B-98600, JANUARY 3, 1951, 30 COMP. GEN. 262

B-98600: Jan 3, 1951

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IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF THE HIGHEST GRADE SATISFACTORILY HELD DURING HIS ENTIRE PERIOD OF SERVICE. EVEN THOUGH THAT GRADE WAS HELD IN A SERVICE DIFFERENT FROM THAT OF WHICH HE WAS A MEMBER AT THE TIME OF RETIREMENT. 1951: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4. WAS MUSTERED INTO THE FEDERAL SERVICE ON JUNE 26. WAS. WAS HONORABLY DISCHARGED ON JULY 27. DURING THAT PERIOD HE HELD THE GRADE OF CHIEF YEOMAN WHICH GRADE IS COMPARABLE TO THAT OF A MASTER SERGEANT. YOU STATE THAT THE CHIEF OF NAVAL PERSONNEL HAS FURNISHED A STATEMENT THAT HIS NAVAL SERVICE DURING THE ABOVE PERIOD WAS SATISFACTORY. ON WHICH DATE HE WAS HONORABLY DISCHARGED IN THE GRADE OF PRIVATE.

B-98600, JANUARY 3, 1951, 30 COMP. GEN. 262

PAY - RETIRED - MEMBERS OF RESERVE COMPONENTS OF ARMED FORCES - ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 A MEMBER OF THE NATIONAL GUARD RETIRED UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, WHICH GRANTS TO CERTAIN MEMBERS AND FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES RETIRED PAY BASED ON THE ACTIVE-DUTY PAY OF THE HIGHEST GRADE SATISFACTORILY HELD BY THEM, IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF THE HIGHEST GRADE SATISFACTORILY HELD DURING HIS ENTIRE PERIOD OF SERVICE, EVEN THOUGH THAT GRADE WAS HELD IN A SERVICE DIFFERENT FROM THAT OF WHICH HE WAS A MEMBER AT THE TIME OF RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JANUARY 3, 1951:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1950, WHEREIN YOU REQUEST A DECISION AS TO THE PROPER GRADE ON WHICH TO BASE THE RETIRED PAY OF HENRY C. SWAIN UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1084, WHICH GRANTS TO CERTAIN MEMBERS AND FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES RETIRED PAY BASED ON THE ACTIVE -DUTY PAY OF THE HIGHEST GRADE SATISFACTORILY HELD BY THEM.

IT APPEARS THAT MR. SWAIN ENLISTED IN THE NEW YORK NATIONAL GUARD ON APRIL 25, 1916, WAS MUSTERED INTO THE FEDERAL SERVICE ON JUNE 26, 1916, MUSTERED OUT OF THE FEDERAL SERVICE OCTOBER 6, 1916, AND WAS, HONORABLY DISCHARGED FROM THE NEW YORK NATIONAL GUARD ON MARCH 20, 1917. ENLISTED IN THE NAVY ON MARCH 24, 1917, AND WAS HONORABLY DISCHARGED ON JULY 27, 1920. DURING THAT PERIOD HE HELD THE GRADE OF CHIEF YEOMAN WHICH GRADE IS COMPARABLE TO THAT OF A MASTER SERGEANT, PAY GRADE E-7, IN THE UNITED STATES ARMY. YOU STATE THAT THE CHIEF OF NAVAL PERSONNEL HAS FURNISHED A STATEMENT THAT HIS NAVAL SERVICE DURING THE ABOVE PERIOD WAS SATISFACTORY. HE AGAIN ENLISTED IN THE NEW YORK NATIONAL GUARD ON OCTOBER 8, 1920, AND SERVED CONTINUOUSLY UNTIL OCTOBER 7, 1940, ON WHICH DATE HE WAS HONORABLY DISCHARGED IN THE GRADE OF PRIVATE, FIRST CLASS (NOW PRIVATE, PAY GRADE E-2). HE HELD THE GRADE OF SERGEANT (NOW CORPORAL, PAY GRADE E-4) IN THE NEW YORK NATIONAL GUARD FROM JANUARY 1, 1926, UNTIL MAY 19, 1928. ON MARCH 20, 1950, LETTER ORDERS E-4), WERE ISSUED RETIRING MR. SWAIN IN THE GRADE OF CORPORAL (PAY GRADE 3-4), EFFECTIVE MARCH 31, 1950, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, SUPRA.

THE GRADE OF CHIEF YEOMAN HELD BY MR. SWAIN IN THE NAVY IS, OF COURSE, A HIGHER GRADE THAN THE GRADE OF CORPORAL IN THE ARMY, AND YOUR DOUBT AS TO WHETHER HE IS ENTITLED TO HAVE HIS RETIRED PAY BASED ON THE PAY OF THE GRADE OF CHIEF YEOMAN ARISES BECAUSE HE HELD SUCH GRADE IN A SERVICE DIFFERENT FROM THE SERVICE IN WHICH HE WAS SERVING AT THE TIME HE WAS GRANTED RETIRED PAY.

IN YOUR LETTER YOU REFER TO DECISION OF MAY 3, 1950, B-92313, 29 COMP. GEN. 437, WHEREIN IT WAS HELD, INTER ALIA, THAT A RETIRED MEMBER OF THE COAST GUARD WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 829, WHILE ON THE RETIRED LIST OF THE COAST GUARD, TO HAVE HIS RETIRED PAY COMPUTED ON THE ACTIVE- DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING. THE CONCLUSION THERE REACHED WAS BASED ON THE PARTICULAR STATUTORY PROVISIONS INVOLVED IN THAT CASE AND THE CONSIDERATIONS WHICH LED TO SUCH CONCLUSION DO NOT APPEAR TO BE PRESENT HERE.

SECTION 302 OF THE SAID TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, EXPRESSLY RECOGNIZES THAT THE TWENTY OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE NECESSARY TO QUALIFY FOR RETIRED PAY THEREUNDER MIGHT BE COMPOSED OF COMBINED SERVICE IN THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, AND THEIR RESPECTIVE RESERVE COMPONENTS, THE ONLY REQUIREMENT BEING THAT THE LAST EIGHT YEARS OF QUALIFYING SERVICE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT. AND, EVEN THOSE LAST EIGHT YEARS OF QUALIFYING SERVICE MAY BE A COMBINATION OF SERVICE IN THE VARIOUS RESERVE COMPONENTS. 28 COMP. GEN. 655, 658, ANSWER TO THE THIRD QUESTION. WITH THOSE FACTS IN MIND ANY DOUBT THERE MIGHT BE IN THE MATTER IS RESOLVED BY THE FACT THAT SECTION 303 OF THE ACT, 62 STAT. 1088, PROVIDES THAT ANY PERSON GRANTED RETIRED PAY THEREUNDER SHALL RECEIVE SUCH PAY BASED ON THE ACTIVE-DUTY PAY HE WOULD RECEIVE IF SERVING, AT THE TIME HE IS GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE SATISFACTORILY HELD BY HIM "DURING HIS ENTIRE PERIOD OF VICE.' UNDER THE CIRCUMSTANCES, THE CONCLUSION IS REQUIRED THAT MR. SWAIN IS ENTITLED TO HAVE HIS RETIRED PAY BASED ON THE ACTIVE-DUTY PAY OF A CHIEF YEOMAN IN THE NAVY. YOU ARE ADVISED ACCORDINGLY.