B-222331, Dec 7, 1988

B-222331, Dec 7, 1988

MILITARY PERSONNEL - Pay - Retirement pay - Post-retirement active duty - Restrictions DIGEST: Decision Major General Francis R. Gerard, USAFR, B-222331, June 23, 1987, is affirmed, holding that once a military member applies for and becomes entitled to receive retired pay under 10 U.S.C. Sec. 1331, he is no longer in an active status in which he may be "retained" and receive credit for additional service under 10 U.S.C. Sec. 676. 10 U.S.C. Sec. 684 does not provide the necessary statutory authority to enable a member retained in active status to simultaneously receive retired pay. Rather 10 U.S.C. Sec. 684 only enables a member who is receiving retired pay to waive this pay and to receive active duty pay and allowances if restored to active duty. This does not mean that under other authority the member could not be placed in an active status and receive retired pay (except for periods for which it is waived under 10 U.S.C. Sec. 684). However, he could not receive credit for the additional service as a member retained under 10 U.S.C. Sec. 676.

Major General Francis R. Gerard, USAFR - Reconsideration:

This is in response to a request for reconsideration of our decision Major General Francis R. Gerard, USAFR, B-222331, June 23, 1987, in which we held that a Reserve member could not be retained in active status and simultaneously receive retired pay under 10 U.S.C. Sec. 1331. /1/ For the reasons to follow, we affirm our decision.

In our earlier decision, we held that General Gerard could not be retained in active service under 10 U.S.C. Sec. 676, /2/ receive credit for additional service and also receive retired pay under 10 U.S.C. Sec. 1331(a). /3/ We explained that the acceptance of a retention under section 676 and being in a status to simultaneously receive retired pay under section 1331 would be inherently contradictory. Therefore, we held that absent specific statutory authority, General Gerard could either retire and receive retired pay or remain in an active status under section 676 and receive credit for the additional service but without receiving retired pay.

General Gerard's request for reconsideration suggests that statutory authority does exist for him to be retained in an active status and simultaneously receive retired pay. He refers to 10 U.S.C. Sec. 684(a), which states:

"(a) Except as provided by subsection (b), a Reserve of the Army, Navy, Air Force, Marine Corps, or Coast Guard who because of his earlier military service is entitled to a pension, retired or retainer pay, or disability compensation, and who performs duty for which he is entitled to compensation, may elect to receive for that duty either--

"(1) the payments to which he is entitled because of his earlier military service; or

"(2) if he specifically waives those payments, the pay and allowances authorized by law for the duty that he is performing."

General Gerard maintains that the plain meaning of this statute is that a member can be in an active status and receive retired pay at the same time; therefore, this statute provides the specific authority for General Gerard to remain in an active status and simultaneously receive retired pay.

The provision to which General Gerard refers was derived from Public Law 844, 81st Cong., 64 Stat. 1067 (1950). The legislative history reveals that the purpose of the act was to enable military Reserve members receiving a pension, disability compensation, disability allowance or retired pay and who serve on active duty, to receive active duty pay if they waived their retired pay or the like. /4/ See H.R. Rep. No. 3013, 81st Cong., 2d Sess. 1-2 (1950). The House Report goes on to a specific example of the problem being remedied by the act. Many Reserve members had minor disabilities by Veterans Administration standards but not to the extent that these members could not perform useful services in the Armed Forces. The report noted that due to the then existing national emergency the services needed specialists who might have minor disabilities but were well suited for military service. "If these men are recalled to active duty, or accepted on a voluntary basis, they cannot accept service pay even though they elect to waive their disability compensation. ..." Id. at p. 2.

Thus, 10 U.S.C. Sec. 684(a) provides authority for members who are receiving retired pay or the like, and who perform active duty to waive their retired pay and receive active duty pay. See generally Rear Admiral Grace Hopper, USNR (Retired) (Recalled), 65 Comp.Gen. 774 (1986). This law is not applicable to General Gerard for the simple reason that General Gerard, while qualified for retired pay, is not yet "entitled" to receive retired pay. In order for General Gerard to become entitled to retired pay, he must make application for it. 10 U.S.C. Sec. 1331. Once he does make application for retired pay and becomes entitled to it, he may not be retained in an active status under 10 U.S.C. Sec. 676 /5/ and continue to receive credit for the additional service while also receiving retired pay, as we held in our earlier decision in regard to General Gerard.

Accordingly, we affirm in these respects our prior decision concerning General Gerard.

This does not mean that under other authority General Gerard could not be placed in an active status or serve on active duty after applying for and becoming entitled to retired pay. If he were placed in such status after becoming entitled to retired pay, he could receive his retired pay, except for periods for which he waives it pursuant to 10 U.S.C. Sec. 684 because he performs other duty for which he is entitled to compensation. In that status, however, he would not be entitled to credit for the additional service as a member retained under 10 U.S.C. Sec. 676.

/1/ Reconsideration was requested by the claimant, Major General Gerard.

/2/ 10 U.S.C. Sec. 676 reads: "Any person who has qualified for retired pay under chapter 67 of this title may, with his consent and by order of the Secretary concerned, be retained on active duty, or in service in a reserve component other than that listed in section 1332(b) of this title. A member so retained shall be credited with the service for all purposes."

/3/ 10 U.S.C. Sec. 1331(a) reads:

"(a) Except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 1401 of this title, if-

"(1) he is at least 60 years of age;

"(2) he has performed at least 20 years of service computed under section 1332 of this title;

"(3) he performed the last eight years of qualifying service while a member of any category named in section 1332(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve; and

"(4) he is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve."

/4/ his type legislation was necessitated by our holding in 27 Comp.Gen. 416 (1948).

/5/ Section 676 is applicable only to a member "qualified for retired pay" not a member "entitled" to it.