B-155613, JAN. 4, 1965

B-155613, JAN. 4, 1965

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO THE LETTER OF NOVEMBER 17, 1964, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION AS TO THE FUTURE RETIRED PAY RIGHTS OF COLONEL ROBERT OUTSEN, U.S. ARMY, RETIRED, IN THE EVENT HE SHOULD BE CALLED TO ACTIVE DUTY IN HIS RESERVE GRADE OF BRIGADIER GENERAL AND IN HIS STATUS AS A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES RATHER THAN IN HIS RETIRED STATUS AS A COLONEL IN THE REGULAR ARMY.

IT IS STATED THAT COLONEL OUTSEN WAS RETIRED AUGUST 31, 1961, UNDER THE MANDATORY RETIREMENT PROVISIONS OF 10 U.S.C. 3921, HAVING COMPLETED OVER 30 YEARS OF SERVICE FOR BASIC PAY, OVER 20 YEARS OF WHICH WAS ACTIVE SERVICE. SUBSEQUENT TO RETIREMENT HE WAS APPOINTED ASSISTANT ADJUTANT GENERAL, ARMY NATIONAL GUARD FOR WYOMING, IN THE GRADE OF BRIGADIER GENERAL AND ON SEPTEMBER 11, 1964, THE SENATE CONFIRMED HIS APPOINTMENT AS A BRIGADIER GENERAL IN THE ARMY RESERVE FOR SERVICE IN THE ARMY NATIONAL GUARD OF THE UNITED STATES. THE QUESTIONS PRESENTED ARE:

"A. IF COLONEL OUTSEN IS CALLED TO ACTIVE DUTY IN THE GRADE OF BRIGADIER GENERAL AND IN HIS STATUS AS A MEMBER OF THE ARMY NATIONAL GUARD OF THE UNITED STATES, UNDER WHAT CIRCUMSTANCES, IF ANY, WILL HE BE ABLE TO RECOMPUTE HIS RETIRED PAY UPON THE BASIS OF THE HIGHER GRADE OF BRIGADIER GENERAL UPON HIS RELIEF FROM ACTIVE DUTY?

"B. IF THE OFFICER IS PERMITTED TO RECOMPUTE HIS RETIRED PAY UPON THE BASIS OF THE GRADE OF BRIGADIER GENERAL, WILL THE AMOUNT OF SERVICE CREDITABLE FOR COMPUTING SUCH PAY BE CHANGED?

GENERALLY RETIRED PAY IS RECOMPUTED UNDER 10 U.S.C. 1402 TO REFLECT ACTIVE DUTY PERFORMED AFTER RETIREMENT. UNDER SUBSECTION (A) OF THAT SECTION RETIRED PAY IS COMPUTED AT 2 1/2 PERCENT OF THE MONTHLY BASIC PAY "OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY" MULTIPLIED BY THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM IN COMPUTING RETIRED PAY PLUS HIS YEARS OF SERVICE (OTHER THAN ACTIVE SERVICE FOR TRAINING) AFTER BECOMING ENTITLED TO RETIRED PAY. THE GRADE IN WHICH HE IS ENTITLED TO BE RETIRED IS GOVERNED BY CHAPTER 369 OF TITLE 10, U.S.C.

UNDER THE PROVISIONS OF SECTION 3961 OF THAT CHAPTER A REGULAR OR RESERVE OF THE ARMY WHO RETIRES OTHER THAN FOR PHYSICAL DISABILITY RETIRES IN THE REGULAR OR RESERVE GRADE THAT HE HOLDS AT THE TIME OF HIS RETIREMENT UNLESS HE IS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW. THAT SECTION IS FOR CONSIDERATION IN DETERMINING THE GRADE TO WHICH AN OFFICER IS ENTITLED UNDER THE PROVISIONS OF SUBSECTION (A) OF 10 U.S.C. 1402, BUT SINCE COLONEL OUTSEN COULD NOT HAVE HELD A COMMISSION IN A RESERVE COMPONENT PRIOR TO HIS RETIREMENT, ACTIVE DUTY IN THE RESERVE STATUS SUBSEQUENT TO RETIREMENT AS A REGULAR OFFICER IS NOT CONSIDERED TO AFFECT HIS RETIRED GRADE AS A REGULAR OFFICER. SECTION 3963 OF CHAPTER 369 AUTHORIZES A REGULAR COMMISSIONED OFFICER TO BE RETIRED IN A GRADE EQUAL TO THE HIGHEST TEMPORARY GRADE IN THE ARMY IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, FOR NOT LESS THAN SIX MONTHS. HOWEVER, SINCE APPOINTMENTS OF RESERVES IN COMMISSIONED GRADES ARE FOR AN INDEFINITE TERM AND ARE HELD DURING THE PLEASURE OF THE PRESIDENT (10 U.S.C. 593), COLONEL OUTSEN'S RESERVE GRADE OF BRIGADIER GENERAL IS NOT A "TEMPORARY GRADE" WITHIN THE MEANING OF SECTION 3963. HENCE, IT IS OUR VIEW THAT COLONEL OUTSEN WOULD NOT BE ENTITLED UNDER 10 U.S.C. 1402/A) TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THE PAY OF A BRIGADIER GENERAL BY VIRTUE OF ACTIVE DUTY AS AN OFFICER OF THE NATIONAL GUARD. HE WOULD BE ENTITLED UNDER SUBSECTION 1402 (A), HOWEVER, TO INCREASE THE PERCENTAGE MULTIPLE USED IN COMPUTING HIS RETIRED PAY BY ADDING TO HIS PRIOR SERVICE THE ACTIVE SERVICE PERFORMED AFTER RETIREMENT (OTHER THAN ACTIVE SERVICE FOR TRAINING) SUBJECT, OF COURSE, TO THE 75 PERCENT MAXIMUM LIMITATION.

AS INDICATED ABOVE, RESERVE APPOINTMENTS GENERALLY HAVE BEEN REGARDED AS "PERMANENT" RATHER THAN "TEMPORARY.' SEE TRACY V. UNITED STATES, 136 CT.CL. 211 (1956). HOWEVER, IN THE CASE OF GRAYSON V. UNITED STATES, 137 CT.CL. 779 (1957), INVOLVING AN OFFICER ON THE EMERGENCY OFFICERS RETIRED LIST ESTABLISHED PURSUANT TO THE ACT OF MAY 24, 1928, CH. 735, 45 STAT. 735, WHO SERVED ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS COLONEL IN THE ARMY OF THE UNITED STATES DURING WORLD WAR II, THE COURT OF CLAIMS HELD THAT UPON RELEASE FROM THAT ACTIVE DUTY HE WAS ENTITLED TO HAVE HIS RETIRED PAY RECOMPUTED ON THE BASIS OF THE HIGHER GRADE OF BRIGADIER GENERAL, WHICH GRADE HE HELD IN THE NATIONAL GUARD OF THE UNITED STATES BY REASON OF FEDERAL RECOGNITION IN THAT GRADE AS ADJUTANT GENERAL OF THE NATIONAL GUARD OF THE STATE OF MISSISSIPPI AND IN WHICH GRADE HE HAD SERVED ON ACTIVE DUTY FROM FEBRUARY 1941 TO JULY 25, 1942. IN THAT DECISION THE COURT CONCLUDED THAT THE GRADE HELD IN THE NATIONAL GUARD BY THAT PARTICULAR OFFICER WAS A TEMPORARY GRADE WITHIN THE MEANING OF SECTION 203/A) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085, 10 U.S.C. 1002 (1952 ED.) NOW 10 U.S.C. 3963 AND 8963. BECAUSE OF THE UNUSUAL FACTUAL SITUATION INVOLVED IN THE GRAYSON CASE OUR OFFICE HAS NOT DECIDED TO FOLLOW THAT DECISION AS A PRECEDENT. INSTEAD WE SUGGESTED THAT ANY CASE CONSIDERED TO BE SIMILAR SHOULD BE SUBMITTED TO THIS OFFICE FOR AN ADVANCE DECISION. 37 COMP. GEN. 538, 541.

IF COLONEL OUTSEN SHOULD BE RECALLED TO ACTIVE DUTY IN HIS RESERVE GRADE OF BRIGADIER GENERAL AND WHILE SO SERVING SHOULD INCUR A PHYSICAL DISABILITY OF 30 PERCENT OR MORE, HE WOULD BE ENTITLED, UNDER THE PROVISIONS OF 10 U.S.C. 1402/B) UPON RELEASE FROM ACTIVE DUTY, TO HAVE HIS RETIRED PAY COMPUTED UNDER 10 U.S.C. 1402 (D), WHICH PROVIDES FOR COMPUTATION OF RETIRED PAY AT 2 1/2 PERCENT OF THE HIGHEST MONTHLY BASIC PAY THAT HE RECEIVED WHILE ON ACTIVE DUTY AFTER RETIREMENT MULTIPLIED BY THE YEARS OF SERVICE CREDITED TO HIM UNDER 10 U.S.C. 1208 OR BY THE HIGHEST PERCENTAGE OF DISABILITY ATTAINED WHILE ON ACTIVE DUTY AFTER RETIREMENT, AS HE SHOULD ELECT, BUT NOT TO EXCEED 75 PERCENT OF THE PAY UPON WHICH THE COMPUTATION IS BASED. IN THE EVENT OF SUCH DISABILITY, HE COULD RECEIVE RETIRED PAY BASED ON THE HIGHER RESERVE GRADE IN WHICH HE WOULD HAVE BEEN SERVING AS WELL AS CREDIT FOR THE ACTIVE SERVICE PERFORMED AFTER RETIREMENT.

IN CONNECTION WITH THE POSSIBLE RECALL OF COLONEL OUTSEN TO ACTIVE DUTY, ATTENTION IS INVITED TO THE FOLLOWING PROVISIONS IN PARAGRAPH 22 OF AR 635 -130, DATED AUGUST 8, 1960:

"CHANGE IN STATUS AFTER RETIREMENT. IN THE ABSENCE OF ANY SHOWING OF FRAUD, THE RETIREMENT OF AN OFFICER UNDER A PARTICULAR STATUTE EXHAUSTS THE POWER OF THE PRESIDENT AND THE SECRETARY OF THE ARMY, AND THE RECORD OF EXECUTIVE ACTION CANNOT BE REVOKED OR MODIFIED TO MAKE RETIREMENT RELATE TO ANOTHER STATUTE, EVEN THOUGH THE CASE WERE ONE TO WHICH MORE THAN ONE STATUTE PROPERLY APPLIED AT THE TIME RETIREMENT WAS ACCOMPLISHED. THERE IS NO AUTHORITY FOR THE RESTORATION OF A RETIRED OFFICER TO THE ACTIVE LIST FOR THE PURPOSE OF BEING AGAIN RETIRED.'

INSOFAR AS RETIREMENT UNDER 10 U.S.C. 3911 AS A RESERVE BRIGADIER GENERAL WITH OVER 20 YEARS OF ACTIVE SERVICE IS CONCERNED, COLONEL OUTSEN COULD NOT HAVE BEEN SO RETIRED IN AUGUST 1961 BECAUSE HE WAS NOT THEN A BRIGADIER GENERAL. SUCH A RETIREMENT AT THIS TIME WOULD BE INCOMPATIBLE WITH HIS PRESENT STATUS AS A RETIRED OFFICER OF THE REGULAR ARMY. IT WILL BE NOTED, HOWEVER, THAT SECTION 3911 IS NOT LIMITED IN ITS APPLICATION TO MEMBERS WHO ARE NOT QUALIFIED FOR RETIREMENT UNDER ANY OTHER PROVISION OF LAW, AS IS THE CASE WITH RETIREMENT UNDER 10 U.S.C. 1331. SEE MERRILL V. UNITED STATES, CT.CL. NO. 95-63, DECIDED NOVEMBER 13, 1964. COMPARE THE CASE OF GRAHL V. UNITED STATES, CT.CL. NO. 163-62, DECIDED JULY 17, 1964, INVOLVING A RESERVE OFFICER DRAWING RETIRED PAY UNDER 10 U.S.C. 1331 WHO RESIGNED HIS RESERVE COMMISSION IN ORDER TO BE CALLED TO ACTIVE DUTY IN A TEMPORARY GRADE LOWER THAN HIS RESERVE GRADE AND WHO SUBSEQUENTLY WAS RE- RETIRED IN HIS FORMER RESERVE GRADE UNDER SECTION 3911.

IN 37 COMP. GEN. 789 WE HELD THAT A PERSON FIRST RETIRED AS AN ENLISTED MEMBER OF THE AIR FORCE UNDER 10 U.S.C. 8914 AFTER 20 YEARS OF ACTIVE SERVICE WHO LATER SERVED ON ACTIVE DUTY AS AN AIR FORCE RESERVE OFFICER AND QUALIFIED FOR AND WAS GRANTED RETIREMENT UNDER 10 U.S.C. 8911 AS AN OFFICER, WAS ENTITLED, AFTER HE WAS DISCHARGED FROM HIS STATUS AS AN ENLISTED MEMBER OF THE AIR FORCE AND FROM HIS RETIRED STATUS AS SUCH MEMBER, TO BE RETIRED AS AN OFFICER AND TO COMPUTE HIS RETIRED PAY ON THE BASIS OF HIS OFFICER GRADE. OUR DECISION OF JANUARY 8, 1959, 38 COMP. GEN. 485, ALSO INVOLVED A RETIRED ENLISTED MEMBER OF THE REGULAR AIR FORCE WHO UPON QUALIFICATION FOR RETIREMENT AS A RESERVE OFFICER WAS DISCHARGED FROM HIS RETIRED STATUS AND STATUS AS AN ENLISTED MEMBER AND WAS THEN RETIRED AS A RESERVE OFFICER. IF COLONEL OUTSEN SHOULD SERVE ON ACTIVE DUTY AS A BRIGADIER GENERAL IN HIS NATIONAL GUARD STATUS AND BECOME ELIGIBLE FOR RETIREMENT AS A RESERVE OFFICER AND IF HIS COMMISSION IN THE REGULAR ARMY IS TERMINATED, HE MIGHT THEN APPLY FOR RETIREMENT UNDER 10 U.S.C. 3911 AS A BRIGADIER GENERAL.

EXCEPT AS INDICATED ABOVE, WE KNOW OF NO PROVISION OF LAW UNDER WHICH COLONEL OUTSEN WOULD BE ENTITLED TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THE PAY OF A BRIGADIER GENERAL UPON RELEASE FROM ACTIVE DUTY IF HE SHOULD BE RECALLED TO ACTIVE DUTY TO SERVE IN THAT GRADE.