B-149907, OCT. 30, 1962

B-149907, OCT. 30, 1962

TO COMMANDER M. M. ALEXANDER, DISBURSING OFFICER, RETIRED PAY DEPARTMENT:

BY SECOND INDORSEMENT DATED SEPTEMBER 14, 1962, THE COMPTROLLER OF THE NAVY FORWARDED HERE YOUR LETTER OF AUGUST 13, 1962, REQUESTING A DECISION AS TO WHETHER IT MAY BE CONSIDERED THAT ROBERT C. HERRON, 171 51 70, CMC, USNR, RETIRED, WAS RETAINED ON ACTIVE DUTY BY ORDER OF THE SECRETARY OF THE NAVY PURSUANT TO THE PROVISIONS OF 10 U.S.C. 676, FROM DECEMBER 20, 1957, THE DATE OF HIS INITIAL ELIGIBILITY FOR RETIREMENT UNDER CHAPTER 67, TITLE 10, U.S.C. TO MAY 1, 1962, THE DATE OF HIS RETIREMENT. YOUR REQUEST FOR A DECISION WAS ASSIGNED SUBMISSION NO. DO-N-672 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT ALTHOUGH HERRON QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 1331 ON DECEMBER 20, 1957, THE DATE HE BECAME 60 YEARS OF AGE, HE CONTINUED TO SERVE ON ACTIVE DUTY UNTIL MAY 1, 1962, ON WHICH DATE, IN ACCORDANCE WITH HIS REQUEST, HE WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST WITH A TOTAL OF 6,366 POINTS UPON WHICH TO COMPUTE HIS RETIRED PAY AND OVER 30 YEARS' ACTIVE AND INACTIVE SERVICE FOR BASIC PAY PURPOSES. YOU SAY THAT PENDING OUR DECISION HERRON'S RETIRED PAY HAS BEEN COMPUTED FROM MAY 1, 1962, ON THE BASIS OF THE POINTS AND SERVICE TO HIS CREDIT THROUGH DECEMBER 19, 1957.

THE ACT OF AUGUST 10, 1956, CH. 1041, 70A. 29, 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 YOUR LETTER YOU SUGGEST THAT HERRON'S ACTIVE SERVICE DURING THE PERIOD DECEMBER 20, 1957, THROUGH APRIL 30, 1962, SHOULD BE CREDITED IN COMPUTING HIS RETIRED PAY UNDER 10 U.S.C. 1333 IN VIEW OF OUR STATEMENT IN ANSWER TO QUESTION 5C IN THE DECISION OF AUGUST 25, 1958, 38 COMP. GEN. 146, 152, AS FOLLOWS:

"IT APPEARS THAT THE PURPOSE OF 10 U.S.C. 676 WAS TO PERMIT THE ARMED SERVICES TO UTILIZE THE SERVICES OF SUCH MEMBERS WITH THEIR CONSENT IF PERFORMED WITH THE APPROVAL OF THE SECRETARY CONCERNED. WE THINK THAT THE SEVERAL SECRETARIES MAY CONTROL THE PERFORMANCE OF SERVICE BY MEMBERS AFTER ATTAINING AGE 60 BY ANY METHOD THEY MAY DEEM APPROPRIATE, WHETHER BY GENERAL DIRECTIVES OR OTHERWISE. HENCE WE WILL NOT OBJECT TO THE CREDITING OF SUCH SERVICE IF IT IS PERFORMED UNDER COMPETENT ORDERS EVEN THOUGH THEY MAY BE GENERAL IN NATURE.'

THAT ANSWER, WHICH WAS GIVEN IN RESPONSE TO A QUESTION AS TO WHAT WOULD BE THE REQUISITES OF AN "ORDER OF THE SECRETARY CONCERNED," WAS NOT INTENDED TO IMPLY THAT MERE PERFORMANCE OF SERVICE WOULD MEET THE REQUIREMENTS OF 10 U.S.C. 676. AS WE UNDERSTOOD IT THE QUESTION CONCERNED THE FORM OF THE ORDERS REQUIRED, AND THE ANSWER WAS INTENDED TO GO NO FURTHER THAN TO SAY THAT INDIVIDUAL ORDERS WERE NOT REQUIRED, THAT GENERAL SECRETARIAL ORDERS, SUCH AS AN ORDER AUTHORIZING OR DIRECTING THE RETENTION OF SPECIALISTS OF A CERTAIN CLASS, FOR EXAMPLE, WOULD MEET THE REQUIREMENTS OF THE STATUTE.

IN DECISION OF APRIL 1, 1959, 38 COMP. GEN. 647, 652, WE RECOGNIZED THAT THERE MAY BE CASES OF MEMBERS WHO HERETOFORE MAY HAVE BEEN RETAINED ON EXTENDED ACTIVE DUTY UNDER CIRCUMSTANCES GIVING RISE TO A QUESTION AS TO WHETHER THEIR RETENTION WAS PURSUANT TO AN ORDER OF THE SECRETARY. DISCUSSIONS WITH THE SEVERAL SERVICE REPRESENTATIVES CONCERNING THE PROBLEM OF PRIOR CASES CULMINATED IN THE SUBMISSION OF LISTS BY THE SERVICES OF ALL PERSONS WHO THERETOFORE HAD BEEN RETAINED UNDER 10 U.S.C. 676.

BY LETTER DATED AUGUST 24, 1959, THE THEN ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) ADVISED US THAT "POSITIVE INSTRUCTIONS AND ADMINISTRATIVE PROCEDURES" WERE THEN IN EFFECT WHICH WOULD STRICTLY CIRCUMSCRIBE THE CONDITIONS UNDER WHICH RETENTIONS OF PERSONNEL IN AN ACTIVE STATUS "WILL BE PERMITTED IN ACCORDANCE WITH TITLE 10, U.S.C. 676.' A LIST OF PERSONNEL OF THE NAVY CONSIDERED TO HAVE BEEN RETAINED IN AN ACTIVE STATUS BEYOND THE FIRST DATE OF ELIGIBILITY FOR RETIRED PAY, UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WAS ENCLOSED. IN REPLY, BY LETTER DATED SEPTEMBER 25, 1959, B 138452, WE ADVISED THE SECRETARY OF THE NAVY THAT, AFTER CAREFUL CONSIDERATION OF THE VARIOUS FACTORS INVOLVED, THE MEMBERS LISTED WOULD BE CONSIDERED AS RETAINED FOR SERVICE IN A RESERVE COMPONENT BY HIS ORDER, AFTER QUALIFYING FOR RETIRED PAY, AND WOULD BE CONSIDERED AS ENTITLED TO THE BENEFITS WHICH ACCRUE TO ELIGIBLE MEMBERS UNDER10 U.S.C. 676, OR UNDER SECTION 302 (E) OF THE ACT OF JUNE 29, 1948, FROM WHICH THE CODE PROVISION WAS DERIVED. OUR ACTION IN THAT CASE WAS WITH THE UNDERSTANDING, IN ACCORDANCE WITH THE DISCLOSURES MADE IN THE LETTER OF AUGUST 24, 1959, THAT ADMINISTRATIVE ACTION HAD BEEN TAKEN TO INSURE THE RETENTION OF SUCH MEMBERS IN AN ACTIVE DUTY STATUS ONLY AS PROVIDED UNDER 10 U.S.C. 676.

A QUESTION SIMILAR TO THAT HERE INVOLVED WAS CONSIDERED IN B 146276, DATED AUGUST 18, 1961, 41 COMP. GEN. 118, AND WE THERE HELD THAT THE PROPER TERMINAL DATE FOR THE COMPUTATION OF ADDITIONAL CREDITS ACQUIRED BY THE MEMBER CONCERNED, AFTER HIS QUALIFICATION FOR RETIRED PAY, WAS THE DATE HE WAS TRANSFERRED TO THE RETIRED RESERVE FOLLOWING THE TERMINATION OF HIS RETENTION UNDER 10 U.S.C. 676. WE SAID THAT SUCH VIEW WAS 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, 10 U.S.C. WE SAID FURTHER THAT THE ONLY PROVISION FOR INCREASING THE RETIRED PAY OF A PERSON WHO QUALIFIES UNDER CHAPTER 67 IS 10 U.S.C. 676. SEE, ALSO, 41 COMP. GEN. 131, 134, AND THE CASE OF GUADALUPE NAVARRO, ET AL. (HEIRS OF LUIS RAUL ESTEVES) V. UNITED STATES, CT.CL.NO. 118-55, DECIDED DECEMBER 6, 1961.

YOUR LETTER IS UNDERSTOOD TO SAY THAT HERRON WAS NOT RETAINED ON ACTIVE DUTY PURSUANT TO AN ORDER, INSTRUCTION OR REGULATION ISSUED BY THE SECRETARY OF THE NAVY PURSUANT TO 10 U.S.C. 676. IN VIEW OF THAT FACT AND SINCE HIS NAME DOES NOT APPEAR ON THE LIST OF PERSONS DETERMINED BY THE SECRETARY TO HAVE BEEN SO RETAINED (SEE LIST WHICH ACCOMPANIED THE LETTER OF AUGUST 24, 1959), YOUR QUESTION IS ANSWERED IN THE NEGATIVE.