B-53368, JANUARY 10, 1947, 26 COMP. GEN. 473

B-53368, JANUARY 10, 1947, 26 COMP. GEN. 473

PAY -RETIRED - PERCENTAGE RATE AS AFFECTED BY INACTIVE SERVICE CREDIT AUTHORIZED SUBSEQUENT TO RETIREMENT IN THE CASE OF NAVY OFFICERS WHO WERE RETIRED PRIOR TO THE EFFECTIVE DATE --- JUNE 1, 1942--- OF THE PAY READJUSTMENT ACT OF 1942, UNDER THE ACTS OF AUGUST 29, 1916, AS AMENDED, AND AUGUST 5, 1935, WITH RETIRED PAY AT 2 1/2 PERCENT OF ACTIVE-DUTY PAY FOR EACH YEAR OF SERVICE, THE PERCENTAGE TO BE USED IN DETERMINING RETIRED PAY ON THE BASIS OF PAY AUTHORIZED IN THE 1942 ACT, AS PROVIDED BY SECTION 15 THEREOF, IS NOT AFFECTED BY INACTIVE SERVICE PRIOR TO RETIREMENT WHICH COULD NOT BE CREDITED FOR PAY PURPOSES AT THE TIME OF RETIREMENT BUT WHICH, PURSUANT TO SAID 1942 ACT, AS AMENDED, NOW MAY BE SO CREDITED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 10, 1947:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1945, TRANSMITTING LETTER OF SEPTEMBER 25, 1945, FROM THE ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION ON THE QUESTIONS PRESENTED THEREIN AS FOLLOWS.

* * * THE ACTS OF AUGUST 29, 1916, FEBRUARY 28, 1931, MARCH 3, 1931, AUGUST 5, 1935 AND JUNE 23, 1938, INSOFAR AS THEY RELATE TO RETIRED PAY OF OFFICERS RETIRED FOR AGE OR SERVICE INELIGIBILITY FOR PROMOTION, OR ON OWN APPLICATION WITH LESS THAN 30 YEARS OF SERVICE, PROVIDE THAT SUCH OFFICERS ARE ENTITLED TO RETIRED PAY ON THE BASIS OF 2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH ENTITLED AT TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED AT TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED 75 PERCENTUM OF SAID ACTIVE DUTY PAY. IN THIS CONNECTION IT IS POINTED OUT, FOR EXAMPLE, THAT OFFICERS OF THE REGULAR NAVY RETIRED PRIOR TO 1 JUNE 1942 UNDER ACTS CONTAINING THE AFORESAID PROVISION WERE NOT ENTITLED TO COUNT PRIOR INACTIVE SERVICE (ENLISTED, WARRANT, COMMISSIONED WARRANT OR COMMISSIONED) IN THE ACTIVE NATIONAL GUARD OR RESERVE COMPONENTS OF THE ARMED FORCES OF THE UNITED STATES, ALTHOUGH SUCH SERVICE IS CREDITABLE FOR ALL PAY PURPOSES IN COMPUTING ACTIVE OR RETIRED PAY ON AND AFTER 1 JUNE 1942 UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942. ALSO, OFFICERS OF THE REGULAR NAVY APPOINTED ON AND AFTER 1 JULY 1922 WERE NOT ENTITLED TO COUNT, UNDER THE ACT OF JUNE 10, 1922, PRIOR ENLISTED OR WARRANT SERVICE IN THE ARMY, NAVY, OR MARINE CORPS OR ACTIVE ENLISTED AND WARRANT SERVICE IN THE RESERVE COMPONENTS THEREOF; NEITHER WERE THEY ENTITLED TO COUNT PRIOR INACTIVE COMMISSIONED OR COMMISSIONED WARRANT SERVICE IN THE NATIONAL GUARD, NATIONAL GUARD RESERVE OR THE OTHER RESERVE COMPONENTS OF THE ARMED FORCES. SINCE 1 JUNE 1942 THE SERVICE MENTIONED HAS BEEN CREDITABLE FOR ALL PAY PURPOSES IN COMPUTING ACTIVE OR RETIRED PAY. THE FOLLOWING CASES ARE ILLUSTRATIVE OF THIS POINT AND IT IS DEEMED ADVISABLE TO OBTAIN A DECISION OF THE COMPTROLLER GENERAL AS TO THE RETIRED PAY STATUS OF SUCH OFFICERS UNDER THE PAY READJUSTMENT ACT OF 1942:

(A) AN OFFICER RETIRED IN THE RANK OF COMMANDER ON 30 JUNE 1932 UNDER THE PROVISIONS OF REFERENCE (A) WITH SERVICE OF 26 YEARS 9 MONTHS AND 25 DAYS, SERVED ON ACTIVE DUTY FROM 1 OCTOBER 1939 TO 30 SEPTEMBER 1941. AT TIME OF RETIREMENT THIS OFFICER HAD PRIOR INACTIVE ENLISTED SERVICE IN THE ORGANIZED MILITIA WHICH WAS NOT THEN CREDITABLE FOR PAY PURPOSES BUT WHICH HAS BEEN CREDITABLE FOR ALL PAY PURPOSES UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942 SINCE 1 JUNE 1942. IS SUCH OFFICER ENTITLED ON AND AFTER 1 JUNE 1942, UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942:

(1) TO RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 30 YEARS OF SERVICE, OR

(2) IS HE ENTITLED TO RETIRED PAY COMPUTED AS 72 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 30 YEARS OF SERVICE?

THE 72 1/2 PERCENTUM RATE IS BASED ON SERVICE CREDITABLE FOR PAY PURPOSES IN COMPUTING ACTIVE DUTY PAY TO WHICH ENTITLED AT TIME OF RETIREMENT PLUS ACTIVE COMMISSIONED SERVICE PERFORMED SUBSEQUENT TO RETIREMENT.

(B) AN OFFICER RETIRED IN THE RANK OF LIEUTENANT COMMANDER ON 30 JUNE 1941 UNDER THE PROVISIONS OF REFERENCE (E), WITH SERVICE OF 24 YEARS 5 MONTHS AND 6 DAYS THEN CREDITABLE FOR PAY PURPOSES, WAS CONTINUED ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT AND IS TO BE RELEASED FROM ACTIVE DUTY EFFECTIVE 31 OCTOBER 1945. AT TIME OF RETIREMENT THIS OFFICER HAD PRIOR INACTIVE ENLISTED SERVICE IN THE NATIONAL GUARD TOTALING 1 YEAR AND 9 MONTHS AND PRIOR INACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE FORCE TOTALING 3 MONTHS AND 5 DAYS. SINCE 1 JUNE 1942 THIS OFFICER HAS BEEN ENTITLED TO COUNT FOR ALL PAY PURPOSES THE SAID PRIOR INACTIVE ENLISTED SERVICE IN THE NATIONAL GUARD AND PRIOR INACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE FORCE. IS SUCH OFFICER ENTITLED ON AND AFTER 1 NOVEMBER 1945, UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942:

(1) TO RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS SERVICE, OR

(2) IS HE ENTITLED TO RETIRED PAY COMPUTED AS 72 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS SERVICE? THE 72 1/2 PERCENTUM RATE IS BASED ON SERVICE CREDITABLE FOR PAY PURPOSES IN COMPUTING ACTIVE DUTY PAY TO WHICH ENTITLED AT TIME OF RETIREMENT PLUS ACTIVE COMMISSIONED SERVICE PERFORMED SUBSEQUENT TO RETIREMENT.

THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 579, AS AMENDED, INSOFAR AS HERE PERTINENT, PROVIDES:

* * * THAT CAPTAINS, COMMANDERS, AND LIEUTENANT COMMANDERS WHO BECOME INELIGIBLE FOR PROMOTION ON ACCOUNT OF AGE SHALL BE RETIRED ON A PERCENTAGE OF PAY EQUAL TO TWO AND ONE-HALF PERCENTUM OF THEIR SHORE DUTY PAY FOR EACH YEAR OF SERVICE: PROVIDED FURTHER, THAT THE TOTAL RETIRED PAY SHALL NOT EXCEED SEVENTY-FIVE PERCENTUM OF THE SHORE-DUTY PAY THEY WERE ENTITLED TO RECEIVE WHILE ON THE ACTIVE LIST.

SECTION 8 OF THE ACT OF AUGUST 5, 1935, 49 STAT. 531, PROVIDES, IN PART:

* * * OFFICERS RETIRED PURSUANT TO THIS ACT SHALL RECEIVE PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH THEY WERE ENTITLED TO CREDIT IN COMPUTATION OF THEIR LONGEVITY PAY ON THE ACTIVE LIST NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY: PROVIDED, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS OF SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED.

THE QUESTION PRESENTED FOR DECISION IS UNDERSTOOD TO BE WHETHER, IN COMPUTING THE LENGTH OF SERVICE BY WHICH THE PERCENTAGE FACTOR OF 2 1/2 PERCENT IS TO BE MULTIPLIED TO DETERMINE THEIR RETIRED PAY UNDER EITHER OF THE ABOVE-CITED ACTS, OFFICERS RETIRED PRIOR TO JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, ARE ENTITLED TO CREDIT FOR SERVICE WHICH, ALTHOUGH IT COULD NOT BE CREDITED FOR PAY PURPOSES AT THE TIME OF THEIR RETIREMENT, MAY BE SO CREDITED UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942.

PARAGRAPHS 1 AND 2 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367 AND 368, PROVIDE:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICES, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN NOW ON THE RETIRED LIST OR DRAWING RETAINER PAY, OR PERSONNEL IN AN EQUIVALENT STATUS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. * * *

IN THE COMPUTATION OF THE RETIRED PAY OF OFFICERS HERETOFORE OR HEREAFTER RETIRED WITH PAY AT THE RATE OF 2 1/2, 3, OR 4 PERCENTUM OF THE ACTIVE DUTY PAY RECEIVED BY THEM AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE DUTY PAY, ACTIVE DUTY PERFORMED BY SUCH RETIRED OFFICERS SUBSEQUENT TO THE DATE OF THEIR RETIREMENT SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETIRED PAY. THE INCREASES SHALL BE AT THE RATE OF 2 1/2, 3, OR 4 PERCENTUM FOR EACH YEAR OF ACTIVE DUTY AND A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS: PROVIDED, THAT THE INCREASED RETIRED PAY OF SUCH RETIRED OFFICERS SHALL IN NO CASE EXCEED 75 PERCENTUM OF THE ACTIVE DUTY PAY AS AUTHORIZED BY EXISTING LAW.

THE ACTS OF AUGUST 29, 1916, AS AMENDED, AND AUGUST 5, 1935, SUPRA, FIX THE PERCENTAGE OF THE ACTIVE DUTY PAY THAT OFFICERS RETIRED THEREUNDER SHALL RECEIVE AT 2 1/2 PERCENT FOR EACH YEAR OF SERVICE. IN THE CASE OF AN OFFICER RETIRED PRIOR TO JUNE 1, 1942, THE NUMBER OF YEARS OF SERVICE TO BE MULTIPLIED BY THE 2 1/2 PERCENT FACTOR NECESSARILY IS THE NUMBER OF YEARS' SERVICE THE OFFICER WAS ENTITLED TO COUNT IN THE COMPUTATION OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT. WHILE THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AUTHORIZES RETIRED PAY TO BE COMPUTED ON THE BASIS OF PAY PROVIDED IN THAT ACT, IT IS SPECIFICALLY STIPULATED THAT SUCH COMPUTATION SHALL BE MADE "AS NOW AUTHORIZED BY LAW.' EXCEPT AS MAY BE OTHERWISE EXPRESSLY PROVIDED THEREIN, SUCH ACT DOES NOT PURPORT TO CHANGE OR AMEND THE VARIOUS RETIREMENT ACTS AND, ACCORDINGLY, THE OFFICERS REFERRED TO IN THE SPECIFIC QUESTIONS PRESENTED IN YOUR LETTER, BASED ON THE STATEMENTS OF SERVICE MADE THEREIN, WOULD BE ENTITLED TO RETIRED PAY COMPUTED AT 72 1/2 PERCENT OF THEIR ACTIVE DUTY PAY. SEE 8 COMP. GEN. 87, AND STEPHENSON V. UNITED STATES, 81 C.1CLS. 634. ..END :