B-164842, FEB 21, 1974, 53 COMP GEN 610

B-164842, FEB 21, 1974, 53 COMP GEN 610

PAY - RETIRED - INCREASES - VOLUNTARY V. INVOLUNTARY RETIREMENT THE HOLDING IN THE CASE OF EDWARD P. CHESTER ET AL. V. UNITED STATES (199 CT. CL. 687), WHICH AUTHORIZES THE COMPUTATION OF RETIRED PAY BASED ON RATES EFFECTIVE JULY 1 RATHER THAN LOWER JUNE 30 RATES AND ACCEPTED FOR COAST GUARD OFFICERS IN 53 COMP. GEN. 94, AND FOR AIR FORCE OFFICERS HELD BEYOND MANDATORY RETIREMENT DATE FOR PHYSICAL EVALUATION, IN 53 COMP. GEN. 135, IS VIEWED AS APPLICABLE TO MARINE CORPS OFFICERS RETIRED MANDATORILY PURSUANT TO PUBLIC LAW 86-155, 73 STAT. 333, IN VIEW OF THE SIMILARITY BETWEEN THE APPLICABLE STATUTES AND/OR MARINE CORPS, AND, THEREFORE, AN OFFICER'S RETIRED PAY MAY BE COMPUTED ON RATES IN EFFECT JULY 1 OF THE YEAR IN WHICH HE RETIRES. 48 COMP. GEN. 30 AND OTHER SIMILAR DECISIONS ARE OVERRULED.

TO J.J. BURKHOLDER, UNITED STATES MARINE CORPS, FEBRUARY 21, 1974:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1973, FILE REFERENCE RP-JJB-DM, FORWARDED TO THIS OFFICE BY HEADQUARTERS MARINE CORPS LETTER DATED MAY 21, 1973, FILE REFERENCE CD-EGB 7225, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE RETIRED PAY ACCOUNT OF COLONEL STANLEY D. LOW, XXX-XX-XXXX, USMC, RETIRED, MAY BE ADJUSTED TO REFLECT INCREASED RETIRED PAY BASED ON THE BASIC PAY RATES IN EFFECT ON JULY 1, 1968, RATHER THAN THE LOWER RATES IN EFFECT ON JUNE 30, 1968. THE REQUEST HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1191 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT IN A PREVIOUS DECISION OF THIS OFFICE, 48 COMP. GEN. 30 (1968), IT WAS HELD THAT COLONEL LOW'S RETIRED PAY SHOULD BE COMPUTED BASED ON THE BASIC PAY RATES IN EFFECT ON JUNE 30, 1968, SINCE THE LANGUAGE OF SECTION 1 (I) OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86 155, 73 STAT. 333, 10 U.S.C. 5701 NOTE, WHICH SUBJECTED HIM TO MANDATORY RETIREMENT, PRECLUDED HIM FROM VOLUNTARILY RETIRING EFFECTIVE JULY 1, 1968. HOWEVER, YOU INDICATE THAT THE COURT OF CLAIMS IN THE CASE OF EDWARD P. CHESTER, ET AL. V. UNITED STATES, NO. 169-70, DECIDED OCTOBER 13, 1972, 199 CT. CL. 687, HELD THAT CERTAIN COAST GUARD OFFICERS SUBJECT TO MANDATORY RETIREMENT ON JUNE 30, 1968, AND 1969, PURSUANT TO PROVISIONS OF LAW SIMILAR TO SECTION 1(I) OF PUBLIC LAW 86 155, WERE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE HIGHER RATES OF BASIC PAY EFFECTIVE ON JULY 1, 1968, OR 1969, AS THE CASE MIGHT BE. THEREFORE, IN VIEW OF THE COURT'S DECISION IN THE CHESTER CASE, YOU NOW ASK WHETHER YOU MAY ADJUST THE RETIRED PAY ACCOUNTS OF COLONEL LOW AND OTHER OFFICERS SIMILARLY SITUATED TO REFLECT THE HIGHER RATES OF BASIC PAY IN EFFECT ON JULY 1 OF THE YEAR IN WHICH THEY RETIRED.

IN 48 COMP. GEN. 30, SUPRA, THE RECORDS SHOWED THAT BY ORDERS DATED MAY 3, 1968, COLONEL LOW WAS NOTIFIED THAT IN ACCORDANCE WITH 10 U.S.C. 6323 AND PUBLIC LAW 86-155, HE WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE JULY 1, 1968. BY LETTER DATED MAY 10, 1968, TO THE SECRETARY OF THE NAVY, COLONEL LOW REQUESTED VOLUNTARY RETIREMENT EFFECTIVE JULY 1, 1968, UNDER THE PROVISIONS OF 10 U.S.C. 6323.

APPARENTLY PURSUANT TO COLONEL LOW'S REQUEST, THE ORDERS OF MAY 3, 1968, WERE CANCELED BY ORDERS DATED JUNE 10, 1968, WHICH PROVIDED THAT HIS REQUEST FOR RETIREMENT AFTER COMPLETION OF MORE THAN 20 YEARS' ACTIVE SERVICE WAS APPROVED AND THAT HE WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE JULY 1, 1968, PURSUANT TO 10 U.S.C. 6323 AND PUBLIC LAW 86-155. AS WE INDICATED IN 48 COMP. GEN. 30, THE IMPORTANCE TO COLONEL LOW OF BEING PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1968, UNDER AUTHORITY OF 10 U.S.C. 6323 IS THAT HIS RETIRED PAY STATUS THEN WOULD BE GOVERNED BY THE RULE IN OUR DECISION 44 COMP. GEN. 584 (1965). UNDER THAT RULE COLONEL LOW WOULD BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF ACTIVE DUTY PAY IN EFFECT ON JULY 1, 1968, RATHER THAN LOWER RATES IN EFFECT JUNE 30, 1968, UPON WHICH HIS RETIRED PAY WOULD BE COMPUTED IF HE WERE ACTUALLY RETIRED UNDER PUBLIC LAW 86 155.

IN 48 COMP. GEN. 30 WE NOTED THAT APPARENTLY THE 1968 FISCAL YEAR CONTINUATION BOARD, CONVENED UNDER THE AUTHORITY OF SECTION 1(A) OF PUBLIC LAW 86-155, CONSIDERED COLONEL LOW BUT DID NOT RECOMMEND HIM FOR CONTINUATION ON THE ACTIVE LIST. HE THEREUPON BECAME SUBJECT TO THE INVOLUNTARY RETIREMENT PROVISIONS OF SECTION 1(I) OF THAT LAW WHICH PROVIDES IN PART THAT OFFICERS SUBJECT TO IT "SHALL, NOTWITHSTANDING ANY OTHER PROVISION OF LAW," WITH CERTAIN EXCEPTIONS NOT APPLICABLE IN COLONEL LOW'S CASE, "BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH THE REPORT OF THE BOARD IS APPROVED OR IN WHICH HE COMPLETES 20 YEARS OF TOTAL COMMISSIONED SERVICE *** WHICHEVER IS LATER." IT WAS OUR VIEW, THEREFORE, THAT THE LANGUAGE OF SECTION 1(I) WOULD PRECLUDE AN OFFICER SUBJECT TO ITS PROVISIONS FROM RETIRING UNDER ANY OTHER PROVISION OF LAW UNLESS OTHER LANGUAGE CONTAINED IN PUBLIC LAW 86-155 EVIDENCES A CONTRARY INTENT.

REGARDING SUCH A CONTRARY INTENT, WE NOTED THAT SECTION 2(D) OF PUBLIC LAW 86-155 PROVIDES THAT AN OFFICER WITHIN ITS SCOPE WHO IS RETIRED UNDER PUBLIC LAW 86-155 "*** SHALL BE PAID, IN ADDITION TO HIS RETIRED PAY, A LUMP-SUM PAYMENT OF $2,000, EFFECTIVE ON THE DATE OF HIS RETIREMENT." AND, SECTION 2(E) PROVIDES:

(E) AN OFFICER WHO HAS THE QUALIFICATIONS SPECIFIED IN SUBSECTION (D) AND WHO HAS BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST PURSUANT TO SECTION 1 OF THIS ACT SHALL BE CONSIDERED FOR THE PURPOSE OF SUBSECTION (D) AS BEING RETIRED UNDER THIS ACT IF THE OFFICER RETIRES VOLUNTARILY PRIOR TO THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS ACT.

THEREFORE, IT WAS OUR VIEW, AS EXPRESSED IN 48 COMP. GEN. 30, THAT WHILE SECTIONS 2(D) AND 2(E) OF PUBLIC LAW 86-155 APPARENTLY SANCTION VOLUNTARY RETIREMENTS UNDER THE CIRCUMSTANCES THERE PRESCRIBED, THE PHRASE "NOTWITHSTANDING ANY OTHER PROVISION OF LAW" EMPLOYED IN SECTION 1(I) PRECLUDED VOLUNTARY RETIREMENT UNDER ANY OTHER PROVISION OF LAW UNLESS THE VOLUNTARY RETIREMENT BECAME EFFECTIVE BEFORE JUNE 30 OF THE FISCAL YEAR PRESCRIBED IN THAT SECTION. SINCE UNDER THE PROVISIONS OF THE VOLUNTARY RETIREMENT STATUTE (10 U.S.C. 6323) AND THE RETIREMENT ORDERS OF JUNE 10, 1968, COLONEL LOW'S NAME WOULD BE PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1968, WE HELD THAT HE WAS MANDATORILY RETIRED PURSUANT TO PUBLIC LAW 86-155 ON JUNE 30, 1968, AND THE ORDERS OF JUNE 10, 1968, WERE WITHOUT EFFECT TO ACCOMPLISH HIS RETIREMENT EFFECTIVE JULY 1, 1968.

IN THE CHESTER CASE, SUPRA, TO WHICH YOU REFER, THE PLAINTIFFS WERE REGULAR COAST GUARD CAPTAINS WHO IN JUNE 1968 OR 1969 BECAME SUBJECT TO THE MANDATORY RETIREMENT PROVISIONS OF 14 U.S.C. 288(A) AND WHO WERE ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER OTHER PROVISIONS OF LAW. SECTION 288(A) OF TITLE 14, U.S. CODE, PROVIDES THAT A COAST GUARD CAPTAIN SUBJECT TO ITS PROVISIONS "SHALL, IF NOT EARLIER RETIRED," BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH HE, OR ANY CAPTAIN JUNIOR TO HIM COMPLETES 30 YEARS OF ACTIVE COMMISSIONED SERVICE IN THE COAST GUARD. UNDER THE PROVISIONS OF THAT STATUTE AND THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301, WE HELD THAT MEMBERS IN THEIR CIRCUMSTANCES WERE ENTITLED TO COMPUTE THEIR RETIRED PAY BASED ON THE ACTIVE DUTY PAY RATES IN EFFECT ON JUNE 30 OF 1968 OR 1969, AS THE CASE MIGHT BE, AND NOT ON THE HIGHER RATES IN EFFECT ON JULY 1 OF THOSE YEARS. AND, IT WAS OUR VIEW THAT ALTHOUGH THEY WERE ALSO ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER OTHER STATUTES WHICH WOULD HAVE AUTHORIZED THEM TO COMPUTE THEIR RETIRED PAY AT THE RATES EFFECTIVE JULY 1, BECAUSE OF THE MANDATORY NATURE OF 14 U.S.C. 288 AND THE LANGUAGE OF THE STATUTE WHICH PROVIDED "IF NOT EARLIER" RETIRED, THEY COULD NOT BE RETIRED VOLUNTARILY ON THE SAME DAY THEY WERE TO BE MANDATORILY RETIRED. SEE B-165038, JANUARY 6, 1969 (IN WHICH B-164842, JULY 23, 1968, 48 COMP. GEN. 30, IS CITED WITH APPROVAL) AND B-165038(1) AND (2), JUNE 2, 1969.

IN THE CHESTER CASE THE COURT DECLINED TO FOLLOW OUR CONSTRUCTION OF 14 U.S.C. 288 AND HELD THAT THE PLAINTIFFS THEREIN WERE NOT PRECLUDED FROM VOLUNTARILY RETIRING ON JUNE 30, THE MANDATORY RETIREMENT DATE TO WHICH THEY WERE SUBJECT UNDER 14 U.S.C. 288(A), AND THUS WERE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE HIGHER PAY RATES EFFECTIVE JULY 1.

IN OUR DECISION OF AUGUST 16, 1973, 53 COMP. GEN. 94 WE SAID THAT WE WILL NOW FOLLOW THE COURT'S RULING IN THE CHESTER CASE IN THE COMPUTATION OF THE RETIRED PAY OF OTHER COAST GUARD OFFICERS SIMILARLY RETIRED UNDER THE PROVISIONS OF 14 U.S.C. 288(A), BOTH RETROACTIVELY AND PROSPECTIVELY. HOWEVER, WE LIMITED RETROACTIVE APPLICATION OF THAT DECISION TO THE PERIOD (GENERALLY 10 YEARS) PROVIDED BY THE BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WITH DOUBTFUL CASES TO BE SUBMITTED HERE FOR DETERMINATION. ALSO, IN OUR DECISION OF AUGUST 31, 1973, 53 COMP. GEN. 135, WE SAID THAT WHILE THE MANDATORY RETIREMENT STATUTES APPLICABLE TO THE OTHER SERVICES ARE NOT IDENTICAL TO THOSE OF THE COAST GUARD, IN VIEW OF THE GENERAL CONGRESSIONAL POLICY IN RECENT YEARS TO TREAT THE SERVICES UNIFORMLY IN PAY AND ALLOWANCES MATTERS, WHEN PRACTICABLE, WE WILL FOLLOW THE RULES ENUNCIATED IN THE CHESTER CASE TO THE EXTENT FEASIBLE IN COMPUTING THE DISABILITY RETIRED PAY OF MEMBERS OF THE OTHER SERVICES.

THEREFORE, IN VIEW OF THE SIMILARITY BETWEEN THE APPLICABLE STATUTES IN THE CHESTER CASE AND IN COLONEL LOW'S CASE, WE WILL NOW APPLY THE COURT'S DECISION IN THE CHESTER CASE IN THE COMPUTATION OF COLONEL LOW'S RETIRED PAY AND THE RETIRED PAY OF OTHER OFFICERS SIMILARLY SITUATED. ACCORDINGLY, COLONEL LOW'S RETIRED PAY MAY BE COMPUTED BASED ON THE RATES OF ACTIVE DUTY BASIC PAY IN EFFECT ON JULY 1, 1968, RETROACTIVELY TO THE DATE OF RETIREMENT AND SUBSEQUENT COST-OF-LIVING INCREASES AS APPLICABLE. OUR DECISION 48 COMP. GEN. 30 AND OTHER SIMILAR DECISIONS WILL NO LONGER BE FOLLOWED.