B-93171, FEBRUARY 16, 1951, 30 COMP. GEN. 350

B-93171, FEBRUARY 16, 1951, 30 COMP. GEN. 350

PAY - RETIRED - EFFECT OF CAREER COMPENSATION ACT OF 1949 OFFICERS RETIRED FOR PHYSICAL DISABILITY ON FURLOUGH PAY PRIOR TO OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES, COME WITHIN THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949; THEREFORE, SUCH OFFICERS IN ORDER TO BE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE RATES PRESCRIBED THEREIN MUST MAKE AN ELECTION TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER SECTION 411 OR TO RECEIVE RETIREMENT PAY COMPUTED UNDER ONE OF THE TWO METHODS IN SECTION 511 OF THE ACT. COMPARE 30 COMP. GEN. 175. THE METHOD OF COMPUTING RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR AGE OR LENGTH OF SERVICE BEFORE OCTOBER 1, 1949, PROVIDED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 IS FOR EXCLUSIVE APPLICATION, AND THEREFORE AN OFFICER RETIRED FOR AGE OR SERVICE PRIOR TO OCTOBER 1, 1949, WHOSE TOTAL ACTIVE SERVICE IS LESS THAN 29 YEARS AND SIX MONTHS MAY NOT INVOKE THE PROVISION OF SECTION 511 IN ORDER TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE 1949 ACT AND ALSO APPLY THE PROVISION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO DETERMINE THE PERCENTAGE OF HIS ACTIVE-DUTY PAY IN ORDER TO RECEIVE A GREATER RETIRED PAY. AN OFFICER WHO HAD NAVAL SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED BETWEEN SEPTEMBER 1, 1947, AND SEPTEMBER 30, 1949, WHILE HOLDING TEMPORARY APPOINTMENTS TO HIGHER RANK UNDER THE OFFICER PERSONNEL ACT OF 1947 IS ENTITLED TO RETIRED PAY BASED ON THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED AT THE TIME OF RETIREMENT UNDER THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, OR IF RETIRED FOR DISABILITY HE MAY MAKE AN ELECTION TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER SECTION 411 OF THE LATTER ACT OR TO RECEIVE RETIREMENT PAY UNDER ONE OF THE TWO METHODS IN SECTION 511 OF THE ACT, WHICH WOULD PRECLUDE THE APPLICATION OF ANY OTHER LAW FOR THE PURPOSE OF RECEIVING A GREATER RETIRED PAY.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 16, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 16, 1950, WHEREIN YOU REQUEST DECISION ON SEVERAL QUESTIONS ARISING IN CONNECTION WITH THE COMPUTATION OF OFFICERS' RETIRED PAY UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 802.

YOUR FIRST QUESTION IS AS FOLLOWS:

MUST OFFICERS RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY PRIOR TO OCTOBER 1, 1949, ELECT TO QUALIFY UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 IN ORDER TO RECEIVE FURLOUGH PAY BASED ON THE RATES OF PAY PRESCRIBED IN THAT ACT?

SECTION 1454, REVISED STATUTES, 34 U.S.C. 418, WHICH WAS REPEALED BY SECTION 531 (B) (6) OF THE SAID CAREER COMPENSATION ACT OF 1949, 63 STAT. 838, PROVIDED AS FOLLOWS:

WHEN SAID BOARD ( NAVY RETIRING BOARD) FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS NOT THE RESULT OF ANY INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, OR WHOLLY RETIRED FROM SERVICE WITH ONE YEAR'S PAY, AS THE PRESIDENT MAY DETERMINE.

SECTION 1593, REVISED STATUTES, 34 U.S.C. 998, IS AS FOLLOWS:

OFFICERS PLACED ON THE RETIRED LIST, ON FURLOUGH PAY, SHALL RECEIVE ONLY ONE-HALF OF THE PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED IF ON LEAVE OF ABSENCE ON THE ACTIVE LIST.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISION OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

IT WOULD APPEAR EVIDENT THAT OFFICERS RETIRED ON FURLOUGH PAY, PRIOR TO OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 1454, REVISED STATUTES, SUPRA, WERE RETIRED FOR PHYSICAL DISABILITY AND THUS COME WITHIN THE PROVISIONS OF SECTION 411 OF THE 1949 ACT. COMPARE 27 COMP. GEN. 152. HENCE, SUCH OFFICERS, IN ORDER TO BE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE RATES PRESCRIBED IN THE 1949 ACT, MUST MAKE AN ELECTION UNDER THE PROVISIONS OF SECTION 411 OF SUCH ACT. IN THAT CONNECTION SEE PARAGRAPH 3 OF EXECUTIVE ORDER 10124, DATED APRIL 25, 1950, WHICH PROVIDES THAT UNLESS SUCH AN ELECTION IS MADE PRIOR TO OCTOBER 1, 1954, THE MEMBER SHALL CONTINUE TO RECEIVE RETIRED PAY IN THE AMOUNT AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

YOUR NEXT THREE QUESTIONS ARE AS FOLLOWS:

(1) IS PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLICABLE IN DETERMINING THE PERCENTAGE OF ACTIVE DUTY PAY WHICH MAY BE PAID OFFICERS WHO WERE RETIRED FOR AGE OR SERVICE PRIOR TO OCTOBER 1, 1949, AND WHOSE TOTAL ACTIVE SERVICE COMPUTED AS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 IS LESS THAN 29 YEARS AND SIX MONTHS?

(2) IF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 IS AVAILABLE TO SUCH OFFICERS, ARE THEY ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THEIR HIGHEST FEDERALLY RECOGNIZED RANK, PERMANENT OR TEMPORARY, SATISFACTORILY HELD?

(3) IF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 IS AVAILABLE TO SUCH OFFICERS, IS THE RULING IN 26 COMP. GEN. 932 CONTROLLING IN DETERMINING THE RANK ON WHICH RETIRED PAY IS TO BE BASED IN THE CASES OF THOSE OFFICERS RETIRED PRIOR TO SEPTEMBER 1, 1947?

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, PROVIDES AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

SECTION 511 OF THE 1949 ACT, 63 STAT. 829, PROVIDES, IN PERTINENT PART, THAT---

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY

* * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: PROVIDED, THAT FOR THE PURPOSE OF COMPUTATION OF (B) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR * * *.

AS WILL BE NOTED, A SPECIFIC FORMULA FOR COMPUTING RETIRED PAY IS SET FORTH UNDER "/B)" IN SECTION 511 AND, ON AND AFTER OCTOBER 1, 1949, IN APPLYING THE RATES CONTAINED IN THE 1949 ACT IN THE COMPUTATION BEFORE OCTOBER 1, 1949, THAT FORMULA IS FOR EXCLUSIVE APPLICATION. THAT IS TO SAY, A MEMBER MAY NOT INVOKE THE PROVISIONS OF SECTION 511 IN ORDER TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE 1949 ACT AND THEN IMMEDIATELY LOOK TO SOME OTHER PROVISIONS OF LAW IN ORDER TO RECEIVE A GREATER RETIRED PAY THAN THAT TO WHICH HE WOULD BE ENTITLED UNDER THE SAID SECTION 511. CF. DECISION OF NOVEMBER 3, 1950, B- 71972 (30 COMP. GEN. 175). ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE, IN VIEW OF WHICH NO ANSWER IS REQUIRED TO YOUR NEXT TWO QUESTIONS.

YOUR LAST QUESTION IS AS FOLLOWS:

IS SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947 CONTROLLING IN DETERMINING THE RANK ON WHICH RETIRED PAY IS TO BE BASED IN THE CASES OF THOSE OFFICERS WHO HAD NAVAL SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO WERE RETIRED BETWEEN SEPTEMBER 1, 1947, AND SEPTEMBER 30, 1949, WHILE HOLDING TEMPORARY APPOINTMENTS TO HIGHER RANK MADE, CONFIRMED, OR CONTINUED IN EFFECT UNDER SUCH ACT?

SECTION 316 (J) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, 61 STAT. 868, PROVIDES AS FOLLOWS:

ANY OFFICER SERVING IN THE GRADE OF REAR ADMIRAL OR BELOW UNDER AUTHORITY OF THIS TITLE BY VIRTUE OF A TEMPORARY APPOINTMENT THEREIN SHALL, IF RETIRED WHILE SO SERVING, BE RETIRED IN THE GRADE IN WHICH SERVING WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS RETIREMENT UNLESS OTHERWISE ENTITLED TO HIGHER RETIRED GRADE OR PAY.

SUCH AN OFFICER AS THAT DESCRIBED IN YOUR LAST QUESTION--- IF RETIRED FOR DISABILITY AND ELECTING OPTION (B) IN SECTION 411 OF THE CAREER COMPENSATION ACT OR IF RETIRED FOR AGE OF LENGTH OF SERVICE--- IS ENTITLED, UNDER THE SAID CAREER COMPENSATION ACT,"TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE" OF THE TWO METHODS SET FORTH IN SECTION 511 OF SUCH ACT, SUPRA. THAT IS, HE IS ENTITLED TO SAVED PAY (THE RETIRED PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949), OR TO PAY COMPUTED UNDER METHOD (B) IN SECTION 511, IF SUCH LATTER PAY IS THE HIGHER OF THE TWO. AND, UNDER SUCH METHOD (B), HE WOULD BE ENTITLED, IF ADVANTAGEOUS TO HIM, TO HAVE HIS RETIRED PAY COMPUTED AS AUTHORIZED THEREIN ON THE BASIS OF ANY FEDERALLY RECOGNIZED GRADE HE MAY HAVE SATISFACTORILY HELD WHICH WAS HIGHER THAN THE TEMPORARY GRADE HELD UNDER THE OFFICER PERSONNEL ACT OF 1947 AT THE TIME OF RETIREMENT. HOWEVER, AS INDICATED IN THE ANSWER TO THE SECOND QUESTION, HE WOULD NOT BE ENTITLED TO INVOKE THE PROVISIONS OF SECTION 511 IN ORDER TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE 1949 ACT AND THEN IMMEDIATELY LOOK TO SOME OTHER PROVISION OF LAW IN ORDER TO RECEIVE A GREATER RETIRED PAY THAN THAT TO WHICH HE WOULD BE ENTITLED UNDER THE SAID SECTION 511. YOUR LAST QUESTION IS ANSWERED ACCORDINGLY.