B-177393, APR 20, 1973

B-177393, APR 20, 1973

DENIAL OF REQUEST FOR CLAIMED RECOMPUTATION OF RETIRED PAY FOR SERGEANTS BODOLUS AND ADAMS ON BASIS MEMBERS WERE KEPT ON ACTIVE DUTY AFTER RETIREMENT DUE TO LACK OF NOTIFICATION OF RETIREMENT ACTION TAKEN.

TO MR. N. R. BRENINGSTALL:

THIS REFERS TO YOUR LETTER DATED OCTOBER 6, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED NOVEMBER 3, 1972, OF HEADQUARTERS, UNITED STATES AIR FORCE, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $14 IN FAVOR OF MASTER SERGEANT STEPHEN E. BODOLUS, SSAN XXX-XX-XXXX, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY RATES EFFECTIVE JANUARY 1, 1972, PLUS ONE COST OF LIVING INCREASE AND RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY RATES IN EFFECT PRIOR TO JANUARY 1, 1972. YOU ALSO REQUEST A DECISION AS TO WHETHER OR NOT PAYMENT OF RETIRED PAY FOR TECHNICAL SERGEANT RUFUS H. ADAMS HAS BEEN CORRECTLY COMPUTED UNDER THE CIRCUMSTANCES IN HIS CASE. YOUR REQUEST HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1178 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SPECIAL ORDER NO. 37142, DATED NOVEMBER 10, 1971, ANNOUNCED THE RETIREMENT OF SERGEANT BODOLUS UNDER THE PROVISIONS OF 10 U.S.C. 1201 EFFECTIVE DECEMBER 10, 1971, WITH 20 YEARS, 11 MONTHS, AND 5 DAYS OF SERVICE FOR BASIC PAY AND PERCENTAGE PURPOSES AND 90 PERCENT COMPENSABLE PERCENTAGE OF PHYSICAL DISABILITY. THROUGH ADMINISTRATIVE OVERSIGHT HE WAS PLACED ON CONVALESCENT LEAVE BY THE UNITED STATES AIR FORCE HOSPITAL, PLATTSBURGH AIR FORCE BASE, NEW YORK, FOR THE PERIODS FROM NOVEMBER 9, 1971, TO DECEMBER 8, 1971, AND FROM DECEMBER 9, 1971, TO JANUARY 7, 1972, FOR THE PURPOSE OF RECUPERATION PENDING RECEIPT OF PHYSICAL DISABILITY RETIREMENT ORDERS. THE CONSOLIDATED BASE PERSONNEL OFFICE, 380 COMBAT SUPPORT GROUP, STRATEGIC AIR COMMAND, PLATTSBURGH AIR FORCE BASE, RECEIVED THE RETIREMENT ORDERS PRIOR TO DECEMBER 10, 1971, BUT SERGEANT BODOLUS COULD NOT BE LOCATED PRIOR TO THE EFFECTIVE DATE OF RETIREMENT AND HE WAS FINALLY CONTACTED BY PHONE ON DECEMBER 16, 1971.

SUBSEQUENTLY SPECIAL ORDER NO. AC-41834, DATED DECEMBER 23, 1971, WAS ISSUED PURPORTEDLY RELIEVING SERGEANT BODOLUS FROM EXTENDED ACTIVE DUTY EFFECTIVE DECEMBER 29, 1971, AND REVERTING HIM TO RETIRED STATUS EFFECTIVE DECEMBER 30, 1971, ON WHICH DATE HIS SERVICE FOR BASIC PAY AND ACTIVE SERVICE FOR RETIREMENT WAS 20 YEARS, 11 MONTHS, AND 25 DAYS. SPECIAL ORDER NO. AC-42217, DATED DECEMBER 29, 1971, REVOKED SPECIAL ORDER NO. AC- 41834 AND PURPORTEDLY RELIEVED HIM FROM EXTENDED ACTIVE DUTY EFFECTIVE JANUARY 14, 1972, AND REVERTED HIM TO RETIRED STATUS JANUARY 15, 1972, ON WHICH DATE HIS SERVICE FOR BASIC PAY AND ACTIVE SERVICE FOR RETIREMENT WAS 21 YEARS AND 10 DAYS.

EACH OF THE ORDERS IN SERGEANT BODOLUS' CASE PROVIDED THAT RETIRED PAY IS AUTHORIZED UNDER 10 U.S.C. 1402(D). THE BASIS FOR SUCH ORDERS IS STATED TO BE THAT SINCE HE DID NOT RECEIVE ACTUAL OR CONSTRUCTIVE NOTICE OF HIS RETIREMENT UNTIL AFTER THE EFFECTIVE DATE SPECIFIED IN HIS RETIREMENT ORDERS, AND HAVING BEEN RETAINED ON ACTIVE DUTY IN A FULL DUTY STATUS, HE WAS RETAINED ON ACTIVE DUTY AFTER RETIREMENT UNTIL RELEASED BY COMPETENT AUTHORITY, CITING 35 COMP. GEN. 225 (1955). IT IS STATED THAT RETIRED PAY WAS ESTABLISHED FOR HIM UNDER THE PAY RATES EFFECTIVE JANUARY 1, 1972, AND REDUCED ON AUGUST 1, 1972.

SPECIAL ORDER NO. 26302, DATED JULY 22, 1971, ANNOUNCED THE RETIREMENT OF TECHNICAL SERGEANT RUFUS H. ADAMS, XXX-XX-XXXX, UNDER THE PROVISIONS OF 10 U.S.C. 1201 EFFECTIVE AUGUST 5, 1971, WITH 23 YEARS, 7 MONTHS, AND 18 DAYS OF SERVICE FOR BASIC PAY AND PERCENTAGE PURPOSES AND 20 PERCENT COMPENSABLE PERCENTAGE OF PHYSICAL DISABILITY. THE CONSOLIDATED BASE PERSONNEL OFFICE, 22 COMBAT SUPPORT GROUP, STRATEGIC AIR COMMAND, MARCH AIR FORCE BASE, CALIFORNIA, RECEIVED THE ORDER PRIOR TO AUGUST 5, 1971; HOWEVER, THROUGH ADMINISTRATIVE OVERSIGHT DID NOT PROPERLY NOTIFY THE REGISTRAR'S OFFICE, UNITED STATES AIR FORCE REGIONAL HOSPITAL, MARCH AIR FORCE BASE, OR SERGEANT ADAMS PRIOR TO AUGUST 5, 1971. THE OVERSIGHT WAS DISCOVERED ON OCTOBER 28, 1971, AND SERGEANT ADAMS WAS NOTIFIED THAT HIS RETIREMENT HAD BEEN EFFECTED AUGUST 5, 1971.

SUBSEQUENTLY, SPECIAL ORDER NO. AC-38934, DATED NOVEMBER 29, 1971, WAS ISSUED PURPORTEDLY RELIEVING SERGEANT ADAMS FROM EXTENDED ACTIVE DUTY AND REVERTING HIM TO RETIRED STATUS EFFECTIVE DECEMBER 17, 1971, ON WHICH DATE HIS SERVICE FOR BASIC PAY AND ACTIVE SERVICE FOR RETIREMENT WAS AN EVEN 24 YEARS. THE ORDER PROVIDED THAT RETIRED PAY IS AUTHORIZED UNDER 10 U.S.C. 1402(D). THE BASIS FOR ISSUANCE OF THE ORDER IS STATED TO BE THAT SINCE SERGEANT ADAMS DID NOT RECEIVE ACTUAL OR CONSTRUCTIVE NOTICE OF HIS RETIREMENT UNTIL AFTER THE EFFECTIVE DATE SPECIFIED IN HIS RETIREMENT ORDERS AND HAVING BEEN RETAINED ON ACTIVE DUTY IN FULL DUTY STATUS (PATIENT) HE WAS RETAINED ON ACTIVE DUTY AFTER RETIREMENT UNTIL RELEASED BY COMPETENT AUTHORITY, ALSO CITING 35 COMP. GEN. 225 (1955). IT IS NOT STATED HOW RETIREMENT PAY WAS ESTABLISHED FOR SERGEANT ADAMS. HOWEVER, THE TENOR OF YOUR LETTER SEEMS TO EXPRESS YOUR DOUBT AS TO WHETHER HE IS ENTITLED TO ACTIVE DUTY PAY OR RETIRED PAY SUBSEQUENT TO AUGUST 5, 1971, INASMUCH AS SPECIAL ORDER NO. AC 38934 DID NOT INDICATE ANY OTHER DATE AS THE EFFECTIVE DATE OF HIS RETIREMENT.

IN DECISION 49 COMP. GEN. 429 (1970), WE CONSIDERED THE CASE OF A MEMBER WHOSE RETIREMENT ORDER ANNOUNCING HIS PLACEMENT ON THE TEMPORARY DISABILITY LIST EFFECTIVE JULY 17, 1969, WAS NOT NOTIFIED OF HIS RETIREMENT UNTIL JULY 24, 1969. ALTHOUGH AN ATTEMPT WAS MADE TO REVOKE HIS RETIREMENT ORDERS AND A NEW ORDER WAS ISSUED ANNOUNCING HIS RELEASE FROM ACTIVE DUTY EFFECTIVE AUGUST 14, 1969, AND HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIREMENT LIST ON AUGUST 15, 1969, WE HELD THAT HIS RETIREMENT BECAME EFFECTIVE ON THE DAY FOLLOWING THE DAY HE ACTUALLY RECEIVED NOTICE OF HIS RETIREMENT ORDERS AND THEREFORE HE CONTINUED ON ACTIVE DUTY AND ENTITLED TO PAY AND ALLOWANCES FROM JULY 17, 1969, TO AND INCLUDING JULY 24, 1969, AND TO RETIRED PAY FROM JULY 25, 1969, TO AND INCLUDING AUGUST 14, 1969. THIS CONCLUSION WAS BASED ON THE COURT OF CLAIMS DECISION IN CRIST V. UNITED STATES, 124 CT. CL. 825 (1952), AND 39 COMP. GEN. 312 (1959).

IN THE CASES HERE INVOLVED THERE WAS NO ATTEMPT TO REVOKE THE ORIGINAL RETIREMENT ORDERS, BUT RATHER THE SUBSEQUENT ORDERS PURPORTED TO RETAIN THE MEMBERS OF ACTNVE DUTY AFTER RETIREMENT SO AS TO ENTITLE THEM TO RECOMPUTATION OF THEIR RETIRED PAY UNDER 10 U.S.C. 1402(D). HOWEVER, AS NOTED BY YOU, SUBSECTION (D) APPEARS TO BE INAPPLICABLE SINCE IT PERTAINS TO MEMBERS COVERED BY SUBSECTIONS (B) AND (C). SUBSECTION (B) RELATES TO A MEMBER WHO HAS BEEN RETIRED OTHER THAN FOR PHYSICAL DISABILITY AND WHO WHILE ON ACTIVE DUTY INCURS A PHYSICAL DISABILITY FOR WHICH HE WOULD OTHERWISE BE ELIGIBLE FOR RETIRED PAY UPON HIS RELEASE FROM ACTIVE DUTY AND SUBSECTION (C) APPLIES TO A MEMBER RETIRED FOR PHYSICAL DISABILITY WHO INCURS WHILE ON ACTIVE DUTY AFTER RETIREMENT A PHYSICAL DISABILITY THAT IS IN ADDITION TO OR AGGRAVATES THE PHYSICAL DISABILITY FOR WHICH HE WAS RETIRED. NEITHER SERGEANT BODOLUS NOR SERGEANT ADAMS FIT THE REQUIREMENTS OF SUBSECTIONS (B) OR (C).

AS POINTED OUT IN 49 COMP. GEN. 429, 430, THE LATE RECEIPT OF A RETIREMENT ORDER DOES NOT PREVENT THE RETIREMENT OF A MEMBER BEING EFFECTED WHEN THE ORDER IS RECEIVED. THE ORDERS ISSUED AFTER THE AFFECTIVE DATES OF RETIREMENT IN THE CASES OF SERGEANT BODOLUS AND SERGEANT ADAMS PURPORTING TO RETAIN THEM ON ACTIVE DUTY UNTIL A SUBSEQUENT RELEASE DATE MAY NOT BE CONSIDERED AS AUTHORIZING ACTIVE DUTY PAY SUBSEQUENT TO THE DATE OF RECEIPT OF NOTICE OF THEIR RETIREMENT ORDERS. ALSO, SINCE THERE IS NO QUESTION AS TO THE VALIDITY OF THE ORIGINAL RETIREMENT ORDERS, IT IS OUR VIEW THAT THE MERE FACT THAT THE MEMBERS WERE RETAINED ON ACTIVE DUTY SUBSEQUENT TO THE EFFECTIVE DATE OF THEIR RETIREMENT AFFORDS NO BASIS FOR CONCLUDING THAT THEY ARE ENTITLED TO HAVE THEIR RETIRED PAY RECOMPUTED AS CONTEMPLATED BY 10 U.S.C. 1402. HENCE, UNDER THE RULING IN 49 COMP. GEN. 429 (1970) WE FIND NO BASIS FOR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES SUBSEQUENT TO DECEMBER 16, 1971, IN THE CASE OF SERGEANT BODOLUS AND OCTOBER 28, 1971, IN THE CASE OF SERGEANT ADAMS. SERGEANT BODOLUS' RETIRED PAY IS FOR COMPUTATION ON THE ACTIVE DUTY PAY RATES IN EFFECT PRIOR TO JANUARY 1, 1972. SERGEANT ADAMS' RETIRED PAY IS FOR COMPUTATION ON THE SAME BASIS.

THERE BEING NO AUTHORITY FOR PAYMENT OF THE VOUCHER FORWARDED WITH YOUR LETTER, IT WILL BE RETAINED HERE.