B-147777, MAY 1, 1962, 41 COMP. GEN. 715

B-147777: May 1, 1962

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- PAY - RETIRED - FOREIGN EMPLOYMENT A RETIRED RESERVE OFFICER WHO IS RECEIVING RETIRED PAY BASED UPON COMPLETION OF A PRESCRIBED PERIOD OF SERVICE IN THE ARMED FORCES WHEN HE ACQUIRES FOREIGN CITIZENSHIP WOULD NO LONGER BE LIABLE FOR INVOLUNTARY RECALL TO ACTIVE DUTY IN TIMES OF WAR OR NATIONAL EMERGENCY AND THE ACQUISITION OF THE FOREIGN CITIZENSHIP WOULD BE INCONSISTENT WITH THE OATH PRESCRIBED FOR RESERVE OFFICERS TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES. IS THE CONGRESSIONAL CONSENT REQUIRED TO OVERCOME THE CONSTITUTIONAL PROHIBITION AGAINST ACCEPTANCE OF FOREIGN EMOLUMENTS BY PERSONS HOLDING OFFICES UNDER THE UNITED STATES IN ARTICLE I. THE RIGHT OF A RETIRED MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO IS IN RECEIPT OF RETIRED PAY BASED ON LENGTH OF SERVICE TO ACCEPT EMPLOYMENT WITH A FOREIGN PRIVATE CONCERN NOT CONTROLLED BY A FOREIGN GOVERNMENT IS SUBJECT TO EXECUTIVE ORDER NO. 5221.

B-147777, MAY 1, 1962, 41 COMP. GEN. 715

PAY - RETIRED - FOREIGN CITIZENSHIP EFFECT--- PAY - RETIRED - FOREIGN EMPLOYMENT--- PAY - RETIRED - FOREIGN EMPLOYMENT A RETIRED RESERVE OFFICER WHO IS RECEIVING RETIRED PAY BASED UPON COMPLETION OF A PRESCRIBED PERIOD OF SERVICE IN THE ARMED FORCES WHEN HE ACQUIRES FOREIGN CITIZENSHIP WOULD NO LONGER BE LIABLE FOR INVOLUNTARY RECALL TO ACTIVE DUTY IN TIMES OF WAR OR NATIONAL EMERGENCY AND THE ACQUISITION OF THE FOREIGN CITIZENSHIP WOULD BE INCONSISTENT WITH THE OATH PRESCRIBED FOR RESERVE OFFICERS TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES; THEREFORE, IN THE ABSENCE OF ANY LAW AUTHORIZING CONTINUATION OF AN OFFICER'S MEMBERSHIP IN A RESERVE ORGANIZATION AFTER HE BECOMES A CITIZEN OF A FOREIGN COUNTRY, PAYMENT OF RETIRED PAY MAY NOT BE APPROVED. THE AUTHORITY FOR ACCEPTANCE BY MEMBERS OF RESERVE COMPONENTS OF EMPLOYMENT WITH FOREIGN GOVERNMENTS AND WITH BUSINESS CONCERNS CONTROLLED BY FOREIGN GOVERNMENTS IN SECTION 247 OF THE ARMED FORCES RESERVE ACT OF 1952, 10 U.S.C. 1032, WHEN APPROVED BY THE SECRETARY OF THE PERTINENT MILITARY DEPARTMENT, IS THE CONGRESSIONAL CONSENT REQUIRED TO OVERCOME THE CONSTITUTIONAL PROHIBITION AGAINST ACCEPTANCE OF FOREIGN EMOLUMENTS BY PERSONS HOLDING OFFICES UNDER THE UNITED STATES IN ARTICLE I, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION; THEREFORE, THE ACCEPTANCE OF EMPLOYMENT WITH A FOREIGN GOVERNMENT BY A RETIRED RESERVE MEMBER RECEIVING RETIRED PAY BASED ON LENGTH OF SERVICE, WITH THE APPROVAL OF THE EMPLOYMENT BY THE SECRETARY OF THE DEPARTMENT CONCERNED, DOES NOT AFFECT THE MEMBER'S ENTITLEMENT TO RETIRED PAY. THE RIGHT OF A RETIRED MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES WHO IS IN RECEIPT OF RETIRED PAY BASED ON LENGTH OF SERVICE TO ACCEPT EMPLOYMENT WITH A FOREIGN PRIVATE CONCERN NOT CONTROLLED BY A FOREIGN GOVERNMENT IS SUBJECT TO EXECUTIVE ORDER NO. 5221, WHICH PROHIBITS ACCEPTANCE OF EMPLOYMENT BY OFFICERS AND EMPLOYEES OF THE EXECUTIVE BRANCH WITH ANY FOREIGN CONCERN WHICH IS IN COMPETITION WITH AMERICAN INDUSTRY; HOWEVER, ACCEPTANCE OF EMPLOYMENT BY A RETIRED RESERVE OFFICER CONTRARY TO THE PROVISIONS OF THE EXECUTIVE ORDER WOULD NOT AUTOMATICALLY TERMINATE THE MEMBER'S RETIRED RESERVE STATUS.

TO THE SECRETARY OF DEFENSE, MAY 1, 1962:

THE FIVE QUESTIONS PRESENTED FOR DECISION IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 295, FORWARDED HERE WITH TRANSMITTAL LETTER DATED DECEMBER 8, 1961, BY THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), WILL BE ANSWERED IN THE ORDER PRESENTED. QUESTIONS 1 THROUGH 3, WHICH WILL BE CONSIDERED TOGETHER, ARE AS FOLLOWS:

1. A RESERVE OFFICER, A CITIZEN OF THE UNITED STATES IS RETIRED UNDER 10 U.S.C. 8911. HE IS DULY PLACED IN THE RETIRED RESERVE AND IS RECEIVING RETIRED PAY. IF HE ACQUIRES FOREIGN CITIZENSHIP WOULD HIS ENTITLEMENT TO RETIRED PAY BE AFFECTED?

2. WOULD THE ANSWER DIFFER AS TO RETIREMENT UNDER 10 U.S.C. 3911, 6323, OR 14 U.S.C. 232?

3. IF ENTITLEMENT TO RETIREMENT PAY IS AFFECTED IN ANY CASE OF RETIREMENT UNDER THE FOREGOING PROVISIONS OF LAW, COULD THE RESERVE OFFICER, BY TERMINATING HIS RETIRED STATUS THROUGH RESIGNATION OR OTHER MEANS, THEN ACQUIRE FOREIGN CITIZENSHIP AND CONTINUE TO RECEIVE RETIRED PAY?

IT IS STATED IN THE DISCUSSION IN COMMITTEE ACTION NO. 295 THAT A RESERVE OFFICER MAY RETIRE UNDER 10 U.S.C. 3911, 6323, 8911 OR 14 U.S.C. 232 WHEN HE HAS COMPLETED 20 YEARS OF ACTIVE SERVICE, 10 OF WHICH HAVE BEEN AS A COMMISSIONED OFFICER, AND THAT RETIRED PAY IS AUTHORIZED UNDER 10 U.S.C. 3991, 6323, 8991 AND 14 U.S.C. 232, WHICH STATUTES CONTAIN NO RESTRICTION AGAINST PAYMENT OF RETIRED PAY TO AN OFFICER WHO ACQUIRES FOREIGN CITIZENSHIP. REFERENCE IS MADE ALSO TO THE HOLDINGS IN THREE DECISIONS OF THIS OFFICE, THE FIRST OF WHICH (37 COMP. GEN. 207) HELD THAT A MARINE CORPS RESERVE OFFICER RETIRED FOR DISABILITY UNDER THE ACT OF AUGUST 27, 1940 (54 STAT. 864, AS AMENDED, 33 U.S.C. 855C-1, 1946 USED.), WAS ENTITLED TO HIS RETIREMENT PAY REGARDLESS OF WHETHER HE CONTINUED TO HOLD A STATUS AS AN OFFICER IN A RESERVE COMPONENT; THAT THE RIGHT TO SUCH DISABILITY RETIREMENT PAY UNDER THE 1940 ACT, AS AMENDED, WAS NOT CONTINGENT UPON THE MEMBER'S MILITARY STATUS AFTER THE DATE OF HIS RETIREMENT; AND THAT HIS RETIRED PAY WOULD NOT TERMINATE BECAUSE HE BECAME A CITIZEN OF A FOREIGN COUNTRY. REFERENCE IS MADE TO THE FACT THAT THIS CASE ALSO HELD THAT THE RIGHT OF A MEMBER OF THE REGULAR NAVY TO RETIRED PAY TERMINATES IF HIS STATUS IN THE REGULAR NAVY TERMINATES AND THAT LOSS OF UNITED STATES CITIZENSHIP IS INCONSISTENT WITH A CONTINUATION OF THAT STATUS. IN THE SECOND CASE (38 COMP. GEN. 523), IT WAS HELD THAT THE DISCHARGE OF AN ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY TERMINATES THE STATUS ON WHICH HIS RETIRED PAY DEPENDS, IT BEING STATED THAT RETIRED NAVY ENLISTED MEN ARE A PART OF THE NAVY AND IN TIME OF WAR OR NATIONAL EMERGENCY MAY BE CALLED TO ACTIVE DUTY; THAT THEY ARE SUBJECT TO NAVAL AUTHORITY; THAT THEY ARE NOT DISCHARGED UPON RETIREMENT BUT RATHER REGARDED AS CONTINUING IN THE SERVICE UPON THE RETIRED LIST; AND THAT A MEMBER'S LATER DISCHARGE THEREFORE TERMINATES HIS RETIRED PAY. CITED ALSO IS DECISION B-144694, DATED FEBRUARY 14, 1961, HOLDING THAT AN ENLISTED MAN OF THE REGULAR AIR FORCE--- AN ALIEN WHO HAD MET THE STATUTORY REQUIREMENT FOR ENLISTMENT BY FILING A LEGAL INTENTION TO BECOME A CITIZEN OF THE UNITED STATES--- WHO WAS RETIRED FOR DISABILITY IS ENTITLED TO RETIRED PAY REGARDLESS OF LACK OF CITIZENSHIP, NO PROVISION OF LAW BARRING THE PAYMENT OF RETIRED PAY TO THE ALIEN OR INDICATING THAT LACK OF CITIZENSHIP OF SUCH A PERSON WAS INCONSISTENT WITH HIS STATUS AS A RETIRED MEMBER OF THE REGULAR AIR FORCE HAVING BEEN FOUND.

THE COMMITTEE DISCUSSION CONTAINS THE OBSERVATIONS THAT WHILE THE ABOVE DECISIONS DO NOT COVER THE CASE OF A RESERVE OFFICER RETIRED FOR LENGTH OF SERVICE UNDER 10 U.S.C. 3911, 6323, 8911 OR 14 U.S.C. 232, THE RIGHT TO RETIRED PAY WOULD SEEM TO DEPEND, UNDER THE PRINCIPLES OF THESE DECISIONS, UPON WHETHER SUCH RETIRED PAY IS CONTINGENT UPON CONTINUED MILITARY STATUS AND, IF SO, WHETHER BECOMING A CITIZEN OF A FOREIGN COUNTRY MAY BE CONSIDERED CONSISTENT WITH SUCH A STATUS. MENTION IS ALSO MADE OF SEVERAL PROVISIONS OF LAW ORIGINATING IN THE ARMED FORCES RESERVE ACT OF 1952 AS BEING GERMANE TO THE QUESTIONS. THESE ARE 10 U.S.C. 267 (PROVIDING FOR A READY RESERVE, A STANDBY RESERVE AND A RETIRED RESERVE AS A PART OF EACH ARMED FORCE); 10 U.S.C. 1376 (PROVIDING FOR THE MAINTENANCE OF RETIRED LISTS BY THE SECRETARY CONCERNED); 10 U.S.C. 274 (1960 AMENDMENT PROVIDING FOR THE AUTOMATIC PLACEMENT IN THE RETIRED RESERVE OF MEMBERS RETIRED UNDER SECTIONS 3911, 6323 OR 8911 OF TITLE 10 OR 14 U.S.C. 232); AND 10 U.S.C. 675 (PROVIDING FOR THE ORDERING TO ACTIVE DUTY OF QUALIFIED MEMBERS OF THE RETIRED RESERVE WITHOUT THEIR CONSENT IN TIME OF WAR OR NATIONAL EMERGENCY). IT IS STATED THAT THESE PROVISIONS OF LAW IMPOSED A LIABILITY FOR SERVICE AFTER RETIREMENT, A LIABILITY TO WHICH MEMBERS OF THE REGULAR COMPONENTS ARE SUBJECT.

A LEGISLATIVE INTENT TO RELY UPON THE RETIRED RESERVE AS A SOURCE OF MANPOWER IN TIME OF WAR OR NATIONAL EMERGENCY IS INDICATED BY THE ENACTMENT OF SUCH PROVISIONS OF LAW AS 10 U.S.C. 267 (PROVIDING FOR A RETIRED RESERVE AS A PART OF EACH ARMED FORCE); 10 U.S.C. 675 (PROVIDING FOR THE ORDERING TO ACTIVE DUTY OF QUALIFIED RETIRED RESERVISTS WITHOUT THEIR CONSENT IN TIME OF WAR OR NATIONAL EMERGENCY); AND 14 U.S.C. 240 (PROVIDING FOR THE RECALL TO ACTIVE DUTY OF RETIRED OFFICERS IN TIME OF WAR OR NATIONAL EMERGENCY). IN SUCH CIRCUMSTANCES, IT WOULD SEEM THAT THE RETIRED PAY RECEIVED BY A RETIRED RESERVIST IS BASED ON HIS STATUS IN AN ARMED FORCE AS A MEMBER OF THAT ORGANIZATION AND THAT LOSS OF SUCH STATUS WOULD TERMINATE HIS RIGHT TO RETIRED PAY.

UNDER THE PROVISIONS OF 10 U.S.C. 591, A PERSON IS NOT ELIGIBLE FOR APPOINTMENT AS A RESERVE OFFICER UNLESS HE MEETS THE CITIZENSHIP REQUIREMENTS OF THAT SECTION, THAT IS, WITH CERTAIN EXCEPTIONS WHICH DO NOT APPEAR PERTINENT HERE, APPOINTMENT AS A RESERVE OFFICER IS PROHIBITED UNLESS THE PERSON IS A CITIZEN OF THE UNITED STATES, HAS DECLARED HIS INTENTION TO BECOME A CITIZEN OF THE UNITED STATES OR HAS PREVIOUSLY SERVED IN THE ARMED FORCES OR IN THE NATIONAL SECURITY TRAINING CORPS. INCIDENT TO SUCH APPOINTMENT AS A RESERVE OFFICER THE APPOINTEE MUST TAKE A PRESCRIBED OATH OF OFFICE. THAT OATH IS TO THE EFFECT THAT THE APPOINTEE "WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN OR DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME * * *.' 5 U.S.C. 16. SEE, ALSO, 50 U.S.C. APP. 454 (I) (7) WHICH PROVIDES THAT CERTAIN ALIENS LIABLE FOR INDUCTION AND WHO ARE APPOINTED AS OFFICERS MAY TAKE AN OATH OTHER THAN THAT MENTIONED ABOVE TO BE PRESCRIBED BY THE SECRETARY OF DEFENSE. IF, AFTER THE PRESCRIBED OATH HAS BEEN TAKEN, AN OFFICER WHO IS A CITIZEN OF THE UNITED STATES ABANDONS HIS UNITED STATES CITIZENSHIP AND BECOMES A CITIZEN OF SOME FOREIGN COUNTRY, THAT ACTION ON HIS PART SEEMS TO US TO BE ENTIRELY INCONSISTENT WITH HIS OATH AS A RESERVE OFFICER TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, ETC., AND HENCE, THAT ACTION ALSO SEEMS TO BE INCONSISTENT AND REPUGNANT TO A CONTINUATION OF HIS STATUS AS AN OFFICER IN A RESERVE ORGANIZATION, READY, STANDBY OR RETIRED. IN THE ABSENCE OF SOME PROVISION OF LAW AUTHORIZING A CONTINUATION OF SUCH AN OFFICER'S MEMBERSHIP IN A RESERVE ORGANIZATION AFTER HE BECOMES A CITIZEN OF A FOREIGN COUNTRY, THE PAYMENT TO HIM OF RETIRED PAY INCIDENT TO HIS SERVICE IN THE ARMED FORCES OF THE UNITED STATES UNDER THE STATUTORY PROVISIONS REFERRED TO IN YOUR FIRST TWO QUESTIONS WOULD BE OF SUCH DOUBTFUL LEGALITY THAT WE WOULD BE REQUIRED TO WITHHOLD OUR APPROVAL OF IT. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, QUESTION 2 IS ANSWERED IN THE NEGATIVE, AND SINCE TERMINATION OF AN OFFICER'S RESERVE STATUS THROUGH RESIGNATION OR OTHER MEANS WOULD TERMINATE HIS RIGHT TO RETIRED PAY UNDER THE PROVISIONS OF LAW REFERRED TO IN YOUR THIRD QUESTION, THAT QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTIONS 4 AND 5 ARE AS FOLLOWS:

4. A RESERVE OFFICER, A CITIZEN OF THE UNITED STATES IS RETIRED UNDER 10 U.S.C. 8911. HE IS DULY PLACED IN THE RETIRED RESERVE AND IS RECEIVING RETIRED PAY. (NO ACQUISITION OF FOREIGN CITIZENSHIP IS INVOLVED.) ASSUMING APPROVAL BY THE SECRETARY OF THE DEPARTMENT CONCERNED, IS THERE ANY REMUNERATIVE POSITION HE MIGHT ACCEPT FROM A FOREIGN GOVERNMENT OR ANY CONCERN WHOLLY OR PARTLY CONTROLLED BY A FOREIGN GOVERNMENT, OR BY SUCH GOVERNMENT NOT SO CONTROLLED, WHICH WOULD AFFECT HIS ENTITLEMENT TO RETIREMENT PAY?

5. WOULD THE ANSWER DIFFER AS TO RETIREMENTS UNDER 10 U.S.C. 3911, 6323 OR 14 U.S.C. 232?

THE EIGHTH CLAUSE OF ARTICLE 1, SECTION 9, OF THE UNITED STATES CONSTITUTION PROVIDES AS OLLOWS:

NO TITLE OF NOBILITY SHALL BE GRANTED BY THE UNITED STATES: AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE.

CITED AS HAVING A BEARING ON THE PROBLEM HERE INVOLVED IS EXECUTIVE ORDER NO. 5221 DATED NOVEMBER 11, 1929, WHICH PROHIBITS ACCEPTANCE OF EMPLOYMENT BY AN OFFICER OR EMPLOYEE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT WITH ANY FOREIGN GOVERNMENT, PARTNERSHIP, CORPORATION OR INDIVIDUAL IN COMPETITION WITH AMERICAN INDUSTRY, REGARDLESS OF WHETHER HE IS ON ANNUAL LEAVE OR LEAVE WITHOUT PAY.

SECTION 247 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 495, AS CODIFIED IN 10 U.S.C. 1032, PROVIDES AS FOLLOWS:

SUBJECT TO THE APPROVAL OF THE SECRETARY CONCERNED, A RESERVE MAY ACCEPT CIVIL EMPLOYMENT WITH, AND COMPENSATION THEREFOR FROM, ANY FOREIGN GOVERNMENT OR ANY CONCERN THAT IS WHOLLY OR PARTLY CONTROLLED BY A FOREIGN GOVERNMENT.

SECTION 246 OF THE SAME ACT, 66 STAT. 495, 50 U.S.C. 981 (1952 USED.), REENACTED AS SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, NOW 5 U.S.C. 30R (D), PROVIDED, AS FOLLOWS:

WHEN NOT ON ACTIVE DUTY, MEMBERS OF THE RESERVE COMPONENTS SHALL NOT BE HELD OR CONSIDERED TO BE OFFICERS OR EMPLOYEES OF THE UNITED STATES, OR PERSONS HOLDING ANY OFFICE OF PROFIT OR TRUST OR DISCHARGING ANY OFFICIAL FUNCTION UNDER OR IN CONNECTION WITH ANY DEPARTMENT OR AGENCY OF THE UNITED STATES, SOLELY BY REASON OF THEIR APPOINTMENTS, OATHS, COMMISSIONS, OR STATUS AS SUCH, OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY AND ALLOWANCES RECEIVED AS SUCH.

IT SEEMS APPARENT THAT BOTH SECTION 247 AND SECTION 246 APPLY TO RESERVE OFFICERS NOT ON ACTIVE DUTY AND THAT THE PURPOSE OF SECTION 246 WAS TO GRANT SUCH OFFICERS AN EXCEPTION FROM LAWS WHICH OTHERWISE RESTRICT THE EMPLOYMENT AND RECEIPT OF COMPENSATION INCIDENT TO THAT EMPLOYMENT BY OFFICERS AND EMPLOYEES OF THE UNITED STATES OR PERSONS HOLDING OFFICE UNDER THE GOVERNMENT. IT SEEMS EQUALLY APPARENT, HOWEVER, THAT THE EXEMPTION GRANTED IN SECTION 246 WAS NOT INTENDED TO COVER CIVIL EMPLOYMENT BY A FOREIGN GOVERNMENT AS MENTIONED IN SECTION 247. IT IS OUR VIEW THAT SECTION 247 (10 U.S.C. 1032) GRANTS CONGRESSIONAL CONSENT--- CONTEMPLATED BY ARTICLE I, SECTION 9 OF THE CONSTITUTION--- TO RESERVE OFFICERS TO ACCEPT CIVILIAN EMPLOYMENT AND COMPENSATION FROM FOREIGN GOVERNMENTS AND BUSINESS CONCERNS WHOLLY OR PARTLY CONTROLLED BY SUCH GOVERNMENTS WHEN THE APPROVAL OF THE PERTINENT SECRETARY HAS BEEN OBTAINED. IT IS ASSUMED THAT THE SECRETARY WOULD NOT APPROVE SUCH FOREIGN CIVIL EMPLOYMENT IF THAT EMPLOYMENT WAS PROHIBITED BY THE PROVISIONS OF EXECUTIVE ORDER NO. 5221.

IT IS UNDERSTOOD THAT THE PHRASE "OR BY SUCH GOVERNMENT NOT SO CONTROLLED" IN QUESTION 4, REFERS TO FOREIGN PRIVATE CONCERNS NOT CONTROLLED BY ANY FOREIGN GOVERNMENT. EXECUTIVE ORDER NO. 5221 APPEARS TO COVER EMPLOYMENT IN SUCH SITUATIONS IF THE CONCERN INVOLVED IS IN COMPETITION WITH AMERICAN INDUSTRY. SEE, ALSO, 5 U.S.C. 59C AND 10 U.S.C. 6112 (B). HOWEVER, THE TERMS OF THE EXECUTIVE ORDER DO NOT, IN OUR OPINION, WARRANT A CONCLUSION THAT ACCEPTANCE OF EMPLOYMENT CONTRARY TO ITS PROVISIONS WOULD AUTOMATICALLY TERMINATE A RETIRED RESERVE STATUS.

QUESTION 4 IS ANSWERED ACCORDINGLY.

WE FIND NOTHING WHICH REQUIRES A DIFFERENT ANSWER WITH RESPECT TO RETIREMENTS UNDER 10 U.S.C. 3911, 6323 OR 14 U.S.C. 232, AND QUESTION 5 IS ANSWERED IN THE NEGATIVE.