B-179191(2), MAR 25, 1974, 53 COMP GEN 701

B-179191(2): Mar 25, 1974

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PAST OVERPAYMENTS NEED NOT BE COLLECTED SINCE THEY PRESUMABLY WERE ACCEPTED IN GOOD FAITH BY MEMBERS AND WOULD BE PROPER FOR WAIVER UNDER 10 U.S.C. 2774. IT WAS INFORMALLY BROUGHT TO OUR ATTENTION BY OFFICIALS OF THE DEPARTMENT OF DEFENSE THAT OUR DECISION 51 COMP. NO SUCH IMPLICATION WAS TO BE INTENDED BY THIS OFFICE. IT IS OUR VIEW. IF SUCH PAYMENTS WERE OTHERWISE CORRECT. SINCE SUCH PAYMENTS PRESUMABLY WERE ACCEPTED IN GOOD FAITH BY THE MEMBERS INVOLVED AND WOULD BE PROPER FOR WAIVER UNDER 10 U.S.C. 2774.

B-179191(2), MAR 25, 1974, 53 COMP GEN 701

PAY - RETIRED - INCREASES - COST-OF-LIVING INCREASES - ADJUSTMENT OF RETIRED PAY IN COMPUTING RETIRED OR RETAINER PAY, THE FLOOR PROVIDED BY 10 U.S.C. 1401AE) MUST BE LIMITED TO THE RATE OF PAY IN EFFECT ON THE DAY IMMEDIATELY BEFORE THE EFFECTIVE DATE OF THE RATE OF MONTHLY BASIC PAY ON WHICH A MEMBER'S RETIRED OR RETAINER PAY WOULD OTHERWISE BE BASED, PLUS THE APPROPRIATE CONSUMER PRICE INDEX INCREASES FROM THAT DATE FORWARD. ANY INFERENCE IN 51 COMP. GEN. 384 TO THE CONTRARY SHOULD BE DISREGARDED; INCONSISTENT PAYMENTS SHOULD BE CORRECTED IMMEDIATELY; AND PAST OVERPAYMENTS NEED NOT BE COLLECTED SINCE THEY PRESUMABLY WERE ACCEPTED IN GOOD FAITH BY MEMBERS AND WOULD BE PROPER FOR WAIVER UNDER 10 U.S.C. 2774.

TO THE SECRETARY OF DEFENSE, MARCH 25, 1974:

DURING OUR CONSIDERATION OF THE ISSUES INVOLVED IN OUR DECISION 53 COMP. GEN. 698, OF TODAY'S DATE, COPY ENCLOSED, IT WAS INFORMALLY BROUGHT TO OUR ATTENTION BY OFFICIALS OF THE DEPARTMENT OF DEFENSE THAT OUR DECISION 51 COMP. GEN. 384 (1971) HAS APPARENTLY CAUSED SOME CONFUSION AMONG THE MILITARY SERVICES AS TO THE APPLICATION OF 10 U.S.C. 1401AE). THOSE OFFICIALS INDICATED THAT THE 1971 DECISION HAD BEEN CONSIDERED BY THEM AS IMPLYING THAT IN THE COMPUTATION OF RETIRED PAY FOR MEMBERS WHO SERVED AS CHAIRMAN OF THE JOINT CHIEFS OF STAFF, CHIEF OF STAFF OF THE ARMY, CHIEF OF NAVAL OPERATIONS, CHIEF OF STAFF OF THE AIR FORCE, OR COMMANDANT OF THE MARINE CORPS, SUCH RETIRED PAY MAY BE COMPUTED BASED ON PAY RATES IN EFFECT PRIOR TO THE RATES OF PAY IN EFFECT ON THE DAY IMMEDIATELY BEFORE THE EFFECTIVE DATE OF THE RATE OF MONTHLY BASIC PAY ON WHICH THE MEMBER'S RETIRED PAY WOULD OTHERWISE BE BASED, BUT FOR THE APPLICATION OF 10 U.S.C. 1401AE), PLUS THE APPROPRIATE CONSUMER PRICE INCREASES FROM THAT DATE FORWARD.

NO SUCH IMPLICATION WAS TO BE INTENDED BY THIS OFFICE.

IT IS OUR VIEW, AS EXPRESSED IN TODAY'S DECISION, SUPRA, TO MR. N.R. BRENINGSTALL, ACCOUNTING AND FINANCE OFFICER, THAT IN THE ABSENCE OF SPECIFIC LANGUAGE IN THE STATUTE OR ITS LEGISLATIVE HISTORY TO THE CONTRARY, THE FLOOR PROVIDED BY SUBSECTION 1401AE) MUST BE LIMITED TO RETIRED PAY OR RETAINER PAY BASED ON THE RATE OF PAY IN EFFECT ON THE DAY IMMEDIATELY BEFORE THE EFFECTIVE DATE OF THE RATE OF MONTHLY BASIC PAY ON WHICH THE MEMBER'S RETIRED PAY OR RETAINER PAY WOULD OTHERWISE BE BASED, PLUS THE APPROPRIATE CONSUMER PRICE INCREASES FROM THAT DATE FORWARD.

AS TO 51 COMP. GEN. 384, THAT DECISION DEALT PRIMARILY WITH THE APPLICATION OF 10 U.S.C. 1401A AND 1402(A) TO RETIRED PAY IN THE LIGHT OF THE WAGE/PRICE FREEZE IMPOSED BY EXECUTIVE ORDER 11615, AUGUST 15, 1971, AND THE ENACTMENT OF SECTION 201 OF TITLE II OF THE ACT OF SEPTEMBER 28, 1971, PUBLIC LAW 92-129, 85 STAT. 355, WHICH AMENDED 37 U.S.C. 203(A) TO PROVIDE FOR INCREASES IN BASIC PAY FOR CERTAIN MEMBERS OF THE UNIFORMED SERVICES. THUS, ANY INFERENCE DRAWN FROM THAT DECISION CONCERNING THE APPLICATION OF 10 U.S.C. 1401AE) WHICH WOULD BE INCONSISTENT WITH OUR VIEWS AS EXPRESSED IN THE DECISION TO MR. BRENINGSTALL SHOULD BE DISREGARDED.

ANY INEQUITIES WHICH MAY RESULT FROM OUR INTERPRETATION OF 10 U.S.C. 1401AE) WOULD BE A MATTER FOR CONSIDERATION BY CONGRESS.

PAYMENTS OF RETIRED PAY BEING MADE UNDER ANY INTERPRETATION OF 10 U.S.C. 1401AE) INCONSISTENT WITH OUR VIEWS AS EXPRESSED IN THE ENCLOSED DECISION SHOULD BE CORRECTED IMMEDIATELY. HOWEVER, NO ACTION NEED BE TAKEN TO COLLECT PAST OVERPAYMENTS OF RETIRED OR RETAINER PAY MADE AS A RESULT OF A MISINTERPRETATION OF 10 U.S.C. 1401AE), IF SUCH PAYMENTS WERE OTHERWISE CORRECT, SINCE SUCH PAYMENTS PRESUMABLY WERE ACCEPTED IN GOOD FAITH BY THE MEMBERS INVOLVED AND WOULD BE PROPER FOR WAIVER UNDER 10 U.S.C. 2774.