B-135521, MAY 26, 1958, 37 COMP. GEN. 789

B-135521, MAY 26, 1958, 37 COMP. GEN. 789

MILITARY PERSONNEL - RETIRED PAY - SERVICE CREDITS - DUAL STATUS AS OFFICER AND ENLISTED MEMBER A MEMBER OF THE UNIFORMED SERVICES WHO HELD A COMMISSION IN THE AIR FORCE RESERVE CONCURRENTLY WITH A STATUS AS A RETIRED ENLISTED MAN IN THE ENLISTED RESERVE CORPS DURING A PERIOD PRIOR TO JANUARY 1, 1953--- THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952--- WHEN SUCH DUAL STATUS WAS PERMISSIBLE MAY HAVE THE INACTIVE SERVICE AS A COMMISSIONED OFFICER COUNTED IN THE COMPUTATION OF BASIC PAY FOR RETIRED PAY PURPOSES UNDER 10 U.S.C. 8911 UPON RETIREMENT OF THE MEMBER FOLLOWING RECALL AND ACTIVE DUTY AS A COMMISSIONED OFFICER.

TO LIEUTENANT COLONEL C. W. GRIFFIN, DEPARTMENT OF THE AIR FORCE, MAY 26, 1958:

BY LETTER DATED MARCH 11, 1958, THE OFFICE OF DIRECTORATE OF ACCOUNTING AND FINANCE FORWARDED YOUR LETTER OF FEBRUARY 21, 1958, WITH ENCLOSURES, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL FLOYD C. BASORE, USAF, RETIRED, FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 26 YEARS' SERVICE AND SUCH PAY COMPUTED AS 65 PERCENT OF BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 22 YEARS' SERVICE, FOR THE PERIOD DECEMBER 1, 1957, TO JANUARY 31, 1958. YOUR SUBMISSION WAS ASSIGNED AIR FORCE REQUEST NO. 324.

IT APPEARS FROM THE INFORMATION FURNISHED THAT COLONEL BASORE WAS RETIRED AS A MASTER SERGEANT ON JUNE 30, 1948, UNDER THE PROVISIONS OF PUBLIC LAW 190, 79TH CONGRESS, AS AMENDED (NOW CODIFIED INTO SECTION 8914, TITLE 10 OF THE U.S. CODE), AFTER COMPLETING 20 YEARS, 1 MONTH AND 26 DAYS ACTIVE SERVICE, AND 20 YEARS 2 MONTHS AND 10 DAYS SERVICE FOR BASIC PAY PURPOSES, AND WAS TRANSFERRED TO THE AIR FORCE RESERVE. IT FURTHER APPEARS THAT HE WAS PAID RETIRED PAY FOR THE PERIOD JULY 1, 1948, THROUGH JULY 16, 1952, IN THE GRADE OF MASTER SERGEANT; THAT HE WAS RECALLED TO EXTENDED ACTIVE DUTY ON JULY 17, 1952, IN HIS RESERVE GRADE OF MAJOR, AND WAS PROMOTED TO THE GRADE OF LIEUTENANT COLONEL, AIR FORCE RESERVE, EFFECTIVE JULY 1, 1955. YOU POINT OUT THAT BY SERVING ON ACTIVE DUTY IN A COMMISSIONED GRADE SUBSEQUENT TO HIS RETIREMENT AS AN ENLISTED MAN, HE ACQUIRED THE TEN YEAR'S ACTIVE COMMISSIONED SERVICE NECESSARY TO ESTABLISH ELIGIBILITY FOR RETIREMENT BENEFITS AS A COMMISSIONED OFFICER UNDER SECTION 8911, TITLE 10 OF THE U.S.C.

BY PARAGRAPHS 29 AND 30, SPECIAL ORDERS NO. 227, DEPARTMENT OF THE AIR FORCE, NOVEMBER 20, 1957, THE OFFICER, UPON HIS OWN APPLICATION, WAS DISCHARGED FROM HIS RETIRED STATUS AND FROM HIS STATUS AS A MASTER SERGEANT, AIR FORCE RESERVE, EFFECTIVE NOVEMBER 30, 1957, AND IN THE SAME ORDERS (PARAGRAPH 30) THE OFFICER WAS RELIEVED FROM ASSIGNMENT AND DUTY AS A MAJOR AND WAS RETIRED IN THE GRADE OF LIEUTENANT COLONEL EFFECTIVE NOVEMBER 30, 1957. THE STATEMENT OF SERVICE WHICH ACCOMPANIED YOUR SUBMISSION SHOWS THAT, EXCEPT FOR A PERIOD OF APPROXIMATELY SEVEN MONTHS, COLONEL BASORE SERVED AS AN ENLISTED MAN IN THE REGULAR ARMY DURING THE PERIOD NOVEMBER 4, 1927, TO JUNE 18, 1942, AND AS AN ENLISTED MAN IN THE UNITED STATES AIR FORCE FROM JANUARY 12, 1948, TO JUNE 30, 1948. NOTATION APPEARING AFTER THE LATTER ENTRY STATES THAT THE ENLISTED MAN WAS RETIRED IN THE GRADE OF MASTER SERGEANT UNDER SECTION II, ARMY REGULATIONS 615-395, AND TRANSFERRED TO THE ENLISTED RESERVE CORPS. THAT STATEMENT IS FURTHER AMPLIFIED WITH THE REMARK THAT " COM AF RES REMAINED IN EFFECT.' IN THAT CONNECTION, THE RECORD SHOWS THAT THE OFFICER WAS APPOINTED A MAJOR IN THE AIR FORCE RESERVE ON JUNE 10, 1947; THAT HE WAS APPOINTED A MAJOR IN THE AIR FORCE RESERVE (INDEFINITE) ON NOVEMBER 25, 1952; AND THAT HE WAS PROMOTED TO LIEUTENANT COLONEL, AIR FORCE RESERVE, ON JULY 1, 1955. THE STATEMENT OF SERVICE ALSO SHOWS THAT COLONEL BASORE SERVED ON ACTIVE DUTY AS AN OFFICER IN THE ARMY OF THE UNITED STATES FROM JUNE 19, 1942, TO JANUARY 7, 1948, AND AS AN OFFICER IN THE UNITED STATES AIR FORCE FROM JULY 17, 1952, TO NOVEMBER 30, 1957.

YOU SAY THAT THE OFFICER WAS CERTIFIED FOR RETIRED PAY COMMENCING DECEMBER 1, 1957, IN THE GRADE OF LIEUTENANT COLONEL WITH 25 YEARS, 6 MONTHS AND 10 DAYS ACTIVE SERVICE, AND 29 YEARS AND 7 MONTHS FOR PAY PURPOSES, WHICH INCLUDED 4 YEARS AND 16 DAYS ON THE RETIRED LIST IN AN INACTIVE STATUS AS A MASTER SERGEANT. YOU RELATE THAT THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HAS EXPRESSED AN OPINION THAT SERVICE FROM JULY 1, 1948, TO JULY 16, 1952, IS CREDITABLE IN DETERMINING THE BASIC PAY UPON WHICH RETIRED PAY IS COMPUTED, SINCE IT WAS BASED ON SERVICE AS A MAJOR, AIR FORCE RESERVE, RATHER THAN SERVICE AS A RETIRED ENLISTED MAN, AND MAY BE DISTINGUISHED FROM THE SITUATION OF AN ENLISTED MAN ADVANCED ON THE RETIRED LIST TO COMMISSIONED GRADE. YOU FEEL, HOWEVER, THAT SOME DOUBT EXISTS AS TO THE PROPRIETY OF CREDITING SUCH SERVICE FOR RETIRED PAY SINCE SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B), PRECLUDES SERVICE ON THE RETIRED LIST (OTHER THAN ACTIVE SERVICE) FROM BEING USED TO INCREASE RETIRED PAY WHILE ON A RETIRED LIST IN A RETIRED STATUS.

COLONEL BASORE WAS FIRST RETIRED AS A MASTER SERGEANT IN THE REGULAR AIR FORCE UNDER THE PROVISIONS OF THE ACT OF OCTOBER 6, 1945, AS AMENDED BY SECTION 6 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 995, 996, 10 U.S.C. 948. THAT ACT PROVIDED THAT " WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY ( REGULAR AIR FORCE) SHALL HAVE COMPLETED A MINIMUM OF TWENTY BUT LESS THAN THIRTY YEARS OF ACTIVE FEDERAL SERVICE, HE MAY, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR ( SECRETARY OF THE ARMY OR SECRETARY OF THE AIR FORCE) SHALL PRESCRIBE, UPON HIS OWN REQUEST BE TRANSFERRED TO THE ENLISTED RESERVE CORPS AND THEREUPON WILL BE PLACED UPON THE RETIRED LIST OF THE REGULAR ARMY ( AIR FORCE).' PROVISIONS SUBSTANTIALLY THE SAME ARE NOW CONTAINED IN SECTION 8914 OF THE NEW TITLE 10 U.S.C. FOLLOWING A PERIOD OF ACTIVE DUTY AS A COMMISSIONED OFFICER, COLONEL BASORE WAS SUBSEQUENTLY RETIRED ( NOVEMBER 30, 1957) AS AN OFFICER UNDER THE PROVISIONS OF SECTION 8911 OF TITLE 10 OF THE U.S.C. SECTION 8991 OF THE NEW TITLE 10 PRESCRIBES THE METHOD FOR COMPUTING RETIRED PAY FOR RETIREMENT UNDER SECTION 8911 AS FOLLOWS: THE AMOUNT OF THE MONTHLY BASIC PAY OF THE MEMBER'S RETIRED GRADE MULTIPLIED BY 2 1/2 PERCENT OF YEARS OF SERVICE CREDITED TO HIM IN DETERMINING BASIC PAY.

UNDER THE PROVISIONS OF SECTION 202 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233 (A) (2), MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO COUNT FOR BASIC PAY PURPOSES "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS * * * IN ANY OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES, OR IN THE REGULAR ARMY RESERVE * * * OR IN THE AIR FORCE RESERVE * * *.' SECTION 202 (B) OF 1949 THE ACT PROVIDES, IN EXPRESS TERMS, THAT EXCEPT FOR ACTIVE SERVICE, SERVICE CREDIT AUTHORIZED IN THAT SECTION "SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY * * * EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT.' DURING THE PERIOD JULY 1, 1948, TO JULY 16, 1952, COLONEL BASORE HELD A DUAL STATUS, NAMELY, INACTIVE STATUS AS AN OFFICER IN THE AIR FORCE RESERVE, AND AN INACTIVE STATUS AS AN ENLISTED MAN ON THE RETIRED LIST ( ENLISTED RESERVE CORPS). SECTION 229 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 488, 50 U.S.C. 953 EXPRESSLY PROVIDES THAT," EXCEPT AS OTHERWISE PROVIDED BY THIS ACT, NO PERSON SHALL BE A MEMBER OF MORE THAN ONE RESERVE COMPONENT AT THE SAME TIME.' HOWEVER, PRIOR TO JANUARY 1, 1953, THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952, DUAL MEMBERSHIP AS AN OFFICER OF THE OFFICERS' RESERVE CORPS AND AS A RETIRED ENLISTED MEMBER IN THE ENLISTED RESERVE CORPS WAS PERMISSIBLE. SEE IN THAT CONNECTION THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY DATED NOVEMBER 21, 1952, JAGA 1952/7716 (2 DIG. OPS., RES F SECTION 41.7, PAGE 670). ALSO, SEE THE FOLLOWING DIGEST OF OPINION ON PAGE 671, RESPECTING AN ENLISTED MAN TRANSFERRED TO THE ENLISTED RESERVE CORPS, AND THE DIGEST OF OPINIONS IN 3 DIG. OPS, RES F SECTION 41.7, PAGES 666-677.

SINCE COLONEL BASORE HELD A COMMISSION AS AN OFFICER IN THE AIR FORCE RESERVE CONCURRENTLY WITH HIS STATUS AS A RETIRED ENLISTED MAN IN THE ENLISTED RESERVE CORPS, AND SINCE THE PERIOD DURING WHICH HE HELD A RESERVE COMMISSION IS CREDITABLE FOR BASIC PAY PURPOSES UNDER THE PROVISIONS OF SECTION 202 (A) (2) OF THE 1949 ACT, THE OFFICER IS ENTITLED TO COUNT SUCH SERVICE DURING THE PERIOD JULY 1, 1948, TO JULY 16, 1952, IN COMPUTING BASIC PAY UNDER THE PROVISIONS OF SECTION 8991, TITLE 10, U.S.C.

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