Possible Constitutional Limitations on Conpessional Authority to Reduce Militarr Pay Retroactively

• Author: Captain Stephen D. Peterse
• Pages: 03

1. ISTRODUCTIOX

   On June 13, 197i. the Supreme Court decided the case of riiiteil Stniss I' LUJ 8o,,nff. The issues presented were eomnion enough: (1)

   California B B A 1866 Member of :he Bar: of Io

   whether the milltar) had coireetrly con.truerl its o w regularion-.

   E so, (2) whether those regulations ai applied $+ere consmtent the under1)mg statute, and if '0 (3) whether the underl)~

   11. THE RATIOSALE OF LdRIO.YOFF

   four times the RRB. the higheentering the training programser~ice obligation. Larionoff emto extend his enlistment 'in consideration of the pa?, ai-loivances. and benefits nhich will atcure to me dunng the continuance of my service.' Larionoff succeasfuily corn-pleted the program and iias advanced to the CTM rating, expecting to receive a VRB upon entering the period of his extended enlistment on June 28, 1 9 3

   On )larch 24, 1972. however. the Saiy announced that

   tivea, inquired into hie continued eligibility for a VRB, he was informed that since the CTlI rating !vas no longer listed, he would not receive the expected bonus. Accordingly, in >larch 1972, respondent? filed rhis lawsuit. and in September of that year the District Court certified a elas3 and granted summary judgment for respondents, ordering payment of the disputed VRB's (Footnotea ornitted.14

   The second categor? was typified b) Plaintiff Johnnie 9. Johnson. Like Larionoff, Johnson had enlisted in the Savy at a time when the VRB program !%--as in effect and his CThl ratingd iias classified as a critical military skill. Unlike Larionoff houerer, before Jahneon began serving his extended enlistment period. Congress repealed the old VRB system, and substituted a new "selective reenliatment bonus''6 rxetem. The nature of the new SRB ayatem 1s nor further releYant to this discussion. except to note that Johnson was not eiigihle for it.

   The Court defined the tiio questions presented b) the two categories of plaintiffs as: (1) whether Larionoff and those in h1s position were entitled to receive VRB's deepite the Sav)'a elimination of their rating from the eligible hat in the penod after their agreement to extend their eniistments but before they hepan s e w

   4 431 C.S at 866-66.6 A nasal rating li aialogous ulth mlmq oeeupatmsl ~peelaltr,or 4108, ~n :he

   Army.

   6 Hereinafter referred IO in text and notes as SRB

   11.g thaie r\re Sitlla:L"'l ',I

   eie

   The Court fits: held i i favor ai the Laiiomff cbteeor, f thar:

   placed ar the time rhe tleciiinn to re

   Congress had in mind.

   pay clam had ripeneii into an "mrti~lement'

   , or in other ~ o r r l i hac!

   ''vested 8

   Thus. the Court was confronted. as 11 recogimerl with tvo leer Congress. b] ITS repeal af the VRR to direst servicemembex like Johnson of

   19i91 RETROACTIVE PAY REDUCTIOS

   their accrued VRB. and if so. whether such a repeal w.a constitutional.

   Surprisingly, the Court aroideti passing on the condtitutional question by holding that Congre had not intended to divest VRB rights from those servicemember .ho aere otheruise entitled. The reason for the surprise was not that the Court had favored one con. struction of a statute aver another to save the statute's constitutionality, or even that in EO doing the construction uas straindS The surprising thing a a i that the construction given the statute b) the Court appeared to be directl, contraq to the express intention of Congress, and demonstrably so

   It seemed apparent from the legislarive history of the VRB repeal that servicemembers in Johnson's situation were considered by the conference committee, and it was determined that payment of the VRB to these members aould not serve the lepislatm goals of the bill. The conference committee made clear that these members should be eligible for the $15,000 (maximum) SRB, provided the members obligated for two additional years. If the members did not wish to trade the extra time for extra mane), they irould have to content themselves irith onl) the RRB in addition to their acceler-ated rating?.

   The conference committee reported as follows:

   The Hause Committee in reporting the bill indicated its intention that bonuses not be authorized for personnei for existing obligated service. There aae brought to the attention of the confereea1° a problem that iqwuld exist, particularly in the Sav? nuciear-power field, under the House interpretation of the language of the hill, in case8 where commitment has been made to a man with a four-war enlistment and a two-Tear extension that he cancan- (19751z' It i a i uideli rumored tha: Admiral Rickoier the 'farher of the nuclear Nsv)," firs discerned :he problem that xould arise...