B-168308, JAN. 14, 1970

B-168308, JAN. 14, 1970

MILITARY--RETIRED PAY--RATES DECISION TO AIR FORCE ACCOUNTING AND FINANCE OFFICER CONCERNING DIFFERENCE IN RETIRED PAY FOR AIR FORCE RETIRED MEMBER COMPUTED FROM PAY SCALES EFFECTIVE AFTER JULY 1, 1968, VERSUS THAT COMPUTED FROM RATES EFFECTIVE AFTER JULY 1, 1969. WHERE SECRETARY FIXES AN EFFECTIVE DATE FOR PLACEMENT OF A MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST THAT IS LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE DETERMINES THE MEMBER'S PHYSICAL DISABILITY, THE RESTRICTION IN THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301 IS NOT FOR APPLICATION. THEREFORE UNDER 10 U.S.C. 1401, THE MEMBER IS ENTITLED TO HAVE RETIRED PAY COMPUTED AT RATES IN EFFECT ON JULY 1, 1969, THE DATE ADMINISTRATIVELY FIXED BY THE SECRETARY. SINCE RETIRED PAY FORMULA 2 OF 10 U.S.C. 1401 IS THE FORMULA MOST FAVORABLE TO THE MEMBER, ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 8991 HAS NO BEARING ON THE CASE.

TO MAJOR N. C. ALCOCK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 20, 1969, WHICH WAS FORWARDED HERE BY LETTER DATED NOVEMBER 4, 1969, FROM HEADQUARTERS UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $81.93 IN FAVOR OF STAFF SERGEANT HECTOR N. SEVIGNEY, XXX-XX-XXXX, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY FOR JULY, AUGUST AND SEPTEMBER 1969, COMPUTED FROM BASIC PAY SCALES EFFECTIVE ON AND AFTER JULY 1, 1968, PRESCRIBED IN EXECUTIVE ORDER NO. 11414, DATED JUNE 11, 1968 (ADJUSTED BY 2.1 PERCENT UNDER 10 U.S.C.1401A (D) ), VERSUS THAT COMPUTED FROM BASIC PAY RATES EFFECTIVE ON AND AFTER JULY 1, 1969, PRESCRIBED IN EXECUTIVE ORDER NO. 11475 DATED JUNE 16, 1969. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1056 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT BY ORDER AC 2853, DATED FEBRUARY 7, 1969, SERGEANT SEVIGNEY (ORDER AC 2853 SHOWS THE MEMBER'S SERVICE NUMBER TO BE AF 31476497) WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1969, UNDER THE PROVISIONS OF 10 U.S.C. 1202 FOR 70 PERCENT DISABILITY. AS OF JULY 1, 1969, HE HAD 23 YEARS, 2 MONTHS AND 11 DAYS OF SERVICE FOR BASIC PAY PURPOSES OF WHICH 20 YEARS, 2 MONTHS AND 23 DAYS WAS SERVICE ON ACTIVE DUTY.

ON THE BASIS OF THE ABOVE FACTS, SERGEANT SEVIGNEY, ON MAY 1, 1969, MET THE REQUIREMENTS FOR VOLUNTARY RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 8914 WITH ENTITLEMENT TO RETIRED PAY COMPUTED UNDER FORMULA C OF 10 U.S.C. 8991. HOWEVER, BY VIRTUE OF HIS 70 PERCENT DISABILITY HIS RETIRED PAY IS GREATER IF COMPUTED UNDER FORMULA 2 OF 10 U.S.C. 1401.

IT APPEARS TO BE YOUR VIEW THAT IN THE CIRCUMSTANCES OF THIS CASE ENTITLEMENT BASED ON YEARS OF SERVICE COMPUTED UNDER 10 U.S.C. 8991 WOULD NOT BE GOVERNED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301, AND THAT DISABILITY RETIREMENT COMPUTED UNDER 10 U.S.C. 1401 WOULD BE SUBJECT TO THAT ACT. HENCE, YOU EXPRESS DOUBT AS TO THE RATES OF PAY APPLICABLE IN COMPUTING SERGEANT SEVIGNEY'S RETIRED PAY. YOU ALSO ASKED WHETHER OUR ANSWER WOULD BE DIFFERENT UNDER ANY OF THE FOLLOWING CONDITIONS:

"A. IF HE HAD FIRST QUALIFIED FOR VOLUNTARY RETIREMENT EFFECTIVE 1 JULY 1969?

"B. IF HIS DISABILITY RETIREMENT WOULD HAVE BEEN APPROVED BY RETIREMENT ORDERS DATED IN JUNE 1969 RATHER THAN FEBRUARY 1969?

"C. IF HE WOULD HAVE HAD LESS THAN 20 YEARS ACTIVE SERVICE ON RETIREMENT DATE, THUS NOT QUALIFYING FOR VOLUNTARY RETIREMENT?" WE SAID IN 44 COMP. GEN. 373 (1965), AT PAGE 377 THAT:

"* * * IN SUMMARY, WHERE A MEMBER IS RETIRED FOR DISABILITY WITHOUT THE SECRETARY CONCERNED HAVING DESIGNATED AN EARLIER DATE OF RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1221, THE EFFECTIVE DATE OF RETIREMENT IS GOVERNED BY THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT. 43 COMP. GEN. 425. WHERE A MEMBER IS RETIRED FOR REASONS) OTHER THAN DISABILITY IMMEDIATELY UPON BECOMING ELIGIBLE THEREFOR, THE RETIREMENT IS GOVERNED BY THE PROVISIONS OF, AND SUBJECT TO THE RESTRICTIVE PROVISIONS OF, THE UNIFORM RETIREMENT DATE ACT. 43 COMP. GEN. 425; 9 COMP. GEN. 512; 10 COMP. GEN. 28; 35 COMP. GEN. 633. WHERE A MEMBER IS RETIRED AT A TIME OTHER THAN THE DATE WHEN ELIGIBILITY FOR RETIREMENT FIRST EXISTS, AND THE DATE OF RETIREMENT IS FIXED ON THE BASIS OF ADMINISTRATIVE DISCRETION OR ELECTION OF THE MEMBER ON THE FIRST DAY OF A MONTH LATER THAN THAT REQUIRED BY THE UNIFORM RETIREMENT DATE ACT, THE RESTRICTIONS CONTAINED IN THAT ACT LIMITING RETIRED PAY TO THE AMOUNT THAT WOULD HAVE BEEN PAYABLE IF THAT LAW HAD NOT BEEN ENACTED ARE NOT FOR APPLICATION. SEE 10 COMP. GEN. 36."

IN OUR DECISION OF AUGUST 8, 1969, B-164842, 49 COMP. GEN., WE HELD THAT A MEMBER WHOSE RETIREMENT FOR DISABILITY WAS EFFECTIVE ON JULY 1, 1968, BY VIRTUE OF THE UNIFORM RETIREMENT DATE ACT, BUT WHO WAS ALSO QUALIFIED UNDER 10 U.S.C. 6323 FOR VOLUNTARY RETIREMENT EFFECTIVE THAT DATE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE HIGHER RATES OF ACTIVE DUTY PAY IN EFFECT ON JULY 1, 1968, SINCE RETIREMENT UNDER SECTION 6323-- WHICH IS NOT SUBJECT TO THE RESTRICTIVE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT--IS THE "OTHER PROVISION OF LAW" MOST FAVORABLE TO HIM.

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, NOW CODIFIED IN 5 U.S.C. 8301 PROVIDES AS FOLLOWS:

"(A) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY THIS TITLE OR OTHER STATUTE, RETIREMENT AUTHORIZED BY STATUTE IS EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

"(B) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE IS COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SUBSECTION (A) OF THIS SECTION." SECTION 1221, TITLE 10, U.S. CODE, PROVIDES THAT:

"NOTWITHSTANDING SECTION 8301 OF TITLE 5, THE SECRETARY CONCERNED MAY SPECIFY AN EFFECTIVE DATE FOR THE RETIREMENT OF ANY MEMBER OF THE ARMED FORCES UNDER THIS CHAPTER, OR FOR THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, THAT IS EARLIER THAN THE DATE PROVIDED FOR IN THAT SECTION."

WHERE THE SECRETARY, IN A RETIREMENT ORDER, DOES NOT SPECIFY AN EFFECTIVE DATE FOR THE MEMBER'S RETIREMENT FOR DISABILITY, WE CONSISTENTLY HAVE HELD THAT THE UNIFORM RETIREMENT DATE ACT IS APPLICABLE AND PURSUANT TO 5 U.S.C. 8301 (B) DISABILITY RETIRED PAY MUST BE COMPUTED UNDER FORMULA 1 OR 2 OF 10 U.S.C. 1401 GOVERNED BY FOOTNOTE 1 AT THE RATES IN EFFECT DURING THE MONTH PRECEDING THE FIRST DAY OF THE MONTH FIXED BY THE UNIFORM RETIREMENT DATE ACT. THAT IS TO SAY, UPON DETERMINATION BY THE SECRETARY THAT A MEMBER SHOULD BE RETIRED FOR DISABILITY, HE NORMALLY IS RETIRED ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THAT DETERMINATION IS MADE UNLESS AN EARLIER DATE IS SPECIFIED UNDER 10 U.S.C. 1221.

WHILE SECTION 1221 ONLY PERMITS THE FIXING OF A DATE THAT IS EARLIER THAN THE "FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE", IT HAS BEEN RECOGNIZED THAT THE EFFECTIVE DATE OF DISABILITY RETIREMENT MAY BE FIXED AT THE FIRST OF A LATER MONTH. SEE GREENWALD V. UNITED STATES, 88 CT. CL. 264 (1939). COMPARE 24 COMP. GEN. 934, 940. CONSEQUENTLY, WHERE, AS IN SERGEANT SEVIGNEY'S CASE, THE SECRETARY FIXES AN EFFECTIVE DATE FOR PLACEMENT OF A MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST THAT IS LATER THAN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE DETERMINES THE MEMBER'S PHYSICAL DISABILITY, THE RESTRICTION OF 5 U.S.C. 8301 (B) IS NOT APPLICABLE AND ON THE BASIS OF FOOTNOTE 1 OF 10 U.S.C. 1401, THE MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT THE RATES IN EFFECT ON THE DATE OF RETIREMENT OR DATE HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST THAT IS ADMINISTRATIVELY FIXED BY THE SECRETARY. HENCE, SERGEANT SEVIGNEY IS ENTITLED TO DISABILITY RETIRED PAY COMPUTED AT THE RATES EFFECTIVE ON JULY 1, 1969.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.

SINCE FORMULA 2 OF 10 U.S.C. 1401 IS THE FORMULA "MOST FAVORABLE TO HIM", SERGEANT SEVIGNEY'S ENTITLEMENT TO RETIRED PAY COMPUTED ON THE BASIS OF YEARS OF SERVICE HAS NO BEARING ON HIS CASE. ACCORDINGLY, QUESTIONS A AND C ARE ANSWERED IN THE NEGATIVE. QUESTION B IS ANSWERED IN THE AFFIRMATIVE, SINCE IN SUCH CIRCUMSTANCES THE PROVISIONS OF 5 U.S.C. 8301 (B) WOULD BE APPLICABLE.