B-138452, SEP. 25, 1959

B-138452, SEP. 25, 1959

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 24, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), FORWARDING A LIST CONTAINING THE NAMES OF 262 PERSONS WHO ARE MEMBERS OF THE NAVAL RESERVE, WHO ARE OVER 60 YEARS OF AGE, AND WHO HAVE BEEN RETAINED INAN ACTIVE RESERVE STATUS SUBSEQUENT TO QUALIFYING FOR RETAINED PAY UNDER 10 U.S.C. 1331. THE LETTER-ASSIGNED SUBMISSION NO. SS-M-446, BY THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCE COMMITTEE--- IS UNDERSTOOD TO EVIDENCE YOUR DETERMINATION THAT THE INDIVIDUALS LISTED ARE CONSIDERED TO HAVE BEEN RETAINED IN AN ACTIVE RESERVE STATUS PURSUANT TO LAW AFTER THE DATE THEY QUALIFIED FOR TITLE III RETIRED PAY (THAT IS, RETIRED PAY AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, WHICH WAS SUPERSEDED BY CHAPTER 67 AND OTHER PROVISIONS OF TITLE 10, U.S. CODE).

IN OUR DECISION OF APRIL 1, 1959, B-138452, 38 COMP. GEN. 647, IT WAS STATED THAT IN ORDER FOR A MEMBER TO QUALIFY FOR INCREASED RETIRED PAY BENEFITS UNDER 10 U.S.C. 676, HIS RETENTION ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT MUST BE DIRECTED "BY ORDER OF THE SECRETARY CONCERNED.' WE INDICATED THAT THE AUTHORITY VESTED IN THE SECRETARIES CONCERNED WAS INTENDED TO BE USED SPARINGLY AND DISCRIMINATINGLY, AND THAT UNLESS A MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION OR REGULATION ISSUED BY THE APPROPRIATE SECRETARY, SERVICE PERFORMED BY THE MEMBER AFTER BECOMING QUALIFIED FOR RETIREMENT PAY MAY NOT BE COUNTED TO INCREASE THE RETIRMENT PAY BENEFITS TO WHICH HE WOULD BE ENTITLED ON THE BASIS OF HIS SERVICE AND GRADE ON HIS SIXTIETH BIRTHDAY.

THE PRESENT LETTER PRESENTS THE QUESTION WHETHER THE DETERMINATION EVIDENCED THEREBY MAY BE ACCEPTED AS MEETING THE "ORDER" REQUIREMENTS OF 10 U.S.C. 676 IN THE CASES OF THE PERSONS NAMED IN THE LIST TO WHICH SUCH DETERMINATION APPLIES.

AFTER CAREFUL CONSIDERATION OF THE VARIOUS FACTORS INVOLVED, AN AFFIRMATIVE ANSWER TO SUCH QUESTION APPEARS WARRANTED AND YOU ARE ADVISED THAT THE MEMBERS LISTED WILL BE CONSIDERED AS RETAINED FOR SERVICE IN A RESERVE COMPONENT BY YOUR ORDER, AFTER QUALIFYING FOR RETIRED PAY, AND WILL BE CONSIDERED AS ENTITLED TO THE BENEFITS WHICH ACCRUED TO ELIGIBLE MEMBERS UNDER 10 U.S.C. 676, OR SECTION 302/E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, FROM WHICH THE CODE PROVISION WAS DERIVED.