B-233760, Feb 27, 1990

B-233760: Feb 27, 1990

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - Pay - Retirement pay - Amount determination - Computation - Effective dates DIGEST: Member of the Army who was retired on April 1. 7 days service is entitled to compute retired pay on the basis of active duty pay rates prescribed by the Uniform Services Pay Act of 1963. Whose retirement date was not the result of operation of the Uniform Retirement Date Act. Returned herewith is Claim File Z-2866070 relative to Major Mecco's claim for a recomputation of his retired pay. We have concluded that his claim should be allowed. He was relieved from active duty and transferred to the Army's retired list effective April 1. Is entitled to have his retired pay recomputed under the rates of basic pay provided by section 2 of that Act. the last sentence.

B-233760, Feb 27, 1990

MILITARY PERSONNEL - Pay - Retirement pay - Amount determination - Computation - Effective dates DIGEST: Member of the Army who was retired on April 1, 1963, with 20 years, 1 month, 7 days service is entitled to compute retired pay on the basis of active duty pay rates prescribed by the Uniform Services Pay Act of 1963, which authorized such computation for members who became entitled to retired pay on or after April 1, 1963, and whose retirement date was not the result of operation of the Uniform Retirement Date Act. TO: Senior Associate Director, Claims Group, GGS - Oliver W. Krueger

FROM: Comptroller General

SUBJECT: Major Theodore F. Mecco, AUC (Retired) - B-233760-O.M.

Returned herewith is Claim File Z-2866070 relative to Major Mecco's claim for a recomputation of his retired pay. We have concluded that his claim should be allowed.

Major Mecco retired from the United States Army pursuant to special orders dated March 20, 1963. His retirement orders showed that he completed 20 years, 1 month, and 7 days of active service for retirement purposes on April 1, 1963. On March 11, 1963, he requested that he be retired on March 31, 1963, or thereafter. He was relieved from active duty and transferred to the Army's retired list effective April 1, 1963, under the provisions of 10 U.S.C. 3911. Under those provisions, the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of active service.

Section 5(a) of the Uniformed Services Pay Act of 1963, approved October 2, 1963, Public Law 88-132, 77 Stat. 210, 212, 10 U.S.C. 1402 note (1958 ed., Supp. v 1963), provides that a member of the uniformed services who became entitled to retired pay after March 31, 1963, but before October 1, 1963, is entitled to have his retired pay recomputed under the rates of basic pay provided by section 2 of that Act. the last sentence, however, of section 5 (a) provides that a member who became entitled to retired pay on April 1, 1963, by virtue of the Uniform Retirement Date Act of April 23, 1930, ch. 209, 46 Stat. 253, 5 U.S.C. 47a (1958 ed.) shall be considered as having become entitled to that pay before April 1, 1963, and such a service member was thus ineligible to have his retired pay so recomputed.

The Uniform Retirement Date Act provides that every retirement, unless specifically or impliedly exempted by statute, take effect on the first day of the month following the month in which the retirement would otherwise be effective, but that the rate of retired pay must be computed as of the date retirement would have occurred if the Uniform Retirement Date Act had not been enacted.

In construing the last sentence of section 5(a) of the Uniformed Services Pay Act of 1963, we held that if a member requests retirement on the first day that he becomes eligible for retirement, then he will be retired on the first day of the month following that in which he becomes eligible for retirement, and the retirement is governed by the Uniform Retirement Date Act. If a member, however, requests his retirement date to be after the date that he first becomes eligible for retirement and the date of retirement is fixed on the basis of administrative discretion, then the restriction of the Uniform Retirement Date Act limiting retired pay to the amount that would have been payable if that law had not been enacted is inapplicable. 48 Comp.Gen. 329, 332 (1968). Thus, the member is not subject to the requirement in the last sentence of section 5(a) of the Uniformed Services Pay Act of 1963 that his retired pay be considered as being effective before April 1, 1963. The member is entitled to the retired pay increase authorized by sections 2 and 5(a) of the Uniformed Services Pay Act of 1963.

The question presented here is whether Major Mecco's retired pay should have been recomputed under the rates of monthly basic pay prescribed by section 2 of the Uniformed Services Pay Act of 1963. The provisions of 10 U.S.C. 3911 governing his retirement are not mandatory and permitted his voluntary retirement at any time after completing 20 years of qualifying service. Since he did not request retirement immediately upon completion of 20 years' service, the restriction of the Uniform Retirement Date Act did not apply. See 48 Comp.Gen. 329, supra. Hence, our view is that he was entitled to the retired pay recomputation authorized by sections 2 and 5(a) of the Uniformed Services Pay Act of 1963. It further appears that Major Mecco's claim in this matter was first received in the General Accounting Office in 1964, so that he is entitled to a recomputation of his retired pay retroactive to October 1, 1963, without regard to the 6- year statute of limitations, 31 U.S.C. 3702(b)(1). Payment should be issued accordingly.

For your further information, we are also attaching a copy of our letter of today's date to Senator Phil Gramm, who expressed an interest in this matter.