B-154368, SEPTEMBER 4, 1964, 44 COMP. GEN. 124

B-154368: Sep 4, 1964

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PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD - MOST FAVORABLE FORMULA - RESTRICTIONS AN OFFICER OF THE ARMED SERVICES WHO PRIOR TO REACHING 60 YEARS OF AGE AND QUALIFYING FOR RETIREMENT UNDER 10 U.S.C. 1331 WAS TRANSFERRED TO THE RETIRED RESERVE WITH OVER 30 YEARS OF SERVICE UNDER 10 U.S.C. 1333 AND CONTINUED ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THE SAME GRADE UNTIL MEETING THE AGE REQUIREMENT OF SECTION 1331. WHEN HE WAS RETIRED FOR PHYSICAL DISABILITY PURSUANT TO SECTIONS 1201 AND 1372. IS NOT ENTITLED TO INCREASED RETIRED PAY UNDER FORMULA 3. NOTWITHSTANDING THE OFFICER WAS CREDITED WITH THE ACTIVE SERVICE HE PERFORMED AFTER TRANSFER TO THE RETIRED RESERVE IN ACCORDANCE WITH SECTION 1208 (B).

B-154368, SEPTEMBER 4, 1964, 44 COMP. GEN. 124

PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD - MOST FAVORABLE FORMULA - RESTRICTIONS AN OFFICER OF THE ARMED SERVICES WHO PRIOR TO REACHING 60 YEARS OF AGE AND QUALIFYING FOR RETIREMENT UNDER 10 U.S.C. 1331 WAS TRANSFERRED TO THE RETIRED RESERVE WITH OVER 30 YEARS OF SERVICE UNDER 10 U.S.C. 1333 AND CONTINUED ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THE SAME GRADE UNTIL MEETING THE AGE REQUIREMENT OF SECTION 1331, WHEN HE WAS RETIRED FOR PHYSICAL DISABILITY PURSUANT TO SECTIONS 1201 AND 1372, IS NOT ENTITLED TO INCREASED RETIRED PAY UNDER FORMULA 3, 10 U.S.C. 1401, BASED ON SECTION 1333 SERVICE CREDITS, NOTWITHSTANDING THE OFFICER WAS CREDITED WITH THE ACTIVE SERVICE HE PERFORMED AFTER TRANSFER TO THE RETIRED RESERVE IN ACCORDANCE WITH SECTION 1208 (B), SECTION 1331 (A) (4) IMPOSING THE ADDITIONAL REQUIREMENT TO AGE AND SERVICE OF NOT BEING ENTITLED TO RETIRED PAY "UNDER ANY OTHER PROVISION OF LAW," AND THE OFFICER RETIRED FOR PHYSICAL DISABILITY IS RESTRICTED TO THE COMPUTATION OF HIS RETIRED PAY TO FORMULA 1 OR 2 OF SECTION 1401, BASED ON PERCENTAGE OF DISABILITY.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, SEPTEMBER 4, 1964:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1964, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-AF-776, REQUESTING DECISION AS TO ENTITLEMENT OF LIEUTENANT COLONEL BENJAMIN F. DIES, USAF, RETIRED, TO ADJUSTMENT IN RETIRED PAY AS SHOWN ON THE VOUCHER ATTACHED TO YOUR LETTER. THE QUESTION PRESENTED IS AS FOLLOWS:

MAY A RESERVE MEMBER WHO HAS BEEN FOUND PHYSICALLY UNFIT FOR ACTIVE MILITARY SERVICE AND IS ELIGIBLE FOR RETIREMENT UNDER CHAPTER 61, TITLE 10, U.S. CODE:

(1) HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA 3, 10 U.S.C. 1401, IF OTHERWISE QUALIFIED,

(2) OR IS THE COMPUTATION RESTRICTED TO FORMULA 1 OR 2?

FORMULA 3, REFERRED TO ABOVE, IS APPLICABLE IN COMPUTING THE RETIRED PAY OF NONREGULAR MEMBERS AND FORMER MEMBERS WHO APPLY THEREFOR AFTER HAVING MET ALL THE REQUIREMENTS IN SECTION 1331 OF TITLE 10, U.S.C. FORMULA 1 APPLIES IN COMPUTING THE RETIRED PAY OF MEMBERS RETIRED FOR DISABILITY UNDER SECTION 1201 OR 1204 AND FORMULA 2 APPLIES IN COMPUTING THE RETIRED PAY OF MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205.

YOU STATE THAT COLONEL DIES WAS TRANSFERRED TO THE RETIRED RESERVE EFFECTIVE JULY 1, 1960, WITH OVER 30 YEARS OF SATISFACTORY FEDERAL SERVICE AND 19.16 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE UNDER 10 U.S.C. 1333. AT THAT TIME IT WAS CONTEMPLATED THAT, UPON REACHING THE AGE OF 60 YEARS ON JULY 19, 1962, AND THEREBY QUALIFYING FOR RETIRED PAY UNDER 10 U.S.C. 1331, HE WOULD APPLY FOR SUCH RETIRED PAY TO BE EFFECTIVE JULY 31, 1962. AFTER HE WAS TRANSFERRED IN HIS RESERVE STATUS, HOWEVER, HE CONTINUED SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THE SAME GRADE UNTIL JULY 31, 1962, WHEN HE WAS RELIEVED FROM ACTIVE DUTY AND RETIRED BY ORDER OF THE SECRETARY OF THE AIR FORCE PURSUANT TO SECTIONS 1201 AND 1372 OF TITLE 10, U.S.C. HE NEVER APPLIED FOR OR RECEIVED RETIRED PAY UNDER SECTION 1331.

THE RETIRED PAY OF A MEMBER RETIRED FOR DISABILITY UNDER SECTION 1201 IS FOR COMPUTATION UNDER FORMULA 1 OF SECTION 1401 OF TITLE 10, WHICH SPECIFIES 2 1/2 PERCENT OF YEARS OF SERVICE CREDITED UNDER SECTION 1208 OR THE PERCENTAGE OF DISABILITY ON DATE WHEN RETIRED, AS THE MEMBER ELECTS. COLONEL DIES ELECTED COMPUTATION UNDER FORMULA 1 (2) BASED ON HIS PERCENTAGE OF DISABILITY, 50 PERCENT, UPON ADVICE THAT HE WAS NOT ENTITLED TO CREDIT FOR HIS ACTIVE SERVICE AFTER TRANSFER TO THE RETIRED RESERVE. UPON NOTIFICATION OF AN OPINION DATED NOVEMBER 8, 1962, FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE TO THE EFFECT THAT HE WAS ENTITLED TO CREDIT FOR THE ACTIVE SERVICE PERFORMED AFTER TRANSFER TO THE RETIRED RESERVE AND WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA 3 OF SECTION 1401, THE MEMBER EXECUTED A SECOND ELECTION TO RECEIVE A MONTHLY RATE OF $412.30 "BASED ON 2 1/2 PERCENT OF BASE PAY MULTIPLIED BY NUMBER OF YEARS CREDITED FOR PERCENTAGE PURPOSES UNDER SEC. 1333, TITLE 10, USC.'

SECTION 1208 (B) PROVIDES THAT A NONREGULAR MEMBER OF THE ARMED FORCES SHALL BE CREDITED FOR THE PURPOSE OF CHAPTER 61 (RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY) "WITH THE NUMBER OF YEARS OF SERVICE THAT HE WOULD COUNT IF HE WERE COMPUTING HIS YEARS OF SERVICE UNDER SECTION 1333 OF THIS TITLE.' SECTION 1333 SPECIFIES THE SERVICE CREDITABLE, INCLUDING "HIS DAYS OF ACTIVE SERVICE.' SECTION 1334 (B) PRIOR TO SEPTEMBER 7, 1962, PROVIDED "TIME SPENT AFTER RETIREMENT OR TRANSFER TO THE RETIRED RESERVE MAY NOT BE CREDITED IN ANY COMPUTATION OF YEARS OF SERVICE UNDER THIS CHAPTER.' ON SEPTEMBER 7, 1962, HOWEVER, THAT SECTION WAS AMENDED BY PUBLIC LAW 87-651, 76 STAT. 509, TO PROHIBIT THE CREDITING UNDER CHAPTER 67 OF TIME SPENT AFTER RETIREMENT (WITHOUT PAY) FOR FAILURE TO CONFORM TO THE PRESCRIBED STANDARDS AND QUALIFICATIONS. THAT AMENDMENT WAS MADE EFFECTIVE AS OF AUGUST 10, 1956, FOR ALL PURPOSES. ACCORDINGLY, THERE IS NOW NO BASIS FOR DENYING COLONEL DIES CREDIT FOR HIS ACTIVE SERVICE FROM JULY 1, 1960, THROUGH JULY 31, 1962, AFTER TRANSFER TO THE RETIRED RESERVE IN THE COMPUTATION OF HIS YEARS OF SERVICE UNDER SECTION 1208 (B). WILL BE NOTED THAT SUCH CREDIT IS NOT BASED ON THE PROVISIONS OF SECTION 676 OF TITLE 10 WHICH PERTAIN ONLY TO MEMBERS WHO HAVE QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 BY MEETING THE AGE AND SERVICE REQUIREMENTS PRESCRIBED IN SECTION 1331 AND ARE RETAINED IN SERVICE BY ORDER OF THE SECRETARY. SINCE COLONEL DIES HAD NOT REACHED THE AGE OF 60 YEARS ON JULY 1, 1960, HE HAD NOT SO QUALIFIED AND SECTION 676 COULD HAVE NO APPLICATION TO HIM.

IT APPEARS THAT COLONEL DIES WAS CREDITED WITH 21.289 YEARS OF SERVICE COMPUTED UNDER SECTION 1333 TO DATE OF RETIREMENT, BY INCLUDING HIS ACTIVE SERVICE UP TO AND INCLUDING JULY 31, 1962. UNDER FORMULA 1 OF SECTION 1401 THOSE YEARS WOULD BE COUNTED AS 21 BASED ON THE FOOTNOTE TO THAT FORMULA WHICH READS:

BEFORE APPLYING PERCENTAGE FACTOR, CREDIT A PART OF A YEAR THAT IS SIX MONTHS OR MORE AS A WHOLE YEAR, AND DISREGARD A PART OF A YEAR THAT IS LESS THAN SIX MONTHS.

UNDER FORMULA 3 THE FRACTION OF A YEAR OF LESS THAN 6 MONTHS WOULD NOT BE DISREGARDED AND CONSEQUENTLY RETIRED PAY COMPUTED UNDER FORMULA 3 WOULD EXCEED THAT COMPUTED UNDER FORMULA 1 IN SUCH A CASE, WHEREAS RETIRED PAY COMPUTED UNDER FORMULA 1 WOULD EXCEED THAT COMPUTED UNDER FORMULA 3 IF THE FRACTION OF A YEAR IS 6 MONTHS OR MORE.

IN 37 COMP. GEN. 794 AND 38 COMP. GEN. 715 WE HELD THAT SINCE THE MEMBERS THERE INVOLVED HAD BEEN RETIRED FOR DISABILITY BUT WERE ALSO ENTITLED TO VOLUNTARY RETIREMENT WITH 20 YEARS OF SERVICE UNDER 10 U.S.C. 3911 AND 8911, RESPECTIVELY, THEY WERE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED UNDER WHICHEVER OF THE TWO METHODS GAVE THEM THE GREATEST BENEFITS IN ACCORDANCE WITH THE FOLLOWING PROVISION IN SECTION 1401:

HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

COLONEL DIES ON THE DATE OF RETIREMENT HAD MET THE AGE AND SERVICE REQUIREMENTS SPECIFIED IN SECTION 1331 AND PRESUMABLY HE WOULD HAVE APPLIED FOR RETIRED PAY UNDER THAT SECTION IF HE HAD NOT BEEN FOUND PHYSICALLY DISABLED AND RETIRED FOR THAT DISABILITY. HOWEVER, SECTION 1331 (A) PROVIDES IN ADDITION TO THE AGE AND SERVICE REQUIREMENTS THE FOLLOWING ADDITIONAL REQUIREMENT FOR QUALIFICATION THEREUNDER.

(4) HE IS NOT ENTITLED, UNDER ANY OTHER PROVISION OF LAW, TO RETIRED PAY FROM AN ARMED FORCE OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE.

WE HAVE HELD THAT THE RETIREMENT BENEFITS PROVIDED BY SECTION 1331 ARE INTENDED ONLY FOR THOSE NONREGULAR MEMBERS AND FORMER MEMBERS WHO ARE NOT COVERED BY ANY OTHER RETIREMENT LAW AND THAT SUCH PROVISION WAS NOT INTENDED AS AN ALTERNATE METHOD OF COMPUTING RETIRED PAY. 41 COMP. GEN. 458. SINCE COLONEL DIES WAS ENTITLED TO DISABILITY RETIRED PAY HE COULD NOT QUALIFY FOR RETIRED PAY UNDER SECTION 1331. HENCE, HE WAS NOT A PERSON WHO "WOULD OTHERWISE BE ENTITLED TO RETIRED PAY" UNDER THAT SECTION AND FORMULA 3 OF SECTION 1401 IS NOT APPLICABLE TO HIM. THE VOUCHER FORWARDED WITH YOUR LETTER IS NOT APPROVED FOR PAYMENT AND IS RETAINED IN THIS OFFICE.

QUESTION (1) IS ANSWERED IN THE NEGATIVE AND QUESTION (2) IS ANSWERED IN THE AFFIRMATIVE, UNLESS THE MEMBER CONCERNED IS ENTITLED TO HIGHER RETIRED PAY UNDER THE "MOST FAVORABLE" FORMULA DISCUSSED ABOVE PURSUANT TO SOME OTHER PROVISION OF LAW.

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