B-164762, OCTOBER 17, 1968, 48 COMP. GEN. 204

B-164762, OCTOBER 17, 1968, 48 COMP. GEN. 204

PAY - RETIRED - INCREASES - COST-OF-LIVING INCREASES - ACTIVE DUTY RECALL THE RETIRED PAY STATUS OF AN ARMY SERGEANT DISABLED DURING A PERIOD OF SERVICE WHICH COMMENCED MAY 25, 1966, SUBSEQUENT TO RETIREMENT ON JULY 1, 1962 UNDER 10 U.S.C. 3914 FOR LENGTH OF SERVICE, WHO UPON REVERSION TO INACTIVE STATUS ON THE RETIRED LIST EFFECTIVE MARCH 15, 1968, ELECTED RETIRED PAY PURSUANT TO 10 U.S.C. 1402 (D), BASED ON 60 PERCENT DISABILITY COMPUTED AT RATES PRESCRIBED IN 37 U.S.C. 203 (A), AS AMENDED BY PUBLIC LAW 90-207 (10 U.S.C. 1401A) TO PROVIDE A COST-OF LIVING INCREASE EFFECTIVE OCTOBER 1, 1967, COMES WITHIN THE PURVIEW OF 10 U.S.C. 1401A (C) ENTITLING THE MEMBER TO AN INCREASE IN RETIRED PAY TO REFLECT THE INCREASE OF 3.9 PERCENT IN THE CONSUMER PRICE INDEX EFFECTIVE APRIL 1, 1968, ADJUSTED PURSUANT TO SUBSECTION (C) TO THE NEAREST ONE-TENTH OF 1 PERCENT OF THE INCREASE IN THE CONSUMER PRICE INDEX FOR JANUARY 1968 THAT EXCEEDED THE SEPTEMBER 1967 INDEX, OR A 1.3 PERCENT INCREASE. PAY - RETIRED - INCREASES - COST-OF-LIVING INCREASES - COMPUTATION UNDER 10 U.S.C. 1401A, AS AMENDED BY PUBLIC LAW 90-207 TO PROVIDE A COST- OF-LIVING INCREASE EFFECTIVE OCTOBER 1, 1967, TO BE COMPUTED AT THE DIFFERENT PERCENTAGES PRESCRIBED. 10 U.S.C. 1401A (E) APPLIES ONLY WHEN THE RETIREMENT OF A MEMBER OF THE UNIFORMED SERVICES BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967. THEREFORE, A MEMBER RETIRED ON JULY 1, 1962 AND RE-RETIRED ON MARCH 15, 1968 DOES NOT COME WITHIN THE PURVIEW OF SUBSECTION (E). FOR MEMBERS WHOSE RETIRED PAY STATUS COMES WITHIN THE PURVIEW OF SUBSECTIONS (B) AND (C), SUBSECTION (C) CONTAINING THE PHRASE ,NOTWITHSTANDING SUBSECTION (B)" APPLIES. IF THE ADJUSTED RETIRED PAY OF MEMBERS RETIRED ON OR AFTER OCTOBER 1, 1967 IS GREATER WHEN COMPUTED UNDER SUBSECTION (E) RATHER THAN UNDER SUBSECTIONS (C) OR (D), THE MEMBERS ARE ENTITLED TO THE GREATER AMOUNT OF RETIRED PAY.

TO CAPTAIN A. E. VELEZ, DEPARTMENT OF THE ARMY, OCTOBER 17, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1968, AND ENCLOSURES, REQUESTING A DECISION WHETHER PAYMENT OF ADDITIONAL RETIRED PAY IS PROPER IN THE CASE OF SERGEANT FIRST CLASS WILLIAM C. BURRELL, RA 7 083 770, UNITED STATES ARMY, RETIRED, FOR THE MONTHS OF APRIL AND MAY 1968. YOUR REQUEST WAS FORWARDED HERE ON JULY 1, 1968, UNDER D.O. NUMBER A1009 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT WILLIAM C. BURRELL WAS PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 3914 (LENGTH OF SERVICE) IN THE GRADE OF SERGEANT FIRST CLASS (E-6). IT IS STATED THAT HE WAS CREDITED WITH 20 YEARS, 2 MONTHS AND 3 DAYS OF ACTIVE SERVICE FOR BASIC PAY PURPOSES. HE WAS RECALLED TO ACTIVE DUTY IN THE GRADE OF SERGEANT FIRST CLASS (E-7) ON MAY 25, 1966, AND HE SERVED ON ACTIVE DUTY IN THAT GRADE THROUGH MARCH 14, 1968, REVERTING TO INACTIVE STATUS ON THE RETIRED LIST ON MARCH 15, 1968. WHILE SERVING ON ACTIVE DUTY DURING THE PERIOD MAY 25, 1966, THROUGH MARCH 14, 1968, HE INCURRED A DISABILITY RATED AT 60 PERCENT.

AS A MEMBER OF AN ARMED FORCE WHO HAD BEEN RETIRED OTHER THAN FOR PHYSICAL DISABILITY AND WHO, WHILE SERVING ON ACTIVE DUTY AFTER SUCH RETIREMENT, INCURRED A PHYSICAL DISABILITY OF AT LEAST 30 PERCENT FOR WHICH HE WOULD OTHERWISE BE ELIGIBLE FOR DISABILITY RETIRED PAY UNDER CHAPTER 61 OF TITLE 10, U.S. CODE, SERGEANT BURRELL WAS ENTITLED UNDER SECTION 1402 (B), TITLE 10, U.S. CODE, UPON HIS RELEASE FROM ACTIVE DUTY MARCH 14, 1968, TO RECOMPUTE HIS RETIRED PAY AS PRESCRIBED IN SECTION 1402 (D), TITLE 10, U.S.C.

SECTION 2 (A) (2) (A) OF PUBLIC LAW 90-207, DECEMBER 16, 1967, 81 STAT. 653, AMENDED SUBSECTION (D) OF SECTION 1402, TITLE 10, U.S. CODE, TO READ IN PART AS FOLLOWS:

(D) A MEMBER OF AN ARMED FORCE COVERED BY SUBSECTION (B) OR (C) MAY ELECT TO RECEIVE EITHER (1) THE RETIRED PAY TO WHICH HE BECAME ENTITLED WHEN HE RETIRED INCREASED BY ANY APPLICABLE ADJUSTMENTS IN THAT PAY UNDER SECTION 1401A OF THIS TITLE AFTER HE INITIALLY BECAME ENTITLED TO THAT PAY, OR (2) RETIRED PAY COMPUTED AS FOLLOWS:

* * * * * * * "IF, WHILE ON ACTIVE DUTY AFTER RETIREMENT OR AFTER HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, A MEMBER COVERED BY THIS SUBSECTION WAS PROMOTED TO A HIGHER GRADE IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY CONCERNED, HE IS ENTITLED TO RETIRED PAY BASED ON THE MONTHLY BASIC PAY TO WHICH HE WOULD BE ENTITLED IF HE WERE ON ACTIVE DUTY IN THAT HIGHER GRADE.

IT IS STATED THAT SERGEANT BURRELL "ELECTED RETIRED PAY BASED ON 60 PERCENT FOR DISABILITY.' PURSUANT TO HIS ELECTION TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1402 (D) HIS RETIRED PAY WAS RECOMPUTED EFFECTIVE FROM MARCH 15, 1968, IN ACCORDANCE WITH THE FORMULA THEREIN SET FORTH WHICH PROVIDES THAT THE HIGHEST MONTHLY BASIC PAY THAT THE MEMBER RECEIVED WHILE ON ACTIVE DUTY AFTER RETIREMENT SHALL BE MULTIPLIED AS THE MEMBER ELECTS (1) BY 2-1/2 PERCENT FOR EACH OF THE YEARS OF SERVICE CREDITABLE UNDER 10 U.S.C. 1208 OR (2) BY THE HIGHEST PERCENTAGE OF DISABILITY ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT.

COMPUTED ON THE BASIS INDICATED ABOVE SERGEANT BURRELL BECAME ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE MARCH 15, 1968, AT THE RATE OF $297.72 PER MONTH (60 PERCENT OF $496.20). THE BASIC ISSUE RAISED IN YOUR SUBMISSION IS WHETHER HIS RETIRED PAY OF $297.72 PER MONTH PROPERLY MAY BE INCREASED BY 3.9 PERCENT TO $309.33 PER MONTH EFFECTIVE APRIL 1, 1968, REPRESENTING THE PERCENTAGE INCREASE IN THE CONSUMER PRICE INDEX DETERMINED AS PROVIDED IN 10 U.S.C. 1401A.

SECTION 1401A OF TITLE 10, U.S. CODE, WAS AMENDED BY SECTION 2 (A) (1) OF THE ACT OF DECEMBER 16, 1967, PUBLIC LAW 90-207 (MADE EFFECTIVE OCTOBER 1, 1967, BY SECTION 7 OF THAT ACT, 37 U.S.C. 203 NOTE), TO PROVIDE AS FOLLOWS:

(A) UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW, THE RETIRED PAY OR RETAINER PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE MAY NOT BE RECOMPUTED TO REFLECT ANY INCREASE IN THE RATES OF BASIC PAY FOR MEMBERS OF THE ARMED FORCES. IN THIS SECTION "INDEX" MEANS THE CONSUMER PRICE INDEX (ALL ITEMS, UNITED STATES CITY AVERAGE) PUBLISHED BY THE BUREAU OF LABOR STATISTICS.

(B) THE SECRETARY OF DEFENSE SHALL DETERMINE MONTHLY THE PERCENT BY WHICH THE INDEX HAS INCREASED OVER THAT USED AS THE BASIS (BASE INDEX) FOR THE MOST RECENT ADJUSTMENT OF RETIRED PAY AND RETAINER PAY UNDER THIS SUBSECTION. IF THE SECRETARY DETERMINES THAT, FOR THREE CONSECUTIVE MONTHS, THE AMOUNT OF THE INCREASE IS AT LEAST 3 PERCENT OVER THE BASE INDEX, THE RETIRED PAY AND RETAINER PAY OF MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES WHO BECAME ENTITLED TO THAT PAY BEFORE THE FIRST DAY OF THE THIRD CALENDAR MONTH BEGINNING AFTER THE END OF THOSE THREE MONTHS SHALL, EXCEPT AS PROVIDED IN SUBSECTION (C), BE INCREASED, EFFECTIVE ON THAT DAY, BY THE HIGHEST PERCENT OF INCREASE IN THE INDEX DURING THOSE MONTHS, ADJUSTED TO THE NEAREST ONE TENTH OF 1 PERCENT.

(C) NOTWITHSTANDING SUBSECTION (B), IF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE BECOMES ENTITLED TO RETIRED PAY OR RETAINER PAY BASED ON RATES OF MONTHLY BASIC PAY PRESCRIBED BY SECTION 203 OF TITLE 37 THAT BECAME EFFECTIVE AFTER THE LAST DAY OF THE MONTH OF THE BASE INDEX, HIS RETIRED PAY OR RETAINER PAY SHALL BE INCREASED ON THE EFFECTIVE DATE OF THE NEXT ADJUSTMENT OF RETIRED PAY AND RETAINER PAY UNDER SUBSECTION (B) ONLY BY THE PERCENT (ADJUSTED TO THE NEAREST ONE TENTH OF 1 PERCENT) THAT THE NEW BASE INDEX EXCEEDS THE INDEX FOR THE CALENDAR MONTH IMMEDIATELY BEFORE THAT IN WHICH THE RATES OF MONTHLY BASIC PAY ON WHICH HIS RETIRED PAY OR RETAINER PAY IS BASED BECAME EFFECTIVE.

(D) IF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE BECOMES ENTITLED TO RETIRED PAY OR RETAINER PAY ON OR AFTER THE EFFECTIVE DATE OF AN ADJUSTMENT OF RETIRED PAY AND RETAINER PAY UNDER SUBSECTION (B) BUT BEFORE THE EFFECTIVE DATE OF THE NEXT INCREASE IN THE RATES OF MONTHLY BASIC PAY PRESCRIBED BY SECTION 203 OF TITLE 37, HIS RETIRED PAY OR RETAINER PAY SHALL BE INCREASED, EFFECTIVE ON THE DATE HE BECOMES ENTITLED TO THAT PAY, BY THE PERCENT (ADJUSTED TO THE NEAREST ONE TENTH OF 1 PERCENT) THAT THE BASE INDEX EXCEEDS THE INDEX FOR THE CALENDAR MONTH IMMEDIATELY BEFORE THAT IN WHICH THE RATES OF MONTHLY BASIC PAY ON WHICH HIS RETIRED PAY OR RETAINER PAY IS BASED BECAME EFFECTIVE.

(E) NOTWITHSTANDING SUBSECTIONS (C) AND (D), THE ADJUSTED RETIRED PAY OR RETAINER PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE RETIRED ON OR AFTER OCTOBER 1, 1967, MAY NOT BE LESS THAN IT WOULD HAVE BEEN HAD HE BECOME ENTITLED TO RETIRED PAY OR RETAINER PAY BASED ON THE SAME PAY GRADE, YEARS OF SERVICE FOR PAY, YEARS OF SERVICE FOR RETIRED OR RETAINER PAY PURPOSES, AND PERCENT OF DISABILITY, IF ANY, ON THE DAY BEFORE THE EFFECTIVE DATE OF THE RATES OF MONTHLY BASIC PAY ON WHICH HIS RETIRED PAY OR RETAINER PAY IS BASED.

SECTION 2 (B) OF PUBLIC LAW 90-207, 10 U.S.C. 1401A NOTE, PROVIDES:

(B) NOTWITHSTANDING SECTION 1401A (D) OF TITLE 10, U.S.C. A PERSON WHO IS A MEMBER OR FORMER MEMBER OF AN ARMED FORCE ON THE DATE OF ENACTMENT OF THIS ACT AND WHO INITIALLY BECAME, OR HEREAFTER INITIALLY BECOMES, ENTITLED TO RETIRED PAY OR RETAINER PAY AFTER NOVEMBER 30, 1966, BUT BEFORE THE EFFECTIVE DATE OF THE NEXT INCREASE AFTER JULY 1, 1966, IN THE RATES OF MONTHLY BASIC PAY PRESCRIBED BY SECTION 203 OF TITLE 37, U.S.C. IS ENTITLED TO HAVE HIS RETIRED PAY OR RETAINER PAY INCREASED BY 3.7 PERCENT EFFECTIVE AS OF THE DATE OF HIS ENTITLEMENT TO THAT PAY.

SINCE SERGEANT BURRELL'S RETIREMENT ON JULY 1, 1962, SEVERAL INCREASES IN THE MONTHLY BASIC RATES OF MILITARY ACTIVE DUTY PAY HAVE BECOME EFFECTIVE, INCLUDING THOSE OF OCTOBER 1, 1967 (SECTION 1 (1) OF PUBLIC LAW 90-207, 81 STAT. 649); AND JULY 1, 1968 (UNDER AUTHORITY OF SECTION 8 OF PUBLIC LAW 90-207, 81 STAT. 654). A COST OF LIVING 3.7 PERCENT CONSUMER PRICE INDEX INCREASE IN MILITARY RETIRED PAY BECAME EFFECTIVE ON DECEMBER 1, 1966, AND A FURTHER CONSUMER PRICE INDEX INCREASE OF 3.9 PERCENT IN SUCH MILITARY RETIRED PAY BECAME EFFECTIVE ON APRIL 1, 1968.

THE PROVISIONS OF 10 U.S.C. 1401A CURRENTLY IN EFFECT (AS AMENDED EFFECTIVE OCTOBER 1, 1967, BY PUBLIC LAW 90-207) REQUIRE THAT RETIRED PAY AND RETAINER PAY BE ADJUSTED WHEN THE CONSUMER PRICE INDEX HAS SHOWN FOR THREE CONSECUTIVE MONTHS AN INCREASE OF AT LEAST 3 PERCENT OVER THE BASE INDEX (THAT USED AS THE BASIS FOR THE MOST RECENT ADJUSTMENT). TO ASSURE EQUITY IN THE FUTURE, SUBSECTION (C) OF SECTION 1401A OF TITLE 10, U.S.C. (AS AMENDED BY PUBLIC LAW 90-207) PROVIDES THAT MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES WHO BECOME ENTITLED TO RETIRED PAY OR RETAINER PAY BASED ON RATES OF ACTIVE DUTY PAY PRESCRIBED IN 37 U.S.C. 203 (A) THAT BECAME EFFECTIVE AFTER THE LAST DAY OF THE MONTH OF THE BASE INDEX SHALL, WHEN THE NEXT CONSUMER PRICE INDEX ADJUSTMENT IN RETIRED PAY IS MADE, RECEIVE ONLY THAT PART OF THE CONSUMER PRICE INDEX PERCENTAGE INCREASE WHICH HAS OCCURRED SINCE THE MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE BASIC ACTIVE DUTY PAY RATES ON WHICH HIS RETIRED OR RETAINER PAY IS BASED BECAME EFFECTIVE.

THIS IS ILLUSTRATED AS FOLLOWS, AT PAGES 11 AND 12, H.REPT. NO. 787, OCTOBER 17, 1967, TO ACCOMPANY H.R. 13510, 90TH CONG., NOW PUBLIC LAW 90- 207:

ASSUME A BASIC PAY INCREASE ON OCTOBER 1, 1967. MEN RETIRING IMMEDIATELY THEREAFTER WILL RECEIVE AN ANNUITY BASED ON THIS BASE PAYTABLE. (SECTION 6, PUBLIC LAW 90-207.)

ASSUME THAT THE CPI INCREASE 3 PERCENT OVER THE CURRENT BASE ATTAINED IN SEPTEMBER 1966 BY MAY 31, 1968 (HAVING REMAINED AT THE NEW HIGHER LEVEL FOR 3 CONSECUTIVE MONTHS).

MEN WHO HAD RETIRED PRIOR TO OCTOBER 1 (1967) WOULD RECEIVE THE FULL 3- PERCENT CPI ADJUSTMENT. HOWEVER, THOSE WHO HAD RETIRED AFTER OCTOBER 1 (1967) WOULD RECEIVE ONLY THE AMOUNT BY WHICH THE CPI HAD INCREASED BETWEEN THE (EFFECTIVE DATE OF THE) BASIC PAY INCREASE AND MAY 31, 1968. (10 U.S.C. 1401A (C) AS AMENDED BY PUBLIC LAW 90-207.) IN OTHER WORDS, THEY WOULD GET ONLY THAT PART OF THE CPI INCREASE WHICH HAS OCCURRED SINCE THEIR LAST ACTIVE DUTY BASIC PAY CHANGE.

ALSO, IT WAS STATED:

THIS WILL TIE THE ANNUITIES OF ALL RETIRED PERSONNEL TO THE SAME BASE DATE FOR ALL FUTURE CPI ADJUSTMENTS, AND THUS ASSURE EQUITABLE TREATMENT OF ALL RETIREES WITH RESPECT TO CPI MOVEMENTS, REGARDLESS OF WHEN THEY RETIRE.

AS INDICATED ABOVE, UPON HIS REVERSION TO INACTIVE STATUS ON THE RETIRED LIST EFFECTIVE MARCH 15, 1968, SERGEANT BURRELL BECAME ENTITLED TO RECOMPUTE HIS RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1402 (D) ON THE BASIS OF THE RATES OF MONTHLY ACTIVE DUTY BASIC PAY PRESCRIBED IN 37 U.S.C. 203 (A), AS AMENDED EFFECTIVE OCTOBER 1, 1967, BY SECTION 1 (1) OF PUBLIC LAW 90-207. IN SUCH CIRCUMSTANCES HIS RETIRED PAY STATUS REASONABLY MAY BE VIEWED AS COMING WITHIN THE PURVIEW OF SUBSECTION (C) OF 10 U.S.C. 1401A. CF. 48 COMP. GEN. 15, JULY 16, 1968. CONSEQUENTLY, HIS RETIRED PAY PROPERLY MAY BE INCREASED EFFECTIVE AS OF APRIL 1, 1968:

* * * ONLY BY THE PERCENT (ADJUSTED TO THE NEAREST ONE-TENTH OF 1 PERCENT) THAT THE NEW BASE INDEX (FOR JANUARY 1968) EXCEEDS THE INDEX FOR (SEPTEMBER 1967) THE CALENDAR MONTH IMMEDIATELY BEFORE THAT IN WHICH THE RATES OF MONTHLY BASIC PAY ON WHICH HIS RETIRED PAY * * * IS BASED BECAME EFFECTIVE.

THE CONSUMER PRICE INDEX INCREASE OF 3.9 PERCENT IN MILITARY RETIRED PAY WHICH BECAME EFFECTIVE APRIL 1, 1968, IS BASED ON THE CONSUMER PRICE INDEX OF 118.6 FOR THE 3-MONTH PERIOD ENDING WITH THE MONTH OF JANUARY 1968. THE CONSUMER PRICE INDEX FIGURE FOR THE MONTH OF SEPTEMBER 1967 WAS 117.1. THEREFORE THE CONSUMER PRICE INDEX FOR JANUARY 1968 REFLECTS AN INCREASE OF 1.28 PERCENT OR (ADJUSTED TO THE NEAREST ONE-TENTH OF 1 PERCENT) AN INCREASE OF 1.3 PERCENT OVER THE CONSUMER PRICE INDEX FOR SEPTEMBER 1967. HENCE, THE RATE OF SERGEANT BURRELL'S RETIRED PAY ($297.72 PER MONTH) TO WHICH HE BECAME ENTITLED ON MARCH 15, 1968, PROPERLY MAY BE INCREASED EFFECTIVE APRIL 1, 1968, BY 1.3 PERCENT TO $301.59 PER MONTH (NOT $301.79 PER MONTH AS INDICATED IN YOUR LETTER).

THE LAST PARAGRAPH ON PAGE 2 OF YOUR LETTER IS AS FOLLOWS:

DOUBT EXISTS AS TO WHETHER THREE DIFFERENT PERCENTAGE INCREASE COMPUTATIONS FOR RETIRED PAY MAY BE POSSIBLE OR ARE CONTEMPLATED UNDER SUBSECTIONS (B), (C), AND (E) OF THE AMENDED SECTION 1401A OF TITLE 10, U.S.C. ON AND AFTER THE EFFECTIVE DATE OF ANY CONSUMER PRICE INDEX

PERCENTAGE INCREASE AND IN THIS RESPECT, THE CORRECT METHOD OF ADJUSTING SERGEANT BURRELL'S RETIRED PAY BEGINNING 1 APRIL 1968.

INASMUCH AS SERGEANT BURRELL RETIRED EFFECTIVE JULY 1, 1962, HIS RETIRED PAY STATUS DOES NOT COME WITHIN THE PURVIEW OF SUBSECTION (E) OF SECTION 1401A, TITLE 10, U.S. CODE, AS AMENDED, WHICH IS APPLICABLE ONLY WHEN RETIREMENT BECOMES EFFECTIVE ON OR AFTER OCTOBER 1, 1967. HENCE, THE COMPUTATION OF HIS RETIRED PAY EFFECTIVE FROM APRIL 1, 1968, IS GOVERNED BY THE PROVISIONS OF SUBSECTION (C) OF SECTION 1401A, AS SHOWN ABOVE ($301.59 PER MONTH). THE OTHER QUESTION PRESENTED IN THE PARAGRAPH ABOVE QUOTED IS BASED ON THE ASSUMPTION THAT THE RETIRED PAY STATUS OF THE INDIVIDUAL CONCERNED COMES WITHIN THE PURVIEW OF MORE THAN ONE OF THE SUBSECTIONS OF 10 U.S.C. 1401A CITED BY YOU. THUS, IF AN INDIVIDUAL'S MILITARY RETIRED PAY STATUS IS WITHIN THE SCOPE OF SUBSECTION (C) AS WELL AS SUBSECTION (B) OF SECTION 1401A, TITLE 10, U.S. CODE, AS AMENDED, YOU INQUIRE, IN EFFECT, WHETHER SUCH INDIVIDUAL WOULD BE ENTITLED TO THE GREATER AMOUNT OF RETIRED PAY OR RETAINER PAY COMPUTED UNDER SUBSECTION (B) OR SUBSECTION (C), AS THE CASE MAY BE. THIS MUST BE ANSWERED IN THE NEGATIVE, SINCE THE PHRASE "NOTWITHSTANDING SUBSECTION (B)" CONTAINED IN SUBSECTION (C) REQUIRES THAT THE RETIRED OR RETAINER PAY OF AN INDIVIDUAL WHOSE RETIRED OR RETAINER PAY STATUS LIES WITHIN THE SCOPE AND PURVIEW OF BOTH SUBSECTIONS (B) AND (C) MUST BE COMPUTED AS SPECIFICALLY PROVIDED IN SUBSECTION (C).

IF THE ADJUSTED RETIRED PAY OF A MEMBER OR FORMER MEMBER OF AN ARMED FORCE RETIRED ON OR AFTER OCTOBER 1, 1967, IS GREATER WHEN COMPUTED UNDER SUBSECTION (E) OF SECTION 1401A THAN THE AMOUNT OF MONTHLY RETIRED PAY TO WHICH HE OTHERWISE WOULD BE ENTITLED COMPUTED UNDER SUBSECTIONS (C) OR (D), SUCH INDIVIDUAL IS ENTITLED TO THE GREATER AMOUNT OF RETIRED PAY COMPUTED UNDER SUBSECTION (E).

SINCE PAYMENT ON THE VOUCHER (FCUSA FORMS 20-41 AN 20-43, ENCLOSURES 1 AND 2, RESPECTIVELY, RECEIVED WITH YOUR LETTER) STATED IN FAVOR OF SERGEANT WILLIAM C. BURRELL IS NOT PROPER THE VOUCHER FORMS WILL BE RETAINED HERE.