B-75924, OCTOBER 28, 1948, 28 COMP. GEN. 274

B-75924: Oct 28, 1948

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PAY - RETIRED - REGULAR ARMY OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE COMMISSIONED OFFICERS OF THE REGULAR ARMY WHO ARE RETIRED FOR AGE UNDER THE PROVISIONS OF SECTION 514 (A) OF THE OFFICER PERSONNEL ACT OF 1947. ARE ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS PROVIDED IN SUBSECTION (E) (1) (SHOWN IN THE ACT AS (C) (1) ( OF SAID SECTION 514. WHICH PRESCRIBES THE BASIS FOR THE COMPUTATION OF RETIRED PAY OF OFFICERS HAVING AT LEAST TWENTY YEARS OF SERVICE WHO ARE ELIMINATED FROM THE ACTIVE LIST OF THE REGULAR ARMY UNDER SUBSECTIONS 509 (H). THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE REGULAR ARMY WHO ARE RETIRED FOR AGE UNDER THE PROVISIONS OF SECTION 514 (A) OF THE OFFICER PERSONNEL ACT OF 1947.

B-75924, OCTOBER 28, 1948, 28 COMP. GEN. 274

PAY - RETIRED - REGULAR ARMY OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE COMMISSIONED OFFICERS OF THE REGULAR ARMY WHO ARE RETIRED FOR AGE UNDER THE PROVISIONS OF SECTION 514 (A) OF THE OFFICER PERSONNEL ACT OF 1947, WITH LESS THAN TWENTY YEARS' SERVICE, ARE ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS PROVIDED IN SUBSECTION (E) (1) (SHOWN IN THE ACT AS (C) (1) ( OF SAID SECTION 514, WHICH PRESCRIBES THE BASIS FOR THE COMPUTATION OF RETIRED PAY OF OFFICERS HAVING AT LEAST TWENTY YEARS OF SERVICE WHO ARE ELIMINATED FROM THE ACTIVE LIST OF THE REGULAR ARMY UNDER SUBSECTIONS 509 (H), 514 (C), AND 514 (D) OF SAID ACT. THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE REGULAR ARMY WHO ARE RETIRED FOR AGE UNDER THE PROVISIONS OF SECTION 514 (A) OF THE OFFICER PERSONNEL ACT OF 1947, WITH LESS THAN TWENTY YEARS' SERVICE, MAY NOT BE MORE THAN 75 PERCENT NOR LESS THAN 50 PERCENT OF THE BASE AND LONGEVITY PAY THEY WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED AS EXPRESSLY PROVIDED IN SUBSECTION (E) (1) (SHOWN IN THE ACT AS (C) (1) ( OF SAID SECTION 514 FOR OFFICERS ELIMINATED FROM THE ACTIVE LIST OF THE REGULAR ARMY UNDER SUBSECTIONS 509 (H), 514 (C), AND 514 (D) OF SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, OCTOBER 28, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 26, 1948, WHEREIN YOU REQUEST DECISION AS TO WHETHER OR NOT AN OFFICER OF THE REGULAR ARMY RETIRED FOR AGE UNDER THE PROVISIONS OF SUBSECTION 514 (A) OF THE OFFICER PERSONNEL ACT OF 1947, PUBLIC LAW 381, APPROVED AUGUST 7, 1947 (61 STAT. 902), WITH LESS THAN TWENTY YEARS' SERVICE, IS ENTITLED TO ANY RETIRED PAY AND, IF SO, WHETHER HIS RETIRED PAY MAY BE LESS THAN 50 PERCENTUM OF THE BASE AND LONGEVITY PAY HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED.

THE SAID SUBSECTION 514 (A) PROVIDES GENERALLY FOR THE RETIREMENT OF OFFICERS OF THE REGULAR ARMY UPON REACHING THE AGE OF 60, 62, OR 64 YEARS, DEPENDING ON THEIR GRADE OR STATUS, AND SUBSECTION (A) (3) THEREOF PROVIDES THAT---

EACH COMMISSIONED OFFICER OF THE REGULAR ARMY WHO IS HEREAFTER RETIRED BY REASON OF REACHING THE AGE OF SIXTY YEARS, SIXTY-TWO YEARS, OR SIXTY-FOUR YEARS, AS THE CASE MAY BE, SHALL BE RETIRED IN THE PERMANENT GRADE HELD AT TIME OF RETIREMENT AND SHALL RECEIVE RETIRED PAY COMPUTED ON THE BASIS PROVIDED IN SUBSECTION (E) (1) OF THIS SECTION: PROVIDED, THAT, IF ON THE DATE SUCH OFFICER ATTAINS THE AGE OF SIXTY YEARS, SIXTY-TWO YEARS, OR SIXTY-FOUR YEARS, AS THE CASE MAY BE, HE IS ELIGIBLE FOR RETIREMENT UNDER ANY OTHER PROVISION OF LAW IN EFFECT ON THAT DATE, INCLUDING ANY PROVISION OF LAW PROVIDING FOR VOLUNTARY RETIREMENT ON HIS OWN APPLICATION, AND THE RETIRED GRADE OR AMOUNT OF RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER SUCH OTHER PROVISION IS GREATER THAN THE RETIRED GRADE OR AMOUNT OF RETIRED PAY HEREIN PROVIDED, HE SHALL BE ENTITLED TO THE GREATER RETIRED GRADE AND RETIRED PAY.

SUBSECTION 514 (E) (SHOWN IN THE ACT AS (C) (, 61 STAT. 905, PROVIDES, IN PERTINENT PART, THAT---

EACH OFFICER ELIMINATED FROM THE ACTIVE LIST OF THE REGULAR ARMY PURSUANT TO ANY OF THE PROVISIONS OF SUBSECTION (H) OF SECTION 509 OF THIS TITLE OR OF SUBSECTION (C) OR (D) OF THIS SECTION SHALL---

(1) IF ON THE DATE OF ELIMINATION, HE HAS COMPLETED TWENTY "YEARS' SERVICE" OR MORE, BE RETIRED IN THE PERMANENT GRADE HELD AT TIME OF RETIREMENT WITH MONTHLY RETIRED PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASE AND LONGEVITY PAY HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THAT GRADE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF HIS "YEARS' SERVICE" OR, THE NUMBER OF YEARS OF SERVICE CREDITABLE TO HIM UNDER THE LAW IN THE COMPUTATION OF HIS ACTIVE-DUTY PAY, WHICHEVER OF SUCH TWO NUMBERS IS GREATER (FRACTIONS OF A YEAR LESS THAN ONE-HALF SHALL BE DISREGARDED AND ONE-HALF OR MORE SHALL BE COUNTED AS ONE YEAR); BUT IN NO EVENT SHALL SUCH RETIRED PAY BE MORE THAN 75 PERCENTUM NOR LESS THAN 50 PERCENTUM OF THE BASE AND LONGEVITY PAY HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED * * *. ( ITALICS SUPPLIED.)

IT WOULD SEEM TO BE CLEAR THAT THE ITALICIZED PORTION OF SUBSECTION (E) (1), QUOTED IMMEDIATELY ABOVE, REFERS ONLY TO OFFICERS "ELIMINATED" UNDER THE PROVISIONS REFERRED TO AND THAT SUCH PORTION HAS NO REFERENCE TO OFFICERS RETIRED FOR AGE. THE PORTION NOT ITALICIZED SETS FORTH THE "BASIS" FOR COMPUTING RETIRED PAY FOR OFFICERS WHO ARE SO ELIMINATED AND IT IS ONLY THIS LATTER PORTION WHICH IS MADE APPLICABLE, BY REFERENCE, TO OFFICERS RETIRED FOR AGE UNDER SUBSECTION (A). THE CLAUSE IN SUCH LATTER PORTION RESPECTING THE MAXIMUM (75 PERCENTUM) AND THE MINIMUM (50 PERCENTUM) RETIRED PAY CLEARLY IS AN INSEPARABLE PART OF THE "BASIS" FOR THE COMPUTATION OF RETIRED PAY SET FORTH IN SUBSECTION (E) (1). HENCE, AN OFFICER RETIRED FOR AGE HAVING LESS THAN 20 YEARS' SERVICE AT THE TIME OF HIS RETIREMENT WOULD BE ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS PROVIDED IN SUBSECTION (E) (1) AND SUCH RETIRED PAY MAY NOT BE LESS THAN 50 PERCENTUM OF BASE AND LONGEVITY PAY HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED IN VIEW OF THE EXPRESS PROVISION IN SUCH SUBSECTION TO THAT EFFECT. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.