B-153784, MAY 25, 1964, 43 COMP. GEN. 742

B-153784, MAY 25, 1964, 43 COMP. GEN. 742

PAY - SERVICE CREDITS - RETENTION AFTER MANDATORY RETIREMENT AN ARMY OFFICER WHO AFTER HE MET THE MANDATORY RETIREMENT PROVISIONS OF 10 U.S.C. 3916 WAS RETAINED ON ACTIVE DUTY FOR PHYSICAL EVALUATION AND SUBSEQUENTLY PLACED ON THE PERMANENT DISABILITY RETIRED LIST UNDER 10 U.S.C. 1201 AND 1372 WITH 30 PERCENT DISABILITY IS NOT ENTITLED FOR BASIC PAY PURPOSES TO CREDIT FOR THE PERIOD OF SERVICE AFTER THE MANDATORY RETIREMENT DATE IN THE ABSENCE OF A PROVISION EXEMPTING OFFICERS FOUND TO BE PHYSICALLY DISQUALIFIED FOR FURTHER ACTIVE DUTY FROM THE POSITIVE RETIREMENT REQUIREMENT OF SECTION 3916 (A), AND THE FACT THAT THE ARMY FAILED TO ACCOMPLISH THE OFFICER'S RETIREMENT ON THE DATE REQUIRED BY LAW DOES NOT ADD TO HIS RIGHTS IN COMPUTING THE AMOUNT OF RETIRED PAY TO WHICH HE IS ENTITLED.

TO COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, MAY 25, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 6, 1964, TRANSMITTED HERE BY THE OFFICE, CHIEF OF FINANCE WITH FIRST INDORSEMENT DATED MARCH 20, 1964, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $597.67 STATED IN FAVOR OF LIEUTENANT COLONEL ARTHUR D. SULLIVAN, O 30 974, RETIRED, REPRESENTING THE DIFFERENCE IN THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER 18 YEARS AND A LIEUTENANT COLONEL WITH OVER 20 YEARS OF SERVICE FOR BASIC PAY PURPOSES FOR THE PERIOD NOVEMBER 1, 1962, THROUGH JANUARY 31, 1964, AND REFUND OF THE DIFFERENCE IN COST OF A SURVIVORSHIP ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR REQUEST WAS ASSIGNED NO. DO-A-752 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT COLONEL SULLIVAN MET THE STATUTORY REQUIREMENT FOR RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 3916 ON SEPTEMBER 18, 1962; THAT HE WAS RETAINED IN AN ACTIVE STATUS BEYOND THAT DATE FOR PHYSICAL EVALUATION AND THAT HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST NOVEMBER 1, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 1201 WITH 30 PERCENT DISABILITY. ALL SERVICE SUBSEQUENT TO THE MANDATORY RETIREMENT DATE WAS EXCLUDED IN THE DETERMINATION OF THE OFFICER'S RETIRED PAY PURSUANT TO OUR DECISION OF JULY 7, 1958, B-135847, 38 COMP. GEN. 5, WHEREIN IT WAS HELD, QUOTING THE SYLLABUS, THAT:

SINCE THE RETIREMENT OF OFFICERS OF THE UNIFORMED SERVICES WHO COMPLETE 28 YEARS OF SERVICE COMPUTED AS PRESCRIBED IN 10 U.S.C. 8927 (A) IS MANDATORY UNDER 10 U.S.C. 8916 ON THE 30TH DAY AFTER COMPLETION OF THE SERVICE, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A, WHICH MAKES THE RETIREMENT EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE AND WHICH REQUIRES THAT RETIRED PAY BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED, THERE IS NO AUTHORITY FOR THE CREDIT OF SERVICE PERFORMED AFTER THE MANDATORY RETIREMENT DATE FOR LONGEVITY PAY PURPOSES.

IN AN OPINION OF THE JUDGE ADVOCATE GENERAL DATED JULY 24, 1963, RELATING TO THE CASE OF COLONEL ARTHUR E. CONN, INVOLVING FACTS SIMILAR TO THOSE HERE INVOLVED, IT WAS STATED THAT, SINCE THE OFFICER WAS RETAINED ON ACTIVE DUTY AFTER THE MANDATORY DATE OF RETIREMENT PRESCRIBED IN THE PROVISIONS OF LAW THERE APPLICABLE (10 U.S.C. 3921) AND WAS LATER RETIRED UNDER 10 U.S.C. 1201, OUR DECISION OF JULY 7, 1958, HAD NO APPLICATION. YOU REQUEST OUR DECISION RELATIVE TO COUNTING OF SERVICE AFTER THE MANDATORY DATE OF RETIREMENT IN THE COMPUTATION OF RETIRED PAY.

THE PAPERS FORWARDED WITH YOUR LETTER DISCLOSE THAT COLONEL SULLIVAN ACCEPTED AN APPOINTMENT AS FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES ON OCTOBER 24, 1942. ON JULY 11, 1946, HE WAS APPOINTED A CAPTAIN IN THE REGULAR ARMY UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, CH. 601, 59 STAT. 633, 10 U.S.C. 506D (1952 ED.), AT WHICH TIME HE WAS CREDITED CONSTRUCTIVE SERVICE FOR THE PURPOSE OF DETERMINING HIS GRADE AND ELIGIBILITY FOR PROMOTION. BECAUSE OF THIS CONSTRUCTIVE SERVICE CREDIT, THE OFFICER WAS DUE TO BE MANDATORIALLY RETIRED UNDER 10 U.S.C. 3916 ON SEPTEMBER 18, 1962, THE 30TH DAY AFTER HE COMPLETED 28 YEARS OF SERVICE COMPUTED UNDER 10 U.S.C. 3927 (A). AT THAT TIME HE HAD 19 YEARS, 10 MONTHS AND 25 DAYS OF ACTIVE AND INACTIVE SERVICE FOR BASIC PAY PURPOSES.

APPARENTLY WHILE UNDERGOING A FINAL-TYPE PHYSICAL EXAMINATION A CONDITION WAS DISCOVERED WHICH NECESSITATED FURTHER STUDY AND EVALUATION. COLONEL SULLIVAN WAS ASSIGNED TO THE MEDICAL HOLDING COMPANY, WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C., AND WAS RETAINED BEYOND HIS MANDATORY RETIREMENT DATE. BY PARAGRAPH 67, SPECIAL ORDERS NO. 259, DATED OCTOBER 24, 1962, ISSUED AT HEADQUARTERS, DEPARTMENT OF THE ARMY, HE PURPORTEDLY WAS RETIRED FROM ACTIVE SERVICE BY REASON OF 30 PERCENT PHYSICAL DISABILITY, EFFECTIVE NOVEMBER 1, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1372.

IF THE OFFICE MAY BE CREDITED WITH SERVICE UP TO AND INCLUDING OCTOBER 31, 1962, IT APPEARS THAT HIS RETIRED PAY AND SURVIVORSHIP ANNUITY DEDUCTION SHOULD BE COMPUTED ON THE BASIS OF THE PAY OF AN OFFICE WITH OVER 20 YEARS' SERVICE. YOU REPORT THAT ALL SERVICE AFTER SEPTEMBER 18, 1962, HAS BEEN EXCLUDED IN COMPUTING THE RETIRED PAY HE HAS RECEIVED.

SO FAR AS IS PERTINENT TO THE CASE OF COLONEL SULLIVAN 10 U.S.C. 3016 (A) PROVIDES AS FOLLOWS:

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 47A OF TITLE 5, ON THE THIRTIETH DAY AFTER HE COMPLETES 28 YEARS OF SERVICE COMPUTED UNDER 3927 (A) OF THIS TITLE.

IN THE ABSENCE OF A PROVISION EXEMPTING OFFICERS FOUND TO BE PHYSICALLY DISQUALIFIED FOR FURTHER ACTIVE DUTY, FROM THE POSITIVE REQUIREMENTS OF SECTION 3916 (A), WE FIND NO LEGAL BASIS FOR CREDITING AN OFFICER WITH ANY PERIOD OF SERVICE AFTER THE MANDATORY DATE OF HIS RETIREMENT FOR BASIC PAY PURPOSES IN COMPUTING HIS RETIRED PAY. CF. 41 COMP. GEN. 375. THE FACT THAT THE ARMY FAILED TO ACCOMPLISH HIS RETIREMENT ON THE DATE REQUIRED BY LAW WOULD NOT SEEM TO ADD TO HIS RIGHTS IN ANY WAY WITH RESPECT TO COMPUTING THE AMOUNT OF RETIRED PAY TO WHICH HE IS ENTITLED.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.