B-157326, AUG. 16, 1965, 45 COMP. GEN. 78

B-157326, AUG. 16, 1965, 45 COMP. GEN. 78

PAY - RETIRED - RE-RETIREMENT - RETIRED ORIGINALLY WITHOUT PAY A NAVAL OR MARINE CORPS RESERVE OFFICER WHO HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE NEXT HIGHER GRADE IS TRANSFERRED AT HIS REQUEST TO THE APPROPRIATE RETIRED RESERVE WITHOUT PAY PURSUANT TO 10 U.S.C. 6389 (C), AND THEN WITH HIS CONSENT IS ORDERED TO ACTIVE DUTY UNDER 10 U.S.C. 672 (D), COMPLETING MORE THAN 20 YEARS' ACTIVE SERVICE, INCLUDING 10 YEARS' ACTIVE COMMISSIONED SERVICE, WHO IS RELEASED FROM ACTIVE DUTY BEFORE ATTAINING AGE 60 AND ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 1331, QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 6323, THE LANGUAGE OF SUBSECTION (F) OVERCOMING THE INHERENT LIMITATION TO COVERAGE OF MEMBERS PLACED IN RETIRED STATUS WITHOUT PAY, AND AS MEMBERS TRANSFERRED FROM THE HONORARY LIST OF THE NAVAL RESERVE TO THE RETIRED RESERVE UNDER SECTION 213 (B) OF THE ARMED FORCES RESERVE ACT OF 1952, ONE OF THE TWO GROUPS EXPRESSLY MENTIONED IN THE SUBSECTION, INCLUDED MEMBERS WHO WERE RECEIVING NO RETIRED PAY, AN OFFICER PLACED ON THE RETIRED RESERVE LIST WITHOUT RETIRED PAY UPON HIS OWN APPLICATION MAY QUALIFY FOR RETIREMENT UNDER SECTION 6323 UPON COMPLETION OF THE SERVICE PRESCRIBED.

TO THE SECRETARY OF DEFENSE, AUGUST 16, 1965:

REFERENCE IS MADE TO LETTER DATED JULY 23, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) TRANSMITTING COMMITTEE ACTION NO. 364 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE INVOLVING A REQUEST FOR DECISION ON THE FOLLOWING QUESTION:

SUBSEQUENT TO RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 6389 (C) (MAJOR OR LIEUTENANT COMMANDER), MAY AN OFFICER OF THE NAVAL OR MARINE CORPS RESERVE QUALIFY FOR RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 6323?

NO SPECIFIC CASE IS MENTIONED, BUT THE COMMITTEE DISCUSSION ASSUMES THE MEMBER SO RETIRED HAS LESS THAN 18 YEARS OF ACTIVE SERVICE AND THAT HE HAS NOT AT THE TIME OF RETIREMENT ATTAINED AGE 60 SO AS TO BE ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331. IT IS STATED THAT THE QUESTION CONTEMPLATES THE CASE OF AN OFFICER WHO, HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE NEXT HIGHER GRADE, IS TRANSFERRED TO THE APPROPRIATE RETIRED RESERVE, BEING QUALIFIED FOR SUCH TRANSFER AND HAVING REQUESTED IT. THEREAFTER, THE OFFICER, WITH HIS CONSENT, IS ORDERED TO ACTIVE DUTY PURSUANT TO AUTHORITY CONTAINED IN 10 U.S.C. 672 (D); ACQUIRES NECESSARY ACTIVE SERVICE, INCLUDING 10 YEARS' ACTIVE COMMISSIONED SERVICE; AND IS RELEASED FROM ACTIVE DUTY BEFORE ATTAINING AGE 60. WE ASSUME THAT THE MEMBER WAS NOT ENTITLED, UNDER ANY PROVISION OF LAW, TO RETIRED PAY AT THE TIME OF HIS TRANSFER TO THE RETIRED RESERVE ALTHOUGH IT APPEARS THAT HE HAD PERFORMED THE NECESSARY QUALIFYING SERVICE FOR THE PURPOSES OF 10 U.S.C. 1331 (A) (2) AND (3).

IT IS PROVIDED IN 10 U.S.C. 6389 (C) THAT AN OFFICER IN AN ACTIVE STATUS IN THE NAVAL RESERVE IN THE PERMANENT GRADE OF LIEUTENANT COMMANDER OR ABOVE, AND AN OFFICER IN AN ACTIVE STATUS IN THE MARINE CORPS RESERVE IN THE PERMANENT GRADE OF MAJOR OR ABOVE, WHO IS CONSIDERED AS HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE NEXT HIGHER GRADE SHALL, IF QUALIFIED, BE GIVEN AN OPPORTUNITY TO REQUEST TRANSFER TO THE APPROPRIATE RETIRED RESERVE AND THAT IF HE IS NOT SO TRANSFERRED, HE SHALL BE DISCHARGED FROM THE NAVAL RESERVE OR THE MARINE CORPS RESERVE IF HE HAS COMPLETED A PERIOD OF TOTAL COMMISSIONED SERVICE EQUAL TO THAT THERE SPECIFIED FOR THE PERMANENT GRADE IN WHICH HE IS SERVING.

UNDER THE PROVISIONS OF 10 U.S.C. 6323 (A) AN OFFICER OF THE NAVY OR THE MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT. SUBSECTION 6323 (F) PROVIDES THAT:

OFFICERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE WHO WERE TRANSFERRED TO THE RETIRED RESERVE FROM AN HONORARY RETIRED LIST UNDER SECTION 213 (B) OF THE ARMED FORCES RESERVE ACT OF 1952 (66 STAT. 485), OR ARE TRANSFERRED TO THE RETIRED RESERVE UNDER SECTION 6327 OF THIS TITLE, MAY BE RETIRED UNDER THIS SECTION, NOTWITHSTANDING THEIR RETIRED STATUS, IF THEY ARE OTHERWISE ELIGIBLE.

SUCH STATUTORY PROVISIONS HAVE NO APPLICATION TO THE SUBJECT OFFICER AND THE POSSIBILITY IS SUGGESTED THAT THE ONLY MEMBERS OF THE RETIRED RESERVE WHO MAY QUALIFY FOR RETIREMENT UNDER SECTION 6323 ARE THOSE WHO HAVE BEEN TRANSFERRED THERETO UNDER THE CIRCUMSTANCES PRESCRIBED IN SUBSECTION (F). THE QUESTION INVOLVED APPEARS TO HAVE BEEN RAISED BECAUSE OF THE HOLDING IN OUR DECISION, B-63359, OF MAY 6, 1947, WHICH RESULTED IN THE PASSAGE OF THE ACT OF APRIL 14, 1949, CH. 52, 63 STAT. 47, THE SOURCE STATUTE OF 10 U.S.C. 6323 (F), CLARIFYING SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27. IN OUR DECISION OF MAY 6, 1947, IT WAS CONCLUDED THAT THERE IS AN INHERENT LIMITATION INSTATUTORY PROVISIONS SUCH AS SECTION 6 OF THE 1946 ACT--- FROM WHICH 10 U.S.C. 6323 (A) WAS DERIVED--- LIMITING ITS COVERAGE TO OFFICERS NOT PREVIOUSLY RETIRED UNDER SOME OTHER PROVISION OF LAW. HOWEVER, IT WOULD SEEM THAT THE LANGUAGE USED IN SECTION 6323 (F) CONSTITUTES A LEGISLATIVE EXPRESSION AGAINST SUCH INHERENT LIMITATION INSOFAR AS MEMBERS WHO ARE PLACED IN A RETIRED STATUS WITHOUT RETIRED PAY ARE CONCERNED, EVEN THOUGH THAT LANGUAGE EXPRESSLY COVERS ONLY THE TWO GROUPS OF OFFICERS THERE MENTIONED, IT APPEARING THAT MEMBERS TRANSFERRED FROM THE HONORARY LIST OF THE NAVAL RESERVE TO THE RETIRED RESERVE UNDER SECTION 213 (B) OF THE 1952 ARMED FORCES RESERVE ACT, 50 U.S.C. 933 (1952 ED.), INCLUDED MEMBERS WHO WERE RECEIVING NO RETIRED PAY.

ON PAGE 33, H.REPT. NO. 1066, ON H.R. 5422, 82D CONG., 1ST SESS.--- LATER ENACTED INTO LAW AS THE ARMED FORCES RESERVE ACT OF 1952, CH. 608, 66 STAT. 481--- IT IS STATED WITH RESPECT TO SECTION 207 (NOW 10 U.S.C. 274) THAT "THE RETIRED RESERVE ESTABLISHED BY THIS SECTION WOULD BE A COMPLETELY VOLUNTARY PART OF THE RESERVE COMPONENTS. * * * THE LISTS ESTABLISHED UNDER THIS SECTION WOULD BE ENTIRELY SEPARATE AND DISTINCT FROM THOSE UNDER OTHER LAWS, ALTHOUGH SOME PERSONS IN THE RETIRED RESERVE MAY ALSO BE ON ANOTHER RETIRED LIST.' IT IS OUR VIEW THAT IT WAS NOT INTENDED THAT PERSONS WHO ARE PLACED ON A RETIRED RESERVE LIST WITHOUT RETIRED PAY AS A RESULT OF THEIR OWN APPLICATIONS SHOULD BE BARRED FROM THE RETIRED PAY BENEFITS FOR WHICH THEY MIGHT QUALIFY AT A FUTURE TIME UNDER OTHER PROVISIONS OF LAW.

IT IS CLEAR THAT THE OFFICER HERE INVOLVED IS "AN OFFICER OF THE NAVY AND THE MARINE CORPS" AND WE SEE NO REASON WHY HE MAY NOT QUALIFY FOR RETIREMENT UNDER SECTION 6323 SINCE HE HAS PERFORMED THE NECESSARY SERVICE THERE PRESCRIBED. COMPARE GRAHL V. UNITED STATES, 167 CT.CL. 80, IN WHICH THE COURT CONCLUDED THAT THE PLAINTIFF QUALIFIED FOR RETIRED PAY BASED ON 20 YEARS OF ACTIVE SERVICE UNDER TITLE II OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1084, 10 U.S.C. 1001 (1952 ED.), BY SERVING ON ACTIVE DUTY A SUFFICIENT LENGTH OF TIME AFTER HE BECAME ENTITLED TO RETIRED PAY UNDER TITLE III, 10 U.S.C. 1036 (1952 ED.), OF THAT ACT.