B-170331, SEP. 29, 1970

B-170331, SEP. 29, 1970

RETIRED PAY - HIGHER GRADE DECISION TO CERTIFYING OFFICER ADVISING THAT A RETIRED MEMBER OF THE U. S. COAST GUARD, WHO WAS RETIRED ON GRADE OF E6, BUT CLAIMS RETIREMENT AT THE GRADE OF E7, MAY UPON PROPER ADMINISTRATIVE DETERMINATION HAVE HIS PAY COMPUTED ON THE GRADE OF E-7 FROM DATE OF RETIREMENT, JUNE 1, 1951, THROUGH JAN. 31, 1970. COAST GUARD MEMBER, WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, WITH RETIRED PAY COMPUTED ON GRADE EN1 (E-6), INSTEAD OF THE HIGHER GRADE E-7, CHIEF MOTOR MACHINIST'S MATE, BASED UPON PROOF AND AN APPROPRIATE ADMINISTRATIVE DETERMINATION, THAT THE MEMBER PERFORMED SATISFACTORILY IN THE HIGHER GRADE WILL ENTITLE HIM TO THE DIFFERENCE IN THE RETIRED PAY UNDER 10 U.S.C. 1372(2), OTHERWISE THE RIGHT TO RETROACTIVE ADJUSTMENT WILL ACCRUE AS OF THE DATE OF SUCH DETERMINATION, AND THE ACT OF OCTOBER 9, 1940, WILL NOT BE APPLICABLE.

TO MISS C. C. GORDON:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 22, 1970, ADDRESSED TO OUR CLAIMS DIVISION TRANSMITTING FOR ADJUDICATION THE CLAIM OF ENGINE MAN FIRST CLASS HARVEY G. JOECKEL, 278647, U.S. COAST GUARD, RETIRED, FOR DIFFERENCE IN RETIRED PAY COVERING THE PERIOD JUNE 1, 1951, TO JANUARY 31, 1970.

YOU SAY THAT SINCE JUNE 1, 1951, THE DATE MR. JOECKEL WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, HIS RETIRED PAY HAS BEEN COMPUTED ON THE RATE OF EN1 (E-6). IT IS REPORTED THAT THE HIGHEST RATING HELD BY HIM IN THE U. S. NAVY WAS CHIEF MOTOR MACHINIST'S MATE (E-7). HE CLAIMS THE DIFFERENCE IN RETIRED PAY FOR THE ENTIRE PERIOD FROM JUNE 1, 1951, AND YOU TRANSMITTED A VOUCHER IN THE AMOUNT OF $2,611.38 COVERING ADJUSTMENT OF RETIRED PAY FOR THE PERIOD FROM JUNE 1, 1951, THROUGH JANUARY 31, 1970. THE CLAIM WAS RECEIVED HERE ON JANUARY 26, 1970.

SINCE YOU ARE UNCERTAIN AS TO THE APPLICABILITY OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, TO CLAIMS OF THIS NATURE, YOU REQUESTED ADVICE AS TO WHETHER YOU MAY SETTLE SUCH CLAIMS WITHOUT REFERRAL TO THIS OFFICE.

IN OUR DECISION OF MARCH 23, 1970, B-164281, 49 COMP. GEN. , WE ADVISED THE SECRETARY OF DEFENSE THAT--

" *** WHERE AN EXISTING STATUTE AUTHORIZES COMPUTATION OF THE RETIRED PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED SERVICE ON THE BASIS OF THE PAY OF THE GRADE IN WHICH THE INDIVIDUAL HAD SERVED SATISFACTORILY AND WHICH IS HIGHER THAN THE PAY OF THE GRADE ON WHICH HE OTHERWISE IS ENTITLED TO COMPUTE HIS RETIRED PAY, WE WILL AUTHORIZE PAYMENT, OR PASS TO CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS, A PAYMENT OF RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER GRADE, WITHOUT REGARD TO WHETHER THAT GRADE WAS A TEMPORARY OR PERMANENT GRADE, EVEN THOUGH THE ARMED SERVICE IN WHICH THE INDIVIDUAL HELD THAT HIGHER GRADE IS NOT THE SERVICE IN WHICH HE RETIRED, SUBJECT, OF COURSE, TO THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. HOWEVER, SUCH ACTION IN ANY PARTICULAR CASE WILL DEPEND UPON AN APPROPRIATE ADMINISTRATIVE DETERMINATION AS TO SATISFACTORY SERVICE WHERE SUCH DETERMINATION IS REQUIRED BY APPLICABLE STATUTES."

WHILE YOU STATE THAT UNDER 10 U.S.C. 1372(2) MR. JOECKEL IS ENTITLED TO RETIRED PAY BENEFITS BASED ON THE HIGHEST GRADE OR RANK IN THE NAVY IN WHICH SERVICE WAS PERFORMED SATISFACTORILY YOU FURNISHED NO PROOF THAT AN APPROPRIATE ADMINISTRATIVE DETERMINATION AS TO SATISFACTORY SERVICE IN THAT HIGHER GRADE HAD BEEN MADE UNDER SECTION 1372(2). COAST GUARD LETTER OF OCTOBER 7, 1969, TO BUREAU OF NAVAL RESEARCH REQUESTED "VERIFICATION OF SATISFACTORY PERFORMANCE OF SERVICE AS CMOMM FOR THE PERIOD INDICATED." APPARENTLY THE ONLY INFORMATION FURNISHED IN RESPONSE TO SUCH REQUEST IS THAT CONTAINED IN A LETTER FROM GENERAL SERVICES ADMINISTRATION, NATIONAL PERSONNEL RECORDS CENTER, ST. LOUIS, MISSOURI, DATED NOVEMBER 4, 1969, IN WHICH IT IS STATED "HIGHEST RATING HELD CMOMM." NO MENTION IS MADE OF AN ADMINISTRATIVE DETERMINATION OF SATISFACTORY PERFORMANCE OF DUTY IN THAT GRADE.

IF A PROPER ADMINISTRATIVE DETERMINATION IS MADE THAT MR. JOECKEL SERVED SATISFACTORILY IN THE GRADE OF CHIEF MOTOR MACHINIST'S MATE, HE WILL BE ENTITLED TO THE DIFFERENCE IN RETIRED PAY HE RECEIVED BASED ON THE GRADE OF E-6 AND THAT HE WOULD HAVE RECEIVED HAD HIS RETIRED PAY BEEN COMPUTED ON THE GRADE OF E-7 FROM THE DATE OF HIS RETIREMENT. SINCE HE IS NOT ENTITLED TO ANY DIFFERENCE IN RETIRED PAY UNLESS AND UNTIL A PROPER ADMINISTRATIVE DETERMINATION OF SATISFACTORY SERVICE IN THE HIGHER GRADE IS MADE, HIS RIGHT TO RETROACTIVE ADJUSTMENT WILL ACCRUE AS OF THE DATE OF SUCH DETERMINATION AND THE ACT OF OCTOBER 9, 1940, WILL NOT BE APPLICABLE.

ACCORDINGLY, OUR CLAIMS DIVISION IS BEING ADVISED THAT UPON RECEIPT OF THE REQUISITE ADMINISTRATIVE DETERMINATION A SETTLEMENT MAY ISSUE ALLOWING ADJUSTMENT OF RETIRED PAY COVERING THE PERIOD FROM JUNE 1, 1951, THROUGH JANUARY 31, 1970. ANY SIMILAR CLAIMS NOT INVOLVING THE 1940 ACT MAY BE SETTLED ADMINISTRATIVELY ON THE BASIS OF THE VIEWS EXPRESSED ABOVE. COURSE, CLAIMS WHICH MAY BECOME SUBJECT TO THE 1940 ACT SHOULD BE FORWARDED PROMPTLY TO THIS OFFICE. SEE 4 GAO 7.1.