B-159848, OCTOBER 19, 1966, 46 COMP. GEN. 334

B-159848, OCTOBER 19, 1966, 46 COMP. GEN. 334

PAY - RETIRED - FLEET RESERVISTS - ACTIVE DUTY AFTER RETIREMENT - RECOMPUTATION OF RETAINER PAY. A NAVY ENLISTED MEMBER WHO AFTER TRANSFER TO THE FLEET RESERVE UNDER 10 U.S.C. 6330 IS CALLED TO ACTIVE DUTY SERVING FROM DECEMBER 23, 1963 TO DECEMBER 21, 1965, WITHOUT A CHANGE OF GRADE OR RATE OF ACTIVE DUTY BASIC PAY IS ENTITLED TO RECOMPUTATION OF HIS RETAINER PAY UNDER COLUMN 2 OF 10 U.S.C. 1402/A), AS AMENDED BY THE ACT OF AUGUST 21, 1965, AT THE RATE OF THE ACTIVE DUTY BASIC RATE OF PAY USED TO COMPUTE HIS RETAINER PAY ON THE DAY BEFORE HE ENTERED ON ACTIVE DUTY, DECEMBER 22, 1963, TIMES THE MULTIPLIER FACTOR INCREASED FROM 50 TO 55 (2 1/2 PER CENTUM TIMES TOTAL SERVICE YEARS), PLUS THE 4.4 PER CENTUM INCREASE PROVIDED BY THE ACT OF AUGUST 21, 1965, THE RECOMPUTATION EFFECTIVE FROM DECEMBER 22, 1965, THE DATE THE MEMBER REVERTED TO INACTIVE DUTY AND BECAME ENTITLED TO CREDIT FOR HIS ADDITIONAL SERVICE IN ESTABLISHING THE HIGHER PER CENTUM MULTIPLIER.

TO COMMANDER D. G. SUNDBERG, DEPARMENT OF THE NAVY, OCTOBER 19, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1966, CONCERNING THE PROPER METHOD OF RECOMPUTING THE RETAINER PAY OF RAYMOND E. CONNOR, 291 79 23, FTG1, U. S. NAVAL FLEET RESERVE, EFFECTIVE FROM DECEMBER 22, 1965. YOUR REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. DO-N-917, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND FORWARDED HERE AUGUST 5, 1966, BY THE COMPTROLLER OF THE NAVY.

YOUR LETTER DISCLOSES THAT MR. CONNOR WAS TRANSFERRED TO THE FLEET RESERVE ON MARCH 25, 1963, UNDER AUTHORITY OF 10 U.S.C. 6330, WITH 20 YEARS 1 MONTH AND 6 DAYS SERVICE CREDITABLE FOR PERCENTAGE MULTIPLE PURPOSES AND 19 YEARS 6 MONTHS AND 10 DAYS SERVICE CREDITABLE FOR BASIC PAY PURPOSES IN COMPUTING HIS RETAINER PAY. IT IS STATED THAT HE WAS PAID RETAINER PAY AT THE RATE OF $145 PER MONTH (50 PER CENTUM OF $290) FROM MARCH 26 TO SEPTEMBER 30, 1963, INCLUSIVE, INCREASED BY 5 PER CENTUM TO $152.25 PER MONTH EFFECTIVE OCTOBER 1, 1963, UNDER SECTION 5/E), PUBLIC LAW 88-132, 77 STAT. 213, 10 U.S.C. 1402 NOTE.

MR. CONNOR WAS RECALLED TO ACTIVE DUTY, SERVING FROM DECEMBER 23, 1963 TO DECEMBER 21, 1965, INCLUSIVE, A PERIOD OF 1 YEAR 11 MONTHS AND 29 DAYS. IN RECOMPUTING HIS RETAINER PAY EFFETCIVE FROM DECEMBER 22, 1965, UNDER THE PROVISIONS OF 10 U.S.C. 1402/A) AS AMENDED BY SECTION 5/L) (1), PUBLIC LAW 88-132, 77 STAT. 214-215, HE BECAME ENTITLED, BY ADDING THE LATTER PERIOD OF ACTIVE DUTY TO HIS PRIOR SERVICE, TO 22 YEARS 1 MONTH AND 5 DAYS SERVICE FOR PERCENTAGE MULTIPLE PURPOSES AND 21 YEARS 6 MONTHS AND 9 DAYS SERVICE FOR BASIC PAY PURPOSES. SECTION 5/L) OF PUBLIC LAW 88-132 IN PERTINENT PART PROVIDES:

(1) SECTION 1402/A) OF TITLE 10, U.S.C. IS AMENDED TO READ AS FOLLOWS:

(A) A MEMBER OF AN ARMED FORCE WHO HAS BECOME ENTITLED TO RETIRED PAY OR RETAINER PAY, AND WHO THEREAFTER SERVES ON ACTIVE DUTY (OTHER THAN FOR TRAINING), IS ENTITLED TO RECOMPUTE HIS RETIRED PAY OR RETAINER PAY UPON HIS RELEASE FROM THAT DUTY AS FOLLOWS:

COL. 1, TAKE---MONTHLY BASIC PAY/1) OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE---

(1) TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY; OR

(2) TO TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IF HE WERE TRANSFERRING TO EITHER UPON THAT RELEASE FROM ACTIVE DUTY.

COL. 2, MULTIPLY BY---2 1/2 PERCENT OF THE SUM OF---

(1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM IN COMPUTING RETIRED PAY OR RETAINER PAY; AND

(2) HIS YEARS OF ACTIVE SERVICE AFTER BECOMING ENTITLED TO RETIRED PAY OR RETAINER PAY. (2)

COL. 3, SUBTRACT---EXCESS OVER 75 PERCENT OF PAY UPON WHICH COMPUTATION IS BASED.

1 FOR A MEMBER WHO HAS BEEN ENTITLED, FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS, TO BASIC PAY UNDER THE RATES OF BASIC PAY IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY, COMPUTE UNDER THOSE RATES. FOR A MEMBER WHO HAS BEEN ENTITLED TO BASIC PAY FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS UPON THAT RELEASE FROM ACTIVE DUTY, BUT WHO IS NOT COVERED BY THE PRECEDING SENTENCE, COMPUTE UNDER THE RATES OF BASIC PAY REPLACED BY THOSE IN EFFECT UPON THAT RELEASE FROM ACTIVE DUTY. FOR ANY OTHER MEMBER, COMPUTE UNDER THE RATES OF BASIC PAY UNDER WHICH THE MEMBER'S RETIRED PAY OR RETAINER PAY WAS COMPUTED WHEN HE ENTERED ON THAT ACTIVE DUTY.

2 BEFORE APPLYING THE 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.

(2) NOTWITHSTANDING PARAGRAPH (1) OF THIS SUBSECTION, AND UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED PAY OR RETAINER PAY, A MEMBER OF A UNIFORMED SERVICE WHO IS ON ACTIVE DUTY (OTHER THAN FOR TRAINING) ON THE EFFECTIVE DATE OF THIS ACT, WHO WAS ENTITLED TO RETIRED PAY OR RETAINER PAY BEFORE HE ENTERED ON THAT DUTY, AND WHO IS RELEASED FROM THAT DUTY ON OR AFTER THE EFFECTIVE DATE OF THIS ACT AFTER HAVING SERVED ON THAT DUTY FOR A CONTINUOUS PERIOD OF AT LEAST ONE YEAR SHALL, UPON THAT RELEASE FROM ACTIVE DUTY, BE ENTITLED TO RECOMPUTE HIS RETIRED PAY OR RETAINER PAY UNDER THE TABLE IN SECTION 1402 OF TITLE 10, U.S.C. SUBJECT TO SECTION 6483/C) OF TITLE 10, AS THAT TABLE AND THAT SECTION WERE IN EFFECT ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, USING RATES OF BASIC PAY PRESCRIBED BY THIS ACT.

WE AGREE WITH THE CONCLUSION STATED IN YOUR LETTER THAT IN THE CIRCUMSTANCES PRESENTED, MR. CONNOR'S RETAINER PAY IS REQUIRED TO BE RECOMPUTED IN ACCORDANCE WITH THE PROVISIONS OF 10 U. S. C. 1402/A), BASED ON THE RATES OF ACTIVE DUTY BASIC PAY ON WHICH HIS RETAINER PAY WAS COMPUTED ON DECEMBER 22, 1963, THE DAY BEFORE HE ENTERED ON THE PERIOD OF ACTIVE DUTY ABOVE REFERRED TO. THUS, HE HAS BEEN RECEIVING RETAINER PAY EFFECTIVE FROM DECEMBER 22, 1965, AT THE GROSS MONTHLY RATE OF $166.52, WHICH REPRESENTS THE ACTIVE DUTY BASIC PAY OF ENLISTED PAY GRADE E-6 WITH OVER 18 YEARS OF CREDITABLE SERVICE, $290 (THE RATE OF ACTIVE DUTY BASIC PAY UPON WHICH HIS RETAINER PAY WAS BEING COMPUTED ON DECEMBER 22, 1963) MULTIPLIED BY 55 PER CENTUM (2 1/2 PER CENTUM TIMES 22 YEARS OF SERVICE CREDITABLE FOR THE MULTIPLIER FACTOR), $159.50, PLUS AN INCREASE OF 4.4 PER CENTUM, $7.02, AS AUTHORIZED IN SECTION 5/A), PUBLIC LAW 89-132, AUGUST 21, 1965, 79 STAT. 547.

YOUR LETTER DOES NOT DISCLOSE WHY YOU RAISE A QUESTION AS TO MR. CONNOR'S ENTITLEMENT TO RECEIVE RETAINER PAY EFFECTIVE FROM DECEMBER 22, 1965, IN THE GROSS MONTHLY RATE OF $174.85 COMPUTED AT 55 PER CENTUM OF $290 THE 1958 RATE OF ACTIVE DUTY BASIC PAY OF ENLISTED PAY GRADE E-6 WITH OVER 18 YEARS OF SERVICE (THE MAXIMUM RATE UNDER THE 1958 ACT, PUBLIC LAW 85-422, 72 STAT. 123, 37 U.S.C. 232/A) (1958 ED.), FOR THAT PAY GRADE) PLUS THE 5 PER CENTUM INCREASE AUTHORIZED IN SECTION 5/E), PUBLIC LAW 88-132, AND THE ADDITIONAL 4.4 PER CENTUM INCREASE AUTHORIZED IN SECTION 5/A), PUBLIC LAW 89-132. THERE IS NO SUGGESTION IN YOUR LETTER THAT THE CURRENT METHOD OF RECOMPUTING HIS RETAINER PAY, UNDER WHICH HE IS RECEIVING THE GROSS AMOUNT OF $166.52 PER MONTH, IS ERRONEOUS OR IMPROPER AND YOU SUGGEST NO THEORY WHICH WOULD AUTHORIZE PAYMENT AT THE $174.85 RATE.

SECTION 1402/A) OF TITLE 10, U. S. CODE, AS AMENDED BY SECTION 5 (L) (1) OF PUBLIC LAW 88-132, PROVIDES THAT A MEMBER OF AN ARMED FORCE WHO HAS BECOME ENTITLED TO RETIRED PAY OR RETAINER PAY AND WHO THEREAFTER SERVES ON ACTIVE DUTY OTHER THAN FOR TRAINING IS ENTITLED TO "RECOMPUTE HIS RETIRED PAY OR RETAINER PAY UPON HIS RELEASE FROM THAT DUTY" IN ACCORDANCE WITH THE SPECIFIC FORMULA THEREIN SET FORTH. THE PURPOSE OF THE LAW IS TO PERMIT AN INDIVIDUAL WHO MEETS THE CONDITIONS PRESCRIBED TO RECEIVE RETIRED PAY OR RETAINER PAY IN AN AMOUNT GREATER THAN THAT WHICH WAS BEING RECEIVED BY HIM ON THE DAY BEFORE HIS REENTRY ON ACTIVE DUTY.

THREE BASIC FACTORS ENTER INTO THE RECOMPUTATION OF RETIRED PAY OR RETAINER PAY UNDER THE PROVISIONS OF SECTION 1402/A), AS AMENDED. THE FIRST TWO FACTORS ARE THE GRADE AND THE RATE OF ACTIVE DUTY BASIC PAY, THE LATTER ITEM BEING SUBJECT TO THE SPECIFIC CONDITIONS WHICH ARE CONTAINED IN NOTEL, COLUMN 1, OF THE FORMULA. NEITHER ONE OF THESE TWO FACTORS ENTITLES MR. CONNOR TO AN INCREASE IN HIS RETAINER PAY EFFECTIVE DECEMBER 22, 1965, SINCE THERE WAS NO CHANGE IN THE ENLISTED PAY GRADE (E-6) HELD BY HIM AND THE RATE OF ACTIVE DUTY BASIC PAY TO BE USED IN RECOMPUTING HIS RETAINER PAY IS THE SAME RATE OF ACTIVE DUTY BASIC PAY ($290 PER MONTH) UNDER WHICH HIS RETAINER PAY WAS BEING COMPUTED ON THE DAY BEFORE HE ENTERED AN ACTIVE DUTY STATUS IN DECEMBER 1963. ONLY THE MULTIPLIER FACTOR IN COLUMN 2 OF THE FORMULA HAS BEEN AFFECTED BY MR. CONNOR'S ACTIVE DUTY DURING THE PERIOD DECEMBER 23, 1963 TO DECEMBER 21, 1965. THAT FACTOR IS INCREASED FROM 50 TO 55 PER CENTUM. THUS, HE HAS BEEN ENTITLED TO RETAINER PAY EFFECTIVE FROM DECEMBER 22, 1965, AT $166.52 PER MONTH. THE LATTER AMOUNT NOT ONLY IS GREATER THAN THE AMOUNT OF RETAINER PAY HE WAS RECEIVING ON DECEMBER 22, 1963, $152.25, BUT ALSO IS GREATER THAN $158.95, THE AMOUNT OF RETAINER PAY TO WHICH HE WOULD HAVE BEEN ENTITLED ON DECEMBER 22, 1965, IF HE HAD NOT SERVED ON ACTIVE DUTY FROM 1963 TO 1965 ($152.25 PLUS 4.4 PER CENTUM INCREASE UNDER PUBLIC LAW 89-132). COMPARE SECTION 13/B), PUBLIC LAW 88-132, 77 STAT. 218,37 U.S.C. 203 NOTE.

THE METHOD OF RECOMPUTING MR. CONNOR'S RETAINER PAY UNDER WHICH HE WOULD RECEIVE $174.85 PER MONTH USES A 55 PER CENTUM MULTIPLIER FACTOR AS OF A DATE PRIOR TO OCTOBER 1, 1963, BEFORE HE WAS RECALLED TO ACTIVE DUTY. UNDER THIS METHOD OF RECOMPUTATION HE WOULD RECEIVE IN ADDITION TO THE INCREASE IN HIS MULTIPLIER FACTOR FROM 50 TO 55 PER CENTUM THE 5 PER CENTUM INCREASE IN RETAINER PAY AUTHORIZED IN SECTION 5/E) OF PUBLIC LAW 88-132. THAT SECTION, WHICH BECAME EFFECTIVE OCTOBER 1, 1963, EXPRESSLY AUTHORIZED IN THE CASE OF THOSE WHOSE STATUS PLACED THEM WITHIN ITS SCOPE AN INCREASE OF 5 PER CENTUM IN THE RETIRED PAY OR RETAINER PAY TO WHICH A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES "WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT;, ON SEPTEMBER 30, 1963, THE DAY BEFORE THE EFFECTIVE DATE OF PUBLIC LAW 88-132, MR. CONNOR WAS ENTITLED TO RETIRED PAY IN THE GROSS AMOUNT OF $145 A MONTH COMPUTED ON THE 50 PER CENTUM MULTIPLIER BASIS. HE DID NOT BECOME ENTITLED TO RECOMPUTE HIS RETAINER PAY ON A 55 PER CENTUM MULTIPLIER BASIS UNTIL HE REVERTED TO INACTIVE DUTY ON DECEMBER 22, 1965. CONSEQUENTLY, NO PROPER BASIS IS PRESENTED ON WHICH TO RECOMPUTE HIS RETAINER PAY EFFECTIVE FROM DECEMBER 22, 1965, IN A MANNER WHICH WOULD HAVE THE EFFECT OF CREDITING HIM WITH A 55 PER CENTUM MULTIPLIER FACTOR PRIOR TO THE DATE THAT HE ACTUALLY BECAME ENTITLED TO CREDIT FOR 22 YEARS OF SERVICE IN ESTABLISHING SUCH FACTOR.