B-235924.3, Mar 9, 1992

B-235924.3, Mar 9, 1992

DIGEST: A retired warrant officer with prior enlisted service who was receiving the pay and allowances of an E-9 under the saved pay provisions of 37 U.S.C. Sec. 907, is entitled under 10 U.S.C Sec. 1406(b) to have her retired pay computed as an E-9.

CWO Joan H. Bennett, USN (Retired) - Computation of Retired Pay:

We have been asked to settle the claim of Chief Warrant Officer Joan H. Bennett, USN (Retired), for the higher retired pay of a master chief petty officer. /1/ For the reasons presented below, her claim may be allowed.

During 19 years and 8 months of enlisted service, CWO Bennett achieved the grade of master chief petty officer (E-9). On July 1, 1985, she became a warrant officer and thereafter served another 4 years and 1 month, retiring as a warrant officer. While serving as a warrant officer on active duty, CWO Bennett received the higher pay and allowances of an E -9. Although she had been advised that her retired pay would be based on her E-9 pay, she is now receiving retired pay based on her warrant officer grade. She claims the higher E-9 pay.

A warrant officer with at least 20 years of active service retires under 10 U.S.C. Sec. 1293, and his retired pay is computed under chapter 71 of title 10, U.S. Code. According to 10 U.S.C. Sec. 1406(b) of chapter 71, the pay base for a warrant officer who retired under Sec. 1293 is the monthly basic pay to which the officer would have been entitled if he or she had served on active duty in the retired grade on the day before retirement.

An enlisted member who accepts a promotion to warrant officer may continue to receive while on active duty the pay and allowances of his or her enlisted grade if that is beneficial. 37 U.S.C. Sec. 907] Department of Defense Pay and Allowances Entitlements Manual, paragraph 10221(a)(1).

Under the saved pay provisions of 37 U.S.C. Sec. 907, the basic pay CWO Bennett was receiving on the day before she retired was that of an E-9. Under 10 U.S.C. Sec. 1406(b), therefore, her pay base for computation of retired pay is that of an E-9, since she was entitled to the pay of an E-9 on the day before she retired.

This is in accord with the general principle set forth in Powers v. United States, 401 F.2d 813 (Ct.Cl. 1968), that Congress intended the retired pay of members to be based on the highest rate of pay received on active duty. See 49 Comp.Gen. 618 (1970).

CWO Bennett's claim should be handled accordingly.

Comptroller General of the United States CWO Bennett states that she was advised that the E-9 pay she received on active duty would be the basis for computing her retired pay. While it is unfortunate that Ms. Bennett received incorrect advice regarding retired pay, it is a long standing rule that the government is not bound by erroneous information given by its employees and agents. Major Jean-Francois J. Romey, USAR, B-216466, November 14, 1984.

We note that in 46 Comp.Gen. 437 (1966) we dealt with a member who served in enlisted, warrant, and commissioned grades during his military career, ending as a chief warrant officer, W-2. Since his retired pay was to be based on the highest grade he had held satisfactorily, he could have retired as a second lieutenant. The Army Board for Correction of Military Records corrected his records to indicate that the highest grade he had held satisfactorily was W-4, since that grade would give him the highest rate of retired pay. If CWO Bennett's records were corrected to indicate that the highest grade in which she served satisfactorily was E-9, she would be entitled to the higher retired pay of an E-9.

Computation of CWO Bennett's retired pay at the grade of W-2, the highest grade in which she served satisfactorily, is proper.