B-146608, FEB. 18, 1970
Highlights
A RESERVE OFFICER WHO IS RETAINED ON ACTIVE SERVICE DUE TO ADMINISTRATIVE ERROR BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED FOR AGE OR SERVICE UNDER THE MANDATORY ELIMINATION PROVISIONS OF 10 U.S.C. MCREYNOLDS: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 21. THE DATE ON WHICH YOUR REMOVAL FROM ACTIVE STATUS AS A RESERVE OFFICER WAS REQUIRED UNDER 10 U.S.C. 3848. THAT YOU WERE DENIED CREDIT FOR RESERVE POINTS EARNED AFTER THAT DATE BY REASON OF OUR DECISION MENTIONED ABOVE. THROUGH ADMINISTRATIVE OVERSIGHT IS RETAINED IN AN ACTIVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED THEREFROM FOR AGE OR LENGTH OF SERVICE UNDER THE MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 (AS CODIFIED IN CH. 363.
B-146608, FEB. 18, 1970
MILITARY--RETIRED PAY--ACTIVE DUTY AFTER MANDATORY AGE AND LENGTH OF SERVICE DECISION TO RETIRED RESERVE OFFICER DENYING CREDIT FOR SERVICE AFTER THE DATE OF REMOVAL FROM ACTIVE SERVICE AS A RESERVE OFFICER UNDER 10 U.S.C. 3848. A RESERVE OFFICER WHO IS RETAINED ON ACTIVE SERVICE DUE TO ADMINISTRATIVE ERROR BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED FOR AGE OR SERVICE UNDER THE MANDATORY ELIMINATION PROVISIONS OF 10 U.S.C. CH. 363 MAY NOT BE CREDITED WITH SERVICE PERFORMED SUBSEQUENT TO SUCH REMOVAL IN DETERMINING RETIREMENT ELIGIBILITY. 41 COMP. GEN. 375 (1961)
TO LIEUTENANT COLONEL JOHN A. MCREYNOLDS:
REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 21, 1970, CONCERNING CREDIT FOR SERVICE PERFORMED SUBSEQUENT TO AUGUST 12, 1967, THE DATE ON WHICH YOUR REMOVAL FROM ACTIVE STATUS AS A RESERVE OFFICER WAS REQUIRED UNDER 10 U.S.C. 3848. YOU REQUEST THAT WE REVIEW OUR DECISION B-146608, DATED DECEMBER 1, 1961, 41 COMP. GEN. 375, COPY HEREWITH, WHICH HAS SOME BEARING ON THIS MATTER.
YOU SAY THAT THROUGH ADMINISTRATIVE ERROR YOU REMAINED A MEMBER OF THE READY RESERVE UNTIL JUNE 4, 1969, INSTEAD OF BEING TRANSFERRED TO THE RETIRED RESERVE ON AUGUST 12, 1967; THAT YOU SERVED THREE SHORT TOURS OF ACTIVE DUTY SUBSEQUENT TO AUGUST 12, 1967; AND THAT YOU WERE DENIED CREDIT FOR RESERVE POINTS EARNED AFTER THAT DATE BY REASON OF OUR DECISION MENTIONED ABOVE. YOU, THEREFORE, REQUEST THAT WE REVIEW OUR DECISION AND GRANT YOU "CREDIT FOR THE EARNED SERVICE WHICH I AM PRESENTLY DENIED."
IN THE DECISION TO WHICH YOU REFER WE HELD, AMONG OTHER THINGS, THAT IF A RESERVE OFFICER, AS IN YOUR CASE, THROUGH ADMINISTRATIVE OVERSIGHT IS RETAINED IN AN ACTIVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED THEREFROM FOR AGE OR LENGTH OF SERVICE UNDER THE MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 (AS CODIFIED IN CH. 363, TITLE 10, U.S. CODE), HE MAY NOT BE CREDITED WITH SERVICE PERFORMED SUBSEQUENT TO THE REQUIRED DATE OF REMOVAL IN DETERMINING RETIREMENT ELIGIBILITY UNDER 10 U.S.C. 1332. THAT DECISION WAS REACHED ON THE BASIS OF THE LAW INVOLVED AND WHAT APPEARS TO HAVE BEEN THE INTENTION OF THE CONGRESS IN FIXING THE MANDATORY PROVISIONS OF THAT LAW. COMPARE IN THIS CONNECTION OUR DECISION OF MAY 25, 1964, B-153784, 43 COMP. GEN. 742, COPY HEREWITH, IN WHICH SIMILAR MANDATORY PROVISIONS OF LAW WERE CONSIDERED.
YOUR LETTER OF JANUARY 21, 1970, DOES NOT ADVANCE ANY BASIS FOR REACHING A CONCLUSION CONTRARY TO THAT STATED IN THE CITED DECISIONS. SINCE YOUR CASE SEEMS TO FALL SQUARELY WITHIN THE RULE OF OUR DECISION OF DECEMBER 1, 1961, 41 COMP. GEN. 375, IT APPEARS THAT THE DEPARTMENT OF THE ARMY WAS CORRECT IN DENYING YOU CREDIT FOR RESERVE POINTS FOR SERVICE PERFORMED SUBSEQUENT TO THE DATE YOU WERE REQUIRED BY LAW TO BE REMOVED FROM ACTIVE RESERVE SERVICE.