B-121979, MARCH 25, 1955, 34 COMP. GEN. 474

B-121979, MARCH 25, 1955, 34 COMP. GEN. 474

RETIREMENT - MILITARY, NAVAL, ETC. - UNIFORMED SERVICES CONTINGENCY OPTION ACT - ELIGIBILITY OF RESERVISTS EXCEPT FOR MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO WERE IN AN INACTIVE STATUS AND WHO HAD COMPLETED TWENTY YEARS OF SATISFACTORY SERVICE ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ALL OTHER RESERVE MEMBERS WHO ARE IN AN ACTIVE AS DISTINGUISHED FROM AN INACTIVE STATUS ARE WITHIN THE SCOPE OF THE TERM ,ACTIVE MEMBER" AS DEFINED AND USED IN SAID ACT AND ARE ELIGIBLE FOR THE BENEFITS THEREOF.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, MARCH 25, 1955:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 1, 1954, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION WHETHER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ON AN INACTIVE STATUS LIST OF A RESERVE COMPONENT ARE ENTITLED TO THE BENEFITS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, IF OTHERWISE ELIGIBLE FOR SUCH BENEFITS. IT IS STATED THAT THE QUESTION ARISES BECAUSE OF UNCERTAINTY AS TO WHETHER THE TERM "ACTIVE MEMBER" AS DEFINED AND USED IN THAT ACT INCLUDES, IN ADDITION TO MEMBERS IN AN ACTIVE STATUS, THOSE MEMBERS OF THE RESERVE COMPONENTS WHO ARE IN AN "INACTIVE STATUS" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 212 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 485.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 ESTABLISHED A PLAN WHEREBY AN ACTIVE OR RETIRED MEMBER OF A REGULAR OR RESERVE COMPONENT OF THE UNIFORMED SERVICES MAY ELECT, UNDER THE CONDITIONS SPECIFIED IN THE ACT, TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY DURING HIS LIFETIME IN ORDER TO PROVIDE AN ANNUITY, UPON HIS DEATH, FOR HIS "WIDOW, CHILD, OR CHILDREN.' SECTION 2 (B) OF THE ACT, 67 STAT. 501, DEFINES THE TERM "MEMBER" AS MEANING A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, NURSE, FLIGHT OFFICER, OR A PERSON IN AN ENLISTED GRADE (INCLUDING AN AVIATION CADET), OF "ANY OF THE UNIFORMED SERVICES" AND INCLUDING, ALSO, A PERSON ENTITLED TO RETAINER PAY IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WITH CREDIT FOR SIXTEEN OR MORE YEARS OF NAVAL SERVICE. THE TERM "ACTIVE MEMBER" IS DEFINED IN SECTION 2 (C) OF THE ACT AS MEANING "A MEMBER ON THE ACTIVE LIST OF A REGULAR OR RESERVE COMPONENT OF A UNIFORMED SERVICE" OR A "MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, WHO HAS COMPLETED TWENTY SATISFACTORY YEARS IN HIS UNIFORMED SERVICE, AS DEFINED IN SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948.'

SECTION 204 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 483, PROVIDES THAT " THERE SHALL BE WITHIN EACH OF THE ARMED FORCES OF THE UNITED STATES A READY RESERVE, A STANDBY RESERVE, AND A RETIRED RESERVE, AND EACH MEMBER OF THE RESERVE COMPONENTS SHALL BE PLACED IN ONE OF THESE CATEGORIES.' SECTION 210 OF THE ACT, 66 STAT. 485, PROVIDES THAT " ALL MEMBERS OF THE RESERVE COMPONENTS WHO ARE NOT IN THE READY OR RETIRED RESERVE SHALL BE IN THE STANDBY RESERVE.' A SPECIFIC PROVISION APPEARS IN SECTION 211 (A) OF THE ACT OF DIRECTING THAT " WITHIN THE STANDBY RESERVE, AN INACTIVE STATUS LIST SHALL BE MAINTAINED.' SECTION 211 (A), 66 STAT. 485, ALSO PROVIDES THAT " WHEN DEEMED BY COMPETENT AUTHORITY TO BE IN THE BEST INTERESTS OF THE SERVICE CONCERNED, MEMBERS IN THE STANDBY RESERVE WHO ARE NOT REQUIRED TO REMAIN MEMBERS OF A RESERVE COMPONENT AND WHO ARE UNABLE TO PARTICIPATE IN PRESCRIBED TRAINING MAY, IF QUALIFIED, BE TRANSFERRED TO THE INACTIVE STATUS LIST, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE APPROPRIATE SECRETARY.' IT IS FURTHER PROVIDED THAT " SUCH REGULATIONS SHALL PROVIDE FOR THE RETURN OF SUCH MEMBERS TO AN ACTIVE STATUS UNDER SUCH CONDITIONS AS THE APPROPRIATE SECRETARY SHALL PRESCRIBE.' SECTION 211 (B) OF THE ACT PROVIDES THAT MEMBERS OF THE RESERVE COMPONENTS IN AN INACTIVE STATUS SHALL NOT BE ELIGIBLE FOR PAY, PROMOTION, OR AWARD OF RETIREMENT POINT CREDITS UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED.

EACH MEMBER OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES IS REQUIRED BY SECTION 212 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 485, TO BE IN "AN ACTIVE, INACTIVE, OR RETIRED STATUS" AND SECTION 212 (B) OF THE ACT PROVIDES THAT MEMBERS IN THE RESERVE COMPONENTS "SHALL BE IN AN ACTIVE STATUS, EXCEPT THOSE ON AN INACTIVE STATUS LIST, MEMBERS IN THE RETIRED RESERVE, AND THOSE ASSIGNED TO THE INACTIVE NATIONAL GUARD.' SECTION 213 (A) OF THAT ACT, 66 STAT. 485, PROVIDES THAT EVERY PERSON WHO WAS A MEMBER OF A RESERVE COMPONENT ON THE EFFECTIVE DATE ( JANUARY 1, 1953) OF THE ACT SHALL BE DEEMED TO HAVE RETAINED "HIS ACTIVE, INACTIVE, OR RETIRED STATUS IN HIS RESERVE COMPONENT.' UNDER SUCH PROVISION THOSE PERSONS WHO WERE TRANSFERRED PRIOR TO JANUARY 1, 1953, TO AN INACTIVE RESERVE STATUS PURSUANT TO THE PROVISIONS OF SECTIONS 304 AND 308 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1088, 1090, ARE REQUIRED TO BE DEEMED TO CONTINUE AS OF JANUARY 1, 1953, IN AN INACTIVE RESERVE STATUS.

THUS, UNDER THE ARMED FORCES RESERVE ACT OF 1952, MEMBERS OF THE RESERVE COMPONENTS ARE REQUIRED TO BE IN AN ACTIVE STATUS, THAT IS, ON THE "ACTIVE LIST" OF THEIR RESERVE COMPONENT UNLESS THEY ARE ON AN INACTIVE STATUS LIST OR IN THE RETIRED RESERVE OR ASSIGNED TO THE INACTIVE NATIONAL GUARD. HENCE, WHILE THE TERM "ACTIVE LIST" FORMERLY WAS CONSIDERED AS HAVING APPLICATION TO OFFICERS OF THE REGULAR COMPONENTS OF THE ARMED SERVICES ONLY, AND TO BE WITHOUT APPLICATION, GENERALLY, TO OFFICERS OF THE RESERVE COMPONENTS (SEE 25 COMP. GEN. 203 AND 27 COMP. GEN. 12), IT WOULD APPEAR THAT FOR THE PURPOSES OF THE QUESTION HERE INVOLVED SUCH TERM NOW HAS EQUAL APPLICATION TO ALL MEMBERS, OFFICERS AND ENLISTED PERSONNEL ALIKE OF THE REGULAR AND RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO ARE IN AN ACTIVE STATUS AND EXCLUDING ONLY THOSE MEMBERS WHO ARE ON AN INACTIVE STATUS LIST, WHO ARE IN A RETIRED STATUS, OR WHO ARE IN AN INACTIVE COMPONENT. IT FOLLOWS, THEREFORE, THAT WITH THE SOLE EXCEPTION OF THOSE MEMBERS OF THE RESERVE COMPONENTS WHO WERE IN AN INACTIVE STATUS ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND WHO HAD COMPLETED TWENTY SATISFACTORY YEARS OF SERVICE (AS DEFINED IN SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087), ONLY THOSE MEMBERS OF THE RESERVE COMPONENTS, WHO ARE ON THE "ACTIVE LIST," THAT IS, WHO ARE IN AN "ACTIVE" AS DISTINGUISHED FROM AN "INACTIVE" RESERVE STATUS, PROPERLY MAY BE VIEWED AS COMING WITHIN THE SCOPE OF THE TERM "ACTIVE MEMBER" AS DEFINED AND USED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.