A-16666, DEC. 6, 1967

A-16666, DEC. 6, 1967

ARMED FORCES - RETIRED PAY - ADJUSTMENT DECISION TO RETIRED NAVY OFFICER SUSTAINING DECISION OF AUGUST 15, 1967, DENYING CLAIM FOR ADJUSTMENT IN RETIRED PAY. SINCE MEMBER WAS RETIRED FOR DISABILITY IN 1925 TITLE III OF THE 1948 RETIREMENT ACT IS NOT FOR APPLICATION AND THE PROVISIONS OF THE BARRING ACT ARE APPLICABLE.

TO COMMANDER ROY A. DARLING, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1967, ACKNOWLEDGING RECEIPT OF OUR LETTER DATED OCTOBER 26, 1967, A-16666, IN WHICH THERE WAS OUTLINED THE BASIS OF THE ADJUSTMENTS THAT HAVE BEEN MADE IN YOUR RETIRED PAY ACCOUNT FOR THE PERIOD FROM OCTOBER 1, 1949, TO DATE.

THE STATUTORY PROVISIONS APPLICABLE TO YOUR RETIRED PAY STATUS AND WHICH ARE CITED IN OUR LETTER OF OCTOBER 26, 1967, ARE AS FOLLOWS: SEC. 2 (B), ACT OF MAY 19, 1952, 66 STAT. 80:

"MEMBERS OR FORMER MEMBERS WHO ARE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SHALL BE ENTITLED TO AN INCREASE OF 4 PER CENTUM OF SUCH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY.' SEC. 6, ACT OF MARCH 31, 1955, 69 STAT. 23:

"MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SHALL BE ENTITLED TO AN INCREASE OF 6 PER CENTUM OF THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, TO WHICH THEY ARE NOW ENTITLED.' SEC. 4 (A), ACT OF MAY 20, 1958, 72 STAT. 128:

"EXCEPT FOR MEMBERS COVERED BY SECTION 7 OF THIS ACT AND PERSONS WITH TWO OR LESS YEARS OF SERVICE FOR BASIC PAY PURPOSES WHO WERE RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, SHALL BE ENTITLED TO AN INCREASE OF 6 PER CENTUM OF THAT PAY TO WHICH THEY WERE ENTITLED ON THAT DATE.' SEC. 5 (E), ACT OF OCTOBER 2, 1963, 77 STAT. 213:

"A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO WAS ENTITLED TO RETIRED PAY OR RETAINER PAY ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, OTHER THAN A MEMBER OR FORMER MEMBER WHO IS COVERED BY SUBSECTION (B), (C), OR (D) OF THIS SECTION, IS ENTITLED TO AN INCREASE OF 5 PERCENT IN THE RETIRED PAY OR RETAINER PAY TO WHICH HE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT.' SEC. 5 (A), ACT OF AUGUST 21, 1965, PUB.L. 89-132, 79 STAT. 547:

"THE RETIRED PAY OR RETAINER PAY OF A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO THAT PAY COMPUTED UNDER RATES OF BASIC PAY IN EFFECT BEFORE THE EFFECTIVE DATE OF THIS ACT SHALL BE INCREASED, EFFECTIVE THAT DATE, BY THE PER CENTUM (ADJUSTED TO THE NEAREST ONE-TENTH OF 1 PER CENTUM) THAT THE CONSUMER PRICE INDEX (ALL ITEMS--- UNITED STATES CITY AVERAGE), PUBLISHED BY THE BUREAU OF LABOR STATISTICS, FOR CALENDAR MONTH IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT HAS INCREASED OVER THE AVERAGE MONTHLY INDEX FOR CALENDAR YEAR 1962.' SEC. 5 (B) OF PUB.L. 89-132:

"SECTION 1401A (B) OF TITLE 10, U.S.C. IS AMENDED TO READ AS FOLLOWS:

-/B) THE SECRETARY OF DEFENSE SHALL DETERMINE THE PER CENTUM THAT THE CONSUMER PRICE INDEX FOR EACH CALENDAR MONTH AFTER THE CALENDAR MONTH IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT HAS INCREASED OVER THE BASE CONSUMER PRICE INDEX (THAT FOR THE CALENDAR MONTH IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS ACT OR, IF LATER, THAT USED AS THE BASIS FOR THE MOST RECENT ADJUSTMENT OF RETIRED PAY AND RETAINER PAY UNDER THIS SUBSECTION). IF THE SECRETARY DETERMINES THAT, FOR THREE CONSECUTIVE CALENDAR MONTHS, THE INDEX HAS SHOWN AN INCREASE OF AT LEAST 3 PER CENTUM OVER THE BASE INDEX, THE RETIRED PAY AND RETAINER PAY OF MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECAME ENTITLED TO THAT PAY BEFORE THE FIRST DAY OF THE THIRD CALENDAR MONTH BEGINNING AFTER THE EXPIRATION OF THOSE THREE MONTHS SHALL BE INCREASED, EFFECTIVE THAT DAY, BY THE HIGHEST PER CENTUM OF INCREASE IN THE INDEX DURING THOSE THREE MONTHS, ADJUSTED TO THE NEAREST ONE-TENTH OF 1 PER CENTUM.-"

THE JULY 1, 1966, NAVY DEPARTMENT PUBLICATION LISTING RETIRED NAVAL OFFICERS SHOWS THAT YOU WERE RETIRED IN 1925 BY REASON OF A PERMANENT PHYSICAL DISABILITY. CONSEQUENTLY, THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087-1091, TO WHICH YOU MAKE REFERENCE, HAVE NO APPLICATION IN YOUR CASE. SECTION 305 OF THAT ACT PROVIDED THAT TITLE III "SHALL NOT BE APPLICABLE TO ANY OFFICER OR ENLISTED PERSON * * * WHO, PRIOR TO OR SUBSEQUENT TO THE DATE OF ENACTMENT OF THIS TITLE, IS ENTITLED TO RECEIVE, OR IS RECEIVING UNDER ANY OTHER PROVISION OF LAW, RETIRED PAY FOR MILITARY OR NAVAL SERVICE.'

THE CONCLUSIONS SET FORTH IN OUR LETTER TO YOU OF AUGUST 15, 1967, A- 16666, WERE BASED ON THE PROVISIONS OF LAW APPLICABLE IN THE MATTER. THE PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, WERE QUOTED IN PERTINENT PART AND THE STATUTORY PROVISIONS GOVERNING YOUR RETIRED PAY STATUS WERE CLEARLY CITED THEREIN.