B-101442, JUL 16, 1951

B-101442: Jul 16, 1951

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14. IT IS STATED THAT MASTER SERGEANT CARVER MADE APPLICATION FOR RETIREMENT ON MAY 31. THAT HE WAS RETIRED AND PLACED ON THE "AFUS OFFS RETD LIST EFF 31 JUL 49. THAT HE WAS APPOINTED LIEUTENANT COLONEL. THAT HE WAS PAID RETIREMENT PAY AS A LIEUTENANT COLONEL. AT WHICH TIME PAYMENT OF RETIREMENT PAY WAS DISCONTINUED BECAUSE OF AN EXCEPTION ISSUED BY THE AUDIT DIVISION OF THIS OFFICE INDICATING THAT THE OFFICER HAD COMPLETED ONLY 17 YEARS'. UPON REVIEW OF THE OFFICER'S STATEMENT OF SERVICE BY THE DEPARTMENT OF THE AIR FORCE IT WAS DISCOVERED THAT 3 YEARS'. IT IS NOW CONCEDED THAT THE OFFICER WAS NOT ELIGIBLE FOR RETIREMENT OR ENTITLED TO RETIREMENT PAY UNDER THE PROVISIONS OF THE SAID 1935 ACT.

B-101442, JUL 16, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1951, WITH ENCLOSURE, REQUESTING DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES SET FORTH THEREIN, PARAGRAPH 14 OF SPECIAL ORDERS NO. 142, DEPARTMENT OF THE AIR FORCE, DATED JULY 25, 1949, DIRECTING THE RETIREMENT OF LIEUTENANT COLONEL ARTHUR R. CARVER, AO 118900, USAF HONORARY RESERVE, EFFECTIVE JULY 31, 1949, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED BY SECTION 202 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1084, MAY BE CORRECTED TO SHOW RETIREMENT UNDER AUTHORITY OF SECTION 302 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1084, AND THE OFFICER'S ACCOUNT ADJUSTED ACCORDINGLY FROM AUGUST 1, 1949.

IT IS STATED THAT MASTER SERGEANT CARVER MADE APPLICATION FOR RETIREMENT ON MAY 31, 1949, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, AND SECTION 202 OF THE ACT OF JUNE 29, 1948, SUPRA, AND THAT HE WAS RETIRED AND PLACED ON THE "AFUS OFFS RETD LIST EFF 31 JUL 49," IN THE GRADE OF LIEUTENANT COLONEL, BY THE ABOVE-CITED SPECIAL ORDERS NO. 142; THAT HE WAS APPOINTED LIEUTENANT COLONEL, UNITED STATES AIR FORCE HONORARY RESERVE ON JULY 13, 1949; THAT HE WAS PAID RETIREMENT PAY AS A LIEUTENANT COLONEL, SIXTH PAY PERIOD, WITH OVER 30 YEARS' SERVICE FOR THE PERIOD AUGUST 1, 1949, TO MAY 31, 1950, AT WHICH TIME PAYMENT OF RETIREMENT PAY WAS DISCONTINUED BECAUSE OF AN EXCEPTION ISSUED BY THE AUDIT DIVISION OF THIS OFFICE INDICATING THAT THE OFFICER HAD COMPLETED ONLY 17 YEARS', 5 MONTHS' AND 12 DAYS' ACTIVE FEDERAL SERVICE ON JULY 31, 1949. UPON REVIEW OF THE OFFICER'S STATEMENT OF SERVICE BY THE DEPARTMENT OF THE AIR FORCE IT WAS DISCOVERED THAT 3 YEARS', 6 MONTHS' AND 5 DAYS' FOREIGN SERVICE HAD BEEN ERRONEOUSLY COUNTED AS DOUBLE TIME IN DETERMINING WHETHER THE OFFICER HAD COMPLETED OVER 20 YEARS' ACTIVE FEDERAL SERVICE NECESSARY TO ESTABLISH ELIGIBILITY FOR RETIREMENT UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED. PRESUMABLY, IT IS NOW CONCEDED THAT THE OFFICER WAS NOT ELIGIBLE FOR RETIREMENT OR ENTITLED TO RETIREMENT PAY UNDER THE PROVISIONS OF THE SAID 1935 ACT, AS AMENDED. HOWEVER, IT IS STATED THAT A REVIEW OF CARVER'S STATEMENT OF SERVICE SHOWS THAT HE WAS ELIGIBLE FOR RETIREMENT UNDER SECTIONS 302 AND 303 OF THE ACT OF JUNE 29, 1948, 62 STAT 1087 AND 62 STAT 1088, HAVING COMPLETED OVER 20 YEARS' SATISFACTORY FEDERAL SERVICE AND HAVING REACHED 60 YEARS OF AGE PRIOR TO JULY 31, 1949, AND THAT "IT WAS, IN FACT, INTENDED TO CERTIFY THIS OFFICER FOR RETIREMENT PAY AS A RESERVE OFFICER ON JULY 31, 1949."

OBVIOUSLY, SINCE THE OFFICER HAD NOT COMPLETED 20 YEARS' ACTIVE FEDERAL SERVICE ON JULY 31, 1949, HE WAS NOT ELIGIBLE ON THAT DATE TO BE RETIRED UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, SUPRA, AND, CONSEQUENTLY, PAYMENT OF RETIREMENT PAY ON THE BASIS OF THE RETIREMENT ORDER OF JULY 25, 1949, IS UNAUTHORIZED.

SECTION 302(A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, REFERRED TO IN YOUR LETTER, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 302.(A) ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION *** 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: PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT EXCEPT THAT ANY MEMBER OF A RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES SHALL BE ENTITLED TO INCLUDE SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES PERFORMED ON OR PRIOR TO JULY 26, 1949: ***."

SECTION 303 PRESCRIBES THE RETIRED PAY WHICH A PERSON RETIRED PURSUANT TO SECTION 302 SHALL RECEIVE UPON RETIREMENT.

IT WILL BE NOTED THAT UNDER SAID SECTION 302(A) AN OTHERWISE QUALIFIED PERSON SHALL "UPON APPLICATION THEREFOR" BE GRANTED RETIRED PAY. DECISION OF JANUARY 11, 1951, B-98834, MODIFYING 28 COMP. GEN. 321, IT WAS HELD THAT ADMINISTRATIVE APPROVAL OF AN APPLICATION FOR RETIREMENT UNDER TITLE III OF THE SAID ACT IS REQUIRED IN EVERY CASE BEFORE THERE CAN BE ANY ACTUAL ENTITLEMENT TO RETIRED PAY, BUT THAT THE APPROVAL REQUIREMENT NEED NOT BE APPLIED SO AS TO PENALIZE AN INDIVIDUAL BECAUSE OF ADMINISTRATIVE DELAY IN GIVING SUCH APPROVAL REGARDLESS OF WHETHER THE DELAY WAS AVOIDABLE OR UNAVOIDABLE AND REGARDLESS OF THE LENGTH OF THE DELAY. IT WAS CONCLUDED, THEREFORE, THAT ADMINISTRATIVE APPROVAL IN ALL CASES OF RETIREMENT UNDER TITLE III OF THE SAID ACT OF JUNE 29, 1948, MAY BE CONSIDERED AS A NUNC PRO TUNC ACTION SO THAT SUCH APPROVAL WOULD RELATE BACK TO THE DATE THE APPLICATION WAS FILED. AND IT WAS FURTHER HELD IN THE SAID DECISION THAT UPON APPROVAL OF SUCH APPLICATION FOR RETIREMENT, RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION IS FILED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT INITIALLY MEETS THE AGE AND SERVICE REQUIREMENTS OF THE STATUTE AND THEREBY BECOMES ELIGIBLE FOR SUCH RETIRED PAY, WHICHEVER IS LATER. ON SUCH BASIS, RETIRED PAY PROPERLY WOULD BE PAYABLE IN THE INSTANT CASE FROM AUGUST 1, 1949 - THE OFFICER HAVING RECEIVED ACTIVE DUTY PAY TO AND INCLUDING JULY 31, 1949 IF THE APPLICATION FOR RETIREMENT SUBMITTED MAY 31, 1949, MAY BE CONSIDERED AN "APPLICATION" FOR RETIREMENT WITHIN THE MEANING OF SECTION 302 OF THE SAID 1948 ACT.

WHILE THE OFFICER REQUESTED THAT HE BE CONSIDERED FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 5 OF THE 1935 ACT, AS AMENDED, IT WAS INCUMBENT UPON ADMINISTRATIVE OFFICIALS TO DETERMINE WHETHER THE OFFICER WAS IN FACT ELIGIBLE FOR RETIREMENT UNDER THAT LAW. IT NOW APPEARS THAT IT SHOULD HAVE BEEN DETERMINED THAT HE WAS NOT ELIGIBLE FOR RETIREMENT UNDER THAT LAW WHEN HIS APPLICATION WAS FIRST CONSIDERED AND THIS OFFICE IS AWARE OF NO LAW OR REGULATION WHICH WOULD PRECLUDE AN ADMINISTRATIVE OFFICIAL FROM ADVISING THE OFFICER NOW THAT, ALTHOUGH HE IS NOT ELIGIBLE FOR RETIREMENT UNDER THE 1935 ACT, AS AMENDED, HE IS ELIGIBLE FOR RETIREMENT UNDER SECTIONS 302 AND 303 OF THE 1948 ACT AND THAT HIS APPLICATION WILL BE CONSIDERED AN APPLICATION FOR RETIREMENT UNDER THE 1948 ACT. ACCORDINGLY, ASSUMING THAT THE OFFICER IS OTHERWISE ELIGIBLE FOR RETIREMENT UNDER THE SAID SECTIONS 302 AND 303 OF THE ACT OF JUNE 29, 1948, AND THAT HIS APPLICATION FOR RETIREMENT IS TREATED AS AN APPLICATION UNDER SUCH SECTIONS AND IS APPROVED ON THAT BASIS BY COMPETENT AUTHORITY, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS OF RETIRED PAY IN ACCORDANCE WITH THAT ACTION ON AND AFTER AUGUST 1, 1949.