B-156273, MAY 26, 1965

B-156273, MAY 26, 1965

TO LIEUTENANT COLONEL P. M. CALLINAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1965, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER SUBMITTED THEREWITH IN FAVOR OF SECOND LIEUTENANT RUSSELL C. ALDRIDGE, RETIRED, REPRESENTING AN INCREASE IN RETIRED PAY FOR THE PERIOD OCTOBER 8, 1954, TO DECEMBER 31, 1964, THE PERIOD PRIOR THERETO BEING BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061. THE AMOUNT PROPOSED FOR PAYMENT ON THE VOUCHER, $1,100.02, REPRESENTS THE DIFFERENCE BETWEEN THE RETIRED PAY ACTUALLY RECEIVED BY LIEUTENANT ALDRIDGE AND THE AMOUNT TO WHICH HE WOULD BE ENTITLED IF HIS RETIRED PAY WERE COMPUTED AT 75 PERCENT OF THE PAY OF A SECOND LIEUTENANT WITH OVER 26 YEARS OF SERVICE(MAXIMUM BASIC PAY) USING THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, AS AMENDED IN 1952 AND 1955, WITH PERCENTAGE INCREASES AS PRESCRIBED IN THE 1958 AND 1963 PAY ACTS.

THE RECORD SHOWS THAT LIEUTENANT ALDRIDGE WAS RETIRED ON DECEMBER 31, 1941, IN THE GRADE OF TECHNICAL SERGEANT UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, CH. 2515, 34 STAT. 1217, WITH 30 YEARS OF SERVICE. HIS ACTUAL SERVICE AT THAT TIME TOTALED 27 YEARS, 3 MONTHS AND 20 DAYS, WHICH WAS INCREASED TO 30 YEARS FOR THE PURPOSE OF QUALIFYING FOR RETIREMENT BY ALLOWING DOUBLE TIME CREDIT FOR FOREIGN SERVICE UNDER AUTHORITY OF THE ACT OF MAY 26, 1900, CH. 586, 31 STAT. 205, 209. HIS SERVICE ON ACTIVE DUTY AFTER RETIREMENT IN 1942, 1943, AND 1944 INCREASED HIS TOTAL ACTIVE SERVICE TO 29 YEARS AND 6 DAYS. ON THE BASIS OF THE SERVICE PERFORMED AFTER RETIREMENT IN THE GRADE OF SECOND LIEUTENANT, HE WAS ADVANCED TO THAT GRADE ON THE RETIRED LIST EFFECTIVE JUNE 29, 1948, PURSUANT TO THE PROVISIONS OF SUBSECTION 203 (E) OF THE ACT APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1086.

THE 1907 ACT AUTHORIZED RETIREMENT OF ENLISTED MEN AFTER 30 YEARS OF SERVICE AND PRESCRIBED RETIRED PAY AT "SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, * * *.' AT THE TIME OF LIEUTENANT ALDRIDGE'S RETIREMENT IN 1941 THE MAXIMUM LONGEVITY CREDIT WAS REACHED UPON COMPLETION OF 16 YEARS OF SERVICE. THEREFORE HE RECEIVED RETIRED PAY COMPUTED AT 75 PERCENT OF THE MAXIMUM PAY PROVIDED FOR A TECHNICAL SERGEANT PLUS THE ALLOWANCES THEN AUTHORIZED. THE PAY READJUSTMENT ACT, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 359 COMPLETELY REVISED THE PAY SCHEDULES, ELIMINATED THE ALLOWANCES FOR RETIRED MEN, AUTHORIZED LONGEVITY INCREASES FOR EACH 3 YEARS OF SERVICE, THE MAXIMUM BEING REACHED UPON COMPLETION OF 30 YEARS, AND AUTHORIZED CREDIT FOR ACTIVE SERVICE AFTER RETIREMENT. SINCE THE 1942 ACT DID NOT AUTHORIZE DOUBLE TIME CREDIT FOR FOREIGN SERVICE FOR LONGEVITY PURPOSES, LIEUTENANT ALDRIDGE UNDER THAT ACT RECEIVED RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY OF A TECHNICAL SERGEANT WITH OVER 27 BUT LESS THAN 30 YEARS OF SERVICE. THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343, AMENDED THE 1942 ACT BY PROVIDING HIGHER PAY RATES, ALSO BY AUTHORIZING PAYMENT OF THE MAXIMUM RETIRED PAY FOR THE GRADE IN WHICH RETIRED IN THE CASES OF RETIRED ENLISTED MEN WHO WERE CREDITED WITH DOUBLE TIME FOR FOREIGN SERVICE. ACCORDINGLY, LIEUTENANT ALDRIDGE'S RETIRED PAY WAS THEN COMPUTED AT 75 PERCENT OF THE PAY OF A TECHNICAL SERGEANT WITH OVER 30 YEARS OF SERVICE.

ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT WAS EFFECTED UNDER THE PROVISIONS OF SUBSECTION 203 (E) OF THE ACT OF JUNE 29, 1948, AS FOLLOWS:

"EACH ENLISTED MAN OF THE REGULAR ARMY OR THE REGULAR AIR FORCE HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL UPON THE COMPLETION OF THIRTY YEARS OF SERVICE, TO INCLUDE THE SUM OF HIS ACTIVE SERVICE AND HIS SERVICE, ON THE RETIRED LIST, BE ADVANCED TO THE HIGHEST TEMPORARY COMMISSION, WARRANT, OR ENLISTED GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW FOR HIS LENGTH OF SERVICE AT THE TIME OF RETIREMENT BUT BASED UPON SUCH HIGHER TEMPORARY RANK OR GRADE: * * *.'

AFTER ADVANCEMENT ON THE RETIRED LIST, LIEUTENANT ALDRIDGE WAS PAID RETIRED PAY AT $210.25 PER MONTH COMPUTED AT 72 1/2 PERCENT (BASED ON 29 YEARS OF ACTIVE SERVICE) OF THE PAY OF A SECOND LIEUTENANT WITH OVER 27 BUT LESS THAN 30 YEARS OF SERVICE. BEGINNING OCTOBER 1, 1949, HE WAS PAID $227.29 PER MONTH COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT AT 72 1/2 PERCENT OF THE PAY OF A SECOND LIEUTENANT WITH OVER 26 YEARS OF SERVICE (MAXIMUM BASIC PAY RATE FOR A SECOND LIEUTENANT UNDER THE 1949 ACT).

THE QUESTION PRESENTED IN YOUR LETTER IS WHETHER LIEUTENANT ALDRIDGE IS ENTITLED TO THE PROPOSED ADJUSTMENT ON THE BASIS OF THE PROVISIONS OF THE 1948 ACT. WHILE THE APPLICABLE PROVISION IN THE 1948 ACT AUTHORIZED COMPUTATION ON THE HIGHER GRADE ON THE BASIS OF THE RATE PRESCRIBED BY LAW AT THE TIME OF RETIREMENT, THE 1949 ACT PRESCRIBES THE METHOD OF COMPUTATION TO BE FOLLOWED IF THE RATES PROVIDED IN THAT ACT ARE TO BE USED. IN THE ABSENCE OF SOME SPECIFIC PROVISION, SECTION 511 OF THE 1949 ACT GOVERNS PAYMENT THEREAFTER OF RETIRED PAY OF ALL MEMBERS PREVIOUSLY RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY. RETIRED PAY COMPUTED UNDER THE 1948 ACT AT 75 PERCENT OF THE PAY OF A SECOND LIEUTENANT WITH OVER 27 YEARS OF SERVICE USING THE RATES OF PAY THEN IN EFFECT WOULD BE $217.50 PER MONTH, WHICH RATE, IF ALLOWABLE, COULD BE CONTINUED AFTER SEPTEMBER 30, 1949 ONLY AS SAVED PAY UNDER METHOD (A) OF SECTION 511 OF THE 1949 ACT. SINCE THE RETIRED PAY HE ACTUALLY RECEIVED, $227.29 PER MONTH, COMPUTED UNDER METHOD (B) OF SECTION 511 IS GREATER THAN THE AMOUNT THUS COMPUTED UNDER METHOD (A), HIS RETIRED PAY ENTITLEMENT BEGINNING OCTOBER 1, 1949, ACCRUED UNDER METHOD (B) OF SECTION 511 UNLESS HE WOULD BE ENTITLED TO A GREATER RATE UNDER THE PROVISO IN SUBSECTION 202 (D) OF THE 1949 ACT, WHICH IS AS FOLLOWS:

"PROVIDED, THAT RETIRED ENLISTED MEN HERETOFORE OR HEREAFTER RETIRED WITH CREDIT FOR THIRTY YEARS' SERVICE IN THE ARMY, NAVY, OR MARINE CORPS, AND WHO SERVED BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES BETWEEN 1898 -1912, SUCH SERVICE HAVING BEEN COMPUTED UNDER PREVIOUS LAWS AS DOUBLE TIME TOWARD RETIREMENT, SHALL BE ENTITLED TO RECEIVE THE MAXIMUM RETIRED PAY NOW OR HEREAFTER PROVIDED FOR THE GRADE IN WHICH RETIRED.'

SINCE LIEUTENANT ALDRIDGE WAS RETIRED IN THE GRADE OF TECHNICAL SERGEANT THE RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER THE ABOVE QUOTED PROVISO WOULD BE $187.43 PER MONTH, COMPUTED AT 75 PERCENT OF THE PAY OF A TECHNICAL SERGEANT WITH OVER 30 YEARS OF SERVICE USING THE 1949 PAY RATES. IT WILL BE SEEN THAT THE RATE HE ACTUALLY RECEIVED, $227.29, COMPUTED UNDER METHOD (B) OF SECTION 511, IS THE GREATEST OF THE 3 ALTERNATIVES AVAILABLE TO HIM AS OF OCTOBER 1, 1949. THE CAREER COMPENSATION ACT CONTAINS NO AUTHORITY FOR RECOMPUTING HIS RETIRED PAY AT 75 PERCENT OF THE RATE PROVIDED THEREIN FOR A MEMBER OF THE GRADE TO WHICH HE WAS ADVANCED UNDER THE 1948 ACT.

UNDER THE ACT OF AUGUST 28, 1958, PUB.L. 85-790, 72 STAT. 940, RETIRED ENLISTED MEN LIKE LIEUTENANT ALDRIDGE WHO HAVE BEEN CREDITED WITH DOUBLE TIME FOR FOREIGN SERVICE ARE ENTITLED TO RECEIVE THE MAXIMUM RETIRED PAY FOR "/A) THE GRADE IN WHICH HE WAS FIRST RETIRED. OR (B) THE HIGHEST ENLISTED, WARRANT, OR COMMISSIONED OFFICER GRADE IN WHICH HE SERVED SATISFACTORILY DURING WORLD WAR I; WHICHEVER IS GREATER.' THERE IS NOTHING IN YOUR SUBMISSION TO INDICATE THAT ANY OF LIEUTENANT ALDRIDGE'S SERVICE DURING WORLD WAR I WAS PERFORMED IN A GRADE HIGHER THAN TECHNICAL SERGEANT.

WE FIND NO AUTHORITY OF LAW FOR THE PROPOSED ADJUSTMENT. THEREFORE THE VOUCHER, NOT BEING APPROVED FOR PAYMENT, WILL BE RETAINED HERE.

MONTHLY DEDUCTIONS FROM RETIRED PAY SHOULD BE RESUMED IN ORDER TO COMPLETE LIQUIDATION OF THE OVERPAYMENT CAUSED BY ERRONEOUS COMPUTATION OF RETIRED PAY ON THE GRADE OF CAPTAIN FOR THE PERIOD OCTOBER 1, 1963, TO JUNE 30, 1964.