B-154898, SEP. 11, 1964

B-154898, SEP. 11, 1964

TO MAJOR G. OPACIC, USMCR, DISBURSING OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1964, WHICH WAS FORWARDED TO THIS OFFICE BY LETTER OF THE COMMANDANT, UNITED STATES MARINE CORPS, DATED AUGUST 3, 1964, REQUESTING AN ADVANCE DECISION AS TO THE PROPER RATE OF RETIRED PAY WHICH MAY BE PAID TO CHIEF WARRANT OFFICER CHANCY M. EDWARDS, 014997, USMC, RETIRED.

YOUR LETTER DISCLOSES THAT CHIEF WARRANT OFFICER EDWARDS WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF SERGEANT MAJOR, E-9, ON MARCH 31, 1964, UNDER AUTHORITY OF 10 U.S.C. 6330 (B). AT THE TIME OF HIS TRANSFER THE MEMBER HAD COMPLETED 36 YEARS, 2 MONTHS AND 16 DAYS' SERVICE OF WHICH 28YEARS, 2 MONTHS AND 16 DAYS WAS ACTIVE SERVICE. EFFECTIVE MAY 1, 1964, HE WAS PLACED ON THE RETIRED LIST OF ENLISTED MEN OF THE MARINE CORPS, UNDER AUTHORITY OF 10 U.S.C. 6331 (A), AND THE SECRETARY OF THE NAVY HAVING DETERMINED THAT HE HAD SERVED SATISFACTORILY IN THE TEMPORARY GRADE OF CHIEF WARRANT OFFICER, W-2, HE WAS ADVANCED CONCURRENTLY ON THE RETIRED LIST TO THAT GRADE AS AUTHORIZED BY 10 U.S.C. 6151 (A). YOU STATE THAT RETIRED PAY AS AN ENLISTED MAN EXCEEDS THAT AUTHORIZED IN HIS WARRANT OFFICER GRADE AND ADD THAT YOU ARE NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD SAVE TO THE MEMBER THE GREATER AMOUNT OF RETIRED PAY AS AN ENLISTED MAN.

SECTION 6331 (C) OF TITLE 10, U.S. CODE, PROVIDES THAT, UNLESS OTHERWISE ENTITLED TO HIGHER PAY, EACH MEMBER TRANSFERRED TO THE RETIRED LIST UNDER THAT SECTION IS ENTITLED TO BE PAID RETIRED PAY AT THE SAME RATE AS THE RETAINER PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS TRANSFER TO THE RETIRED LIST. SINCE MR. EDWARDS WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF SERGEANT MAJOR, E-9, HE IS ENTITLED TO BE PAID THE RETIRED PAY OF THAT GRADE, UNLESS HIS RETIRED PAY IS REQUIRED TO BE COMPUTED ON THE BASIS OF THE BASIC PAY OF A CHIEF WARRANT OFFICER, W-2, IN VIEW OF THE PROVISIONS OF 10 U.S.C. 6151 (C).

SUBSECTIONS 6151 (A), (C) AND (D) OF TITLE 10, UNITED STATES CODE, PROVIDE AS FOLLOWS:

"/A) UNLESS OTHERWISE ENTITLED TO A HIGHER RETIRED GRADE, EACH MEMBER, OTHER THAN A RETIRED MEMBER, OF THE NAVY OR THE MARINE CORPS SHALL, WHEN RETIRED, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AS DETERMINED BY THE SECRETARY OF THE NAVY.

"/C) EACH FORMER MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE WHO IS ADVANCED ON THE RETIRED LIST UNDER THIS SECTION IS ENTITLED TO RETIRED PAY BASED UPON THE GRADE TO WHICH ADVANCED. SUCH RETIRED PAY SHALL BE AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE TO WHICH ADVANCED, DETERMINED BY THE SAME PERIOD OF SERVICE USED TO DETERMINE THE BASIC PAY OF THE GRADE UPON WHICH HIS RETAINER PAY IS BASED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITABLE FOR HIS RETAINER PAY AT THE TIME OF RETIREMENT, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED.

"/D) A MEMBER WHO IS ADVANCED ON THE RETIRED LIST UNDER THIS SECTION FROM THE GRADE OF WARRANT OFFICER, W-1, OR FROM AN ENLISTED GRADE TO A COMMISSIONED GRADE, AND WHO APPLIES TO THE SECRETARY WITHIN THREE MONTHS AFTER HIS ADVANCEMENT, SHALL, IF THE SECRETARY APPROVES, BE RESTORED ON THE RETIRED LIST TO HIS FORMER WARRANT OFFICER OR ENLISTED GRADE, AS THE CASE MAY BE. A MEMBER WHO IS RESTORED TO HIS FORMER GRADE UNDER THIS SUBSECTION IS THEREAFTER CONSIDERED FOR ALL PURPOSES AS A WARRANT OFFICER, W-1, OR AN ENLISTED MEMBER, AS THE CASE MAY BE.'

IN VIEW OF THE USE OF THE WORD "SHALL" IN SUBSECTIONS 6151 (A) AND (C), A MEMBER COMING WITHIN THE PURVIEW THEREOF IS REQUIRED TO HAVE HIS MONTHLY RETIRED PAY COMPUTED ON THE BASIS OF THE ACTIVE-DUTY PAY OF THE HIGHEST OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY, SINCE THAT WORD IS USED IN AN IMPERATIVE SENSE. SEE 10 U.S.C. 101 (28). LIKE YOU, THIS OFFICE IS UNAWARE OF ANY PROVISION OF LAW WHICH WOULD SAVE TO THE MEMBER THE GREATER AMOUNT OF RETIRED PAY--- COMPUTED ON THE BASIS OF HIS BASIC PAY AS AN ENLISTED MAN, IT BEING NOTED THAT THE TIME SPECIFIED IN 10 U.S.C. 6151 (D) FOR MAKING APPLICATION FOR RESTORATION TO AN ENLISTED STATUS IN HIS CASE HAS EXPIRED.

IN 29 COMP. GEN. 412, THERE WAS CONSIDERED THE CASE OF A COMMISSIONED WARRANT OFFICER OF THE NAVY WHO, UNDER THE SUBSTANTIALLY SIMILAR PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF A LIEUTENANT. WAS HELD THAT HIS RETIRED PAY WAS AUTHORIZED TO BE COMPUTED ONLY ON THE BASIS OF THE ACTIVE-DUTY PAY OF HIS HIGHER TEMPORARY RANK, NOTWITHSTANDING THE FACT THAT THE RETIRED PAY OF HIS PERMANENT RANK OF COMMISSIONED WARRANT OFFICER WOULD BE HIGHER. THE CONCLUSION REACHED IN THAT DECISION IS EQUALLY APPLICABLE HERE. ACCORDINGLY, ON THE PRESENT RECORD, MR. EDWARDS' RETIRED PAY IS AUTHORIZED TO BE COMPUTED ONLY ON THE BASIS OF THE MONTHLY BASIC PAY OF A CHIEF WARRANT OFFICER, W-2. SEE ALSO 30 COMP. GEN. 217. COMPARE 34 COMP. GEN. 161 AND DECISION OF AUGUST 12, 1964, B-154379, 44 COMP. GEN. - . ..END :