B-155458, MAR. 26, 1965, 44 COMP. GEN. 584

B-155458, MAR. 26, 1965, 44 COMP. GEN. 584

PAY - RETIRED - EFFECTIVE DATE - RATE UNDER 1963 OR 1964 ACTS - RETIREMENT DIRECTED BY PRESIDENT. PAY - RETIRED - EFFECTIVE DATE - RATE UNDER 1963 OR 1964 ACTS - FLEET RESERVISTS OFFICERS OF THE UNIFORMED SERVICES WHO ARE RETIRED UNDER 10 U.S.C. 6323 (A), WHICH PROVIDES THAT RETIREMENTS AFTER MORE THAN 20 YEARS OF ACTIVE SERVICE MAY TAKE EFFECT ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT ARE NOT SUBJECT TO THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, WHICH REQUIRE RETIREMENTS TO TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND, THEREFORE, OFFICERS RETIRED UNDER 10 U.S.C. 6323 (A) EFFECTIVE APRIL 1, 1963, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE 1963 PAY ACT, PUBLIC LAW 88-132, 77 STAT. 210, AND ALL OFFICERS RETIRED UNDER 10 U.S.C. 6323 (A) EFFECTIVE SEPTEMBER 1, 1964, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT, PUBLIC LAW 88-422, 78 STAT. 395, REGARDLESS OF THE DATE THEY COMPLETED THE MINIMUM ELIGIBILITY REQUIREMENTS FOR RETIREMENT. 43 COMP. GEN. 425; 44 ID. 373, MODIFIED. MEMBERS OF THE NAVY AND MARINE CORPS WHO, INCIDENT TO TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE EFFECTIVE SEPTEMBER 1, 1964, RECEIVED ACTIVE DUTY PAY FOR THE DATE PRIOR TO SEPTEMBER 1, 1964, ARE LIMITED UNDER 10 U.S.C. 6330, WHICH PROVIDES FOR COMPUTATION OF RETAINER PAY ON THE BASIS OF THE BASIC PAY RECEIVED AT THE TIME OF TRANSFER, TO THE RATES OF PAY IN THE 1963 PAY ACT BUT MEMBERS WHO, INCIDENT TO SUCH TRANSFERS, LAST RECEIVED ACTIVE DUTY PAY ON SEPTEMBER 1, 1964, ARE NOT REGARDED AS BECOMING MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNTIL SEPTEMBER 2, 1964, AND RETAINER PAY IS FOR COMPUTATION ON THE BASIS OF THE 1964 PAY ACT WHICH RATES WERE EFFECTIVE ON SEPTEMBER 1, 1964.

TO THE SECRETARY OF DEFENSE, MARCH 26, 1965:

REFERENCE IS MADE TO LETTER OF MARCH 5, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION CONCERNING THE PROPER BASIS FOR COMPUTING THE (1) RETIRED PAY OF CERTAIN OFFICERS OF THE NAVY AND MARINE CORPS RETIRED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6323 (A) AND (2) RETAINER PAY OF CERTAIN MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330. THE QUESTIONS UPON WHICH A DECISION IS REQUESTED AND A RELATED DISCUSSION ARE SET FORTH IN COMMITTEE ACTION NO. 360 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FIRST TWO QUESTIONS, WHICH RELATE TO RETIREMENTS UNDER 10 U.S.C. 6323 (A), ARE AS FOLLOWS:

1. ARE THE RATES OF PAY PRESCRIBED BY SECTION 1 OF THE ACT OF AUGUST 12, 1964, 78 STAT. 395, PUB.L. 88-422, APPLICABLE TO OFFICERS OF THE NAVY OR THE MARINE CORPS RETIRED UNDER 10 U.S.C. 6323 (A), EFFECTIVE SEPTEMBER 1, 1964, WHO FIRST QUALIFIED FOR RETIREMENT UNDER THAT PROVISION OF LAW PRIOR TO AUGUST 1964, AND WOULD THE RATES PRESCRIBED BY THE 1963 PAY ACT BE FOR APPLICATION TO SUCH OFFICERS WHO FIRST QUALIFIED FOR RETIREMENT UNDER THAT PROVISION OF LAW AFTER JULY 1964?

2. DOES THE DECISION OF THE COMPTROLLER GENERAL, B-155458, OF JANUARY 5, 1965, REQUIRE RECOMPUTATION IN THE CASE OF ANY OFFICER OF THE NAVY OR MARINE CORPS RETIRED UNDER 10 U.S.C. 6323 (A), EFFECTIVE APRIL 1, 1963, WHO FIRST QUALIFIED FOR RETIREMENT UNDER THAT PROVISION OF LAW AFTER FEBRUARY 1963?

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930. CH. 209, 46 STAT. 253, 5 U.S.C. 47A, PROVIDES:

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.

IN DECISION OF JANUARY 5, 1965, B-155458, 44 COMP. GEN. 373, WE HELD IN EFFECT THAT AN OFFICER OF THE NAVY OR MARINE CORPS WHO COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE AFTER JULY 1964 AND WAS RETIRED UNDER 10 U.S.C. 6323 (A) EFFECTIVE SEPTEMBER 1, 1964, WAS RETIRED ON THAT DATE BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT SO AS TO BE PRECLUDED FROM COMPUTING HIS RETIRED PAY ON THE BASIS OF A RATE OF ACTIVE DUTY PAY HIGHER THAN THE RATE OF SUCH PAY IN EFFECT PRIOR TO SEPTEMBER 1964, THAT IS, THAT SUCH OFFICERS RETIRED EFFECTIVE SEPTEMBER 1, 1964, MAY NOT COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY PRESCRIBED IN THE 1964 PAY ACT, 78 STAT. 395, BUT MUST COMPUTE IT UNDER THE RATES PRESCRIBED IN THE 1963 PAY ACT. WE ALSO HELD THAT SUCH OFFICERS WHO COMPLETED MORE THAN 20 YEARS' SERVICE PRIOR TO AUGUST 1964 AND RETIRED EFFECTIVE SEPTEMBER 1, 1964, WERE NOT RETIRED EFFECTIVE ON THAT DATE BY REASON OF THE UNIFORM RETIREMENT DATE ACT AND ARE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE RATES PRESCRIBED IN THE 1964 PAY ACT.

IN DECISION OF OCTOBER 29, 1963, 43 COMP. GEN. 425, WE CONSIDERED THE CASE OF MAJOR HUNTER, USMC, WHO COMPLETED 20 YEARS OF ACTIVE SERVICE FOR RETIREMENT PURPOSES ON JANUARY 18, 1963, REQUESTED THAT HE BE TRANSFERRED TO THE RETIRED LIST ON APRIL 1, 1963, AND WAS SO TRANSFERRED EFFECTIVE THAT DATE, HIS TRANSFER HAVING BEEN APPROVED ON MARCH 6, 1963. IN THAT DECISION WE AID:

* * * SINCE MAJOR HUNTER WAS RETIRED EFFECTIVE APRIL 1, 1963, PURSUANT TO SUCH STATUTORY AUTHORITY, UNDER CIRCUMSTANCES WHICH COULD NOT GIVE RISE TO AN APPLICATION OF THE 1930 ACT, THERE IS NO BASIS FOR A CONCLUSION THAT HE BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THAT ACT.

THE COMMITTEE ACTION STATES THAT PRIOR TO OUR DECISION OF JANUARY 5, 1965, THE SERVICES HAD CONSTRUED THE 1963 DECISION IN 43 COMP. GEN. 425, 428, TO MEAN THAT, SINCE RETIREMENTS UNDER 10 U.S.C. 6323 (A) WERE "IN THE DISCRETION OF THE PRESIDENT" AND WERE REQUIRED TO BE MADE "ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT," SUCH A RETIREE COULD NOT BE SAID TO BE ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT IF RETIRED ON THAT DATE. THE "CIRCUMSTANCES WHICH COULD NOT GIVE RISE TO AN APPLICATION OF THE 1930 ACT" WERE CONSIDERED BY THE SERVICES TO HAVE BEEN EITHER (1) THAT MAJOR HUNTER COMPLETED MORE THAN 20 YEARS ACTIVE SERVICE IN JANUARY 1963 OR (2) THAT HE WAS RETIRED PURSUANT TO 10 U.S.C. 6323 (A). IT IS STATED THAT THE SERVICES ADOPTED THE VIEW THAT, SINCE A RETIREMENT UNDER 10 U.S.C. 6323 (A) IS EFFECTED "ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT," MAJOR HUNTER DID NOT BECOME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT AND THAT ANY OTHER OFFICER RETIRED ON THAT DATE UNDER 10 U.S.C. 6323 (A) SHOULD BE SIMILARLY REGARDED.

THE COMMITTEE ACTION POINTS OUT THAT THE PRIMARY PURPOSE OF THE UNIFORM RETIREMENT DATE ACT IS TO FIX A UNIFORM RETIREMENT DATE ON THE FIRST OF A MONTH AND THE PURPOSE AND INTENT OF THE ACT HAS BEEN CONSIDERED AS BEING FULFILLED WHEN THE FIRST DAY OF A MONTH COINCIDES WITH THE FIRST DAY OF A MONTH DESIGNATED BY THE PRESIDENT AS THE EFFECTIVE DATE OF RETIREMENT OF CERTAIN NAVAL OFFICERS. SEE 10 COMP. GEN. 36. THUS A RETIREMENT UNDER 10 U.S.C. 6323 (A) ON APRIL 1, 1963, IN THE DISCRETION OF THE PRESIDENT WOULD FULFILL THE PRIMARY PURPOSE OF THE UNIFORM RETIREMENT DATE ACT, WHICH CIRCUMSTANCE BY ITSELF WOULD NOT GIVE RISE TO ANY APPLICATION OF THE 1930 ACT, LEAVING NO BASIS TO CONCLUDE THAT A MEMBER SO RETIRED BECAME ENTITLED TO RETIRED PAY ON THAT DATE BY VIRTUE OF THE 1930 ACT. IT IS URGED THAT NONE OF THESE RETIREES BECAME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT EX PROPRIO VIGORE; THEY WOULD HAVE BECOME ENTITLED TO RETIRED PAY ON APRIL 1, 1963, BY VIRTURE OF THE PROVISIONS OF 10 U.S.C. 6323 (A) HAD THERE BEEN NO UNIFORM RETIREMENT DATE ACT. THEREFORE, THE COMMITTEE ACTION SUGGESTS THAT THE DATE OF COMPLETION OF 20 YEARS ACTIVE SERVICE PRIOR TO RETIREMENT UNDER 10 U.S.C. 6323 (A) EFFECTIVE APRIL 1, 1963, IS ELIMINATED AS A DECISIVE FACTOR INASMUCH AS A PERSON RETIRED UNDER THAT SECTION EFFECTIVE APRIL 1, 1963, ALTHOUGH CONCEIVABLY RETIRED SUBJECT TO THE UNIFORM RETIREMENT DATE ACT, COULD NOT BE REGARDED AS HAVING BECOME ENTITLED TO RETIRED PAY EFFECTIVE APRIL 1, 1963, BY VIRTUE OF THAT ACT WITHIN THE MEANING OF SECTION 5 (A) OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, 77 STAT. 212, 10 U.S.C. 1402 NOTE. THE COMMENT IS MADE THAT THE DECISION OF JANUARY 5, 1965, APPEARS TO HINGE RETIREMENTS UNDER 10 U.S.C. 6323 (A) EFFECTIVE SEPTEMBER 1, 1964, ON WHETHER SUCH RETIREMENTS WOULD BE SUBJECT TO THE UNIFORM RETIREMENT DATE ACT.

OUR DECISION IN 43 COMP. GEN. 425 WAS NOT CONCERNED WITH ANY OFFICER OF THE NAVY OR MARINE CORPS WHO QUALIFIED FOR RETIREMENT AFTER FEBRUARY 1963 AND OUR DECISION OF JANUARY 5, 1965, THEREFORE WAS NOT INTENDED TO OVERRULE THE PRIOR DECISION. SINCE THE UNIFORM RETIREMENT DATE ACT PROVIDED FOR THE RETIREMENT TO "TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE," AND SINCE SECTION 6323 (A) PROVIDES THAT NAVY AND MARINE CORPS OFFICERS MAY BE RETIRED AFTER MORE THAN 20 YEARS OF ACTIVE SERVICE "ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT," UPON RECONSIDERATION IT IS CONCLUDED THAT THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT DO NOT APPLY TO OFFICERS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 6323 (A). QUESTIONS 1 AND 2 ARE ANSWERED BY SAYING THAT ALL OFFICERS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 6323 (A) EFFECTIVE APRIL 1, 1963, ARE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE 1963 PAY ACT AND ALL OFFICERS RETIRED UNDER THAT SECTION EFFECTIVE SEPTEMBER 1, 1964, ARE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATES PRESCRIBED IN THE 1964 PAY ACT REGARDLESS OF THE DATE THEY COMPLETED THE MINIMUM ELIGIBILITY REQUIREMENTS FOR RETIREMENT. TO THE EXTENT THAT OUR DECISIONS OF OCTOBER 29, 1963, 43 COMP. GEN. 425, AND JANUARY 5, 1965, B-155458, 44 COMP. GEN. 373, MAY BE INCONSISTENT WITH THE FOREGOING, THEY ARE MODIFIED ACCORDINGLY.

QUESTION 3 READS AS FOLLOWS:

3. DOES THE DECISION OF THE COMPTROLLER GENERAL, B-155458, OF JANUARY 5, 1965, REQUIRE THAT ANY MEMBER WHO MAY HAVE BEEN TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330, ON SEPTEMBER 1, 1964, SHOULD HAVE HIS RETAINER PAY COMPUTED ON THE BASIS OF THE 1963 PAY ACT RATES AND NOT ON THE RATES PRESCRIBED BY SECTION 1 OF THE ACT OF AUGUST 12, 1964?

THE COMMITTEE ACTION STATES THAT TRANSFERS TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE ARE ACCOMPLISHED INDEPENDENT OF THE UNIFORM RETIREMENT DATE ACT AND MAY TAKE PLACE ON ANY DAY OF THE MONTH. IT IS REPORTED THAT THE LONG ESTABLISHED ADMINISTRATIVE PRACTICE HAS BEEN TO PAY ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS ACTIVE DUTY PAY AND ALLOWANCES TO AND INCLUDING THE DATE OF SUCH TRANSFERS. UNDER THE PROVISIONS OF 10 U.S.C. 6330 THE BASIC PAY FACTOR IN COMPUTING RETAINER PAY IS GOVERNED BY THE RATE OF ACTIVE DUTY PAY IN EFFECT AT THE TIME OF TRANSFER. IT IS STATED THAT A MEMBER TRANSFERRED TO THE FLEET RESERVE ON SEPTEMBER 1, 1964, WOULD FIRST BECOME ENTILED TO RETAINER PAY ON SEPTEMBER 2, 1964, IT BEING POINTED OUT THAT UNDER THE PROVISIONS OF 10 U.S.C. 6332 A MEMBER TRANSFERRED TO THE FLEET RESERVE IS ENTITLED, WHEN NOT ON ACTIVE DUTY, TO RETAINER PAY "FROM THE DATE OF TRANSFER" AND THAT, WHERE AN ACT IS REQUIRED TO BE DONE "FROM" A PARTICULAR DAY OR THE HAPPENING OF A PARTICULAR EVENT, IT HAS BEEN HELD THAT THE DAY THUS DESIGNATED OR ON WHICH THE PARTICULAR EVENT HAPPENS SHOULD NOT BE INCLUDED IN COMPUTING THE TIME SPECIFIED. SEE 5 COMP. DEC. 362.

IN OUR DECISION OF JANUARY 5, 1965, WE INDICATED THAT MEMBERS OF THE NAVY AND MARINE CORPS TRANSFERRED TO THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE EFFECTIVE SEPTEMBER 1, 1964, SHOULD BE COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN THE 1963 PAY ACT. WE SAID THAT:

* * * THE FORMULA FOR COMPUTING RETAINER PAY IN 10 U.S.C. 6330 PROVIDES THAT RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE BASIC PAY "RECEIVED AT THE TIME OF TRANSFER.' SINCE FOR MEMBERS SO TRANSFERRED EFFECTIVE SEPTEMBER 1, 1964, THE RATES OF RETAINER PAY ARE LIMITED TO RATES OF PAY "RECEIVED" BY THEM, AND SINCE THEY COULD NOT HAVE LAWFULLY "RECEIVED" PAY UNDER THE 1964 PAY ACT PRIOR TO SEPTEMBER 1, 1964, THEIR RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE 1963 PAY ACT RATES.

IN RENDERING THAT DECISION IT WAS ASSUMED THAT SUCH MEMBERS LAST RECEIVED ACTIVE DUTY PAY FOR THE PERIOD PRIOR TO SEPTEMBER 1, 1964, AND THAT THEY DID NOT RECEIVE ACTIVE-DUTY PAY ON SEPTEMBER 1, 1964. FOR THE REASONS STATED ABOVE, A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WHO LAST RECEIVED ACTIVE DUTY PAY FOR A DATE PRIOR TO SEPTEMBER 1, 1964, WOULD NOT BE ENTITLED TO COMPUTE HIS RETAINER PAY UNDER THE RATES OF PAY PRESCRIBED IN THE 1964 PAY ACT. HOWEVER, FOR A MEMBER TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WHO INCIDENT TO SUCH TRANSFER LAST RECEIVED ACTIVE DUTY PAY ON SEPTEMBER 1, 1964, RETAINER PAY SHOULD BE COMPUTED ON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THE 1964 PAY ACT. IN SUCH CIRCUMSTANCES, IT WOULD SEEM THAT THE PERSON CONCERNED DID NOT BECOME A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE UNTIL SEPTEMBER 2, 1964. QUESTION 3 IS ANSWERED ACCORDINGLY.