B-156576, JUL 22, 1965

B-156576, JUL 22, 1965

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL P. M. CALLINAN, FC; DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 22, 1965, WITH ENCLOSURES, FORWARDED HERE BY FIRST INDORSEMENT DATED APRIL 12, 1965, OF THE OFFICE, CHIEF OF FINANCE, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $30.91 IN FAVOR OF CHIEF WARRANT OFFICER (W-2) HARRY O. WALSH, SR., W 907 041, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY BASED ON THE GRADE OF WARRANT OFFICER, JUNIOR GRADE (W-1), AND THE GRADE OF CHIEF WARRANT OFFICER (W-2) FOR THE PERIOD JANUARY 1 THROUGH 31, 1965. YOUR REQUEST HAS BEEN ALLOCATED D. O. NUMBER A-840 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 73, SPECIAL ORDERS NO. 245, DATED DECEMBER 16, 1953, ISSUED AT HEADQUARTERS, DEPARTMENT OF THE ARMY, THE TEMPORARY APPOINTMENT OF HARRY O. WALSH, SR., AS CHIEF WARRANT OFFICER, ARMY OF THE UNITED STATES, WAS TERMINATED EFFECTIVE DECEMBER 31, 1953, AND HE WAS RETIRED FROM ACTIVE SERVICE AS WARRANT OFFICER, JUNIOR GRADE (W-1), UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 21, 1941, CH. 384, 55 STAT. 653, AS AMENDED BY SECTION 203(C) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1085, 10 U.S.C. 594 (1952 ED.). AT THE TIME OF HIS RETIREMENT HE WAS CREDITED WITH 21 YEARS, 1 MONTH, AND 15 DAYS' TOTAL QUALIFYING SERVICE FOR RETIREMENT AND ACTUAL ACTIVE SERVICE AND 25 YEARS, 7 MONTHS, AND 0 DAYS' TOTAL SERVICE FOR BASIC PAY PURPOSES. BY PARAGRAPH 151, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 93, DATED APRIL 13, 1964, AS AMENDED BY PARAGRAPH 165, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 252, DATED OCTOBER 7, 1964, WARRANT OFFICER JUNIOR GRADE WALSH WAS ADVANCED TO THE GRADE OF CHIEF WARRANT OFFICER (W-2) ON THE U. S. ARMY RETIRED LIST EFFECTIVE NOVEMBER 16, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 3964.

YOU SAY THAT FROM JANUARY 1, 1954, THROUGH APRIL 30, 1964, WARRANT OFFICER WALSH'S RETIRED PAY WAS PAID ON THE BASIS OF 52 1/2 PERCENT OF THE BASIC PAY OF A WARRANT OFFICER, JUNIOR GRADE (W-1), AND CHIEF WARRANT OFFICER (W-2) WITH OVER 22 BUT LESS THAN 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES USING HIS ACTUAL ACTIVE SERVICE OF 21 YEARS, 1 MONTH, AND 15 DAYS AS THE PERCENTAGE MULTIPLIER. BY SETTLEMENT OF OUR CLAIMS DIVISION, DATED JUNE 9, 1964, THERE WAS ALLOWED $5,887.93, REPRESENTING DIFFERENCE BETWEEN THE AMOUNT PAID AND RETIRED PAY COMPUTED ON THE BASIS OF 65 PERCENT OF THE GRADE OF W-1 FROM MAY 5, 1954, THROUGH NOVEMBER 15, 1962, AND 65 PERCENT OF THE GRADE OF W-2 FROM NOVEMBER 16, 1962, THROUGH APRIL 30, 1964, BASED ON OVER 22 BUT LESS THAN 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES. PURSUANT TO INFORMAL INQUIRY DATED AUGUST 21, 1964, EXCEPTION WAS TAKEN TO THE PAYMENT OF RETIRED PAY BASED ON 65 PERCENT OF THE GRADE OF CHIEF WARRANT OFFICER (W-2) UPON THE MEMBER'S ADVANCEMENT UNDER THE PROVISIONS OF 10 U.S.C. 3964, SINCE UNDER THE PROVISIONS OF 10 U.S.C. 3992 AND 3925 THE RETIRED PAY OF MEMBERS SO ADVANCED MAY NOT BE RECOMPUTED USING INACTIVE SERVICE IN THE PERCENTAGE MULTIPLIER.

YOU EXPRESS DOUBT AS TO THE PROPRIETY OF THE EXCEPTION AND POSE THE FOLLOWING QUESTIONS:

A. SHOULD HIS RETIRED PAY BE RECOMPUTED, EFFECTIVE 16 NOVEMBER 1962, BASED ON THE GRADE OF CHIEF WARRANT OFFICER (W-2), USING 65 PERCENT AS THE MULTIPLIER, BASED ON HIS TOTAL SERVICE CREDITABLE UNDER TITLE 10, U.S.C. SECTION 1405? OR,

B. IF THE ANSWER TO QUESTION A. IS NEGATIVE, SHOULD HIS RETIRED PAY BE RECOMPUTED, EFFECTIVE 16 NOVEMBER 1962, BASED ON THE GRADE OF CHIEF WARRANT OFFICER (W-2), USING 52 1/2 PERCENT AS THE MULTIPLIER, BASED ON HIS TOTAL ACTUAL ACTIVE SERVICE? OR,

C. IF THE ANSWERS TO QUESTIONS A. AND B. ARE NEGATIVE, SHOULD THE COMPUTATION REMAIN AS IT WAS PRIOR TO 16 NOVEMBER 1962, BASED ON THE GRADE OF W-1, USING 65 PERCENT AS THE MULTIPLIER, BASED ON HIS TOTAL SERVICE CREDITABLE FOR BASIC PAY PURPOSES.

THE INDORSEMENT OF THE OFFICE, CHIEF OF FINANCE, ALSO REQUESTS THAT OUR DECISION INCLUDE INFORMATION AS TO WHETHER THE PROVISIONS OF 10 U.S.C. 3925 ARE APPLICABLE IN RECOMPUTING RETIRED PAY OF A MEMBER ADVANCED UNDER 10 U.S.C. 3964 FROM ONE WARRANT OFFICER GRADE TO ANOTHER WARRANT OFFICER GRADE.

UNDER THE PROVISIONS OF 10 U.S.C. 594 (1952 ED.), THE APPLICABLE LAW IN EFFECT AT THE TIME WARRANT OFFICER WALSH RETIRED, HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED "AT THE RATE OF 2 1/2 PER CENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY *** MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITED FOR LONGEVITY PAY PURPOSES ***." HOWEVER, ON NOVEMBER 16, 1962, WHEN HE ATTAINED 30 YEARS OF SERVICE AND HE WAS ENTITLED UNDER 10 U.S.C. 3964 "TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY," HE WAS ENTITLED UNDER 10 U.S.C. 3992 TO RECOMPUTATION OF HIS RETIRED PAY TO REFLECT SUCH ADVANCEMENT PURSUANT TO 10 U.S.C. 3964, IT BEING PROVIDED THAT A MEMBER OF THE ARMY WHO IS ADVANCED ON THE RETIRED LIST UNDER SECTION 3964 IS ENTITLED TO RECOMPUTE HIS RETIRED PAY BY MULTIPLYING THE MONTHLY BASIC PAY OF THE GRADE TO WHICH ADVANCED BY 2 1/2 PERCENT TIMES THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 3925 NOT TO EXCEED 75 PERCENT.

YOU SUGGEST THAT, SINCE 10 U.S.C. 3925 REFERS SPECIFICALLY TO REGULAR ENLISTED MEMBERS, 10 U.S.C. 3992 WOULD NOT APPLY IN THIS CASE INVOLVING A WARRANT OFFICER. HOWEVER, SINCE 10 U.S.C. 3964 APPLIES TO WARRANT OFFICERS AS WELL AS ENLISTED MEN AND REPLACES ALL PREVIOUS LEGISLATION RELATING TO THEIR ADVANCEMENT ON THE RETIRED LIST AND SINCE RECOMPUTATION OF THE RETIRED PAY OF MEMBERS SO ADVANCED IS AUTHORIZED ONLY AS PROVIDED IN 10 U.S.C. 3992, THE PROVISIONS OF 10 U.S.C. 3925 ARE APPLICABLE TO WARRANT OFFICERS SO ADVANCED AND AUTHORIZES THE USE OF ONLY ACTIVE SERVICE IN THE DETERMINATION OF THE PERCENTAGE MULTIPLIER TO BE USED IN COMPUTING RETIRED PAY FOR THE ADVANCED GRADE.

YOU ALSO SUGGEST THAT RECOMPUTATION OF WARRANT OFFICER WALSH'S RETIRED PAY SHOULD BE MADE BY USING THE SERVICE CREDITABLE UNDER 10 U.S.C. 1405 SO AS TO GIVE EFFECT TO THE PROVISIONS OF 10 U.S.C. 1401 ENTITLING A PERSON TO BE PAID RETIRED PAY UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

WE SAID IN B-155940 OF FEBRUARY 23, 1965, 44 COMP. GEN. , THAT:

"AN ADVANCEMENT UNDER SECTION 3964 CREATES ENTITLEMENT TO THE RECOMPUTATION PROVIDED IN SECTION 3992. SINCE THE RECOMPUTATION IS NOT AUTHORIZED TO BE MADE UNDER ANY FORMULA CONTAINED IN SECTION 3991 OR IN SECTION 1401, THE PROVISION IN SECTION 3991 *** AUTHORIZING PAYMENT UNDER THE MOST FAVORABLE FORMULA, DOES NOT SAVE TO THE MEMBER HERE INVOLVED THE RIGHT TO CONTINUE RECEIVING RETIRED PAY UNDER HIS ORIGINAL ENTITLEMENT."

THAT IS TO SAY, THE FORMULAS CONTAINED IN 10 U.S.C. 1401 AND 3991 APPLY ONLY IN CASES OF ORIGINAL RETIREMENT AND THE RECOMPUTATION OF THE RETIRED PAY OF WARRANT OFFICERS AND ENLISTED MEN ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964 MUST BE IN ACCORDANCE WITH THE FORMULA CONTAINED IN 10 U.S.C. 3992.

WE ALSO HELD IN B-155940, DATED FEBRUARY 23, 1965, THAT SECTION 3964, 10 U. S. CODE, DOES NOT IMPOSE AN ABSOLUTE REQUIREMENT FOR ADVANCEMENT, BUT MERELY PROVIDES THAT THE MEMBER CONCERNED "IS ENTITLED" TO BE ADVANCED UNDER THE CIRCUMSTANCES THERE PRESCRIBED. THUS, WHERE SUCH ADVANCEMENT AND RECOMPUTATION RESULTS IN A REDUCTION OF RETIRED PAY AND IS EFFECTED SOLELY ON THE BASIS OF ADMINISTRATIVE DETERMINATION WITHOUT REGARD TO THE MEMBER'S WISHES, THE MEMBER SHOULD BE ALLOWED (EVEN THOUGH 10 U.S.C. 3965 IS NOT APPLICABLE) AN OPPORTUNITY TO ELECT WHETHER HE WILL ACCEPT THE ADVANCEMENT AND REDUCTION IN PAY OR REMAIN IN THE GRADE IN WHICH RETIRED AND CONTINUE RECEIVING THE BENEFITS OF SUCH ORIGINAL RETIREMENT.

SINCE THE 65 PERCENT MENTIONED IN QUESTION A INCLUDES CREDIT FOR OTHER THAN ACTIVE TIME AUTHORIZED BY 10 U.S.C. 3992 AND 3925 THAT PERCENTAGE FIGURE IS UNAUTHORIZED AND QUESTION A IS ANSWERED IN THE NEGATIVE. QUESTIONS B AND C ARE ANSWERED BY SAYING THAT WARRANT OFFICER WALSH IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER EITHER ONE OR THE OTHER METHODS SET FORTH IN THOSE QUESTIONS AS CHOSEN BY HIM.

IT SHOULD BE NOTED THAT COMMENCING NOVEMBER 16, 1962, AND UNTIL THE EFFECTIVE DATE OF THE UNIFORMED SERVICES PAY ACT OF 1963, CHIEF WARRANT OFFICER WALSH'S RETIRED PAY, UNDER THE PROVISIONS OF 10 U.S.C. 3992, IS AUTHORIZED TO BE COMPUTED BY USING THE BASIC PAY OF A CHIEF WARRANT OFFICER W-2 "APPLICABLE ON DATE OF RETIREMENT." WE KNOW OF NO AUTHORITY TO INCLUDE INCREASES IN PAY UNDER THE 1955 AND 1958 MILITARY PAY ACTS IN COMPUTING HIS RETIRED PAY AS OF NOVEMBER 16, 1962. IN OTHER WORDS, AFTER HIS ADVANCEMENT ON THE RETIRED LIST ON NOVEMBER 16, 1962, AND PRIOR TO OCTOBER 1, 1963, HIS RETIRED PAY AS A CHIEF WARRANT OFFICER W-2 WAS 52 1/2 PERCENT OF $332.90 OR $174.77 RATHER THAN $216.48 AS SUGGESTED IN PARAGRAPH 15 OF YOUR LETTER. WITH RESPECT TO HIS RETIRED PAY EFFECTIVE OCTOBER 1, 1963, SEE SECTION 5(C) OF THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 213, PUB. L. 88-132.

THERE BEING NO AUTHORITY FOR PAYMENT OF THE VOUCHER ENCLOSED WITH YOUR LETTER, IT WILL BE RETAINED HERE.