B-139012, MAR 23, 1970

B-139012, MAR 23, 1970

PRECIS-UNAVAILABLE

L. MENDEL RIVERS, HOUSE OF REPRESENTATIVES:

THIS IS TO INFORM YOU THAT RECENT DECISIONS OF THE COURT OF CLAIMS AND RELATED ACTION BY THE DEPARTMENT OF JUSTICE REGARDING THE COMPUTATION OF THE RETIRED PAY OF A MEMBER OR A FORMER MEMBER OF AN ARMED SERVICE HAVE LED US TO MODIFY OUR DECISION OF JUNE 10, 1968, B 164281, 47 COMP. GEN. 722, AND THUS OBVIATE THE NEED FOR LEGISLATION TO AUTHORIZE RETIREMENT IN A HIGHER GRADE THAN THAT HELD AT THE TIME OF RETIREMENT EVEN THOUGH SUCH HIGHER GRADE WAS HELD IN A DIFFERENT MILITARY SERVICE. THE CHRONOLOGY REGARDING THIS ACTION IS SET FORTH BELOW.

IN DECISION OF MAY 3, 1950, 29 COMP. GEN. 437, FOR THE REASONS THERE STATED, THIS OFFICE HELD THAT A RETIRED MEMBER OF THE COAST GUARD WHO HAD SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING WHILE SERVING IN ONE OF THE OTHER BRANCHES OF THE ARMED SERVICES MAY NOT COMPUTE HIS RETIRED PAY ON THE ACTIVE-DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829.

WE HAVE ADHERED TO THAT GENERAL VIEW OF THE VARIOUS STATUTORY PROVISIONS AUTHORIZING THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE HIGHEST GRADE IN WHICH THE INDIVIDUAL SERVED SATISFACTORILY ON ACTIVE DUTY EXCEPT WHERE THE LANGUAGE OF THE STATUTE INDICATED OTHERWISE.

OVER THE YEARS VARIOUS BILLS HAVE BEEN INTRODUCED IN THE CONGRESS TO OVERCOME SUCH DECISIONS, BUT NONE HAS BEEN ENACTED INTO LAW. IN A SERIES OF DECISIONS THE UNITED STATES COURT OF CLAIMS HAS HELD THAT THE LANGUAGE IN THE VARIOUS STATUTES INDICATES AN INTENT OF CONGRESS THAT THE RETIRED PAY OF MEMBERS OF THE ARMED SERVICES SHOULD BE BASED UPON THE HIGHEST RANK HELD WHILE SERVING ON ACTIVE DUTY. SATTERWHITE V. UNITED STATES, 123 CT. CL. 342 (1952); FRICSTEDT V. UNITED STATES, 173 CT. CL. 447 (1965); NERI V. UNITED STATES, 145 CT. CL. 537 (1959); POWERS V. UNITED STATES, 185 CT. CL. 481 (1968); AND MILLER V. UNITED STATES, 180 CT. CL. 872 (1967).

WE HAVE RECENTLY BEEN ADVISED BY THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, THAT THE DEPARTMENT OF JUSTICE IS UNAWARE OF ANY ARGUMENT NOT PREVIOUSLY PRESENTED TO THE COURT OF CLAIMS WHICH MIGHT PERSUADE IT TO REVERSE ITS HOLDING IN THE FRICSTEDT, NERI AND OTHER SIMILAR CASES. UPON FURTHER REVIEW OF THE MATTER IT APPEARS THAT THE DEPARTMENT OF JUSTICE HAS PRESENTED TO THE COURT OF CLAIMS EVERY ARGUMENT SUGGESTED BY US IN THIS CLASS OF CASES. ON THE BASIS THAT FURTHER LITIGATION WOULD RESULT IN NO MATERIAL CHANGE IN ITS INTERPRETATION OF THE LAW, WE HAVE CONCLUDED THAT WE WILL FOLLOW THE BROAD PRINCIPLE ENUNCIATED BY THE COURT OF CLAIMS IN THOSE CASES.

IN OTHER WORDS, WHERE AN EXISTING STATUTE AUTHORIZES COMPUTATION OF THE RETIRED PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED SERVICE ON THE BASIS OF THE PAY OF THE GRADE IN WHICH THE INDIVIDUAL HAD SERVED SATISFACTORILY AND WHICH IS HIGHER THAN THE PAY OF THE GRADE ON WHICH HE OTHERWISE IS ENTITLED TO COMPUTE HIS RETIRED PAY, WE WILL AUTHORIZE PAYMENT, OR PASS TO CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS, A PAYMENT OF RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER GRADE, WITHOUT REGARD TO WHETHER THAT GRADE WAS A TEMPORARY OR PERMANENT GRADE, EVEN THOUGH THE ARMED SERVICE IN WHICH THE INDIVIDUAL HELD THAT HIGHER GRADE IS NOT THE SERVICE IN WHICH HE RETIRED, SUBJECT, OF COURSE, TO THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. HOWEVER, SUCH ACTION IN ANY PARTICULAR CASE WILL DEPEND UPON AN APPROPRIATE ADMINISTRATIVE DETERMINATION AS TO SATISFACTORY SERVICE WHERE SUCH DETERMINATION IS REQUIRED BY APPLICABLE STATUTES.

IT FOLLOWS THAT THE ENACTMENT OF SUBSTANTIVE LEGISLATION IS NOT NECESSARY TO INSURE THAT A MEMBER WHO RETIRES WILL RECEIVE, IN THE COMPUTATION OF HIS RETIRED PAY, THE ADVANTAGE OF SERVICE IN A GRADE HIGHER THAN THE ONE HELD AT RETIREMENT EVEN THOUGH THE HIGHER GRADE WAS HELD IN A DIFFERENT SERVICE.