B-146276, AUGUST 18, 1961, 41 COMP. GEN. 118

B-146276: Aug 18, 1961

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IS TERMINATED BY TRANSFER TO THE RETIRED RESERVE AND WHO SUBSEQUENTLY IS APPOINTED AND SERVES ON ACTIVE DUTY IN THE ARMY NATIONAL GUARD OF THE UNITED STATES ON THE BASIS OF FEDERAL RECOGNITION IN A STATE NATIONAL GUARD UNDER 10 U.S.C. 3351 MAY NOT BE REGARDED AS A PERSON RETAINED ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT UNDER 10 U.S.C. 676 AND. CREDIT FOR THE ACTIVE SERVICE AFTER RETENTION ON THE RETIRED LIST FOLLOWING QUALIFICATION FOR AGE AND SERVICE RETIREMENT WAS TERMINATED BY TRANSFER TO THE RETIRED RESERVE IS TOO DOUBTFUL FOR AUTHORIZATION OF ADDITIONAL SERVICE CREDIT. THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED D.O. YOU STATE THAT GENERAL BUTLER WAS RETIRED EFFECTIVE MAY 31.

B-146276, AUGUST 18, 1961, 41 COMP. GEN. 118

PAY - SERVICE CREDITS - RETENTION AFTER AGE AND SERVICE QUALIFICATION - ACTIVE DUTY A MEMBER OF THE UNIFORMED SERVICES WHOSE RETENTION ON THE RETIRED LIST, AFTER ADVANCEMENT IN GRADE, IS TERMINATED BY TRANSFER TO THE RETIRED RESERVE AND WHO SUBSEQUENTLY IS APPOINTED AND SERVES ON ACTIVE DUTY IN THE ARMY NATIONAL GUARD OF THE UNITED STATES ON THE BASIS OF FEDERAL RECOGNITION IN A STATE NATIONAL GUARD UNDER 10 U.S.C. 3351 MAY NOT BE REGARDED AS A PERSON RETAINED ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT UNDER 10 U.S.C. 676 AND, THEREFORE, CREDIT FOR THE ACTIVE SERVICE AFTER RETENTION ON THE RETIRED LIST FOLLOWING QUALIFICATION FOR AGE AND SERVICE RETIREMENT WAS TERMINATED BY TRANSFER TO THE RETIRED RESERVE IS TOO DOUBTFUL FOR AUTHORIZATION OF ADDITIONAL SERVICE CREDIT.

TO CAPTAIN S. NORTON, DEPARTMENT OF THE ARMY, AUGUST 18, 1961:

BY FIRST ENDORSEMENT DATED JUNE 28, 1961, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED JUNE 7, 1961, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION A VOUCHER, IN THE AMOUNT OF $1,622.85, IN FAVOR OF BRIGADIER GENERAL GEORGE H. BUTLER, O 186 922, STATED TO REPRESENT THE DIFFERENCE IN RETIRED PAY OF A BRIGADIER GENERAL AND MAJOR GENERAL FOR THE PERIOD APRIL 21, 1959, THROUGH MAY 31, 1961. THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED D.O. NO. 586 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT GENERAL BUTLER WAS RETIRED EFFECTIVE MAY 31, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 UPON COMPLETION OF 35 YEARS 1 MONTH 14 DAYS' TOTAL SERVICE FOR BASIC PAY PURPOSES AND 14.35 YEARS OF SERVICE FOR PERCENTAGE PURPOSES IN COMPUTING HIS RETIRED PAY. FEDERAL RECOGNITION AS A COLONEL, SS, TENNESSEE ARMY NATIONAL GUARD WAS WITHDRAWN ON MAY 31, 1958. HE WAS ADVANCED ON SEPTEMBER 18, 1958, TO THE GRADE OF BRIGADIER GENERAL (HAVING PREVIOUSLY HELD THAT GRADE IN THE ARNGUS), AND TRANSFERRED TO THE RETIRED RESERVE. YOU STATE THAT HE WAS A MEMBER OF THE RETIRED RESERVE FROM SEPTEMBER 18, 1958, TO APRIL 20, 1959.

FEDERAL RECOGNITION AS A MAJOR GENERAL, AGC, TENNESSEE NATIONAL GUARD (BASED ON APPOINTMENT AS ADJUTANT GENERAL OF THE STATE OF TENNESSEE) WAS EXTENDED TO GENERAL BUTLER ON APRIL 21, 1959. HE REMAINED "A FEDERALLY RECOGNIZED AN GUARD GENERAL OFFICER IN THE GRADE OF MAJOR GENERAL" UNTIL FEBRUARY 23, 1961, WHEN HE RESIGNED AND FEDERAL RECOGNITION WAS WITHDRAWN. BASED UPON FEDERAL RECOGNITION, GENERAL BUTLER WAS APPOINTED ON SEPTEMBER 10, 1959, BY THE PRESIDENT, BY AND WITH THE CONSENT OF THE SENATE, A MAJOR GENERAL, RESERVE OF THE ARMY. HE WAS ASSIGNED TO THE ARMY NATIONAL GUARD OF THE UNITED STATES EFFECTIVE APRIL 21, 1959. YOUR LETTER STATES THAT THIS APPOINTMENT WAS EFFECTED UNDER THE PROVISIONS OF 10 U.S.C. 3351; THAT UNDER THIS APPOINTMENT AND THE PROVISIONS OF 10 U.S.C. 3845; GENERAL BUTLER WAS ELIGIBLE FOR RETENTION IN AN ACTIVE DUTY STATUS UNTIL MAY 31, 1962, THE LAST DAY OF THE MONTH IN WHICH HE BECAME 64 YEARS OF AGE; THAT FEDERAL RECOGNITION AS A MAJOR GENERAL TERMINATED ON FEBRUARY 23, 1961, AND THAT BY OPERATION OF LAW HE BECAME A MAJOR GENERAL, READY RESERVE, EFFECTIVE FEBRUARY 24, 1961. IT IS STATED, ALSO, THAT ON APRIL 7, 1961, GENERAL BUTLER WAS TRANSFERRED FROM THE READY RESERVE TO THE RETIRED RESERVE, IN THE GRADE OF MAJOR GENERAL.

HE CLAIMS ENTITLEMENT TO RETIRED PAY IN THE GRADE OF MAJOR GENERAL FROM APRIL 21, 1959, THE DATE OF FEDERAL RECOGNITION AS A MAJOR GENERAL. YEARS OF SERVICE FOR PERCENTAGE PURPOSES ARE STATED TO BE 14.36 FOR THE PERIOD APRIL 21, 1959, THROUGH APRIL 6, 1961, AND 14.75 FROM APRIL 7, 1961,"AS SHOWN ON THE ATTACHED COPIES OF DD FORM 424, INFORMATION FOR RETIREMENT PAY.' THE INFORMATION FURNISHED, HOWEVER, IS NOT SUFFICIENT TO PERMIT VERIFICATION OF THOSE PERCENTAGE FACTORS. IN THE ABSENCE OF A STATEMENT OF SERVICE SUFFICIENT TO PERMIT US TO COMPUTE THE RETIREMENT PAY DUE, NO DECISION AS TO THE CORRECTNESS OF THE VOUCHER IN THAT RESPECT MAY BE MADE.

10 U.S.C. 676 PROVIDES AS FOLLOWS:

ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE 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 OUR DECISION OF APRIL 1, 1959, 38 COMP. GEN. 647, IT WAS STATED THAT IN ORDER FOR A MEMBER TO QUALIFY FOR INCREASED RETIRED PAY BENEFITS UNDER 10 U.S.C. 676 HIS RETENTION IN AN ACTIVE STATUS IN A RESERVE COMPONENT MUST BE DIRECTED "BY ORDER OF THE SECRETARY CONCERNED.' WE INDICATED THAT UNLESS A MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION OR REGULATION ISSUED BY THE APPROPRIATE SECRETARY, SERVICE PERFORMED BY A MEMBER AFTER BECOMING QUALIFIED FOR RETIREMENT PAY MAY NOT BE COUNTED TO INCREASE RETIREMENT PAY BENEFITS TO WHICH HE WOULD BE ENTITLED ON THE BASIS OF HIS SERVICE AT THE TIME OF QUALIFICATION.

IN OUR DECISION OF JULY 13, 1959, B-138452, REGARDING THE CASES OF CERTAIN MEMBERS PREVIOUSLY RETAINED ON ACTIVE DUTY OR IN AN ACTIVE STATUS IN A RESERVE COMPONENT UNDER CIRCUMSTANCES GIVING RISE TO A QUESTION WHETHER THEY WERE PROPERLY "RETAINED" UNDER 10 U.S.C. 676, WE ADVISED THE SECRETARY OF THE ARMY THAT, UNDER THE CIRCUMSTANCES, CERTAIN LISTED MEMBERS OF THE ARMY RESERVE AND ARMY NATIONAL GUARD WOULD BE CONSIDERED AS HAVING BEEN PROPERLY RETAINED FOR SERVICE IN A RESERVE COMPONENT BY HIS ORDER AFTER QUALIFYING FOR RETIRED PAY, AND THAT THEY WOULD BE CONSIDERED AS ENTITLED TO THE BENEFITS WHICH MIGHT ACCRUE TO ELIGIBLE MEMBERS UNDER 10 U.S.C. 676, OR UNDER SECTION 312 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, 10 U.S.C. 1036A (E) (1952 USED.), FROM WHICH THE CODE PROVISION WAS DERIVED.

IN OUR LETTER DATED DECEMBER 22, 1960, B-138452, TO THE SECRETARY OF THE ARMY, THE SAME CONCLUSION WAS REACHED AS TO THE MEMBERS REFERRED TO IN HIS LETTER DATED NOVEMBER 19, 1960, WHICH INCLUDED THE NAME OF GENERAL BUTLER, AND WE STATED THAT THEY ALSO WOULD BE CONSIDERED AS HAVING BEEN RETAINED FOR SERVICE IN A RESERVE COMPONENT BY ORDER OF THE SECRETARY OF THE ARMY. HOWEVER, THE PROPER TERMINAL DATE FOR COMPUTATION OF ADDITIONAL CREDITS ACQUIRED BY THE OFFICER AFTER HIS QUALIFICATION FOR RETIREMENT PAY ON MAY 31, 1958, WOULD APPEAR TO BE SEPTEMBER 18, 1958, THE DATE HE WAS TRANSFERRED TO THE RETIRED RESERVE, WHICH IS THE DATE INDICATED ON DD FORM 424 AS THE DATE RETENTION UNDER 10 U.S.C. 676 TERMINATED. PRESUMABLY, THAT PERIOD OF RETENTION IS THE PERIOD INVOLVED IN THE SECRETARY'S CERTIFICATION IN HIS LETTER OF NOVEMBER 19, 1960.

THAT VIEW IS CONSISTENT WITH 10 U.S.C. 1334 (B), WHICH IS TO THE EFFECT THAT TIME SPENT AFTER RETIREMENT OR TRANSFER TO THE RETIRED RESERVE MAY NOT BE CREDITED IN ANY COMPUTATION OF YEARS OF SERVICE UNDER CHAPTER 67. THAT IS TO SAY, THE ONLY PROVISION FOR INCREASING THE RETIRED PAY OF A PERSON WHO QUALIFIES UNDER CHAPTER 67 IS 10 U.S.C. 676 AND, SINCE THAT SECTION REFERS ONLY TO PERSONS "RETAINED" ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN SECTION 1332 (B), THE CREDITING TO GENERAL BUTLER OF SERVICE AFTER HIS RETENTION WAS TERMINATED BY HIS TRANSFER TO THE RETIRED RESERVE ON SEPTEMBER 18, 1958, IS TOO DOUBTFUL FOR US TO AUTHORIZE ANY ADDITIONAL CREDITS. SEE IN THIS CONNECTION THE ANSWER TO QUESTION 8, 38 COMP. GEN. 146, 153. CF. AR 135- 32, DATED DECEMBER 22, 1960. ACCORDINGLY, THE SUBMITTED VOUCHER WILL BE RETAINED HERE.

ATTENTION IS INVITED TO THE CASE OF LUIS RUAL ESTEVES V. UNITED STATES, CT.1CL. NO. 118-55, IN CONNECTION WITH WHICH IT IS EXPECTED THAT THE COURT WILL DECIDE, TO SOME EXTENT AT LEAST, THE APPLICATION OF 10 U.S.C. 676. GENERAL ESTEVES, LIKE GENERAL BUTLER, CLAIMED SERVICE IN AN ACTIVE STATUS AFTER DATE OF QUALIFICATION AND SUCH SERVICE WAS NOT CONTINUOUS FROM DATE OF QUALIFICATION.