B-142493, MAY 31, 1960, 39 COMP. GEN. 801

B-142493, MAY 31, 1960, 39 COMP. GEN. 801

MILITARY PERSONNEL - TRANSFER TO INACTIVE STATUS UNTIL BECOMING 60 YEARS OF AGE - SERVICE REQUIREMENTS FOR MEMBERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES WHO HAVE 20 YEARS OF SATISFACTORY FEDERAL SERVICE AS DEFINED IN 10 U.S.C. 1332 AND WOULD OTHERWISE BE QUALIFIED FOR RETIREMENT FOR PHYSICAL DISABILITY EXCEPT THAT THEIR DISABILITY WAS LESS THAN 30 PERCENT, TO BE ELIGIBLE UNDER 10 U.S.C. 1209 FOR TRANSFER TO THE INACTIVE STATUS LIST AND TO RECEIVE RETIRED PAY COMPUTED UNDER CHAPTER 71 OF TITLE 10 OF THE U.S.C. UPON BECOMING 60 YEARS OF AGE, SUCH MEMBERS MUST HAVE MET ALL THE REQUIREMENTS, EXCEPT AGE, IMPOSED UNDER THE VOLUNTARY RETIREMENT PROVISIONS IN CHAPTER 67, INCLUDING COMPLETION OF 20 YEARS OF SATISFACTORY SERVICE AS DEFINED IN 10 U.S.C. 1332, THE LAST 8 YEARS OF WHICH WERE IN A RESERVE COMPONENT, AS REQUIRED UNDER 10 U.S.C. 1331; HOWEVER, REGULAR ARMY SERVICE WHICH FOLLOWS COMPLETION OF ALL OF THE SERVICE REQUIREMENTS IN 10 U.S.C. 1331 WOULD NOT DEPRIVE A REGULAR MEMBER OF ELIGIBILITY FOR CHAPTER 71 RETIREMENT BENEFITS.

TO THE SECRETARY OF DEFENSE, MAY 31, 1960:

REFERENCE IS MADE TO LETTER OF APRIL 4, 1960, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION AS TO WHETHER, UNDER SECTION 1209, TITLE 10, U.S. CODE, A REGULAR MEMBER OF THE ARMED FORCES IS SUBJECT TO THE PROVISIONS OF SECTION 1332, TITLE 10 OF THE CODE AS WELL AS SECTION 1331. A DISCUSSION PERTAINING TO THE QUESTION IS CONTAINED IN COMMITTEE ACTION NO. 263 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 1209, TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

ANY MEMBER OF THE ARMED FORCES WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332 OF THIS TITLE, AND WHO WOULD BE QUALIFIED FOR RETIREMENT UNDER THIS CHAPTER BUT FOR THE FACT THAT HIS DISABILITY IS LESS THAN 30 PERCENT UNDER THE STANDARD SCHEDULE OF RATING DISABILITIES IN USE BY THE VETERANS' ADMINISTRATION AT THE TIME OF THE DETERMINATION, MAY ELECT, INSTEAD OF BEING SEPARATED UNDER THIS CHAPTER, TO BE TRANSFERRED TO THE INACTIVE STATUS LIST UNDER SECTION 1335 OF THIS TITLE AND, IF OTHERWISE ELIGIBLE, TO RECEIVE RETIRED PAY UNDER CHAPTER 71 OF THIS TITLE UPON BECOMING 60 YEARS OF AGE. * * *

SECTION 1331 (A), TITLE 10, PROVIDES:

(A) EXCEPT AS PROVIDED IN SUBSECTION (C), A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE IF--

(1) HE IS AT LEAST 60 YEARS OF AGE;

(2) HE HAS PERFORMED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332 OF THIS TITLE;

(3) HE PERFORMED THE LAST EIGHT YEARS OF QUALIFYING SERVICE WHILE A MEMBER OF ANY CATEGORY NAMED IN SECTION 1332 (A) (1) OF THIS TITLE, BUT NOT WHILE A MEMBER OF A REGULAR COMPONENT, THE FLEET RESERVE, OR THE FLEET MARINE CORPS RESERVE; AND

(4) HE IS NOT ENTITLED, UNDER ANY OTHER PROVISION OF LAW, TO RETIRED PAY FROM AN ARMED FORCE OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE.

THE SOURCE STATUTE FOR SECTION 1209, TITLE 10, IS SECTION 402 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, WHICH PROVIDED, IN EFFECT, THAT ANY MEMBER OF THE ARMY OF THE UNITED STATES, NAVY, AIR FORCE OF THE UNITED STATES, MARINE CORPS OR THE COAST GUARD, AND ALL REGULAR AND RESERVE COMPONENTS THEREOF WHO HAD COMPLETED AT LEAST 20 YEARS' SATISFACTORY FEDERAL SERVICE IN THE UNIFORMED SERVICES AS DEFINED IN SECTIONS 302 AND 306 OF PUBLIC LAW 810, ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087, 1089, PRESENTLY CODIFIED IN 10 U.S.C. 1331 AND 1332, AND WHO OTHERWISE WAS QUALIFIED TO BE RETIRED FOR PHYSICAL DISABILITY EXCEPT THAT HIS DISABILITY WAS LESS THAN 30 PERCENT, MIGHT ELECT TO BE TRANSFERRED TO THE INACTIVE STATUS LIST OF HIS SERVICE, PURSUANT TO SECTION 308 OF PUBLIC LAW 810, 62 STAT. 1090, PRESENTLY CODIFIED IN 10 U.S.C. 1335, AND UPON REACHING THE AGE OF 60, BE GRANTED RETIRED PAY, IF ELIGIBLE IN ALL OTHER RESPECTS TO BE GRANTED RETIRED PAY, AS PROVIDED IN TITLE III OF PUBLIC LAW 810.

THE DISCUSSION CONTAINED IN COMMITTEE ACTION NO. 263 POINTS OUT THAT TO BE QUALIFIED FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10, A MEMBER MUST HAVE 20 YEARS OF CERTAIN SPECIFIED SERVICE (10 U.S.C. 1332), THE LAST 8 YEARS OF WHICH WERE IN A RESERVE COMPONENT. 10 U.S.C. 1331. SINCE AS A PRACTICAL MATTER, NO MEMBER WITH 20 YEARS OF SUCH SERVICE, THE LAST 8 YEARS OF WHICH WERE IN A RESERVE COMPONENT, WOULD BE ABLE UNDER RECENT SERVICE ADMINISTRATIVE REGULATIONS TO BECOME A MEMBER OF A REGULAR COMPONENT, THE COMMITTEE ACTION SUGGESTS THAT TO REQUIRE COMPLIANCE WITH 10 U.S.C. 1331 IN THE APPLICATION OF SECTION 1209 WOULD RENDER SUCH SECTION OF LITTLE OR NO CONSEQUENCE WHERE REGULAR MEMBERS ARE CONCERNED.

TITLE IV OF THE CAREER COMPENSATION ACT PROVIDED A COMPREHENSIVE PLAN OF SEPARATION FROM THE SERVICE FOR PHYSICAL DISABILITY FOR MEMBERS OF THE UNIFORMED SERVICES. IF OTHERWISE QUALIFIED, MEMBERS WHOSE DISABILITY WAS 30 PERCENT OR MORE WERE REQUIRED TO BE RETIRED WITH RETIRED PAY. MEMBERS WHOSE DISABILITY WAS LESS THAN 30 PERCENT WERE REQUIRED TO BE SEPARATED WITH SEVERANCE PAY. RECOGNIZING THAT MEMBERS OF THE REGULAR COMPONENTS WITH 20 OR MORE YEARS OF ACTIVE SERVICE, AS DEFINED IN SECTION 412 OF THAT TITLE, WERE ELIGIBLE FOR VOLUNTARY RETIREMENT WITH PAY UNDER OTHER LAWS RELATING TO RETIREMENT OF MEMBERS OF THE REGULAR COMPONENTS, CONGRESS PROVIDED IN SECTION 402 (F) OF THE ACT THAT SUCH MEMBERS WHO WERE OTHERWISE ELIGIBLE FOR RETIREMENT FOR PHYSICAL DISABILITY EXCEPT THAT THEIR DISABILITY WAS LESS THAN 30 PERCENT, SHOULD NEVERTHELESS BE RETIRED WITH PHYSICAL DISABILITY RETIREMENT PAY. APPARENTLY RECOGNIZING FURTHER THAT CERTAIN MEMBERS OF THE UNIFORMED SERVICES IN ACTIVE SERVICE AS EITHER REGULARS OR RESERVISTS WHO WOULD NOT HAVE 20 YEARS OF ACTIVE SERVICE FOR VOLUNTARY RETIREMENT PURPOSES MIGHT HAVE 20 YEARS OF SATISFACTORY FEDERAL SERVICE UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810, CONGRESS PROVIDED IN SECTION 402 (G) THAT A MEMBER, INCLUDING A MEMBER OF A REGULAR COMPONENT, WHO HAS AT LEAST 20 YEARS OF SATISFACTORY FEDERAL SERVICE AS DEFINED IN SECTIONS 302 AND 306 OF PUBLIC LAW 810 MAY ELECT, IN LIEU OF SEPARATION WITH SEVERANCE PAY, TO BE TRANSFERRED TO THE INACTIVE STATUS LIST AND BE GRANTED RETIREMENT PAY UPON BECOMING 60 YEARS OF AGE "IF ELIGIBLE IN ALL OTHER RESPECTS TO BE GRANTED RETIRED PAY AS PROVIDED IN TITLE III OF THAT ACT ( PUBLIC LAW 810).' IT SEEMS CLEAR, INSOFAR AS REGULAR MEMBERS ARE CONCERNED, THAT SECTION 402 (G) WAS NOT INTENDED TO CREATE NEW AND ADDITIONAL BENEFITS FOR MEMBERS OF THE REGULAR COMPONENTS BUT HAD REFERENCE ONLY TO REGULAR MEMBERS WHO HAD QUALIFIED IN ALL RESPECTS, EXCEPT AGE, FOR RETIREMENT PAY UNDER PUBLIC LAW 810. THE LAST 8 YEARS OF SUCH SERVICE NECESSARILY MUST HAVE BEEN PERFORMED IN A RESERVE COMPONENT PRIOR TO BECOMING A MEMBER OF A REGULAR COMPONENT. UNLESS SO QUALIFIED THE SECTION AFFORDED NO AUTHORITY FOR THE TRANSFER OF A REGULAR MEMBER TO THE INACTIVE STATUS LIST FOR THE PURPOSE OF SUBSEQUENT PAYMENT OF RETIREMENT PAY UNDER THE PROVISIONS OF TITLE III. SEE PAGE 27, SENATE REPORT NO. 733, 81ST CONGRESS, ON H.R. 5008, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949 AND THE DISCUSSION AT PAGE 309 OF THE HEARINGS BEFORE THE COMMITTEE ON ARMED SERVICES, U.S. SENATE, ON THE BILL.

SECTION 1209 OF TITLE 10, U.S. CODE, IS A REENACTMENT OF SECTION 402 (G) OF THE CAREER COMPENSATION ACT AND, WHILE DIFFERENTLY PHRASED IN ITS CODIFIED FORM, NO SUBSTANTIVE CHANGE WAS MADE IN THE SECTION. IT FOLLOWS, THEREFORE, THAT 10 U.S.C. 1209 AUTHORIZES A MEMBER OF THE REGULAR COMPONENTS TO ELECT TRANSFER TO THE INACTIVE STATUS LIST IN LIEU OF SEPARATION WITH SEVERANCE PAY AND TO RECEIVE RETIREMENT PAY UNDER CHAPTER 71 OF TITLE 10 ONLY IF HE MET ALL THE QUALIFYING REQUIREMENTS, EXCEPT AGE, IMPOSED BY CHAPTER 67, TITLE 10, U.S. CODE, INCLUDING 10 U.S.C. 1331. REGULAR ARMY SERVICE FOLLOWING THE COMPLETION OF 20 YEARS OF SATISFACTORY FEDERAL SERVICE AS DEFINED IN 10 U.S.C. 1332, THE LAST 8 YEARS OF WHICH WERE IN A RESERVE COMPONENT, DOES NOT DEPRIVE A MEMBER OF ELIGIBILITY FOR CHAPTER 71 RETIREMENT BENEFITS. SEE 32 COMP. GEN. 225. HOWEVER, IF THE MEMBER HAS NOT MET ALL THE SERVICE REQUIREMENTS IMPOSED BY SECTION 1331, THE RETIREMENT PAY PROVISIONS OF SECTION 1209 HAVE NO APPLICATION. COMP. GEN. 360, ANSWER TO QUESTION B. ..END :