APPLICABLE AND ON THE BASIS OF FOOTNOTE 1 OF 10 U.S.C. 1401 THE MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATES IN EFFECT ON THE DATE OF RETIREMENT THAT IS ADMINISTRATIVELY FIXED BY THE SECRETARY. THE FACT THAT HE REACHED AGE 60 AND WOULD OTHERWISE HAVE BEEN REQUIRED TO BE MANDATORILY RETIRED ON THE DATE FIXED BY THE SECRETARY, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, IS IMMATERIAL. HENCE, GENERAL COATES IS ENTITLED TO DISABILITY RETIRED PAY COMPUTED AT THE RATES EFFECTIVE ON JANUARY 1, 1972. SEE B-168308, JANUARY 14, 1970, COPY HEREWITH.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.