B-246595, Jun 22, 1992, 71 Comp.Gen. 439

B-246595, Jun 22, 1992, 71 Comp.Gen. 439

MILITARY PERSONNEL - Pay - Retirement pay - Computation - Military correction boards - Erroneous actions Recomputation of retired pay is not required where Correction Board (a) relies on a statutory provision which is inapplicable and (b) merely states legal conclusion affecting member's retirement multiplier but changes no facts in member's record, and therefore does not satisfy the requirement of Haislip v. United States that, in allowing a recomputation, Correction Board must make a change in facts that gives rise to a right that did not previously exist.

YN1 Leonard E. Hill, USN (Retired):

This responds to a request for an advance decision from the Defense Finance and Accounting Service (DFAS), regarding the retired pay of Yeoman First Class Leonard E. Hill, USN (Retired), following the issuance of a decision by the Board for Correction of Naval Records.

On August 7, 1963, Mr. Hill made application to transfer to the Fleet Reserve, effective May 28, 1964. On the basis of his active service alone (19 years, 3 months and 2 days), he would not have qualified for this transfer. When constructive time he had earned was included, he reached 19 years, 6 months and 10 days total service, enough when rounded to 20 years under 10 U.S.C. Sec. 6330(d) to qualify him for transfer to the Fleet Reserve and to give him a multiplier factor of 50 percent in computing his retainer pay.

However, as a result of a physical examination in connection with the transfer to the Fleet Reserve, Mr. Hill was placed on the Temporary Disability Retired List (TDRL), effective June 10, 1964. While on the TDRL, Mr. Hill still qualified for a 50 percent multiplier, because, even though he had less than 20 years of actual service and the rating of his disability was not enough by itself to keep him at that level, 10 U.S.C. Sec. 1401 provides a 50 percent minimum multiplier for members on the TDRL.

On September 1, 1967, Mr. Hill was transferred to the Permanent Disability Retired List (PDRL). 10 U.S.C. Sec. 1201. The 50 percent minimum multiplier no longer applied to Mr. Hill. His new multiplier for the purposes of computing his retired pay was reduced to 47.5 percent, reflecting only 19 years of service. Under 10 U.S.C. Sec. 1401 retired pay is computed using service creditable under 10 U.S.C. Sec. 1208. The constructive time available for his use in applying for the Fleet Reserve is not recognized under 10 U.S.C. Sec. 1208 for the purpose of computing retired pay.

Mr. Hill applied for relief from the Board for Correction of Naval Records.

By decision dated April 11, 1990, the Board found that Mr. Hill's retired pay multiplier should be 50 percent since, according to the Board, this was the amount he had earned in the Fleet Reserve, and Congress, through 10 U.S.C. Sec. 1401a(f), did not intend for a member's retired pay to be less than what the member had earned.

We find that the Correction Board is plainly in error in applying 10 U.S.C. Sec. 1401a(f) to Mr. Hill. This provision is limited by its own terms to retirement pay computations of members or former members "who initially became entitled to that pay on or after January 1, 1971." Mr. Hill became entitled to the retirement pay here in question in 1967. is therefore ineligible to benefit from this provision.

Even if a basis existed here for excepting Mr. Hill from this limitation, 10 U.S.C. Sec. 1401a(f) does not apply to Mr. Hill's situation. Section 1401a(f) of Title 10, commonly known as the Tower Amendment, applies to persons who became entitled to retired pay on or after January 1, 1971, and provides that such persons will not receive less retired pay than they would have received had they retired on earlier dates. The amendment was needed to correct the "retired pay inversion" caused by the fact that for several years upward adjustments of retired or retainer pay were occurring in greater amounts and at greater frequency than were the increases in active military basic pay. The result was that those members remaining on active duty after becoming eligible for retirement were losing considerable retirement pay. The amendment served to eliminate this inequity.

Mr. Hill's case presents very different facts. He did not remain on active duty after he became eligible to retire and was not threatened by a retired pay inversion. Mr. Hill's reduced retirement computation multiplier resulted from the provisions of 10 U.S.C. Sec. 1401 as they apply to the particular facts of his case.

A further basis for questioning the Correction Board decision is raised by the DFAS. The DFAS points out that the Board did not make an actual correction to Mr. Hill's records but merely restated the record as it existed and added a new pay computation as a correction. We agree. Here, the Board did not change a fact which gave rise to a new right of the former member. The Board merely stated a legal conclusion. Haislip v. United States, 296 F.2d 469 (1961). Therefore, the Board has provided no basis for allowing a recomputation of Mr. Hill's retirement.

Accordingly, the Correction Board's action presently does not furnish a basis for recomputing Mr. Hill's retired pay. That is not to say, however, that an actual correction of his record concerning his years of creditable service would not accomplish the intended result.