B-136915, OCTOBER 7, 1958, 38 COMP. GEN. 281

B-136915, OCTOBER 7, 1958, 38 COMP. GEN. 281

MILITARY PERSONNEL - RETIRED PAY INCREASES UNDER THE ACT OF MAY 20, 1958 ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO, AT THE TIME OF RETIREMENT, ARE RECEIVING PROFICIENCY PAY UNDER SECTION 209 (A) (1) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 240 (A) (1), WHICH PROVIDES FOR THE ADVANCEMENT OF QUALIFIED ENLISTED MEN TO HIGHER PAY GRADES, ARE ENTITLED TO HAVE THE BASIC PAY OF THE HIGHER GRADE USED IN THE COMPUTATION OF RETIRED PAY; HOWEVER, ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO, AT THE TIME OF RETIREMENT, ARE RECEIVING PROFICIENCY PAY UNDER SECTION 209 (A) (2) OF THE ACT, 37 U.S.C. 240 (A) (2), WHICH PROVIDES FOR PAYMENTS AT STIPULATED MONTHLY RATES, ARE CONSIDERED TO BE IN RECEIPT OF A SPECIAL PAY WHICH ACCRUED INDEPENDENTLY ON BASIC PAY, AND IS NOT FOR INCLUSION IN RETRIED PAY COMPUTATIONS. A MEMBER OF A RESERVE COMPONENT OF THE SERVICES WHO, AFTER QUALIFICATION BY REASON OF AGE AND SERVICE FOR RETIRED PAY UNDER 10 U.S.C. 1331, IS RECALLED TO EXTENDED ACTIVE DUTY FOR MORE THAN A YEAR DID NOT CEASE TO BE A MEMBER OF A RESERVE COMPONENT ON ACCOUNT OF THE GRANT OF RETIRED PAY AND, THEREFORE, REGARDLESS OF THE LAW UNDER WHICH HE BECAME ENTITLED TO RETIRED PAY, HE IS TO BE REGARDED AS A MEMBER WHO PRIOR TO THE EFFECTIVE DATE OF THE MILITARY PAY INCREASE ACT HAD BEEN ENTITLED TO RETIRED PAY WITHIN THE MEANING OF SECTION 3 (B) OF THE ACT OF MAY 20, 1958 FOR ENTITLEMENT UPON RELEASE TO RECOMPUTATION OF PAY BASED ON THE NEW RATES. A GENERAL OR A LIEUTENANT GENERAL WITH LESS THAN 30 YEARS OF SERVICE WHO IS RETIRED FOR PHYSICAL DISABILITY AND WHO HAS NOT SERVED ON ACTIVE DUTY AFTER RETIREMENT FOR AT LEAST 180 DAYS IS ENTITLED, UNDER THE MILITARY PAY INCREASE ACT OF MAY 20, 1958, TO AN INCREASE OF 6 PERCENT OF THE RETIRED PAY TO WHICH THE MEMBER WAS ENTITLED ON MAY 31, 1958; HOWEVER, IN CASE THE MEMBER HAS 180 DAYS OF SERVICE AFTER RETIREMENT, RETIRED PAY MUST BE COMPUTED UNDER SECTIONS 7 (B) AND (C) OF THE ACT OF MAY 20, 1958, BUT IF THE RECOMPUTATION IS LESS THAN THE RETIRED PAY THE OFFICER WAS RECEIVING ON MAY 31, 1958, RECOMPUTATION UNDER SECTIONS 7 (B) AND (C) OF THE ACT IS NOT APPLICABLE. MODIFIED BY 38 COMP. GEN. 701. MEMBERS OF THE UNIFORMED SERVICES WHO WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO JUNE 1, 1958--- THE EFFECTIVE DATE OF THE MILITARY PAY INCREASE ACT OF MAY 20, 1958--- ENTERED A RETIRED STATUS AND BECAME ENTITLED TO RETIRED PAY AT THE TIME OF PLACEMENT ON THE RETIRED LIST SO THAT PERMANENT RETIREMENT AFTER MAY 31, 1958, DOES NOT ENTITLE THE MEMBERS TO MORE THAN THE 6 PERCENT INCREASE IN RETIRED PAY UNDER THE ACT OF MAY 20, 1958; HOWEVER, NOTHING IN THE ACT OF MAY 20, 1958, PRECLUDES RETIRED PAY ADJUSTMENT IF THE PERCENTAGE OF DISABILITY AT THE TIME OF PLACEMENT ON THE DISABILITY RETIRED LIST IS CHANGED AT THE TIME OF PERMANENT RETIREMENT. A MEMBER OF THE UNIFORMED SERVICES WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO JUNE 1, 1958--- THE EFFECTIVE DATE OF THE MILITARY PAY INCREASE ACT OF MAY 20, 1958--- AND WHO WAS PERMANENTLY RETIRED ON MAY 31, 1958, IS REGARDED AS HAVING BEEN "RETIRED UNDER ANY PROVISION OF LAW" AS THE TERM IS USED IN SECTION 4 (B) OF THE ACT OF MAY 20, 1958, AT THE TIME OF PLACEMENT ON THE TEMPORARY RETIRED LIST OR ON THE DATE OF RETIREMENT, WHICHEVER IS EARLIER, AND THEREFORE, THE MEMBER IS NOT ENTITLED TO RECOMPUTATION OF RETIRED PAY ON THE BASIS OF THE RATES IN THE ACT OF MAY 30, 1958. THE SAVED PAY PROVISIONS IN SECTION 10 OF THE ACT OF MAY 20, 1958, SAVE TO THE MEMBERS OF THE UNIFORMED SERVICES ONLY THE BASIC PAY OR RETIRED PAY TO WHICH THEY WERE ENTITLED ON MAY 31, 1958--- THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT--- THEREFORE, A MEMBER WHO IS ENTITLED TO RETIRED PAY ON THE BASIS OF THE GRADE OR RANK IN WHICH SERVING AND WHO IS IN A SAVED-PAY STATUS AT THAT TIME SHOULD HAVE HIS RETIRED PAY COMPUTED ON THE SAVED PAY OF SUCH GRADE.

TO THE SECRETARY OF DEFENSE, OCTOBER 7, 1958:

BY LETTER DATED JULY 23, 1958, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED OUR DECISION ON CERTAIN QUESTIONS RELATING TO THE COMPUTATION OF RETIRED PAY WHICH HAVE ARISEN AS THE RESULT OF THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, 37 U.S.C. 232. THE QUESTIONS WERE SET OUT IN AN ATTACHED COPY OF COMMITTEE ACTION NO. 218 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. MAY THE PROFICIENCY PAY PROVIDED FOR CERTAIN ENLISTED PERSONNEL BY EITHER SECTION 209 (A) (1) OR 209 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY P.L. 85-422, BE USED IN THE COMPUTATION OF RETIRED PAY FOR SUCH PERSONNEL RECEIVING PROFICIENCY PAY AT THE TIME OF THEIR RETIREMENT?

2. A MEMBER ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 APPLIED FOR SUCH RETIRED PAY, AND WAS SUBSEQUENTLY RECALLED TO EXTENDED ACTIVE DUTY. HE HAS SERVED FOR OVER ONE YEAR ON EXTENDED ACTIVE DUTY AND WAS SERVING ON SUCH DUTY ON THE EFFECTIVE DATE OF P.L. 85-422. UPON RELIEF FROM EXTENDED ACTIVE DUTY (SUBSEQUENT TO 1 JUNE 1958) MAY HIS RETIRED PAY BE COMPUTED ON THE BASIS OF RATES PRESCRIBED IN SECTION 201 (A), CAREER COMPENSATION ACT OF 1949, AS AMENDED BY P.L. 85-422?

3. WHAT IS THE PROPER METHOD FOR RECOMPUTING, UNDER P.L. 85-422, THE RETIRED PAY OF A GENERAL OR LIEUTENANT GENERAL WHO HAD LESS THAN THIRTY YEARS OF SERVICE FOR PAY PURPOSES AND IS RECEIVING RETIRED PAY BASED ON PERCENTAGE OF DISABILITY?

4. (A) MAY THE RATES PRESCRIBED IN SECTION 201 (A), CAREER COMPENSATION ACT OF 1949, AS AMENDED BY P.L. 85-422, BE USED AS A BASIS FOR COMPUTATION OF RETIRED PAY IN THE CASE OF A MEMBER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO THE EFFECTIVE DATE OF P.L. 85-422 BUT WHO IS PERMANENTLY RETIRED AFTER THE EFFECTIVE DATE OF THE ACT?

(B) IN COMPUTING RETIREMENT PAY UPON SUCH PERMANENT RETIREMENT SHOULD COMPUTATION BE BASED UPON THE PERCENTAGE OF DISABILITY EXISTING AT THE TIME OF PERMANENT RETIREMENT?

5. MAY A MEMBER WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO THE EFFECTIVE DATE OF P.L. 85-422, AND WHO WAS PERMANENTLY RETIRED ON THE EFFECTIVE DATE OF THAT ACT, HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE RATES SET FORTH IN P.L. 85 422, IF SUCH RATES ARE HIGHER THAN THOSE SET FORTH IN THE CAREER COMPENSATION ACT OF 1949 ON THE DAY BEFORE THE EFFECTIVE DATE OF P.L. 85-422, PLUS 6 PERCENTUM OF THAT PAY?

6. IN THE CASE OF A MEMBER WHO IS IN A "SAVED PAY" STATUS AT THE TIME OF HIS RETIREMENT, SHOULD RETIREMENT PAY BE COMPUTED ON THE BASIS OF THE RATES PRESCRIBED IN SECTION 201 (A), CAREER COMPENSATION ACT OF 1949, AS AMENDED BY P.L. 85-422, OR ON THE BASIS OF THE RATE OF PAY BEING RECEIVED AT THE TIME OF RETIREMENT?

WITH RESPECT TO QUESTION 1, SECTION 209 OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY THE ACT OF MAY 20, 1958, 37 U.S.C. 240, PROVIDES TWO SYSTEMS FOR PAYMENT OF PROFICIENCY PAY TO ENLISTED MEN. UNDER THE PROVISIONS OF SECTION 209 (A) (1), 37 U.S.C. 240 (A) (1), SUCH PAY MAY BE PROVIDED BY ADVANCING QUALIFIED ENLISTED MEN TO HIGHER PAY GRADES WITH ENTITLEMENT TO THE BASIC PAY, ALLOWANCES, AND SPECIAL OR INCENTIVE PAYS OF THE HIGHER PAY GRADE. UNDER THE PROVISIONS OF SECTION 209 (A) (2), SUCH PAY IS AUTHORIZED TO BE MADE AT A MONTHLY RATE NOT TO EXCEED $50, $100, OR $150 FOR RATINGS P-1, P-2, AND P-3, RESPECTIVELY.

IN THE ORDINARY SITUATION RETIRED PAY IS COMPUTED ON THE RATE OF BASIC PAY AUTHORIZED FOR THE GRADE HELD BY A MEMBER AT THE TIME OF RETIREMENT WITHOUT REGARD TO ANY SPECIAL OR INCENTIVE PAYS BEING RECEIVED AT THAT TIME AND THE PROFICIENCY PAY PROVIDED BY SECTION 209 (A) (2, 37 U.S.C. 240 (A) (2), IS A SPECIAL PAY ACCRUING INDEPENDENTLY OF THE BASIC PAY GRADE. IN THAT CONNECTION IT IS STATED IN HOUSE OF REPRESENTATIVES REPORT NO. 1701, 85TH CONGRESS, TO ACCOMPANY H.R. 11470, WHICH BECAME THE ACT OF MAY 20, 1958, THAT (P. 16):

UNDER THE HOUSE BILL, THE PROFICIENCY PAY SYSTEM RECOMMENDED FOR ENLISTED PERSONNEL AUTHORIZED TWO PROFICIENCY PAY SYSTEMS; ONE A SYSTEM WHICH GRANTED THE PAY OF HIGHER GRADE AND THE OTHER WHICH PROVIDED SPECIFIC AMOUNTS OF ADDITIONAL PAY WITHOUT THE PAY OF THE HIGHER GRADE, BUT EITHER SYSTEM TO BE USED IN DETERMINING RETIRED PAY. THE SENATE AMENDMENT DELETED THAT PORTION OF THE HOUSE BILL WHICH PERMITTED THE SPECIAL PROFICIENCY PAY, AS DISTINGUISHED FROM THE PAY OF A HIGHER GRADE, FROM BEING USED IN COMPUTING RETIRED PAY. SINCE THE HOUSE BILL MIGHT HAVE BEEN CONSTRUED AS A PRECEDENT FOR OTHER SPECIAL PAYS AT SOME FUTURE DATE, THE HOUSE CONFEREES AGREED TO THE SENATE AMENDMENT AND, AS A RESULT, THE SPECIAL PROFICIENCY PAY AUTHORIZED IN DOLLAR AMOUNTS, AS DISTINGUISHED FROM THE PAY OF A HIGHER GRADE, MAY NOT BE USED IN DETERMINING ENLISTED RETIRED PAY.

ACCORDINGLY, THE BASIC PAY OF THE HIGHER PAY GRADE PROVIDED BY SECTION 209 (A) (1) IS FOR USE IN COMPUTING THE RETIRED PAY OF ENLISTED MEN RECEIVING PROFICIENCY PAY UNDER THAT SECTION AT THE TIME OF RETIREMENT. HOWEVER, THE PROFICIENCY PAY PROVIDED BY SECTION 209 (A) (2) MAY NOT BE USED IN COMPUTING THE RETIRED PAY OF ENLISTED MEN RECEIVING PROFICIENCY PAY UNDER THAT SECTION AT THE TIME OF RETIREMENT. QUESTION 1 IS ANSWERED ACCORDINGLY.

SECTION 3 (B) OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 NOTE, PROVIDES THAT:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SECTION 6483 (C) OF TITLE 10, UNITED STATES CODE, A MEMBER OF A UNIFORMED SERVICE WHO BECAME ENTITLED TO RETIRED, RETIREMENT, OR RETAINER PAY BEFORE THE EFFECTIVE DATE OF THIS ACT, AND WHO PERFORMED A PERIOD OF CONTINUOUS ACTIVE DUTY OF AT LEAST ONE YEAR AFTER BECOMING ENTITLED TO THAT PAY, IS ENTITLED, UPON RELEASE FROM THAT ACTIVE DUTY ON OR AFTER THE EFFECTIVE DATE OF THIS ACT, TO RECOMPUTE THAT PAY BASED ON THE RATES OF PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THIS ACT.

NEITHER THIS OFFICE NOR THE UNITED STATES COURT OF CLAIMS HAS TAKEN THE POSITION THAT A MEMBER OF A RESERVE COMPONENT WHO IS GRANTED RETIRED PAY UNDER 10 U.S.C. 1331, OR ITS ANTECEDENT PROVISIONS CONTAINED IN TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036, CEASES TO BE A MEMBER OF A RESERVE COMPONENT SOLELY BECAUSE OF THE GRANT OF RETIRED PAY. ON THE CONTRARY IT HAS BEEN RECOGNIZED THAT THE MEMBER CONTINUES TO BE A MEMBER UNLESS HIS STATUS AS SUCH IS OTHERWISE TERMINATED. SEE 35 COMP. GEN. 497, AND TANNER V. UNITED STATES, 129 C.CLS. 792. SINCE SECTION 3 (B) OF THE 1958 ACT BY ITS OWN TERMS APPLIES TO ANY "MEMBER" OF A UNIFORMED SERVICE WHO, PRIOR TO ITS EFFECTIVE DATE, HAD BECOME ENTITLED TO "RETIRED, RETIREMENT, OR RETAINER PAY," IT IS OUR VIEW THAT CONGRESS INTENDED ITS PROVISIONS TO INCLUDE ALL SUCH MEMBERS, REGARDLESS OF THE LAW UNDER WHICH THEY BECAME ENTITLED TO THE RETIRED, RETIREMENT, OR RETAINER PAY. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

WE ASSUME THAT THE OFFICERS INVOLVED IN QUESTION 3 CANNOT QUALIFY FOR INCREASED RETIRED PAY UNDER SUBSECTIONS (B) AND (C) OF SECTION 3 OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 NOTE. IN DECISION OF AUGUST 28, 1958, 38 COMP. GEN. 170, IN THE CASE OF A LIEUTENANT GENERAL RETIRED FOR PHYSICAL DISABILITY PRIOR TO THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, WE HELD, IN EFFECT, THAT, GENERALLY, AFTER MAY 31, 1958, SUCH OFFICERS WERE ENTITLED TO THE INCREASED RETIRED PAY PROVIDED BY SECTION 4 (A) OF THAT ACT, 10 U.S.C. 1401 NOTE, BUT THAT THE RETIRED PAY OF A LIEUTENANT GENERAL WHO MET THE CONDITIONS PRESCRIBED BY SECTION 7 (C) OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 NOTE, MUST BE COMPUTED UNDER THAT SECTION, REGARDLESS OF THE BASIS ON WHICH THE OFFICER MAY HAVE ORIGINALLY BEEN RETIRED OR ON WHICH HIS RETIRED PAY WAS BEING COMPUTED. THAT DECISION APPLIES EQUALLY IN THE CASE OF RETIRED GENERALS UNDER THE PROVISIONS OF SECTION 7 (B) OF THE ACT OF MAY 20, 1958. THUS, A GENERAL OR A LIEUTENANT GENERAL WITH LESS THAN 30 YEARS OF SERVICE FOR PAY PURPOSES RETIRED FOR PHYSICAL DISABILITY WHO HAS NOT SERVED ON ACTIVE DUTY AFTER RETIREMENT FOR A PERIOD OF AT LEAST 180 DAYS IS ENTITLED UNDER THE ACT OF MAY 20, 1958, TO AN INCREASE OF 6 PERCENT OF THE RETIRED PAY TO WHICH HE WAS ENTITLED ON MAY 31, 1958. SUCH AN OFFICER, HOWEVER, WHO HAS SERVED ON ACTIVE DUTY FOR A PERIOD OF AT LEAST 180 DAYS AFTER RETIREMENT IS EXPRESSLY EXCEPTED FROM SECTION 4 (A) AND, UNLESS HE IS ENTITLED TO A HIGHER RATE OF RETIRED PAY UNDER SOME OTHER PROVISION OF LAW, MUST HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE PAY AUTHORIZED BY THE ACT OF MAY 20, 1958, FOR AN OFFICER IN PAY GRADE 0-8 WITH HIS YEARS OF SERVICE FOR LONGEVITY PURPOSES, PLUS $200 IN THE CASE OF A GENERAL, OR $100 IN THE CASE OF A LIEUTENANT GENERAL, MULTIPLIED BY 2 1/2 PERCENT OF THE YEARS OF SERVICE CREDITABLE TO HIM FOR USE AS A MULTIPLIER IN COMPUTING RETIRED PAY, BUT NOT TO EXCEED 75 PERCENT OF THE PRODUCT. IN THE EVENT THAT HIS RETIRED PAY AS SO RECOMPUTED IS LESS THAN THE RETIRED PAY WHICH HE WAS RECEIVING ON MAY 31, 1958, HE IS ENTITLED TO RECEIVE AFTER MAY 31, 1958, THE RETIRED PAY WHICH HE WAS RECEIVING ON MAY 31, 1958, SINCE SECTIONS 7 (B) AND (C) ARE NOT APPLICABLE WHERE THE PERSON CONCERNED IS ENTITLED TO A HIGHER AMOUNT UNDER SOME OTHER PROVISION OF LAW. SEE ALSO THE SAVINGS PROVISIONS CONTAINED IN SECTION 10 (1) OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 NOTE. QUESTION 3 IS ANSWERED ACCORDINGLY.

SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272, PROVIDED THAT WHEN IT WAS DETERMINED THAT THE PHYSICAL DISABILITY OF A MEMBER WHOSE NAME HAD BEEN PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST WAS OF A PERMANENT CHARACTER AND THAT SUCH DISABILITY WAS 30 PERCENT OR MORE, ETC., HIS NAME SHOULD BE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND HE SHOULD BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY WITH ENTITLEMENT TO RETIRED PAY AS PROVIDED IN THAT SECTION. THE SECTION PROVIDED THAT SUCH RETIRED PAY SHOULD BE COMPUTED AT THE MEMBER'S ELECTION BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST BY (1) A NUMBER EQUAL TO THE NUMBER OF HIS YEARS OF CREDITABLE SERVICE, MULTIPLIED BY 2 1/2 PERCENT, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF THE TIME OF HIS PERMANENT RETIREMENT. SEE THE FIRST PROVISO OF SECTION 402 (E), 37 U.S.C. 272 (E), AS TO THE LATTER ALTERNATIVE. SECTION 1210, 1201, AND 1401 OF TITLE 10 OF THE U.S.C.WHICH SUPERSEDED THE MENTIONED CAREER COMPENSATION ACT PROVISIONS, ARE TO THE SAME EFFECT.

SECTION 3 (A) OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 NOTE, PROVIDES, THAT:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SECTIONS 4 AND 7 OF THIS ACT AND SUBSECTION (B) OF THIS SECTION, THE CHANGES IN RATES OF BASIC PAY MADE BY THIS ACT DO NOT INCREASE THE AMOUNT OF RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH ANY PERSON IS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT. ( ITALICS SUPPLIED.)

AND SECTION 4 (A) OF THAT ACT PROVIDES:

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 PERCENTUM OF THAT PAY TO WHICH THEY WERE ENTITLED ON THAT DATE.

WHILE INDIVIDUALS WHOSE NAMES WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PRIOR TO THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, WERE NOT PERMANENTLY RETIRED, THEY NEVERTHELESS ENTERED A RETIRED STATUS AT THAT TIME AND BECAME ENTITLED TO RECEIVE "RETIRED PAY.' THUS, ANY ADJUSTMENT IN THEIR RETIRED PAY UPON PERMANENT RETIREMENT AFTER THAT DATE ON THE BASIS OF THE BASIC PAY RATES ESTABLISHED BY THE ACT OF MAY 20, 1958, IS EXPRESSLY PROHIBITED. INSTEAD, A 6 PERCENT INCREASE IN THAT RETIRED PAY IS PROVIDED. THE EXCEPTION OF PERSONS WITH TWO OR LESS YEARS OF SERVICE WHOSE NAMES WERE ON THE TEMPORARY DISABILITY RETIRED LIST, FROM THE BENEFITS OF THE 6 PERCENT INCREASE IN RETIRED PAY, CONTAINS A CLEAR IMPLICATION THAT ALL OTHER MEMBERS ON THAT LIST ON THE DAY BEFORE THE EFFECTIVE DATE OF THAT ACT, SHOULD HAVE SUCH INCREASE. HOWEVER, WE FIND NOTHING IN THE NEW LAW WHICH PRECLUDES ADJUSTMENTS IN RETIRED PAY WHICH MAY RESULT FROM THE APPLICATION OF OTHER PROVISIONS OF LAW SUCH AS WOULD RESULT IF THE PERCENTAGE OF DISABILITY OF THE PERSON CONCERNED AT THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIREMENT LIST AND ON WHICH HIS RETIRED PAY THEN WAS COMPUTED, SHOULD BE CHANGED AT THE TIME OF HIS PERMANENT RETIREMENT. ACCORDINGLY, QUESTION 4 (A) IS ANSWERED IN THE NEGATIVE AND QUESTION 4 (B) IS ANSWERED IN THE AFFIRMATIVE. SECTION 4 (B) OF THE ACT OF MAY 20, 1958, 10 U.S.C. 1401 NOTE, PROVIDES THAT:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A MEMBER OF A UNIFORMED SERVICE RETIRED UNDER ANY PROVISION OF LAW * * * ON THE EFFECTIVE DATE OF THIS ACT SHALL HAVE HIS RETIRED PAY * * * COMPUTED ON THE BASIS OF THE RATES OF BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THIS ACT, OR ON THE RATES OF BASIC PAY SET FORTH IN THE CAREER COMPENSATION ACT OF 1949 ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, PLUS 6 PERCENTUM OF THAT PAY, WHICHEVER IS GREATER.

SENATE REPORT NO. 1472, 85TH CONGRESS, STATES WITH RESPECT TO SUCH PROVISIONS THAT (P.22): " THIS SUBSECTION WOULD AFFECT ONLY MEMBERS WHO BECOME ENTITLED TO RETIRED PAY UNDER ANY PROVISION OF LAW * * * ON THE EFFECTIVE DATE OF THIS ACT.' THE PLACEMENT OF A MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST GIVES RISE TO ENTITLEMENT TO RETIRED PAY UNDER A PROVISION OF LAW. HENCE, IT IS OUR VIEW THAT AS FAR AS PHYSICAL DISABILITY RETIREMENT IS CONCERNED, THE TERM "RETIRED UNDER ANY PROVISION OF LAW," AS USED IN THE SECTION 4 (B), HAS REFERENCE TO THE PLACEMENT OF THE MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR THE DATE OF HIS RETIREMENT, WHICHEVER IS EARLIER. QUESTION 5 IS ANSWERED IN THE NEGATIVE.

SECTION 10 OF THE ACT OF MAY 20, 1958, 37 U.S.C. 232 NOTE, PROVIDES, IN PART, AS FOLLOWS:

THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE---

(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT; * * *

SUCH PROVISIONS BY THEIR OWN TERMS GO NO FURTHER THAN TO SAVE TO THE MEMBERS CONCERNED THE BASIC PAY OR RETIRED PAY TO WHICH THEY WERE ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958. THE METHOD OF COMPUTING A MEMBER'S RETIRED PAY IS PRESCRIBED BY OTHER PROVISIONS OF LAW. IN THOSE INSTANCES WHERE, UNDER THE APPLICABLE FORMULA FOR COMPUTING RETIRED PAY, A MEMBER IS ENTITLED TO RETIRED PAY ON THE BASIS OF THE GRADE OR RANK IN WHICH HE IS SERVING AT DATE OF RETIREMENT AND HE IS IN A SAVED-PAY STATUS AT THAT TIME, HIS RETIRED PAY SHOULD BE COMPUTED ON THE SAVED PAY OF SUCH GRADE OR RANK. QUESTION 6 IS ANSWERED ACCORDINGLY.