B-138452, NOV. 19, 1959

B-138452, NOV. 19, 1959

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF NOVEMBER 2, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), FORWARDING A LIST CONTAINING THE NAMES OF 49 PERSONS WHO ARE MEMBERS OF THE MARINE CORPS RESERVE, WHO ARE OVER 60 YEARS OF AGE, AND WHO HAVE BEEN RETAINED IN AN ACTIVE RESERVE STATUS SUBSEQUENT TO QUALIFYING FOR RETIRED PAY UNDER 10 U.S.C. 1331. THE LETTER--- ASSIGNED SUBMISSION NO. SS-N-458 BY THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCE COMMITTEE-- IS UNDERSTOOD TO EVIDENCE YOUR DETERMINATION THAT THE INDIVIDUALS LISTED ARE CONSIDERED TO HAVE BEEN RETAINED IN AN ACTIVE RESERVE STATUS PURSUANT TO LAW AFTER THE DATE THEY QUALIFIED FOR TITLE III RETIRED PAY (THAT IS, RETIRED PAY AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, WHICH WAS SUPERSEDED BY CHAPTER 67 AND OTHER PROVISIONS OF TITLE 10, U.S. CODE).

THE PRESENT LETTER PRESENTS THE QUESTION WHETHER THE DETERMINATION EVIDENCED THEREBY MAY BE ACCEPTED AS MEETING THE "ORDER" REQUIREMENTS OF 10 U.S.C. 676 IN THE CASES OF THE PERSONS NAMED IN THE LIST TO WHICH SUCH DETERMINATION APPLIES.

IN OUR DECISION OF APRIL 1, 1959, B-138452, 38 COMP. GEN. 647, IT WAS STATED THAT IN ORDER FOR A MEMBER TO QUALIFY FOR INCREASED RETIRED PAY BENEFITS UNDER 10 U.S.C. 676, HIS RETENTION ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT MUST BE DIRECTED "BY ORDER OF THE SECRETARY CONCERNED.' ON SEPTEMBER 25, 1959, WE ADVISED YOU THAT CERTAIN LISTED MEMBERS OF THE NAVAL RESERVE WOULD BE CONSIDERED AS RETAINED FOR SERVICE IN A RESERVE COMPONENT BY YOUR ORDER AFTER QUALIFYING FOR RETIRED PAY AND THAT THEY WOULD BE CONSIDERED AS ENTITLED TO THE BENEFITS WHICH ACCRUE TO ELIGIBLE MEMBERS UNDER 10 U.S.C. 676. THE SAME CONCLUSION IS REACHED RELATIVE TO THE STATUS OF THE LISTED MEMBERS OF THE MARINE CORPS RESERVE AND THEY ALSO WILL BE CONSIDERED AS ENTITLED TO SUCH BENEFITS.