B-162852, JANUARY 23, 1968, 47 COMP. GEN. 397

B-162852: Jan 23, 1968

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PAY - RETIRED - COMBAT CITATIONS - ENLISTED MAN ADVANCED TO RANK OF OFFICER ON RETIRED LIST A MASTER SERGEANT WHO WHEN RETIRED UNDER 10 U.S.C. 3914 IS AWARDED A 10 PERCENT INCREASE IN RETIRED PAY BY REASON OF EXTRAORDINARY HEROISM PERFORMED IN THE LINE OF DUTY. IS NOT ELIGIBLE TO CONTINUE RECEIVING THE 10 PERCENT ADDITIONAL RETIRED PAY AUTHORIZED ONLY FOR ENLISTED MEMBERS. 1968: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22. YOUR REQUEST WAS FORWARDED HERE ON OCTOBER 30. THE MEMBER WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1. SINCE IT IS REPORTED THAT HE WAS ELIGIBLE FOR A 10-PERCENT INCREASE IN RETIRED PAY BY REASON OF EXTRAORDINARY HEROISM IN LINE OF DUTY. YOU SAY THAT HIS RETIRED PAY WAS COMPUTED.

B-162852, JANUARY 23, 1968, 47 COMP. GEN. 397

PAY - RETIRED - COMBAT CITATIONS - ENLISTED MAN ADVANCED TO RANK OF OFFICER ON RETIRED LIST A MASTER SERGEANT WHO WHEN RETIRED UNDER 10 U.S.C. 3914 IS AWARDED A 10 PERCENT INCREASE IN RETIRED PAY BY REASON OF EXTRAORDINARY HEROISM PERFORMED IN THE LINE OF DUTY, UPON ADVANCEMENT TO THE OFFICER RANK OF CAPTAIN ON THE RETIRED LIST PURSUANT TO 10 U.S.C. 3964, IS NOT ELIGIBLE TO CONTINUE RECEIVING THE 10 PERCENT ADDITIONAL RETIRED PAY AUTHORIZED ONLY FOR ENLISTED MEMBERS, THE ENTITLEMENT TO THE INCREASE NOT ATTACHING BY REASON OF HIS RETIREMENT, AND 10 U.S.C. 3992, WHICH PRESCRIBES THE FORMULA FOR THE RECOMPUTATION OF RETIRED PAY FOR MEMBERS ADVANCED ON THE RETIRED LIST, NOT PROVIDING A 10 PERCENT INCREASE IN RETIRED PAY FOR EXTRAORDINARY HEROISM, THE MEMBER'S RECOMPUTED RETIRED PAY MAY NOT BE INCREASED FROM THE DATE OF HIS ADVANCEMENT ON THE RETIRED LIST TO THE RANK OF CAPTAIN BY 10 PERCENT.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, JANUARY 23, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1967 (FILE REFERENCE FINCS-E DALTON, WILLIAM A. O 2262498 (RETIRED), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $30.08 IN FAVOR OF CAPTAIN WILLIAM A. DALTON, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED AT 50 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND THAT COMPUTED IN A LIKE MANNER INCREASED BY 10 PERCENT FOR EXTRAORDINARY HEROISM FOR THE PERIOD AUGUST 1 THROUGH AUGUST 31, 1967. YOUR REQUEST WAS FORWARDED HERE ON OCTOBER 30, 1967, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND HAS BEEN ASSIGNED D.O. NUMBER A-968 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AT STATED IN YOUR LETTER, THE MEMBER WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1957, IN THE GRADE OF MASTER SERGEANT, UNDER AUTHORITY OF 10 U.S.C. 3914, WITH 21 YEARS 10 MONTHS AND 12 DAYS OF SERVICE FOR BASIC PAY PURPOSES AND 20 YEARS 2 MONTHS AND 12 DAYS ACTIVE SERVICE. SINCE IT IS REPORTED THAT HE WAS ELIGIBLE FOR A 10-PERCENT INCREASE IN RETIRED PAY BY REASON OF EXTRAORDINARY HEROISM IN LINE OF DUTY, YOU SAY THAT HIS RETIRED PAY WAS COMPUTED--- PRESUMABLY COMMENCING SEPTEMBER 1, 1957--- TO INCLUDE THIS ADDITIONAL CREDIT. SEE 10 U.S.C. 3991, FORMULA C, COLUMN 3. EFFECTIVE JUNE 19, 1967, THE MEMBER WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN UNDER AUTHORITY OF 10 U.S.C. 3964, WITH ENTITLEMENT TO RETIRED PAY COMPUTED AS PROVIDED IN 10 U.S.C. 3992. YOU SAY THAT A 10-PERCENT INCREASE IN HIS RETIRED PAY AS A CAPTAIN WAS ALLOWED FOR HEROISM BUT SUCH INCREASE HAS BEEN EXCLUDED SINCE AUGUST 1, 1967.

YOU SAY THAT IF THE ENTITLEMENT TO ADDITIONAL RETIRED PAY FOR HEROISM IS DEPENDENT UPON THE MEMBER'S STATUS AS AN ENLISTED MEMBER, DOUBT EXISTS AS TO WHETHER HE MAY RETAIN HIS ENLISTED STATUS FOR THE PURPOSE OF INCREASING HIS RETIRED PAY ENTITLEMENT BY 10 PERCENT OF THE PAY OF THE HIGHER GRADE TO WHICH HE WAS ADVANCED. IF THE ENTITLEMENT ATTACHES TO THE STATUTORY AUTHORITY FOR RETIREMENT (10 U.S.C. 3914) IT IS YOUR VIEW THAT IN THE LIGHT OF SECTION 205 (B) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1081, 1086, 10 U.S.C. 1007 (1952 ED.), THIS ENTITLEMENT IS NOT LOST SUBSEQUENT TO ADVANCEMENT BUT CONTINUES TO ACCURE UNDER THAT AUTHORITY, THE COMPUTATION FOR RETIRED PAY ONLY HAVING BEEN CHANGED.

YOU STATE THAT IN VIEW OF THE AMBIGUITY OF THE SOURCE STATUTES, THE WORDING OF THE IMPLEMENTING REGULATION AND THE ABSENCE OF ANY MENTION OF THIS CREDIT IN THE APPLICABLE FORMULA FOR COMPUTATION OF RETIRED PAY UPON ADVANCEMENT ON THE RETIRED LIST, DOUBT EXISTS AS TO WHETHER CAPTAIN DALTON'S RETIRED PAY MAY BE INCREASED COMMENCING JUNE 19, 1967, BY 10 PERCENT FOR CREDIT OF EXTRAORDINARY HEROISM.

THE PROVISIONS OF SECTION 3914 OF TITLE 10, U.S. CODE--- WHICH AUTHORIZE THE RETIREMENT OF A REGULAR "ENLISTED" MEMBER OF THE ARMY WITH 20 OR MORE YEARS OF SERVICES--- WERE DERIVED FROM SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS AMENDED BY SECTION 6 (A) OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 996, 10 U.S.C. 948 (1952 ED.), WHICH ALSO PROVIDED FOR A 10- PERCENT INCREASE IN RETIRED PAY FOR ANY "ENLISTED" MAN WHO WAS CREDITED WITH EXTRAORDINARY HEROISM IN LINE OF DUTY. WHILE PARAGRAPH 4B OF ARMY REGULATIONS 635-230 DATED AUGUST 19, 1960, IMPLEMENTING 10 U.S.C. 3914, CITED IN YOUR SUBMISSION, REFERS TO AN "INDIVIDUAL" WHO HAS BEEN AWARDED THE MEDAL OF HONOR, FOR EXTRAORDINARY HEROISM FOR PURPOSES OF THE 10- PERCENT INCREASE IN RETIRED PAY, SINCE THE LAW CLEARLY LIMITS THE 10- PERCENT INCREASE TO "ENLISTED" MEMBERS WHO RETIRED UNDER 10 U.S.C. 3914, WE DOUBT THAT THE USE OF THE TERM "INDIVIDUAL" IN THE REGULATION IS INTENDED TO COVER INDIVIDUALS OTHER THAN ENLISTED MEMBERS. IN ANY EVENT, REGULATIONS MUST NOT BE INCONSISTENT WITH THE LAW BUT MUST CONFORM TO THE LAW AND IT IS OUR VIEW THAT SUCH REGULATIONS HAVE NO BEARING IN THIS CASE ON AND AFTER JUNE 19, 1967.

AN ENLISTED MAN RETIRED UNDER 10 U.S.C. 3914 IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA C, 10 U.S.C. 3991, WHICH INCLUDES IN COLUMN 3 THEREOF, A 10-PERCENT INCREASE FOR EXTRAORDINARY HEROISM IN LINE OF DUTY. AN ENLISTED MEMBER OF THE ARMY WHO IS ADVANCED UNDER 10 U.S.C. 3964--- WHICH WAS DERIVED FROM SECTION 203 (E) OF THE ABOVE-CITED ACT OF JUNE 29, 1948--- TO A HIGHER TEMPORARY GRADE ON THE RETIRED LIST AFTER 30 YEARS OF ACTIVE AND INACTIVE SERVICE IS ENTITLED, UNDER 10 U.S.C. 3992, TO RECOMPUTE HIS RETIRED PAY BY MULTIPLYING THE MONTLY BASIC PAY OF THE GRADE TO WHICH ADVANCED BY A PERCENTAGE FACTOR, NOT TO EXCEED 75 PERCENT, OBTAINED BY ALLOWING 2-1/2 PERCENT FOR EACH YEAR OF ACTIVE SERVICE. THIS RECOMPUTATION FORMULA DOES NOT PROVIDE FOR A 10-PERCENT INCREASE IN RETIRED PAY FOR EXTRAORDINARY HEROISM. IT WOULD APPEAR THAT DALTON'S ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964 FROM MASTER SERGEANT TO CAPTAIN WAS WITH RETIRED PAY. COMPARE 44 COMP. GEN. 510 AND SEE DECISION OF NOVEMBER 14, 1967, B-155940 ADDRESSED TO YOU.

WITH RESPECT TO YOUR REFERENCE TO THE SAVINGS PROVISION IN SECTION 205 (B) OF THE ACT OF JUNE 29, 1948, YOUR ATTENTION IS INVITED TO THE FACT THAT SUCH PROVISION WAS EXPRESSLY REPEALED BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 641, 678, WHICH ACT CODIFIED TITLES 10 AND 32, U.S.C. WHATEVER MAY HAVE BEEN THE EFFECT OF SECTION 205 (B), IT IS CLEAR THAT THE REPEALED SAVINGS PROVISION OF THAT SECTION COULD HAVE NO EFFECT ON THE ADVANCEMENT PROVISION NOW CODIFIED IN 10 U.S.C. 3964.

SECTION 3992 CLEARLY SETS FORTH THE FORMULA TO BE USED IN RECOMPUTING RETIRED PAY WHEN A MEMBER IS ADVANCED ON THE RETIRED LIST UNDER SECTION 3964 AND NO PROVISION IS MADE IN SUCH FORMULA AUTHORIZING A 10-PERCENT INCREASE IN RETIRED PAY FOR EXTRORDINARY HEROISM. WE BELIEVE THE CODIFIERS WOULD HAVE INCLUDED SUCH AUTHORITY IN SECTION 3992 HAD THERE BEEN AN INTENT TO AUTHORIZE SUCH INCREASE. COMPARE 45 COMP. GEN. 793. THE ABSENCE OF A PROVISION IN SECTION 3992 AUTHORIZING THE 10-PERCENT INCREASE IN RETIRED PAY, IT IS OUR VIEW THAT THERE IS NO AUTHORITY FOR INCREASING CAPTAIN DALTON'S RETIRED PAY BY 10 PERCENT FOR EXTRAORDINARY HEROISM FORM JUNE 19, 1967, THE DATE OF HIS ADVANCEMENT ON THE RETIRED LIST TO CAPTAIN.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.