B-139530, SEPTEMBER 11, 1959, 39 COMP. GEN. 181

B-139530, SEPTEMBER 11, 1959, 39 COMP. GEN. 181

MILITARY PERSONNEL - RETIRED PAY - INACTIVE RETIRED LIST SERVICE - WARRANT OFFICER RECALLED TO ACTIVE DUTY ALTHOUGH AN ARMY MEMBER WHO, AFTER RETIREMENT AS WARRANT OFFICER WITH OVER 25 YEARS' SERVICE ON FEBRUARY 28, 1945, WAS RECALLED TO ACTIVE DUTY ON NOVEMBER 11, 1946, AND RELEASED IN RANK OF CAPTAIN ON JUNE 30, 1949, IS ENTITLED TO HAVE INACTIVE TIME ON THE RETIRED LIST CREDITED FOR LONGEVITY PAY PURPOSES WHILE ON ACTIVE DUTY, THE LAWS UNDER WHICH ACTIVE DUTY PAY IS COMPUTED ARE DISTINCT AND SEPARATE FROM THOSE UNDER WHICH RETIRED PAY IS COMPUTED AND PURSUANT TO THE LAWS UNDER WHICH THE MEMBER IS ENTITLED TO RECEIVE RETIRED PAY--- SECTION 4A OF THE ACT OF JUNE 4, 1920, AS AMENDED, 10 U.S.C. 594--- FOR THE PERIOD PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND SECTION 511 OF THE 1949 ACT FOR THE SUBSEQUENT PERIOD--- THERE IS NO AUTHORITY FOR THE INCLUSION OF INACTIVE RETIRED LIST SERVICE IN COMPUTATION OF RETIRED PAY.

TO CONRAD W. WEISER, SEPTEMBER 11, 1959:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1959, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF APRIL 15, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED TO BE DUE COMPUTED ON THE BASIS OF OVER 30 YEARS' SERVICE RATHER THAN OVER 28 YEARS' SERVICE FROM JULY 1, 1949, TO CURRENT DATE, AS CAPTAIN, ARMY OF THE UNITED STATES, RETIRED.

THE RECORDS SHOW THAT YOU FIRST ENLISTED IN THE ARMY ON APRIL 4, 1919, AND THAT YOU WERE RETIRED ON FEBRUARY 28, 1945, IN THE GRADE OF WARRANT OFFICER, JUNIOR GRADE, WITH 25 YEARS, 8 MONTHS, AND 4 DAYS OF SERVICE. YOU WERE RECALLED TO ACTIVE DUTY ON NOVEMBER 11, 1946, AND RELEASED FROM SUCH ACTIVE DUTY BACK TO THE RETIRED ROLLS ON JUNE 30, 1949, IN THE RANK OF CAPTAIN, MAKING TOTAL ACTIVE SERVICE OF 28 YEARS, 3 MONTHS, AND 24 DAYS. A REPORT FROM THE U.S. ARMY FINANCE CENTER, RETIRED PAY DIVISION, DATED MARCH 2, 1959, SHOWS THAT YOU RECEIVED RETIRED PAY FOR THE PERIOD JULY 1, 1949, TO FEBRUARY 28, 1959, AS FOLLOWS:

TABLE PERIOD RATE DUE RATE PAID TOTAL PAID JULY 1, 1949- SEPTEMBER 30, 1949 $279.13 $279.13 $ 837.39 OCTOBER 1, 1949- APRIL 30, 1952 309.23

309.23 9,586.13 MAY 1, 1952- MARCH 31, 1955 321.59 321.60 11,256.00 APRIL 1, 1955- MAY 31, 1958 360.36 360.36 13,693.68 JUNE 1, 1958- FEBRUARY 28, 1959 381.98 381.98 3,437.82

TOTAL------------------------------------------------ $38,811.02

THE REPORT FURTHER SHOWS THAT THE PAYMENT OF YOUR RETIRED PAY WAS BASED ON PAY RATES IN EFFECT PRIOR TO OCTOBER 1, 1949 (EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802), 37 U.S.C. 231 NOTE, AT 70 PERCENT OF THE ACTIVE DUTY PAY OF CAPTAIN WITH OVER 27 YEARS' SERVICE FOR PAY PURPOSES FROM JULY 1, 1949, TO SEPTEMBER 30, 1949, AND 70 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH OVER 22 YEARS' SERVICE FOR BASIC PAY PURPOSES BASED ON PAY RATES WHICH WERE MADE EFFECTIVE OCTOBER 1, 1949 PAY ACT PLUS INCREASES AUTHORIZED BY SUBSEQUENT AMENDMENTS TO THAT ACT. AFTER A CAPTAIN HAS COMPLETED OVER 22 YEARS OF CREDITABLE SERVICE, NOR FURTHER INCREASES IN PAY ARE AUTHORIZED BY THE 1949 ACT FOR ADDITIONAL SERVICE.

IN THE ORIGINAL SUBMISSION OF YOUR CLAIM TO THIS OFFICE, BY LETTER DATED FEBRUARY 4, 1959, YOU STATED THAT UPON YOUR RECALL TO ACTIVE DUTY ON NOVEMBER 11, 1946, THE TIME SPENT ON THE RETIRED LIST WAS CREDITED TO YOU FOR LONGEVITY PAY PURPOSES WHILE YOU WERE ON ACTIVE DUTY AND, THEREFORE, YOU FEEL THAT SUCH TIME ON THE RETIRED LIST SHOULD ALSO BE INCLUDED IN THE TOTAL YEARS OF SERVICE CREDITABLE TO YOU FOR THE PURPOSE OF COMPUTING YOUR RETIRED PAY. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION PRIMARILY UPON THE BASIS THAT THERE APPEARED TO BE NO LAW OR AUTHORITY WHICH WOULD ALLOW YOU TO COUNT YOUR INACTIVE SERVICE ON THE RETIRED LIST BETWEEN THE TIME OF YOUR RETIREMENT TO THE DATE OF YOUR RECALL TO ACTIVE DUTY, IN THE COMPUTATION OF YOUR RETIRED PAY.

IT SHOULD BE POINTED OUT, AT THE OUTSET, THAT THE PROVISIONS OF LAW UNDER WHICH YOU RECEIVED CREDIT FOR THE PERIOD OF INACTIVE TIME WHILE ON THE RETIRED LIST IN THE COMPUTATION OF ACTIVE DUTY PAY ARE DISTINCT AND SEPARATE FROM THOSE UNDER WHICH YOUR RETIRED PAY IS COMPUTED. THE FACT, THEREFORE, THAT YOUR INACTIVE SERVICE ON THE RETIRED LIST WAS CREDITED TO YOU FOR LONGEVITY PAY PURPOSES WHILE YOU WERE ON ACTIVE DUTY HAS NO BEARING ON THE QUESTION OF YOUR ENTITLEMENT TO INCLUDE SUCH INACTIVE SERVICE IN THE COMPUTATION OF YOUR RETIRED PAY. UPON YOUR RECALL TO ACTIVE DUTY SUCH INACTIVE SERVICE WAS CREDITABLE UNDER THE PROVISIONS OF SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 37 U.S.C. 103 (1946 USED.), AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, 37 U.S.C. 103A (1946 USED.) THESE PROVISIONS WERE AMENDED BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, 37 U.S.C. 103A (1946 USED.), TO READ IN PART AS FOLLOWS:

IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTION 1, 3, 8, OR 9 OF THIS ACT, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTION UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY ARE ENLISTED OR HELD COMMISSIONS AS OFFICERS OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * * ( ITALICS SUPPLIED.)

IT IS CLEAR THAT YOU HELD AN APPOINTMENT AS A WARRANT OFFICER WHILE ON THE RETIRED LIST OF THE ARMY WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISION RELATING TO ACTIVE-DUTY PAY SO AS TO ENTITLE YOU TO COUNT INACTIVE TIME ON SUCH RETIRED LIST IN COMPUTING YOUR ACTIVE-DUTY PAY AFTER YOUR RECALL TO ACTIVE DUTY ON NOVEMBER 11, 1946. SEE 28 COMP. GEN. 713 AND 22 ID. 664.

IN DETERMINING YOUR RIGHT TO INCLUDE THE INACTIVE TIME SPENT ON THE RETIRED LIST--- FROM MARCH 1, 1945, TO NOVEMBER 10, 1946--- IN COMPUTING YOUR RETIRED PAY FROM JULY 1, 1949, TO THE CURRENT DATE, TWO SEPARATE PERIODS MUST BE CONSIDERED--- THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 ( OCTOBER 1, 1949), AND THE PERIOD AFTER SUCH EFFECTIVE DATE. THE RECORDS SHOW THAT YOU WERE RETIRED UNDER SECTION 4A, ACT OF JUNE 4, 1920, 41 STAT. 759, 10 U.S.C. 482 (1946 USED.) AS AMENDED BY SECTION 5, ACT OF AUGUST 21, 1941, 55 STAT. 653, 10 U.S.C. 594 (1946 USED.). THOSE PROVISIONS WERE FURTHER AMENDED BY SECTION 203 (C), ACT OF JUNE 29, 1948, 62 STAT. 1085, 10 U.S.C. 594. THE LATTER ACT PROVIDES AS FOLLOWS:

WARRANT OFFICERS SHALL BE ENTITLED TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS: PROVIDED, THAT HEREAFTER WARRANT OFFICERS MAY, IN THE DISCRETION OF THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE AIR FORCE, WHICHEVER MAY BE CONCERNED, BE RETIRED AFTER TWENTY YEARS OF ACTIVE SERVICE: PROVIDED FURTHER, THAT A WARRANT OFFICER RETIRED AFTER TWENTY YEARS OF ACTIVE SERVICE SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITED FOR LONGEVITY PAY PURPOSES AND NOT TO EXCEED 75 PERCENTUM OF SUCH ANNUAL, ACTIVE DUTY BASE AND LONGEVITY PAY: PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS' SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED: AND PROVIDED FURTHER, THAT ANY WARRANT OFFICER HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHALL UPON THE COMPLETION OF THIRTY YEARS SERVICE, TO INCLUDE THE SUM OF HIS ACTIVE SERVICE AND HIS SERVICE ON THE RETIRED LIST, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY OFFICER, FLIGHT OFFICER, OR WARRANT OFFICER GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY AS DETERMINED BY THE COGNIZANT SECRETARY DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE AT THE TIME OF RETIREMENT: * * * ( ITALICS SUPPLIED.)

IT APPEARS FROM THE RECORD THAT YOUR RETIRED PAY FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1949, WAS COMPUTED AT THE RATE OF 70 PERCENT (28 YEARS, 3 MONTHS AND 24 DAYS EQUAL 28 TIMES 2 1/2 PERCENT EQUALS 70 PERCENT) OF $398.75 (THE ACTIVE-DUTY PAY OF A CAPTAIN WITH OVER 27 YEARS' SERVICE PROVIDED BY THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345, 37 U.S.C. 101 (1946 USED.) (, WHICH AMOUNTS TO $279.13. UNDER THE PROVISIONS OF THE ACT OF JUNE 29, 1948, QUOTED ABOVE, YOU WERE ADVANCED TO THE RANK OF CAPTAIN ON THE RETIRED LIST WHEN YOU COMPLETED 30 YEARS OF SERVICE, INCLUDING SERVICE ON THE RETIRED LIST, AND WHEN SUBSEQUENTLY RELEASED TO INACTIVE DUTY YOU WERE ENTITLED TO RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH YOU WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE (CAPTAIN) AT THE TIME OF RETIREMENT ( FEBRUARY 28, 1945). UNDER THE "RATE PRESCRIBED BY LAW," REFERRED TO IN THE LAST PROVISO OF THE ABOVE PROVISIONS, YOU WERE ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF 2 1/2 PERCENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY OF A CAPTAIN AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITED FOR LONGEVITY PAY PURPOSES AT THAT TIME INCREASED BY YOUR ACTIVE SERVICE AFTER RETIREMENT AS AUTHORIZED BY SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C. 115 (1946 USED.).

AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 ( OCTOBER 1, 1949), THERE CAN BE NO QUESTION BUT THAT RETIRED LIST SERVICE COULD NOT BE CREDITED TO YOU IN ORDER TO INCREASE THE MULTIPLIER FACTOR FROM OVER 28 YEARS' SERVICE TO OVER 30 YEARS' SERVICE. SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, PROVIDES IN PART AS FOLLOWS:

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, 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 THE DATE OF ENACTMENT OF THIS ACT, 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, 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: * * * ( ITALICS SUPPLIED.)

IT IS CLEAR THAT YOU WERE "HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY" AND THAT YOUR ENTITLEMENT TO RETIRED PAY, AND THE METHOD BY WHICH IT IS TO BE COMPUTED, IS GOVERNED BY SECTION 511 OF THE ACT. SECTION 511 DOES NOT PROVIDE FOR AN ELECTION BETWEEN THE TWO METHODS OF COMPUTING RETIRED PAY AUTHORIZED IN THAT SECTION. UNDER SECTION 511 YOU WERE ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS WHICH PRODUCED THE GREATER AMOUNT OF RETIRED PAY. AFTER RECEIVING RETIRED PAY COMPUTED BY ONE METHOD, IF CONDITIONS CHANGED IN SUCH A MANNER THAT YOUR RETIRED PAY WOULD INCREASE BY COMPUTING IT UNDER THE OTHER METHOD, SUCH RECOMPUTATION WAS AUTHORIZED AND REQUIRED UNDER SECTION 511 WITHOUT ANY ELECTION ON YOUR PART. 29 COMP. GEN. 404; 37 ID. 31. IT IS FOR NOTING THAT UNDER METHOD (B) OF SECTION 511 RETIRED PAY IS TO BE COMPUTED ON THE BASIS OF "2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY * * * SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY * * * MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.' METHOD (B) CLEARLY LIMITS THE NUMBER OF YEARS CREDITABLE IN THE COMPOSITION OF THE MULTIPLIER FACTOR, TO "THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO" A RETIRED MEMBER. AND UNDER METHOD (A) OF SECTION 511, YOU ARE ENTITLED TO RECEIVE RETIRED PAY "IN THE AMOUNT AUTHORIZED FOR MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF THE ENACTMENT OF THIS ACT.' ON THE DAY IMMEDIATELY PRECEDING THE ENACTMENT OF THE ACT YOUR RETIRED PAY, AS WAS POINTED OUT ABOVE, WAS BEING PROPERLY COMPUTED WITHOUT REFERENCE TO RETIRED LIST SERVICE. NEITHER METHOD (A) NOR (B) OF SECTION 511, THEREFORE, WOULD AUTHORIZE THE INCLUSION OF YOUR INACTIVE TIME ON THE RETIRED LIST IN THE COMPUTATION OF YOUR RETIRED PAY. SINCE THE COMPUTATION OF YOUR RETIRED PAY UNDER METHOD (B) OF SECTION 511 HAS GIVEN YOU A GREATER AMOUNT THAN YOU WOULD HAVE RECEIVED UNDER METHOD (A) OF THAT SECTION, YOUR RETIRED PAY APPEARS TO HAVE BEEN PROPERLY COMPUTED UNDER THAT METHOD SINCE OCTOBER 1, 1949. YOUR RETIRED PAY IS STILL BEING COMPUTED UNDER THAT METHOD AND THERE IS NO LAW OR AUTHORITY THAT THIS OFFICE IS COGNIZANT OF WHICH WOULD ALLOW THE INCLUSION OF INACTIVE RETIRED LIST SERVICE IN THE COMPUTATION OF YOUR RETIRED PAY.