B-141725, SEP. 18, 1967

B-141725: Sep 18, 1967

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INDIVIDUAL WHO HAD OFFICER'S RESERVE CORPS COMMISSION TERMINATED AND WHO WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE MAY NOT HAVE CREDIT FOR INACTIVE NATIONAL GUARD RESERVE STATUS CONSIDERED IN DETERMINING 20 YEARS OF SERVICE TO QUALIFY FOR RETIRED PAY BENEFITS UNDER CH. 67. COLBY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6. EXPRESSING THE HOPE THAT THE MATTERS THEREIN MENTIONED WILL ENABLE THIS OFFICE TO REACH THE CONCLUSION THAT YOU ARE QUALIFIED FOR THE RETIRED PAY BENEFITS PRESCRIBED IN CHAPTER 67. THE OFFICIAL NATIONAL GUARD REGISTER FOR 1936 DISCLOSES THAT YOU WERE TRANSFERRED TO THE NATIONAL GUARD RESERVE. IT IS STATED THAT ON JULY 9. THE SUGGESTION IN YOUR LETTER THAT YOU ACTUALLY WERE A "RESERVE OFFICER OF THE UNITED STATES ARMY" AS LONG AS YOU HAD A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD IS WITHOUT MERIT.

B-141725, SEP. 18, 1967

ARMED SERVICES - RETIRED PAY - NATIONAL GUARD RESERVE SERVICE DECISION TO INDIVIDUAL CLAIMING RETIRED PAY ON BASIS OF NATIONAL GUARD RESERVE SERVICE. INDIVIDUAL WHO HAD OFFICER'S RESERVE CORPS COMMISSION TERMINATED AND WHO WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE MAY NOT HAVE CREDIT FOR INACTIVE NATIONAL GUARD RESERVE STATUS CONSIDERED IN DETERMINING 20 YEARS OF SERVICE TO QUALIFY FOR RETIRED PAY BENEFITS UNDER CH. 67, TITLE 10 U.S.C.

TO MR. ORVILLE T. COLBY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1967, EXPRESSING THE HOPE THAT THE MATTERS THEREIN MENTIONED WILL ENABLE THIS OFFICE TO REACH THE CONCLUSION THAT YOU ARE QUALIFIED FOR THE RETIRED PAY BENEFITS PRESCRIBED IN CHAPTER 67, TITLE 10, U.S.C. (DERIVED FROM TITLE III, ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087-1091).

THE OFFICIAL NATIONAL GUARD REGISTER FOR 1936 DISCLOSES THAT YOU WERE TRANSFERRED TO THE NATIONAL GUARD RESERVE, STATE OF CONNECTICUT, ON JUNE 3, 1928. ON PAGE 4, APPENDIX A, OF THE BRIEF FILED IN SUPPORT OF YOUR APPLICATION TO THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS FOR A CORRECTION OF YOUR MILITARY RECORDS, IT IS STATED THAT ON JULY 9, 1928, THE ADJUTANT GENERAL OF THE ARMY ADVISED YOU THAT YOUR COMMISSION IN THE OFFICERS' RESERVE CORPS HAD TERMINATED ON JUNE 2, 1928. THUS, THE SUGGESTION IN YOUR LETTER THAT YOU ACTUALLY WERE A "RESERVE OFFICER OF THE UNITED STATES ARMY" AS LONG AS YOU HAD A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD IS WITHOUT MERIT.

HOWEVER, THE MATTER OF YOUR FEDERAL RECOGNITION IN THE NATIONAL GUARD RESERVE IS NOT THE BASIC POINT AT ISSUE. UNDER THE EXPRESS TERMS OF THE 1948 ACT, SERVICE IN THE INACTIVE NATIONAL GUARD (SEE 10 U.S.C. 1332 (B) (3), CURRENTLY IN EFFECT), MAY NOT BE COUNTED IN DETERMINING THE 20 YEARS OF SERVICE REQUIRED TO QUALIFY FOR THE RETIRED PAY BENEFITS PRESCRIBED IN CHAPTER 67, TITLE 10, U.S.C. AS POINTED OUT IN OUR LETTER OF FEBRUARY 28, 1966, B-141725, TO THE HONORABLE HERVEY G. MACHEN (YOU INDICATE THAT YOU HAVE RECEIVED A COPY OF THAT LETTER) A NATIONAL GUARD RESERVE STATUS WAS AN INACTIVE STATUS.

IN WATERBURY V. UNITED STATES, 121 CT. CL. 691, DECIDED APRIL 15, 1952, IT WAS HELD THAT SERVICE IN THE NATIONAL GUARD RESERVE WAS NOT CREDITABLE FOR PURPOSES OF TITLE III OF THE 1948 LAW AND THIS SAME CONSTRUCTION OF THE LAW WAS ADHERED TO IN WARTHEN V. UNITED STATES, 157 CT. CL. 798, DECIDED JUNE 6, 1962. ALTHOUGH THE ACTIVITIES OUTLINED BY YOU IN YOUR LETTER OF AUGUST 6, 1967, WERE COMMENDABLE, THE FACT REMAINS THAT DURING THE PERIOD INVOLVED YOU WERE IN THE NATIONAL GUARD RESERVE AND THUS IN AN INACTIVE NATIONAL GUARD STATUS.

SINCE THE OFFICIAL RECORDS SHOW THAT YOU WERE IN THE NATIONAL GUARD RESERVE, THE PERIOD OF SUCH SERVICE FROM JUNE 3, 1928, TO JUNE 14, 1933, INCLUSIVE, 5 YEARS AND 12 DAYS, IS NOT CREDITABLE FOR THE PURPOSE OF ESTABLISHING A BASIS OF ELIGIBILITY FOR THE RETIRED PAY BENEFITS SOUGHT BY YOU.