B-153784, OCT. 27, 1969

B-153784, OCT. 27, 1969

PAY--RETIRED--RATE AT TIME OF RETIREMENT--MANDATORY RETIREMENT EXTENDED- PHYSICAL EVALUATION WHERE AIR FORCE OFFICER'S MANDATORY RETIREMENT DATE WAS JUNE 2, 1969, HE WAS TO HAVE BEEN RETAINED ON ACTIVE DUTY THROUGH JUNE 30, 1969, BY VIRTUE OF 5 U.S.C. 8301 (A) AND RETIRED EFFECTIVE JULY 1, 1969, BUT WAS RETAINED UNTIL JULY 31, 1969 DUE TO PENDING PHYSICAL EVALUATION, RETIREMENT ORDERS OF JULY 15, 1969 FIXED RETIREMENT DATE AS AUG. 1, 1969, AND BASIC PAY RATES WERE INCREASED EFFECTIVE JULY 1, 1969, RETIRED PAY ENTITLEMENT BECAME FIXED UNDER 5 U.S.C. 8301 (B) ON PAY SCALE APPLICABLE JUNE 2, 1969 EVEN THOUGH HE CONTINUED ON ACTIVE DUTY UNTIL JULY 31, 1969 SINCE OFFICER WAS REQUIRED TO BE INVOLUNTARILY RETIRED JUNE 2, 1969 UNDER 10 U.S.C. 8916 AND WHILE 5 U.S.C. 8301 PERMITTED HIM TO REMAIN ON ACTIVE DUTY UNTIL JUNE 30, 1969 AND FIXED EFFECTIVE DATE OF RETIREMENT JULY 1, 1969, IT REQUIRED HIS RETIRED PAY BE COMPUTED ON BASIS OF RATES OF ACTIVE DUTY PAY EFFECTIVE JUNE 2, 1969.

TO MAJOR N. C. ALCOCK, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER (FILE REFERENCE ALRA) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $82.24 IN FAVOR OF LIEUTENANT COLONEL GARLAND M. JONES, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY FOR THE PERIOD AUGUST 1-31, 1969, COMPUTED ON THE APPLICABLE RATE OF THE JULY 1, 1968, BASIC PAY SCALE AND THE APPLICABLE RATE OF THE SCALE IN EFFECT ON JULY 1, 1969. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE DEPUTY COMPTROLLER FOR ACCOUNTING AND FINANCE OF THE AIR FORCE DATED SEPTEMBER 19, 1969, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO- AF-1051 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT COLONEL JONES' MANDATORY RETIREMENT DATE UNDER THE PROVISIONS OF 10 U.S.C. 8916 WAS JUNE 2, 1969; THAT HE WAS TO HAVE BEEN RETAINED ON ACTIVE DUTY THROUGH JUNE 30, 1969, BY VIRTUE OF 5 U.S.C. 8301 (A), AND RETIRED EFFECTIVE JULY 1, 1969; BUT THAT HE WAS RETAINED ON ACTIVE DUTY UNTIL JULY 31, 1969, DUE TO A PENDING PHYSICAL EVALUATION. DISABLING CONDITION WAS FOUND. HIS RETIREMENT ORDERS OF JULY 15, 1969, FIX HIS DATE OF RETIREMENT AS AUGUST 1, 1969.

THE BASIC PAY RATES WERE INCREASED EFFECTIVE JULY 1, 1969. SINCE COLONEL JONES CONTINUED ON ACTIVE DUTY UNTIL JULY 31, 1969, THE QUESTION IS PRESENTED WHETHER HIS RETIRED PAY ENTITLEMENT BECAME FIXED UNDER 5 U.S.C. 8301 (B) ON THE PAY SCALE APPLICABLE ON JUNE 2, 1969, OR WHETHER SUCH RETIRED PAY SHOULD BE BASED ON THE PAY SCALE APPLICABLE ON JULY 1, 1969.

ADDITIONALLY, YOU ASK WHETHER THE LANGUAGE USED IN 43 COMP. GEN. 742 (1964), THAT "THE FACT THAT THE ARMY FAILED TO ACCOMPLISH HIS RETIREMENT ON THE DATE REQUIRED BY LAW WOULD NOT SEEM TO ADD TO HIS RIGHTS IN ANY WAY WITH RESPECT TO COMPUTING THE AMOUNT OF RETIRED PAY TO WHICH HE IS ENTITLED," PRECLUDES ANY INCREASE IN RETIRED PAY INCLUDING AN INCREASE WHICH MIGHT OCCUR AS A RESULT OF AN INCREASE IN THE STATUTORY BASIC PAY RATE.

SECTION 8916 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

"/A) UNLESS RETIRED OR SEPARATED AT AN EARLIER DATE, EACH PROMOTION LIST OFFICER IN THE REGULAR GRADE OF LIEUTENANT COLONEL SHALL BE RETIRED, EXCEPT AS PROVIDED BY SECTION 8301 OF TITLE 5, ON THE THIRTIETH DAY AFTER HE COMPLETES 28 YEARS OF SERVICE COMPUTED UNDER 8927 (A) OF THIS TITLE * *

THE UNIFORM RETIREMENT DATE ACT AS CODIFIED IN 5 U.S.C. 8301 REQUIRES THAT EVERY RETIREMENT (UNLESS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE) TAKES EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, BUT THAT THE RATE OF RETIRED PAY MUST BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THAT ACT HAD NOT BEEN ENACTED. IT IS EVIDENT THAT COLONEL JONES WAS REQUIRED TO BE INVOLUNTARILY RETIRED ON JUNE 2, 1969, UNDER 10 U.S.C. 8916, AND THAT WHILE 5 U.S.C. 8301 PERMITTED HIM TO REMAIN ON ACTIVE DUTY UNTIL JUNE 30, 1969, AND FIXED THE EFFECTIVE DATE OF HIS RETIREMENT AS JULY 1, 1969, IT REQUIRED THAT HIS RETIRED PAY BE COMPUTED ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY THAT WERE EFFECTIVE ON JUNE 2, 1969.

YOU HAVE SUGGESTED NO PROVISION OF LAW UNDER WHICH THE MANDATORY REQUIREMENTS OF 10 U.S.C. 8916 AND 5 U.S.C. 8301 MAY BE DISREGARDED AND WE KNOW OF NO SUCH PROVISION. HENCE, HIS RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF THE PAY SCALE THAT BECAME EFFECTIVE JULY 1, 1968. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY. SEE IN THIS CONNECTION OUR DECISION TO YOU DATED SEPTEMBER 17, 1969, B-153784, IN WHICH THERE WAS CONSIDERED A SITUATION SIMILAR TO THAT HERE INVOLVED.