B-178054, MAY 2, 1975, 54 COMP GEN 941

B-178054, MAY 2, 1975, 54 COMP GEN 941

PAY - RETIRED - COMPUTATION - RETIREMENT ON EFFECTIVE DATE OF ACTIVE DUTY PAY INCREASE AIR FORCE WARRANT OFFICER, RETIRED UNDER 10 U.S.C. 1293, EFFECTIVE JULY 1, 1968, WHICH WAS FIRST DAY OF GENERAL INCREASE IN ACTIVE DUTY PAY RATES, MUST COMPUTE RETIREMENT PAY BASED ON RATES IN EFFECT ON JUNE 30, 1968, RATHER THAN JULY 1, 1968, SINCE EXPLICIT STATUTORY LANGUAGE CONTAINED IN FORMULA 4 OF 10 U.S.C. 1401, REQUIRES COMPUTATION ON BASIS OF ACTIVE DUTY PAY RATE IN EFFECT ON DAY BEFORE RETIREMENT, ABSENT ANY APPLICABLE FORMULA MORE FAVORABLE TO HIM.

IN THE MATTER OF AN ADJUSTMENT OF RETIRED PAY, MAY 2, 1975:

THIS ACTION IS IN RESPONSE TO A LETTER DATED JULY 10, 1974, WITH ENCLOSURES (FILE REFERENCE RPTT), FROM CHIEF, ACCOUNTING AND FINANCE DIVISION (COMPTROLLER), HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1,559.80, IN FAVOR OF W-4 RAY A. KELLAM, XXX-XX-XXXX, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED FROM BASIC PAY RATES IN EFFECT ON JUNE 30, 1968, RATHER THAN THE RATES WHICH WENT INTO EFFECT JULY 1, 1968, FOR THE PERIOD JULY 1, 1968, TO JUNE 30, 1974. THE REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER DATED AUGUST 30, 1974, FROM THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, AND HAS BEEN ASSIGNED AIR FORCE SUBMISSION NO. DO-AF-1228 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION STATES THAT THE MEMBER WAS RETIRED EFFECTIVE JUNE 30, 1968, UNDER THE PROVISIONS OF 10 U.S.C. 1293, AND AUTHORIZED RETIRED PAY COMPUTED UNDER FORMULA 4 OF 10 U.S.C. 1401. AT THE TIME OF HIS RETIREMENT, THE MEMBER HAD COMPLETED 28 YEARS, 9 MONTHS AND 10 DAYS OF ACTIVE SERVICE, WITH OVER 30 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND PERCENTAGE MULTIPLE PURPOSES UNDER 10 U.S.C. 1405. FURTHER, THE MEMBER'S RETIRED PAY WAS COMPUTED ON THE BASIC PAY RATES IN EFFECT ON JUNE 30, 1968, RATHER THAN THE HIGHER RATES EFFECTIVE JULY 1, 1968, BASED ON OUR DECISION 48 COMP. GEN. 239 (1968).

IT IS SUGGESTED IN THE SUBMISSION, HOWEVER, THAT THE CASE OF CHESTER V. UNITED STATES, 199 CT. CL. 687 (1972), 53 COMP. GEN. 135 (1973), MAY BE APPLICABLE TO THE MEMBER AND ENTITLE HIM TO RECEIVE RETIRED PAY COMPUTED ON THE BASIC PAY RATES ESTABLISHED BY EXECUTIVE ORDER 11414, EFFECTIVE JULY 1, 1968. IN THIS REGARD, IT IS STATED IN THE SUBMISSION THAT WHILE NO MANDATORY RETIREMENT STATUTES ARE APPLICABLE IN THE PRESENT CASE, THE QUESTION OF COMPUTATION IS SIMILAR TO THE CHESTER CASE, IN THAT HIS RETIRED PAY WAS COMPUTED AT THE LOWER RATE IN EFFECT ON THE LAST DAY HE WAS ON ACTIVE DUTY RATHER THAN THE HIGHER RATE IN EFFECT ON THE FIRST DAY FOR WHICH HE RECEIVED RETIREMENT PAY.

IN OUR DECISIONS, B-165038, JANUARY 6, 1969, AND B-165038(1) AND (2), JUNE 2, 1969, WE HELD THAT AN OFFICER SUBJECT TO THE PROVISIONS OF 14 U.S.C. 288(A) - WHICH PROVIDES FOR MANDATORY RETIREMENT FOR CERTAIN COAST GUARD MEMBERS UNDER STATED CIRCUMSTANCES ON JUNE 30 "IF NOT EARLIER RETIRED" - MAY NOT RETIRE VOLUNTARILY UNDER OTHER PROVISIONS OF LAW WHEN SUCH VOLUNTARY RETIREMENT WOULD BE EFFECTIVE ON THE SAME DATE THAT MANDATORY RETIREMENT WAS REQUIRED AND THAT THE MEMBER'S RETIREMENT PAY HAD TO BE COMPUTED ON THE BASIS OF THE ACTIVE DUTY PAY RATES IN EFFECT ON JUNE 30, 1968, RATHER THAN THE RATES IN EFFECT ON JULY 1, 1968. WE CONCLUDED THEREIN THAT EVEN IF THE COAST GUARD CAPTAIN INVOLVED WAS RETAINED ON ACTIVE DUTY BEYOND HIS MANDATORY RETIREMENT DATE, THIS COULD NOT ADD TO HIS RIGHTS IN ANY WAY IN THE COMPUTATION OF RETIREMENT PAY.

THE COURT IN CHESTER, HOWEVER, CONSTRUED THE LANGUAGE OF 14 U.S.C. 288(A) "SHALL, IF NOT EARLIER RETIRED, BE RETIRED ON JUNE 30" AS NOT PRECLUDING VOLUNTARY RETIREMENT ON THAT DATE UNDER A DIFFERENT STATUTE, SO AS TO PERMIT COMPUTATION OF RETIREMENT BENEFITS BASED ON ACTIVE DUTY PAY RATES IN EFFECT ON JULY 1.

IN 53 COMP. GEN. 94 (1973), WE DECIDED TO FOLLOW THE COURT'S INTERPRETATION OF THE STATUTE AND THAT WE WOULD NO LONGER FOLLOW B 165038, JANUARY 6, 1969, AND JUNE 2, 1969, AND OTHER SIMILAR DECISIONS REGARDING COAST GUARD MEMBERS WHO WERE RETIRED UNDER 14 U.S.C. 288(A).

IN 53 COMP. GEN. 135, SUPRA, WE CONSIDERED THE APPLICABILITY OF THE CHESTER DECISION TO TWELVE REGULAR AIR FORCE OFFICERS WHO WERE BEING MANDATORILY RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 8916, 8921, AND 8922, ALL OF WHOM HAD BEEN HELD ON ACTIVE DUTY BEYOND THEIR MANDATORY RETIREMENT DATES FOR PHYSICAL EVALUATION. NINE WERE ULTIMATELY RETIRED FOR DISABILITY PURSUANT TO 10 U.S.C. 1201 AND THREE WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202.

WE HELD THEREIN THAT SINCE ALL OF THE MANDATORY RETIREMENT SECTIONS INVOLVED CONTAINED LANGUAGE SIMILAR TO THAT CONSTRUED IN THE CHESTER CASE, THE REASONING IN CHESTER WAS APPLICABLE. WE CONCLUDED THAT SINCE THE MEMBERS WERE RETIRED UNDER OTHER PROVISIONS OF LAW, THEY WERE NOT PRECLUDED FROM RECEIVING THE BENEFIT OF AN INCREASE IN THE MONTHLY BASIC PAY FOR RETIRED PAY COMPUTATION PURPOSES WHICH WENT INTO EFFECT ON THE DAY AFTER THEIR MANDATORY RETIREMENT DATES BUT BEFORE THEIR ACTUAL RELEASE FROM ACTIVE DUTY. IN THIS DECISION WE SAID:

WHILE THE MANDATORY RETIREMENT STATUTES APPLICABLE TO THE AIR FORCE AND THE OTHER ARMED SERVICES ARE NOT IDENTICAL TO THOSE OF THE COAST GUARD, IN VIEW OF THE GENERAL CONGRESSIONAL POLICY IN RECENT YEARS TO TREAT THE SERVICES UNIFORMLY IN PAY AND ALLOWANCES MATTERS, WHEN PRACTICABLE, WE WILL FOLLOW THE RULES ENUNCIATED IN THE CHESTER CASE TO THE EXTENT FEASIBLE IN COMPUTING THE DISABILITY RETIRED PAY OF MEMBERS OF THE OTHER SERVICES, INCLUDING THE AIR FORCE. ***

IN 53 COMP. GEN. 610 (1974), WE AGAIN FOLLOWED THE PRINCIPLE OF THE CHESTER CASE IN A CASE INVOLVING A MARINE CORPS MEMBER WHO SOUGHT TO BE RETIRED VOLUNTARILY UNDER THE PROVISIONS OF 10 U.S.C. 6323 RATHER THAN BE MANDATORILY RETIRED PURSUANT TO SECTION 1(I) OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, 73 STAT. 335 (10 U.S.C. 5701 NOTE). WE SAID THEREIN THAT IN VIEW OF THE SIMILARITY BETWEEN THE STATUTES IN THE CHESTER CASE AND THOSE INVOLVING MANDATORY RETIREMENT IN THE MARINE CORPS MEMBER'S CASE, WE WOULD PERMIT THE MEMBER TO COMPUTE HIS RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 6323, AS THOUGH HE WAS VOLUNTARILY RETIRED ON JUNE 30, 1968. UNDER THOSE PROVISIONS, HIS RETIRED PAY WAS TO BE COMPUTED BASED ON THE ACTIVE DUTY PAY RATE IN EFFECT ON JULY 1, 1968.

IN 48 COMP. GEN. 239, SUPRA, WE CONSIDERED A NUMBER OF CASES INVOLVING MEMBERS OF THE NAVY WHO WERE SUBJECT TO INVOLUNTARY RETIREMENT ON JULY 1, 1968, BUT WHO WERE PERMITTED TO VOLUNTARILY RETIRE EFFECTIVE THAT DATE. THE QUESTION IN THAT DECISION WAS WHETHER THOSE MEMBERS WOULD BE ENTITLED TO USE THE ACTIVE DUTY PAY RATES WHICH BECAME EFFECTIVE ON THAT DATE FOR THE PURPOSE OF COMPUTING THEIR RETIRED PAY. IN EVERY CASE EXCEPT THE TWO CASES OF CHMACH NOONAN AND CHELCTECH ARNOTT, WHICH INVOLVED RETIREMENTS UNDER 10 U.S.C. 1293, WE ANSWERED IN THE AFFIRMATIVE.

IN THE NOONAN CASE, THE FACTS SHOWED THAT THE MEMBER, A WARRANT OFFICER, WAS SCHEDULED FOR INVOLUNTARY RETIREMENT EFFECTIVE JULY 1, 1968, BUT PRIOR THERETO AND AT HIS REQUEST HIS VOLUNTARY RETIREMENT UNDER 10 U.S.C. 1293, 1315, AND 1371, WAS APPROVED EFFECTIVE THE SAME DATE. WE HELD THEREIN THAT THE METHOD OF COMPUTATION OF HIS RETIRED PAY WAS LIMITED TO EITHER THE PROVISIONS OF FORMULA 4, 10 U.S.C. 1401, OR THOSE CONTAINED IN SUBSECTIONS (D) AND (E) OF 10 U.S.C. 1401A, WHICHEVER GAVE HIM THE GREATER AMOUNT OF RETIRED PAY. THE SAME CONCLUSION WAS REACHED IN THE ARNOTT CASE.

IT IS SUGGESTED IN THE SUBMISSION THAT UNDER THE RULING IN THE CHESTER CASE ANYONE WHO VOLUNTARILY RETIRED EFFECTIVE THE DAY OF AN INCREASE IN ACTIVE DUTY RATES IS ENTITLED TO COMPUTATION OF HIS RETIREMENT BENEFITS ON THE BASIS OF THOSE INCREASED RATES.

WE DO NOT BELIEVE THE CHESTER CASE STANDS FOR THAT PRINCIPLE. IT IS OUR VIEW THAT THE CHESTER CASE STANDS FOR THE PROPOSITION THAT WHERE A MEMBER IS TO BE MANDATORILY RETIRED FROM THE SERVICE, AND THERE ARE OTHER PROVISIONS OF LAW WHICH WOULD PERMIT HIM TO BE VOLUNTARILY RETIRED ON THE SAME DATE, SUCH A MEMBER WILL NOT BE PRECLUDED FROM RETIRING UNDER THE RETIREMENT LAW WHICH WILL PROVIDE THE GREATER BENEFIT.

IN THE PRESENT CASE, THE MEMBER WAS VOLUNTARILY RETIRED AS A WARRANT OFFICER UNDER THE PROVISIONS OF 10 U.S.C. 1293 (1964 ED.), WITH RETIRED PAY ENTITLEMENT COMPUTED UNDER FORMULA 4 OF TITLE 10 U.S.C. 1401 (BOTH CODE SECTIONS ARE DERIVED FROM SECTION 14 OF THE WARRANT OFFICER ACT OF 1954, APPROVED MAY 29, 1954, CH. 249, 68 STAT. 157, 162, AND IS APPLICABLE TO ALL WARRANT OFFICERS WHO RETIRE AS SUCH).

UNDER THAT FORMULA, A MEMBER'S RETIRED PAY IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE "MONTHLY BASIC PAY *** ON DAY BEFORE RETIREMENT ***." THIS REGARD, IT IS TO BE OBSERVED THAT FORMULAS 1 AND 2 OF SECTION 1401, AS WELL AS OTHER COMPUTATION FORMULAS (SEE FOR EXAMPLE, THE FORMULAS CONTAINED IN 10 U.S.C. 3991 AND 8991), CONTAIN QUALIFYING FOOTNOTES WHICH SPECIFICALLY PROVIDE THAT THE MONTHLY BASIC PAY RATE TO BE USED FOR RETIRED PAY COMPUTATION PURPOSES ARE THE RATES IN EFFECT ON THE FIRST DAY OF RETIREMENT. HOWEVER, THERE IS NO SUCH QUALIFYING FOOTNOTE REFERENCE IN FORMULA 4 COMPUTATIONS.

IT IS ALSO TO BE OBSERVED THAT SECTION 1401 PROVIDES IN PERTINENT PART THAT:

*** 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. ***

WE ARE NOT AWARE OF ANY OTHER FORMULA OF SECTION 1401 OR OTHER PROVISIONS OF LAW UNDER WHICH THE MEMBER WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY THAT WOULD BE MORE FAVORABLE TO HIM. THEREFORE, IT IS OUR VIEW THAT HE IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE ACTIVE DUTY PAY RATES IN EFFECT ON JULY 1, 1968, AND THE DECISION IN 48 COMP. GEN. 239, SUPRA, REGARDING COMPUTATION OF RETIRED PAY AS DISCUSSED IN CONNECTION WITH CHMACH NOONAN AND CHELCTECH ARNOTT, WILL CONTINUE TO BE FOLLOWED IN SUCH CASES.