B-151824, AUG. 12, 1963

B-151824, AUG. 12, 1963

TO MAJOR J. J. VANYA, USAF:

BY LETTER OF JUNE 14, 1963, THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF MAY 21, 1961 (1963), ARRA, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY THE ACCOMPANYING VOUCHER IN FAVOR OF TECHNICAL SERGEANT CLEMENCE A. MOESCH IN THE AMOUNT OF $35.28, WHICH IS STATED TO REPRESENT THE DIFFERENCE, FOR THE PERIOD FROM MARCH 1 THROUGH APRIL 30, 1963, IN RETIRED PAY BASED ON THE GRADE OF TECHNICAL SERGEANT WITH 11.46 YEARS FOR PERCENTAGE PURPOSES, AND OVER 18 YEARS FOR BASIC PAY PURPOSES AND THAT BASED ON THE GRADE OF MASTER SERGEANT WITH 11.51 YEARS OF SERVICE FOR PERCENTAGE PURPOSES AND OVER 20 YEARS FOR BASIC PAY PURPOSES. YOUR REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO-AF 711.

THE RECORDS SHOW THAT TECHNICAL SERGEANT MOESCH WAS BORN ON MAY 17, 1901. YOU STATE THAT ON FEBRUARY 8, 1961, WHILE SERVING WITH THE NEW YORK AIR NATIONAL GUARD, HE REQUESTED TO BE TRANSFERRED TO THE RETIRED RESERVE AND PLACED ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST EFFECTIVE JUNE 17, 1961; THAT HIS REQUEST WAS APPROVED ON FEBRUARY 10, 1961; THAT HE WAS NOT PROCESSED FOR DISCHARGE FROM THE NEW YORK AIR NATIONAL GUARD UNTIL OCTOBER 31, 1961; THAT HE CONTINUED TO ATTEND UNIT TRAINING ASSEMBLIES AND FIELD TRAINING IN A PAY STATUS UNTIL OCTOBER 31, 1961; AND THAT HE WAS PROMOTED TO THE GRADE OF MASTER SERGEANT EFFECTIVE JULY 24, 1961.

YOU STATE FURTHER THAT ON NOVEMBER 21, 1961, ORDERS WERE ISSUED PLACING HIM ON THE UNITED STATES AIR FORCE RETIRED LIST UNDER SECTION 1331, TITLE 10, U.S. CODE, EFFECTIVE MAY 31, 1961, IN THE HIGHEST GRADE SATISFACTORILY HELD, TECHNICAL SERGEANT; THAT BEFORE ALL DOCUMENTS WERE PREPARED FOR THE ESTABLISHMENT OF HIS RETIRED PAY ACCOUNT, ON FEBRUARY 20, 1962, HE REQUESTED THAT HIS RETIREMENT BE EFFECTED ON OCTOBER 31, 1961, IN THE GRADE OF MASTER SERGEANT RATHER THAN ON MAY 31, 1961, IN THE GRADE OF TECHNICAL SERGEANT. YOU ALSO STATE THAT HE REQUESTED THAT HE BE PERMITTED TO RETAIN REMUNERATION FOR RESERVE TRAINING FROM APRIL 1, 1961, THROUGH OCTOBER 31, 1961, SINCE HE WAS SERVING IN A RESERVE COMPONENT DURING THAT PERIOD. IT APPEARS THAT NO VALID ORDER HAS BEEN LOCATED IN THE RECORDS OF SERGEANT MOESCH RETAINING HIM ON AN ACTIVE STATUS AFTER MAY 31, 1961.

YOU REPORT THAT THE ORIGINAL RETIREMENT ORDERS WERE REVOKED ON MARCH 9, 1962, AND ORDERS WERE ISSUED TO RETIRE HIM ON OCTOBER 31, 1961, IN THE GRADE OF MASTER SERGEANT, AND THAT HIS RETIRED PAY ACCOUNT WAS ESTABLISHED ACCORDINGLY ON APRIL 5, 1962, IN THE GROSS AMOUNT OF $100.73MONTHLY BASED ON THE GRADE OF MASTER SERGEANT WITH 11.51 YEARS FOR PERCENTAGE PURPOSES AND OVER 20 YEARS FOR BASIC PAY. YOU STATE THAT DUE TO UNCERTAINTY AS TO THE LEGALITY OF HIS RETIREMENT IN THE GRADE OF MASTER SERGEANT ON OCTOBER 31, 1961, HIS GROSS RETIRED PAY, EFFECTIVE MARCH 1963, WAS REDUCED TO $83.09 MONTHLY, BASED ON THE GRADE OF TECHNICAL SERGEANT WITH 11.46 YEARS FOR PERCENTAGE PURPOSES AND OVER 18 YEARS FOR BASIC PAY PURPOSES. YOU QUESTION THE PROPRIETY OF PAYING RETIRED PAY AS MASTER SERGEANT WITH CREDIT FOR SERVICE PERFORMED THROUGH OCTOBER 31, 1961, AND IT APPEARS THAT DOUBT ALSO EXISTS WITH RESPECT TO PAYMENT OF RETIRED PAY, AND RETENTION BY THE MEMBER OF PAY FOR TRAINING DUTY, FOR THE PERIOD FROM JUNE 1, 1961, THROUGH OCTOBER 31, 1961.

TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087, AUTHORIZED, AMONG OTHER THINGS, RETIREMENT WITH PAY OF ANY OFFICER OR ENLISTED MAN OF THE NATIONAL GUARD AND THE RESERVE COMPONENTS OF THE AIR FORCE OF THE UNITED STATES WHO, UPON ATTAINING THE AGE OF 60 YEARS, HAD COMPLETED AN AGGREGATE OF 20 OR MORE YEARS OF SATISFACTORY SERVICE AS THERE SPECIFIED. TITLE III WAS SUPERSEDED BY CHAPTER 67 (WHICH INCLUDES 10 U.S.C. 1331) AND OTHER PROVISIONS OF TITLE 10, U.S.C. 10 U.S.C. 676, PROVIDES AS FOLLOWS:

"ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE MAY, WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, BE RETAINED ON ACTIVE DUTY, OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN SECTION 1332 (B) OF THIS TITLE. A MEMBER SO RETAINED SHALL BE CREDITED WITH THAT SERVICE FOR ALL PURPOSES.'

IN OUR DECISION OF AUGUST 25, 1958, B-113387, 38 COMP. GEN. 146, WE HELD THAT THE RIGHT OF A MEMBER TO RETIRED PAY UNDER TITLE III OF THE 1948 ACT, UPON APPROVAL OF AN APPLICATION FOR RETIRED PAY, WILL BE CONSIDERED TO ACCRUE FROM THE DATE THE MEMBER QUALIFIES BY REASON OF AGE AND SERVICE FOR SUCH PAY IN CONSONANCE WITH THE HOLDING IN SEAGRAVE V. UNITED STATES, 131 CT.CL. 790 (1955), SUBJECT, HOWEVER, TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, WHICH POSTPONES THE RIGHT TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE MEMBER QUALIFIES, IF THE QUALIFICATION IS AFTER DECEMBER 31, 1948.

IN OUR DECISION OF APRIL 1, 1959, B-138452, 38 COMP. GEN. 647, WE STATED THAT IN ORDER FOR A MEMBER TO QUALIFY FOR INCREASED RETIRED PAY BENEFITS UNDER 10 U.S.C. 676 HIS RETENTION IN AN ACTIVE STATUS IN A RESERVE COMPONENT MUST BE DIRECTED "BY ORDER OF THE SECRETARY CONCERNED.' ACCORDINGLY, UNLESS A MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION OR REGULATION ISSUED BY THE APPROPRIATE SECRETARY, SERVICE PERFORMED BY SUCH A MEMBER AFTER BECOMING QUALIFIED FOR RETIRED PAY MAY NOT BE COUNTED TO INCREASE RETIRED PAY BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED ON THE BASIS OF HIS SERVICE AT THE TIME OF QUALIFICATION. 41 COMP. GEN. 118. THE RETENTION THROUGH ADMINISTRATIVE ERROR OF A MEMBER IN AN ACTIVE RESERVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED THEREFROM DOES NOT OVERCOME THE REQUIREMENT OF 10 U.S.C. 676 THAT THE RETENTION MUST BE DIRECTED "BY ORDER OF THE SECRETARY CONCERNED.' COMPARE 41 COMP. GEN. 375. LIKEWISE, A PROMOTION RECEIVED BY A MEMBER AFTER HE HAS BECOME QUALIFIED FOR RETIRED PAY MAY NOT BE USED TO INCREASE RETIRED PAY BENEFITS. ESTEVES V. UNITED STATES, CT.CL. NO. 118-55, DECIDED DECEMBER 6, 1961.

IN THE CIRCUMSTANCES, TECHNICAL SERGEANT MOESCH BECAME ENTITLED TO RETIRED PAY EFFECTIVE JUNE 1, 1961, AND HE MAY NOT PROPERLY BE PAID RETIRED PAY AS A MASTER SERGEANT WITH CREDIT FOR SERVICE PERFORMED THROUGH OCTOBER 31, 1961. ACCORDINGLY, THE VOUCHER IN THE AMOUNT OF $35.28 IS RETAINED HERE. WE PERCEIVE NO REASON WHY HE SHOULD NOT BE PERMITTED TO RETAIN THE AMOUNTS PAID HIM FOR TRAINING DUTY AFTER MAY 31, 1961, IF OTHERWISE CORRECT. HE WOULD NOT, HOWEVER, BE ENTITLED TO RETIRED PAY FOR THOSE DAYS FOR WHICH HE RECEIVED TRAINING DUTY PAY. YOU ARE ADVISED ACCORDINGLY.