B-135426, MAY 5, 1958, 37 COMP. GEN. 728

B-135426, MAY 5, 1958, 37 COMP. GEN. 728

MILITARY PERSONNEL - PAY - RETIRED - AUXILIARY RESERVE SERVICE - HONORARY RESERVE SERVICE INACTIVE SERVICE IN THE AUXILIARY RESERVE, WHICH WAS A SECTION OF THE OFFICERS' RESERVE CORPS, IS SPECIFICALLY CREDITABLE UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233, FOR THE PURPOSE OF COMPUTING A MEMBER'S ANNUAL BASE AND LONGEVITY PAY FOR RETIRED PAY PURPOSES UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. IN VIEW OF THE EXPRESS PROVISION OF SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B), WHICH PERMITS MEMBERS OF THE UNIFORMED SERVICES TO COUNT FOR BASIC PAY PURPOSES PERIODS IN THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS, THE HOLDING IN 28 COMP. GEN. 655 THAT HONORARY RESERVE SERVICE MAY NOT BE CREDITED FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 IS NO LONGER FOR APPLICATION. 25 COMP. GEN. 655, MODIFIED.

TO LIEUTENANT COLONEL C. W. GRIFFIN, DEPARTMENT OF THE AIR FORCE, MAY 5, 1958:

BY LETTER DATED MARCH 4, 1958, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED YOUR LETTER OF FEBRUARY 21, 1958 ( AIR FORCE REQUEST NO. 322), PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF COLONEL BERT R. KUSS, USAF ( RET.), FOR THE DIFFERENCE BETWEEN RETIRED PAY AS A COLONEL WITH OVER 26 YEARS' SERVICE AND RETIRED PAY AS A COLONEL WITH OVER 30 YEARS' SERVICE FOR THE PERIOD DECEMBER 1, 1957, TO JANUARY 31, 1958.

YOU SAY THAT COLONEL KUSS WAS RETIRED EFFECTIVE MARCH 31, 1951, UNDER THE PROVISIONS OF SECTION 1331, TITLE 10, U.S. CODE, HAVING COMPLETED A TOTAL OF 10.511 YEARS OF SERVICE FOR PERCENTAGE PURPOSES; 25 YEARS, 2 MONTHS AND 24 DAYS FOR BASIC PAY PURPOSES, WHICH INCLUDES 5 YEARS, 2 MONTHS AND 13 DAYS SERVED IN THE AUXILIARY RESERVE DURING THE PERIOD JULY 24, 1930, THROUGH OCTOBER 6, 1935. YOU STATE THAT DURING THE PERIOD APRIL 1, 1951, TO NOVEMBER 30, 1957, THE OFFICER WAS PAID RETIRED PAY WITH CREDIT FOR OVER 30 YEARS' SERVICE FOR LONGEVITY PURPOSES, BUT IN THE COURSE OF AUDITING HIS RETIRED PAY ACCOUNT THE PERIOD SERVED IN THE AUXILIARY RESERVE WAS NOTED AND, ON THE BASIS OF OUR DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, HIS PAY ACCOUNT WAS RECOMPUTED BY MULTIPLYING HIS YEARS OF SERVICE FOR PERCENTAGE PURPOSES BY THE MONTHLY BASIC PAY OF A COLONEL WITH OVER 26 YEARS' SERVICE INSTEAD OF WITH OVER 30 YEARS' SERVICE.

YOU REFER TO OUR DECISION IN 22 COMP. GEN. 358 WHEREIN IT WAS HELD THAT SERVICE IN THE " INACTIVE RESERVE" MAY BE CREDITED FOR LONGEVITY PAY PURPOSES IN COMPUTING THE PAY OF A MEMBER OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY AND THE LATER HOLDING IN 28 COMP. GEN. 655 THAT SERVICE IN THE HONORARY RESERVE MAY NOT BE INCLUDED IN THE COMPUTATION OF LONGEVITY FOR RETIRED PAY PURPOSES. ALSO YOU POINT OUT THAT SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B), ENACTED SUBSEQUENT TO 28 COMP. GEN. 655, PROVIDES CREDIT FOR BASIC PAY PURPOSES FOR PERIODS OF MEMBERSHIP IN THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS OR ORGANIZED RESERVE CORPS. YOU STATE THAT THE " AUXILIARY RESERVE, INACTIVE RESERVE, HONORARY RESERVE, AND RETIRED RESERVE, EACH BEING SUCCESSORS OF THE OTHER IN THE ORDER LISTED, ALL APPEAR TO BE INACTIVE SECTIONS OF THE OFFICERS' RESERVE CORPS," AND YOU EXPRESS DOUBT AS TO WHETHER THE PERIOD OF TIME SPENT IN THE AUXILIARY RESERVE BY COLONEL KUSS CONSTITUTES SERVICE CREDITABLE FOR BASIC PAY PURPOSES IN COMPUTING HIS RETIRED PAY.

COLONEL KUSS WAS RETIRED EFFECTIVE MARCH 31, 1951, UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036, (THE PERTINENT PROVISIONS OF WHICH ARE NOW CONTAINED IN 10 U.S.C. 1331-1337 AND 1401, FORMULA 3), BY REASON OF HAVING MET THE PRESCRIBED AGE AND SERVICE REQUIREMENTS. THE RETIRED PAY THERE AUTHORIZED FOR A PERSON ELIGIBLE TO RECEIVE IT IS REQUIRED TO BE COMPUTED AS EXPRESSLY PRESCRIBED IN SECTION 303 OF THAT ACT, 62 STAT. 1088, 10 U.S.C. 1036 (B), ON THE BASIS OF---

* * * PAY AT AN ANNUAL RATE EQUAL TO 2 1/2 PERCENTUM OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE * * *. MULTIPLIED BY THE NUMBER OF YEARS SERVICE CREDITABLE TO HIM UNDER THAT ACT. PROVISIONS SUBSTANTIALLY THE SAME AS THE ABOVE STATUTORY PROVISIONS WERE REENACTED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 106, 10 U.S.C. 1401, FORMULA 3.

UNDER THE ABOVE-QUOTED PROVISIONS OF SECTION 303 (AND 10 U.S.C. 1401, FORMULA 3) THE ANNUAL BASE AND LONGEVITY (BASIC) PAY WHICH COLONEL KUSS WOULD RECEIVE "IF SERVING AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE," NECESSARILY WOULD INCLUDE, IN THE COMPUTATION OF SUCH PAY, ALL PERIODS OF SERVICE AUTHORIZED BY LAW FOR BASIC PAY PURPOSES. IN THAT CONNECTION, SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, 37 U.S.C. 103 (1946 USED.), AUTHORIZED, IN COMPUTING LONGEVITY PAY, THE CREDITING OF ALL PERIODS DURING WHICH A COMMISSION WAS HELD IN THE OFFICER'S RESERVE CORPS. UNDER SECTION 202 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, 37 U.S.C. 233 (A) (2), ADDITIONAL SERVICE CREDIT IS AUTHORIZED FOR BASIC PAY PURPOSES FOR PERIODS DURING WHICH A MEMBER HELD AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE OFFICERS' RESERVE CORPS AND, AS YOU INDICATE, SECTION 202 (B) PERMITS MEMBERS OF THE UNIFORMED SERVICES TO COUNT FOR BASIC PAY PURPOSES PERIODS WHILE A MEMBER OF THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS OR ORGANIZED RESERVE CORPS.

THE AUXILIARY RESERVE WAS ESTABLISHED AS A SECTION IN THE OFFICERS' RESERVE CORPS PRESUMABLY UNDER AUTHORITY CONTAINED IN SECTION 37 OF THE NATIONAL DEFENSE ACT, 39 STAT. 189. SEE PARAGRAPH 6C, ARMY REGULATIONS 140-5, DECEMBER 15, 1924. THE AUXILIARY RESERVE WAS SUCCEEDED IN ORDER BY THE FOLLOWING SECTIONS OF THE OFFICERS' RESERVE CORPS: INACTIVE RESERVE (SEE PARAGRAPH 6, ARMY REGULATIONS 140-5, JUNE 16, 1936); HONORARY RESERVE (SEE SECTION VI, WAR DEPARTMENT CIRCULAR 356, DECEMBER 3, 1946, AND SECTION I, DEPARTMENT OF THE ARMY CIRCULAR 246, AUGUST 13, 1948); AND THE RETIRED RESERVE (SEE SECTION 213 (A), ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 485, 50 U.S.C. 933 (A) ).

IN DECISION OF OCTOBER 15, 1942, B-28833, 22 COMP. GEN. 358, WE HELD THAT, UNDER THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, TIME DURING WHICH A COMMISSION WAS HELD IN THE OFFICERS' RESERVE CORPS, EVEN THOUGH THE OFFICER IS CARRIED IN THE INACTIVE RESERVE, IS TO BE INCLUDED IN COMPUTING THE LONGEVITY PAY OF A RESERVE OFFICER ON ACTIVE DUTY. IN RESPONSE TO CERTAIN QUESTIONS PRESENTED BY THE SECRETARY OF THE ARMY CONCERNING THE ADMINISTRATION OF TITLE III OF PUBLIC LAW 810, WE HELD IN DECISION OF MAY 20, 1949, B 83703, 28 COMP. GEN. 655, IN ANSWER TO QUESTION 2 (D), THAT OUR OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE PERIOD OF TIME DURING WHICH AN OFFICER IS IN THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS MAY BE CREDITED FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY.

IN OUR DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, WE COMPARED THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS WITH ITS COUNTERPART IN THE NAVY, NAMELY, THE HONORARY RETIRED LIST OF THE NAVAL RESERVE. CONSIDERING THEIR SIMILARITY, THE CONCLUSION THEREIN WAS BASED, TO SOME EXTENT, ON THE PROVISIONS OF LAW THEN IN EFFECT, THAT IS, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C. 115, WHICH, IN AUTHORIZING COUNTING ALL "ACTIVE SERVICE" PERFORMED AFTER RETIREMENT TO INCREASE RETIRED PAY, WAS VIEWED AS CLEARLY NEGATIVING ANY INTENTION TO AUTHORIZE COUNTING INACTIVE SERVICE AFTER RETIREMENT FOR THAT PURPOSE. COMPARE 23 COMP. GEN. 284. AS YOU INDICATE, OUR DECISION IN 28 COMP. GEN. 655 WAS RENDERED PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. ANY DOUBT THAT MIGHT HAVE EXISTED PRIOR TO OCTOBER 1, 1949, WITH RESPECT TO INCLUDING CREDIT FOR INACTIVE SERVICE IN THE HONORARY RESERVE WAS PUT TO REST BY THE EXPRESS PROVISIONS OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (A), AUTHORIZING FULL TIME FOR ALL PERIODS "DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS * * * IN THE OFFICERS' RESERVE CORPS" AND THE QUALIFIED PROVISIONS IN SECTION 202 (B) AUTHORIZING "ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS * * * WHILE A MEMBER OF THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS OR ORGANIZED RESERVE CORPS.'

SINCE THE AUXILIARY RESERVE WAS A SECTION IN THE OFFICERS RESERVE CORPS, COLONEL KUSS IS ENTITLED UNDER THE PROVISIONS OF SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949 TO INCLUDE HIS SERVICE IN THE OFFICERS' RESERVE CORPS, EVEN THOUGH HE WAS ASSIGNED TO THE AUXILIARY RESERVE SECTION, FOR THE PURPOSE OF COMPUTING HIS ANNUAL BASE AND LONGEVITY (BASIC) PAY FOR RETIRED PAY PURPOSES UNDER PUBLIC LAW 810. IT IS ASSUMED, OF COURSE, THAT THE OFFICER WAS ASSIGNED TO THE AUXILIARY RESERVE ONLY FOR PERIODS HE HELD AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE OFFICERS' RESERVE CORPS. SEE 35 COMP. GEN. 504, 506. IN THE LIGHT OF THE EXPRESS PROVISIONS NOW CONTAINED IN SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949 WITH RESPECT TO THE HONORARY RESERVE, THE ANSWER TO QUESTION 2 (D) IN DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, IS NO LONGER FOR APPLICATION.

ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER RETURNED HEREWITH IS AUTHORIZED, IF OTHERWISE CORRECT.