B-168412, FEB. 12, 1970

B-168412, FEB. 12, 1970

MILITARY--RETIRED PAY--ENLISTED MEMBER DECISION SUSTAINING DISALLOWANCE OF CLAIM OF AIR FORCE MEMBER FOR DIFFERENCE BETWEEN RETIRED PAY OF CHIEF WARRANT OFFICER, W-4, AND THAT OF SENIOR MASTER SERGEANT, E-8. REGULAR ENLISTED MEMBER OF AIR FORCE WITH OVER 22 YEARS OF ACTIVE SERVICE WAS RETIRED UNDER 10 U.S.C. 8914 UNDER WHICH HE WAS ENTITLED TO HAVE RETIRED PAY COMPUTED UNDER FORMULA C IN 10 U.S.C. 8991. RETIREMENT ORDERS WHICH MERELY SHOW THAT MEMBER HELD RESERVE GRADE OF CHIEF WARRANT OFFICER, W-4, AT TIME OF RETIREMENT DO NOT PROVIDE ANY BASIS FOR COMPUTATION OF RETIRED PAY ON SUCH GRADE.

TO SENIOR MASTER SERGEANT CHARLES E. NEUBAUM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 27, 1969, IN EFFECT REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RETIRED PAY OF A CHIEF WARRANT OFFICER, W-4, AND THAT OF SENIOR MASTER SERGEANT, E-8, EFFECTIVE FROM THE DATE OF YOUR RETIREMENT, SEPTEMBER 1, 1968.

IN DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY, OUR CLAIMS DIVISION, IN SETTLEMENT DATED OCTOBER 21, 1969, ADVISED YOU, IN SUBSTANCE, THAT YOU WERE NOT ELIGIBLE FOR RETIREMENT AS A WARRANT OFFICER (W-4) UNDER 10 U.S.C. 1293 SINCE YOU DID NOT HAVE THE REQUISITE YEARS OF ACTIVE SERVICE AS A WARRANT OR COMMISSIONED OFFICER AS PRESCRIBED IN THE CITED AIR FORCE MANUAL 35-7. YOU WERE FURTHER ADVISED THAT YOUR RETIREMENT IN THE GRADE OF SENIOR MASTER SERGEANT RESULTED IN A GREATER RETIRED PAY THAN RETIREMENT IN THE ACTIVE DUTY GRADE OF WARRANT OFFICER (W-2).

YOU REFER TO THE ABOVE MENTIONED SETTLEMENT AND SAY THAT "DUE TO THE MORE FAVORABLE MULTIPLIER, I BELIEVE THAT RETIREMENT AS A WARRANT OFFICER (W-2) WOULD RESULT IN THE HIGHER RETIRED PAY." YOU ASK, "UNDER WHAT LAW WAS I RETIRED AS A WARRANT OFFICER, W-4, CONCURRENT WITH MY ENLISTED RETIREMENT?" YOU EXPRESS THE VIEW THAT THE ONLY LAW APPLICABLE UNDER WHICH YOU COULD RETIRE WAS 10 U.S.C. 1293.

THE RECORDS BEFORE US SHOW THAT BY SPECIAL ORDER NO. AC-7819 DATED MARCH 18, 1968, YOU WERE RELIEVED FROM ACTIVE DUTY ON AUGUST 31, 1968, AND RETIRED EFFECTIVE SEPTEMBER 1, 1968, UNDER THE PROVISIONS OF 10 U.S.C. 8914 IN THE GRADE OF SENIOR MASTER SERGEANT (E-8). IT IS SHOWN IN THE ORDER THAT YOU WERE CREDITED WITH 22 YEARS, 5 MONTHS AND 22 DAYS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES AND OVER 30 YEARS' SERVICE FOR BASIC PAY PURPOSES. THE ORDER FURTHER SHOWS THAT THE HIGHEST GRADE HELD BY YOU WHILE ON ACTIVE DUTY WAS CHIEF WARRANT OFFICER, W-2, AND THAT YOU HELD THE RESERVE GRADE OF CHIEF WARRANT OFFICER, W-4. CONTRARY TO YOUR APPARENT BELIEF, WE SEE NO INDICATION IN THAT ORDER THAT YOU WERE CONCURRENTLY RETIRED AS AN ENLISTED MAN (SENIOR MASTER SERGEANT, E-8) AND AS A WARRANT OFFICER, W-4. RATHER, YOUR RETIREMENT ORDERS MERELY SHOW THE RESERVE GRADE OF CHIEF WARRANT OFFICER, W-4, WHICH YOU HELD AT THE TIME OF RETIREMENT.

A STATEMENT OF YOUR MILITARY SERVICE SHOWS, AMONG OTHER THINGS, THAT YOU SERVED ON ACTIVE DUTY AS A WARRANT OFFICER FROM SEPTEMBER 19, 1942, TO APRIL 26, 1946, A PERIOD OF 3 YEARS, 7 MONTHS, AND 8 DAYS. THE STATEMENT ALSO SHOWS THAT, EXCEPT FOR THE PERIOD MARCH 4 TO 19, 1953, YOU SERVED CONTINUOUSLY ON ACTIVE DUTY AS AN ENLISTED MAN FROM JULY 23, 1951, TO AUGUST 31, 1968. THE STATEMENT FURTHER SHOWS THAT YOU RECEIVED THE FOLLOWING WARRANT OFFICER AIR FORCE RESERVE APPOINTMENTS: WOJG W1, AUGUST 27, 1953; CWO W2, AUGUST 9, 1956; CWO W3, NOVEMBER 22, 1961; AND CWO W4, NOVEMBER 22, 1967.

UNDER SECTION 1293 OF TITLE 10, U.S. CODE, THE LAW UNDER WHICH YOU FEEL YOU SHOULD HAVE BEEN RETIRED, THE SECRETARY OF THE AIR FORCE MAY, UPON THE WARRANT OFFICER'S REQUEST, RETIRE A WARRANT OFFICER WHO HAS AT LEAST 20 YEARS OF ACTIVE SERVICE AS THERE INDICATED. REGULATIONS IMPLEMENTING THAT LAW PROVIDE IN AIR FORCE MANUAL 35-7, TABLE 3-1, RULE 4, THAT A WARRANT OFFICER WHO HAS AT LEAST 20 YEARS' ACTIVE SERVICE WITH AT LEAST 5 YEARS' ACTIVE WARRANT AND/OR COMMISSIONED SERVICE, MAY BE RETIRED UNDER SECTION 1293 ON APPROVAL BY THE SECRETARY OF THE AIR FORCE. RULE 7 OF THE SAME TABLE PROVIDES THAT A REGULAR AIRMAN WHO HOLDS A VALID APPOINTMENT AS A RESERVE WARRANT OFFICER AND WHO HAS ACTIVE WARRANT AND/OR COMMISSIONED SERVICE AS PRESCRIBED IN RULE 4, ALSO MAY BE RETIRED UNDER SECTION 1293. SINCE YOU DID NOT MEET THE 5-YEAR ACTIVE DUTY REQUIREMENT AS A WARRANT OR COMMISSIONED OFFICER, YOU DID NOT MEET THE CONDITIONS OF THOSE REGULATIONS.

IF YOU HAD BEEN ELIGIBLE FOR RETIREMENT UNDER SECTION 1293, YOUR RETIRED PAY WOULD HAVE BEEN COMPUTED UNDER FORMULA 4 OF SECTION 1401, TITLE 10, BY TAKING THE MONTHLY BASIC PAY TO WHICH YOU WOULD HAVE BEEN ENTITLED IF YOU HAD SERVED ON ACTIVE DUTY IN YOUR RETIRED GRADE ON DAY BEFORE RETIREMENT, OR IF THE PAY OF THAT GRADE IS LESS THAN THE PAY OF ANY WARRANT GRADE SATISFACTORILY HELD BY YOU ON ACTIVE DUTY, THE MONTHLY BASIC PAY OF THAT WARRANT OFFICER GRADE, MULTIPLIED BY 2-1/2 PERCENT FOR EACH OF THE YEARS OF SERVICE THAT MAY BE CREDITED TO YOU UNDER SECTION 1405, WHICH IN YOUR CASE WOULD HAVE INCLUDED ACTIVE AND INACTIVE SERVICE.

UNDER THE PROVISIONS OF 10 U.S.C. 8914, THE LAW UNDER WHICH YOU WERE RETIRED, A REGULAR ENLISTED MEMBER OF THE AIR FORCE WITH AT LEAST 20, BUT LESS THAN 30, YEARS OF ACTIVE SERVICE MAY, UPON HIS REQUEST, BE RETIRED. SINCE YOU HAD OVER 22 YEARS OF ACTIVE SERVICE ON AUGUST 31, 1968, SECTION 8914 WAS THE APPLICABLE PROVISION OF LAW UNDER WHICH YOU WERE ELIGIBLE TO RETIRE. A MEMBER RETIRED UNDER SECTION 8914 IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA C, 10 U.S.C. 8991, BY TAKING THE MONTHLY BASIC PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE HE RETIRED MULTIPLIED BY 2-1/2 PERCENT FOR EACH OF HIS YEARS OF ACTIVE SERVICE AS PRESCRIBED IN SECTION 8925.

SINCE ON AUGUST 31, 1968, YOUR MONTHLY RATE OF ACTIVE DUTY PAY AS A SENIOR MASTER SERGEANT, E-8, WITH OVER 30 YEARS OF SERVICE WAS $663, YOU WERE ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED AT55 PERCENT (22 YEARS ACTIVE SERVICE TIMES 2-1/2) OF THAT AMOUNT OR $364.65. WHILE IT APPEARS THAT IF YOU HAD BEEN RETIRED AS A CHIEF WARRANT OFFICER, W-2, UNDER 10 U.S.C. 1293, YOUR RETIRED PAY WOULD HAVE BEEN GREATER, YOU WERE NOT, AS POINTED OUT ABOVE, ELIGIBLE TO BE RETIRED UNDER SECTION 1293.

FOR THE REASONS INDICATED ABOVE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.