B-80804, MARCH 14, 1949, 28 COMP. GEN. 510

B-80804, MARCH 14, 1949, 28 COMP. GEN. 510

PAY - RETIRED - EFFECT OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 - EFFECT OF TERMINATION OF RESERVE STATUS A PERSON OTHERWISE QUALIFIED TO RECEIVE RETIRED PAY UPON REACHING THE AGE OF 60 YEARS UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 AS A RESULT OF SERVICE IN A RESERVE COMPONENT IS NOT DISQUALIFIED FROM RECEIVING SUCH RETIRED PAY BY REASON OF THE TERMINATION OF HIS RESERVE STATUS PRIOR TO REACHING SUCH AGE, AND THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF RETIRED PAY GRANTED UNDER TITLE III TO PERSONS WHOSE MEMBERSHIP IN A RESERVE COMPONENT TERMINATED PRIOR TO ATTAINING THE AGE OF 60 YEARS. 28 COMP. GEN. 321, OVERRULED IN PART.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MARCH 14, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 7, 1949, WITH REFERENCE TO DECISION OF THIS OFFICE TO THE SECRETARY OF THE NAVY, B 80804, DATED NOVEMBER 23, 1948 (28 COMP. GEN. 321), WHICH INVOLVED SEVERAL QUESTIONS ARISING IN CONNECTION WITH THE ADMINISTRATION OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1187. YOU REQUEST THAT THIS OFFICE RECONSIDER ITS DECISION ON ONE OF SUCH QUESTIONS, NAMELY QUESTION (G), AS FOLLOWS:

IS AN INDIVIDUAL WHO IS NOT A MEMBER OF A RESERVE COMPONENT, BUT WHO WAS FORMERLY A MEMBER OF A RESERVE COMPONENT AND WHO HAS COMPLETED ALL REQUIREMENTS FOR RETIREMENT BENEFITS EXCEPT THE ATTAINMENT OF THE AGE OF 60 YEARS PRIOR TO SEPARATION FROM SUCH RESERVE COMPONENT, ENTITLED TO RECEIVE RETIREMENT BENEFITS UPON REACHING THE AGE OF 60 YEARS?

IN THE DECISION OF NOVEMBER 23, 1948, SUPRA, THE SAID QUESTION (G) WAS ANSWERED IN THE NEGATIVE. YOU INDICATE THAT YOU CONSIDER SUCH NEGATIVE ANSWER TO BE CONTRARY TO THE INTENT OF THE STATUTE AND YOU "SUBMIT THAT THE LANGUAGE OF THE STATUTE AS A WHOLE POINTS VERY CLEARLY TO THE FACT THAT MEMBERSHIP IN A RESERVE COMPONENT AT AGE 60 IS NOT A REQUIREMENT FOR ELIGIBILITY FOR RETIRED PAY.'

IN REACHING A NEGATIVE CONCLUSION ON THE ABOVE-QUOTED QUESTION IN THE DECISION OF NOVEMBER 23, 1948, THIS OFFICE REFERRED TO THE FACT THAT SECTION 301 (B) OF THE ACT OF JUNE 29, 1948, THIS OFFICE REFERRED TO THE FACT THAT SECTION 301 (B) OF THE ACT OF JUNE 29, 1948, SUPRA, WHICH AUTHORIZES THE ESTABLISHMENT OF A UNITED STATES NAVAL RESERVE RETIRED LIST, SPECIFICALLY PROVIDES THAT SUCH LIST SHALL INCLUDE THE NAMES OF OFFICERS AND ENLISTED PERSONNEL "OF THE NAVAL AND MARINE CORPS RESERVE" BUT MAKES NO PROVISION FOR PLACING ON SUCH LIST THE NAMES OF FORMER RESERVISTS. IT WAS POINTED OUT, ALSO, THAT SECTION 308 OF THE ACT, 62 STAT. 1090, MAKES SPECIFIC PROVISION FOR PERSONS WHO HAVE NOT ATTAINED THE AGE OF 60 YEARS, THOUGH OTHERWISE QUALIFIED FOR RETIRED PAY, TO CONTINUE ON IN THE RESERVE ON AN INACTIVE STATUS LIST BUT SUBJECT TO RECALL TO ACTIVE STATUS AT ANY TIME AND IT WAS STATED THAT " HAD IT BEEN INTENDED TO GIVE SUCH PERSONS THE ALTERNATIVE OF RESIGNING OR OTHERWISE TERMINATING THEIR RESERVE MEMBERSHIP, AND STILL REMAIN ELIGIBLE FOR RETIRED PAY, IT MAY BE ASSUMED THAN AN EXPRESS PROVISION THEREFOR WOULD HAVE BEEN MADE.'

YOU QUOTE FROM SECTION 301 (A) OF THE ACT, 62 STAT. 1087 (WHICH AUTHORIZES THE ESTABLISHMENT OF THE ARMY OF THE UNITED STATES RETIRED LIST AND THE AIR FORCE OF THE UNITED STATES RETIRED LIST), AS WELL AS SECTION 301 (B) OF THE ACT AND YOU STATE THAT " IT SHOULD BE OBVIOUS FROM A READING OF THESE SECTIONS, THAT A PERSON'S NAME ON A RETIRED LIST IS NOT A CONDITION PRECEDENT TO THE GRANTING OF RETIRED PAY * * * BUT ON THE CONTRARY, THE GRANTING OF RETIRED PAY IS A CONDITION PRECEDENT TO HAVING ONE'S NAME ON THE RETIRED LIST.' IN THE DECISION OF NOVEMBER 23, 1948, IT WAS NOT INTENDED TO IMPLY THAT HAVING ONE'S NAME ON A RETIRED LIST IS A CONDITION PRECEDENT TO THE GRANTING OF RETIRED PAY UNDER THE STATUTE. THE THOUGHT WAS THAT SINCE SPECIFIC PROVISION WAS MADE FOR PLACING THE NAMES OF MEMBERS OF THE NAVAL AND MARINE CORPS RESERVE ON THE RETIRED LIST, IT WOULD APPEAR THAT, IF FORMER MEMBERS ALSO WERE TO BE CONSIDERED ELIGIBLE TO RECEIVE RETIRED PAY UPON REACHING THE AGE OF 60 YEARS, SOME PROVISION WOULD HAVE BEEN MADE FOR PLACING THEIR NAMES ON A RETIRED LIST AND THAT THE ABSENCE OF ANY MENTION OF FORMER RESERVISTS IN SECTION 301 (B) GAVE RISE TO DOUBT WHETHER THEY WERE INTENDED TO BE COVERED BY THE OTHER PROVISIONS OF THE ACT. LIKEWISE, SECTION 308, PROVIDING FOR CONTINUATION IN THE RESERVE ON AN INACTIVE STATUS LIST AFTER THE COMPLETION OF 20 YEARS OF SATISFACTORY FEDERAL SERVICE, ENGENDERED SOME DOUBT THAT FORMER RESERVISTS WERE INTENDED TO BE COVERED BY THE ACT. HOWEVER, UPON FURTHER CONSIDERATION OF THE MATTER IN THE LIGHT OF THE EXHAUSTIVE DISCUSSION AND ANALYSIS OF VARIOUS SECTIONS OF THE ACT, AND OF THE LEGISLATIVE HISTORY OF THE ACT, CONTAINED IN YOUR LETTER, THE CONCLUSION APPEARS WARRANTED THAT SUCH DOUBT AS TO THE INTENT OF THE CONGRESS IN THAT RESPECT IS SUFFICIENTLY SET AT REST BY THE GENERAL DESIGN AND PURPOSE OF THE LEGISLATION AND, MORE PARTICULARLY, BY THE SPECIFIC PROVISIONS CONTAINED IN SECTION 304 OF THE ACT, 62 STAT. 1088, IN PERTINENT PART, AS FOLLOWS:

* * * WHENEVER ANY MEMBER OF ANY SUCH RESERVE COMPONENT THEREAFTER SHALL FAIL TO CONFORM TO THE STANDARDS AND QUALIFICATIONS SO PRESCRIBED HE SHALL BE TRANSFERRED TO AN INACTIVE RESERVE STATUS IF QUALIFIED FOR SUCH STATUS, RETIRED WITHOUT PAY IF QUALIFIED FOR SUCH RETIREMENT, OR HIS APPOINTMENT OR ENLISTMENT SHALL BE TERMINATED. SUCH ACTION SHALL EFFECT A TERMINATION OF SUCH PERSON'S RIGHT TO ACCRUE RETIREMENT BENEFITS UNDER THIS TITLE BUT SHALL NOT AFFECT ANY RIGHTS WHICH HAVE ACCRUED PRIOR TO THE TIME THAT SUCH ACTION SHALL HAVE BEEN TAKEN WITH RESPECT TO SUCH PERSON * * *. ( ITALICS SUPPLIED.)

AS YOU CONTEND, THE LAST SENTENCE OF THE ABOVE QUOTATION SEEMS TO BE A CLEAR LEGISLATIVE RECOGNITION THAT A PERSON WHO OTHERWISE QUALIFIES FOR RETIREMENT BEFORE HIS RESERVE STATUS IS TERMINATED SHALL BE ENTITLED TO APPLY FOR AND BE GRANTED RETIREMENT BENEFITS WHEN HE REACHES THE AGE OF 60 YEARS, NOTWITHSTANDING SUCH TERMINATION, AND, HENCE, THAT A PERSON NEED NOT BE A MEMBER OF A RESERVE COMPONENT TO BE ENTITLED TO RETIRED PAY AT THE AGE OF 60, IF ALL OTHER STATUTORY CONDITIONS OF SERVICE AND QUALIFICATIONS HAVE BEEN MET.

ACCORDINGLY, SO MUCH OF THE DECISION OF NOVEMBER 23, 1948, SUPRA, AS PERTAINS TO QUESTION (G) MAY BE DISREGARDED AND THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF RETIRED PAY GRANTED UNDER TITLE III OF THE ABOVE-CITED ACT OF JUNE 29, 1948, TO PERSONS WHOSE MEMBERSHIP IN A RESERVE COMPONENT TERMINATED PRIOR TO REACHING THE AGE OF 60 YEARS.