B-125149, DECEMBER 5, 1955, 35 COMP. GEN. 324

B-125149, DECEMBER 5, 1955, 35 COMP. GEN. 324

PAY - RETIRED - AVIATION CADETS - INCREASES UNDER THE CAREER INCENTIVE ACT OF 1955 THE RATE OF PAY FOR AVIATION CADETS IS ESTABLISHED BY SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 2 (3) OF THE CAREER INCENTIVE ACT OF 1955 AND SINCE THIS RATE REPRESENTS AN INCREASE OVER THAT PAID PRIOR TO APRIL 1, 1955--- THE EFFECTIVE DATE OF THE CAREER INCENTIVE ACT OF 1955--- RETIRED AVIATION CADETS WHO HAVE HAD THEIR PAY RECOMPUTED PURSUANT TO SECTION 201 (E) ARE PRECLUDED FROM RECEIVING THE INCREASE PROVIDED IN SECTION 5 OF THE CAREER INCENTIVE ACT OF 1955 FOR RETIRED ENLISTED MEN NOT OTHERWISE RECEIVING SUCH INCREASE.

TO THE SECRETARY OF DEFENSE, DECEMBER 5, 1955:

REFERENCE IS MADE TO LETTER OF AUGUST 8, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION ON THREE QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 125 OF THE MILITARY PAY AND ALLOWANCES COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. SHOULD THE RETIRED PAY OF AVIATION CADETS WHO WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BE RETIRED FOR PHYSICAL DISABILITY BETWEEN 1 OCTOBER 1949 AND 31 MARCH 1955, BE ADJUSTED EFFECTIVE 1 APRIL 1955 BASED UPON THE FOLLOWING COMPUTATION: ONE-HALF THE BASIC PAY OF PAY GRADE 10-1 WITH LESS THAN TWO YEARS SERVICE INCREASED BY 6 PERCENTUM TIMES THE PERCENTAGE OF DISABILITY?

2. SHOULD THE RETIRED PAY OF AVIATION CADETS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR RETIRED FOR PHYSICAL DISABILITY ON OR AFTER 1 APRIL 1955 BE COMPUTED BASED UPON ONE-HALF OF THE BASIC PAY OF PAY GRADE 9 -1 WITH LESS THAN TWO YEARS SERVICE INCREASED BY 6 PERCENTUM TIMES THE PERCENTAGE OF DISABILITY?

3. WOULD THE ANSWER BE THE SAME IN THE CASE OF AN AVIATION CADET WITH OVER TWO YEARS SERVICE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR RETIRED FOR PHYSICAL DISABILITY?

UNDER THE PROVISIONS OF SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233, AS ADDED BY SECTION 2 (3) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, 37 U.S.C. 232 (E) (F), AVIATION CADETS ENLISTED OR APPOINTED UNDER THE ARMY AVIATION CADET ACT, 55 STAT. 239, 10 18.S. CODE 296A, AS AMENDED, OR UNDER THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737, 34 U.S. CODE 850A, AS AMENDED, ARE ENTITLED TO MONTHLY PAY AT THE RATE OF 50 PERCENTUM OF THE BASIC PAY OF A COMMISSIONED OFFICER IN PAY GRADE 10-1 WITH LESS THAN TWO CUMULATIVE YEARS OF SERVICE. THIS CONSTITUTED A RAISE IN PAY OVER THAT AUTHORIZED UNDER LAWS THEN IN EFFECT.

SECTION 5 OF THE CAREER INCENTIVE ACT, 37 U.S.C. 321A, IS AS FOLLOWS:

ANY PERSON NOW OR HEREAFTER ENTITLED TO RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY (INCLUDING PERSONS ENTITLED TO TEMPORARY DISABILITY RETIREMENT PAY) COMPUTED AT THE RATES PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 SHALL BE ENTITLED TO HAVE HIS PAY COMPUTED AT THE RATES PRESCRIBED BY THAT SECTION, AS AMENDED BY THIS ACT. FOR THE PURPOSES OF THAT COMPUTATION, AN OFFICER WITH LESS THAN THREE YEARS OF SERVICE FOR PAY PURPOSES, OR A WARRANT OFFICER OR AN ENLISTED PERSON WITH LESS THAN TWO YEARS OF SERVICE FOR PAY PURPOSES, RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST SHALL HAVE THOSE RATES INCREASED BY 6 PERCENTUM.

IT IS CLEAR THAT AVIATION CADETS RETIRED ON AND AFTER APRIL 1, 1955, FOR PHYSICAL DISABILITY UNDER THE 1949 ACT, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE INCREASED PAY AUTHORIZED IN SECTION 201 (E) AS ADDED BY SECTION 2 (3) OF THE 1955 ACT. WHILE IT MAY BE ARGUED THAT AVIATION CADETS RETIRED FOR PHYSICAL DISABILITY BETWEEN OCTOBER 1, 1949, AND MARCH 31, 1955, ARE NOT COVERED BY THE FIRST SENTENCE OF SECTION 5 OF THE 1955 ACT SINCE THEIR RETIRED PAY WAS NOT COMPUTED AT THE RATES PRESCRIBED IN SECTION 201 (A) OF THE 1949 ACT, IT MAY REASONABLY BE ASSUMED THAT THE CONGRESS REGARDED THE PROVISIONS OF SECTION 5 OF THAT ACT AS ENTITLING ALL PERSONNEL RETIRED UNDER THE 1949 ACT, INCLUDING AVIATION CADETS, TO AN INCREASE IN RETIRED PAY. IT IS STATED ON PAGE 7, SENATE REPORT NO. 125, TO ACCOMPANY H.R. 4720, LATER ENACTED AS THE CAREER INCENTIVE ACT OF 1955, THAT: " THE BILL PROVIDES THAT FOR THOSE PEOPLE RETIRED UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, THEIR RETIRED PAY WILL BE RECOMPUTED BASED UPON THE NEWLY ESTABLISHED BASIC PAY RATE OF H.R. 4720.' THE FOLLOWING STATEMENT APPEARS ON PAGE 10 OF HOUSE REPORT NO. 90 ON THE SAME BILL: " THIS WILL PROVIDE ALL RETIRED PERSONNEL WITH AN INCREASE, WHICH MANY OF THEM WOULD NOT HAVE OTHERWISE RECEIVED.'

IN VIEW OF THE FOREGOING AND IN THE ABSENCE OF AN EXPRESS PROVISION IN THE 1955 ACT STATING THAT AVIATION CADETS RETIRED UNDER THE 1949 ACT PRIOR TO THE EFFECTIVE DATE OF THE 1955 ACT ( APRIL 1, 1955) ARE NOT TO RECEIVE THE BENEFITS OF THE PAY RAISE GRANTED AVIATION CADETS UNDER THAT ACT, IT IS CONCLUDED THAT SUCH RETIRED PERSONNEL ARE ENTITLED TO HAVE THEIR RETIRED PAY RECOMPUTED ON THE BASIS OF THE INCREASED PAY GRANTED BY SECTION 201 (E) AS ADDED BY SECTION 2 (3) OF THE 1955 ACT. CF. 27 COMP. GEN. 37.

IT DOES NOT FOLLOW, HOWEVER, THAT AVIATION CADETS RETIRED EITHER BEFORE OR AFTER APRIL 1, 1955, ARE ALSO ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE 6 PERCENTUM INCREASE PROVIDED IN THE LAST SENTENCE OF SECTION 5 OF THE 1955 ACT. NOTHING HAS BEEN FOUND IN THAT ACT OR IN ITS LEGISLATIVE HISTORY WHICH INDICATES AN INTENT TO AUTHORIZE TWO INCREASES IN RETIRED PAY TO RETIRED AVIATION CADETS. WHILE AN AVIATION CADET IS REGARDED AS AN ENLISTED MAN UNDER SECTION 102 OF THE 1949 ACT (30 COMP. GEN. 431), THE RETIRED ENLISTED MEN REFERRED TO IN THE LAST SENTENCE OF SECTION 5 OF THE 1955 ACT ARE PERSONS WHO WOULD NOT HAVE RECEIVED AN INCREASE IN RETIRED PAY IF THAT SENTENCE HAD BEEN OMITTED FROM SECTION 5. RETIRED AVIATION CADETS ARE NOT IN THAT CATEGORY. CLEARLY, THE RATES WHICH ARE INCREASED BY 6 PERCENTUM ARE RATES FIXED IN SECTION 201 (A) OF THE 1949 ACT, AS AMENDED, WHICH WERE NOT INCREASED IN THE 1955 AMENDMENT OF THAT ACT. THE PAY OF AVIATION CADETS IS COVERED BY SECTION 201 (E) AND THE RATE THERE FIXED IS AN INCREASE OVER THAT PAID BEFORE THAT ACT WAS PASSED. IT IS STATED ON PAGE 19 OF SENATE REPORT NO. 125:

THE REASON FOR THE 6-PERCENT INCREASE FOR SUCH PERSONS IS BECAUSE THIS BILL PROVIDES FOR NO INCREASES IN BASIC PAY FOR ACTIVE-DUTY OFFICERS WITH LESS THAN 3 YEARS AND FOR WARRANT OFFICERS AND ENLISTED MEN WITH LESS THAN 2 YEARS OF SERVICE. WITHOUT THE LANGUAGE IN SECTION 5 SUCH PERSONS RETIRED FOR PHYSICAL DISABILITY WOULD RECEIVE NO INCREASE.

SIMILAR STATEMENTS APPEAR ON PAGES 10 AND 15 OF HOUSE REPORT NO. 90.

ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE AND QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.