B-172169, AUG 11, 1971, 51 COMP GEN 91

B-172169, AUG 11, 1971, 51 COMP GEN 91

PAY - RETIRED - REVOCATION LIMITATIONS THE NOTICE TO A RESERVIST OF THE ARMED SERVICES UNDER 10 U.S.C. 1331(D) OF HIS ELIGIBILITY TO RETIRE PURSUANT TO CHAPTER 67 OF TITLE 10, U.S. CODE, UPON DISCOVERY THAT ALTHOUGH THE MEMBER MEETS THE 20 YEARS' SERVICE REQUIREMENT OF 1331(A)(2), HE DOES NOT SATISFY SECTION 1331(A)(3) TO THE EFFECT THE LAST 8 YEARS OF QUALIFYING SERVICE MUST HAVE BEEN AS A MEMBER OF A RESERVE COMPONENT OR THE WAR SERVICE REQUIREMENT OF SECTION 1331(C), AND THAT HE IS EXCLUDED FROM THE CHAPTER BY SECTION 1331(A)(4) BECAUSE HE IS ENTITLED TO RETIRED PAY UNDER "ANOTHER PROVISION OF LAW," SERVE TO VALIDATE ONLY THE SERVICE ELIGIBILITY REQUIREMENTS OF CLAUSES (2) AND (3) OF 10 U.S.C. 1331(A) SINCE FOR THE PURPOSE OF 10 U.S.C. 1406, LIMITING THE REVOCATION OF RETIRED PAY BECAUSE OF ERROR IN DETERMINING YEARS OF SERVICE UNDER SECTION 1331(A)(2), BOTH CLAUSES MUST BE READ TOGETHER, WHEREAS SECTION 1406 DOES NOT AFFECT THE PROHIBITIONS IN SECTIONS 1331(A)(4) AND 1331(C). MILITARY PERSONNEL - RESERVISTS - RETIREMENT - ELIGIBILITY DETERMINATION ERRONEOUS THE NOTIFICATION PURSUANT TO 10 U.S.C. 1331(D) TO A RESERVIST OF THE ARMED SERVICES OF HIS ELIGIBILITY TO RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 U.S. CODE, WHERE THE MEMBER HAS BEEN GRANTED RETIRED PAY PRIOR TO THE DISCOVERY OF HIS INELIGIBILITY IS CONCLUSIVE ONLY AS IT PERTAINS TO THE SERVICE ELIGIBILITY REQUIREMENT OF SECTION 1331(A)(2) - 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332 - AND SECTION 1331(A)(3) TO THE EFFECT THAT AT LEAST 8 YEARS OF QUALIFYING SERVICE MUST BE WITHIN THE CATEGORY NAMED IN SECTION 1332(A)(1), PROVIDED PAYMENT OF THE RETIRED PAY BEGAN AFTER OCTOBER 14, 1966, THE EFFECTIVE DATE OF PUBLIC LAW 89 652 (10 U.S.C. 1331(D)).

TO THE SECRETARY OF THE ARMY, AUGUST 11, 1971:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 10, 1971, WITH ENCLOSURES, FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY (FM), REQUESTING AN ADVANCE DECISION RELATING TO THE SCOPE OF THE LIMITATION ON REVOCATION OF THE ELIGIBILITY OF RESERVISTS TO RECEIVE RETIRED PAY UNDER CHAPTER 67 OF TITLE 10, U.S. CODE, AS IMPOSED BY PUBLIC LAW 89 652, APPROVED OCTOBER 14, 1966, 80 STAT. 902. THIS REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-A- 1120 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION STATES THAT THE DEPARTMENT OF THE ARMY HAS DENIED RETIRED PAY TO APPLICANTS WHO HAVE COMPLETED THE MINIMUM YEARS OF SERVICE REQUIRED BY SUBSECTION 1331(A)(2) BUT WHO HAVE FAILED TO MEET THE ADDITIONAL SERVICE REQUIREMENTS SPECIFIED IN SUBPARAGRAPHS 1331(A)(3) AND (A)(4) OR 1331(C), BASED ON AN OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, ON APRIL 24, 1968 (JAGA 1968/3801), WHICH WAS REAFFIRMED JANUARY 6, 1971. IN THIS REGARD, IT IS STATED THAT A REQUEST HAS BEEN RECEIVED FROM SERGEANT FIRST CLASS JOSEPH A. FOURNIER FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10, U.S. CODE, WHICH HAD BEEN PREVIOUSLY DENIED ON MARCH 19, 1969, BASED ON THE CITED ARMY JAG OPINION, BUT THAT SUCH REQUEST WAS RESUBMITTED BASED ON AN OPINION DATED JANUARY 6, 1970, RENDERED BY A STAFF JUDGE ADVOCATE, U.S. AIR FORCE, SETTING FORTH A CONTRARY VIEW.

IT IS STATED THAT THE RECORD IN SERGEANT FOURNIER'S CASE SHOWS THAT ON OCTOBER 15, 1968, HE WAS FURNISHED A LETTER OF ELIGIBILITY IN ACCORDANCE WITH PUBLIC LAW 89-652. HOWEVER, IT WAS SUBSEQUENTLY DISCOVERED THAT HIS SERVICE RECORD CONTAINED NO EVIDENCE THAT HE PERFORMED EXTENDED ACTIVE DUTY DURING ANY OF THE PERIODS REQUIRED BY SECTION 1331(C) OF TITLE 10, U.S.C.

IN VIEW OF THE CONFLICTING OPINIONS OF THE SERVICES WITH REGARD TO THE EFFECT OF PUBLIC LAW 89-652, THE FOLLOWING QUESTIONS ARE SUBMITTED FOR DECISION:

A. WHERE A RESERVIST HAS BEEN NOTIFIED, IN ACCORDANCE WITH 10 U.S.C. 1331(D), THAT HE HAS COMPLETED THE YEARS OF SERVICE REQUIRED FOR ELIGIBILITY FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10, DOES 10 U.S.C. 1406 REQUIRE PAYMENT OF RETIRED PAY IF IT IS SUBSEQUENTLY DISCOVERED THAT HE DID NOT HAVE THE REQUIRED "WARTIME" SERVICE (10 U.S.C. 1331(C)) OR DID NOT SERVE THE "LAST EIGHT YEARS IN A RESERVE COMPONENT" (10 U.S.C. 1331(A)(3))?

B. IF THE ANSWER TO A, ABOVE, IS AFFIRMATIVE, DOES THE SAME RULE APPLY IF THE MEMBER HAS BEEN GRANTED RETIRED PAY PRIOR TO THE DISCOVERY OF HIS INELIGIBILITY?

SECTION 1331 OF TITLE 10 - WHICH WAS DERIVED FROM TITLE III OF THE ACT OF JUNE 29, 1968, 62 STAT. 1087-1091 - PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(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.

(C) NO PERSON WHO, BEFORE AUGUST 16, 1945, WAS A RESERVE OF AN ARMED FORCE, OR A MEMBER OF THE ARMY WITHOUT COMPONENT OR OTHER CATEGORY COVERED BY SECTION 1332(A)(1) OF THIS TITLE EXCEPT A REGULAR COMPONENT, IS ELIGIBLE FOR RETIRED PAY UNDER THIS CHAPTER, UNLESS HE PERFORMED ACTIVE DUTY AFTER APRIL 5, 1917, AND BEFORE NOVEMBER 12, 1918, OR AFTER SEPTEMBER 8, 1940, AND BEFORE JANUARY 1, 1947, OR UNLESS HE PERFORMED ACTIVE DUTY (OTHER THAN FOR TRAINING) AFTER JUNE 26, 1950, AND BEFORE JULY 28, 1953.

UNDER CLAUSES (2) AND (3) OF SECTION 1331(A), AN OTHERWISE QUALIFIED MEMBER OR FORMER MEMBER IS ENTITLED TO RETIRED PAY IF HE HAS COMPLETED 20 YEARS OF SATISFACTORY FEDERAL SERVICE AND THE LAST 8 YEARS OF QUALIFYING SERVICE HAS BEEN PERFORMED AS A MEMBER OF A RESERVE COMPONENT. THESE TWO CLAUSES RELATE TO THE "YEARS OF SERVICE" REQUIREMENT IN DETERMINING QUALIFICATION FOR RETIRED PAY. CLAUSE (4) OF THE SAME SUBSECTION, HOWEVER, IS A PROHIBITION AGAINST THE PAYMENT OF RETIRED PAY UNDER CHAPTER 67, IF THE INDIVIDUAL IS ENTITLED TO RETIRED PAY "UNDER ANY OTHER PROVISION OF LAW."

CONCERNING SECTION 1331(C), AT THE TIME THE 1948 LAW WAS PASSED IT WAS RECOGNIZED THAT MANY RESERVISTS HAD PREVIOUSLY PARTICIPATED IN RESERVE PROGRAMS AND IN GRANTING FULL CREDIT FOR SUCH PRIOR RESERVE SERVICE, CONGRESS STIPULATED THAT FOR THOSE INDIVIDUALS WHO WERE MEMBERS OF A RESERVE COMPONENT PRIOR TO AUGUST 16, 1945, ONLY THOSE WHO SERVED ON ACTIVE DUTY DURING WORLD WAR I OR WORLD WAR II COULD BECOME ELIGIBLE FOR RETIRED PAY. FOR THOSE WHO HAD NO SUCH SERVICE THE ONLY MANNER IN WHICH THEY COULD SUBSEQUENTLY BECOME ENTITLED TO RETIRED PAY BENEFITS UNDER TITLE III WOULD BE AS THE RESULT OF ACTIVE SERVICE IN ONE OF THE LATER PERIODS OF WAR OR NATIONAL EMERGENCY BY SUBSEQUENT LEGISLATION.

IT APPEARS EVIDENT THEREFORE THAT THE LANGUAGE CONTAINED IN SUBSECTION (C) OF SECTION 1331 SERVED TO LIMIT A MEMBER'S OR FORMER MEMBER'S ELIGIBILITY TO QUALIFY FOR RETIREMENT UNDER SUBSECTION (A) OF THAT SECTION TO THOSE RESERVISTS WHO HAD SERVED IN WARTIME OR DURING A SPECIFIC PERIOD OF NATIONAL EMERGENCY.

SUBSECTION (D) WAS ADDED TO SECTION 1331 OF TITLE 10, BY SECTION 1 OF THE ACT OF OCTOBER 14, 1966, PUBLIC LAW 89-652, 80 STAT. 902, WHICH READS AS FOLLOWS:

(D) THE SECRETARY CONCERNED SHALL PROVIDE FOR NOTIFYING EACH PERSON WHO HAS COMPLETED THE YEARS OF SERVICE REQUIRED FOR ELIGIBILITY FOR RETIRED PAY UNDER THIS CHAPTER. THE NOTICE MUST BE SENT, IN WRITING, TO THE PERSON CONCERNED WITHIN ONE YEAR AFTER HE HAS COMPLETED THAT SERVICE.

THE SAME LAW ALSO ADDED A NEW SECTION 1406 TO CHAPTER 71 OF TITLE 10 AS FOLLOWS:

SEC 1406. LIMITATIONS ON REVOCATION OF RETIRED PAY.

AFTER A PERSON HAS BEEN GRANTED RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE, OR HAS BEEN NOTIFIED IN ACCORDANCE WITH SECTION 1331(D) OF THIS TITLE THAT HE HAS COMPLETED THE YEARS OF SERVICE REQUIRED FOR ELIGIBILITY FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE, THE PERSON'S ELIGIBILITY FOR RETIRED PAY MAY NOT BE DENIED OR REVOKED ON THE BASIS OF ANY ERROR, MISCALCULATION, MISINFORMATION, OR ADMINISTRATIVE DETERMINATION OF YEARS OF SERVICE PERFORMED AS REQUIRED BY SECTION 1331(A)(2) OF THIS TITLE, UNLESS IT RESULTED DIRECTLY FROM THE FRAUD OR MISREPRESENTATION OF THE PERSON. THE NUMBER OF YEARS OF CREDITABLE SERVICE UPON WHICH RETIRED PAY IS COMPUTED MAY BE ADJUSTED TO CORRECT ANY ERROR, MISCALCULATION, MISINFORMATION, OR ADMINISTRATIVE DETERMINATION AND WHEN SUCH A CORRECTION IS MADE THE PERSON IS ENTITLED TO RETIRED PAY IN ACCORDANCE WITH THE NUMBER OF YEARS OF CREDITABLE SERVICE, AS CORRECTED, FROM THE DATE HE IS GRANTED RETIRED PAY.

THE PRIMARY PURPOSE OF PUBLIC LAW 89-652, AS SHOWN BY ITS LEGISLATIVE HISTORY, IS TO REQUIRE THAT A RESERVIST WHO COMPLETES "20 YEARS OF SATISFACTORY FEDERAL SERVICE" BE FURNISHED A NOTIFICATION IN WRITING THAT HE HAS COMPLETED SUCH SERVICE. A PERSON'S ELIGIBILITY FOR SUCH RETIRED PAY BASED ON SUCH NOTIFICATION MAY NOT BE DENIED OR REVOKED UNLESS IT IS SHOWN THAT AN ERROR AS TO THIS MATTER RESULTED FROM FRAUD OR A MISREPRESENTATION. SEE SENATE REPORT NO. 1693, DATED OCTOBER 6, 1966, TO ACCOMPANY H.R. 5297, WHICH BECAME PUBLIC LAW 89-652. IT IS EXPLAINED IN THE LEGISLATIVE HISTORY OF H.R. 5297 THAT THE POINT SYSTEM OF CREDITING RESERVE ACTIVE DUTY IN ONE OF SEVERAL DIFFERENT WAYS HAS MADE IT DIFFICULT FOR RESERVISTS AS WELL AS THE SERVICES CONCERNED TO AVOID ERRORS IN DETERMINING WHEN 20 YEARS OF SATISFACTORY FEDERAL SERVICE HAS BEEN COMPLETED WITH THE RESULT THAT RESERVISTS HAVE RECEIVED ERRONEOUS INFORMATION THAT THEY HAVE COMPLETED SUCH YEARS OF SERVICE.

IN EXAMINING THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-652 WE ALSO NOTED THE CONCLUSIVENESS PROVISION OF A PREDECESSOR BILL, H.R. 7357, 88TH CONGRESS. WHILE THE LANGUAGE OF SECTION 1406, AS ADDED BY SECTION 2 OF PUBLIC LAW 89-652, MIGHT SEEM TO LIMIT THE CONCLUSIVENESS PROVISION WITH RESPECT TO ADMINISTRATIVE DETERMINATIONS TO "YEARS OF SERVICE PERFORMED AS REQUIRED BY SECTION 1331(A)(2)" OF TITLE 10, THERE IS FOR CONSIDERATION THE FACT THAT THE 20 YEARS OF SATISFACTORY FEDERAL SERVICE IN CLAUSE (2) INCLUDES THE LAST 8 YEARS OF QUALIFYING SERVICE PRESCRIBED IN CLAUSE (3).

CLAUSES (2) AND (3) OF SECTION 1331(A), TITLE 10, U.S. CODE, WERE DERIVED FROM SECTION 302A, TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087. AS ORIGINALLY ENACTED, SECTION 302A AUTHORIZED THE PAYMENT OF RETIRED PAY FOR NON-REGULAR SERVICE, TO A PERSON WHO IS AT LEAST 60 YEARS OF AGE AND HAS PERFORMED AT LEAST 20 YEARS OF SATISFACTORY SERVICE. THE FIRST PROVISO OF SECTION 302A EXPRESSLY PROVIDED THAT "FOR THE PURPOSES OF THIS SECTION THE LAST 8 YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT *** ." THUS, UNDER THE LANGUAGE OF SECTION 302A THE TOTAL YEARS OF SERVICE REQUIREMENT INCLUDED THE LAST 8 YEARS OF QUALIFYING SERVICE. THE PROVISIONS OF TITLE III, WHICH WERE SUPERSEDED BY CHAPTER 67, 10 U.S.C. 1331-1337, WERE RESTATED IN THE ACT OF AUGUST 10, 1956, WITHOUT SUBSTANTIVE CHANGE. SEE SECTION 49A OF THAT ACT, 70A STAT. 640.

WHILE THE REFERENCE TO SECTION 1331(A)(2) IN 10 U.S.C. 1406 GIVES RISE TO SOME UNCERTAINTY AS TO THE SCOPE OF THE ASSURANCE INTENDED TO BE AFFORDED BY THE LATTER SECTION, IT IS OUR VIEW THAT CLAUSE (3) OF SECTION 1331(A) MUST BE READ IN CONJUNCTION WITH CLAUSE (2) FOR PURPOSES OF SECTION 1406 AND THAT THE YEARS OF SERVICE REQUIREMENT IN CLAUSE (3) OF SECTION 1331(A) COMES WITHIN THE SCOPE OF SECTION 1406.

IN ANSWER TO QUESTION A, AN OFFICIAL NOTIFICATION OPERATES TO VALIDATE ONLY THE SERVICE ELIGIBILITY REQUIREMENTS OF CLAUSES (2) AND (3) OF 10 U.S.C. 1331(A). NEITHER THE PROHIBITION IN SECTION 1331(A)(4), AGAINST PAYMENT OF TITLE III RETIRED PAY TO ONE ENTITLED TO RETIRED PAY UNDER ANOTHER LAW, NOR THE PROHIBITION IN SUBSECTION (C) OF SECTION 1331, PRECLUDING THE PAYMENT OF RETIRED PAY UNLESS ACTIVE DUTY IS PERFORMED DURING ANY OF THE SPECIFIED PERIODS OF WAR OR NATIONAL EMERGENCY, IS AFFECTED BY THE CONCLUSIVENESS PROVISION OF SECTION 1406 OF TITLE 10.

CONCERNING QUESTION B, THE NOTIFICATION IN THE CASE OF A MEMBER WHO HAS BEEN GRANTED RETIRED PAY PRIOR TO THE DISCOVERY OF HIS INELIGIBILITY WOULD BE CONCLUSIVE ONLY AS IT PERTAINS TO THE SERVICE ELIGIBILITY REQUIREMENT OF CLAUSES (2) AND (3) OF SECTION 1331(A), PROVIDED PAYMENT OF THAT RETIRED PAY BEGAN AFTER OCTOBER 14, 1966, THE EFFECTIVE DATE OF PUBLIC LAW 89-652. IN THIS CONNECTION SEE SECTION 3 OF PUBLIC LAW 89-652.