B-238681, Apr 8, 1991, 70 Comp.Gen. 398

B-238681: Apr 8, 1991

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Even though the major first became eligible for voluntary retirement before the board's recommendation was approved by the Secretary. Since it is evident that the Secretary would not have made the statutorily required determination of satisfactory service as a major on the eligibility date. Was convicted by a general court-martial of conduct unbecoming an officer. The board also found that his record was not otherwise so meritorious as to demonstrate satisfactory service as a major. The board's determination was approved by the Assistant Secretary of the Navy (Manpower & Reserve Affairs) on April 6. A member who voluntarily retires on the basis of his longevity of service generally is entitled to the maximum amount of retired pay to which he would have been entitled if he had retired voluntarily at some time before his actual retirement date.

B-238681, Apr 8, 1991, 70 Comp.Gen. 398

MILITARY PERSONNEL - Pay - Retirement pay - Amount determination - Computation - Effective dates MILITARY PERSONNEL - Pay - Retirement pay - Reduction - Computation Marine Corps board of inquiry recommended to the Secretary that a major be retired at the rank of captain and that the member had not served satisfactorily as a major. Even though the major first became eligible for voluntary retirement before the board's recommendation was approved by the Secretary, his retired pay should be calculated on the grade of captain, since it is evident that the Secretary would not have made the statutorily required determination of satisfactory service as a major on the eligibility date.

Captain William G. Peters, U.S. Marine Corps (Retired):

A disbursing officer at the Marine Corps Finance Center requests an advance decision on the proper pay grade to be used in the computation of retired pay for Captain William G. Peters, U.S. Marine Corps (Retired). /1/ Captain Peters' pay grade for retired pay purposes should be that of a captain.

On July 7, 1987, the member, then a major since 1979, was convicted by a general court-martial of conduct unbecoming an officer. The court directed that he be reprimanded and dismissed, but under a pretrial agreement the convening authority commuted the dismissal to a forfeiture of pay. On February 16, 1988, a board of inquiry found that but for his eligibility for retirement on April 1, 1988, then-Major Peters' misconduct warranted separation under other than honorable conditions. The board also found that his record was not otherwise so meritorious as to demonstrate satisfactory service as a major, and it recommended retirement as a captain. The board's determination was approved by the Assistant Secretary of the Navy (Manpower & Reserve Affairs) on April 6, 1988, and as a result, the member retired on February 1, 1989, as a captain.

As provided in 10 U.S.C. Sec. 1401a(f), also known as the Tower Amendment, a member who voluntarily retires on the basis of his longevity of service generally is entitled to the maximum amount of retired pay to which he would have been entitled if he had retired voluntarily at some time before his actual retirement date. See 66 Comp.Gen. 425 (1987). We have stated, however, that the Tower Amendment only contemplates situations where a member has met all the requirements necessary to become entitled to retired pay at an earlier date but chose not to retire and to remain on active duty. Chief Master Sergeant Gerald E. Ohr, USAF, 68 Comp.Gen. 649, 651 (1989).

Here, although the member was a major on April 1, when he first became eligible for voluntary retirement, we do not believe he would have been permitted to retire in that grade at that time. According to 10 U.S.C. Sec. 6323, the determination of the retired grade of an officer who retires voluntarily is made pursuant to 10 U.S.C. Sec. 1370, which provides for retirement in the highest grade in which the officer served on active duty satisfactorily, as determined by the Secretary of the military department. In February 1988, the board of inquiry not only had recommended retirement in the grade of captain, but had found that the member's record was not otherwise so meritorious as to demonstrate his satisfactory service as a major; it appears that this finding encompasses the member's entire tenure in that grade. Although the Secretary did not concur in the recommendation and finding until April 6, 5 days after then- Major Peters first was eligible to retire voluntarily, it is evident that a request for retirement on April 1 as a major would not have been approved under 10 U.S.C. Sec. 1370.

Accordingly, at his initial eligibility date then-Major Peters could not have retired as a major. His retired pay grade therefore should be that of a captain. O-MC-1499.

1. P. J. Canzano 8. The Judge Advocate General

Head, Finance Section Headquarters, Department of

Accounting and Finance Branch the Army

Fiscal Division Attn: DAJA-ALP

Headquarters, USMC (Major Michael Lewis)

Washington, D.C. 20380-0001 Washington, D.C. 20310-2200

2. Commanding Officer

Marine Corps Finance Center

Attn: 5800 CP 1 Feb 90

United States Marine Corps

Kansas City, Missouri 64197-0001

3. J. Mitchell

Room 7486

4. M. Hipple

Room 7486

5. V. Barnes

Room 7486

6. J. Cohen

Room 7486

7. Jack Mester, Esq.

Acting General Counsel

Defense Finance and Accounting

Service

Washington, D.C. 20376-5001

/1/ This request was approved for submission by the Department of Defense Military Pay and Allowance Committee as control number DO-MC 1499.

/2/ This request was submitted by the Disbursing Officer. Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, South Carolina, and assigned PDTATAC Control No. 89-13 by the Per Diem, Travel, and Transportation Allowance Committee.