B-134612, MAR 19, 1959

B-134612, MAR 19, 1959

PRECIS-UNAVAILABLE

SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF FEBRUARY 12, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), CONCERNING OUR DECISION OF DECEMBER 18, 1958, B-134612, HOLDING THAT ENLISTED MEMBERS WHO WERE RETIRED PRIOR TO JUNE 1, 1958, UNDER THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED, 10 U.S.C. 948, 1952 ED. (NOW CODIFIED IN 10 U.S.C. 3914, 3991, 70A STAT. 225, 232, WITH RESPECT TO THE ARMY, AND IN 10 U.S.C. 8914, 8991, 70A STAT. 550, 556, WITH RESPECT TO THE AIR FORCE), MAY NOT COUNT FOR PURPOSES OF COMPUTING THEIR RETIRED PAY THE ACTIVE SERVICE PERFORMED BY THEM DURING THE PERIOD BETWEEN THE DATE OF THEIR APPLICATION FOR RETIREMENT AND THE ACTUAL DATE OF THEIR RETIREMENT.

IT IS STATED IN THE LETTER OF FEBRUARY 12, THAT THE MILITARY DEPARTMENTS HAVE NEVER CONSTRUED THESE STATUTORY PROVISIONS AS PROHIBITING SUCH ENLISTED MEMBERS FROM COUNTING ACTIVE SERVICE BETWEEN THE DATE OF APPLICATION AND DATE OF RETIREMENT AND IT IS POINTED OUT THAT THE PAYMENTS INVOLVED IN SUCH CASES HAVE NOT HERETOFORE BEEN QUESTIONED BY THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OF THE RETIRED PAY ACCOUNTS OF THE ENLISTED PERSONNEL CONCERNED. IT IS FURTHER STATED THAT THE MILITARY DEPARTMENTS ESTIMATE THE NECESSARY ADJUSTMENT OF RETIRED PAY, INCLUDING COLLECTION ACTION AS TO THE AMOUNTS OVERPAID "CANNOT BE TAKEN IN THESE CASES WITHOUT A SCREENING OF APPROXIMATELY 27,000 RETIRED PAY RECORDS." ALSO, IT IS FURTHER ESTIMATED THAT "PERCENTAGE-WISE COMPARATIVELY FEW ENLISTED MEMBERS ARE AFFECTED" BY THE DECISION OF DECEMBER 18, 1958.

THE PROVISIONS OF SECTIONS 3991 AND 8991, TITLE 10, U. S. CODE, WERE AMENDED BY SECTION 6(8) OF THE ACT OF MAY 20, 1958, 72 STAT. 129. ACCORDANCE WITH SUCH ADMENDMENT, ENLISTED MEMBERS WHO HAVE RETIRED ON OR SUBSEQUENT TO JUNE 1, 1958, UNDER THE AUTHORITY OF 10 U.S.C. 3914 OR 8914, ARE ENTITLED TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THE RATE OF MONTHLY BASIC PAY TO WHICH ENTITLED ON THE DAY BEFORE THEY RETIRED. HENCE, IN THE COMPUTATION OF THEIR RETIRED PAY SUCH ENLISTED MEMBERS RECEIVE CREDIT FOR THE PERIOD ELAPSING BETWEEN THE DATE OF FILING APPLICATION FOR RETIREMENT AND THE ACTUAL DATE OF RETIREMENT, WHEREAS UNDER THE HOLDING IN OUR DECISION OF DECEMBER 18, 1958 (CONSTRUING THE APPLICABLE PROVISIONS OF LAW IN EFFECT PRIOR TO THE AMENDMENTS CONTAINED IN SECTION 6(8) OF THE ACT OF MAY 20, 1958), MEMBERS WHO WERE RETIRED PRIOR TO JUNE 1, 1958, MAY NOT COUNT SUCH SERVICE IN THE COMPUTATION OF THEIR RETIRED PAY.

IN VIEW OF THE RESULTING DISCREPANCY IN THE RETIRED PAY STATUS OF THOSE ENLISTED MEMBERS RETIRED BEFORE AND THOSE RETIRED ON OR AFTER JUNE 1, 1958, IT IS STATED THAT THE DEPARTMENT OF DEFENSE HAS INITIATED ACTION TO ATTEMPT TO HAVE THE CONGRESS CLARIFY THE MATTER BY ENACTING LEGISLATION WHICH WOULD MAKE IT CLEAR THAT THE COUNTING OF SUCH ACTIVE SERVICE FOR PAY PURPOSES WAS AUTHORIZED. IT IS REQUESTED THAT THE DEPARTMENT OF DEFENSE "BE PERMITTED TO WITHHOLD ADJUSTMENTS ON RETIRED PAY AND COLLECTION ACTION *** UNTIL THE CONGRESS HAS AN OPPORTUNITY TO CONSIDER SUCH LEGISLATION."

IN CONNECTION WITH THAT REQUEST, DUE CONSIDERATION MUST BE GIVEN TO THE PROVISIONS OF THE ACT OF MAY 19, 1947, 61 STAT. 101, 31 U.S.C. 82I, WHICH REQUIRE THAT THE MONTHLY OR QUARTERLY ACCOUNTS OF ANY DISBURSING, ACCOUNTABLE, OR CERTIFYING OFFICER OF THE GOVERNMENT "SHALL BE SETTLED BY THE GENERAL ACCOUNTING OFFICE WITHIN A PERIOD OF NOT TO EXCEED THREE YEARS FROM THE DATE OF THE RECEIPT OF THE ACCOUNT BY THE GENERAL ACCOUNTING OFFICE." IN ACCORDANCE WITH THAT ACT, EXCEPTIONS FOUND IN THE AUDIT OF AN ACCOUNT MUST BE STATED AND INCLUDED IN A SETTLEMENT WITHIN THE THREE-YEAR PERIOD INDICATED. HOWEVER, COLLECTION ACTION AGAINST THE PAYEES OF THE CLASS OF OVERPAYMENTS ABOVE REFERRED TO WHICH ARE NOW OF RECORD, OR WHICH MAY BE DISCOVERED IN THE USUAL AUDIT OF RETIRED PAY ACCOUNTS, MAY BE DEFERRED UNTIL THE CLOSE OF THE FIRST SESSION OF THE 86TH CONGRESS. ALSO, YOU ARE FURTHER ADVISED THAT SCREENING OF THE "APPROXIMATELY 27,000 RETIRED PAY RECORDS" NEED NOT BE UNDERTAKEN AT THIS TIME PENDING YOUR SUBMISSION OF THE MATTER TO THE PRESENT SESSION OF CONGRESS FOR LEGISLATIVE RELIEF.