B-143233, JULY 26, 1960, 40 COMP. GEN. 51

B-143233, JULY 26, 1960, 40 COMP. GEN. 51

MILITARY PERSONNEL - DUAL STATUS - RETIRED REGULAR MARINE CORPS ENLISTED MEMBER - STATE AIR NATIONAL GUARD MEMBERSHIP THE HOLDING OF A DUAL STATUS AS A RETIRED MEMBER OF THE REGULAR MARINE CORPS AND AS A MEMBER OF A STATE AIR NATIONAL GUARD IS INCOMPATIBLE IN VIEW OF THE CONFLICTING RESPONSIBILITIES OF THE TWO STATUSES, AND AN AIR NATIONAL GUARD REGULATION WHICH PROHIBITS THE ENLISTMENT IN THAT ORGANIZATION OF PERSONS RECEIVING RETIREMENT PAY FROM ANY BRANCH OF THE ARMED FORCES CONSTITUTES A COMPLETE BAR TO THE VALID AIR NATIONAL GUARD ENLISTMENT OF A RETIRED REGULAR MARINE CORPS ENLISTED MEMBER; THEREFORE, THE MEMBER'S RETIRED STATUS WAS NOT TERMINATED UPON HIS PURPORTED ENLISTMENT IN THE AIR NATIONAL GUARD, AND HE IS ENTITLED TO RETIRED PAY EXCEPT FOR THOSE INTERVALS WHEN HE RECEIVED GREATER AMOUNTS IN CONNECTION WITH THE AIR NATIONAL GUARD SERVICES WHICH MAY BE CONSIDERED AS HAVING BEEN RENDERED IN A DE FACTO STATUS.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, JULY 26, 1960:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 2, 1960, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE OTHERWISE PROPER PAYMENT OF RETIRED PAY TO TECHNICAL SERGEANT DONALD S. SUTTON, UNITED STATES MARINE CORPS, RETIRED, FROM MARCH 27, 1959, THROUGH MAY 31, 1960, EXCEPT FOR PERIOD HE PERFORMED INACTIVE DUTY TRAINING AND ACTIVE DUTY FOR TRAINING IN A PAY STATUS AS A MEMBER OF THE MONTANA AIR NATIONAL GUARD.

YOUR LETTER STATES THAT WHILE SERVING AS A MEMBER OF THE REGULAR MARINE CORPS, TECHNICAL SERGEANT SUTTON WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS ON MAY 1, 1954, UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, AND THAT HE WAS PERMANENTLY RETIRED FOR PHYSICAL DISABILITY ON MARCH 1, 1959, UNDER 10 U.S.C. 1201 AND 1210 (C), WITH MONTHLY RETIRED PAY OF $113.69. HOWEVER, IT IS STATED, NO RETIRED PAY HAS BEEN PAID TO HIM FOR THE PERIOD SUBSEQUENT TO MARCH 26, 1959, AS UNTIL RECENTLY THE MARINE CORPS WAS NOT AWARE OF HIS WHEREABOUTS. IT IS FURTHER STATED THAT ON MARCH 27, 1959, HE ENLISTED IN THE MONTANA AIR NATIONAL GUARD AND SINCE THAT DATE HAS INTERMITTENTLY PERFORMED INACTIVE DUTY TRAINING AND ACTIVE DUTY FOR TRAINING IN A PAY STATUS AS A MEMBER OF THAT ORGANIZATION. IT APPEARS THAT IF HE ACTUALLY ATTAINED DE JURE MEMBERSHIP IN THAT ORGANIZATION, SUCH DUTY WAS PERFORMED IN THE STATUS OF A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES, A RESERVE COMPONENT OF THE AIR FORCE. SEE 10 U.S.C. 101 (13), 261 (A) (5), 8077 AND 8686.

YOU STATE FURTHER THAT YOU ARE AWARE OF NO STATUTORY PROVISIONS THAT EXPRESSLY PROHIBIT THE MEMBER FROM HOLDING THE TWO STATUSES HERE INVOLVED, NOR OF ANY AUTHORITY WHICH PERMITS HIM TO DISCHARGE HIMSELF FROM EITHER STATUS. IT APPEARS THAT HE HAS NOT BEEN FORMALLY DISCHARGED FROM EITHER STATUS AND YOU ASK WHETHER HIS ENLISTMENT IN THE MONTANA AIR NATIONAL GUARD, WHICH INVOLVES AN OFFICIAL STATUS UNDER STATE LAW AS WELL AS FEDERAL LAW, OF ITSELF TERMINATED HIS STATUS AS A RETIRED MEMBER OF THE REGULAR MARINE CORPS, CITING GENERALLY, IN THIS CONNECTION, THE DISCUSSIONS IN 25 COMP. GEN. 241; 37 ID. 39, AND ATTACHED OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY. YOU STATE ALSO THAT IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE IT WOULD APPEAR THAT UNDER 37 COMP. GEN. 207, THE MEMBER'S ENTITLEMENT TO RETIRED PAY TERMINATED ON THE DATE PRECEDING HIS ENLISTMENT IN THE AIR NATIONAL GUARD.

UPON SERGEANT SUTTON'S TRANSFER TO THE TEMPORARY DISABILITY LIST AND HIS SUBSEQUENT RETIREMENT, HE DID NOT CEASE TO BE A MEMBER OF THE MARINE CORPS. SINCE WE HAVE FOUND NO PROVISION OF LAW WHICH EXPRESSLY PROHIBITS A RETIRED MEMBER OF THE MARINE CORPS FROM ENLISTING IN THE AIR NATIONAL GUARD, QUESTION ARISES AS TO WHETHER THE STATUS OF A RETIRED MEMBER OF THE MARINE CORPS IS SO INCOMPATIBLE WITH THAT OF A MEMBER OF A RESERVE COMPONENT OF THE AIR FORCE AS TO PREVENT THE HOLDING OF BOTH AT THE SAME TIME. ALSO, CONSIDERATION MUST BE GIVEN APPLICABLE REGULATIONS RELATING TO THIS MATTER.

10 U.S.C. 6482 PROVIDES THAT IN TIME OF WAR OR NATIONAL EMERGENCY THE SECRETARY OF THE NAVY MAY ORDER TO ACTIVE DUTY ANY RETIRED ENLISTED MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS. UNDER 32 U.S.C. 102, UNITS OF THE AIR NATIONAL GUARD OF THE UNITED STATES MAY BE ORDERED TO ACTIVE FEDERAL DUTY WHEN "NEEDED FOR THE NATIONAL SECURITY.' THUS, IF A RETIRED MEMBER OF THE MARINE CORPS ALSO IS A MEMBER OF THE AIR NATIONAL GUARD OF THE UNITED STATES, A SITUATION COULD ARISE WHERE HE WOULD BE ORDERED TO ACTIVE DUTY BY BOTH THE MARINE CORPS AND THE AIR FORCE. COULD NOT OBEY BOTH ORDERS AND IT SEEMS OBVIOUS THAT THE CONGRESS DID NOT INTEND THAT A PERSON BE PERMITTED TO ENTER A DUAL STATUS WHICH COULD SUBJECT HIM TO SUCH CONFLICTING RESPONSIBILITIES. WE AGREE WITH THE CONCLUSION EXPRESSED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN AN OPINION DATED MARCH 28, 1958 (1JAG: 131.3: PHJ, SER: 2743), THAT A RETIRED MEMBER OF THE NAVY OR MARINE CORPS CANNOT BECOME A MEMBER OF ARMY NATIONAL GUARD OF THE UNITED STATES WITHOUT FIRST VACATING HIS STATUS AS A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS.

APPLICABLE REGULATIONS ARE DESIGNED TO PREVENT CONFLICTING RESPONSIBILITIES RESULTING FROM AN INHERENTLY INCOMPATIBLE DUAL STATUS, SUCH AS IS HERE INVOLVED, FROM ARISING. PARAGRAPH 12AB, AIR NATIONAL GUARD REGULATION 39-9, DATED NOVEMBER 21, 1957--- PROMULGATED UNDER AUTHORITY OF 32 U.S.C. 110--- THE REGULATION IN EFFECT WHEN SUTTON ENLISTED IN THE AIR NATIONAL GUARD, INCLUDES AMONG THOSE WHOSE ENLISTMENT IN THAT ORGANIZATION IS NOT AUTHORIZED,"1PERSONS RECEIVING RETIREMENT PAY FROM ANY BRANCH OF THE ARMED FORCES.' IN VIEW OF THE INCOMPATIBLE DUAL STATUS WHICH WOULD HAVE RESULTED FROM HIS ATTAINMENT OF MEMBERSHIP IN THE AIR NATIONAL GUARD OF THE UNITED STATES, SUCH REGULATION IS VIEWED AS A COMPLETE BAR TO A VALID AIR NATIONAL GUARD ENLISTMENT IN THIS CASE.

SERGEANT SUTTON DID NOT BECOME A MEMBER OF THE MONTANA AIR NATIONAL GUARD AND IT IS CLEAR THAT HIS PURPORTED ENLISTMENT IN THAT ORGANIZATION DID NOT TERMINATE HIS STATUS AS A RETIRED ENLISTED MEMBER OF THE MARINE CORPS. COMPARE 23 COMP. GEN. 173; 25 ID. 241; 37 ID. 39. THE SERVICE PERFORMED BY HIM MAY BE CONSIDERED AS HAVING BEEN RENDERED IN A DE FACTO STATUS, HOWEVER, IT APPEARING FROM THE INFORMATION FURNISHED THAT BY FAILING TO CLAIM HIS RETIRED PAY AFTER MARCH 26, 1959, HE APPARENTLY BELIEVED THAT SUCH PAY COULD BE WAIVED IN FAVOR OF THE PAY WHICH WOULD ACCRUE IN CONNECTION WITH HIS SUPPOSED AIR NATIONAL GUARD STATUS. SEE 31 COMP. GEN. 562, 563.

ACCORDINGLY, IT IS CONCLUDED THAT SERGEANT SUTTON IS ENTITLED TO RETIRED PAY FOR THE PERIOD MARCH 27, 1959, THROUGH MAY 31, 1960, EXCEPT FOR THOSE INTERVALS DURING THE TIME HE RECEIVED GREATER AMOUNTS IN CONNECTION WITH THE AIR NATIONAL GUARD DUTIES HE PERFORMED.