B-162377, JUN. 28, 1968

B-162377, JUN. 28, 1968

TO LIEUTENANT COLONEL J. R. KELLIHER:

FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER, FORWARDED HERE BY LETTER DATED MAY 13, 1968, OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $334.36 IN FAVOR OF LIEUTENANT COLONEL BERTIE L. HAWKINS, USAF, RETIRED, REPRESENTING A CHANGE IN RETIRED PAY FOR THE PERIOD MARCH 1, 1967, THROUGH MARCH 31, 1968, COMPUTED AS DESCRIBED BELOW. THE REQUEST HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1000 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL HAWKINS' CASE WAS THE SUBJECT OF OUR DECISION B-162377 OF OCTOBER 17, 1967, 47 COMP. GEN. ----, IN WHICH WE HELD THAT HIS RETIRED PAY COULD NOT BE COMPUTED BY USING A COMBINATION OF FORMULAS 1 AND 4 OF 10 U.S.C. 1401. THE FACTS OF HIS CASE WERE FULLY SET FORTH IN THAT DECISION AND WILL NOT BE REPEATED HERE. IT WAS IMPLIED IN THE PRIOR SUBMISSION THAT THE OFFICER WAS BEING PAID UNDER FORMULA 1, 10 U.S.C. 1401, USING THE YEARS OF SERVICE CREDITED TO HIM UNDER 10 U.S.C. 1208 (B) IN THE MULTIPLIER FACTOR AND WE SAID THAT HE WAS ENTITLED TO RETIRED PAY COMPUTED ON THAT SERVICE CREDIT. HOWEVER, YOU NOW STATE THAT HE WAS NOT BEING SO PAID.

COLONEL HAWKINS WAS HONORABLY DISCHARGED FROM ALL APPOINTMENTS AS A WARRANT OFFICER IN THE UNITED STATES AIR FORCE ON FEBRUARY 28, 1967, AND WAS RETIRED IN HIS RESERVE GRADE OF LIEUTENANT COLONEL ON MARCH 1, 1967, UNDER 10 U.S.C. 1201. HE HAD 28 YEARS OF SERVICE UNDER 10 U.S.C. 1208 (B) -- THE NUMBER OF YEARS OF SERVICE HE WOULD COUNT IF HE WERE COMPUTING HIS YEARS OF SERVICE UNDER 10 U.S.C. 1333 -- AND 27 YEARS, 5 MONTHS AND 13 DAYS OF SERVICE COMPUTED UNDER 10 U.S.C. 1208 (A). HE HAD 29 YEARS, 2 MONTHS AND 1 DAY OF SERVICE FOR BASIC PAY PURPOSES.

THE VOUCHER REPRESENTS THE DIFFERENCE IN RETIRED PAY OF $720.38 PER MONTH UNDER FORMULA 1, 10 U.S.C. 1401, BASED ON SERVICE CREDITS UNDER 10 U.S.C. 1208 (B) ($992.40 X 28 X 2-1/2 PERCENT INCREASED BY 3.7 PERCENT UNDER SECTION 2 (B) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207, 81 STAT. 653) AND $694.66 PER MONTH UNDER FORMULA 1, 10 U.S.C. 1401, BASED ON SERVICE CREDITS UNDER 10 U.S.C. 1208 (A) ($992.40 X 27 X 2-1/2 PERCENT INCREASED BY 3.7 PERCENT) FOR THE PERIOD FROM MARCH 1, 1967, THROUGH MARCH 31, 1968.

YOU EXPRESSED DOUBT AS TO WHETHER UNDER THE FORMULA 1 COMPUTATION SERVICE CREDITS UNDER 10 U.S.C. 1208 (B) MAY BE USED IN VIEW OF THE ANSWER TO QUESTION 2 IN OUR DECISION OF OCTOBER 6, 1958, B-136900, 38 COMP. GEN. 268, 273, TO THE EFFECT THAT THE RIGHT OF A MEMBER OF A REGULAR COMPONENT TO THE RETIRED PAY OF A HIGHER RESERVE GRADE DOES NOT, OF ITSELF, EFFECT A RETIREMENT IN THE OFFICE TO WHICH THE HIGHER RESERVE GRADE NORMALLY APPERTAINS, AND YOU REFER TO THE CONTRARY RULING OF THE COURT OF CLAIMS IN THE CASE OF JAKWAY V UNITED STATES, 146 CT. CL. 482 (1959).

IN THE JAKWAY CASE THE COURT HELD THAT THE PLAINTIFF, WHO WAS SERVING AS A REGULAR WARRANT OFFICER AT THE TIME OF HIS RETIREMENT BY REASON OF PHYSICAL DISABILITY, AND WHO HELD A COMMISSION AS A COLONEL IN THE AIR FORCE RESERVE, WAS ACTUALLY RETIRED AS AN OFFICER UNDER THE PROVISIONS OF SECTIONS 402 (D) AND 409 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 818, 823, NOW CODIFIED IN 10 U.S.C. 1372. WE DECIDED TO FOLLOW THE COURT'S DECISION IN THE JAKWAY CASE AS A PRECEDENT IN SIMILAR CASES. SEE 39 COMP. GEN. 855, IN WHICH IT WAS DECIDED THAT TO THE EXTENT THE DECISION IN 36 COMP. GEN. 8 CONFLICTED WITH THE HOLDING IN THE JAKWAY CASE, IT WOULD NO LONGER BE FOLLOWED. THE ANSWER TO QUESTION 2 IN 38 COMP. GEN. 268 WAS BASED TO A LARGE EXTENT ON 36 COMP. GEN. 8.

UNDER 10 U.S.C. 1372 (1), COLONEL HAWKINS WAS ENTITLED TO BE RETIRED IN THE GRADE OF LIEUTENANT COLONEL WHICH HE HELD IN THE AIR FORCE RESERVE CONTEMPORANEOUSLY WITH HIS REGULAR CHIEF WARRANT OFFICER GRADE. EVEN THOUGH UNDER THE "MOST FAVORABLE" FORMULA PROVISION OF 10 U.S.C. 1401, HE WOULD HAVE BEEN ENTITLED TO RETIRED PAY IN THAT GRADE HAD HIS RETIRED PAY COMPUTED UNDER FORMULA 4 OF THAT SECTION BEEN MORE FAVORABLE TO HIM, THAT CIRCUMSTANCE COULD NOT AFFECT HIS STATUS AS A RETIRED RESERVE OFFICER IN ANY WAY.

COLONEL HAWKINS' MEMBERSHIP IN THE REGULAR COMPONENT OF THE AIR FORCE WAS TERMINATED PRIOR TO HIS RETIREMENT AND SINCE HE WAS RETIRED AS A RESERVE OFFICER, 10 U.S.C. 1208 (A) WAS NOT APPLICABLE TO HIM AND HIS YEARS OF SERVICE MUST BE COMPUTED UNDER 10 U.S.C. 1208 (B). ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.