B-157142, AUG. 5, 1965, 45 COMP. GEN. 69

B-157142, AUG. 5, 1965, 45 COMP. GEN. 69

PAY - SERVICE CREDITS - FRACTIONAL YEAR - LESS THAN SIX MONTHS AN ARMY OFFICER RETIRED EFFECTIVE SEPTEMBER 1, 1963, UNDER 10 U.S.C. 3911, WITH A COMBINED TOTAL OF 21 YEARS 5 MONTHS AND 20 DAYS' CREDITABLE SERVICE UNDER 10 U.S.C. 1405, IN THE COMPUTATION OF HIS RETIRED PAY, PRESCRIBED IN 10 U.S.C. 3991, FORMULA B, AS THE MONTHLY BASIC PAY OF A RETIRED GRADE MULTIPLIED BY 2 1/2 PERCENT OF YEARS OF SERVICE UNDER SECTION 1405, MAY NOT HAVE THE DATE HIS ACTIVE SERVICE WAS TERMINATED, AUGUST 31, 1963, INCLUDED AS A DAY OF CREDITABLE SERVICE TO INCREASE HIS TOTAL SERVICE TO 21 YEARS AND 6 MONTHS, THEREBY COUNTING HIS SERVICE AS 22 YEARS IN DETERMINING THE APPLICABLE PERCENTAGE MULTIPLE, 5 U.S.C. 84, PROVIDING THAT IN THE COMPUTATION OF COMPENSATION PAYABLE ON A MONTHLY OR ANNUAL BASIS, EACH MONTH SHALL CONSIST OF 30 DAYS AND EXCLUDE THE THIRTY- FIRST DAY OF ANY MONTH, AND FORMULA B REQUIRING THE DISREGARDING OF THAT PART OF A YEAR THAT IS LESS THAN 6 MONTHS, THE TOTAL SERVICE OF THE OFFICER COUNTED AS 21 YEARS PRODUCES A PERCENTAGE MULTIPLE OF 52 1/2 FOR USE IN COMPUTING HIS RETIRED PAY.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, AUGUST 5, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1965, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NUMBER 854, REQUESTING DECISION AS TO PROPRIETY OF PAYMENT OF THE VOUCHER FORWARDED THEREWITH IN THE AMOUNT OF $367.25 PREPARED IN FAVOR OF MAJOR CECIL M. MCCULLERS, RETIRED, REPRESENTING AN INCREASE IN RETIRED PAY FOR THE PERIOD SEPTEMBER 1, 1963, TO APRIL 30, 1965, BASED ON CREDIT FOR 22 YEARS OF SERVICE RATHER THAN 21 YEARS IN DETERMINING THE APPLICABLE PERCENTAGE MULTIPLE.

THE RECORD SHOWS THAT MAJOR MCCULLERS WAS RETIRED EFFECTIVE SEPTEMBER 1, 1963, UNDER AUTHORITY OF 10 U.S.C. 3911 WITH OVER 20 YEARS OF ACTIVE SERVICE. COMPUTATION OF HIS RETIRED PAY IS PRESCRIBED IN 10 U.S.C. 3991, FORMULA B, AS MONTHLY BASIC PAY OF MEMBER'S RETIRED GRADE MULTIPLIED BY

2 1/2 PERCENT OF YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE. (BEFORE APPLYING PERCENTAGE FACTOR, CREDIT A PART OF A YEAR THAT IS SIX MONTHS OR MORE AS A WHOLE YEAR, AND DISREGARD A PART OF A YEAR THAT IS LESS THAN SIX MONTHS) * * *

UNDER 10 U.S.C. 1405 ALL OF MAJOR MCCULLERS' SERVICE IS CREDITABLE INCLUDING HIS INACTIVE SERVICE IN THE UNITED STATES ARMY RESERVE AS WELL AS HIS ACTIVE SERVICE IN THE ARMY OF THE UNITED STATES, THE ENLISTED RESERVE CORPS AND REGULAR ARMY. SINCE HIS ACTIVE SERVICE TERMINATED ON AUGUST 31, 1963, MAJOR MCCULLERS BELIEVES THAT THAT DAY SHOULD BE INCLUDED AS A DAY OF SERVICE CREDITABLE, THEREBY MAKING HIS TOTAL SERVICE 21 YEARS AND 6 MONTHS, WHICH WOULD BE COUNTED AS 22 YEARS IN DETERMINING THE APPLICABLE PERCENTAGE MULTIPLE.

SECTION 6 OF THE ACT OF JUNE 30, 1906, CH. 3914, 34 STAT. 763, AS AMENDED, 5 U.S.C. 84, PRESCRIBES THE RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR PERSONS IN THE SERVICE OF THE UNITED STATES WHOSE COMPENSATION IS COMPUTED ON AN ANNUAL OR MONTHLY BASIS. THAT PARAGRAPH PROVIDES, IN PART, AS FOLLOWS:

* * * FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION, EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF THIRTY DAYS, WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD THIRTY DAYS. * * *

THE PERIOD IN QUESTION APPEARS TO BE SEPTEMBER 14, 1950 TO AUGUST 31, 1963, WHICH IN ACCORDANCE WITH 5 U.S.C. 84 MAY BE CREDITED ONLY AS 12 YEARS 11 MONTHS AND 17 DAYS. MAJOR MCCULLERS CLAIMS CREDIT FOR 12 YEARS 11 MONTHS AND 18 DAYS FOR THIS PERIOD BY COUNTING THE FINAL DAY OF ACTIVE DUTY, AUGUST 31, 1963. HIS PREVIOUS SERVICE CREDITABLE UNDER 10 U.S.C. 1405 TOTALS 8 YEARS 6 MONTHS AND 12 DAYS, WHICH, WHEN ADDED TO THE 12 YEARS 11 MONTHS AND 17 DAYS CREDITABLE FOR THE LAST PERIOD OF ACTIVE SERVICE, MAKES 21 YEARS 5 MONTHS AND 29 DAYS, WHICH IS THE TOTAL CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY UNDER 10 U.S.C. 3991.

OUR DECISION OF JULY 16, 1959, B-139911, REFERRED TO BY YOU, DEALT WITH THE CASE OF AN OFFICER WHOSE SERVICE STARTED ON THE THIRTY-FIRST DAY OF JULY 1926 AND WHO THEREFORE COMPLETED 26 YEARS OF CONTINUOUS SERVICE ON THE THIRTIETH DAY OF JULY 1952. WE HELD THAT ALTHOUGH THE THIRTY-FIRST DAY OF A MONTH IS NOT CREDITABLE IN COUNTING A MEMBER'S SERVICE, THE SERVICE PERFORMED BY HIM ON JULY 31, 1926, WAS ACTUAL SERVICE AND, THEREFORE, UPON RETIREMENT AUGUST 1, 1952, HAVING COMPLETED OVER 26 CUMULATIVE YEARS OF SERVICE HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE RATE PRESCRIBED FOR A MEMBER WITH OVER 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES. AS YOU WILL NOTE, THAT DECISION DID NOT PURPORT TO APPROVE AN INCREASE IN THE SERVICE CREDITABLE UNDER 5 U.S.C. 84 BY COUNTING A MEMBER'S LAST MONTH OF SERVICE AS 1 MONTH AND 1 DAY IF THAT SHOULD BE A 31-DAY MONTH.

MAJOR MCCULLERS' TOTAL SERVICE UNDER 10 U.S.C. 1405 IS 21 YEARS 5 MONTHS AND 29 DAYS, WHICH UNDER 10 U.S.C. 3991, FORMULA B, IS COUNTED AS 21 YEARS, MAKING 52 1/2 THE PROPER PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY. THE VOUCHER FORWARDED WITH YOUR LETTER, NOT BEING APPROVED FOR PAYMENT, IS RETAINED IN THIS OFFICE.