B-212034, NOV 17, 1983

B-212034, NOV 17, 1983

DIGEST: SECTION 772 OF THE 1982 DEPARTMENT OF DEFENSE APPROPRIATIONS ACT RESTRICTED FUNDS APPROPRIATED BY THAT ACT SO THAT 6 MONTHS OR MORE OF SERVICE WOULD NO LONGER BE "ROUNDED UP" TO A FULL YEAR IN COMPUTING RETIRED PAY. AN EXCEPTION WAS PROVIDED FOR THOSE "APPLYING FOR RETIREMENT" PRIOR TO JANUARY 1, 1982. AIR FORCE OFFICER DID NOT HAVE ENOUGH OFFICER SERVICE TO RETIRE AS AN OFFICER. HOWEVER, HE HAD PREVIOUS ENLISTED SERVICE AND, UNDER A PROCEDURE PRESCRIBED BY AIR FORCE REGULATIONS, HE APPLIED FOR SEPARATION AS AN OFFICER, REENLISTMENT, AND THEN RETIREMENT AS AN ENLISTED MEMBER IN APRIL 1982. HIS FILING OF FORMS UNDER THAT PROCEDURE ON SEPTEMBER 15, 1981, CONSTITUTED AN APPLICATION FOR RETIREMENT WITHIN THE MEANING OF THE EXCEPTION IN SECTION 772 OF THE 1982 ACT.

SENIOR MASTER SERGEANT CHARLES E. LUTHER, USAF, RETIRED:

THIS ACTION CONCERNS THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER TO SENIOR MASTER SERGEANT CHARLES E. LUTHER, USAF, RETIRED, FOR ADDITIONAL RETIRED PAY. FN1 THE QUESTION ASKED IS WHETHER SERGEANT LUTHER IS ENTITLED TO HAVE HIS ACTUAL SERVICE OF 20 YEARS, 6-1/2 MONTHS, "ROUNDED UP" TO 21 YEARS FOR PURPOSES OF COMPUTING HIS RETIRED PAY. FOR THE REASONS STATED BELOW, WE HAVE DETERMINED THAT HE IS SO ENTITLED.

CHARLES E. LUTHER, WHO HAD PREVIOUSLY SERVED NEARLY 16 YEARS AS AN ENLISTED MEMBER, COMPLETED HIS 20TH YEAR OF ACTIVE SERVICE ON SEPTEMBER 15, 1981, WHILE SERVING AS A COMMISSIONED OFFICER IN THE RANK OF CAPTAIN. BECAUSE HE HAD RECEIVED HIS COMMISSION IN 1977, CAPTAIN LUTHER WAS NOT ELIGIBLE TO RETIRE UNDER 10 U.S.C. SEC. 8911 WHICH AUTHORIZES RETIREMENT OF OFFICERS WHO HAVE AT LEAST 20 YEARS OF SERVICE, BECAUSE AT LEAST 10 YEARS OF THAT SERVICE MUST BE AS A COMMISSIONED OFFICER. HE WAS ALSO NOT ELIGIBLE TO RETIRE UNDER 10 U.S.C. SEC. 8914, WHICH APPLIES TO ENLISTED MEMBERS WHO HAVE AT LEAST 20 YEARS OF SERVICE, SINCE HE WAS NOT, AT THAT TIME, AN ENLISTED MEMBER. SEE MATTER OF MACEY, 55 COMP.GEN. 854 (1976). THE SUBMISSION INDICATES THAT UNDER AIR FORCE REGULATIONS, AN OFFICER MAY SUBMIT A REQUEST TO VOLUNTARILY RESIGN HIS COMMISSION TO REENLIST THE NEXT DAY. AIR FORCE REGULATIONS 36-12, CHAPTER 2. APPARENTLY, HE MAY BE ALLOWED TO ENLIST AT HIS HIGHEST FORMER ENLISTED GRADE, AND RETIRE AS AN ENLISTED MEMBER, UNDER 10 U.S.C. SEC. 8914, THE THIRD DAY. CAPTAIN LUTHER INITIATED HIS RETIREMENT PROCESS BY FILING APPROPRIATE PAPERS, ON SEPTEMBER 15, 1981, REQUESTING THAT HIS RETIREMENT TAKE EFFECT MAY 1, 1982. THESE PAPERS, INCLUDING HIS APPLICATION TO RETIRE UNDER 10 U.S.C. SEC. 8914, WERE FILED UNDATED BECAUSE, TECHNICALLY, HE COULD NOT APPLY TO RETIRE AS AN ENLISTED MEMBER - HE WAS STILL AN OFFICER. HE WAS RELEASED FROM ACTIVE DUTY ON APRIL 28, 1982, REENLISTED AS A SENIOR MASTER SERGEANT ON APRIL 29, AND RETIRED ON MAY 1, 1982. ON THAT DATE, HE HAD SERVED A TOTAL OF 20 YEARS, 6-1/2 MONTHS, WHICH, UNDER 10 U.S.C. SEC. 8991, NOTE 4, WOULD HAVE BEEN "ROUNDED UP" TO 21 YEARS.

IN THE MEANTIME, CONGRESS PASSED THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 1982, SECTION 772 OF WHICH RESTRICTED EXPENDITURE OF FUNDS UNDER THAT ACT SO THAT, AT LEAST FOR FISCAL YEAR 1982, SERVICE TIME COULD NO LONGER BE ROUNDED UP TO THE NEAREST YEAR, ONLY TO THE NEAREST MONTH. FN2 ACCORDINGLY, SERGEANT LUTHER'S RETIRED PAY WAS CALCULATED AT 51.45 PERCENT OF HIS ACTIVE DUTY PAY AS OPPOSED TO THE 52.5 PERCENT HE WOULD HAVE BEEN ENTITLED TO HAD HE BEEN CREDITED WITH A FULL 21 YEARS OF SERVICE. SECTION 772 OF THE ACT INCLUDES AN EXCEPTION FROM THE NEW RULE, HOWEVER, FOR ANY MEMBER WHO "APPLIED FOR RETIREMENT" BEFORE JANUARY 1, 1982.

THE KEY QUESTION TO BE DECIDED, THEN, IS WHETHER SERGEANT LUTHER'S REQUEST FOR RETIREMENT FILED IN SEPTEMBER 1981 WITH THE UNDATED FORMS CONSTITUTED AN APPLICATION FOR RETIREMENT, WITHIN THE MEANING OF THE EXCEPTION PROVIDED BY SECTION 772 SO AS TO EXCLUDE SERGEANT LUTHER'S RETIRED PAY FROM THE RESTRICTED ROUNDING PROVISIONS OF SECTION 772.

TO BE ELIGIBLE TO RETIRE UNDER 10 U.S.C. SEC. 8914, A PERSON MUST HAVE COMPLETED 20 YEARS OF ACTIVE SERVICE AND BE AN ENLISTED MEMBER. AT THE TIME HE FILED THE FORMS, THE THEN CAPTAIN LUTHER HAD COMPLETED 20 YEARS OF SERVICE BUT HE WAS NOT AN ENLISTED MEMBER, AND HE COULD NOT RETIRE AS AN ENLISTED MEMBER WHILE STILL SERVING AS AN OFFICER. MATTER OF MACEY, CITED ABOVE. HOWEVER, THE AIR FORCE BY REGULATION HAS PRESCRIBED THE PROCEDURE FOR OFFICERS SUCH AS CAPTAIN LUTHER WHO WISH TO RETIRE BUT HAVE LESS THAN 10 YEARS OF SERVICE AS AN OFFICER. THAT IS, THE AIR FORCE HAS PROVIDED FOR THE FILING OF A REQUEST FOR RESIGNATION OR RELEASE FROM ACTIVE DUTY AS AN OFFICER AND ACCEPTANCE FOR ENLISTMENT IN THE REGULAR AIR FORCE FOR THE PURPOSE OF RETIREMENT AS AN ENLISTED MEMBER. SEE AIR FORCE REGULATION 35- 7, TABLE 3-1 NOTE, WITH THE PROCEDURE CURRENTLY DESCRIBED IN DETAIL IN PARAGRAPH 3-8. UNDER THAT PROCEDURE THE AIR FORCE RETIREMENT FORM (AF FORM 1160) DOES NOT TECHNICALLY BECOME A REQUEST FOR RETIREMENT UNDER 10 U.S.C. SEC. 8914 UNTIL AFTER THE MEMBER'S SEPARATION AS AN OFFICER AND SUBSEQUENT ENLISTMENT. HOWEVER, IT APPEARS THAT AN APPLICATION FOR RETIREMENT UNDER THAT PROCEDURE, AS WITH APPLICATIONS FOR OTHER RETIREMENTS, MAY BE MADE ANY TIME UP TO 12 MONTHS PRIOR TO THE DESIRED RETIREMENT DATE. AIR FORCE REGULATION 35-7, PARAGRAPH 3-2A. THEREFORE, IT IS OUR VIEW THAT WHEN CAPTAIN LUTHER INITIATED THIS PROCEDURE IN SEPTEMBER 1981 AS PRESCRIBED BY AIR FORCE REGULATIONS, HE MAY BE CONSIDERED TO HAVE "APPLIED FOR RETIREMENT" AS THAT TERM IS USED IN SECTION 772 OF THE APPROPRIATIONS ACT.

ACCORDINGLY, SINCE CAPTAIN LUTHER'S APPLICATION WAS FILED BEFORE JANUARY 1, 1982, HE IS NOT SUBJECT TO THE RESTRICTION ON ROUNDING UP PRESCRIBED IN SECTION 772, AND IN COMPUTING HIS RETIRED PAY, A FULL YEAR'S CREDIT SHOULD BE GIVEN FOR HIS FINAL 6-1/2 MONTHS OF SERVICE. THE VOUCHER SUBMITTED IS BEING RETURNED FOR PAYMENT ON THIS BASIS.

FN1 THE MATTER WAS SUBMITTED FOR ADVANCE DECISION BY THE ACCOUNTING AND FINANCE OFFICER, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, AND HAS BEEN ASSIGNED SUBMISSION NUMBER DO-AF-1421 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

FN2 PUBLIC LAW 97-114, APPROVED DECEMBER 29, 1981, 95 STAT. 1590. SIMILAR PROVISION WAS INCLUDED IN PUBLIC LAW 97-377, SECTION 768, DECEMBER 21, 1982, 96 STAT. 1862, RESTRICTING FISCAL YEAR 1983 FUNDS IN THE SAME MANNER. AMENDMENTS TO, AMONG OTHER PROVISIONS, 10 U.S.C. SEC. 8991 MADE BY THE DEPARTMENT OF DEFENSE AUTHORIZATION ACT, 1984, SUBSEQUENTLY MADE THE LIMITATION ON ROUNDING OF SERVICE PERMANENT. PUB.L. 98-94, SEC. 923, SEPTEMBER 24, 1983, 97 STAT. 642-643.