B-135847, JULY 7, 1958, 38 COMP. GEN. 5

B-135847, JULY 7, 1958, 38 COMP. GEN. 5

MILITARY PERSONNEL - MANDATORY RETIREMENT - EFFECTIVE DATE - LONGEVITY PAY PURPOSES - SERVICE AFTER MANDATORY RETIREMENT DATE SINCE THE RETIREMENT OF OFFICERS OF THE UNIFORMED SERVICES WHO COMPLETE 28 YEARS OF SERVICE COMPUTED AS PRESCRIBED IN 10 U.S.C. 8927 (A) IS MANDATORY UNDER 10 U.S.C. 8916 ON THE 30TH DAY AFTER COMPLETION OF THE SERVICE, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A, WHICH MAKES THE RETIREMENT EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE AND WHICH REQUIRES THAT RETIRED PAY BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED, THERE IS NO AUTHORITY FOR THE CREDIT OF SERVICE PERFORMED AFTER THE MANDATORY RETIREMENT DATE FOR LONGEVITY PAY PURPOSES.

TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, JULY 7, 1958:

THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, U.S. AIR FORCE, FORWARDED WITH TRANSMITTAL LETTER DATED APRIL 14, 1958, YOUR LETTER OF MARCH 17, 1958, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER FORWARDED THEREWITH STATED IN FAVOR OF LIEUTENANT COLONEL WILLIAM I. BARTON, A RETIRED AIR FORCE OFFICER. THIS REQUEST WAS APPROVED FOR SUBMISSION BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, AS AIR FORCE REQUEST NO. 336, AND THE VOUCHER IN THE AMOUNT OF $10.92 REPRESENTS THE DIFFERENCE IN THE OFFICER'S RETIRED PAY AS A LIEUTENANT COLONEL WITH OVER 14 YEARS' SERVICE AND AS A LIEUTENANT COLONEL WITH OVER 16 YEARS' SERVICE FOR BASIC PAY PURPOSES FOR THE MONTH OF FEBRUARY 1958.

THE PERTINENT FACTS CONCERNING THE OFFICER'S RETIRED STATUS APPEAR TO BE AS FOLLOWS:

(1) HE ACCEPTED APPOINTMENT AS MAJOR, ARMY OF THE UNITED STATES, JANUARY 31, 1942; HE ENTERED ACTIVE DUTY ON FEBRUARY 18, 1942; HE WAS APPOINTED MAJOR, AIR CORPS, REGULAR ARMY, IN 1947, AND PROMOTED TO LIEUTENANT COLONEL, UNITED STATES AIR FORCE, DECEMBER 31, 1949.

(2) HE COMPLETED 28 YEARS' SERVICE (COMPUTED AS PROVIDED IN 10 U.S.C. 8927 (A), 70A STAT. 553), ON DECEMBER 12, 1957, MAKING HIS RETIREMENT MANDATORY ON THE 30TH DAY FOLLOWING AS PROVIDED IN 10 U.S.C. 8916, 70A STAT. 550, SUBJECT, HOWEVER, TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A.

(3) HE REMAINED ON ACTIVE DUTY THROUGH JANUARY 31, 1958, AND, BY VIRTUE OF THE PROVISIONS OF 5 U.S.C. 47A, HIS RETIREMENT BECAME EFFECTIVE AS OF FEBRUARY 1, 1958.

THE OFFICER'S RETIRED PAY FOR THE MONTH OF FEBRUARY 1958 HAS BEEN COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 14 BUT NOT OVER 16 CUMULATIVE YEARS OF SERVICE. IT IS STATED THAT CREDIT AS FOR OVER 16 YEARS' SERVICE IS CONSIDERED IMPROPER INASMUCH AS IT IS BELIEVED THAT SECTION 6, ACT OF JUNE 30, 1906, 34 STAT. 763, AS AMENDED, 5 U.S.C. 84 "REQUIRES EXCLUSION OF THE 31ST DAY OF ANY CALENDAR MONTH IN COMPUTING SERVICE FOR BASIC PAY PURPOSES.'

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930 (QUOTING FROM 5 U.S.C. 47A), PROVIDES:

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS WAS ON APRIL 23, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.

AS ABOVE STATED, THE OFFICER'S RETIREMENT WAS MANDATORY UNDER THE AUTHORITY OF 10 U.S.C. 8916 ON THE 30TH DAY AFTER HE COMPLETED 28 YEARS OF SERVICE COMPUTED AS PRESCRIBED IN 10 U.S.C. 8927 (A), SUBJECT, HOWEVER, TO THE PROVISIONS OF 5 U.S.C. 47A. SINCE THE OFFICER COMPLETED 28 YEARS OF SERVICE ON DECEMBER 12, 1957, HIS RETIREMENT WAS MANDATORY ON THE 30TH DAY FOLLOWING, BUT SUCH RETIREMENT DID NOT BECOME EFFECTIVE BY VIRTUE OF 5 U.S.C. 47A UNTIL FEBRUARY 1, 1958. ACCORDINGLY, SINCE IT IS EXPRESSLY PROVIDED IN 5 U.S.C. 47A THAT THE RATE OF RETIRED PAY SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD OTHERWISE HAVE OCCURRED AND SINCE ON THAT DATE (THE 30TH DAY FOLLOWING DECEMBER 12, 1957) THE OFFICER CLEARLY DID NOT HAVE OVER 16 CUMULATIVE YEARS OF SERVICE FOR THE PURPOSE OF COMPUTING HIS MONTHLY BASIC PAY, NO BASIS IS PRESENTED TO COMPUTE THE RETIRED LIEUTENANT COLONEL BARTON, EFFECTIVE FROM FEBRUARY 1, 1958, ON THE BASIS OF OVER 16 YEARS' CREDITABLE SERVICE. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY, AND THE VOUCHER, WHICH IS NOT PROPERLY PAYABLE, WILL BE RETAINED HERE.

YOU REQUEST FURTHER INFORMATION AS FOLLOWS:

IF THE ATTACHED VOUCHER IS IMPROPER FOR PAYMENT BECAUSE OF THE ACT OF 23 APRIL 1930, INFORMATION IS REQUESTED AS TO WHETHER IT WOULD BE PROPER EXCEPT FOR THE REQUIREMENT IN 10 U.S.C. 8916 (A) THAT RETIREMENT MUST BE ON THE 30TH DAY AFTER COMPLETING 28 "YEARS SERVICE? " IN OTHER WORDS MAY SERVICE COMMENCING AND ENDING ON THE 31ST DAY OF A CALENDAR MONTH, WITH NO BREAK IN BETWEEN, BE CONSIDERED AS OVER ONE MONTH FOR BASIC PAY PURPOSES IN COMPUTING RETIRED PAY?

INFORMATION IS FURTHER REQUESTED AS TO WHETHER YOUR ANSWER WOULD BE DIFFERENT IF ALL SERVICE DURING THE PERIOD 31 JANUARY 1942 THROUGH 31 JANUARY 1958 WAS SERVED ON ACTIVE DUTY.

UNDER THE AUTHORITY OF 31 U.S.C. 74, DISBURSING OFFICERS ARE ENTITLED TO DECISIONS ONLY UPON SPECIFIC QUESTIONS INVOLVED IN A VOUCHER WHICH IS PROPERLY BEFORE THEM FOR PAYMENT. 22 COMP. GEN. 588. SINCE THE ADDITIONAL INFORMATION REQUESTED PERTAINS TO AN ISSUE NOT INVOLVED IN THE VOUCHER WHICH YOU HAVE SUBMITTED ON THE CLAIM OF LIEUTENANT COLONEL WILLIAM I. BARTON, NO ACTION MAY BE TAKEN BY THIS OFFICE IN CONNECTION THEREWITH.