B-155174, NOVEMBER 13, 1964, 44 COMP. GEN. 284

B-155174: Nov 13, 1964

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IS ENTITLED ON THE BASIS OF REACHING THE AGE OF 60 ON FEBRUARY 3. 1964: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24. THE SUBMISSION WAS ASSIGNED AIR FORCE REQUEST NO. IS BASED ON A DATE OF BIRTH OF FEBRUARY 3. WHICH WAS THEN ESTABLISHED ON HIS MILITARY RECORDS AND USED CONSISTENTLY THROUGHOUT THE REMAINDER OF HIS MILITARY SERVICE. HE WAS PLACED ON THE USAF RESERVE RETIRED LIST AS ELIGIBLE FOR RETIRED PAY UNDER 10 U.S.C. 1331 EXCEPT FOR ATTAINMENT OF 60 YEARS OF AGE. STATING THAT AN ERROR HAD BEEN MADE IN HIS MILITARY RECORDS AND THAT HIS ACTUAL DATE OF BIRTH WAS FEBRUARY 3. ALL OF WHICH INDICATE THAT HE WAS BORN IN 1903 RATHER THAN IN 1907. WHICH WAS ORIGINALLY ISSUED BY THE STATE OF SOUTH DAKOTA ON JUNE 4.

B-155174, NOVEMBER 13, 1964, 44 COMP. GEN. 284

PAY - SERVICE CREDITS - RESERVES - AGE LIMITATION ON APPOINTMENTS A LIEUTENANT COLONEL OF THE AIR FORCE WHO UPON COMPLETION OF 20 YEARS OF SERVICE AND PLACEMENT ON THE RESERVE RETIRED LIST AS ELIGIBLE FOR RETIRED PAY UNDER 10 U.S.C. 1331, EXCEPT FOR ATTAINMENT OF 60 YEARS OF AGE, ALLEGES AND PROVES HIS CORRECT DATE OF BIRTH AS FEBRUARY 3, 1903, INSTEAD OF 1907 AS ESTABLISHED IN HIS RECORDS, IS ENTITLED ON THE BASIS OF REACHING THE AGE OF 60 ON FEBRUARY 3, 1963, TO RECEIVE RETIRED PAY BEGINNING MARCH 1, 1963, COMPUTED ON THE BASIC PAY OF HIS GRADE, INCLUDING CREDIT FOR ALL PERIODS DURING WHICH HE HELD MEMBERSHIP IN A RESERVE COMPONENT, MULTIPLIED BY THE YEARS OF AUTHORIZED ACTIVE RESERVE SERVICE AS PROVIDED IN SECTION 1331, BUT EXCLUDING UNAUTHORIZED SERVICE, REGARDED AS DE FACTO SERVICE, IN THE READY RESERVE, AN ASSIGNMENT THE OFFICER RECEIVED ON THE BASIS OF HIS ERRONEOUS DATE OF BIRTH, AFR 45-5, DATED APRIL 21, 1955, PRESCRIBING 52 YEARS OF AGE, IN THE ABSENCE OF A WAIVER, AS THE MAXIMUM AGE-IN-GRADE FOR APPOINTMENT OF A LIEUTENANT COLONEL UNDER THE ARMED FORCES RESERVE ACT OF 1952; HOWEVER, THE OFFICER MAY RETAIN THE PAY BENEFITS RECEIVED IN THE DE FACTO STATUS.

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, NOVEMBER 13, 1964:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1964, WITH ENCLOSURES, PRESENTING FOR DECISION AS TO THE PROPRIETY OF PAYMENT THEREON A VOUCHER IN THE AMOUNT OF $4,895.17 IN FAVOR OF LIEUTENANT COLONEL FRANK W. DVORAK, USAF, RETIRED. THE SUBMISSION WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF- 803 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE VOUCHER COVERS RETIRED PAY WHICH ACCRUES AT AGE 60 AFTER COMPLETION OF 20 YEARS OF MILITARY SERVICE, IN ACCORDANCE WITH 10 U.S.C. 1331, AND COLONEL DVORAKS' ENTITLEMENT AS OF MARCH 1, 1963, IS BASED ON A DATE OF BIRTH OF FEBRUARY 3, 1903.

THE INFORMATION FURNISHED SHOWS THAT COLONEL DVORAK ON DECEMBER 31, 1929, WHILE HOLDING MEMBERSHIP IN THE NORTH DAKOTA NATIONAL GUARD AS SERGEANT, APPLIED FOR APPOINTMENT AS A SECOND LIEUTENANT IN THE OFFICERS' RESERVE CORPS OF THE U.S. ARMY. ON THE APPLICATION HE SHOWED HIS DATE OF BIRTH AS FEBRUARY 3, 1905. IN 1946 HE APPLIED FOR A COMMISSION IN THE REGULAR ARMY SHOWING HIS DATE OF BIRTH AS FEBRUARY 3, 1907. UPON REQUEST FOR CLARIFICATION, IN VIEW OF THE DISCREPANCY IN AGE, HE SUBMITTED DOCUMENTARY EVIDENCE CONFIRMING THE 1907 DATE, WHICH WAS THEN ESTABLISHED ON HIS MILITARY RECORDS AND USED CONSISTENTLY THROUGHOUT THE REMAINDER OF HIS MILITARY SERVICE. EFFECTIVE JULY 1, 1960, HE WAS PLACED ON THE USAF RESERVE RETIRED LIST AS ELIGIBLE FOR RETIRED PAY UNDER 10 U.S.C. 1331 EXCEPT FOR ATTAINMENT OF 60 YEARS OF AGE, WHICH WOULD OCCUR ON FEBRUARY 3, 1967.

ON AUGUST 30, 1962, COLONEL DVORAK WROTE TO THE AIR RESERVE RECORDS CENTER, DENVER, COLORADO, STATING THAT AN ERROR HAD BEEN MADE IN HIS MILITARY RECORDS AND THAT HIS ACTUAL DATE OF BIRTH WAS FEBRUARY 3, 1903. TO SUPPORT THAT STATEMENT HE FURNISHED COPIES OF VARIOUS DOCUMENTS INCLUDING SCHOOL RECORDS, CENSUS RECORDS AND HIS FATHER'S NATURALIZATION CERTIFICATE, ALL OF WHICH INDICATE THAT HE WAS BORN IN 1903 RATHER THAN IN 1907. ON THE BASIS OF THESE RECORDS HIS BIRTH CERTIFICATE, WHICH WAS ORIGINALLY ISSUED BY THE STATE OF SOUTH DAKOTA ON JUNE 4, 1937, WAS CHANGED TO SHOW FEBRUARY 3, 1903, AS HIS CORRECT DATE OF BIRTH.

IN VIEW OF THE RECORDS FURNISHED, IT APPEARS THERE IS NO REASON TO QUESTION THE DATE OF FEBRUARY 3, 1903, AS THE CORRECT DATE OF HIS BIRTH. SINCE HE HAD MET THE SERVICE REQUIREMENTS FOR ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331 PRIOR TO FEBRUARY 3, 1963, WHEN HE BECAME 60 YEARS OF AGE, HE IS ENTITLED TO RECEIVE SUCH RETIRED PAY BEGINNING MARCH 1, 1963.

THE RECORD FURTHER SHOWS THAT COLONEL DVORAK WAS ASSIGNED TO THE READY RESERVE IN 1955 AND 1957 ON THE BASIS OF THE DATE OF BIRTH THEN SHOWN ON THE RECORDS, FEBRUARY 3, 1907, AND THAT IF HIS AGE HAD BEEN CORRECTLY SHOWN HE WOULD HAVE BEEN DENIED THE ASSIGNMENT AS OVER-AGE IN GRADE.

SECTION 201 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 482, 50 U.S.C. 921 (A) (1952 ED.), PROVIDED THAT THE RESERVE COMPONENTS ARE MAINTAINED FOR THE PURPOSE OF PROVIDING TRAINED UNITS AND QUALIFIED INDIVIDUALS TO BE AVAILABLE FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY AND AT SUCH OTHER TIMES AS THE NATIONAL SECURITY MAY REQUIRE. SECTION 231 OF THAT ACT, 50 U.S.C. 955 (1952 ED.), PROVIDED:

ANY RESERVE OFFICER WHOSE AGE EXCEEDS THE MAXIMUM AGE PRESCRIBED FOR HIS GRADE AND CLASSIFICATION MAY BE SEPARATED, OR RETAINED IN OR TRANSFERRED TO AN ACTIVE, INACTIVE, OR, UPON HIS APPLICATION, A RETIRED STATUS, AS THE APPROPRIATE SECRETARY MAY PRESCRIBE * * *. SECTION 251, 50 U.S.C. 1002 (1952 ED.), REQUIRED THE SECRETARY CONCERNED TO MAKE AND PUBLISH SUCH REGULATIONS AS HE DETERMINES NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT.

ON MAY 20, 1955, AT THE AGE OF 52, HE WAS GIVEN A READY RESERVE ASSIGNMENT ON THE BASIS OF AN ERRONEOUS DATE OF BIRTH. IN THE ABSENCE OF A WAIVER AND OTHER APPROPRIATE ADMINISTRATIVE ACTION, THE MAXIMUM AGE IN GRADE FOR A LIEUTENANT COLONEL IN SUCH ASSIGNMENT WAS 52 YEARS AS ESTABLISHED IN PARAGRAPH 12B (4), AFR 45-5, DATED APRIL 21, 1955. IF HIS AGE HAD BEEN CORRECTLY SHOWN, HE COULD NOT HAVE BEEN RETAINED IN SUCH ASSIGNMENT AFTER FEBRUARY 3, 1956. THE EFFECT OF SUCH REGULATION WAS TO PROHIBIT THE OFFICER'S ACTIVE RESERVE SERVICE AFTER THAT DATE.

ALTHOUGH THERE IS NO EVIDENCE OF FRAUD ON THE PART OF THE MEMBER IN USING AN ERRONEOUS DATE OF BIRTH WHILE IN AN ACTIVE STATUS, THERE IS NOTHING IN THE FILE TO SHOW THAT HE COULD NOT HAVE PREVIOUSLY OBTAINED THE DOCUMENTARY EVIDENCE NOW FURNISHED. ACTIVE SERVICE PERFORMED AT TIMES WHEN HE WAS OVER-AGE IN GRADE FOR THE ASSIGNMENT HELD MUST BE REGARDED AS IN EFFECT PROHIBITED AND AS HAVING BEEN PERFORMED AT BESTIN A DE FACTO STATUS ENTITLING HIM ONLY TO RETAIN THE PAY BENEFITS HE HAS ALREADY RECEIVED. 30 COMP. GEN. 195. RETIRED PAY MAY NOT BE INCREASED BY SUCH UNAUTHORIZED SERVICE. SEE 32 COMP. GEN. 397, AND COMPARE DECISION OF NOVEMBER 9, 1964, B-155459.

RETIRED PAY SHOULD BE COMPUTED ON THE BASIC PAY OF HIS GRADE INCLUDING CREDIT FOR ALL PERIODS DURING WHICH HE HELD MEMBERSHIP IN A RESERVE COMPONENT MULTIPLIED BY THE YEARS OF AUTHORIZED ACTIVE RESERVE SERVICE AS PROVIDED IN 10 U.S.C. 1331, EXCLUDING UNAUTHORIZED SERVICE PERFORMED IN A DE FACTO STATUS. THE VOUCHER PRESENTED WITH YOUR LETTER, NOT BEING PROPER FOR PAYMENT AS PRESENTED, IS RETAINED HERE.