B-236552, Dec 18, 1989, 69 Comp.Gen. 141

B-236552: Dec 18, 1989

Additional Materials:

Contact:

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

 

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

The retired pay of a service member who was immediately recalled to active duty without a break in service for less than 2 years is computed according to 10 U.S.C. Is based on the pay rate as prescribed in that statute. USA (Retired): This is in response to a request by Colonel Wayne R. We find that the Army is using the correct method to compute his pay. He was immediately recalled to active duty without a break in service and served until June 30. Colonel Ulisnik's retired pay presently is being computed using the pay rates that went into effect January 1. Colonel Ulisnik maintains that he should be considered to have retired June 30. Is the rate of basic pay applicable on the retirement date.

B-236552, Dec 18, 1989, 69 Comp.Gen. 141

The retired pay of a service member who was immediately recalled to active duty without a break in service for less than 2 years is computed according to 10 U.S.C. Sec. 1402 to reflect the additional service, and is based on the pay rate as prescribed in that statute.

Colonel Wayne R. Ulisnik, USA (Retired):

This is in response to a request by Colonel Wayne R. Ulisnik, USA (Retired), for our review of the Army's computation of his retired pay. We find that the Army is using the correct method to compute his pay.

Colonel Ulisnik retired from the Army on November 30, 1983. He was immediately recalled to active duty without a break in service and served until June 30, 1986. Under 10 U.S.C. Sec. 1402, which governs the recomputation of retired pay to reflect later active duty of persons who first became members before September 9, 1980, Colonel Ulisnik's retired pay presently is being computed using the pay rates that went into effect January 1, 1985. Because he experienced no break in service, Colonel Ulisnik maintains that he should be considered to have retired June 30, 1986, and that his pay should be computed under 10 U.S.C. Sec. 1406, which prescribes that the retired pay base for someone who first became a member before September 9, 1980, is the rate of basic pay applicable on the retirement date. Colonel Ulisnik argues that the Army therefore should compute his retired pay using the pay rates that became effective October 1, 1985.

Colonel Ulisnik's retirement orders became effective November 30, 1983. The fact that he was immediately recalled to active duty does not mean that he had not officially retired on November 30 for retired pay purposes. See 65 Comp.Gen. 774 (1986). Provisions of law governing the recomputation of retired pay to reflect active duty after retirement are found in 10 U.S.C. Sec. 1402. In fact, 10 U.S.C. Sec. 1406, the provision that Colonel Ulisnik cites, states in subsection (a)(2) that recomputation for service after retirement is covered by 10 U.S.C. Sec. 1402.

Under 10 U.S.C. Sec. 1402(a), a recalled member who has been entitled to basic pay for a continuous period of 2 years at the rate of pay in effect when his recall ends is entitled to have his retired pay recomputed at that rate. If he has not served at that pay rate for 2 years, his retired pay is computed at the immediately preceding rate. In Colonel Ulisnik's case, that means that because he did not serve under the October 1, 1985, rate for 2 years, his retirement pay should be based on the rates of pay that became effective January 1, 1985.

Therefore, the Army is correct in computing Colonel Ulisnik's retired pay under 10 U.S.C. Sec. 1402, using the rates of pay that became effective January 1, 1985.