B-113387, AUGUST 25, 1958, 38 COMP. GEN. 146

B-113387, AUGUST 25, 1958, 38 COMP. GEN. 146

MILITARY PERSONNEL - RETIRED PAY - ADJUSTMENT - SEAGRAVE V. UNITED STATES - EFFECTIVE DATE - QUALIFICATION V. APPLICATION THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, UPON APPROVAL OF AN APPLICATION FOR RETIRED PAY, WILL BE CONSIDERED TO ACCRUE FROM THE DATE THE MEMBER QUALIFIES BY REASON OF AGE AND SERVICE FOR SUCH PAY IN CONSONANCE WITH THE HOLDING IN SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790, SUBJECT, HOWEVER, TO THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, WHICH POSTPONES THE RIGHT TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE MEMBER QUALIFIES, IF THE QUALIFICATION IS AFTER DECEMBER 31, 1948. THE HOLDING IN DECISION OF THE COMPTROLLER GENERAL, 37 COMP. GEN. 653, WITH RESPECT TO THE EFFECTIVE DATE FOR RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, IS APPLICABLE TO ALL MEMBERS WHO QUALIFY BY REASON OF AGE AND SERVICE UNDER THAT ACT AND UNDER THE PROVISIONS OF 10 U.S.C. 1331 AND IS NOT LIMITED TO THOSE MEMBERS WHO MET THE AGE AND SERVICE REQUIREMENTS ON OR PRIOR TO JUNE 28, 1948--- THE DATE OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. UNDER THE DECISION OF THE COMPTROLLER GENERAL, 37 COMP. GEN. 653, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED, UPON THE FILING OF AN APPLICATION THEREFOR, TO RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 FROM THE DATE OF QUALIFICATION FOR SUCH PAY OR FROM A LATER DATE STIPULATED IN THE APPLICATION, SUBJECT, IN EITHER EVENT, TO THE UNIFORM RETIREMENT DATE ACT IN CASES WHERE THE EFFECTIVE DATE OF ENTITLEMENT IS AFTER DECEMBER 31, 1948, PRIOR INCONSISTENT DECISIONS WERE MODIFIED ACCORDINGLY. A MEMBER OF THE UNIFORMED SERVICES WHO IS RETAINED IN THE SERVICE AFTER MEETING THE STATUTORY AGE AND SERVICE REQUIREMENTS FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. IS ENTITLED TO CREDIT FOR SUCH SERVICE UNDER 10 U.S.C. 676 AND TO INCREASE THE MONTHLY BASIC PAY FACTOR UNDER 10 U.S.C. 1401 FOR PURPOSES OF INCREASED RETIREMENT BENEFITS. THE RETENTION IN THE UNIFORMED SERVICE OF MEMBERS WHO QUALIFY FOR RETIRED PAY BY REASON OF MEETING THE STATUTORY AGE AND SERVICE REQUIREMENTS UPON ORDER OF THE SECRETARY AS PRESCRIBED IN 10 U.S.C. 676 MAY BE ACCOMPLISHED BY ANY METHOD DEEMED APPROPRIATE, WHETHER BY GENERAL DIRECTIVES OR OTHERWISE. MEMBERS OF THE UNIFORMED SERVICES WHO ARE ALREADY QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. AND WHO ARE RETAINED IN THE SERVICE PURSUANT TO 10 U.S.C. 676 MAY CONTINUE TO ACCUMULATE SERVICE CREDIT AND INCREASE THE MONTHLY BASIC PAY FACTOR UNDER 10 U.S.C. 1401 SUBJECT ONLY TO THE RESTRICTIONS APPLICABLE TO RESERVE OFFICERS IN 50 U.S.C. 1393 (A). MODIFIED BY 38 COMP. GEN. 246. IN THE ABSENCE OF A SECRETARIAL ORDER UNDER 10 U.S.C. 676 FOR THE RETENTION IN THE UNIFORMED SERVICES OF MEMBERS WHO ARE ELIGIBLE FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S. CODE, ADDITIONAL SERVICE CREDITS WOULD NOT BE AUTHORIZED. ALTHOUGH INACTIVE RETIRED OR RESERVE SERVICE AFTER A MEMBER QUALIFIES FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF U.S.C. IS NOT CREDITABLE IN THE COMPUTATION OF RETIRED PAY EXCEPT AS SUCH CREDITING IS AUTHORIZED BY 10 U.S.C. 676, ACTIVE DUTY PERFORMED AFTER QUALIFICATION UPON ORDER OF THE SECRETARY IS CREDITABLE TO INCREASE RETIRED PAY. INACTIVE DUTY TRAINING PERFORMED BY A MEMBER AFTER QUALIFICATION FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. IS CREDITABLE TO INCREASE RETIRED PAY ONLY IF THE MEMBER IS RETAINED IN A RESERVE COMPONENT OTHER THAN THOSE LISTED IN 10 U.S.C. 1332 (B) AND SUCH RETENTION IS BY ORDER OF THE SECRETARY CONCERNED PRESCRIBED IN 10 U.S.C. 676. IN ANY INSTANCE OF SERVICE CREDITS ACQUIRED BY MEMBERS OF THE UNIFORMED SERVICES AFTER QUALIFICATION FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S. CODE, THE TERMINAL DATE FOR COMPUTATION OF SUCH CREDITS AND THE MONTHLY BASIC PAY FACTOR IN 10 U.S.C. 1401 SHOULD BE THE DATE OF RELEASE FROM ACTIVE DUTY OR OF RELEASE FROM SERVICE IN A RESERVE COMPONENT. THE ACCRUAL DATE FOR CLAIMS BY MEMBERS OF THE UNIFORMED SERVICES QUALIFYING FOR RETIRED PAY TO AND INCLUDING DECEMBER 31, 1948, UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. BEING JANUARY 1, 1949, THE TEN YEAR STATUTE OF LIMITATIONS FOR CONSIDERATION OF CLAIMS AGAINST THE UNITED STATES IN 31 U.S.C. 237 PRECLUDES CONSIDERATION OF CLAIMS FILED AFTER JANUARY 1, 1959. IN THE DETERMINATION OF THE EFFECTIVE DATE OF DEDUCTIONS FROM RETIRED PAY FOR SURVIVORS' ANNUITIES UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 FOR MEMBERS WHO ARE ENTITLED TO RETIRED PAY ADJUSTMENT AS A RESULT OF THE HOLDING IN SEAGRAVE V. UNITED STATES, 130 C.1CLS. 790, THE RETROACTIVE DATE SPECIFIED IN THE AMENDED ORDERS OR NOVEMBER 1, 1953--- THE EFFECTIVE DATE OF THE ACT--- WHICHEVER IS LATER, MUST BE USED AND THE DEDUCTIONS WILL BE ON THE BASIS OF A LOWER AGE THAN THAT ORIGINALLY USED IN THE COMPUTATION OF DEDUCTIONS. IN CASES OF RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR MEMBERS OF THE UNIFORMED SERVICES AS A RESULT OF THE HOLDING IN SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790, THE COST OF SURVIVORS' ANNUITIES UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 SHOULD BE READJUSTED AND BASED ON THE NEW RATE OF RETIRED PAY. MEMBERS OF THE UNIFORMED SERVICES WHO DID NOT MAKE APPLICATION FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. BEFORE THEIR DEATHS HAD NO PERFECTED RIGHT TO RETIRED PAY AND NO UNPAID RETIRED PAY WOULD BE DUE UPON DEATH WHICH COULD PASS ON TO A MEMBER'S BENEFICIARY, HEIRS OR ESTATE. IN THE CASE OF A DECEASED MEMBER OF THE UNIFORMED SERVICE WHO FILED AN APPLICATION FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S. CODE, AND WHO NOW WOULD BE ENTITLED, IF LIVING, TO RETROACTIVE RETIRED PAY AS A RESULT OF THE HOLDING IN THE SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790, SUCH RETROACTIVE RETIRED PAY SHOULD BE DISTRIBUTED TO HIS WIDOW PURSUANT TO THE ACT OF JULY 12, 1955, 37 U.S.C. 361, UNLESS THE DECEASED MEMBER HAD EXECUTED A BENEFICIARY DESIGNATION, IN WHICH CASE THE BENEFICIARY WOULD TAKE BEFORE THE WIDOW AND ALL OTHER POTENTIAL DISTRIBUTEES. MEMBERS OF THE UNIFORMED SERVICES WHO ALREADY ARE RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 MAY ELECT THE DATES THEY WERE ORIGINALLY RETIRED AS THE EFFECTIVE DATES OF THEIR RETIREMENT, RELINQUISHING ALL CLAIMS TO RETROACTIVE RETIRED PAY UNDER THE DOCTRINE OF SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790.

TO THE SECRETARY OF DEFENSE, AUGUST 25, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 9, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS OF ENTITLEMENT TO RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, SUPERSEDED BY CHAPTER 67, 10 U.S. CODE, AUGUST 10, 1956. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 213, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 1 OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A, PROVIDES:

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID FIRST DAY OF THE MONTH FOR RETIREMENTS MADE AFTER JULY 1, 1930, AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS SECTION HAD NOT BEEN ENACTED.

THE ABOVE PROVISIONS WERE AMENDED BY THE ACT OF AUGUST 2, 1956, 70 STAT. 933, 5 U.S.C. 47A, AS TO DISABILITY RETIREMENTS, A MATTER NOT PERTINENT HERE.

SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036A (A), PROVIDED, IN PERTINENT PART, THAT:

ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933, THE UNITED STATES NAVY INCLUDING THE RESERVE COMPONENTS THEREOF, THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY * * *.

WE ORIGINALLY HELD THAT RETIRED PAY UNDER THE ABOVE SECTION 302, 10 U.S.C. 1036A, WAS PAYABLE FROM DATE OF QUALIFICATION, IF SUCH DATE WAS DURING THE PERIOD JUNE 29 TO DECEMBER 31, 1948, AND APPLICATION THEREFOR WAS TIMELY MADE, AND THAT SUCH RETIRED PAY WAS PAYABLE IN ALL OTHER CASES FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION WAS FILED OR FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT INITIALLY MET THE STATUTORY AGE AND SERVICE REQUIREMENTS, WHICHEVER WAS LATER. SEE 28 COMP. GEN. 321, AS MODIFIED BY 30 COMP. GEN. 287. IN OTHER WORDS, IT WAS HELD, AN APPROVED APPLICATION BEING A REQUISITE IN ALL CASES OF ENTITLEMENT TO TITLE III RETIRED PAY, THAT IN CERTAIN CASES IN WHICH QUALIFICATION FOR SUCH PAY WAS ACHIEVED ON OR BEFORE DECEMBER 31, 1948, THE RIGHT THERETO ACCRUED FROM JUNE 29, 1948, OR FROM DATE OF QUALIFICATION, WHICHEVER WAS LATER, THE UNIFORM RETIREMENT DATE ACT HAVING NO APPLICATION; AND THAT IN ALL OTHER CASES THE RIGHT ACCRUED FROM THE DATE OF THE FILING OF AN APPLICATION OR FROM THE DATE OF QUALIFICATION, WHICHEVER WAS LATER, SUBJECT IN EITHER EVENT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, POSTPONING THE RIGHT TO RETIRED PAY TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RIGHT OTHERWISE WOULD HAVE VESTED.

IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790, THE PLAINTIFF WAS QUALIFIED FOR TITLE III RETIRED PAY ON JUNE 29, 1948. HE MADE APPLICATION MARCH 12, 1951, AND WAS PAID SUCH PAY FROM APRIL 1, 1951, IN ACCORDANCE WITH OUR DECISIONS ABOVE. THE COURT AWARDED HIM PAY FROM JUNE 29, 1948, TO MARCH 31, 1951, CONCEDING THAT AN APPLICATION WAS A REQUISITE FOR SUCH PAY, BUT HOLDING THAT WHEN MADE AND APPROVED, AN APPLICATION SECURED THE RIGHT TO PAY FROM THE DATE THE MAN OTHERWISE WAS ENTITLED THERETO.

WE AT FIRST REFUSED TO FOLLOW THE SEAGRAVE HOLDING. SEE 35 COMP. GEN. 563. THE THEORY OF THE SEAGRAVE CASE WAS FOLLOWED BY THE COURT OF CLAIMS IN HYDE V. UNITED STATES, 134, C.1CLS. 690, AND IN STEVANUS V. UNITED STATES, 138 C.1CLS. 149. HYDE AND STEVANUS, LIKE SEAGRAVE, HAD MET THE AGE AND SERVICE REQUIREMENTS FOR TITLE III RETIRED PAY ON JUNE 29, 1948.

WE HELD IN B-113387, APRIL 1, 1958, 37 COMP. GEN. 653, THAT WE WOULD FOLLOW THE PRINCIPLE OF THE SEAGRAVE CASE AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS. IN OTHER WORDS, WE WILL, IN CONFORMITY WITH THE COURT'S HOLDINGS, CONSIDER THAT, WHEN AN APPLICATION FOR TITLE III RETIRED PAY HAS BEEN APPROVED, THE RIGHT TO SUCH PAY ACCRUES FROM THE DATE OF QUALIFICATION FOR SUCH PAY. NO REFERENCE WAS MADE IN THE DECISION OF APRIL 1, 1958, TO THE UNIFORM RETIREMENT DATE ACT.

THE QUESTIONS, PRESENTED IN COMMITTEE ACTION NO. 213, ARE SEPARATELY QUOTED AND ANSWERED BELOW.

QUESTION 1

IS THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES DATED 1 APRIL 1958, B-113387, APPLICABLE ONLY TO THOSE PERSONS WHO WERE SIXTY YEARS OF AGE AND MET THE SERVICE REQUIREMENTS OF TITLE III, PUBLIC LAW 810, 80TH CONGRESS 62 STAT. 1087, (NOW CONTAINED IN 10 U.S.C. 1331) ON OR PRIOR TO 28 JUNE 1948?

THE DECISION OF APRIL 1, 1958, WAS INTENDED TO APPLY TO ALL TITLE III RETIRED PAY CASES. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2

IF THE DECISION IS APPLICABLE TO PERSONS WHO REACHED AGE SIXTY SUBSEQUENT TO 28 JUNE 1948 ARE SUCH PERSONS ENTITLED TO RETIRED PAY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH WHICH AGE 60 IS ATTAINED OR FROM THE 60TH BIRTHDAY?

THIS QUESTION AND SEVERAL FOLLOWING ONES MAKE REFERENCE TO THE REACHING OF AGE 60, BUT DO NOT MENTION THE MEETING OF THE REQUIREMENT OF 20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE. IT IS ASSUMED THAT IN EACH SUCH QUESTION THE INDIVIDUAL CONCERNED HAD MET THE STATUTORY SERVICE REQUIREMENTS WHEN HE BECAME 60 YEARS OF AGE.

THE DECISION OF APRIL 1, 1958, DID NOT MODIFY OUR PRIOR POSITION AS TO CASES OF ENTITLEMENT TO TITLE III RETIRED PAY WHERE AGE AND SERVICE REQUIREMENTS WERE MET ON OR BEFORE DECEMBER 31, 1948, AND APPLICATION FOR SUCH PAY WAS TIMELY FILED. PRESUMABLY, IN ALL SUCH CASED TITLE III RETIRED PAY ALREADY HAS BEEN PAID FROM JUNE 29, 1948, OR FROM DATE OF QUALIFICATION, WHICHEVER WAS LATER. HOWEVER, THE ABOVE DECISION DID MODIFY OUR PRIOR HOLDINGS THAT IN ALL OTHER CASES ENTITLEMENT COULD NOT ACCRUE FOR ANY PERIOD PRIOR TO THE FILING OF AN APPLICATION. AS TO SUCH OTHER CASE, WE NOW HOLD THAT WHEN AN APPLICATION IS FILED AND APPROVED, THE RIGHT TO TITLE III RETIRED PAY ACCRUED, SUBJECT TO THE UNIFORM RETIREMENT DATE ACT IN CASES OF QUALIFICATION AFTER DECEMBER 31, 1948, FROM THE DATE OF QUALIFICATION (UNLESS THE APPLICATION SPECIFIED A LATER DATE, SEE ANSWER TO QUESTION (4) BELOW). THE DECISION OF APRIL 1, 1958, DID NOT MODIFY OUR PRIOR HOLDINGS AS TO THE APPLICABILITY OF THE UNIFORM RETIREMENT DATE ACT TO ALL CASES OF TITLE III RETIRED PAY WHERE DATE OF QUALIFICATION IS AFTER DECEMBER 31, 1948.

IT FOLLOWS, THEN, THAT IN TITLE III RETIRED PAY CASES WHERE QUALIFICATION WAS ACHIEVED BEFORE JANUARY 1, 1949, THE INDIVIDUALS CONCERNED, IF THERE BY ANY WHO HAVE NOT BEEN PAID, WILL BE ENTITLED, UPON APPROVAL OF THEIR APPLICATIONS, TO BE PAID FROM DATES OF QUALIFICATION OR FROM ANY SUBSEQUENT DATES STIPULATED BY THEM (ANSWER TO QUESTION 4 BELOW). IF THE EFFECTIVE DATE FOR PAY IS BEFORE JANUARY 1, 1949, THE EFFECTIVE DATE IS AFTER DECEMBER 31, 1948, THE UNIFORM RETIREMENT DATE ACT WILL APPLY. CASES WHERE QUALIFICATION IS ACHIEVED AFTER DECEMBER 31, 1948, THE INDIVIDUALS CONCERNED WILL BE ENTITLED, UPON APPROVAL OF THEIR APPLICATIONS, TO BE PAID FROM DATE OF QUALIFICATION OR FROM LATER DATES STIPULATED BY THEM, SUBJECT IN EITHER EVENT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT.

QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTION 3

WILL PERSONS QUALIFYING FOR RETIRED PAY PURSUANT TO 10 U.S.C. 1331 IN THE FUTURE BE AUTHORIZED SUCH PAY FROM THE 60TH BIRTHDAY OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH AGE 60 IS REACHED, IRRESPECTIVE OF THE DATE AN APPLICATION FOR RETIRMENT IS RECEIVED?

THIS QUESTION IS ANSWERED BY SAYING THAT THE INDIVIDUALS THEREIN REFERRED TO WILL BE ENTITLED TO BE PAID TITLE III RETIRED PAY, SUBJECT TO STATUTES OF LIMITATIONS, FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEY QUALIFY FOR SUCH PAY, OR FROM THE FIRST DAY OF ANY SUBSEQUENT MONTH DESIGNATED BY THEM, IRRESPECTIVE OF WHEN APPLICATIONS FOR SUCH PAY ARE RECEIVED IN THE DEPARTMENT CONCERNED.

QUESTION 4

CERTAIN PERSONNEL ARE AUTHORIZED TO BE RETAINED IN AN ACTIVE STATUS IN THE ARMY RESERVE OR ARMY NATIONAL GUARD UNTIL AGE 62 AND 64. IF PERSONS IN THE ABOVE CATEGORY ACTIVELY PARTICIPATE IN THE RESERVE PROGRAM AND ACCRUE ADDITIONAL RETIREMENT POINTS AFTER AGE 60, IS RETIREMENT AUTHORIZED RETROACTIVE TO AGE 60 WITH A REDUCTION IN POINTS; THE FIRST DAY OF THE MONTH FOLLOWING RECEIPT OF THE APPLICATION; OR, WILL RETIRED PAY BE EFFECTIVE ON A DATE SPECIFIED BY THE OFFICER?

SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, PROVIDED THAT A QUALIFIED INDIVIDUAL "SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY.' IS PROVIDED IN 10 U.S.C. 1331, THAT "* * * A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY * * *" IF HE HAS MET THE STATUTORY AGE AND SERVICE REQUIREMENTS THEREFOR.

THE STATUTES DO NOT SAY, NOR DO WE THINK THAT THEY IMPLY, THAT AN APPLICATION FOR TITLE III RETIRED PAY CANNOT BE ENTERTAINED UNLESS SUCH PAY IS REQUESTED FROM THE EARLIEST POSSIBLE DATE. THE INFERENCE THAT IT WAS INTENDED THAT AN APPLICATION MIGHT BE MADE AND APPROVED FOR TITLE III PAY BEGINNING AT OTHER THAN THE EARLIEST POSSIBLE DATE IS SUPPORTED BY SECTION 302 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, 10 U.S.C. 1036A (E), WHICH PROVIDED THAT:

ANY PERSON WHO, UPON ATTAINING THE AGE OF SIXTY YEARS, HAS QUALIFIED FOR RETIREMENT WITH PAY PURSUANT TO THIS TITLE, MAY, WITH HIS CONSENT AND BY ORDER OF THE COGNIZANT SECRETARY, BE RETAINED ON DUTY TO PERFORM FEDERAL SERVICE. ANY PERSON SO RETAINED SHALL BE CREDITED WITH EQUIVALENT PERIODS OF FEDERAL SERVICE FOR THE PERFORMANCE OF SUCH DUTIES.

THE ABOVE PROVISIONS NOW ARE INCORPORATED IN 10 U.S.C. 676, WHICH READS AS FOLLOWS:

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 THAT SERVICE FOR ALL PURPOSES.

QUESTION 4 IS ANSWERED BY SAYING THAT, SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, A QUALIFIED INDIVIDUAL MAY SPECIFY THE EFFECTIVE DATE FOR THE ACCRUAL OF HIS RIGHTS TO TITLE III RETIRED PAY.

QUESTION 5

IN ACCORDANCE WITH 10 U.S.C. 676 A PERSON WHO HAS QUALIFIED FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10, U.S.C., WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, MAY BE RETAINED IN SERVICE AND CREDITED WITH SUCH SERVICE FOR ALL PURPOSES:

A. DOES THE DECISION OF 1 APRIL 1958, B-113387, IMPLY ANY CURTAILMENT OF SERVICE CREDIT ACQUIRED AFTER QUALIFICATION IN ACCORDANCE WITH 10 U.S.C. 676, ABOVE, WHICH CREDIT, IF NOT SO CURTAILED, MIGHT OTHERWISE OPERATE TO INCREASE RETIREMENT BENEFITS?

B. DOES SUCH DECISION IN ANY MANNER AFFECT THE MONTHLY BASIC PAY FACTOR (10 U.S.C. 1401) WHICH, AFTER QUALIFICATION IN ACCORDANCE WITH 10 U.S.C. 676, ABOVE, IF NOT SO AFFECTED, MIGHT OTHERWISE OPERATE TO INCREASE RETIREMENT BENEFITS?

C. ASSUMING CONSENT UNDER 10 U.S.C. 676, WHAT WOULD BE THE REQUISITES OF AN "ORDER OF THE SECRETARY CONCERNED" SO AS TO CONSTITUTE A VALID RETENTION FOR ALL PURPOSES INCLUDING PAST ORDERS, UNDER SAID SECTION?

D. ASSUMING CONSENT AND A SECRETARIAL ORDER FOR RETENTION PURSUANT TO 10 U.S.C. 676 IN THE CASE OF A PERSON ALREADY QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S.C., MAY SUCH PERSON CONTINUE TO ACCUMULATE SERVICE CREDIT AND INCREASE HIS MONTHLY BASIC PAY FACTOR (10 U.S.C. 1401) WITHOUT LIMITATION AS TO AGE UNTIL SUCH ORDER IS TERMINATED BY THE SECRETARY?

QUESTION 5 (A) IS ANSWERED IN THE NEGATIVE. COMPARE ANSWER TO QUESTION 4.

QUESTION 5 (B) IS ANSWERED IN THE NEGATIVE.

IN CONNECTION WITH QUESTION 5 (C), IT IS STATED, AT PAGE 5 OF COMMITTEE ACTION NO. 213, THAT:

* * * HOWEVER, A SUBSTANTIAL AREA OF DOUBT EXISTS AS TO WHAT WOULD BE THE REQUISITES (OF) A VALID SECRETARIAL ORDER FOR RETENTION IN SUCH CASES, WHETHER A FORMAL WRITTEN ORDER TO THE MEMBER FROM THE SECRETARY MIGHT BE REQUIRED, OR WHETHER A GENERAL DIRECTIVE WOULD SUFFICE, OR WHETHER RETENTION DE FACTO ACCOMPLISHED WOULD BE SUFFICIENT, IF, FOR INSTANCE, CREDITABLE TRAINING WERE PERFORMED, DRILLS ATTENDED, COURSES TAKEN, WHICH WOULD NORMALLY BE ACCEPTABLE AS SATISFACTORY FEDERAL SERVICE. IT APPEARS THAT THE PURPOSE OF 10 U.S.C. 676 WAS TO PERMIT THE ARMED SERVICES TO UTILIZE THE SERVICES OF SUCH MEMBERS WITH THEIR CONSENT IF PERFORMED WITH THE APPROVAL OF THE SECRETARY CONCERNED. WE THINK THAT THE SEVERAL SECRETARIES MAY CONTROL THE PERFORMANCE OF SERVICE BY MEMBERS AFTER ATTAINING AGE 60 BY ANY METHOD THEY MAY DEEM APPROPRIATE, WHETHER BY GENERAL DIRECTIVES OR OTHERWISE. HENCE WE WILL NOT OBJECT TO THE CREDITING OF SUCH SERVICE IF IT IS PERFORMED UNDER COMPETENT ORDERS EVEN THOUGH THEY MAY BE GENERAL IN NATURE. QUESTION 5 (C) IS ANSWERED ACCORDINGLY.

50 U.S.C. 1393 (A), SUPP. V, 1952 USED., PROVIDES:

A RESERVE OFFICER, IF OTHERWISE QUALIFIED, SHALL BE TRANSFERRED TO THE RETIRED RESERVE ON THE DATE UPON WHICH HE BECOMES SIXTY-TWO YEARS OF AGE, EXCEPT THAT A RESERVE OFFICER INITIALLY APPOINTED PRIOR TO JANUARY 1, 1953, AT SUCH AGE THAT COMPLETION OF TWENTY YEARS OF SATISFACTORY FEDERAL SERVICE FOR RETIREMENT PURPOSES CANNOT BE ACCOMPLISHED BY AGE SIXTY-TWO MAY BE RETAINED IN AN ACTIVE STATUS NOT LATER THAN THE DATE UPON WHICH HE BECOMES SIXTY-FOUR YEARS OF AGE.

QUESTION 5 (D) IS ANSWERED BY SAYING THAT THE RETENTION IS SUBJECT TO THE RESTRICTIONS OF SECTION 1393 (A), QUOTED ABOVE.

QUESTION 6

DOES 10 U.S.C. 676 OPERATE TO CURTAIL ACQUISITION OF SERVICE CREDIT AFTER ATTAINING AGE 60, IF OTHERWISE QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S.C. UPON ATTAINING SUCH AGE, IN THE ABSENCE OF ANY SECRETARIAL ORDER FOR RETENTION?

SINCE THE PROVISIONS OF 10 U.S.C. 676 APPEAR TO REQUIRE AN ORDER BY THE SECRETARY CONCERNED TO AUTHORIZE THE ACQUISITION OF SERVICE CREDITS AFTER QUALIFICATION FOR TITLE III RETIRED PAY, QUESTION 6 IS ANSWERED BY SAYING THAT SUCH PROVISIONS WOULD NOT AUTHORIZE ADDITIONAL SERVICE CREDITS IN THE ABSENCE OF SUCH AN ORDER.

QUESTION 7

DOES 10 U.S.C. 676 OPERATE TO AFFECT THE MONTHLY BASIC PAY FACTOR (10 U.S.C. 1401) AFTER ATTAINING AGE 60, IF OTHERWISE QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S.C. UPON ATTAINING SUCH AGE, IN THE ABSENCE OF ANY SECRETARIAL ORDER FOR RETENTION?

SECTION 303 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, SUPERSEDED BY 10 U.S.C. 1401, PROVIDED FOR THE COMPUTATION OF AN INDIVIDUAL'S RETIRED PAY UNDER TITLE III OF THAT ACT USING AS ONE FACTOR, THE "ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY.' GENERALLY, INACTIVE SERVICE ON A RETIRED LIST DOES NOT OPERATE TO INCREASE RETIRED PAY AND IT IS OUR VIEW THAT INACTIVE (RETIRED OR RESERVE) SERVICE AFTER A MEMBER IS QUALIFIED FOR TITLE III RETIRED PAY SHOULD NOT BE CREDITED IN THE COMPUTATION OF HIS RETIRED PAY EXCEPT AS SUCH CREDITING MAY BE AUTHORIZED BY 10 U.S.C. 676. IT IS ASSUMED THAT ANY ACTIVE DUTY PERFORMED BY A MEMBER AFTER HE HAS QUALIFIED FOR TITLE III RETIRED PAY, WOULD BE PERFORMED UPON ORDER OF THE SECRETARY CONCERNED AND, IF SO, IT WOULD BE CREDITABLE UNDER 10 U.S.C. 676 TO INCREASE RETIRED PAY. INACTIVE DUTY TRAINING PERFORMED BY A MEMBER AFTER HE HAS PERFORMED 20 YEARS' SATISFACTORY FEDERAL SERVICE AND ATTAINED AGE 60 WOULD BE CREDITABLE TO INCREASE RETIRED PAY ONLY IF THE MEMBER IS RETAINED IN SERVICE IN A RESERVE COMPONENT OTHER THAN THOSE LISTED IN SECTION 1332 (B) OF TITLE 10, AND SUCH RETENTION IS "BY ORDER OF THE SECRETARY CONCERNED.'

QUESTION 7 IS ANSWERED ACCORDINGLY.

QUESTION 8

IN ANY INSTANCE OF SERVICE CREDITS ACQUIRED AFTER QUALIFICATION FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10, U.S.C., WHAT WOULD BE THE PROPER TERMINAL DATE FOR COMPUTATION OF SUCH CREDITS AND WHAT RULE SHOULD BE APPLIED IN THE COMPUTATION INVOLVING THE MONTHLY BASIC PAY FACTOR (10 U.S.C. 1401/?

UNDER THE CIRCUMSTANCES SET OUT IN THIS QUESTION, COMPUTATION SHOULD BE AS OF THE DATE OF RELEASE FROM ACTIVE DUTY OR OF RELEASE FROM SERVICE IN A RESERVE COMPONENT.

QUESTION 9

IN ANY INSTANCE OF SERVICE CREDITS, IF LEGALLY ACQUIRED AFTER QUALIFICATION FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10 U.S.C., MAY A MEMBER, IF OTHERWISE ENTITLED AND QUALIFIED, AND SUBJECT TO ANY NECESSARY APPROVAL OF SUPERIOR COMPETENT AUTHORITY, DESIGNATE BY CHOICE HIS TIME OF RETIREMENT, BY APPLICATION OR OTHERWISE?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. COMPARE ANSWER TO QUESTION 4.

QUESTION 10

IN THE CASE OF A PERSON QUALIFIED FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10, U.S.C., BEGINNING 29 JUNE 1948, WHAT IS THE LATEST DATE SUCH PERSON MUST FILE A CLAIM THEREFOR IN ORDER THAT NO PART THEREOF MAY BE BARRED BY THE ACT OF 9 OCTOBER 1940?

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237, PROVIDES:

THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED; PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

WE DO NOT CONSIDER THAT THE HOLDING IN THE STEVANUS CASE, SUPRA, THAT THE COURT OF CLAIMS STATUTE OF LIMITATIONS BEGINS TO RUN IN TITLE III RETIRED PAY CASES WHEN APPLICATION FOR SUCH PAY IS FILED, IS A PRECEDENT TO BE FOLLOWED BY US IN THE APPLICATION OF THE ACT OF OCTOBER 9, 1940. SINCE THE EFFECTIVE DATE OF THE ACT OF JUNE 29, 1948, IS UNDERSTOOD TO HAVE BEEN SET AS JANUARY 1, 1949 (SEE SECTION 312 OF THE ACT, 62 STAT. 1091, 10 U.S.C. 1036 NOTE), WE CONSIDER THAT THE ACCRUAL DATE OF CLAIMS FOR TITLE III RETIRED PAY OF PERSONS QUALIFYING THEREFOR UP TO AND INCLUDING JANUARY 1, 1949, IS JANUARY 1, 1949.

QUESTION 10 IS ANSWERED BY SAYING THAT JANUARY 1, 1959, IS THE LATEST DATE FOR THE FILING OF SUCH A CLAIM WITH US TO AVOID A BARRING OF SOME PART THEREOF BY THE ACT OF OCTOBER 9, 1940.

QUESTION 11

WHAT WILL BE THE EFFECT OF RETROACTIVE RETIREMENT ORDERS IN THOSE CASES WHERE COVERAGE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 HAS BEEN ELECTED IN THE FOLLOWING EXAMPLES:

A. IS THE EFFECTIVE DATE OF RETIREMENT, FOR THE PURPOSE OF DETERMINING THE EFFECTIVE DATE OF DEDUCTION IN RETIRED PAY, THE DATE THE ORIGINAL ORDERS WERE ISSUED, THE DATE THE AMENDED ORDERS WERE ISSUED OR THE RETROACTIVE RETIREMENT DATE SPECIFIED IN THE AMENDED ORDERS?

B. IF RETIRED PAY IS REDUCED DUE TO A RETROACTIVE ADJUSTMENT, WILL IT BE REQUIRED THAT THE COST OF THE ANNUITY BE ADJUSTED AND THE ANNUITY BE BASED ON THE NEW RATE OF PAY?

QUESTION 11 (A) IS ANSWERED BY SAYING THAT FOR THE PURPOSE OF DETERMINING THE EFFECTIVE DATE OF DEDUCTIONS FROM RETIRED PAY, THE RETROACTIVE DATE SPECIFIED IN THE AMENDED ORDERS OR NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICHEVER IS LATER MUST BE USED, AND THE DEDUCTION FOR AN ANNUITY NECESSARILY WILL BE ON THE BASIS OF A LOWER AGE THAN THAT USED ORIGINALLY IN COMPUTING SUCH DEDUCTION. THE HOLDING IN 33 COMP. GEN. 491, PERTAINING MERELY TO CHANGES IN RATE OF PAY AND NOT TO A CHANGE IN THE AGE FACTOR, IS NOT FOR APPLICATION HERE.

QUESTION 11 (B) IS ANSWERED IN THE AFFIRMATIVE. COMPARE 34 COMP. GEN. 151, HOLDING THAT THE DEDUCTION FOR COST OF AN ANNUITY MUST BE COMPUTED ON THE PROPER RATE OF RETIRED PAY IN EFFECT WHEN THE APPLICATION IS MADE.

QUESTION 12

IN CONSIDERATION OF THE FACT THAT THE FOREGOING QUESTIONS INCLUDE PERSONNEL WHO ARE NOW DECEASED, ARE THE ESTATES OF SUCH OFFICERS ENTITLED TO RECEIVE ANY BENEFITS WHICH THE OFFICERS WOULD RECEIVE IF STILL LIVING?

A. WHERE APPLICATION FOR RETIRED PAY WAS NOT FILED BY THE MEMBER PRIOR TO HIS DEATH, WOULD THE WIDOW NOW BE PERMITTED TO FILE SUCH APPLICATION AND RECEIVE THE RETIRED PAY WHICH WOULD HAVE ACCRUED TO THE MEMBER?

B. IF A MEMBER WOULD HAVE BEEN ENTITLED TO RETROACTIVE RETIRED PAY UNDER THE DECISION OF 1 APRIL 1958 DUE TO RETIREMENT SUBSEQUENT TO HAVING ATTAINED AGE 60, WOULD THE WIDOW BE ENTITLED TO RECEIVE THE RETROACTIVE RETIRED PAY UPON THE FILING OF A CLAIM OR WITHOUT FILING A CLAIM?

C. WOULD THE ANSWER TO A AND B ABOVE BE APPLICABLE IN THESE CASES WHERE THE ESTATE OF DECEASED MEMBERS ARE ADMINISTERED BY A THIRD PARTY?

A RIGHT TO DEMAND PAYMENT OF TITLE III RETIRED PAY DOES NOT ACCRUE TO A POTENTIAL RECIPIENT THEREOF UNTIL HE MAKES APPLICATION FOR SUCH PAY. IF A MEMBER OR FORMER MEMBER FAILS TO MAKE APPLICATION FOR SUCH RETIRED PAY DURING HIS LIFETIME A PERFECTED RIGHT TO SUCH PAY DOES NOT COME INTO EXISTENCE AND THERE WOULD BE NO UNPAID RETIRED PAY DUE UPON HIS DEATH WHICH COULD PASS TO HIS BENEFICIARY, HEIRS OR ESTATE.

ACCORDINGLY, QUESTION 12 (A) IS ANSWERED IN THE NEGATIVE.

IN THE SITUATION REFERRED TO IN QUESTION 12 (B), ASSUMING THAT THE MEMBER HAD FILED AN APPLICATION FOR TITLE III RETIRED PAY, HE NOW WOULD BE ENTITLED, IF LIVING, TO RETROACTIVE RETIRED PAY. SUCH PAY IS FOR DISTRIBUTION AS AN AMOUNT DUE FROM A UNIFORMED SERVICE UNDER PROVISIONS OF THE ACT OF JULY 12, 1955, 65 STAT. 295, 37 U.S.C. 361.

QUESTION 12 (B) IS ANSWERED ACCORDINGLY.

QUESTION 12 (C) IS ANSWERED IN THE AFFIRMATIVE AS TO QUESTION 12 (A).

IT IS ALSO ANSWERED IN THE AFFIRMATIVE AS TO QUESTION 12 (B), UNLESS THE DECEASED MEMBER HAD EXECUTED A BENEFICIARY DESIGNATION WHICH WOULD ENABLE THE BENEFICIARY TO RECEIVE THE RETROACTIVE RETIRED PAY. A WIDOW UNDER THE ACT OF JULY 12, 1955, TAKES AFTER A DESIGNATED BENEFICIARY AND BEFORE ALL OTHER POTENTIAL DISTRIBUTEES.

QUESTION 13

IF A CLAIM FOR RETROACTIVE RETIRED PAY RESULTS IN A REDUCTION IN SERVICE AND CORRESPONDING REDUCTION IN RETIRED PAY, MAY SUCH CLAIM BE WITHDRAWN BY THE RETIRED INDIVIDUAL?

SINCE, AS HELD IN THE ANSWER TO QUESTION 4, AN INDIVIDUAL MAY DESIGNATE IN ADVANCE AN EFFECTIVE RETIREMENT DATE WHICH IS SUBSEQUENT TO THE EARLIEST DATE UPON WHICH HE MIGHT BE RETIRED, IT IS OUR VIEW THAT, IN CONNECTION WITH A CLAIM FOR RETROACTIVE TITLE III RETIRED PAY, THE MEMBER OR FORMER MEMBER MAY SUBSEQUENTLY ELECT THE DATE UPON WHICH HE ORIGINALLY WAS RETIRED AS THE EFFECTIVE DATE OF HIS RETIREMENT, RELINQUISHING ALL CLAIMS BASED ON AN EARLIER EFFECTIVE DATE.