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B-111903, NOVEMBER 6, 1952, 32 COMP. GEN. 225

B-111903 Nov 06, 1952
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IS REQUIRED TO BE SERVICE IN A RESERVE COMPONENT OF THE UNIFORMED SERVICES. SUCH RESERVE SERVICE IS NOT REQUIRED TO BE CONTINUOUS. SO THAT PERIOD OF REGULAR ARMY SERVICE INTERVENING BETWEEN PERIODS OF RESERVE SERVICE AGGREGATING THE REQUIRED EIGHT YEARS IS TO BE EXCLUDED IN DETERMINING THE LENGTH OF SERVICE REQUIRED FOR A MEMBER TO QUALIFY FOR RETIREMENT PAY UNDER SAID TITLE III. 1952: REFERENCE IS MADE TO LETTER OF THE DEPUTY SECRETARY OF DEFENSE. FORWARDED WITH THE REQUEST FOR DECISION WAS A COPY OF COMMITTEE ACTION NO. 44. IN WHICH IT IS STATED THAT THE DEPARTMENT OF THE ARMY IS NOW PROCESSING THE CASE OF A RESERVE OFFICER WHO BECAME ELIGIBLE FOR CONSIDERATION FOR RETIREMENT UNDER THE PROVISIONS OF THE ABOVE TITLE III IN JUNE 1952.

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B-111903, NOVEMBER 6, 1952, 32 COMP. GEN. 225

PAY - RETIRED - MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES - ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED WHILE THE LAST EIGHT YEARS OF SATISFACTORY FEDERAL SERVICE TO BE COUNTED FOR RETIREMENT PURPOSE UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED, IS REQUIRED TO BE SERVICE IN A RESERVE COMPONENT OF THE UNIFORMED SERVICES, SUCH RESERVE SERVICE IS NOT REQUIRED TO BE CONTINUOUS, SO THAT PERIOD OF REGULAR ARMY SERVICE INTERVENING BETWEEN PERIODS OF RESERVE SERVICE AGGREGATING THE REQUIRED EIGHT YEARS IS TO BE EXCLUDED IN DETERMINING THE LENGTH OF SERVICE REQUIRED FOR A MEMBER TO QUALIFY FOR RETIREMENT PAY UNDER SAID TITLE III.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, NOVEMBER 6, 1952:

REFERENCE IS MADE TO LETTER OF THE DEPUTY SECRETARY OF DEFENSE, DATED SEPTEMBER 12, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER THE LAST EIGHT YEARS OF SATISFACTORY FEDERAL SERVICE TO BE COUNTED FOR RETIREMENT PURPOSES UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, MUST BE CONTINUOUS SERVICE AS A MEMBER OF A RESERVE COMPONENT.

FORWARDED WITH THE REQUEST FOR DECISION WAS A COPY OF COMMITTEE ACTION NO. 44, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, IN WHICH IT IS STATED THAT THE DEPARTMENT OF THE ARMY IS NOW PROCESSING THE CASE OF A RESERVE OFFICER WHO BECAME ELIGIBLE FOR CONSIDERATION FOR RETIREMENT UNDER THE PROVISIONS OF THE ABOVE TITLE III IN JUNE 1952, BY REASON OF BECOMING 60 YEARS OF AGE. A STATEMENT OF THE OFFICER'S SERVICE, ALSO FORWARDED WITH THE REQUEST FOR DECISION, INDICATES THAT ON JUNE 30, 1950, HE COMPLETED AN AGGREGATE OF 22 YEARS, 1 MONTH AND 7 DAYS OF FEDERAL SERVICE, INCLUDING 1 YEAR, 5 MONTHS AND 1 DAY OF SERVICE IN THE REGULAR ARMY FROM MAY 29, 1947, TO OCTOBER 29, 1948. ALSO, IT APPEARS THAT HE COMPLETED AN AGGREGATE OF MORE THAN EIGHT YEARS' SERVICE IN A RESERVE COMPONENT BEGINNING PRIOR TO MAY 29, 1947, AND ENDING JUNE 30, 1950. THE DOUBT AS TO WHETHER THE OFFICER QUALIFIES FOR RETIREMENT BENEFITS UNDER TITLE III OF THE ACT OF JUNE 29, 1948, SUPRA, ARISES BY REASON OF THE FIRST AND SECOND PROVISOS OF SUBSECTION 304 (A) OF THAT ACT, 62 STAT. 1087. THE SAID SUBSECTION, AS AMENDED BY THE ACT OF JULY 12, 1952, 66 STAT. 590, PROVIDES 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 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: 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: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION, SIMULTANEOUS SERVICE AS A MEMBER OF A RESERVE COMPONENT AND AS A MEMBER OF THE REGULAR ARMY, NAVY, AIR FORCE, OR MARINE CORPS, SHALL NOT BE DEEMED TO BE SERVICE IN A RESERVE COMPONENT * * *.

THERE IS NO REQUIREMENT, EXPRESS OR IMPLIED, IN THE ABOVE FIRST PROVISO THAT THE LAST EIGHT YEARS OF QUALIFYING SERVICE MUST BE CONTINUOUS SERVICE AS A MEMBER OF A RESERVE COMPONENT. THUS, IF THE OFFICER HERE INVOLVED HAD HAD NO SERVICE, REGULAR OR RESERVE, DURING THE PERIOD MAY 29, 1947, TO OCTOBER 29, 1948, BUT HAD COMPLETED 20 YEARS' SATISFACTORY FEDERAL SERVICE THE LAST EIGHT YEARS OF WHICH, THOUGH NOT CONTINUOUS, WAS SERVICE IN A RESERVE COMPONENT HE WOULD HAVE MET THE QUALIFICATIONS FOR RETIREMENT BENEFITS UNDER SECTION 302. CLEARLY, IT WAS NOT THE INTENT OF THE CONGRESS THAT AN INDIVIDUAL, BY REASON OF A PERIOD OF SERVICE IN THE REGULAR ARMY, SHOULD BE IN A LESS FAVORABLE POSITION FOR MILITARY RETIREMENT BENEFITS THAN HE WOULD HAVE HELD HAD HE HAD NO MILITARY SERVICE WHATSOEVER DURING THE PERIOD WHEN HE SERVED IN THE REGULAR ARMY. ON THE OTHER HAND, TO CONCLUDE THAT THE OFFICER HERE INVOLVED IS ENTITLED TO CREDIT FOR THE PERIOD OF HIS SERVICE IN THE REGULAR ARMY AS QUALIFYING SERVICE UNDER SUBSECTION 302 (A) WOULD BE TO NULLIFY THE SAID FIRST PROVISO.

IT REASONABLY APPEARS THAT IN ORDER TO EFFECTUATE THE INTENT OF THE LAW RESPECTING SITUATIONS SUCH AS THAT HERE PRESENTED, THE PERIOD OF REGULAR ARMY SERVICE (INTERVENING BETWEEN THE PERIODS OF RESERVE SERVICE AGGREGATING EIGHT YEARS OR MORE) MUST BE IGNORED OR EXCLUDED IN DETERMINING WHETHER THE OFFICER HAS THE REQUISITE SERVICE TO QUALIFY FOR RETIREMENT PAY UNDER THE SAID SECTION 302. IF, ON THAT BASIS, THE OFFICER HAS THE SERVICE TO QUALIFY FOR RETIREMENT PAY THE PERIOD OF HIS REGULAR ARMY SERVICE THEN IS FOR INCLUSION DETERMINING THE AMOUNT OF HIS RETIREMENT PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, SUPRA, SINCE THE RESTRICTION IN THE FIRST PROVISO OF SECTION 302 (A) APPLIES TO QUALIFYING SERVICE ONLY AND NOT SERVICE WHICH MAY BE COUNTED UNDER SECTION 303 OF SUCH ACT, 62 STAT. 1088, IN COMPUTING THE AMOUNT OF THE RETIREMENT PAY. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

IT MAY BE ADDED THAT IN VIEW OF THE SECOND PROVISO OF SUBSECTION 302 (A), SUPRA, SIMULTANEOUS SERVICE IN A RESERVE COMPONENT AND IN A REGULAR COMPONENT MUST BE CONSIDERED AS SERVICE IN A REGULAR COMPONENT WITHIN THE CONTEMPLATION OF THE FIRST PROVISO OF THAT SUBSECTION. HENCE, AN INDIVIDUAL'S PERIOD OF SIMULTANEOUS REGULAR AND RESERVE SERVICE, INTERVENING BETWEEN PERIODS OF RESERVE SERVICE, MUST BE TREATED IN DETERMINING WHETHER HE QUALIFIES FOR RETIREMENT BENEFITS UNDER SECTION 302, AS IF HE HAD REGULAR SERVICE ONLY DURING THE SAID INTERVENING PERIOD.

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