B-153784, SEP 17, 1969

B-153784, SEP 17, 1969

MILITARY - RETIRED PAY - EXTENSION BEYOND MANDATORY RETIREMENT DATE DECSION TO AIR FORCE ACCOUNTING AND FINANCE OFFICER HOLDING THAT VOUCHER REPRESENTING DIFFERENCE IN RETIRED PAY WHEN COMPUTED ON ACTIVE DUTY RATE IN EFFECT ON APRIL 24, 1969, AND RATE IN EFFECT ON JULY 1, 1969 MAY NOT BE PAID. AIR FORCE OFFICER WHO REACHED MANDATORY RETIREMENT UNDER 10 U.S.C. 8916 ON APRIL 24, 1969, BUT BECAUSE PHYSICAL EVALUATIONS WERE PENDING HAD RETIREMENT DATE EXTENDED TO JULY 2, 1969, WHEN HE WAS RETIRED FOR PHYSICAL DISABILITY MAY NOT HAVE FACT THAT ARMY FAILED TO ACCOMPLISH HIS INVOLUNTARY RETIREMENT ON THE DATE REQUIRED BY LAW REGARDED AS EXTENDING HIS RIGHTS IN COMPUTATION OF AMOUNT OF RETIRED PAY.

N. C. ALCOCK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 2, 1969 (FILE REFERENCE ALRA-3), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $100.98 IN FAVOR OF COLONEL HARRY H. SEALY, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY WHEN COMPUTED ON THE APPLICABLE RATE OF ACTIVE DUTY PAY IN EFFECT ON APRIL 24, 1969, AND ON THE RATE IN EFFECT ON JULY 1, 1969, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE DEPUTY COMPTROLLER FOR ACCOUNTING AND FINANCE UNDER DATE OF JULY 18, 1969, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO AF-1045 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT COLONEL SEALY'S MANDATORY RETIREMENT DATE UNDER 10 U.S.C. 8916 WAS APRIL 24, 1969, WITH RETIREMENT EFFECTIVE MAY 1, 1969, PURSUANT TO U.S.C. 8301 (A). IT IS ALSO STATED THAT "BECAUSE OF PENDING PHYSICAL EVALUATION ACTIONS, HIS RETIREMENT DATE WAS EXTENDED TO JULY 2, 1969, WHEN HE WAS RETIRED BY REASON OF PHYSICAL DISABILITY UNDER 10 U.S.C. 1201

YOUR LETTER ALSO DISCLOSES THAT THE RETIRED PAY COMPUTATION FORMULAS (FORMULAS 1 AND 2) IN 10 U.S.C. 1401, AUTHORIZE RETIRED PAY TO BE COMPUTED AT THE RATES APPLICABLE ON DATE OF RETIREMENT AND EXPRESSES THE VIEW THAT 5 U.S.C. 8301 (B) IMPLIES THAT THE RATE OF RETIRED PAY BECOMES FIXED AS OF THE DATE MANDATORY RETIREMENT WOULD OTHERWISE HAVE BEEN EFFECTIVE. APPLYING THE PROVISIONS OF SECTION 8301(B) YOU SAY THAT THE RATE OF RETIRED PAY IN COLONEL SEALY'S CASE IS FIXED AS OF APRIL 24, 1969. IN THE LIGHT OF THE LANGUAGE IN 43 COMP.GEN. 742, WHICH YOU CITE, YOU SAY THAT THE QUESTION ARISES WHETHER THAT DECISION PRECLUDES ANY INCREASE, INCLUDING AN INCREASE IN RETIRED PAY RESULTING FROM THE HIGHER STATUTORY BASIC PAY RATE WHICH BECAME EFFECTIVE JULY 1, 1969. YOU ASK WHETHER THE OFFICER'S RETIRED PAY BECAME FIXED UNDER 5 U.S.C. 8301(B) AT THE RATES APPLICABLE ON APRIL 24, 1969, BECAUSE OF THE MANDATORY RETIREMENT PROVISIONS, OR WHETHER THE RATES IN EFFECT ON JULY 1, 1969, COMPUTED UNDER THE FORMULA IN 10 U.S.C. 1401, SHOULD APPLY.

A COPY OF SPECIAL ORDER NO. 15942, DATED JUNE 12, 1969, WHICH ACCOMPANIED YOUR SUBMISSION PURPORTS TO SHOW THAT THE OFFICER WAS RETIRED IN THE GRADE OF COLONEL BY REASON OF PHYSICAL DISABILITY ON JULY 3, 1969, WITH A DISABILITY RATING OF 60 PERCENT. IT IS FURTHER SHOWN THAT HE HAD 28 YEARS AND 29 DAYS OF SERVICE FOR MANDATORY RETIREMENT PURPOSES (10 U.S.C. 8916 AND 8927) AND 25 YEARS, 10 MONTHS AND 1 DAY OF ACTIVE SERVICE FOR RETIREMENT. REMARKS ON THE RETIREMENT ORDER STATE THAT "MEMBER IS QUALIFIED FOR RETIREMENT AND ENTITLED TO RETIRED PAY UP 10 U.S.C. 8911, 8991. (37 COMP GEN 794.) AFAFC: 43 COM GEN 742 (24 APR 69)."

VOLUME 1, AIR FORCE REGISTER, JANUARY 1969, PAGE 1097, SHOWS THAT COLONEL SEALY HELD THE PERMANENT GRADE OF LIEUTENANT COLONEL AND THE TEMPORARY GRADE OF COLONEL. IT APPEARS FROM YOUR LETTER THAT HE COMPLETED 28 YEARS OF SERVICE (COMPUTED UNDER 10 U.S.C. 8927 (A)) ON APRIL 24, 1969. HAVING COMPLETED 28 YEARS OF SERVICE AND AS A PROMOTION-LIST OFFICER IN THE REGULAR GRADE OF LIEUTENANT COLONEL HE WAS REQUIRED TO BE RETIRED UNDER 10 U.S.C. 8916 (A), WHICH PROVIDES AS FOLLOWS:

"(A) UNLESS RETIRED OR SEPARATED AT AN EARLIER DATE, EACH PROMOTION LIST OFFICER IN THE REGULAR GRADE OF LIEUTENANT COLONEL SHALL BE RETIRED, EXCEPT AS PROVIDED BY SECTION 8301 OF TITLE 5, ON THE THIRTIETH DAY AFTER HE COMPLETES 28 YEARS OF SERVICE COMPUTED UNDER SECTION 8927 (A) OF THIS TITLE. HOWEVER, IF HIS NAME IS CARRIED ON THE LIST OF OFFICERS RECOMMENDED FOR APPOINTMENT TO THE REGULAR GRADE OF COLONEL, HE SHALL BE RETAINED ON THE ACTIVE LIST WHILE HIS NAME IS SO CARRIED."

SUBSECTION (B) OF SECTION 8916 AUTHORIZES THE SECRETARY OF THE AIR FORCE TO DEFER THE MANDATORY RETIREMENT OF OFFICERS IN CERTAIN CATEGORIES. COLONEL SEALY DOES NOT APPEAR TO FALL WITHIN ANY OF THE CATEGORIES THERE MENTIONED AND NOTHING HAS BEEN FURNISHED SHOWING THAT THE SECRETARY TOOK ANY ACTION TO DEFER HIS RETIREMENT UNDER THAT AUTHORITY.

SECTION 8301 OF TITLE 5, U.S. CODE, PROVIDES AS FOLLOWS:

"(A) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY THIS TITLE OR OTHER STATUTE, RETIREMENT AUTHORIZED BY STATUTE IS EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

"(B) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE IS COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SUBSECTION (A) OF THIS SECTION."

UNDER THE PROVISION OF 10 U.S.C. 8916(A) AND 5 U.S.C. 8301(A), THE MANDATORY RETIREMENT DATE FOR COLONEL SEALY WAS MAY 1, 1969. UNLESS SOME OTHER PROVISION OF LAW PERMITTED HIS RETIREMENT ON OR AFTER JULY 1, 1969, THE RESTRICTIVE PROVISIONS OF SUBSECTION (B) OF 5 U.S.C. 8301 WOULD PRECLUDE USE OF THE HIGHER RATE OF ACTIVE DUTY BACIC PAY WHICH BECAME EFFECTIVE JULY 1, 1969, AND THE COMPUTATION OF HIS RETIRED PAY WOULD BE REQUIRED TO BE BASED ON THE ACTIVE DUTY RATES OF PAY THAT WERE IN EFFECT ON APRIL 24, 1969.

WHILE BOTH DISABILITY RETIRED PAY AND RETIRED PAY FOR YEARS OF SERVICE (10 U.S.C. 8911) ARE COMPUTED "AT RATES APPLICABLE ON DATE OF RETIREMENT OR DATE WHEN MEMBER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST," SEE FOOTNOTE 1, FORMULAS 1 AND 2 OF 10 U.S.C. 1401 AND FOOTNOTE 2, FORMULA B OF 10 U.S.C. 8991, THOSE PROVISIONS OF LAW HAVE NO APPLICATION IN COMPUTING COLONEL SEALY'S RETIRED PAY UNLESS HIS RETIREMENT COULD BE VIEWED AS HAVING BEEN LEGALLY ACCOMPLISHED ON JULY 3, 1969, UNDER THE ORDERS OF JUNE 12, 1969.

IN DECISION OF MAY 25, 1964, 43 COMP. GEN. 742, WE HELD THAT AN ARMY OFFICER, WHO WAS RETAINED BEYOND HIS MANDATORY RETIREMENT DATE FOR PHYSICAL EVALUATION AND SUBSEQUENT DISABILITY RETIREMENT, COULD NOT COUNT THE PERIOD OF RETENTION FOR BASIC PAY PURPOSES TO INCREASE HIS RETIRED PAY. WE THERE SAID THAT IN THE ABSENCE OF A PROVISION OF LAW EXEMPTING OFFICERS FOUND TO BE PHYSICALLY DISQUALIFIED FOR FURTHER ACTIVE SERVICE FROM THE POSITIVE REQUIREMENTS OF 10 U.S.C. 3916 (A) THIS PROVISION OF LAW IS IDENTICAL WITH 10 U.S.C. 8916 (A) APPLICABLE IN COLONEL SEALY'S CASE - PROVIDING FOR MANDATORY RETIREMENT ON A CERTAIN DATE, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, THE FACT THAT THE ARMY FAILED TO ACCOMPLISH HIS INVOLUNTARY RETIREMENT ON THE DATE REQUIRED BY LAW DID NOT ADD TO HIS RIGHTS IN ANY WAY IN COMPUTING THE AMOUNT OF RETIRED PAY TO WHICH HE WAS ENTITLED.

IN THE LIGHT OF THE HOLDING IN 43 COMP. GEN. 742 AND THE CONCLUSION REACHED IN THE CASE OF CAPTAIN EDWIN P. CHESTER, JR., U.S. COAST GUARD, RETIRED, IN B-165038 (1), DATED JUNE 2, 1969, COPY ENCLOSED, IT IS OUR VIEW THAT COLONEL SEALY IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE APPLICABLE RATE OF BASIC PAY WHICH WAS IN EFFECT ON APRIL 24, 1969. COMPARE ENCLOSED COPY OF OUR DECISION OF JUNE 2, 1969, B-165038 (2) TO THE SECRETARY OF TRANSPORTATION, IN THE CASE OF CAPTAIN EDWIN B. ING, U.S. COAST GUARD, RETIRED, CONCERNING THE APPLICATION OF CERTAIN INVOLUNTARY RETIREMENT LAWS.

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