B-163446, MAY 14, 1968, 47 COMP. GEN. 654

B-163446, MAY 14, 1968, 47 COMP. GEN. 654

MILITARY PERSONNEL - RETIRED - NATIONAL GUARD SERVICE - REGULAR AND RESERVE RETIRED LISTS TO TRANSFER RETIRED REGULAR ARMY OFFICERS WHO HAVE COMPLETED SERVICE AS STATE ADJUTANTS GENERAL OR ASSISTANT ADJUTANTS GENERAL, AND ARE FEDERALLY RECOGNIZED IN THEIR RESERVE GENERAL OFFICER GRADES, TO THE RETIRED RESERVE WOULD CREATE THE ANOMALOUS SITUATION OF HAVING THE OFFICERS ON TWO SEPARATE RETIRED LISTS, NAMELY, THE REGULAR ARMY RETIRED LIST AND THE RETIRED RESERVE LIST, A SITUATION NOT WITHIN THE CONTEMPLATION OF 10 U.S.C. 1374 (B), 3352 (A), AND 3375. THEREFORE, ABSENT STATUTORY AUTHORITY TO TRANSFER AND FIX THE RIGHTS OF THE TRANSFERRED OFFICERS SO AS TO MAKE ONE RETIRED STATUS COMPATIBLE WITH THE OTHER, THE OFFICERS MAY NOT HOLD TWO RETIRED STATUSES SIMULTANEOUSLY.

TO THE SECRETARY OF THE ARMY, MAY 14, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 25, 1968, WITH ENCLOSURES, FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), REQUESTING A DECISION ON CERTAIN QUESTIONS RELATING TO THE TRANSFER OF RETIRED REGULAR ARMY OFFICERS TO THE RETIRED RESERVE LIST UPON COMPLETION OF SERVICE AS STATE ADJUTANTS GENERAL OR ASSISTANT ADJUTANTS GENERAL. THE REQUEST HAS BEEN ALLOCATED NUMBER SS-A-979 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ACTING ASSISTANT SECRETARY STATES THAT RETIRED REGULAR ARMY OFFICERS WHO ARE APPOINTED AS STATE ADJUTANTS GENERAL OR ASSISTANT ADJUTANTS GENERAL AND ARE FEDERALLY RECOGNIZED IN THEIR RESERVE GENERAL OFFICER GRADES SEEK TO BE TRANSFERRED TO THE RETIRED RESERVE UPON COMPLETION OF THEIR SERVICE RATHER THAN REVERT BACK TO THEIR REGULAR ARMY STATUS. THE FOLLOWING TWO QUESTIONS ARE PRESENTED FOR RESOLUTION:

(1) DOES EXISTING LAW PERMIT TRANSFER OF THESE OFFICERS TO THE RETIRED RESERVE UPON COMPLETION OF THEIR SERVICE AS STATE ADJUTANTS GENERAL OR ASSISTANT ADJUTANTS GENERAL; AND

(2) IF THE ANSWER TO THE FOREGOING QUESTION IS AFFIRMATIVE, MAY SUCH OFFICERS CONTINUE TO HOLD THE RETIRED REGULAR ARMY STATUS UPON WHICH THEIR ENTITLEMENT TO RETIREMENT PAY IS BASED.

CONCERNING THE FIRST QUESTION, THERE WAS ENCLOSED WITH THE REQUEST FOR DECISION A COPY OF AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY DATED DECEMBER 1, 1967, EXPRESSING HIS VIEW THAT SECTIONS 1374 (B), 3352 (A) AND 3375 OF TITLE 10, U.S. CODE, PERMIT THE TRANSFER OF MEMBERS--- IN A SITUATION SUCH AS THAT OF THE TWO OFFICERS MENTIONED IN THAT OPINION--- TO THE RETIRED RESERVE IN THEIR RESPECTIVE GENERAL OFFICER GRADES. IT IS STATED THAT IF AUTHORITY EXISTS FOR THE TRANSFER, THE QUESTION ARISES WHETHER ACCEPTANCE OF A PLACE ON THE RETIRED RESERVE LIST CREATES AN INCOMPATIBLE STATUS WHICH WOULD RESULT IN TERMINATING THE RETIRED REGULAR ARMY STATUS UPON WHICH ENTITLEMENT TO RETIREMENT PAY IS BASED. THE VIEW IS EXPRESSED THAT THE SIMULTANEOUS HOLDING OF THESE TWO STATUSES SEEMS EQUALLY CONSISTENT WITH THE HOLDING OF A RETIRED REGULAR ARMY STATUS AND A RESERVE COMMISSIONED OFFICER STATUS WHILE SERVING AS A STATE ADJUTANT GENERAL OR ASSISTANT STATE ADJUTANT GENERAL.

ACCOMPANYING THE SUBMISSION IS A COPY OF A LETTER ADDRESSED TO THE CHIEF OF STAFF, U.S. ARMY, SIGNED BY BRIGADIER GENERAL ROBERT OUTSEN, WYOMING NATIONAL GUARD, IN EFFECT REQUESTING THAT CONSIDERATION BE GIVEN TO THE TRANSFER OF MAJOR GENERAL GEORGE O. PEARSON, ARNG, TO THE RETIRED RESERVE AND PLACEMENT OF HIS NAME ON THE RETIRED RESERVE LIST AS A RESERVE GENERAL OFFICER CONCURRENTLY WITH HIS STATUS AS A COLONEL ON THE RETIRED LIST OF THE REGULAR ARMY. GENERAL OUTSEN STATES THAT HIS STATUS IN THE FUTURE WILL BE SUBSTANTIALLY THE SAME AS GENERAL PEARSON-S. HE STATES FURTHER THAT HE AND GENERAL PEARSON--- WHO RECENTLY TERMINATED HIS APPOINTMENT, BECAUSE OF AGE, AS ADJUTANT GENERAL OF WYOMING--- WERE RETIRED FROM THE REGULAR ARMY FOR AGE AS COLONELS AND SUBSEQUENTLY WERE APPOINTED AS ASSISTANT ADJUTANT GENERAL AND ADJUTANT GENERAL, RESPECTIVELY, IN THE WYOMING NATIONAL GUARD, FEDERAL RECOGNITION HAVING BEEN ACCORDED THEM AS A BRIGADIER GENERAL (OUTSEN) AND MAJOR GENERAL (PEARSON).

UNDER THE PROVISIONS OF 10 U.S.C. 3392, THE ADJUTANT GENERAL OR AN ASSISTANT ADJUTANT GENERAL OF A STATE MAY, UPON BEING EXTENDED FEDERAL RECOGNITION, BE APPOINTED AS A RESERVE OFFICER OF THE ARMY. 10 U.S.C. 3351 (A) PROVIDES IN PART THAT UPON BEING FEDERALLY RECOGNIZED, AN OFFICER OF THE ARMY NATIONAL GUARD SHALL BE APPOINTED AS A RESERVE FOR SERVICE AS A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES IN THE GRADE THAT HE HOLDS IN THE ARMY NATIONAL GUARD.

SECTION 1376 OF TITLE 10, U.S. CODE, REQUIRES THE SECRETARY OF THE ARMY TO MAINTAIN A RETIRED LIST CONTAINING THE NAMES OF THE ARMY RESERVES WHO ARE IN THE RETIRED RESERVE. UNDER 10 U.S.C. 1374 (B) A RESERVE COMMISSIONED OFFICER WHO IS TRANSFERRED TO THE RETIRED RESERVE IS ENTITLED TO BE PLACED ON THE RETIRED LIST IN THE HIGHEST GRADE IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY CONCERNED, IN THE ARMED FORCE IN WHICH HE IS SERVING ON THE DATE OF TRANSFER. SUBSECTION (D) PROVIDES THAT UNLESS OTHERWISE PROVIDED BY LAW, NO PERSON IS ENTITLED TO INCREASED PAY OR OTHER BENEFITS BECAUSE OF THAT SECTION. SECTION 1374, HOWEVER, DOES NOT AUTHORIZE THE TRANSFER OF OFFICERS TO THE RETIRED RESERVE. IT RELATES TO OFFICERS WHO ARE ENTITLED UNDER SOME OTHER PROVISION OF LAW TO BE TRANSFERRED TO THAT ORGANIZATION.

AN OFFICER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES MAY BE TRANSFERRED IN GRADE TO THE ARMY RESERVE AS PROVIDED IN 10 U.S.C. 3352. SECTION 3375 OF TITLE 10 PROVIDES IN PART THAT WITHIN 30 DAYS AFTER AN OFFICER IN A RESERVE GENERAL OFFICER GRADE CEASES TO OCCUPY A POSITION COMMENSURATE WITH HIS GRADE OR WITH A HIGHER GRADE, THE SECRETARY OF THE ARMY SHALL, IF THE OFFICER SO ELECTS FROM THE DIFFERENT ALTERNATIVES THERE PRESCRIBED, (1) TRANSFER HIM IN GRADE TO THE RETIRED RESERVE, IF HE IS QUALIFIED AND APPLIES THEREFOR.

GENERAL OUTSEN REFERS TO THE PROVISIONS OF 10 U.S.C. 3961 AND SAYS IN EFFECT THAT UNDER HIS CONSTRUCTION OF THAT SECTION NEITHER HE NOR GENERAL PEARSON EXPECT TO HAVE THEIR RETIRED PAY--- WHICH APPARENTLY IS COMPUTED ON THE BASIS OF THE GRADE OF COLONEL--- RECOMPUTED ON THE BASIS OF THE HIGHER RESERVE GRADE OF BRIGADIER GENERAL AND MAJOR GENERAL SHOULD THEY BE GRANTED THOSE RESERVE GRADES IN A RETIRED STATUS.

THE QUESTION OF COLONEL OUTSEN'S RIGHT TO HAVE HIS RETIRED PAY RECOMPUTED ON THE BASIS OF ACTIVE DUTY IN HIS RESERVE GRADE OF BRIGADIER GENERAL AS A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES RATHER THAN ON HIS RETIRED GRADE OF COLONEL IN THE REGULAR ARMY, WAS THE SUBJECT OF OUR DECISION OF JANUARY 4, 1965, B-155613. IN THAT DECISION WE NOTED THAT COLONEL OUTSEN WAS RETIRED AUGUST 31, 1961, COMPLETED OVER 30 YEARS OF SERVICE FOR BASIC PAY, OVER 20 YEARS OF WHICH WAS ACTIVE SERVICE. ON THE BASIS OF THE STATUTORY PROVISIONS AND OTHER AUTHORITIES THERE CITED, WE STATED THAT WE KNEW OF NO PROVISION OF LAW UNDER WHICH COLONEL OUTSEN WOULD BE ENTITLED TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THE PAY OF A BRIGADIER GENERAL UPON RELEASE FROM ACTIVE DUTY IF HE SHOULD BE RECALLED TO ACTIVE DUTY TO SERVE IN THAT UNDER THE MANDATORY RETIREMENT PROVISIONS OF 10 U.S.C. 3921, HAVING GRADE.

IN THE DECISION OF JANUARY 4, 1965, WE POINTED OUT THAT INSOFAR AS RETIREMENT UNDER 10 U.S.C. 3911 AS A RESERVE BRIGADIER GENERAL WITH OVER 20 YEARS OF ACTIVE SERVICE IS CONCERNED, COLONEL OUTSEN COULD NOT HAVE BEEN SO RETIRED IN AUGUST 1961, BECAUSE HE WAS NOT THEN A BRIGADIER GENERAL. WE SAID THAT SUCH A RETIREMENT AT A LATER TIME WOULD BE INCOMPATIBLE WITH HIS PRESENT STATUS AS A RETIRED OFFICER OF THE REGULAR ARMY. WE WENT ON TO SAY, HOWEVER, THAT IF HE SHOULD SERVE ON ACTIVE DUTY AS A BRIGADIER GENERAL IN HIS NATIONAL GUARD STATUS AND BECOME ELIGIBLE FOR RETIREMENT AS A RESERVE OFFICER AND IF HIS COMMISSION IN THE REGULAR ARMY IS TERMINATED, HE MIGHT THEN APPLY FOR RETIREMENT UNDER 10 U.S.C. 3911 AS A BRIGADIER GENERAL.

WE FIND LITTLE BASIS FOR THE CONCLUSION THAT THE ABOVE MENTIONED SECTION 1374 (B), 3352 AND 3375 PERMIT THE TRANSFER OF A RESERVE OFFICER TO THE RETIRED RESERVE, IN A SITUATION LIKE THAT OF THE TWO OFFICERS MENTIONED ABOVE WHILE THEY ARE CURRENTLY HOLDING THE STATUS OF RETIRED OFFICERS OF THE REGULAR ARMY. TO SO HOLD WOULD RESULT IN AN ANOMALOUS SITUATION OF HAVING EACH OFFICER ON TWO SEPARATE RETIRED LISTS, NAMELY, THE REGULAR ARMY RETIRED LIST AND THE RETIRED RESERVE LIST. COMPARE 36 COMP. GEN. 399 AND 40 ID. 51.

WHILE THE APPOINTMENT OF A RETIRED OFFICER OF THE REGULAR ARMY TO BE STATE ADJUTANT GENERAL OF THE STATE OF WYOMING SEEMS TO BE WITHIN THE PROVISIONS OF SECTION 28 OF TITLE 19, WYOMING STATUTES, AND AS INDICATED ABOVE, UPON FEDERAL RECOGNITION AS A NATIONAL GUARD OFFICER, STATUTORY AUTHORITY EXISTS FOR APPOINTING AN ADJUTANT GENERAL AS AN ARMY RESERVE OFFICER, WE HAVE NOT FOUND STATUTORY AUTHORITY FOR TRANSFERRING A RESERVE OFFICER WHO IS A RETIRED OFFICER OF THE REGULAR ARMY TO THE RETIRED RESERVE. IN THE ABSENCE OF SOME SUCH STATUTORY AUTHORIZATIONS WHICH WOULD NOT ONLY AUTHORIZE SUCH A TRANSFER BUT ALSO FIX THE RIGHTS OF AN OFFICER SO TRANSFERRED SO AS TO MAKE THE ONE RETIRED STATUS COMPATIBLE WITH THE OTHER, WE MUST CONCLUDE THAT THERE IS NO AUTHORITY FOR THE TRANSFER, IN A SITUATION LIKE THAT OF THE TWO OFFICERS IN QUESTION, TO THE RETIRED RESERVE UPON COMPLETION OF THIER SERVICE AS STATE ADJUTANT GENERAL OR ASSISTANT ADJUTANT GENERAL. QUESTION 1 IS ANSWERED IN THE NEGATIVE AND FOR THAT REASON NO ANSWER IS REQUIRED TO QUESTION 2.