B-137939, JANUARY 29, 1959, 38 COMP. GEN. 521

B-137939, JANUARY 29, 1959, 38 COMP. GEN. 521

MILITARY PERSONNEL - RETIRED PAY - WARRANT OFFICERS - HIGHER RANK A WARRANT OFFICER WHO, AT THE TIME OF VOLUNTARY RETIREMENT, ELECTS TO BE ADVANCED TO A HIGHER COMMISSIONED GRADE BUT WHO, UNDER SECTION 14 (F) OF THE WARRANT OFFICER ACT OF 1954, RECEIVES RETIRED PAY BASED ON THE WARRANT OFFICER RANK BECAUSE SUCH PAY OF RETIREMENT IS GREATER THAN THE PAY OF THE COMMISSIONED RANK IS NOT THEREAFTER PRECLUDED FROM ENTITLEMENT TO THE RETIRED PAY OF THE HIGHER RANK WHENEVER IT EXCEEDS THE RETIRED PAY OF THE WARRANT OFFICER RANK.

TO COMMANDER R. A. WILSON, DEPARTMENT OF THE NAVY, JANUARY 29, 1959:

THE COMPTROLLER OF THE NAVY HAS FORWARDED YOUR LETTER OF OCTOBER 30, 1958, REQUESTING DECISION AS TO THE PROPER RATE OF RETIRED PAY IN THE CASE OF LIEUTENANT (JUNIOR GRADE) ROBERT E. PEEL, UNITED STATES NAVY, RETIRED. THE REQUEST HAS BEEN ASSIGNED NO. 378 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 14 (A) OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 162, PROVIDED FOR THE VOLUNTARY RETIREMENT OF WARRANT OFFICERS WITH AT LEAST 20 YEARS' ACTIVE SERVICE. SECTION 14 (D), 68 STAT. 163, PROVIDED THAT WARRANT OFFICERS RETIRED UNDER SECTION 14 SHOULD RECEIVE RETIRED PAY COMPUTED AS 2 1/2 PERCENT OF BASIC PAY TIMES YEARS OF SERVICE CREDITABLE IN COMPUTING BASIC PAY. SECTION 14 (F), 68 STAT. 164, PROVIDED THAT:

THE PROVISIONS OF THIS SECTION OR SECTION 13 SHALL NOT PREVENT ANY WARRANT OFFICER FROM ELECTING TO BE PLACED ON THE RETIRED LIST IN THE HIGHEST GRADE AND WITH THE HIGHEST RETIRED PAY TO WHICH HE MAY BE ENTITLED UNDER ANY OTHER LAW. HOWEVER, WHEN THE RATE OF PAY OF SUCH HIGHEST GRADE IS UNDER ANY OTHER LAW LESS THAN THE PAY OF ANY WARRANT GRADE SATISFACTORILY HELD ON ACTIVE DUTY, THE RETIRED PAY SHALL BE BASED ON THE HIGHER RATE OF PAY.

SECTION 14 (A) OF THE ABOVE ACT WAS SUPERSEDED AUGUST 10, 1956, BY TITLE 10, U.S.C. SECTION 1293. SECTIONS 14 (D) AND 14 (F) WERE SUPERSEDED BY SECTION 1401 OF TITLE 10. THE LATTER SECTION CONTAINS THE FOLLOWING STATEMENT:

* * * 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.

IT IS STATED THAT LIEUTENANT PEEL WAS RETIRED MARCH 1, 1955, UNDER THE PROVISIONS OF SECTIONS 14 (A) AND 14 (D) OF THE WARRANT OFFICER ACT OF 1954 AS A CHIEF WARRANT OFFICER (W-3), WITH 20 YEARS-, 16 DAYS' ACTIVE SERVICE, AND THAT IN ACCORDANCE WITH HIS ELECTION HE WAS ADVANCED, EFFECTIVE AS OF THE DATE OF HIS RETIREMENT, TO THE RANK OF LIEUTENANT (JUNIOR GRADE) ON THE RETIRED LIST, SUCH ADVANCEMENT BEING UNDER 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28 34 U.S.C. 3501. ALSO, IT IS STATED THAT LIEUTENANT PEEL'S RETIRED PAY BASED ON THE RANKS OF CHIEF WARRANT OFFICER (W-3), AND OF LIEUTENANT (JUNIOR GRADE) WOULD BE AS FOLLOWS:

PERIOD CWO (W-S) LT. JG. 3/1/55-3/31/55---------------------------------- $181.58 $181.55 4/1/55-5/31/58---------------------------------- 202.80 206.70 6/1/58-TO DATE---------------------------------- 214.97 219.10

THE QUESTION PRESENTED IS WHETHER LIEUTENANT PEEL'S RETIRED PAY IS REQUIRED TO BE BASED ON HIS RANK OF CHIEF WARRANT OFFICER (W-3) CONTINUOUSLY FROM MARCH 1, 1955, BECAUSE THE PAY OF THAT RANK WAS GREATER THAN THE PAY OF A LIEUTENANT (JUNIOR GRADE) ON THAT DAY, OR WHETHER HIS RETIRED PAY MAY BE BASED ON THE RANK OF CHIEF WARRANT OFFICER (W-3) FROM MARCH 1, 1955, TO MARCH 31, 1955, AND ON THE RANK OF LIEUTENANT (JUNIOR GRADE) BEGINNING APRIL 1, 1955. IT IS STATED THAT THE OFFICER WAS PAID $181.58 (CHIEF WARRANT OFFICER) FOR THE MONTH OF MARCH 1955, $206.70 PER MONTH (LIEUTENANT (JUNIOR GRADE) ( FOR THE PERIOD APRIL 1, 1955, TO MAY 31, 1958, $219.10 PER MONTH (LIEUTENANT (JUNIOR GRADE) ( FOR THE PERIOD JUNE 1, 1958, TO SEPTEMBER 30, 1958, AND $214.97 PER MONTH (CHIEF WARRANT OFFICER) FROM OCTOBER 1, 1958.

IT IS CLEAR FROM ITS LANGUAGE THAT THE INTENT OF THE LAST SENTENCE OF SECTION 14 (F) OF THE WARRANT OFFICER ACT OF 1954 WAS TO INSURE THAT A WARRANT OFFICER, ADVANCED TO A HIGHER RANK ON THE RETIRED LIST, SHOULD RECEIVE THE RETIRED PAY OF A WARRANT OFFICER OR THAT OF THE HIGHER RANK, WHICHEVER WAS GREATER. THIS WAS AN ENTIRELY BENEFICIAL PROVISION AND WE DO NOT THINK THAT THE CONGRESS INTENDED TO IMPOSE ANY MONETARY PENALTY IN CONNECTION WITH ITS OPERATION UNDER ANY CIRCUMSTANCES. IN OTHER WORDS, WE DO NOT BELIEVE THAT AN INDIVIDUAL ENTITLED TO THE RETIRED PAY OF A WARRANT OFFICER AT THE TIME OF HIS RETIREMENT--- BECAUSE SUCH PAY WAS GREATER THAN THAT OF A HIGHER RANK TO WHICH HE OTHERWISE WAS ENTITLED--- WAS PRECLUDED FROM ENTITLEMENT THEREAFTER TO THE RETIRED PAY OF THE HIGHER RANK WHENEVER IT EXCEEDED THE RETIRED PAY OF HIS WARRANT OFFICER RANK. TO SO CONCLUDE WOULD BE TO HOLD THAT, IF A MAN HAD ONCE RECEIVED RETIRED PAY AS A WARRANT OFFICER, HE COULD NEVER THEREAFTER RECEIVE THE RETIRED PAY OF A HIGHER RANK TO WHICH HE OTHERWISE WAS ENTITLED. WE THINK THAT THE WORK "WHEN" IN THE STATUTE IS SYNONYMOUS WITH "WHENEVER.'

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED BY SAYING THAT LIEUTENANT PEEL WAS ENTITLED TO THE RETIRED PAY OF A CHIEF WARRANT OFFICER (W-3) FROM MARCH 1 TO 31, 1955, AND HAS BEEN ENTITLED TO THE RETIRED PAY OF A LIEUTENANT (JUNIOR GRADE) THEREAFTER. COMPARE GENERALLY, 37 COMP. GEN. 446 AND 794, CONSTRUING SECTION 1401 OF TITLE 10, UNITED STATES CODE.