B-146608, DECEMBER 1, 1961, 41 COMP. GEN. 375

B-146608, DECEMBER 1, 1961, 41 COMP. GEN. 375

PAY - RETIRED - RESERVISTS - MANDATORY ELIMINATION - OVERSIGHT RETENTION -- PAY - RETIRED - RESERVISTS - MANDATORY ELIMINATION - OVERSIGHT RETENTION--- PAY - RETIRED - RESERVISTS - MANDATORY ELIMINATION - MEDICAL, ETC., PERSONNEL RETENTION--- PAY - RETIRED - RESERVISTS - MANDATORY ELIMINATION - RETURN TO ACTIVE STATUS--- PAY - RETIRED - RESERVISTS - MANDATORY ELIMINATION - PROMOTION--- PAY - RETIRED - RESERVISTS - MANDATORY ELIMINATION - ACTIVE STATUS - PRIOR TO RETIREMENT QUALIFICATION THE EFFECT OF THE MANDATORY ELIMINATION PROVISIONS IN THE RESERVE OFFICER PERSONNEL ACT OF 1954 ( CHAPTER 363 OF TITLE 10 OF THE U.S. CODE), WHICH REQUIRE THAT EACH RESERVE OFFICER UPON REACHING THE AGE OR LENGTH OF SERVICE STIPULATED SHALL BE TRANSFERRED TO THE RETIRED RESERVE IF HE IS QUALIFIED AND APPLIES THEREFOR, OR BE DISCHARGED FROM HIS RESERVE APPOINTMENT IF HE IS NOT QUALIFIED OR DOES NOT APPLY THEREFOR, IS TO PRECLUDE SERVICE CREDITS FOR RETIRED PAY AFTER THE DATE THE OFFICER IS REQUIRED TO BE TRANSFERRED OR DISCHARGED; HENCE, SERVICE PERFORMED BY A RESERVE OFFICER WHO IS RETAINED, THROUGH ADMINISTRATIVE OVERSIGHT, IN AN ACTIVE RESERVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED FOR AGE OR FOR LENGTH OF SERVICE, MAY NOT BE CREDITED IN DETERMINING THE MEMBER'S RETIREMENT ELIGIBILITY UNCER 10 U.S.C. 1332; HOWEVER, IF THE OFFICER IS RETAINED UNDER A SPECIFIC STATUTORY PROVISION EXEMPTING OFFICERS FROM THE MANDATORY ELIMINATION PROVISIONS OF THE 1954 ACT, SERVICE CREDIT IS NOT PRECLUDED. WHILE THE PROVISIONS OF 10 U.S.C. 1003 FOR RETENTION IN AN ACTIVE STATUS OF A RESERVE OFFICER WHO HAS PASSED THE MAXIMUM AGE PRESCRIBED FOR HIS GRADE AND CLASSIFICATION CONSTITUTE AN EXCEPTION TO THE MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 (CODIFIED IN CHAPTER 363 OF TITLE 10 OF THE U.S. CODE), THE INADVERTENT RETENTION OF AN OFFICER IN AN ACTIVE RESERVE STATUS DOES NOT OVERCOME THE MANDATORY ELIMINATION REQUIREMENTS; HOWEVER, IF THE RETENTION IS EFFECTED PURSUANT TO ACTION PRESCRIBED BY THE SECRETARY UNDER 10 U.S.C. 1003 (2), THE OFFICER'S SERVICE BEYOND AGE 60 MAY BE CREDITED IN DETERMINING RETIREMENT ELIGIBILITY UNDER 10 U.S.C. 1332 AND IN COMPUTING THE PERCENTAGE FACTOR FOR RETIRED PAY UNDER 10 U.S.C. 1401 AND FOR LONGEVITY PAY PURPOSES. OFFICERS IN THE MEDICAL CORPS, DENTAL CORPS, THE CHAPLAINS, THE ARMY NURSE CORPS OR THE ARMY MEDICAL SPECIALIST CORPS WHO REMAINED IN AN ACTIVE RESERVE STATUS BEYOND THE TIME THEY SHOULD HAVE BEEN REMOVED UNDER THE MANDATORY ELIMINATION PROVISIONS IN THE RESERVE OFFICER PERSONNEL ACT OF 1954, THROUGH ADMINISTRATIVE OVERSIGHT PRIOR TO JUNE 30, 1960--- THE DATE OF APPROVAL OF PUBLIC LAW 86-559--- WHICH ADDED SECTION 3855 TO TITLE 10 OF THE U.S.C. PERMITTING RETENTION OF SUCH SPECIFIC MEDICAL AND OTHER PERSONNEL IN AN ACTIVE RESERVE STATUS UNTIL THEY BECOME 60 YEARS OF AGE, ARE NOT ELIGIBLE FOR RETENTION UNDER 10 U.S.C. 3855, WHICH IS PROSPECTIVE ONLY AND FOR APPLICATION TO OFFICERS IN AN ACTIVE STATUS AFTER JUNE 30, 1960; HOWEVER, IF THE OFFICERS' RETENTION WAS EFFECTED UNDER A STATUTE EXEMPTING THEM FROM THE MANDATORY ELIMINATION PROVISIONS IN THE RESERVE OFFICER PERSONNEL ACT OF 1954, RETENTION UNDER 10 U.S.C. 3855 WOULD THEN BE PROPER. IN THE ABSENCE OF ANY AUTHORITY FOR THE CREDITING OF ADDITIONAL SERVICE TO RESERVE OFFICERS WHO, AFTER ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331-1337, ARE TRANSFERRED FROM THE RETIRED RESERVE TO AN ACTIVE RESERVE STATUS, CREDIT FOR SERVICE PERFORMED SUBSEQUENT TO TRANSFER TO AN ACTIVE STATUS TO INCREASE THE PERCENTAGE FACTOR FOR RETIRED PAY PURPOSES IS NOT PERMITTED. AN OFFICER WHO IS PROMOTED TO A HIGHER RESERVE GRADE WHILE IN AN ACTIVE STATUS FOLLOWING TRANSFER FROM THE RETIRED RESERVE AND ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331-1337 IS NOT ENTITLED IN THE HIGHER GRADE, THE RETENTION PROVISIONS OF 10 U.S.C. 676 HAVING REFERENCE ONLY TO PERSONS VALIDLY RETAINED ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN 10 U.S.C. 1332 (B) AND IN THOSE CASES IN WHICH, BECAUSE OF SOME SPECIAL QUALIFICATION, ABILITY OR SITUATION, THE SECRETARY CONCERNED ORDERS A MEMBER'S RETENTION. A RESERVE OFFICER IN AN INACTIVE STATUS WHO, PRIOR TO QUALIFICATION FOR RETIREMENT PAY UNDER 10 U.S.C. 1331-1337, IS TRANSFERRED TO AN ACTIVE RESERVE STATUS MAY HAVE SUCH ACTIVE SERVICE COUNTED TO MEET ELIGIBILITY REQUIREMENTS FOR RETIREMENT UNDER 10 U.S.C. 1332 PROVIDED THAT HIS AGE DOES NOT BRING HIM WITHIN THE MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 (CODIFIED IN CHAPTER 363 OF TITLE 10 OF THE U.S. CODE) AND SUBJECT TO THE CONDITION THAT SERVICE AFTER ELIGIBILITY IS ATTAINED MAY BE ALLOWED ONLY AS AUTHORIZED IN 10 U.S.C. 676.

TO THE SECRETARY OF DEFENSE, DECEMBER 1, 1961:

REFERENCE IS MADE TO LETTER OF AUGUST 3, 1961, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON CERTAIN QUESTIONS ARISING FROM VARIOUS CIRCUMSTANCES PERTAINING TO THE RETENTION THROUGH ADMINISTRATIVE ERROR OF AN OFFICER IN AN ACTIVE RESERVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED THEREFROM FOR AGE OR LENGTH OF SERVICE UNDER THE PERTINENT PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, 10 U.S.C. CH. 363. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 285 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTIONS PRESENTED IN THE COMMITTEE ACTION ARE SEPARATELY QUOTED AND ANSWERED BELOW.

QUESTION 1.

1. A. IF, THROUGH ADMINISTRATIVE OVERSIGHT, AN OFFICER IS RETAINED IN AN ACTIVE RESERVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED THEREFROM FOR AGE OR FOR LENGTH OF SERVICE UNDER THE PROVISIONS OF THE RESERVE OFFICERS PERSONNEL ACT OF 1954, AS CODIFIED (TITLE 10, U.S.C. CHAP. 363), MAY SERVICE PERFORMED SUBSEQUENT TO THE REQUIRED DATE OF REMOVAL BE CREDITED IN DETERMINING RETIREMENT ELIGIBILITY UNDER 10 U.S.C. 1332?

B. IF THE ANSWER TO A IS IN THE AFFIRMATIVE, MAY SUCH SERVICE BE CREDITED IN DETERMINING THE PERCENTAGE FACTOR FOR COMPUTING RETIRED PAY UNDER 10 U.S.C. 1401 AND FOR LONGEVITY PAY PURPOSES?

C. FURTHER, IF THE ANSWER TO A IS AFFIRMATIVE, AND THE OFFICER DURING THE PERIOD IN WHICH HE IS RETAINED BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED FROM AN ACTIVE STATUS FOR LENGTH OF SERVICE COMPLETES 18 YEARS OF SERVICE CREDITABLE UNDER 10 U.S.C. 1332, MUST HE BE KEPT IN AN ACTIVE STATUS UNDER 10 U.S.C. 1006 (A), UNTIL HE COMPLETES 20 YEARS OF CREDITABLE SERVICE OR UNTIL THE THIRD ANNIVERSARY OF HIS REMOVAL DATE, WHICHEVER IS EARLIER?

D. TO WHAT EXTENT WOULD THE ANSWER TO THE ABOVE 3 QUESTIONS BE MODIFIED IF THE OFFICER WAS RETAINED IN AN ACTIVE STATUS FOR THE CONVENIENCE OF THE GOVERNMENT (E.G., TO COMPLETE INVESTIGATION OF ALLEGED WRONGDOING FINALLY RESOLVED IN THE MEMBER'S FAVOR OR TO COMPLETE RECONSIDERATION OF THE OFFICER'S FAILURE TO BE SELECTED FOR PROMOTION/?

THE PERTINENT PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 (AS NOW AMENDED AND CODIFIED IN CHAPTER 363 OF TITLE 10, UNITED STATES CODE), PROVIDE, IN SUBSTANCE, THAT EACH OFFICER IN THE RESERVE GRADES REFERRED TO THEREIN, UPON REACHING THE AGE OR LENGTH OF SERVICE IPULATED,"SHALL" BE TRANSFERRED TO THE RETIRED RESERVE IF HE IS QUALIFIED AND APPLIES THEREFOR, OR, IF HE IS NOT QUALIFIED OR DOES NOT APPLY THEREFOR, BE DISCHARGED FROM HIS RESERVE APPOINTMENT. SO FAR AS MATERIAL HERE, NO SUBSTANTIAL CHANGES WERE MADE IN SUCH STATUTORY PROVISIONS AT THE TIME THEY WERE CODIFIED. APPARENTLY THE LAW INTENDS THAT GENERALLY SERVICE CREDITS FOR RETIRED PAY MAY NOT BE ACQUIRED AFTER THE DATE THE OFFICER CONCERNED IS REQUIRED TO BE TRANSFERRED OR DISCHARGED. THIS VIEW IS CONSISTENT WITH 10 U.S.C. 1334 (B), WHICH PROVIDES THAT TIME SPENT AFTER TRANSFER TO THE RETIRED RESERVE MAY NOT BE CREDITED IN ANY COMPUTATION OF YEARS OF SERVICE UNDER 10 U.S.C. CH. 67. ACCORDINGLY, QUESTIONS A IS ANSWERED IN THE NEGATIVE.

YOUR PRIME QUESTION BEING ANSWERED IN THE NEGATIVE, CONSIDERATION OF YOUR SUBSIDIARY QUESTIONS, B AND C, IS NOT NECESSARY.

WITH RESPECT TO QUESTION D, OUR ANSWER WOULD BE THE SAME AS THE ANSWER TO QUESTION A UNLESS THE OFFICER IS RETAINED IN AN ACTIVE STATUS UNDER A SPECIFIC STATUTORY PROVISION EXEMPTING OFFICERS FROM THE MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT. SEE 10 U.S.C. 1003 (2).

QUESTION 2.

2. A. DOES 10 U.S.C. 1003 CONSTITUTE AN EXCEPTION TO THE PROVISIONS OF ROPA, AS CODIFIED, WHICH REQUIRE REMOVAL FROM AN ACTIVE RESERVE STATUS BECAUSE OF AGE?

B. IF THE ANSWER TO 2A IS AFFIRMATIVE, MAY THE SERVICE OF AN OFFICER, SUBSEQUENT TO BEING RETAINED IN AN ACTIVE STATUS BEYOND AGE 60 WITHOUT HAVING COMPLETED 20 YEARS OF CREDITABLE SERVICE, BE CREDITED IN DETERMINING RETIREMENT ELIGIBILITY UNDER 10 U.S.C. 1332?

C. IF THE ANSWER TO 2A IS AFFIRMATIVE, WOULD SUCH ADDITIONAL SERVICE BE CREDITABLE IN DETERMINING THE PERCENTAGE FACTOR FOR COMPUTING RETIRED PAY UNDER 10 U.S.C. 1401 AND FOR LONGEVITY PAY PURPOSES?

10 U.S.C. 1003 PROVIDES AS FOLLOWS:

OFFICERS: AGE LIMITATIONS.

A RESERVE OFFICER WHO HAS PASSED THE MAXIMUM AGE PRESCRIBED FOR HIS GRADE AND CLASSIFICATION MAY, AS PRESCRIBED BY THE SECRETARY CONCERNED- -

(1) BE SEPARATED FROM THE ARMED FORCE CONCERNED:

(2) BE RETAINED IN, OR TRANSFERRED TO, AN ACTIVE OR INACTIVE STATUS; OR

(3) UPON HIS REQUEST, BE RETAINED IN, OR TRANSFERRED TO, A RETIRED STATUS.

HOWEVER, NO OFFICER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES OR THE AIR NATIONAL GUARD OF THE UNITED STATES MAY BE RETAINED OR TRANSFERRED UNDER THIS SECTION WITHOUT THE CONSENT OF THE GOVERNOR OR OTHER APPROPRIATE AUTHORITY OF THE JURISDICTION CONCERNED. ( AUG. 10, 1956, C. 1041, 70A STAT. 79.) ( ITALICS SUPPLIED.)

WHILE THE PROVISIONS OF SECTION 1003 CONSTITUTE AN EXCEPTION TO THE MANDATORY ELIMINATION PROVISIONS, THE INADVERTENT RETENTION OF AN OFFICER IN AN ACTIVE RESERVE STATUS DOES NOT OVERCOME THE REQUIREMENTS OF SUCH MANDATORY PROVISIONS. ON THE ASSUMPTION THAT THE RETENTION OF THE MEMBER MENTIONED IN THIS QUESTION WAS NOT INADVERTENT, BUT WAS AFFECTED PURSUANT TO ACTION PRESCRIBED BY THE SECRETARY UNDER SECTION 1003 (2), ALL PARTS OF QUESTION 2 ARE ANSWERED IN THE AFFIRMATIVE. CF. 38 COMP. GEN. 246.

QUESTION 3.

3. A. IF, PRIOR TO 30 JUNE 1960, THROUGH ADMINISTRATIVE OVERSIGHT AN OFFICER IN THE MEDICAL CORPS, DENTAL CORPS, THE CHAPLAINS, THE ARMY NURSE CORPS OR THE ARMY MEDICAL SPECIALIST CORPS HAS REMAINED IN AN ACTIVE RESERVE STATUS BEYOND THE TIME HE SHOULD HAVE BEEN REMOVED FROM SUCH ACTIVE STATUS UNDER THE PROVISIONS OF ROPA, AS CODIFIED, IS SUCH AN OFFICER ELIGIBLE FOR RETENTION IN ACTIVE STATUS AFTER 30 JUNE 1960 UNTIL AGE 60 UNDER THE PROVISIONS OF 10 U.S.C. 3855?

B. WOULD THE RESPONSE TO A BE DIFFERENT IF THE OFFICER, CIRCUMSTANCED AS INDICATED THEREIN, HAD BEEN RETAINED IN AN ACTIVE STATUS FOR THE CONVENIENCE OF THE GOVERNMENT (E.G., TO COMPLETE INVESTIGATION OF ALLEGED WRONGDOING FINALLY RESOLVED IN HIS FAVOR/?

BY PUBLIC LAW 86-559, DATED JUNE 30, 1960, 74 STAT. 273, THE CONGRESS ADDED SECTION 3855 TO TITLE 10, U.S.C. PROVIDING AS FOLLOWS:

NOTWITHSTANDING ANY OTHER SECTION OF THIS CHAPTER EXCEPT SECTION 3846 (TWICE FAILING OF SELECTION), THE SECRETARY OF THE ARMY MAY, WITH THE OFFICER'S CONSENT, RETAIN IN AN ACTIVE STATUS ANY RESERVE OFFICER IN THE MEDICAL CORPS, DENTAL CORPS, THE CHAPLAINS, THE ARMY NURSE CORPS, OR THE ARMY MEDICAL SPECIALIST CORPS, BUT NOT LATER THAN THE DATE ON WHICH HE BECOMES 60 YEARS OF AGE.

THE STATUTORY PROVISION IS PROSPECTIVE IN NATURE AND, THEREFORE, APPLIES ONLY IN THE CASE OF OFFICERS PROPERLY IN AN ACTIVE STATUS ON THE DATE OF ENACTMENT THEREOF. ACCORDINGLY, QUESTIONS 3A AND 3B ARE ANSWERED IN THE NEGATIVE. IF THE RETENTION FOR THE CONVENIENCE OF THE GOVERNMENT WAS EFFECTED UNDER A STATUTE EXEMPTING THE OFFICERS FROM THE MANDATORY ELIMINATION PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT, HOWEVER, THE ANSWER TO QUESTION 3B WOULD BE IN THE AFFIRMATIVE. SEE THE ANSWER TO QUESTION D.

QUESTION 4.

4. A. BY WHAT AUTHORITY, IF ANY, MAY AN OFFICER, ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF TITLE 10, U.S.C. SECTIONS 1331, ET SEQ., WHO IS TRANSFERRED TO AN ACTIVE RESERVE STATUS FROM THE RETIRED RESERVE (SEE 10 U.S.C. 269 (D) ( SECURE THE CREDITABILITY OF THE SERVICE HE PERFORMS SUBSEQUENT TO HIS TRANSFER TO AN ACTIVE STATUS, TO INCREASE THE PERCENTAGE FACTOR IF PERMITTED TO RECOMPUTE HIS RETIRED PAY?

B. IF PROMOTED TO A HIGHER RESERVE GRADE WHILE IN AN ACTIVE STATUS (FOLLOWING TRANSFER FROM THE RETIRED RESERVE), BY WHAT AUTHORITY, IF ANY, MAY SUCH AN OFFICER (AS DESCRIBED IN A. ABOVE) RETIRE IN THAT HIGHER GRADE?

C. WOULD THE REPLIES TO A. OR B. DIFFER IF THE OFFICER CONCERNED HAD NOT BEEN ENTITLED TO RETIRED PAY UNDER THE LAW THERE CITED (I.E., 10 U.S.C. 1331 ET SEQ./?

WE KNOW OF NO LAW PURSUANT TO WHICH THE PERIOD OF ADDITIONAL SERVICE MAY BE COUNTED FOR SERVICE CREDIT FOR THE PURPOSE OF 10 U.S.C. 1331 1337. SEE, IN THIS CONNECTION, 10 U.S.C. 1334 (B). THE PROVISIONS OF 10 U.S.C. 676, WHICH PROVIDE FOR CREDIT FOR SERVICE FOR PERIODS AN OFFICER IS RETAINED ON ACTIVE DUTY WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED AFTER QUALIFYING FOR RETIRED PAY, WOULD NOT APPEAR TO BE FOR APPLICATION, SINCE THE OFFICER WOULD NOT HAVE BEEN RETAINED AFTER BEING TRANSFERRED TO THE RETIRED RESERVE. SEE 38 COMP. GEN. 146, 152-153, ANSWERS TO QUESTIONS 6 AND 7; 41 COMP. GEN. 131. CF. DIGEST OF OPINIONS, JUDGE ADVOCATES GENERAL OF THE ARMED FORCES, VOLUMES 6 AND 9, RETIREMENT, SECTION 69.25. QUESTION 4A IS ANSWERED ACCORDINGLY.

SINCE 10 U.S.C. 676 REFERS ONLY TO PERSONS VALIDLY RETAINED ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN 10 U.S.C. 1332 (B), IT APPEARS THAT CREDIT FOR SERVICE IN THE HIGHER GRADE SUCH AS REFERRED TO IN QUESTION 4B IS UNAUTHORIZED. IT IS BELIEVED THAT THE STATUTE WAS INTENDED TO HAVE A LIMITED APPLICATION TO PERMIT ADDITIONAL SERVICE CREDITS IN THOSE CASES IN WHICH, BECAUSE OF SOME SPECIAL QUALIFICATION, ABILITY OR SITUATION, THE SECRETARY CONCERNED ORDERS A MEMBER'S RETENTION. CF. 38 COMP. GEN. 647; 41 ID. 118.

WHILE QUESTION 4C IS NOT CLEAR, IT IS ASSUMED THAT IT REFERS TO AN OFFICER WHO WAS TRANSFERRED TO AN INACTIVE STATUS AND BEFORE HE QUALIFIED FOR RETIREMENT PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 1337 WAS TRANSFERRED TO AN ACTIVE RESERVE STATUS. IF THAT ASSUMPTION IS CORRECT, IT WOULD APPEAR THAT SERVICE IN AN ACTIVE RESERVE STATUS COULD BE USED TO MEET THE ELIGIBILITY REQUIREMENTS PRESCRIBED IN THE PROVISIONS CITED, PROVIDED, OF COURSE, THAT THE OFFICER'S AGE DOES NOT BRING HIM WITHIN THE SITUATIONS CONSIDERED IN QUESTION 1. CREDIT FOR SERVICE AFTER ELIGIBILITY WAS ATTAINED COULD BE ALLOWED ONLY AS AUTHORIZED IN 10 U.S.C. 676.