B-132458, SEPTEMBER 24, 1957, 37 COMP. GEN. 207

B-132458: Sep 24, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - DISABILITY RETIRED PAY - TERMINATION - FOREIGN CITIZENSHIP A MARINE CORPS RESERVE OFFICER WHO IS RECEIVING DISABILITY RETIREMENT PAY UNDER THE ACT OF AUGUST 27. DOES NOT HAVE HIS RIGHT TO RETIREMENT PAY AFFECTED BY THE TERMINATION OF HIS MILITARY STATUS NOR DOES SUCH RIGHT TERMINATE IF HE BECOMES A CITIZEN OF A FOREIGN COUNTRY. THE RIGHT OF A RETIRED MEMBER OF THE REGULAR NAVY TO RECEIVE RETIRED PAY IS CONTINGENT UPON CONTINUATION OF A STATUS IN THE REGULAR NAVY AND LOSS OF UNITED STATES CITIZENSHIP BY A MEMBER IS INCONSISTENT WITH CONTINUATION OF MILITARY STATUS. WHEN THE RIGHT TO RECEIVE DISABILITY RETIREMENT PAY BY A RETIRED REGULAR OR RESERVE MEMBER OF THE ARMED FORCES IS CONTINGENT UPON HIS CONTINUED STATUS IN THE ARMED FORCES AND HIS STATUS IS MATERIALLY ALTERED BY DROPPING HIS NAME FROM THE ROLLS UNDER PROVISIONS OF 10 U.S.C. 1161 (B) AND 1163 (B).

B-132458, SEPTEMBER 24, 1957, 37 COMP. GEN. 207

MILITARY PERSONNEL - DISABILITY RETIRED PAY - TERMINATION - FOREIGN CITIZENSHIP A MARINE CORPS RESERVE OFFICER WHO IS RECEIVING DISABILITY RETIREMENT PAY UNDER THE ACT OF AUGUST 27, 1940, 34 U.S.C. 855C-1, DOES NOT HAVE HIS RIGHT TO RETIREMENT PAY AFFECTED BY THE TERMINATION OF HIS MILITARY STATUS NOR DOES SUCH RIGHT TERMINATE IF HE BECOMES A CITIZEN OF A FOREIGN COUNTRY. THE RIGHT OF A RETIRED MEMBER OF THE REGULAR NAVY TO RECEIVE RETIRED PAY IS CONTINGENT UPON CONTINUATION OF A STATUS IN THE REGULAR NAVY AND LOSS OF UNITED STATES CITIZENSHIP BY A MEMBER IS INCONSISTENT WITH CONTINUATION OF MILITARY STATUS, AND, THEREFORE, THE RIGHT TO RETIRED PAY TERMINATES IF A MEMBER OF THE REGULAR NAVY BECOMES A CITIZEN OF A FOREIGN COUNTRY. WHEN THE RIGHT TO RECEIVE DISABILITY RETIREMENT PAY BY A RETIRED REGULAR OR RESERVE MEMBER OF THE ARMED FORCES IS CONTINGENT UPON HIS CONTINUED STATUS IN THE ARMED FORCES AND HIS STATUS IS MATERIALLY ALTERED BY DROPPING HIS NAME FROM THE ROLLS UNDER PROVISIONS OF 10 U.S.C. 1161 (B) AND 1163 (B), THE RIGHT TO DISABILITY RETIREMENT PAY TERMINATES.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 24, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED JULY 2, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY REQUESTING A DECISION CONCERNING THE ENTITLEMENT OF CAPTAIN SCOTT BURKHARDT, UNITED STATES MARINE CORPS RESERVE ( RET.), TO DISABILITY RETIREMENT PAY IN THE CIRCUMSTANCES DISCLOSED AND OTHER RELATED QUESTIONS.

ACCOMPANYING THE LETTER IS A MEMORANDUM FOR THE SECRETARY OF THE NAVY SIGNED BY THE ACTING JUDGE ADVOCATE GENERAL REQUESTING THAT A DECISION BE OBTAINED ON THE FOLLOWING QUESTIONS:

SUBJECT MARINE CORPS RESERVE OFFICER WAS RETIRED FOR PHYSICAL DISABILITY ON 1 MARCH 1946. HE IS PRESENTLY RECEIVING DISABILITY RETIRED PAY AND CONTEMPLATES BECOMING A CITIZEN OF NEW ZEALAND. IF HE BECOMES A CITIZEN OF NEW ZEALAND, CERTAIN QUESTIONS CONCERNING HIS ENTITLEMENT TO PAY ARE PRESENTED:

(1) IF HE BECOMES A CITIZEN OF NEW ZEALAND WITHOUT RESIGNING HIS COMMISSION, IS HE ENTITLED TO PHYSICAL DISABILITY RETIREMENT PAY?

(2) IF HE RESIGNS HIS COMMISSION IN THE MARINE CORPS RESERVE AND BECOMES A CITIZEN OF NEW ZEALAND, IS HE ENTITLED TO PHYSICAL DISABILITY RETIREMENT PAY?

(3) WOULD THE ANSWER BE THE SAME IN THE CASE OF A REGULAR OFFICER?

WHILE THE REQUEST FOR DECISION DOES NOT DISCLOSE SUFFICIENT INFORMATION FOR US TO DETERMINE THE ACTIVE OR RETIRED STATUS HELD BY CAPTAIN BURKHARDT, IT HAS BEEN INFORMALLY ASCERTAINED THAT HE WAS PLACED ON THE RETIRED LIST AND RETIRED FOR PHYSICAL DISABILITY PURSUANT TO THE PROVISIONS OF 34 U.S.C. 417 (SECTION 1453, REVISED STATUTES) AND 34 U.S.C. 855C-1. IT ALSO HAS BEEN ASCERTAINED THAT CAPTAIN BURKHARDT CONTINUES TO HOLD A RESERVE COMMISSION IN THE UNITED STATES MARINE CORPS RESERVE. OUR DECISION IS BASED ON THAT INFORMATION.

THE ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED, 34 U.S.C. 855C 1, PROVIDES, AMONG OTHER THINGS, THAT OFFICERS OF THE UNITED STATES MARINE CORPS RESERVE WHO ARE CALLED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, AND WHO SUFFERED DISABILITY IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE ENTITLED TO RECEIVE THE SAME RETIREMENT PAY AS MAY BE PROVIDED BY LAW FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR MARINE CORPS. IN DISCUSSING THE QUESTION AS TO WHETHER A FORMER MEMBER OF A RESERVE COMPONENT IS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY NOTWITHSTANDING THE FACT THAT HE HOLDS NO STATUS AS A RESERVE OFFICER, THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY REFERRED TO OUR DECISIONS OF 23 COMP. GEN. 284; 28 COMP. GEN. 557; AND 32 COMP. GEN. 242. IN THOSE CASES THE FORMER OFFICERS HAD NO STATUS AS MEMBERS OF A REGULAR OR RESERVE COMPONENT, HOWEVER, THEIR RIGHT TO RETIRED PAY WAS BASED ON THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 20 U.S.C. 74 (PERTAINING TO RETIREMENT PAY FOR OFFICERS AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES) AND THE ACT OF AUGUST 27, 1940 (HERE INVOLVED, APPLICABLE TO OFFICERS AND ENLISTED MEN OF THE UNITED STATES MARINE CORPS RESERVE). WE CONCLUDED, GENERALLY, THAT THOSE FORMER MEMBERS, HAVING MET THE STIPULATED CONDITIONS OF THE STATUTE, WERE ENTITLED TO THE AUTHORIZED RETIREMENT PAY, CONSIDERED TO BE IN THE NATURE OF A PENSION, WITHOUT REGARD TO BEING RETIRED OR EVEN REMAINING IN THE SERVICE. SEE ALSO, THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF LEONARD V. UNITED STATES, NO. 182-55; DECIDED NOVEMBER 7, 1956, 145 FED.SUPP. 758.

IT IS OUR VIEW, ON THE BASIS OF THE MENTIONED DECISIONS, THAT A RESERVE OFFICER WHO IS RETIRED FOR PHYSICAL DISABILITY AND AUTHORIZED RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 27, 1940, 34 U.S.C. 855C-1, AS IN CAPTAIN BURKHARDT'S CASE, IS ENTITLED TO DISABILITY RETIREMENT PAY REGARDLESS OF WHETHER HE CONTINUES TO HOLD A STATUS AS A COMMISSIONED OFFICER IN A RESERVE COMPONENT. IN OTHER WORDS, THE RIGHT TO SUCH DISABILITY RETIREMENT PAY AUTHORIZED UNDER THE CITED 1940 ACT IS NOT CONTINGENT UPON THE MEMBER'S MILITARY STATUS AFTER THE DATE OF HIS RETIREMENT.

IN CAPTAIN BURKHARDT'S CASE, HOWEVER, THERE IS FOR CONSIDERATION THE QUESTION WHETHER HE WOULD BE ELIGIBLE TO CONTINUE TO RECEIVE SUCH RETIREMENT PAY IF HE BECAME A CITIZEN OF A FOREIGN COUNTRY. IN THAT CONNECTION, IN THE CASE OF UNITED STATES V. GAY, 264 U.S. 353, THERE WAS CONSIDERED THE CASE OF A RETIRED MACHINIST IN THE REGULAR NAVY WHO WAS A NATURALIZED CITIZEN AND WHO SECURED PERMISSION OF THE NAVY DEPARTMENT TO REMAIN ABROAD, REPORTING HIS ADDRESS EACH YEAR. THE COURT HELD THAT THE NAVY DEPARTMENT HAD NO RIGHT TO DISCONTINUE HIS RETIRED PAY ON THE THEORY THAT HE HAD EXPATRIATED HIMSELF UNDER THE ACT OF MARCH 2, 1907, 34 STAT. 1228, BY RESIDING TWO YEARS IN SWITZERLAND, THE PLACE OF HIS BIRTH. WILL BE NOTED, HOWEVER, THAT THE GAY CASE INVOLVED A MEMBER OF THE REGULAR NAVY AND THAT HIS RIGHT TO RECEIVE RETIRED PAY WAS DEPENDENT UPON A CONTINUATION OF HIS STATUS IN THE REGULAR NAVY. SEE UNITED STATES V. TYLER, 105 U.S. 244. SEE, ALSO, UNITED STATES V. MORTON, 112 U.S. 1, 7; SAWYER V. UNITED STATES, 107 F. (2D) 416, 423; AND WHITE V. TREIBLY, 19 F. (2D) 712.

THE RIGHT OF AN INDIVIDUAL TO CONTINUE TO RECEIVE PHYSICAL DISABILITY RETIRED PAY UNDER THE 1940 ACT IS NOT AFFECTED BY THE TERMINATION OF HIS MILITARY STATUS AND IT IS OUR VIEW THAT CAPTAIN BURKHARDT'S RIGHT TO CONTINUE TO RECEIVE DISABILITY RETIRED PAY UNDER THAT ACT WOULD NOT TERMINATE MERELY BECAUSE HE BECOMES A CITIZEN OF NEW ZEALAND. COMPARE OUR DECISION OF OCTOBER 20, 1950, B-58879, TO THE THEN SECRETARY OF THE NAVY. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE

QUESTION 3 IS ANSWERED IN THE NEGATIVE ON THE BASIS THAT THE RIGHT OF A MEMBER OF THE REGULAR NAVY TO RETIRED PAY TERMINATES IF HIS STATUS IN THE REGULAR NAVY TERMINATES AND LOSS OF UNITED STATES CITIZENSHIP IS INCONSISTENT WITH A CONTINUATION OF THAT STATUS.

THE ACTING JUDGE ADVOCATE GENERAL ALSO REQUESTS A DECISION CONCERNING MEMBERS "DROPPED FROM THE ROLLS," IT BEING STATED,"IT WOULD BE HELPFUL IN OTHER CASES PENDING IN THIS OFFICE TO OBTAIN HIS DECISION CONCERNING THE ENTITLEMENT OF A DISABILITY RETIRED RESERVIST OR REGULAR, DROPPED FROM THE ROLLS SUBSEQUENT TO HIS RETIREMENT, TO RETIRED PAY AFTER HIS NAME WAS REMOVED FROM THE ROLLS.'

IT HAS BEEN INFORMALLY ASCERTAINED THAT THE AUTHORITY UNDER WHICH REMOVAL ACTION IS CONTEMPLATED IS THE ACT OF AUGUST 10, 1956, 70A STAT. 89, 10 U.S.C. 1161 (B) AND 1163 (B), WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 1161 (B) THE PRESIDENT MAY DROP FROM THE ROLLS OF ANY ARMED FORCE ANY COMMISSIONED OFFICER (1) WHO HAS BEEN ABSENT WITHOUT AUTHORITY FOR AT LEAST THREE MONTHS, OR (2) WHO IS SENTENCED TO CONFINEMENT IN A FEDERAL OR STATE PENITENTIARY OR CORRECTIONAL INSTITUTION AFTER HAVING BEEN FOUND GUILTY OF AN OFFENSE BY A COURT OTHER THAN A COURT-MARTIAL OR OTHER MILITARY COURT, AND WHOSE SENTENCE HAS BECOME FINAL.

SEC. 1163 (B) THE PRESIDENT OR THE SECRETARY CONCERNED MAY DROP FROM THE ROLLS OF THE ARMED FORCE CONCERNED ANY RESERVE (1) WHO HAS BEEN ABSENT WITHOUT AUTHORITY FOR AT LEAST THREE MONTHS, OR (2) WHO IS SENTENCED TO CONFINEMENT IN A FEDERAL OR STATE PENITENTIARY OR CORRECTIONAL INSTITUTION AFTER HAVING BEEN FOUND GUILTY OF AN OFFENSE BY A COURT OTHER THAN A COURT -MARTIAL OR OTHER MILITARY COURT, AND WHOSE SENTENCE HAS BECOME FINAL.

PRIOR TO THE ABOVE CITED ACT, SIMILAR STATUTORY AUTHORITY WAS CONTAINED IN ARTICLES 36 AND 37 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY; SECTION 10 OF THE ACT OF MAY 5, 1950, 64 STAT. 146, 50 U.S.C. 739; AND SECTION 249 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 495, 50 U.S.C. 992.

UNDER THE PROVISIONS OF 10 U.S.C. 1161 (B) AND 1163 (B), THE PRESIDENT OR THE SECRETARY CONCERNED IS AUTHORIZED TO "DROP FROM THE ROLLS" ANY COMMISSIONED OFFICER OR ANY RESERVE OF THE ARMED FORCES FOR THE REASONS STATED. WHETHER ACTION UNDER THOSE PROVISIONS RESULTS IN THE LOSS OF THE RIGHT TO DISABILITY RETIRED PAY BY A RETIRED RESERVIST OR REGULAR WOULD NECESSARILY DEPEND ON THE BASIS ON WHICH THE DISABILITY RETIRED PAY WAS AUTHORIZED. THE MERE FACT THAT THE NAME OF A FORMER RESERVIST IS DROPPED FROM SOME ROLL ON WHICH IT APPEARS WOULD NOT IN ITSELF DEPRIVE HIM OF HIS RIGHT TO CONTINUE TO RECEIVE PHYSICAL DISABILITY RETIRED PAY IF OTHERWISE ENTITLED TO SUCH PAY. SUCH A FORMER RESERVIST, WHO HOLDS NO STATUS WHATSOEVER WITH THE ARMED FORCES AND WHO IS NOT SUBJECT TO RECALL TO ACTIVE DUTY, WOULD NOT APPEAR TO BE PRECLUDED FROM RECEIVING PHYSICAL DISABILITY RETIRED PAY SIMPLY BECAUSE HIS NAME WAS DROPPED FROM A LIST OF RETIRED FORMER RESERVISTS. IN THIS CONNECTION, HOWEVER, SEE THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 740C, BARRING PAYMENT OF ANY ANNUITY OR RETIRED PAY TO ANY PERSON WHO COMMITS AN ACT OR OFFENSE COMING WITHIN ITS PROVISIONS, AND SECTION 8 OF THAT ACT, 5 U.S.C. 740, WHICH AUTHORIZES THE PRESIDENT TO DROP FROM THE ROLLS ANY MEMBER OF THE ARMED FORCES WHO IS DEPRIVED OF RETIRED PAY UNDER THE PROVISIONS OF THAT ACT.

IN ALLEN V. UNITED STATES, 117 C.1CLS. 385 (DECIDED JULY 10, 1950), THERE WAS CONSIDERED THE CASE OF A RETIRED REGULAR NAVY OFFICER WHOSE NAME HAD BEEN STRICKEN FROM THE ROLLS BY THE PRESIDENT (UNDER THE PROVISIONS OF ARTICLES 36 AND 37 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY) AFTER HIS CONVICTION AND SENTENCE TO FEDERAL PENITENTIARY BY A UNITED STATES DISTRICT COURT. THE COURT HELD THAT THE OFFICER WAS NOT ENTITLED TO RETIRED PAY THEREAFTER NOTWITHSTANDING THAT HE APPLIED TO THE PRESIDENT FOR TRIAL BY COURT-MARTIAL AND THAT SUCH TRIAL HAD NOT BEEN GRANTED FOR SIX MONTHS AFTER HIS APPLICATION. HENCE, IN THE CASE OF AN INDIVIDUAL WHOSE RIGHT TO RECEIVE DISABILITY RETIRED PAY IS CONTINGENT UPON HIS CONTINUED STATUS IN THE ARMED FORCES, AND IF THE DROPPING FROM THE ROLLS UNDER THE PROVISIONS OF 10 U.S.C. 1161 (B) AND 1163 (B) MATERIALLY ALTERS SUCH STATUS, IT IS OUR VIEW THAT A RIGHT TO DISABILITY RETIRED PAY WOULD CEASE. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.