B-162676, NOVEMBER 22, 1967, 47 COMP. GEN. 289

B-162676, NOVEMBER 22, 1967, 47 COMP. GEN. 289

PAY - RETIRED - MEMBERS WHO SERVED IN HIGHER GRADE AFTER RETIREMENT - EARLY RELEASE AN ARMY SERGEANT RETIRED IN GRADE E-6 UPON HIS OWN APPLICATION UNDER 10 U.S.C. 3914 WHO UNDER ORDERS RECALLING HIM TO ACTIVE DUTY IN GRADE E 7, WITH HIS CONSENT, SERVES ONLY 7 MONTHS 6 DAYS OF A 2-YEAR PERIOD BECAUSE OF HARDSHIP IS ENTITLED TO THE RECOMPUTATION OF HIS RETIRED PAY ON THE BASIS OF THE HIGHER GRADE, FOR HAD HE BEEN RETIRED AT GRADE E-7 RATHER THAN RELEASED FROM ACTIVE DUTY, HE WOULD HAVE BEEN ELIGIBLE UNDER 10 U.S.C. 3961 TO RETIRE IN THAT GRADE, AND 10 U.S.C. 1402 (A) PRESCRIBING THE COMPUTATION OF RETIRED PAY ON THE MONTHLY BASIC PAY OF THE GRADE IN WHICH A MEMBER WOULD BE ELIGIBLE TO RETIRE IF RETIRING UPON RELEASE FROM ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT, THE SERGEANT'S RETIRED PAY PROPERLY MAY BE RECOMPUTED EFFECTIVE THE DAY FOLLOWING RELEASE FROM ACTIVE DUTY ON THE MONTHLY BASIC PAY OF GRADE E 7.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, NOVEMBER 22, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1967, REQUESTING A DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF SERGEANT FIRST CLASS (E-6) WALTER W. NEUMANN, A RETIRED ENLISTED MEMBER OF THE ARMY. THE AMOUNT OF THE VOUCHER, $237.61, REPRESENTS THE DIFFERENCE IN RETIRED PAY BASED ON GRADE E-7 AND GRADE E-6 FOR THE PERIOD JANUARY 12, 1967, TO JULY 31, 1967, INCLUSIVE. YOUR REQUEST WAS FORWARDED HERE OCTOBER 9, 1967, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY UNDER D. O. NUMBER A-962 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT NEUMANN WAS RETIRED EFFECTIVE MARCH 1, 1963, IN GRADE E-6 UPON HIS OWN APPLICATION IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 3914. HE WAS ORDERED (WITH HIS CONSENT) TO ACTIVE MILITARY SERVICE IN GRADE E-7 EFFECTIVE JUNE 6, 1966, TO SERVE FOR A PERIOD OF TWO YEARS. HOWEVER, UNDER AUTHORITY OF PARAGRAPH 11B, AR 601-250, AUGUST 11, 1966, AND PARAGRAPH 6-4B, AR 635-200, JULY 15, 1966, HE WAS RELEASED FROM ACTIVE DUTY ON JANUARY 11, 1967, NOT BY REASON OF PHYSICAL DISABILITY AND THE FOLLOWING DAY HE REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST.

THE QUESTION PRESENTED, I.E., WHETHER HIS RETIRED PAY PROPERLY MAY BE RECOMPUTED EFFECTIVE JANUARY 12, 1967, ON THE BASIS OF THE MONTHLY BASIC PAY OF GRADE E-7 RATHER THAN GRADE E-6, ARISES BY REASON OF THE FACT THAT HE DID NOT SERVE THE FULL TWO-YEAR PERIOD FOR WHICH HE CONSENTED TO BE RECALLED TO ACTIVE DUTY.

PARAGRAPH 11B OF AR 601-250 (AUGUST 11, 1966) PROVIDES THAT THE STANDARDS AND CRITERIA FOR EARLY RELIEF FROM ACTIVE DUTY CONTAINED IN ARMY REGULATIONS IN THE 635 SERIES ARE APPLICABLE (WITH SOME EXCEPTIONS NOT HERE PERTINENT) TO RETIRED ENLISTED PERSONNEL ON ACTIVE DUTY. PARAGRAPH 6 -4, AR 635-200 (JULY 15, 1966) PROVIDES THAT AT THE DISCRETION OF THE SECRETARY OF THE ARMY, AN INDIVIDUAL MAY BE DISCHARGED OR RELEASED, AS APPROPRIATE, FROM ACTIVE MILITARY SERVICE BECAUSE OF---

"A. DEPENDENCY. * * * * * *

"B. HARDSHIP, WHEN IN CIRCUMSTANCES NOT INVOLVING DEATH OR DISABILITY OF A MEMBER OF HIS FAMILY, HIS SEPARATION FROM THE SERVICE WILL MATERIALLY AFFECT THE CARE OR SUPPORT OF HIS FAMILY BY ALLEVIATING UNDUE AND GENUINE HARDSHIP.'

THE RECORD SHOWS THAT SERGEANT NEUMANN WAS RELEASED FROM ACTIVE MILITARY SERVICE ON JANUARY 11, 1967, IN ACCORDANCE WITH THE ADMINISTRATIVE POLICY ABOVE OUTLINED AFTER HAVING SERVED ONLY 7 MONTHS AND 6 DAYS UNDER THE ORDERS RECALLING HIM TO ACTIVE DUTY FOR A PERIOD OF 2 YEARS.

PARAGRAPH 10F (1), AR 635-230, CHANGE 4, JULY 17, 1963 (IN EFFECT DURING THE PERIOD PRECEDING FEBRUARY 8, 1967), PROVIDED:

"F. (ADDED) INDIVIDUALS PROMOTED TO PAY GRADES E-7, E-8, OR E-9 ON OR AFTER 1 JULY 1963 WILL BE REQUIRED TO SERVE A MINIMUM OF 2 YEARS ACTIVE DUTY IN SUCH GRADE BEFORE BEING ELIGIBLE FOR RETIREMENT IN GRADE UNLESS ENTITLED, UPON RETIREMENT, TO A HIGHER RETIRED GRADE THAN THAT IN WHICH SERVING ON ACTIVE DUTY.

"/1) EXCEPTIONS TO 2 YEARS ACTIVE SERVICE IN GRADE MAY BE GRANTED WHERE THE BEST INTERESTS OF THE SERVICE ARE INVOLVED, OR WHERE SUBSTANTIAL HARDSHIP WOULD OTHERWISE RESULT. THESE ARE THE ONLY EXCEPTIONS THAT MAY BE CONSIDERED.'

IT IS SUGGESTED IN YOUR LETTER, THAT SINCE SERGEANT NEUMANN APPEARS TO HAVE BEEN GRANTED AN EXCEPTION--- UNDER THE ABOVE-QUOTED REGULATIONS--- FROM THE TWO YEARS' ACTIVE SERVICE IN GRADE REQUIREMENT, HE MAY BE ENTITLED TO RECOMPUTE HIS RETIRED PAY EFFECTIVE FROM JANUARY 12, 1967, ON THE BASIS OF GRADE E-7. DESPITE SUCH SUGGESTION, HOWEVER, YOU ADD THAT:

"DOUBT EXISTS THAT HE IS ENTITLED TO RECOMPUTATION OF RETIRED PAY BASED ON THE HIGHER GRADE OF E-7 TO WHICH HE WAS PROMOTED AND SERVED IN LESS THAN 2 YEARS, SINCE HIS RETIRED GRADE REMAINS E-6, AND TITLE 10, U.S. CODE, SECTION 1402 (A) SPECIFICALLY PROVIDES THAT RETIRED PAY BE COMPUTED ON THE MONTHLY BASIC PAY OF THE GRADE IN WHICH A MEMBER WOULD BE ELIGIBLE TO RETIRE IF RETIRING UPON RELEASE FROM ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT.'

WE FIND NOTHING IN THE LANGUAGE CONTAINED IN SECTION 1402 (A) TO WHICH YOU REFER WHICH WOULD BAR RECOMPUTATION OF SERGEANT NEUMANN'S RETIRED PAY ON THE PAY OF GRADE E-7.

SECTION 3961, TITLE 10, U.S. CODE, PROVIDES THAT:

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, A REGULAR OR RESERVE OF THE ARMY WHO RETIRES OTHER THAN FOR PHYSICAL DISABILITY RETIRES IN THE REGULAR OR RESERVE GRADE THAT HE HOLDS ON THE DATE OF HIS RETIREMENT.'

ON JANUARY 11, 1967, WHEN SERGEANT NEUMANN WAS RELEASED BECAUSE OF HARDSHIP, HE HELD AND WAS SERVING IN GRADE E-7. IF HE HAD BEEN RETIRING UPON THAT RELEASE FROM ACTIVE DUTY, HE WOULD HAVE BEEN ELIGIBLE UNDER AUTHORITY OF SECTION 3961 TO RETIRE IN THAT GRADE. ACCORDINGLY, UNDER THE PROVISIONS OF SECTION 1402 (A), HIS RETIRED PAY PROPERLY MAY BE RECOMPUTED EFFECTIVE JANUARY 12, 1967, ON THE MONTHLY BASIC PAY OF GRADE E-7.

THE VOUCHER, PAYMENT ON WHICH IS AUTHORIZED IF OTHERWISE CORRECT, AND THE SUPPORTING PAPERS ARE RETURNED HEREWITH.