B-71972, NOVEMBER 3, 1950, 30 COMP. GEN. 175

B-71972, NOVEMBER 3, 1950, 30 COMP. GEN. 175

PAY - RETIRED - ACTIVE DUTY SUBSEQUENT TO RETIREMENT - EFFECT OF CAREER COMPENSATION ACT OF 1949 AN ARMY OFFICER RETIRED PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, WITH OVER 27 YEARS' SERVICE AND WHO WAS RECALLED TO ACTIVE DUTY SO THAT HE NOW HAS COMPLETED MORE THAN 30 YEARS' ACTIVE SERVICE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 IN AN AMOUNT EQUAL TO 75 PERCENT PF THE ACTIVE-DUTY PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING SATISFACTORILY HELD BY HIM AS DETERMINED BY THE SECRETARY CONCERNED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, NOVEMBER 3, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1950, TRANSMITTING A LETTER DATED FEBRUARY 21, 1950, FROM COLONEL B. J. TULLINGTON, FINANCE DEPARTMENT, UNITED STATES ARMY, TOGETHER WITH A VOUCHER, AND SUPPORTING PAPERS, STATED IN FAVOR OF MAJOR GENERAL WILLIAM E. R. COVELL, UNITED STATES ARMY, RETIRED, IN THE AMOUNT OF $119.35, REPRESENTING THE DIFFERENCE IN THE RETIRED PAY OF A MAJOR GENERAL COMPUTED AT THE RATE OF 72 1/2 PERCENTUM OF HIS ACTIVE-DUTY PAY AND SUCH RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE-DUTY PAY FOR THE PERIOD OCTOBER 1, 1949, TO FEBRUARY 28, 1950. DECISION IS REQUESTED AS TO WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED.

IT APPEARS THAT UNDER THE PROVISIONS OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, THE OFFICER WAS ADVANCED TO THE RANK OF MAJOR GENERAL ON THE RETIRED LIST BY PARAGRAPH 3, SPECIAL ORDERS 164, DEPARTMENT OF THE ARMY, 1948, IT HAVING BEEN DETERMINED BY THE SECRETARY OF THE ARMY THAT HE SATISFACTORILY HELD SUCH RANK. ALSO, IT APPEARS THAT HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 829, EFFECTIVE OCTOBER 1, 1949, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION ( OCTOBER 1, 1949) (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED 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 * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * 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 * * * PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH RETIRED PAY * * * EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER * * * OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY. ( ITALICS SUPPLIED.)

IT APPEARS THAT ON MAY 31, 1940, GENERAL COVELL, THEN A LIEUTENANT COLONEL, UPON HIS OWN APPLICATION, WAS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AFTER COMPLETING 28 YEARS, 11 MONTHS, AND 17 DAYS' SERVICE. THE SAID SECTION 5, AS THEN IN EFFECT, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO, ON THE EFFECTIVE DATE OF THIS ACT OR AT ANY TIME THEREAFTER, SHALL HAVE COMPLETED NOT LESS THAN FIFTEEN NOR MORE THAN TWENTY-NINE YEARS' SERVICE MAY UPON HIS OWN APPLICATION BE RETIRED, IN THE DISCRETION OF THE PRESIDENT WITH ANNUAL PAY EQUAL TO THE PRODUCT OF 2 1/2 PERCENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT, MULTIPLIED BY A NUMBER EQUAL TO THE YEARS OF HIS ACTIVE SERVICE NOT IN EXCESS OF TWENTY- NINE YEARS: PROVIDED, THAT THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE RIGHT TO RETIREMENT AND RETIREMENT PAY UNDER THIS SECTION SHALL INCLUDE ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE DUTY PAY PURPOSES ANY FRACTIONAL PART OF A YEAR AMOUNT TO SIX MONTHS OR MORE TO BE COMPUTED AS A COMPLETE YEAR * * *. (ITALICS SUPPLIED.)

UNDER SUCH PROVISIONS OF LAW GENERAL COVELL WAS ENTITLED TO RETIRED PAY AT THE RATE OF 72 1/2 PERCENTUM OF HIS ACTIVE-DUTY PAY. HOWEVER, SUBSEQUENT TO HIS RETIREMENT HE SERVED ON ACTIVE DUTY DURING THE PERIOD JUNE 1, 1941, TO JANUARY 31, 1946, GIVING HIM A TOTAL OF MORE THAN 30 YEARS' ACTIVE SERVICE.

BY VIRTUE OF SUCH SERVICE AFTER RETIREMENT GENERAL COVELL CLAIMED TO BE ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENTUM, INSTEAD OF 72 1/2 PERCENTUM OF HIS ACTIVE-DUTY PAY, IN VIEW OF THE PROVISIONS OF THE FIRST AND SECOND PARAGRAPHS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH READ, IN PERTINENT PART, AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, 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 * * *.

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. * * * AND, IN DECISION OF MAY 19, 1948, 27 COMP. GEN. 705, IT WAS HELD THAT WHILE GAL COVELL WAS ENTITLED TO CREDIT FOR ACTIVE SERVICE PERFORMED AFTER HIS RETIREMENT IN COMPUTING HIS LONGEVITY AND PERIOD PAY FOR THE PURPOSE OF DETERMINING HIS RETIRED PAY, HE WAS NOT ENTITLED TO CREDIT FOR SUCH SERVICE SO AS TO AUTHORIZE HIS RETIRED PAY TO BE COMPUTED AT THE RATE OF 75 PERCENTUM, INSTEAD OF 72 1/2 PERCENTUM, OF HIS ACTIVE- DUTY PAY. THAT DECISION WAS BASED PRIMARILY ON THE FACT THAT SECTION 5 OF THE 1935 ACT EXPRESSLY FIXED 29 YEARS' SERVICE AS THE MAXIMUM NUMBER OF YEARS' SERVICE TO BE USED IN COMPUTING THE RETIRED PAY OF OFFICERS RETIRED UNDER THAT ACT AND THERE WAS NOTHING IN THE SAID SECTION 15 OF THE 1942 ACT TO INDICATE THAT THE CONGRESS INTENDED TO EXPAND SUCH LIMITATION.

IN CONNECTION WITH SUCH DECISION IT WILL BE NOTED THAT SECTION 15 OF THE 1942 ACT CONTAINED NO FORMULA FOR COMPUTING RETIRED PAY AND SUCH RETIRED PAY CONTINUED TO BE COMPUTED AS OTHERWISE PRESCRIBED BY LAW. ON THE OTHER HAND, SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, WHICH IS NOW APPLICABLE TO GENERAL COVELL, EXPRESSLY PRESCRIBES TWO METHODS FOR COMPUTING RETIRED PAY, THE AMOUNT AUTHORIZED TO BE PAID BEING THE GREATER OF THE TWO. UNDER METHOD (A) THE PERSONNEL AFFECTED THEREBY ARE ENTITLED TO RECEIVE MONTHLY RETIRED PAY IN THE AMOUNT AUTHORIZED BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE ACT AND UNDER METHOD (B) THEY ARE ENTITLED TO MONTHLY RETIRED PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING SATISFACTORILY HELD BY SUCH PERSONNEL, AS DETERMINED BY THE SECRETARY CONCERNED, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO THEM. THE TWO METHODS NECESSARILY ARE MUTUALLY EXCLUSIVE AND, ACCORDINGLY, THE 1935 ACT WOULD NOT BE FOR CONSIDERATION IN COMPUTING GENERAL COVELL'S RETIRED PAY UNDER METHOD (B).

THE SAID SECTION 511 DEFINES ACTIVE SERVICE AS INCLUDING SERVICE WHILE ON ACTIVE DUTY WHICH CLEARLY INCLUDES ACTIVE SERVICE AFTER RETIREMENT AND, SINCE GENERAL COVELL HAS COMPLETED IN EXCESS OF 30 YEARS' ACTIVE SERVICE, COUNTING THE PERIODS HE SERVED ON ACTIVE DUTY BOTH BEFORE AND AFTER RETIREMENT, HE WOULD, UNDER THE SAID METHOD (B), BE ENTITLED TO RETIRED PAY IN AN AMOUNT EQUAL TO 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AS A MAJOR GENERAL. THE ADJUSTMENT NECESSARY TO ACCOMPLISH PAYMENT OF RETIRED PAY ON THAT BASIS, EFFECTIVE OCTOBER 1, 1949, IS COVERED BY THE PRESENT VOUCHER, AND SINCE SUCH RETIRED PAY EXCEEDS THAT COMPUTED UNDER METHOD (A), THE VOUCHER, TOGETHER WITH THE SUPPORTING PAPERS, IS RETURNED HEREWITH FOR TRANSMITTAL TO COLONEL TULLINGTON, PAYMENT THEREON BEING AUTHORIZED, IF IT IS OTHERWISE CORRECT.