B-237796, May 9, 1990

B-237796, May 9, 1990

MILITARY PERSONNEL - Pay - Retirement pay - Amount determination - Computation - Effective dates DIGEST: 1. The retired pay of an enlisted member of the Navy transferred to the temporary disability retired list prior to September 30, 1983, should not be recomputed on his transfer to the permanent disability retired list to reflect changes in the law for crediting of service for retirement purposes when no intervening active duty occurs. MILITARY PERSONNEL - Pay - Pay retention - Amounts - Computation 2. While 10 U.S.C. Sec. 6330(d) in effect in 1981, authorized the crediting of part of a year that was 6 months or more as a full year for eligibility for transfer to the Fleet Reserve and for multiplier purposes in computing retainer pay, there is no authority to credit 6 months or more service as a full year for the basic pay portion of the retainer pay formula.

Chief Petty Officer Charles W. Case, USN, Retired:

Chief Petty Officer Charles W. Case, USN, retired, appeals an action by the Navy which reduced his retired pay when he was transferred from the temporary disability retired list (TDRL) to the permanent disability retired list (PDRL). For the following reasons Mr. Case's retired pay should not have been recomputed when he was transferred to the PDRL. However, it appears that his retired pay may have been computed erroneously when his name was initially placed on the TDRL and therefore should be recalculated in accordance with this decision.

Mr. Case enlisted in the Navy on September 30, 1959. He was transferred to the TDRL effective November 13, 1981, pursuant to 10 U.S.C. Sec. 1202. His retired pay was computed under 10 U.S.C. Sec. 6330 by virtue of the fact that this was the most favorable formula which is authorized by 10 U.S.C. Sec. 1401. Section 6330 of title 10 authorizes the transfer of an enlisted member to the Fleet Reserve on completion of 20 years of service with entitlement to retainer pay. For the purposes of this case retainer pay and retired pay are treated the same. While the record is not clear it appears that Mr. Case had 21 years, 11 months, and 23 days of active service. Section 6330(d), in effect at the time, has a rounding provision which authorizes credit for a full year of service if a member has a partial year of service of 6 months or more. That provision also authorizes constructive credit for enlistments terminated within 3 months of the full term of the enlistment. It appears that the Navy credited Mr. Case with constructive service and rounded off the service so that he was credited with over 22 years of service for both basic pay purposes and multiplier purposes. Thus, it appears that his retired pay was computed at 2-1/2 percent of the rate of basic pay of his grade with over 22 years of service multiplied by 22 years of service. While we cannot categorically say that his pay was computed erroneously due to the lack of information in the record, we are not aware of any authority for rounding up years of service creditable for basic pay purposes. The rounding off provisions and constructive service credits contained in 10 U.S.C. Sec. 6330(d) are not applicable to the basic pay portion of the retainer pay formula. 38 Comp.Gen. 110 (1958). Accordingly, Mr. Case's records should be reexamined to insure that his retired pay was computed correctly.

In 1983, the laws authorizing the rounding of part of a year that was 6 months or more to a full year were repealed and replaced with a full year and full month system. See Pub.L. No. 98-94, 923, 97 Stat. 614, 643 (1983). The Navy on the basis of this law recomputed Mr. Case's retired pay when he was transferred to the PDRL in 1986. This recomputation eliminated the rounding of his years of service so that his retired pay was computed on the basic pay rate of his grade with over 20 years service rather than the rate for over 22 years service. This is probably the rate that should have been used to compute his retired pay when his name was initially placed on the TDRL.

We believe that Mr. Case's retired pay should not have been recomputed when he was transferred to the PDRL. Subsection 923(g) of Public Law 98-94, the law which repealed the rounding provisions contained in various laws, provides as follows:

"(g) The amendments made by this section shall apply with respect to (1) the computation of retired or retainer pay of any individual who becomes entitled to that pay after September 30, 1983, and (2) the recomputation of retired pay under section 1402, 1402a, 3992, or 8992 of title 10, United States Code, of any individual who after September 30, 1983, becomes entitled to recompute retired pay under any such section."

Mr. Case became entitled to retired pay when his name was placed on the TDRL effective November 13, 1981, pursuant to 10 U.S.C. Sec. 1202. When he was transferred to the PDRL in 1986, he had not served any additional active duty which would require a recomputation of his retired pay. Since Mr. Case has been in receipt of retired pay continuously since November 13, 1981, the provisions of section 923 of Public Law 98-94, are not applicable to his situation.

As we noted earlier, we have serious doubts as to whether Mr. Case's retired pay was computed using the proper rate of basic pay, but we are unable to resolve the issue on the basis of the present record. Therefore, the Navy should reexamine Mr. Case's records to insure that the proper rate of basic pay was used to compute his retired pay. If it is determined that the proper rate was not used any resulting indebtedness would be appropriate for waiver under 10 U.S.C. Sec. 2774.