B-131700, JULY 17, 1957, 37 COMP. GEN. 31

B-131700, JULY 17, 1957, 37 COMP. GEN. 31

MILITARY PERSONNEL - DISABILITY RETIRED PAY - SERVICE AFTER RETIREMENT - RETIRED PAY COMPUTATION CREDIT FOR INACTIVE TIME ON THE RETIRED LIST FOR THE PURPOSE OF INCREASING RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES WHO, AFTER RETIREMENT FOR PHYSICAL DISABILITY, ARE RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY RETURNED TO AN INACTIVE DUTY STATUS WILL BE ALLOWED ONLY FOR THOSE MEMBERS WHO COME WITHIN THE PURVIEW OF THE DANIELSON CASE, 121 C.1CLS. 533, AND FOR THOSE RETIRED MEMBERS WHO MEET THE REQUIREMENTS OF THE LAST PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND ARE RETURNED TO A RETIRED STATUS AFTER OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. MEMBERS OF THE UNIFORMED SERVICES WHO ARE RETIRED FOR PHYSICAL DISABILITY ON OR AFTER OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- AND SUBSEQUENTLY RECALLED TO ACTIVE DUTY MAY, ON RETURN TO A RETIRED STATUS, HAVE TIME SERVED IN AN INACTIVE-DUTY STATUS ON THE RETIRED LIST CREDITED FOR THE PURPOSE OF INCREASING THEIR RETIRED PAY PROVIDED THEY MEET THE ELIGIBILITY REQUIREMENTS OF THE LAST PROVISO OF SECTION 402 (D) OF THE 1949 ACT, 37 U.S.C. 272 (D). SERVICE AS A CADET IN THE UNITED STATES MILITARY ACADEMY OR AS A MIDSHIPMAN IN THE UNITED STATES NAVAL ACADEMY PRIOR TO NOVEMBER 12, 1918, MAY BE REGARDED AS SERVICE AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES FOR COMPUTATION OF RETIRED PAY PURSUANT TO PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115. THE HOLDING IN TRAVIS V. UNITED STATES, C.1CLS. NO. 5-53, WHICH APPLIES THE RE-RETIREMENT CONCEPT TO PERMIT ALL MEMBERS OF THE UNIFORMED SERVICES WHO ARE RETIRED FOR PHYSICAL DISABILITY TO COUNT TIME IN AN INACTIVE-DUTY STATUS ON THE RETIRED LIST TO INCREASE THEIR RETIRED PAY AFTER A TOUR OF ACTIVE DUTY, DOES NOT GIVE EFFECT TO THE PLAIN LANGUAGE OF SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, WHICH GRANTS INCREASED RETIRED PAY BENEFITS TO A SPECIAL GROUP COVERED BY SECTION 402 (D) OF THE ACT, AND, THEREFORE, THE TRAVIS DECISION WILL NOT BE FOLLOWED BY THE GENERAL ACCOUNTING OFFICE. ALTHOUGH THE DISABILITY RETIRED PAY ELECTION PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 DO NOT SPECIFY THAT AN ELECTION IS FINAL AND BINDING, AN ELECTION IS REQUIRED TO BE MADE WITHIN FIVE YEARS OF OCTOBER 1, 1949--- EFFECTIVE DATE OF THE ACT--- AND, UNLESS A MEMBER'S STATUS HAS CHANGED SO THAT HE DID NOT HAVE AN OPPORTUNITY TO CHANGE HIS FIRST ELECTION DURING THE FIVE-YEAR PERIOD TO TAKE ADVANTAGE OF THE NEW STATUS, AN ELECTION ONCE MADE IS FINAL AND BINDING ON THE RETIRED MEMBER. ALTHOUGH THE COMPUTATION OF RETIRED PAY UNDER ONE OF THE METHODS PROVIDED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 DOES NOT PRECLUDE THE RECOMPUTATION OF RETIRED PAY ON THE BASIS OF THE OTHER METHOD IF CONDITIONS CHANGE IN SUCH A MANNER THAT A RETIRED MEMBER'S PAY WOULD INCREASE BY SUCH RECOMPUTATION, SECTIONS 5 AND 6 OF THE CAREER INCENTIVE ACT OF 1955, 37 U.S.C. 321A AND 322A, PRECLUDE FURTHER RECOMPUTATIONS OF RETIRED PAY UNDER SECTION 511 OF THE 1949 ACT, AND IN THAT RESPECT THE METHOD OF COMPUTATION OF RETIRED PAY IS FINAL AND BINDING ON THE RETIRED MEMBER.

TO THE SECRETARY OF DEFENSE, JULY 17, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 30, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON SEVERAL QUESTIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 181 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, WHICH RELATE TO THE COMPUTATION OF RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES.

THE FIRST QUESTION IS AS FOLLOWS:

1. MAY THE PERIOD DURING WHICH A MEMBER WAS INACTIVE ON THE RETIRED LIST BE INCLUDED IN DETERMINING THE RATE OF BASIC PAY TO BE USED IN THE COMPUTATION OF HIS RETIRED PAY UPON RETURN TO THE RETIRED LIST:

A. IN THE CASE OF A MEMBER RETIRED FOR PHYSICAL DISABILITY PRIOR TO 1 OCTOBER 1949 WHO IS CALLED TO ACTIVE DUTY?

B. IN THE CASE OF A MEMBER RETIRED FOR PHYSICAL DISABILITY ON OR AFTER 1 OCTOBER 1949 WHO IS CALLED TO ACTIVE DUTY?

THE ONLY SITUATION IN WHICH WE HAVE FOLLOWED THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CLAIMS--- AND THUS ALLOWED CREDIT FOR TIME THE MEMBER CONCERNED WAS IN AN INACTIVE STATUS ON THE RETIRED LIST IN DETERMINING THE RATE OF BASIC PAY TO BE USED IN THE COMPUTATION OF HIS RETIRED PAY--- IS THAT CONSIDERED IN THE CASE OF DANIELSON V. UNITED STATES, 121 C.1CLS. 533, WHERE THE PLAINTIFF WAS RETIRED FOR PHYSICAL DISABILITY BEFORE OCTOBER 1, 1949, AND INCURRED ADDITIONAL PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENT WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT BUT PRIOR TO OCTOBER 1, 1949. THIS WAS THE SITUATION IN THE CASE OF TRAVIS V. UNITED STATES, C.1CLS. NO. 5-53, DECIDED DECEMBER 5, 1956, AND THE PLAINTIFF WAS ENTITLED TO INCREASED RETIRED PAY FOR THE PERIOD PRIOR TO OCTOBER 1, 1949, UNDER THE RULE OF THE DANIELSON CASE. TO THE PERIOD AFTER THAT DATE, WE FEEL THAT IN GRANTING THE PLAINTIFF JUDGMENT FOR INCREASED RETIRED PAY, THE COURT FAILED TO GIVE EFFECT TO THE PLAIN LANGUAGE OF THE STATUTE.

SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, 37 U.S.C. 233 (B), PROVIDES, IN EXPRESS TERMS, THAT EXCEPT FOR ACTIVE SERVICE, SERVICE CREDIT AUTHORIZED IN THAT SECTION "SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY * * * EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT.' THE ONLY LANGUAGE FOUND IN TITLE IV WHICH PURPORTS TO DEAL IN ANY WAY WITH THE SITUATION OF RETIRED MEMBERS WHO ARE RECALLED TO ACTIVE DUTY AND LATER ARE RELEASED TO INACTIVE DUTY ON THE RETIRED LIST, IS THAT CONTAINED IN THE LAST PROVISO IN SECTION 402 (D), 37 U.S.C. 272 (D). SINCE ONLY RETIRED MEMBERS WHO ARE RECALLED TO ACTIVE DUTY ARE CONCERNED WITH THE MATTER OF COUNTING TIME SERVED IN AN INACTIVE-DUTY STATUS ON THE RETIRED LIST FOR THE PURPOSE OF INCREASING THEIR RETIRED PAY, AND SINCE PROVISION IS THERE MADE FOR THE COMPUTATION OF RETIRED PAY ON RETURN TO A RETIRED STATUS IN THE CIRCUMSTANCES THERE DESCRIBED ON THE BASIS OF THE HIGHEST BASIC PAY ATTAINED WHILE SERVING ON ACTIVE DUTY--- WHICH INCLUDES CREDIT FOR INACTIVE-DUTY TIME WHILE ON THE RETIRED LIST--- IT APPEARS REASONABLY CLEAR THAT THIS IS THE EXCEPTION REFERRED TO IN SECTION 202 (B) OF THAT ACT. IF THE CONGRESS HAD INTENDED THAT ALL MEMBERS WHO ARE RETIRED FOR PHYSICAL DISABILITY MAY COUNT TIME IN AN INACTIVE-DUTY STATUS ON THE RETIRED LIST, TO INCREASE THEIR RETIRED PAY AFTER A TOUR OF ACTIVE DUTY -- THIS IS THE EFFECT OF THE HOLDING IN THE TRAVIS CASE--- THERE WAS NO NEED TO GRANT THIS BENEFIT TO THE SPECIAL GROUP COVERED BY THE LAST PROVISO. IN GRANTING SUCH ADVANTAGE TO THIS GROUP, IT SEEMS REASONABLE TO CONCLUDE THAT THE CONGRESS INTENDED THAT SUCH BENEFIT SHOULD ACCRUE TO NO OTHER RETIRED MEMBERS. THE MAXIM EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS APPEARS FOR APPLICATION HERE.

ACCORDINGLY, THE QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE AS TO RETIRED MEMBERS WHO COME WITHIN THE PURVIEW OF THE DANIELSON CASE AND AS TO RETIRED MEMBERS WHO MEET THE REQUIREMENTS OF THE LAST PROVISO OF SECTION 402 (D) AND WHO ARE RETURNED TO A RETIRED STATUS AFTER OCTOBER 1, 1949. QUESTION 1 (B) IS ANSWERED IN THE AFFIRMATIVE AS TO RETIRED MEMBERS WHO MEET THE ELIGIBILITY REQUIREMENTS OF THAT PROVISO.

QUESTION 2 IS AS FOLLOWS:

2. MAY SERVICE AS A CADET IN THE UNITED STATES MILITARY ACADEMY OR THE UNITED STATES NAVAL ACADEMY PRIOR TO 12 NOVEMBER 1918 BE CONSIDERED SERVICE IN A MILITARY CAPACITY WITHIN THE MEANING OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. 115/?

THE COURT IN THE TRAVIS CASE HELD THAT THE PLAINTIFF WAS A MEMBER OF THE MILITARY FORCES OF THE UNITED STATES WHILE HE SERVED AS A CADET IN THE UNITED STATES MILITARY ACADEMY PRIOR TO NOVEMBER 12, 1918. WHILE DOUBT HAS BEEN EXPRESSED AS TO THE CORRECTNESS OF THAT CONCLUSION, IT WAS REACHED AFTER CAREFULLY RECONSIDERING AND OVERRULING AN EARLIER DECISION ( GILMARTIN V. UNITED STATES, 124 C.1CLS. 434) AND THE CONCLUSION REACHED IS CONSISTENT WITH THE VIEWS EXPRESSED IN OUR DECISION OF DECEMBER 2, 1946, 26 COMP. GEN. 373. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

THE THIRD QUESTION IS AS FOLLOWS:

3. MAY THE PROVISIONS OF 10 U.S.C. 1372 BE APPLIED TO A MEMBER RETIRED FOR PHYSICAL DISABILITY PRIOR TO 1 OCTOBER 1949?

THIS QUESTION IS NOT CLEAR, IT BEING STATED MERELY THAT IT INVOLVES THE RIGHT OF A MEMBER RETIRED FOR DISABILITY PRIOR TO OCTOBER 1, 1949, TO RECEIVE THE BENEFITS OF 10 U.S.C. 1372. IN THE ABSENCE OF A MORE COMPLETE STATEMENT OF FACTS AS TO A PARTICULAR MEMBER'S MILITARY HISTORY, PERIOD FOR WHICH RETIRED PAY IS CLAIMED, ETC., THIS QUESTION WILL BE ANSWERED GENERALLY BY SAYING THAT AT THE PRESENT TIME WE WILL NOT FOLLOW THE APPARENT CONCEPT OF THE COURT OF CLAIMS, AS INDICATED IN THE TRAVIS CASE, THAT A RETIRED OFFICER RELEASED FROM A PERIOD OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT IS "RE-RETIRED" ON THE DATE OF SUCH RELEASE SO AS TO ACQUIRE ADDITIONAL RIGHTS UNDER 10 U.S.C. 1372.

QUESTION 4 IS AS FOLLOWS:

4. IS AN ELECTION MADE PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 823) FINAL AND BINDING ON THE RETIRED MEMBER?

SECTION 411, 37 U.S.C. 281, DOES NOT PROVIDE THAT AN ELECTION UNDER THAT SECTION IS FINAL AND BINDING ON THE MEMBER CONCERNED AND IT HAS BEEN RECOGNIZED THAT AN ELECTION MAY BE CHANGED IN CERTAIN CIRCUMSTANCES. SEE IN THIS CONNECTION, 32 COMP. GEN. 159. COMPARE 33 COMP. GEN. 71; ID. 237. HOWEVER, A FINAL ELECTION IS REQUIRED TO BE MADE WITHIN FIVE YEARS OF OCTOBER 1, 1949, UNLESS A MEMBER'S STATUS HAS BEEN CHANGED UNDER APPLICABLE PROVISIONS OF LAW AT A TIME WHICH DID NOT AFFORD HIM AN OPPORTUNITY TO CHANGE HIS FIRST ELECTION DURING THE FIVE YEAR PERIOD TO TAKE ADVANTAGE OF HIS NEW STATUS, WITHIN THE RULE STATED IN 34 COMP. GEN. 646, AS AMPLIFIED IN 36 COMP. GEN. 547. IN THE ABSENCE OF SUCH CIRCUMSTANCES, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 5 IS AS FOLLOWS:

5. WOULD YOUR ANSWER TO QUESTION NO. 4 ALSO APPLY TO ELECTIONS MADE PURSUANT TO SECTION 511?

SECTION 511 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 311, DOES NOT PROVIDE FOR AN ELECTION WITH RESPECT TO RETIRED PAY. TWO METHODS OF COMPUTING RETIRED PAY ARE THERE PROVIDED AND RETIRED MEMBERS WHOSE RIGHTS ARE GOVERNED BY SUCH PROVISIONS OF LAW ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED BY THE METHOD WHICH PRODUCES THE GREATER AMOUNT OF RETIRED PAY. AFTER RECEIVING RETIRED PAY COMPUTED BY ONE METHOD, IF CONDITIONS CHANGE IN SUCH A MANNER THAT A RETIRED MEMBER'S PAY WOULD INCREASE BY COMPUTING HIS RETIRED PAY UNDER THE OTHER METHOD, SUCH RECOMPUTATION WAS AUTHORIZED AND REQUIRED UNDER SECTION 511 WITHOUT ANY ELECTION ON HIS PART. 29 COMP. GEN. 404, 407-408.

THAT GENERAL INTERPRETATION OF SECTION 511 DOES NOT APPLY, HOWEVER, TO THE INCREASES IN PAY AUTHORIZED IN THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, 37 U.S.C. 232 NOTE. WHEN THAT LEGISLATION WAS PROPOSED IN H.R. 2607, 84TH CONGRESS, SECTION 2 (13) OF THAT BILL WOULD HAVE EXTENDED THE TIME FOR MAKING AN ELECTION UNDER SECTION 411 TO "TWO YEARS AFTER THE EFFECTIVE DATE OF THE CAREER INCENTIVE ACT OF 1955," AND WITH RESPECT TO PERSONS WHOSE RETIRED PAY THEN WAS BEING COMPUTED UNDER METHOD (A) OF SECTION 511 (UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949), SECTION 2 (15) WOULD HAVE PERMITTED RECOMPUTATION UNDER METHOD (B) IF THAT RECOMPUTATION PROVIDED A GREATER AMOUNT OF RETIRED PAY. THE LEGISLATION FINALLY ENACTED INTO LAW AS THE CAREER INCENTIVE ACT OF 1955 OMITTED SUCH PROVISIONS AND THE LEGISLATIVE HISTORY OF THAT ACT SHOWS THAT THE CONGRESS WAS NOT AGREEABLE TO ANY FURTHER ELECTIONS UNDER SECTION 411 OR RECOMPUTATIONS OF RETIRED PAY UNDER SECTION 511. SEE PAGES 672 AND 673 ON THE HEARINGS ON H.R. 2607 BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, PAGE 203 ON THE HEARINGS ON H.R. 4720, 84TH CONGRESS (THE BILL ULTIMATELY MADE INTO LAW) BEFORE THE SENATE COMMITTEE ON ARMED SERVICES AND PAGE 10, HOUSE OF REPRESENTATIVES REPORT NO. 90, TO ACCOMPANY H.R. 4720.

SECTIONS 5 AND 6 OF THE CAREER INCENTIVE ACT, 37 U.S.C. 321A AND 322A, PROVIDE AS FOLLOWS:

ANY PERSON NOW OR HEREAFTER ENTITLED TO RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY * * * COMPUTED AT THE RATES PRESCRIBED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 SHALL BE ENTITLED TO HAVE HIS PAY COMPUTED AT THE RATES PRESCRIBED BY THAT SECTION, AS AMENDED BY THIS ACT * * * ( ITALICS SUPPLIED).

MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SHALL BE ENTITLED TO AN INCREASE OF 6 PERCENTUM OF THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, TO WHICH THEY ARE NOW ENTITLED. ( ITALICS SUPPLIED.)

THE INCREASE IN RETIRED PAY AUTHORIZED IN SUCH PROVISIONS OF LAW ARE CLEARLY BASED ON THE RETIRED PAY WHICH WAS BEING PAID TO RETIRED MEMBERS AT THE TIME OF ENACTMENT OF THAT ACT. SEE IN THIS CONNECTION THE DISCUSSION OF SECTIONS 5 AND 6 APPEARING ON PAGE 19, SENATE REPORT NO. 125, TO ACCOMPANY H.R. 4720, WHERE REFERENCE IS MADE TO AN INCREASE IN THE RETIRED PAY TO WHICH A MEMBER ,PRESENTLY" IS ENTITLED (SECTION 5) AND TO A 6 PERCENT INCREASE IN "PRESENT" RETIRED PAY (SECTION 6). QUESTION 5 IS ANSWERED ACCORDINGLY.