B-117116, MAY 5, 1955, 34 COMP. GEN. 570

B-117116, MAY 5, 1955, 34 COMP. GEN. 570

PAY - RETIRED THE TERM "BASIC PAY" IN SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, FOR THE COMPUTATION OF RETIRED PAY FOR MEMBERS OF THE UNIFORMED SERVICES RETIRED PRIOR TO THE ACT, MUST BE CONSIDERED WITH SECTION 202 (B) WHICH PRECLUDES INCREASING RETIRED PAY FOR ANY SERVICE OTHER THAN ACTIVE AFTER RETIREMENT AND, THEREFORE, OFFICER RETIRED FOR DISABILITY RECEIVING RETIRED PAY ON THE DATE OF THE ACT UNDER SECTION 511 (B) MAY NOT HAVE INCLUDED A PERIOD OF INACTIVE SERVICE SUBSEQUENT TO THE ACTUAL DATE OF RETIREMENT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COLONEL JAMES H. SMITH MAY 5, 1955:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1954, REQUESTING REVIEW OF THAT PART OF SETTLEMENT DATED AUGUST 26, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY BEGINNING OCTOBER 1, 1949.

THERE WAS CERTIFIED TO BE DUE YOU IN THE SETTLEMENT OF AUGUST 26, 1954, THE AMOUNT OF $673.75, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A COLONEL WITH OVER 27 YEARS' SERVICE AND THE RETIRED PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE FOR THE PERIOD FROM AUGUST 1, 1945, TO SEPTEMBER 30, 1949, INCLUSIVE. THAT ACTION WAS BASED ON THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF DANIELSON V. UNITED STATES, 121 C.1CLS. 533. HOWEVER, THAT PART OF YOUR CLAIM COVERING THE PERIOD BEGINNING OCTOBER 1, 1949, WAS DISALLOWED FOR THE REASON STATED IN THE SETTLEMENT.

YOU WERE RETIRED IN THE GRADE OF MAJOR, UNITED STATES ARMY, ON DECEMBER 31, 1938, UPON YOUR OWN APPLICATION, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, 10 U.S.C. 971B, HAVING AT THAT TIME A TOTAL OF 24 YEARS, 6 MONTHS AND 19 DAYS' CREDITABLE ACTIVE SERVICE. ON JUNE 1, 1940, YOU WERE RECALLED TO ACTIVE DUTY AND IN 1945 AN ARMY RETIRING BOARD FOUND YOU TO BE INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THE HIGHER GRADE OF COLONEL. YOUR PROMOTION, EFFECTIVE MAY 11, 1945, TO THE GRADE OF COLONEL ON THE RETIRED LIST ENTITLED YOU, UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, 10 U.S.C. 985B, TO HAVE YOUR RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR AN OFFICER OF SUCH HIGHER GRADE (COLONEL) RETIRED ON ACCOUNT OF PHYSICAL DISABILITY. WHEN RELEASED TO INACTIVE DUTY STATUS ON JULY 31, 1945, YOU HAD COMPLETED A TOTAL OF 29 YEARS, 8 MONTHS AND 19 DAYS OF CREDITABLE ACTIVE SERVICE.

THE RECORD INDICATES THAT BEGINNING OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231-322, YOUR RETIRED PAY HAS BEEN COMPUTED ON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THE ACT FOR A COLONEL (PAY GRADE 10-6) WITH OVER 26 BUT LESS THAN 30 YEARS' SERVICE. IT APPEARS TO BE YOUR VIEW THAT UNDER THE DANIELSON DECISION YOU ARE ENTITLED TO INCLUDE THE PERIOD OF YOUR INACTIVE SERVICE ON THE RETIRED LIST FROM JANUARY 1, 1939, TO MAY 31, 1940, INCLUSIVE, IN THE COMPUTATION OF YOUR RETIRED PAY BEGINNING OCTOBER 1, 1949.

ON THE BASIS OF THE FACTS ABOVE RELATED YOUR STATUS, EFFECTIVE OCTOBER 1, 1949, MAY BE CONSIDERED AS COMING WITHIN THE SCOPE OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281, WHICH, IN PERTINENT PART, PROVIDES:

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 PROVISIONS OF THIS ACT * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU DULY ELECTED UNDER OPTION (B) OF SECTION 411 TO RECEIVE RETIRED PAY, COMMENCING OCTOBER 1, 1949, COMPUTED UNDER SECTION 511 OF THE ACT. SECTION 511, 63 STAT. 829, 37 U.S.C. 311, IN PERTINENT PART PROVIDES (QUOTING FROM U.S. CODE, 1952 ED.):

ON AND AFTER OCTOBER 1, 1949, (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY, * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING OCTOBER 12, 1949, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT 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 OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON 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 THE COMPUTATION OF (B) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR: PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES, SERVICE AS A CADET OR MIDSHIPMAN IN THE CASE OF THOSE MEMBERS APPOINTED TO THE UNITED STATES MILITARY ACADEMY PRIOR TO AUGUST 24, 1912, OR TO THE UNITED STATES NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IF SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT, OR AS A NURSE, OR AS A CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, OR AS A RESERVE NURSE SUBSEQUENT TO FEBRUARY 2, 1901, OR AS A CONTRACT SURGEON, OR AS A CONTRACT DENTAL SURGEON, OR AS AN ACTING DENTAL SURGEON, OR AS A VETERINARIAN IN THE QUARTERMASTER DEPARTMENT, CAVALRY, OR FIELD ARTILLERY, OR AS AN ARMY FIELD CLERK OR AS A FIELD CLERK, ARMY QUARTERMASTER CORPS, WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY * * *.

SECTION 202 OF THE CAREER COMPENSATION ACT, 63 STAT. 807, 37 U.S.C. 233, LISTS OR DESCRIBES ALL SERVICE, ACTIVE AND INACTIVE, WHICH NORMALLY MAY BE COUNTED IN THE COMPUTATION OF BASIC PAY, BUT SECTION 202 (B), 63 STAT. 808, OF THE ACT EXPRESSLY PROVIDES THAT, EXCEPT FOR ACTIVE SERVICE IN ANY REGULAR OR RESERVE COMPONENT OF ANY OF THE UNIFORMED SERVICES (AND EXCEPT FOR SERVICE CREDITABLE UNDER PROVISIONS IN TITLE IV OF THE ACT WHICH ARE NOT APPLICABLE IN YOUR CASE),"THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY.'

AS A RESULT OF YOUR ELECTION UNDER OPTION (B) OF SECTION 411, YOU BECAME ENTITLED TO RECEIVE RETIRED PAY BEGINNING OCTOBER 1, 1949, IN THE AMOUNT, WHICHEVER IS THE GREATER, COMPUTED BY EITHER METHOD (A) OR METHOD (B) IN SECTION 511. UNDER METHOD (A) YOU WOULD HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY IN THE AMOUNT OF $412.50 PER MONTH REPRESENTING 75 PERCENTUM OF $550, THE MONTHLY ACTIVE DUTY PAY OF A COLONEL WITH OVER 30 YEARS' TOTAL SERVICE (INCLUDING, UNDER THE RULE OF THE DANIELSON CASE, YOUR INACTIVE SERVICE ON THE RETIRED LIST FROM JANUARY 1, 1939, TO MAY 31, 1940) COMPUTED ON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THE PROVISIONS OF LAW THAT WERE IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. SEE SECTION 1, PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED (EFFECTIVE JULY 1, 1946) BY SECTION 4, ACT OF JUNE 29, 1946, 60 STAT. 345. UNDER METHOD (B) OF SECTION 511, 63 STAT. 829, YOU WERE ENTITLED TO RECEIVE RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1952, INCLUSIVE, AT THE RATE OF $502.31 PER MONTH, REPRESENTING 75 PERCENTUM OF $669.75, THE MONTHLY BASIC PAY OF A COLONEL WITH OVER 26 BUT LESS THAN 30 CUMULATIVE YEARS OF SERVICE. THE ABOVE RATE OF RETIRED PAY WAS INCREASED BY 4 PERCENTUM EFFECTIVE MAY 1, 1952, TO $522.40 PER MONTH, BY SECTIONS 1 (A) AND 2 (A), ACT OF MAY 19, 1952, 66 STAT. 79, 80, 37 U.S.C. 232, 321.

THE PERIOD OF YOUR INACTIVE SERVICE ON THE RETIRED LIST FROM JANUARY 1, 1939 TO MAY 31, 1940, SUBSEQUENT TO THE ACTUAL DATE OF YOUR RETIREMENT ON DECEMBER 31, 1938, MAY NOT BE INCLUDED IN THE COMPUTATION OF YOUR RETIRED PAY UNDER METHOD (B) OF SECTION 511 INASMUCH AS THE TERM "BASIC PAY," APPEARING IN METHOD (B), MUST BE READ IN CONJUNCTION WITH THE ABOVE- MENTIONED PROHIBITION CONTAINED IN SECTION 212 (B) OF THE CAREER COMPENSATION ACT AND THUS MUST BE CONSIDERED AS MEANING, FOR YOU, THE BASIC PAY WHICH YOU WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY WITHOUT CREDIT FOR ANY SERVICE AFTER RETIREMENT EXCEPT ACTIVE SERVICE AS A MEMBER OF ANY REGULAR OR RESERVE COMPONENT. 31 COMP. GEN. 39, 44.

A MEMBER OF THE UNIFORMED SERVICES MAY NOT INVOKE THE PROVISIONS OF METHOD (B) IN SECTION 511, IN ORDER TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE 1949 ACT, AND THEN SEEK TO COMBINE WITH SUCH PROVISIONS CERTAIN PROVISIONS OF METHOD (A) AND THUS CREATE A NEW FORMULA TO PRODUCE A GREATER AMOUNT OF RETIRED PAY THAN THAT TO WHICH HE WOULD BE ENTITLED EITHER UNDER THE LAWS THAT WERE IN EFFECT PRIOR TO THE ENACTMENT OF THE 1949 ACT OR ON THE SPECIFIC BASIS PRESCRIBED IN METHOD (B) OF SECTION 511. 31 COMP. GEN. 28, 31.

INASMUCH AS YOU HAVE RECEIVED RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS SPECIFICALLY PRESCRIBED IN METHOD (B) IN SECTION 511, NO ADDITIONAL AMOUNT IS DUE YOU FOR THE PERIOD BEGINNING ON THAT DATE. THE DISALLOWANCE OF YOUR CLAIM FOR SUCH PERIOD, IN THE SETTLEMENT OF AUGUST 26, 1954, WAS CORRECT AND IS SUSTAINED.