B-137737, DECEMBER 9, 1958, 38 COMP. GEN. 429

B-137737, DECEMBER 9, 1958, 38 COMP. GEN. 429

MILITARY PERSONNEL - RETIRED PAY - RESERVISTS - RETENTION ON ACTIVE DUTY AFTER QUALIFICATION FOR RETIRED PAY UNDER 10 U.S.C. 1331 THE AUTHORITY VESTED IN THE SECRETARIES OF THE MILITARY SERVICES UNDER 10 U.S.C. 676 TO RETAIN MEMBERS ON ACTIVE DUTY AFTER THEY HAVE QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. IS BROAD ENOUGH TO PERMIT THE RETENTION ON ACTIVE DUTY OF MEMBERS OF RESERVE COMPONENTS WHO WERE RETAINED ON ACTIVE DUTY SOLELY TO ESTABLISH ELIGIBILITY FOR RETIRED PAY UNDER 10 U.S.C. 1331 AND ACTIVE DUTY PERFORMED AFTER QUALIFICATION BY REASON OF AGE AND SERVICE FOR RETIRED PAY MAY BE CREDITED FOR RETIREMENT UNDER 10 U.S.C. 3911.

TO THE SECRETARY OF DEFENSE, DECEMBER 9, 1958:

REFERENCE IS MADE TO LETTER OF OCTOBER 20, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING OUR DECISION ON CERTAIN QUESTIONS CONTAINED IN COMMITTEE ACTION NO. 226 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. MAY A RESERVE OFFICER OF THE ARMY, WHO HAS NOT MET THE SERVICE REQUIREMENTS PRESCRIBED IN 10 U.S.C. 1331 (A) (2) OR (3) WHEN HE BECOMES 60 YEARS OF AGE, BUT WHO WOULD BE ENTITLED TO RETIRED PAY UNDER THAT SECTION WITH 2 YEARS, BE RETAINED ON ACTIVE DUTY SUBSEQUENT TO THE DATE SUCH REQUIREMENTS ARE MET IN ORDER TO QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 3911?

2. MAY A RESERVE OFFICER OF THE ARMY WHO ON HIS 60TH BIRTHDAY MEETS THE SERVICE REQUIREMENTS THAT ARE NECESSARY TO ESTABLISH ELIGIBILITY FOR RETIRED PAY UNDER 10 U.S.C. 1331, BE RETAINED ON ACTIVE DUTY BEYOND THE MANDATORY AGE LIMITATION IN ORDER TO QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 3911?

3. IF THE ANSWER TO EITHER QUESTION 1 OR 2 ABOVE IS IN THE AFFIRMATIVE, WHAT IS THE MAXIMUM NUMBER OF YEARS THE OFFICER MAY BE RETAINED ON ACTIVE DUTY, AFTER HE MEETS THE SERVICE REQUIREMENTS CONTAINED IN 10 U.S.C. 1331 OR BECOMES 60 YEARS OF AGE, SO THAT HE MAY QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 3911?

THE RESERVE OFFICER PERSONNEL ACT OF 1954, 50 U.S.C. 1181-1399, PROVIDES FOR OFFICERS OF THE RESERVE COMPONENTS A STATUTORY BASIS FOR PROMOTION AND ELIMINATION COMPARABLE IN SOME RESPECTS TO THAT PROVIDED FOR OFFICERS OF THE REGULAR COMPONENTS BY THE OFFICER PERSONNEL ACT OF 1947, 34 U.S.C. 3A NOTE. THE 1954 ACT SPELLS OUT PROCEDURES FOR FORCED ATTRITION AMONG OFFICERS OF THE RESERVE COMPONENTS ON THE BASIS OF FAILURE OF SELECTION FOR PROMOTION, LENGTH OF SERVICE AND MAXIMUM AGE. THE DATES THERE FIXED FOR INVOLUNTARY SEPARATION OF RESERVE OFFICERS FROM AN ACTIVE STATUS ARE SUBJECT TO DELAY UNDER OTHER PROVISIONS OF THAT ACT WITH RESPECT TO OFFICERS WHO NEED THE COMPARATIVELY SMALL PERIODS OF ADDITIONAL SERVICE THERE MENTIONED IN ORDER TO QUALIFY FOR RETIRED PAY UNDER CERTAIN PROVISIONS OF LAW, INCLUDING TITLES II AND III OF THE ACT OF JUNE 29, 1948, THE APPLICABLE PROVISIONS OF WHICH ARE NOW CODIFIED IN 10 U.S.C. 3911 AND CHAPTER 67, TITLE 10 U.S.C. INSOFAR AS SUCH SAVINGS PROVISIONS RELATE TO RETENTION ON ACTIVE DUTY OF ARMY RESERVE OFFICERS HOLDING THE GRADE OF BRIGADIER GENERAL OR BELOW, THEY DO NOT APPEAR TO BE APPLICABLE TO PERSONS WHO ARE OVER 60 YEARS OF AGE.

WITH RESPECT TO RETENTION OF RESERVE OFFICERS ON ACTIVE DUTY AFTER THEY REACH THE AGE OF 60, MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 ARE SUBJECT TO THE PROVISIONS OF SECTION 265 (D) OF THE ARMED FORCES RESERVE ACT OF 1952 AS ADDED BY THE ACT OF JULY 9, 1956, 70 STAT. 517, 50 U.S.C. 1016 (D), AND TO THE PROVISIONS OF SECTION 676, TITLE 10 OF THE UNITED STATES CODE.

SECTION 265 (D) OF THE ARMED FORCES RESERVE ACT OF 1952 PROVIDES THAT:

UNDER REGULATIONS PRESCRIBED BY THE APPROPRIATE SECRETARY, WHICH REGULATIONS SHALL BE AS UNIFORM AS PRACTICABLE, A MEMBER OF A RESERVE COMPONENT WHO IS ON ACTIVE DUTY AND IS WITHIN TWO YEARS OF QUALIFYING FOR RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY UNDER ANY PURELY MILITARY RETIREMENT SYSTEM, SHALL NOT BE INVOLUNTARY SEPARATED FROM THAT DUTY BEFORE HE QUALIFIED FOR THAT PAY UNLESS HIS SEPARATION IS APPROVED BY THE APPROPRIATE SECRETARY.

SECTION 676, TITLE 10, U.S.C. PROVIDES:

ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE (TITLE III OF THE ACT OF JUNE 29, 1948) MAY, WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, BE RETAINED ON ACTIVE DUTY, OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN SECTION 1332 (B) OF THIS TITLE. A MEMBER SO RETAINED SHALL BE CREDITED WITH THAT SERVICE FOR ALL PURPOSES.

IN DECISION OF NOVEMBER 13, 1956, 36 COMP. GEN. 390, WE HELD THAT UNDER SECTION 265 (D) A MEMBER OF A RESERVE COMPONENT WHO IS ON ACTIVE DUTY AND WHO IS WITHIN TWO YEARS OF QUALIFYING FOR RETIRED PAY UNDER 10 U.S.C. 3911, OR CHAPTER 67, TITLE 10 OF THE CODE, MAY BE RETAINED ON ACTIVE DUTY SUBSEQUENT TO ATTAINMENT OF THE AGE LIMITATION SET FORTH IN THE RESERVE OFFICER PERSONNEL ACT AND, AFTER QUALIFYING FOR RETIRED PAY UNDER SUCH PROVISIONS, BE PAID RETIRED PAY. IN DECISION OF AUGUST 25, 1958, B- 113387, 38 COMP. GEN. 146, AS MODIFIED BY DECISION OF SEPTEMBER 26, 1958, B-113387, 38 COMP. GEN. 246, WE HELD THAT UNDER 10 U.S.C. 676 A PERSON QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 MAY, WITH HIS CONSENT AND IN THE DISCRETION OF THE SECRETARY CONCERNED, BE RETAINED ON ACTIVE DUTY.

THUS, A RESERVE OFFICER WHO IS ON ACTIVE DUTY AND IS WITHIN TWO YEARS OF QUALIFYING FOR RETIRED PAY MAY NOT BE INVOLUNTARILY SEPARATED FROM THAT ACTIVE DUTY BEFORE HE QUALIFIES FOR THAT PAY UNLESS HIS SEPARATION IS APPROVED BY THE SECRETARY CONCERNED; AND ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 67 MAY BE RETAINED WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, ON ACTIVE DUTY OR IN ACTIVE SERVICE AND RECEIVE CREDIT FOR SUCH SERVICE FOR ALL PURPOSES. EACH CASE THE RETENTION IS SUBJECT TO THE CONTROL OF THE APPROPRIATE SECRETARY AND WHEN PROPERLY RETAINED THE MEMBER REMAINS IN AN ACTIVE-DUTY STATUS UNTIL RELEASED FROM THAT ACTIVE DUTY. IN SUCH CIRCUMSTANCES, WE SEE NO BASIS FOR CONCLUDING THAT ALL ACTIVE DUTY PERFORMED DURING A PERIOD OF RETENTION IN THOSE SITUATIONS IS ANY DIFFERENT FOR PAY AND ALLOWANCES PURPOSES THAN ACTIVE DUTY PERFORMED PRIOR TO THE DATE ON WHICH SEPARATION WOULD OTHERWISE BE REQUIRED OR THAT SUCH SERVICE MAY NOT BE CREDITED FOR THE PURPOSES OF ANY RETIREMENT LAW.

SINCE THE PROVISIONS OF 10 U.S.C. 676 AUTHORIZING THE INDEFINITE RETENTION ON ACTIVE DUTY OF PERSONS QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 APPEAR TO BE BROAD ENOUGH TO INCLUDE PERSONS WHO QUALIFY FOR THAT RETIRED PAY WHILE BEING RETAINED PURSUANT TO SECTION 265 (D), THE QUESTIONS ARE ANSWERED BY STATING THAT THE OFFICERS INVOLVED MAY BE RETAINED ON ACTIVE DUTY FOR AN INDEFINITE PERIOD BEYOND THE INDICATED DATE OR MAXIMUM AGE LIMITATION AND THAT THEY MAY QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 3911 WHILE SO SERVING.

THE QUESTION OF HOW LONG A MEMBER WHO HAS QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 SHALL BE RETAINED ON ACTIVE DUTY AFTER SUCH QUALIFICATION, IS A MATTER FOR DETERMINATION BY THE SECRETARY CONCERNED.