B-164281, FEB 22, 1971, 50 COMP GEN 586

B-164281, FEB 22, 1971, 50 COMP GEN 586

PAY - RETIRED - GRADE, RANK, ETC., AT RETIREMENT - SERVICE IN HIGHER RANK THAN AT RETIREMENT THE RULE IN 49 COMP. GEN. 618 TO THE EFFECT THAT MEMBERS OF THE ARMED SERVICES WOULD BE ENTITLED TO RETIRED PAY BASED ON THE PAY OF A HIGHER GRADE, WHETHER TEMPORARY OR PERMANENT, IN WHICH A MEMBER SERVED SATISFACTORILY, EVEN THOUGH THE HIGHER GRADE WAS IN OTHER THAN THE SERVICE FROM WHICH HE RETIRED, IS EQUALLY APPLICABLE TO ARMY MEMBERS, NOTWITHSTANDING 10 U.S.C. 3963(A), UNDER WHICH THE MEMBERS ARE RETIRED, SEEMS TO REQUIRE THAT THE QUALIFYING SERVICE BE IN THE ARMY, SINCE THAT SECTION, AS WELL AS 10 U.S.C. 8963(A), INVOLVED IN THE RULING, HAVE A COMMON LEGISLATIVE SOURCE. UNDER 10 U.S.C. 3963(A), THE SECRETARY IS AUTHORIZED TO DETERMINE QUALIFICATION FOR THE HIGHER PAY; AND, THEREFORE, THERE IS NO OBJECTION TO THE ADMINISTRATIVE SETTLEMENT OF RETROACTIVE RETIRED PAY DUE THAT IS NOT BARRED BY 31 U.S.C. 71A, AND THE 10-YEAR LIMITATION PERIOD BEGINS TO RUN AFTER A FINAL ADMINISTRATIVE DETERMINATION OF SATISFACTORY SERVICE.

TO THE SECRETARY OF THE ARMY, FEBRUARY 22, 1971:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 9, 1970, FROM THE ASSISTANT SECRETARY OF THE ARMY (FM), REQUESTING AN ADVANCE DECISION REGARDING THE APPLICATION OF DECISION OF MARCH 23, 1970, 49 COMP. GEN. 618, TO ARMY MEMBERS WHO HAVE SERVED IN A HIGHER GRADE IN ANOTHER BRANCH OF THE ARMED SERVICES AND WHO HAVE THEIR RETIRED GRADE ESTABLISHED UNDER 10 U.S.C. 3963(A). THIS REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-A 1097 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

OUR DECISION OF MARCH 23, 1970, WAS TO THE EFFECT THAT, IN VIEW OF CERTAIN DECISIONS RENDERED BY THE COURT OF CLAIMS AND INFORMATION RECEIVED FROM THE DEPARTMENT OF JUSTICE, WE HAD CONCLUDED THAT WHERE A STATUTE AUTHORIZES COMPUTATION OF THE RETIRED PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED SERVICE ON THE BASIS OF THE PAY OF THE GRADE IN WHICH HE HAD SERVED SATISFACTORILY AND WHICH IS HIGHER THAN THE PAY OF THE GRADE ON WHICH HE OTHERWISE WOULD BE ENTITLED TO COMPUTE HIS RETIRED PAY, WE WILL AUTHORIZE PAYMENT OF RETIRED PAY BASED ON THE PAY OF THE HIGHER GRADE IN WHICH THE INDIVIDUAL HAD SERVED SATISFACTORILY, WITHOUT REGARD TO WHETHER THAT GRADE WAS A TEMPORARY OR PERMANENT GRADE, EVEN THOUGH THE ARMED SERVICE IN WHICH HE HELD THAT HIGHER GRADE IS NOT THE SERVICE IN WHICH HE RETIRED. WE INDICATED, HOWEVER, THAT SUCH AUTHORIZATION IS SUBJECT TO (1) THE APPLICATION OF THE STATUTE OF LIMITATIONS (31 U.S.C. 71A), TO THE PAYMENT OF RETROACTIVE RETIRED PAY, AND (2) ANY APPLICABLE STATUTORY REQUIREMENT FOR SECRETARIAL DETERMINATION OF SATISFACTORY SERVICE IN THE HIGHER GRADE.

THE ASSISTANT SECRETARY DIRECTS OUR ATTENTION TO THE FACT THAT WHILE THE LANGUAGE OF SECTION 3963(A), TITLE 10, U.S.C. - RELATING TO THE PAYMENT OF RETIRED PAY TO ARMY OFFICERS BASED ON THE HIGHEST GRADE IN WHICH THEY SERVED SATISFACTORILY - SEEMS TO REQUIRE THAT THE QUALIFYING SERVICE BE IN THE ARMY, THE EQUIVALENT SECTIONS OF TITLE 10, U.S. CODE, APPLICABLE TO COMMISSIONED OFFICERS OF THE U.S. NAVY AND U.S. AIR FORCE (SECTIONS 6151 AND 8963, RESPECTIVELY), DO NOT INCLUDE A SIMILAR LIMITATION. IT IS POINTED OUT THAT THE LANGUAGE OF SECTION 3963 (A) IS NOT MENTIONED IN OUR DECISION OF MARCH 23, 1970, AS LIMITING IN ANY WAY THE AUTHORIZATION CONVEYED THEREIN AND, AS A CONSEQUENCE, DOUBT IS EXPRESSED AS TO WHETHER THAT DECISION IS APPLICABLE TO ARMY OFFICERS WHOSE RETIRED GRADE ENTITLEMENT MUST BE ESTABLISHED UNDER SECTION 3963(A) BUT WHOSE HIGHER GRADE WAS HELD IN ANOTHER BRANCH OF THE ARMED SERVICES. HENCE, A DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS.

A. MAY A MEMBER OF THE ARMY WHO HAS SERVED ON ACTIVE DUTY IN ANOTHER ARMED SERVICE OF THE UNITED STATES IN A GRADE HIGHER THAN HIS HIGHEST ARMY ACTIVE DUTY GRADE BE PLACED ON THE APPROPRIATE ARMY RETIRED LIST IN SUCH HIGHER GRADE (UNDER 10 U.S.C. 3963(A)) AND RECEIVE THE PAY OF THAT GRADE, SUBJECT TO SECRETARIAL DETERMINATION AS TO SATISFACTORY SERVICE WHERE SUCH DETERMINATION IS REQUIRED BY STATUTE?

B. IF THE ANSWER TO QUESTION A IS AFFIRMATIVE, MAY A RETIRED MEMBER OF THE ARMY WHO, PRIOR TO HIS RETIREMENT, HAD SERVED ON ACTIVE DUTY IN ANOTHER ARMED SERVICE OF THE UNITED STATES IN A GRADE HIGHER THAN HIS HIGHEST ARMY ACTIVE DUTY GRADE BE ADVANCED ON THE ARMY RETIRED LIST TO SUCH HIGHER GRADE (UNDER 10 U.S.C. 3963(A)) AND RECEIVE THE RETIRED PAY OF THAT GRADE, SUBJECT TO SECRETARIAL DETERMINATION AS TO SATISFACTORY SERVICE WHERE SUCH DETERMINATION IS REQUIRED BY STATUTE AND SUBJECT TO THE STATUTE OF LIMITATIONS ON RETROACTIVE PAY (ACT OF 9 OCTOBER 1940, 31 U.S.C. 71A)?

C. MAY THE SECRETARY OF THE ARMY MAKE ADMINISTRATIVE SETTLEMENT OF CLAIMS FOR RETROACTIVE PAY, BASED ON ADVANCEMENT RETROACTIVELY ON APPROPRIATE ARMY RETIRED LIST TO HIGHER GRADES IN WHICH SUCH MEMBERS PREVIOUSLY SERVED ON ACTIVE DUTY IN ANOTHER ARMED SERVICE OF THE UNITED STATES, WITHOUT REFERRAL TO THE GENERAL ACCOUNTING OFFICE, EXCEPT FOR DOUBTFUL CLAIMS OR CLAIMS BARRED BY THE ACT OF 9 OCTOBER 1940, 31 U.S.C. 71A?

BOTH SECTION 3963(A) OF TITLE 10, U.S. CODE, WHICH CONTAINS THE LANGUAGE "IN THE ARMY" WHICH GIVES RISE TO THE PRESENT QUESTIONS, AND SECTION 8963(A) OF TITLE 10, U.S. CODE, WHICH DOES NOT CONTAIN SIMILAR LANGUAGE FOR AIR FORCE COMMISSIONED OFFICERS, WERE DERIVED FROM SECTION 203(A) OF THE ACT OF JUNE 29, 1948, CH. 709, 62 STAT. 1085, 10 U.S.C. 1002 (1952 ED.), WHICH PROVIDED IN PERTINENT PART:

EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST *** GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY *** AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE ***

THE ABOVE-QUOTED SECTION WAS REPEALED BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 644, 678, AND WAS REENACTED BY THAT ACT AS 10 U.S.C. 3963(A) AND 8963(A). AT THAT TIME THE WORDS "IN THE ARMY" WERE INSERTED IN BOTH SECTIONS. WHILE BOTH OF THOSE SECTIONS WERE AMENDED IN 1958 BY PUBLIC LAW 85-861, THOSE WORDS WERE OMITTED ONLY FROM SECTION 8963(A). HOWEVER, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF EITHER THE 1956 ACT OR THE 1958 AMENDMENTS TO THAT ACT WHICH EVIDENCES AN INTENT TO GRANT AIR FORCE COMMISSIONED OFFICERS BROADER RIGHTS UNDER SECTION 8963(A) UPON RETIREMENT THAN WOULD ACCRUE TO THEIR ARMY COUNTERPARTS UNDER SECTION 3963(A). WHILE THE WORDS "IN THE ARMY" CONTAINED IN SECTION 3963(A) MAY HAVE FURNISHED SOME BASIS FOR DOUBT AS TO THE APPLICABILITY OF OUR DECISION OF MARCH 23, 1970, TO ARMY OFFICERS, IT WAS NOT OUR INTENTION TO EXCLUDE SUCH OFFICERS (RETIRED UNDER SECTION 3963(A)) FROM THE BROAD RULE STATED IN THAT DECISION.

ACCORDINGLY, THE FIRST TWO QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE. CF. SATTERWHITE V UNITED STATES, 123 CT. CL. 342 (1952).

AS TO THE THIRD QUESTION, AUTHORITY TO MAKE DETERMINATIONS UNDER SECTION 3963(A) AND OTHER SIMILAR SECTIONS OF TITLE 10, U.S. CODE, OF THE HIGHEST GRADE SATISFACTORILY SERVED ON ACTIVE DUTY, IS VESTED BY LAW IN THE SECRETARY OF THE SERVICE CONCERNED. A RETROACTIVE ADVANCEMENT ON THE RETIRED LIST BASED ON SUCH SECRETARIAL DETERMINATION WOULD SEEM TO CONSTITUTE ACTION IN THE NATURE OF A CORRECTION OF SUCH RETIRED MEMBER'S PAY RECORDS. IF SUCH DETERMINATION IS MADE, THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE ADMINISTRATIVE SETTLEMENT OF RETROACTIVE RETIRED PAY IN THOSE CASES WHICH ARE NOT BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, AND WHICH ARE NOT OF OTHERWISE DOUBTFUL VALIDITY.

WITH RESPECT TO THE APPLICATION OF THE 1940 BARRING ACT TO THE PAYMENT OF RETROACTIVE RETIRED PAY IN INDIVIDUAL CASES, IT IS OUR VIEW THAT A RETIRED MEMBER DOES NOT BECOME ENTITLED TO RETIRED PAY BASED ON THE HIGHEST GRADE UNTIL A DETERMINATION HAS BEEN MADE BY THE APPROPRIATE SECRETARY THAT SERVICE IN THAT GRADE WAS SATISFACTORILY PERFORMED. THUS THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THE 1940 ACT BEGINS TO RUN AGAINST A RETIRED MEMBER ONLY AFTER A FINAL ADMINISTRATIVE DETERMINATION REGARDING SUCH SATISFACTORY SERVICE HAS BEEN MADE. SEE O'KEEFE V UNITED STATES, 174 CT. CL. 53E, FOOTNOTE 8, ON PAGE 550 (1966).