B-122632, APR 15, 1955

B-122632, APR 15, 1955

PRECIS-UNAVAILABLE

COLONEL C.W. GRIFFIN, DEPT OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1954, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER (TRANSMITTED WITH YOUR LETTER) IN FAVOR OF MAJOR HARMON E. CHRISTIAN, A RETIRED NONREGULAR AIR FORCE OFFICER, IN THE AMOUNT OF $146.74, REPRESENTING THE DIFFERENCE IN RETIREMENT PAY COMPUTED AT THE RATE OF 65 PER CENTUM AND AT THE RATE OF 67 1/2 PER CENTUM OF HIS ACTIVE DUTY PAY FOR THE PERIOD JANUARY 1, 1954, THROUGH NOVEMBER 30, 1954.

ON DECEMBER 31, 1953, MAJOR CHRISTIAN WAS RETIRED FOR DISABILITY UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 823. AT THE TIME OF HIS RETIREMENT, THE NONREGULAR OFFICER HAD SERVED ON ACTIVE DUTY FROM APRIL 5, 1927, TO MARCH 5, 1930, AND FROM AUGUST 14, 1930, TO DECEMBER 31, 1953. THE OFFICER ELECTED TO RECEIVE RETIREMENT PAY UNDER SUBSECTION 402(D)(1) OF THE CAREER COMPENSATION ACT, 63 STAT. 818, WHICH PROVIDES THAT A MEMBER SO RETIRED SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF HIS RETIREMENT BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH HE IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THE ACT, MULTIPLIED BY 2 1/2 PER CENTUM, PROVIDED THAT FOR THE PURPOSE OF SUCH COMPUTATION FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR. SECTION 412 OF THE ACT, 63 STAT. 824, DEFINES "ACTIVE SERVICE" AS USED IN TITLE IV OF THE ACT FOR MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES TO MEAN THAT SERVICE WHICH IS EQUAL TO THE NUMBER OF YEARS WHICH WOULD BE USED BY SUCH MEMBERS AS A MULTIPLIER IN THE COMPUTATION OF THEIR RETIRED PAY PURSUANT TO SECTION 303 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088.

THE MULTIPLIER STIPULATED IN SECTION 303 OF THE ACT OF JUNE 29, 1949, IS "A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR)" WHICH SHALL CONSIST OF THE SUM OF THE TWO CATEGORIES THERE ENUMERATED, INCLUDING ALL PERIODS OF ACTIVE FEDERAL SERVICE. IT WAS HELD IN 29 COMP. GEN. 175 THAT THE PARENTHETICAL EXPRESSION "ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR" IN SECTION 303 WAS INTENDED TO REFER TO THE ENTIRE CLAUSE IMMEDIATELY PRECEDING IT, AND THAT 360 DAYS OF ACTIVE FEDERAL SERVICE ARE TO BE CONSIDERED A FULL YEAR'S SERVICE FOR THE PURPOSE OF COMPUTING RETIRED PAY UNDER THAT SECTION. THUS UNDER SECTION 412 OF THE CAREER COMPENSATION ACT A RESERVE MEMBER IS ENTITLED TO A CREDIT OF ONE YEAR AND FIVE DAYS FOR 365 DAYS' ACTIVE SERVICE IN THE COMPUTATION OF RETIRED PAY, WHEREAS THAT SECTION AUTHORIZES A CREDIT OF ONLY ONE YEAR FOR 365 DAYS' ACTIVE SERVICE FOR REGULAR MEMBERS.

FROM THE FACTS DISCLOSED, MAJOR CHRISTIAN HAD 9,607 DAYS' ACTIVE FEDERAL SERVICE AT THE TIME OF HIS RETIREMENT ON DECEMBER 31, 1953. THAT AMOUNT DIVIDED BY 360 YIELDS 26.686 TOTAL YEARS' CREDIT, WHICH WOULD ENTITLE HIM TO RETIREMENT PAY COMPUTED AT 67 1/2 PER CENTUM OF HIS MONTHLY BASIC PAY UNDER THE PROVISIONS OF SUBSECTION 402(D)(1) OF THE CAREER COMPENSATION ACT.

RESPECTING YOUR OBSERVATION THAT SUCH COMPUTATION WOULD AUTHORIZE RETIRED PAY IN A GREATER AMOUNT FOR A RESERVE OFFICER THAN FOR A REGULAR OFFICER WITH IDENTICAL PERIODS OF ACTIVE SERVICE, WHEREAS SECTION 402(I) OF THE CAREER COMPENSATION ACT STIPULATES THAT ALL MEMBERS OF RESERVE COMPONENTS HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES, IT MAY BE POINTED OUT THAT THE TERM "ACTIVE SERVICE" AS USED IN TITLE IV OF THE ACT IS SPECIFICALLY DEFINED IN SECTION 412. SINCE THE METHOD THERE PRESCRIBED TO BE USED IN COMPUTING THE NUMBER OF YEARS OF "ACTIVE SERVICE" IS NOT THE SAME FOR MEMBERS OF THE REGULAR AND RESERVE SERVICES, IT IS OBVIOUSLY POSSIBLE THAT, IN APPLYING THE FORMULA REQUIRED BY SECTION 412 TO ARRIVE AT THE NUMBER OF YEARS "ACTIVE SERVICE" PERFORMED BY AN INDIVIDUAL FOR RETIRED PAY PURPOSES UNDER SECTION 402 DURING A PERIOD OF IDENTICAL SERVICE ON ACTIVE DUTY BY A MEMBER OF A RESERVE COMPONENT AND A MEMBER OF THE REGULAR SERVICE, THE NUMBER OF YEARS OF "ACTIVE SERVICE" MIGHT NOT BE THE SAME IN EACH INSTANCE. A CONSTRUCTION OF A STATUTE WHICH WOULD RENDER DIFFERENT SECTIONS OF IT INCONSISTENT WITH EACH OTHER CANNOT BE THE TRUE ONE. PERRINE V. CHESAPEAKE AND DELAWARE CANAL CO., 9 HOW. 172, 187. IN INTERPRETING STATUTES, ALL PARTS OF A STATUTE SHOULD BE RECONCILED, INCLUDING THOSE THAT APPEAR TO BE INCONSISTENT, SO THAT EFFECT MAY BE GIVEN EACH PART, AND HENCE THE SEVERAL SECTIONS SHOULD BE READ AS CONSISTENT RATHER THAN CONFLICTING. HELVERING V. CREDIT ALLIANCE CO., 316 U.S. 107. WHERE THERE IS A SEEMING CONFLICT BETWEEN A GENERAL PROVISION AND A SPECIFIC PROVISION AND THE GENERAL PROVISION IS BROAD ENOUGH TO INCLUDE THE SUBJECT TO WHICH THE SPECIFIC PROVISION RELATES, THE SPECIFIC PROVISION SHOULD BE REGARDED AS AN EXCEPTION TO THE GENERAL PROVISION SO THAT BOTH MAY BE GIVEN EFFECT, THE GENERAL APPLYING ONLY WHERE THE SPECIFIC PROVISION IS INAPPLICABLE. TOWNSEND V. LITTLE, 109 U.S. 504, 512; UNITED STATES V. CHASE, 135 U.S. 255, 260; CITY OF TULSA V. SOUTHWESTERN BELL TELEPHONE CO., 75F. 2D 343, 351; 82 C. J. S. 722, STATUTES, SECTION 347B. HENCE SECTION 402(I) PROVIDES NO BASIS FOR ANY DIFFERENT CONCLUSION IN THIS CASE.

ACCORDINGLY, PAYMENT ON THE ENCLOSED VOUCHER WHICH WAS TRANSMITTED WITH YOUR LETTER IS AUTHORIZED, IF CORRECT IN OTHER RESPECTS.