B-154477, NOV. 16, 1966

B-154477, NOV. 16, 1966

TO DISBURSING OFFICER, RETIRED PAY DEPARTMENT U.S. NAVY FINANCE CENTER:

BY SECOND ENDORSEMENT DATED SEPTEMBER 21, 1966, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF AUGUST 31, 1966, REQUESTING AN ADVANCE DECISION AS TO WHETHER OR NOT THE RETIREMENT OF COMMANDER CARL E. RUNDQUIST, USNR, RETIRED, 87102, UNDER 10 U.S.C. 6323, EFFECTIVE MAY 1, 1966, IS VALID. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-928 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT WHEN COMMANDER RUNDQUIST REACHED THE AGE OF 60 YEARS ON MARCH 8, 1963, HE QUALIFIED FOR RETIRED PAY UNDER 10 U.S.C. 1331, BUT THAT HE WAS RETAINED ON ACTIVE DUTY UNDER THE PROVISIONS OF 10 U.S.C. 676 AND CONTINUED TO SERVE ON ACTIVE DUTY UNTIL APRIL 30, 1966. EFFECTIVE OCTOBER 1, 1963, ON HIS APPLICATION, HE WAS TRANSFERRED TO THE RETIRED LIST UNDER 10 U.S.C. 1331. SINCE HE HAD ELECTED TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, THE REDUCTION TO BE MADE IN HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF THE RETIRED PAY TO WHICH HE WAS ENTITLED AS OF OCTOBER 1, 1963, IN ACCORDANCE WITH OUR DECISION OF AUGUST 31, 1964, B-154477, AND IT APPEARS THAT WHILE HE CONTINUED ON ACTIVE DUTY THE ANNUITY COST WAS WITHHELD FROM HIS ACTIVE DUTY PAY UNDER THE PROVISIONS OF 14 U.S.C. 1438.

BY LETTER DATED JUNE 16, 1966, FROM THE CHIEF OF NAVAL PERSONNEL, COMMANDER RUNDQUIST WAS ADVISED THAT EFFECTIVE MAY 1, 1966, HE WAS "RERETIRED" PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6323 IN THE GRADE OF COMMANDER WITH RETIRED PAY BASED ON THE APPLICABLE BASIC PAY OF THAT GRADE.

IN OUR DECISION OF AUGUST 16, 1965, B-157326, 45 COMP. GEN. 78, WE HELD THAT AN OFFICER PLACED ON THE RETIRED RESERVE LIST AT HIS REQUEST WITHOUT PAY AND WHO LATER QUALIFIES FOR RETIREMENT UNDER 10 U.S.C. 6323 BEFORE HE BECOMES ELIGIBLE TO RECEIVE RETIRED PAY UNDER 10 U.S.C. 1331, MAY QUALIFY FOR RETIREMENT UNDER SECTION 6323 UPON COMPLETION OF THE SERVICE PRESCRIBED, IT BEING OUR VIEW THAT IT WAS NOT INTENDED THAT PERSONS WHO ARE PLACED ON A RETIRED RESERVE LIST WITHOUT RETIRED PAY AS A RESULT OF THEIR OWN APPLICATION SHOULD BE BARRED FROM THE RETIRED PAY BENEFITS FOR WHICH THEY MIGHT QUALIFY AT A FUTURE TIME UNDER OTHER PROVISIONS OF LAW.

SINCE COMMANDER RUNDQUIST HAD QUALIFIED FOR RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 UPON HIS APPLICATION FOR RETIREMENT EFFECTIVE OCTOBER 1, 1963, YOU RAISE A QUESTION AS TO HIS ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 6323 FROM MAY 1, 1966. IF OUR DECISION IS IN THE AFFIRMATIVE, YOU REQUEST A DECISION AS TO WHETHER THE REDUCTION IN RETIRED PAY SHOULD CONTINUE ON AND AFTER MAY 1, 1966, AT THE SAME RATE UNDER THE HOLDING IN OUR DECISION OF APRIL 19, 1954, B 118480, 33 COMP. GEN. 491, OR WHETHER THE REDUCTION SHOULD BE RECOMPUTED ON THE BASIS OF THE RETIRED PAY TO WHICH HE BECAME ENTITLED ON MAY 1, 1966.

IT IS PROVIDED IN 10 U.S.C. 676 THAT:

"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.'

IN OUR DECISION OF AUGUST 16, 1965, IT WAS RECOGNIZED THAT THE ACT OF APRIL 14, 1949, CH. 52, 63 STAT. 47, THE SOURCE STATUTE OF 10 U.S.C. 6323 (F), EXEMPTS CERTAIN MEMBERS ON THE RETIRED LIST, INCLUDING MEMBERS WHO WERE PLACED IN A RETIRED STATUS WITHOUT ENTITLEMENT TO RETIRED PAY, FROM THE INHERENT LIMITATION AGAINST A SUBSEQUENT RETIREMENT BELIEVED TO BE CONTAINED IN 20 YEAR RETIREMENT LAWS SUCH AS SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, FROM WHICH 10 U.S.C. 6323 (A) WAS DERIVED. WHILE COMMANDER RUNDQUIST MET ALL OF THE QUALIFICATIONS ENTITLING HIM TO RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 EFFECTIVE OCTOBER 1, 1963, HE, LIKE THE MEMBER INVOLVED IN THE DECISION OF AUGUST 16, 1965, DID NOT RECEIVE ANY RETIRED PAY WHILE ON ACTIVE DUTY. SINCE 10 U.S.C. 676 CLEARLY REQUIRES THAT PERSONS IN HIS SITUATION BE CREDITED WITH ACTIVE DUTY AFTER QUALIFICATION FOR RETIRED PAY "FOR ALL PURPOSES" IT APPEARS PROPER TO VIEW THAT STATUTORY PROVISION AS INCLUDING A FURTHER EXEMPTION FROM THE INHERENT LIMITATION MENTIONED ABOVE. SUCH ACTIVE SERVICE WOULD APPEAR TO BE CREDITABLE FOR THE PURPOSES OF ANY RETIREMENT LAW. 38 COMP. GEN. 429. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

AS TO YOUR SECOND QUESTION CONCERNING THE COMPUTATION OF SURVIVOR'S ANNUITY COST, COMMANDER RUNDQUIST'S CASE FALLS SQUARELY WITHIN THE RULE OF OUR DECISION OF SEPTEMBER 7, 1962, B-149076, 42 COMP. GEN. 153, AND THE REDUCTION IN HIS RETIRED PAY SHOULD CONTINUE TO BE MADE AT THE RATE DETERMINED AS OF OCTOBER 1, 1963.