B-136900, OCTOBER 6, 1958, 38 COMP. GEN. 268

B-136900, OCTOBER 6, 1958, 38 COMP. GEN. 268

MILITARY PERSONNEL - DISABILITY RETIRED PAY - GRADE AT TIME OF RETIREMENT - HIGHER GRADE WARRANT OFFICERS AND ENLISTED MEMBERS OF REGULAR COMPONENTS WHO HAVE HIGHER PERMANENT RESERVE GRADES AT THE TIME OF RETIREMENT OR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST MAY BE CONSIDERED WITHIN THE SCOPE OF THE DISABILITY RETIRED PAY COMPUTATION PROVISIONS IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND IN THE SUPERSEDING PROVISIONS IN 10 U.S.C. 1372, WHICH ARE APPLICABLE TO MEMBERS OF THE UNIFORMED SERVICES, AND, THEREFORE, DISABILITY RETIRED PAY IS FOR COMPUTATION ON THE BASIS OF THE PAY OF THE HIGHER PERMANENT RESERVE GRADE. RESERVE WARRANT OFFICERS AND ENLISTED MEMBERS ON ACTIVE DUTY FOR MORE THAN 30 DAYS WHO HOLD HIGHER GRADES IN THE RESERVES THAN THE GRADES IN WHICH SERVING AT TIME OF PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OR WHEN RETIRED ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHER RESERVE GRADES, PROVIDED THAT THEY HAVE VALID STATUSES IN THE GRADES IN WHICH SERVING AS WELL AS IN THE HIGHER PERMANENT GRADES. RESERVE WARRANT OFFICERS AND ENLISTED MEMBERS ON ACTIVE DUTY FOR MORE THAN 30 DAYS WHO HOLD HIGHER GRADES IN THE RESERVES THAN THE GRADES IN WHICH SERVING AT TIME OF PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OR WHEN RETIRED ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHER RESERVE GRADES, PROVIDED THAT THEY HAVE VALID STATUSES IN THE GRADES IN WHICH SERVING AS WELL AS IN THE HIGHER PERMANENT GRADES. A RESERVE OFFICER WHO RETIRED FOR PHYSICAL DISABILITY IN HIS ACTIVE DUTY GRADE PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- AND WHO IS RECEIVING RETIRED PAY COMPUTED UNDER SECTION 402 (D), OF THE ACT, BUT WHO HELD A HIGHER RESERVE GRADE AT THE TIME OF RETIREMENT, IS ENTITLED TO RETIRED PAY COMPUTED ON THE HIGHER RESERVE GRADE; HOWEVER, IF THE OFFICER ELECTED NOT TO COME WITHIN THE RETIRED PAY COMPUTATION PROVISIONS OF SECTION 402 (D), HE IS NOT ENTITLED TO THE BENEFITS OF SUCH SECTION BY REASON OF THE BROADER CONSTRUCTION OF THE SECTION TO PERMIT DISABILITY RETIRED PAY COMPUTATIONS ON THE BASIS OF THE HIGHER RESERVE GRADE. THE RETIRED PAY COMPUTATION PROVISION OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311, WHICH ARE CONDITIONED UPON EITHER THE LAWS IN EFFECT AT TIME OF RETIREMENT PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE ACT--- OR ON THE BASIS OF THE HIGHEST GRADE SATISFACTORILY HELD, WHICH MEANS A GRADE IN WHICH THERE IS ACTUAL SERVICE, ARE NOT APPLICABLE TO RESERVE OFFICERS WHO HELD HIGHER RESERVE GRADES BUT WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, FOR PHYSICAL DISABILITY IN THEIR ACTIVE DUTY GRADES. THE RIGHT OF A MEMBER OF A REGULAR COMPONENT WHO IS ENTITLED TO DISABILITY RETIRED PAY COMPUTED ON A HIGHER PERMANENT RESERVE GRADE DOES NOT OF ITSELF EFFECT A RETIREMENT IN THE OFFICE TO WHICH THE HIGHER GRADE NORMALLY APPERTAINS; THEREFORE, THE RETIRED PAY COMPUTATION PROVISIONS FOR RESERVES IN SECTION 412 (2) OF THE CAREER COMPENSATION ACT OR IN 10 U.S.C. 1333 ARE NOT FOR APPLICATION. THE SIMILARITY OF LANGUAGE IN THE DISABILITY RETIRED PAY PROVISIONS IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, WITH RESPECT TO COMPUTATIONS BASED ON RANK, GRADE OR RATING AT TIME OF RETIREMENT AND IN THE DISABILITY SEVERANCE PAY PROVISIONS IN SECTION 403 OF THE ACT--- SUPERSEDED BY 10 U.S.C. 1372 AND 10 U.S.C. 1212, RESPECTIVELY--- REQUIRES THE SAME CONSTRUCTION; THEREFORE, MEMBERS OF THE UNIFORMED SERVICES WHO HELD HIGHER PERMANENT RESERVE GRADES AT TIME OF DISABILITY RETIREMENT ARE ENTITLED TO DISABILITY SEVERANCE PAY COMPUTED ON THE BASIS OF THE HIGHER GRADE. THE RIGHT OF WARRANT OFFICERS AND ENLISTED MEMBERS OF REGULAR COMPONENTS TO RETIRED DISABILITY PAY COMPUTED ON HIGHER PERMANENT RESERVE GRADES DOES NOT CONFER UPON THEM THE RIGHTS OF THE HIGHER GRADE FOR OTHER THAN PAY COMPUTATION PURPOSES AND THEY RETAIN THEIR STATUS AS WARRANT OFFICERS OF THE REGULAR ARMY OR ENLISTED MEN OF THE REGULAR ARMY. MEMBERS OF THE UNIFORMED SERVICES WHO HAVE ELECTED NONDISABILITY RETIREMENTS BECAUSE OF HIGHER PAY BENEFITS DUE TO A HIGHER RESERVE GRADE MAY NOT REELECT TO BE RETIRED FOR DISABILITY IN THE SAME RESERVE GRADE AS A RESULT OF THE ENLARGED CONSTRUCTION OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO DISABILITY RETIRED PAY COMPUTED ON THE BASIS OF HIGHER PERMANENT RESERVE GRADE IS EQUALLY APPLICABLE TO MEMBERS WHO ARE PLACED ON THE PERMANENT DISABILITY RETIRED LIST AS WELL AS TO THOSE ON THE TEMPORARY DISABILITY RETIRED LIST.

TO THE SECRETARY OF DEFENSE, OCTOBER 6, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 22, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS SET OUT AND DISCUSSED IN COMMITTEE ACTION NO. 212, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE SEPARATELY QUOTED AND ANSWERED BELOW.

QUESTION 1

MAY THE PRINCIPLES ESTABLISHED BY THE COURT OF CLAIMS IN THE TRACY, BUDD, AND LOWELL CASES WITH RESPECT TO THE GRADE IN WHICH RETIRED BE FOLLOWED IN THE CIRCUMSTANCES SET FORTH BELOW:

A. A WARRANT OFFICER OR ENLISTED MEMBER OF THE REGULAR COMPONENT OF THE UNIFORMED SERVICES WHO IS SERVING ON ACTIVE DUTY AT THE TIME OF RETIREMENT IN A REGULAR COMPONENT GRADE, BUT WHO HOLDS A HIGHER GRADE IN THE RESERVE FORCES OF THE UNITED STATES.

B. A WARRANT OFFICER OR ENLISTED MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ON ACTIVE DUTY FOR MORE THAN 30 DAYS WHO HOLDS A HIGHER GRADE IN THE RESERVES THAN THE GRADE IN WHICH SERVING ON ACTIVE DUTY.

C. A RESERVE OFFICER RETIRED IN HIS ACTIVE DUTY GRADE FOR PHYSICAL DISABILITY PRIOR TO 1 OCTOBER 1949, WHO QUALIFIED FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF SECTION 411, CAREER COMPENSATION ACT OF 1949, AND IS RECEIVING RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 402 (D) AND WHO HELD A HIGHER GRADE IN THE RESERVES.

D. A RESERVE OFFICER RETIRED IN HIS ACTIVE DUTY GRADE FOR PHYSICAL DISABILITY PRIOR TO 1 OCTOBER 1949 WHO ELECTED TO CONTINUE TO RECEIVE RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO 1 OCTOBER 1949.

E. WOULD THE REPLY TO 1 C AND 1 D BE FOR APPLICATION WITH RESPECT TO COMPUTATIONS OF RETIRED PAY PURSUANT TO SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949?

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), PROVIDED IN PERTINENT PART FOR THE COMPUTATION OF THE DISABILITY RETIRED PAY OF A "MEMBER OF THE UNIFORMED SERVICES" ON THE "MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER.' SECTION 1372, TITLE 10, U.S.C. SUPERSEDING THE ABOVE SECTION 402 (D), PROVIDES IN PERTINENT PART THAT A "MEMBER OF AN ARMED FORCE" WHO IS RETIRED FOR PHYSICAL DISABILITY IS ENTITLED TO THE "GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.'

THE PRINCIPLE OF THE TRACY V. UNITED STATES (136 C.CLS. 211), LOWELL V. UNITED STATES C.CLS. NO. 361-56, DECIDED JANUARY 15, 1958), AND BUDD, CHARLES C. V. UNITED STATES, C.CLS. NO. 467-56, DECIDED JANUARY 15, 1958) CASES, INSOFAR AS THE GRADE IN WHICH AN INDIVIDUAL IS RETIRED IS CONCERNED, IS THAT UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, DISABILITY RETIRED PAY SHOULD BE COMPUTED ON THE PAY OF THE PERMANENT RESERVE GRADE HELD BY THE MEMBER AT THE TIME OF RETIREMENT, IF HIGHER THAN THE TEMPORARY GRADE IN THE ARMY OF THE UNITED STATES IN WHICH HE THEN WAS SERVING, EVEN THOUGH HE MAY NEVER HAVE PERFORMED ANY ACTIVE DUTY IN THE HIGHER PERMANENT GRADE. THE COURT STATED IN THE LOWELL CASE THAT THE SAME PRINCIPLE WOULD BE APPLICABLE UNDER 10 U.S.C. 1372, SUPRA. WE HAVE STATED THAT WE WILL FOLLOW THE PRINCIPLE OF THE TRACY, LOWELL, AND BUDD CASES IN MATTERS OF DISABILITY RETIRED PAY ARISING UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND UNDER 10 U.S.C. 1372. COMP. GEN. 585.

THE LANGUAGE OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND OF 10 U.S.C. 1372 IS BROAD ENOUGH TO INCLUDE WARRANT OFFICERS AND ENLISTED MEMBERS OF REGULAR COMPONENTS WITH HIGHER PERMANENT RESERVE GRADES. ACCORDINGLY, QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE.

SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272 (B/--- ENTITLEMENT TO DISABILITY RETIRED PAY--- PERTAINED TO "A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS.' SECTION 1201 OF TITLE 10, U.S.C. SUPERSEDING SECTION 402 (B), PERTAINS TO "A MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES ENTITLED TO BASIC PAY, OR ANY OTHER MEMBER OF THE ARMED FORCES ENTITLED TO BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO ACTIVE DUTY (OTHER THAN FOR TRAINING) FOR A PERIOD OF MORE THAN 30 DAYS.'

THE ABOVE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949 WERE THE AUTHORITY FOR THE GRANTING OF DISABILITY RETIRED PAY TO TRACY, LOWELL AND BUDD, WHO WERE SERVING WHEN RETIRED AS OFFICERS OF THE ARMY OF THE UNITED STATES WITH PERMANENT RESERVE COMMISSIONS IN HIGHER GRADES. WE CAN PERCEIVE NO MATERIAL DIFFERENCE BETWEEN ACTUAL SERVICE UNDER A COMMISSION IN THE ARMY OF THE UNITED STATES WITH THE RIGHT TO RETIRED PAY OF A HIGHER PERMANENT RESERVE GRADE, AND ACTUAL SERVICE AS A RESERVIST WITH THE RIGHT TO RETIRED PAY OF A HIGHER PERMANENT RESERVE GRADE. AND, AS STATED IN THE ANSWER TO QUESTION 1 (A), THE LANGUAGE OF SECTION 402 (D) AND 10 U.S.C. 1372 IS BROAD ENOUGH TO INCLUDE INDIVIDUALS ACTUALLY SERVING AS WARRANT OFFICERS OR ENLISTED MEN WHEN RETIRED.

ON THE ASSUMPTION THAT EACH OF THE MEMBERS THEREIN REFERRED TO HELD A VALID RESERVE STATUS IN THE GRADE IN WHICH SERVING WHEN RETIRED AS WELL AS A VALID STATUS IN A HIGHER PERMANENT GRADE, QUESTION 1 (B) IS ANSWERED IN THE AFFIRMATIVE.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281, PROVIDED IN PERTINENT PART THAT:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

A VALID ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 TO RECEIVE DISABILITY RETIRED PAY UNDER SECTION 402 (D) OF THAT ACT OPERATES TO ENTITLE THE MEMBER CONCERNED TO THE SAME RETIRED PAY ON AND AFTER OCTOBER 1, 1949, THAT HE WOULD HAVE RECEIVED IF HE ORIGINALLY HAD BECOME ENTITLED TO SUCH PAY ON THAT DATE. COMPARE 31 COMP. GEN. 39, 43. ACCORDINGLY, QUESTION 1 (C) IS ANSWERED IN THE AFFIRMATIVE IF HE HELD THE HIGHER PERMANENT GRADE AT THE TIME OF HIS RETIREMENT.

THE HOLDINGS AS TO GRADE IN THE TRACY, LOWELL, AND BUDD CASES WERE BASED UPON SPECIFIC PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. ONE WHO ELECTED NOT TO COME WITHIN THE SCOPE OF SUCH PROVISIONS CANNOT BENEFIT FROM THEM. ACCORDINGLY, QUESTION 1 (D) IS ANSWERED IN THE NEGATIVE.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 282, AS AMENDED, 37 U.S.C. 311, SUPP. V, 1952 USED., PROVIDES IN PERTINENT PART THAT:

ON AND AFTER 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 THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING OCTOBER 12, 1949, 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 OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON 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 * * *.

THE INTENDED SCOPE OF QUESTION 1 (E) IS NOT UNDERSTOOD. HOWEVER, IT MAY BE STATED THAT A COMPUTATION OF RETIRED PAY UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, WHETHER IN THE CASE OF AN OFFICER RETIRED FOR DISABILITY PRIOR TO OCTOBER 1, 1949, AND ELECTING SUCH COMPUTATION UNDER SECTION 411 OF THE ACT, OR IN THE CASE OF AN OFFICER RETIRED, NOT FOR DISABILITY, PRIOR TO OCTOBER 1, 1949, AND AUTOMATICALLY ENTITLED TO COME WITHIN THE OPERATION OF SECTION 511, MUST BE EITHER ON THE BASIS OF METHOD (A) OF THE LATTER SECTION--- PAY RECEIVED UNDER LAWS IN EFFECT PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949--- OR ON THE BASIS OF METHOD (B/--- COMPUTATION ON THE BASIC PAY OF THE HIGHEST GRADE "SATISFACTORILY HELD.' UNDER METHOD (A), THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS TO THE GRADE "HELD" AT TIME OF RETIREMENT COULD HAVE NO APPLICATION. COMPARE ANSWER TO QUESTION 1 (D). UNDER METHOD (B), IT HAS BEEN DECIDED THAT THE WORDS "SATISFACTORILY HELD" IN SECTION 511 PERTAIN ONLY TO A GRADE IN WHICH THERE HAS BEEN ACTUAL SERVICE. CAIRNES ET AL. V. UNITED STATES, 130 C.CLS. 776.

ACCORDINGLY, QUESTION 1 (E) IS ANSWERED BY SAYING THAT THE DOCTRINE OF THE TRACY, LOWELL, AND BUDD CASES IS NOT APPLICABLE TO COMPUTATIONS OF RETIRED PAY UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

QUESTION 2

IN THE EVENT OF AN AFFIRMATIVE REPLY TO QUESTION 1 A WOULD IT BE CONSIDERED THAT THESE INDIVIDUALS ARE RETIRED AS RESERVE PERSONNEL SO AS TO NECESSITATE THE COMPUTATION OF SERVICE AS PROVIDED IN SECTION 412 (2), CAREER COMPENSATION ACT OF 1949, OR IN 10 U.S.C. 1333, AS APPLICABLE?

SECTION 412 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 824, SUPERSEDED BY 10 U.S.C. 1208, DEFINED "ACTIVE SERVICE" FOR THE PURPOSES OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 AS "* * * (2) FOR MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES * * * THAT SERVICE WHICH IS EQUAL TO THE NUMBER OF YEARS WHICH WOULD BE USED BY SUCH MEMBERS * * * AS A MULTIPLIER IN THE COMPUTATION OF THEIR RETIRED PAY PURSUANT TO SECTION 303 OF THE ACT OF JUNE 29, 1948 ( CH. 708, 62 STAT. 1088) * * *.'

THE QUESTION PRESENTED IS WHETHER A MEMBER OF A REGULAR COMPONENT, RETIRED WITH THE RIGHT TO DISABILITY RETIRED PAY COMPUTED ON A HIGHER PERMANENT RESERVE GRADE HELD BY HIM, IS RETIRED AS A RESERVIST SO AS TO REQUIRE THAT HIS ACTIVE SERVICE, FOR THE PURPOSE OF COMPUTATION OF HIS RETIRED PAY, SHALL BE DETERMINED UNDER A PROVISION RELATING TO RESERVE MEMBERS.

WE HELD IN 37 COMP. GEN. 489, CITING 36 COMP. GEN. 8, THAT A CHIEF WARRANT OFFICER OF THE REGULAR AIR FORCE, WHO WAS RETIRED FOR PHYSICAL DISABILITY WITH ENTITLEMENT TO RETIRED PAY COMPUTED ON THE ACTIVE-DUTY PAY OF HIS HIGHER PERMANENT GRADE OF COLONEL, AIR FORCE RESERVE, AND WITH THE RANK OF COLONEL ON THE RETIRED LIST, WAS NOT RETIRED AS A COLONEL, BUT AS A WARRANT OFFICER, IT BEING SAID AT PAGE 490, THAT:

HOWEVER, HE WAS IN FACT THEN (DATE OF RETIREMENT) SERVING ON ACTIVE DUTY AS A CHIEF WARRANT OFFICER (W-3) IN THE REGULAR AIR FORCE. CONSEQUENTLY, HE WAS NOT IN RECEIPT OF BASIC ACTIVE DUTY PAY AS A MEMBER OF A RESERVE COMPONENT AND, HENCE, HE WAS NOT ENTITLED TO BE RETIRED AS A MEMBER OF A RESERVE COMPONENT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949.

THE REASONING EMPLOYED IN THE ABOVE DECISION IS EQUALLY FOR APPLICATION HERE, THAT IS, THAT THE RIGHT OF A MEMBER OF A REGULAR COMPONENT TO THE RETIRED PAY OF A HIGHER RESERVE GRADE DOES NOT, OF ITSELF, EFFECT A RETIREMENT IN THE OFFICE WHICH THE HIGHER RESERVE GRADE NORMALLY APPERTAINS. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3

SHOULD THE RULE ESTABLISHED BY THE TRACY, BUDD AND LOWELL CASES, AS IT PERTAINS TO THE GRADE IN WHICH RETIRED, BE EXTENDED TO PAYMENTS OF SEVERANCE PAY?

AS STATED IN CONNECTION WITH THE FIRST QUESTION, THE TRACY, LOWELL, AND BUDD CASES INVOLVED THE MATTER OF DISABILITY RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, PROVIDING FOR SUCH COMPUTATIONS ON THE PAY OF THE "RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT.' THE MATTER OF DISABILITY SEVERANCE PAY WAS COVERED BY SECTION 403 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, 37 U.S.C. 273, WHICH PROVIDED FOR THE COMPUTATION OF SUCH PAY ON THE PAY OF THE "RANK, GRADE, OR RATING HELD BY SUCH MEMBER AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS SEPARATION, WHICHEVER IS EARLIER.' IN THESE TWO SECTIONS OF THE SAME STATUTE, WE THINK THAT THE WORDS,"RANK, GRADE, OR RATING HELD BY HIM" AND "RANK, GRADE, OR RATING HELD BY SUCH MEMBER" SHOULD BE CONSTRUED TO HAVE THE SAME MEANING. PROVISIONS AS TO DISABILITY SEVERANCE PAY CURRENTLY ARE CARRIED IN 10 U.S.C. 1212, WHICH PROVIDES FOR THE COMPUTATION OF SUCH PAY ON THE PAY OF THE "GRADE AND RANK IN WHICH HE WAS SERVING ON THE DATE WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS SEPARATED.' COMPARE 10 U.S.C. 1372, SUPRA, ENTITLEMENT TO DISABILITY RETIRED PAY COMPUTED ON THE PAY OF THE "GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.'

HERE, TOO, THE SAME INTERPRETATION OF THE MEANING AND SCOPE OF THE QUOTED WORDS IN THE DIFFERENT SECTIONS IS REQUIRED. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4

WOULD AN AFFIRMATIVE REPLY TO QUESTION 1 (A) MODIFY THE PREVIOUS RULINGS OF THE COMPTROLLER GENERAL OF THE UNITED STATES SET FORTH IN 36 COMP. GEN. 8 AND B-134102 DATED 10 DECEMBER 1957?

IN 36 COMP. GEN. 8, REFERRED TO IN THE ANSWER TO QUESTION 2 ABOVE, WE HELD, QUOTING THE SYLLABUS, THAT:

AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY AND DETERMINED TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER RANK OR GRADE, PURSUANT TO SECTION 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, DOES NOT HAVE HIS ENLISTED STATUS TERMINATED AND IS NOT TO BE CONSIDERED AS AN OFFICER AT THE TIME OF RETIREMENT FOR THE COMPUTATION OF RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115.

IN B-134102, DECEMBER 10, 1957, WE HELD THAT AN ENLISTED MAN OF THE REGULAR ARMY, ADVANCED SUBSEQUENT TO HIS RETIREMENT TO A RESERVE COMMISSIONED GRADE WITH ENTITLEMENT TO THE RETIRED PAY OF THAT GRADE, WAS STILL A RETIRED MEMBER OF THE REGULAR ARMY AND THUS NOT WITHIN THE SCOPE OF A PROVISION EXEMPTING THE RETIRED PAY OF RESERVISTS FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A.

AS POINTED OUT IN THE ANSWER TO QUESTION 2, THE MERE FACT THAT A WARRANT OFFICER OR AN ENLISTED MAN OF THE REGULAR ARMY MAY BE ENTITLED UNDER THE TRACY, LOWELL, AND BUDD CASES TO THE RETIRED PAY OF A HIGHER GRADE DOES NOT CONFER UPON HIM THE OFFICE USUALLY REFLECTED IN SUCH HIGHER GRADE. REMAINS A WARRANT OFFICER OF THE REGULAR ARMY OR AN ENLISTED MAN OF THE REGULAR ARMY, AS THE CASE MAY BE. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE NEGATIVE.

QUESTION 5

MAY INDIVIDUALS WHO HAVE ELECTED NON-DISABILITY RETIREMENTS BECAUSE OF HIGHER PAY BENEFITS DUE TO A HIGHER RESERVE GRADE NOW REELECT TO BE RETIRED FOR DISABILITY IN THE SAME RESERVE GRADE; AND, WOULD THE EFFECTIVE DATE OF SUCH CHANGE IN STATUS BE RETROACTIVE TO THE DATE OF RETIREMENT?

IT IS STATED IN COMMITTEE ACTION NO. 212 THAT UNDER PRESENT POLICIES, IF COMMISSIONED OR WARRANT OFFICERS QUALIFY FOR BOTH VOLUNTARY RETIREMENT AND RETIREMENT FOR PHYSICAL DISABILITY, SUCH OFFICERS MAY ELECT THE TYPE OF RETIREMENT DESIRED. THE QUESTION HERE PRESENTED, HOWEVER, DOES NOT INVOLVE A CHOICE AT THE TIME OF RETIREMENT BETWEEN TWO RETIREMENT LAWS, BUT INVOLVES THE QUESTION OF THE RIGHT TO CHANGE FROM RETIREMENT UNDER ONE LAW TO RETIREMENT UNDER ANOTHER LAW, PRESUMABLY BECAUSE SUCH CHANGE WOULD BE FINANCIALLY ADVANTAGEOUS TO THE INDIVIDUAL CONCERNED.

GENERALLY SPEAKING, A NONDISABILITY RETIREMENT OF A MEMBER OF ONE OF THE ARMED SERVICES MAY NOT THEREAFTER BE RESCINDED SO AS TO PERMIT THE MEMBER TO BE RETIRED FOR DISABILITY. SEE 37 COMP. GEN. 19 AND CASES THEREIN CITED. THE FACT THAT A COURT DECISION SUBSEQUENT TO THE NONDISABILITY RETIREMENT WOULD MAKE IT APPEAR THAT A RETIREMENT FOR DISABILITY WOULD HAVE RESULTED IN A FINANCIAL GAIN TO THE INDIVIDUAL CONCERNED WOULD NOT BE MATERIAL. COMPARE HUMPHREY V. UNITED STATES, 136 C.CLS. 660, TO THE EFFECT THAT MERE "HINDSIGHT" CANNOT OPERATE TO REVOKE AN EFFECTIVE CHOICE BETWEEN ALTERNATIVE RETAINER PAY BENEFITS.

IN THE ABSENCE OF ANY INFORMATION SHOWING THAT THE INDIVIDUALS REFERRED TO IN QUESTION 5 WOULD COME WITHIN SOME EXCEPTION TO THE ABOVE GENERAL RULE, THAT QUESTION 5 WOULD COME WITHIN SOME EXCEPTION TO THE ABOVE GENERAL RULE, THAT QUESTION MUST BE ANSWERED IN THE NEGATIVE.

QUESTION 6

DOES THE PRINCIPLE ESTABLISHED IN THE TRACY CASE APPLY EQUALLY TO MEMBERS PLACED ON THE PERMANENT DISABILITY RETIRED LIST AND THOSE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST?

SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, MAKES NO DISTINCTION MATERIAL HERE BETWEEN INDIVIDUALS WHOSE NAMES ARE PLACED ON THE "RETIRED LIST" AND THOSE WHOSE NAMES ARE PLACED ON THE "TEMPORARY DISABILITY RETIRED LIST.' 31 COMP. GEN. 213, 214. NOR DOES 10 U.S.C. 1372, SUPRA, MAKE ANY SUCH DISTINCTION. ACCORDINGLY, QUESTION 6 IS ANSWERED IN THE AFFIRMATIVE.