B-71972, MAY 19, 1948, 27 COMP. GEN. 705

B-71972, MAY 19, 1948, 27 COMP. GEN. 705

PAY - RETIRED - ACTIVE DUTY SUBSEQUENT TO RETIREMENT EFFECT AN ARMY OFFICER WHO, AT THE TIME OF RETIREMENT UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, HAD COMPLETED THE 29 YEARS' SERVICE SPECIFICALLY FIXED THEREUNDER AS THE MAXIMUM SERVICE WHICH COULD BE CREDITED IN DETERMINING THE PERCENTAGE RATE FOR RETIRED PAY PURPOSES IS NOT ENTITLED, BECAUSE OF ACTIVE DUTY AFTER RETIREMENT, TO HAVE HIS PERCENTAGE RATE INCREASED TO THE MAXIMUM STIPULATED IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942--- THE PURPOSE OF SUCH MAXIMUM BEING TO PERMIT RETIRED OFFICERS TO ATTAIN THAT RATE BY ACTIVE DUTY AFTER RETIREMENT WHERE IT COULD HAVE BEEN ATTAINED BY ADDITIONAL SERVICE PRIOR TO RETIREMENT UNDER THE STATUTE AUTHORIZING THEIR RETIREMENT. 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 HAS NOW COMPLETED MORE THAN 30 YEARS' ACTIVE SERVICE IS ENTITLED, UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, TO HAVE HIS RETIRED PAY COMPUTED AT 72 1/2 PERCENT (THE MAXIMUM LIMIT WHICH COULD BE ATTAINED UNDER THE 1935 ACT) OF THE ACTIVE-DUTY PAY AS AN OFFICER WITH OVER 30 YEARS' SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, MAY 19, 1948:

THERE HAS BEEN RECEIVED BY ENDORSEMENT DATED DECEMBER 9, 1947, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, YOUR LETTER OF OCTOBER 31, 1947, WHEREIN YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF LIEUTENANT COLONEL WILLIAM E. R. COVELL, U.S. ARMY, RETIRED, IN THE AMOUNT OF $1,545.42 REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF 72 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH OVER 27 YEARS' SERVICE, AND RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH OVER 30 YEARS' SERVICE, DURING THE PERIOD FEBRUARY 1, 1946, TO OCTOBER 31, 1947.

IT APPEARS THAT THE OFFICER WAS APPOINTED A CADET AT THE UNITED STATES MILITARY ACADEMY ON JUNE 14, 1911, AND UPON GRADUATION HE WAS APPOINTED A SECOND LIEUTENANT JUNE 12, 1915, AND THAT HE SERVED CONTINUOUSLY IN THE ARMY IN VARIOUS COMMISSIONED RANKS UNTIL MAY 31, 1940, WHEN HE WAS PLACED UPON THE RETIRED LIST, UPON HIS OWN APPLICATION, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JUL 31, 1935, AFTER COMPLETING 28 YEARS, 11 MONTHS AND 17 DAYS' SERVICE. THE SAID SECTION 5, 49 STAT. 507, PROVIDED IN 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 AMOUNTING TO SIX MONTHS OR MORE TO BE COUNTED AS A COMPLETE YEAR * * *. SECTION 5 OF THE SAID ACT WAS AMENDED AND REENACTED AS SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, 10 U.S.C. 971B.

IT FURTHER APPEARS THAT COLONEL COVELL SERVED ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT DURING THE PERIOD JUNE 1, 1941, TO JANUARY 31, 1946, AND THAT HE NOW HAS COMPLETED IN EXCESS OF 30 YEARS' ACTIVE SERVICE.

THE CORRESPONDENCE ATTACHED TO THE VOUCHER INDICATES THAT THE OFFICER IS OF THE OPINION THAT HE IS ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED ON THE BASIS OF 30 YEARS' SERVICE, THAT IS, 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH 30 YEARS' SERVICE, UNDER THE PROVISIONS OF THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH READS IN 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 * * *.

DOUBT AS TO WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED ARISES BY REASON OF DECISION DATED DECEMBER 22, 1943, B-38343, TO YOU, WHEREIN THERE WAS CONSIDERED THE CORRECT RATE OF RETIRED PAY AUTHORIZED TO BE PAID COLONEL CHARLES S. BUCK, WHO WAS RETIRED IN 1939 PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE SAID ACT OF JULY 31, 1935, AFTER COMPLETING 21 YEARS' COMMISSIONED SERVICE IN THE NATIONAL GUARD ( FEDERAL) AND REGULAR ARMY, AND OVER 9 YEARS' COMMISSIONED SERVICE IN THE NATIONAL GUARD (NON- FEDERAL). IN THAT CASE, AS HERE, THE OFFICER CLAIMED THE DIFFERENCE BETWEEN RETIRED PAY OF 72 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A COLONEL WITH 27 YEARS' SERVICE AND RETIRED PAY OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A COLONEL WITH 30 YEARS' SERVICE. THAT CLAIM WAS ON THE BASIS THAT UNDER SECTION 1 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AMENDING SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, ALL OFFICERS ARE ENTITLED TO BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HOLD COMMISSIONS IN THE NATIONAL GUARD (NON- FEDERAL), RATHER THAN 75 PERCENTUM OF SUCH TIME AS THERETOFORE AUTHORIZED BY LAW AND, ON SUCH BASIS, IT WAS CONTENDED THAT HE HAD COMPLETED IN EXCESS OF 30 YEARS' CREDITABLE SERVICE FOR RETIRED PAY PURPOSES UNDER SECTION 5 OF THE ACT OF JULY 31, 1935. HOWEVER, IN SAID DECISION IN DECEMBER 22, 1943, IT WAS CONCLUDED THAT---

SECTION 15 OF THE ACT OF JUNE 16, 1942, PROVIDES THAT THE PAY OF RETIRED PERSONNEL SHALL BE COMPUTED "AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT.' SECTION 5 OF THE ACT OF JULY 31, 1935, SUPRA, UNDER WHICH COLONEL BUCK WAS RETIRED, IS BY ITS OWN TERMS APPLICABLE ONLY TO OFFICERS WITH NOT MORE THAN 29 YEARS' SERVICE. THE MAXIMUM RETIRED PAY CONTEMPLATED BY SAID SECTION IS 29 TIMES 2 1/2 PERCENTUM OF ACTIVE DUTY PAY COMPUTED ON 29 YEARS' SERVICE. THE OFFICER HAS ALREADY BEEN PAID ON THAT BASIS. ACCORDINGLY, THE ADDITIONAL SERVICE CREDIT AUTHORIZED BY THE ACT OF DECEMBER 2, 1942, IN OTHERWISE PROPER CASES DOES NOT AFFECT HIS RETIREMENT OR RETIRED PAY. * * *

THE SERVICE CONSIDERED IN THAT CASE WAS SERVICE PRIOR TO RETIREMENT WHICH WOULD HAVE PRECLUDED COLONEL BUCK'S RETIREMENT UNDER THE LIMITATIONS CONTAINED IN THE SAID 1935 ACT, IF SUCH SERVICE HAD BEEN CREDITABLE WHEN HE RETIRED IN 1939 WITH THE MAXIMUM SERVICE WHICH COULD BE CREDITED UNDER THE ACT. CF. 26 COMP. GEN. 473. IN THE PRESENT CASE, HOWEVER, THE SERVICE INVOLVED IS ACTIVE DUTY SUBSEQUENT TO RETIREMENT WHICH COULD NOT HAVE ENTERED INTO ACCOUNT AT THE TIME OF RETIREMENT AND WHICH THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, EXPRESSLY REQUIRES BE CREDITED IN COMPUTING "LONGEVITY PAY AND PAY PERIODS" TO INCREASE THE RETIRED PAY OF RETIRED OFFICERS. THAT IS, THE INCREASE IN THE PRESENT CASE IS AUTHORIZED FOR ACTIVE DUTY AFTER RETIREMENT, WHEREAS, IN COLONEL BUCK'S CASE, THERE WAS NO ACTIVE DUTY AFTER RETIREMENT AND HE WAS ALREADY CREDITED WITH THE MAXIMUM SERVICE WHICH THE 1935 ACT PERMITTED TO BE CREDITED AT THE TIME OF RETIREMENT.

IT APPEARS IN THE PRESENT CASE THAT THE OFFICER HAS PERFORMED SUFFICIENT ACTIVE DUTY SUBSEQUENT TO RETIREMENT, IN ADDITION TO THE SERVICE CREDITABLE AT THE TIME OF RETIREMENT, TO ENTITLE HIM TO CREDIT FOR OVER 30 YEARS' SERVICE IN THE COMPUTATION OF HIS LONGEVITY PAY AND PERIOD PAY UNDER THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. CF. 21 COMP. GEN. 301. THE PROPOSED COMPUTATION AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY, AS SO INCREASED FOR LONGEVITY AND PERIOD PAY, DEPENDS, HOWEVER, ON THE SECOND PARAGRAPH OF THE SAID SECTION 15, WHICH PROVIDES AS FOLLOWS:

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. * * *

WHEN COLONEL COVELL RETIRED IN 1940 HE HAD ALREADY COMPLETED THE MAXIMUM OF 29 YEARS' SERVICE WHICH THE ACT OF JULY 31, 1935, SUPRA, SPECIFICALLY FIXES AS A LIMIT IN DETERMINING THE PERCENTAGE RATE TO BE USED IN COMPUTING THE RETIRED PAY OF OFFICERS RETIRED UNDER THAT ACT. IT DOES NOT APPEAR THAT THE CONGRESS INTENDED THE WORDS "NOT TO EXCEED A TOTAL OF 75 PERCENTUM" IN THE SECOND PARAGRAPH OF SECTION 15 OF THE 1942 ACT TO EXPAND THE LIMITATION OF 29 YEARS (OR 72 1/2 PERCENTUM) SPECIFICALLY FIXED BY THE 1935 ACT FOR OFFICERS RETIRED UNDER THE PARTICULAR CONDITIONS SET FORTH THEREIN. THE APPARENT PURPOSE OF THE 75 PERCENT MAXIMUM REFERRED TO IN THE 1942 ACT IS TO PERMIT RETIRED OFFICERS TO ATTAIN THAT RATE BY ACTIVE DUTY AFTER RETIREMENT WHERE IT COULD HAVE BEEN ATTAINED BY ADDITIONAL SERVICE PRIOR TO RETIREMENT UNDER THE CONDITIONS OF THE STATUTE AUTHORIZING THEIR RETIREMENT AND NOT TO PERMIT AN INCREASE IN THE PERCENTAGE RATE ABOVE THE SPECIFIC MAXIMUM WHICH AN OFFICER COULD HAVE ATTAINED IN ANY EVENT UNDER HIS RETIREMENT STATUTE BY ADDITIONAL SERVICE PRIOR TO RETIREMENT. CF. 27 COMP. GEN. 322.

SINCE THE VOUCHER SUBMITTED IS COMPUTED AT THE 75 PERCENTUM RATE, PAYMENT THEREON IS NOT AUTHORIZED AND IT WILL BE RETAINED IN THIS OFFICE. CREDIT WILL BE ALLOWED, HOWEVER, ON THE BASIS OF THE FACTS SUBMITTED FOR PAYMENTS OTHERWISE CORRECT OF RETIRED PAY TO THE OFFICER COMPUTED AT 72 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH OVER 30 YEARS' SERVICE.