B-157769, DEC. 16, 1965

B-157769: Dec 16, 1965

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C. GORDON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9. YOU REPORT THAT CAPTAIN CALIENDO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE NOVEMBER 1. ON THE SAME DAY HE WAS RECALLED TO ACTIVE DUTY FOR AN INDEFINITE PERIOD. THE ORDERS RECALLING HIM TO ACTIVE DUTY WERE AMENDED TO EXTEND HIS ACTIVE DUTY FOR AN INDEFINITE PERIOD. THE QUESTION HAS BEEN RAISED WHETHER THERE IS SUFFICIENT AUTHORITY TO PERMIT HIM TO RECEIVE PAY AND ALLOWANCES SUBSEQUENT TO THAT DATE. ACTIVE DUTY PAY AND ALLOWANCES WERE SUSPENDED AFTER JULY 1. THE FOREGOING STATUTORY PROVISIONS WERE ENACTED INTO LAW BY SECTION 1 (10) (C). THE SUBSTITUTION APPARENTLY WAS MADE IN CONNECTION WITH A SIMILAR SUBSTITUTION MADE IN THE PRECEDING SECTION.

B-157769, DEC. 16, 1965

TO MISS C. C. GORDON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1965, IN WHICH YOU REQUEST A DETERMINATION IN THE CASE OF CAPTAIN ANTHONY J. CALIENDO (39274), U.S. COAST GUARD RESERVE, RETIRED, AS TO HIS ENTITLEMENT TO PAY AND ALLOWANCES WHILE SERVING ON ACTIVE DUTY AFTER HE ATTAINED THE AGE OF 62.

YOU REPORT THAT CAPTAIN CALIENDO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE NOVEMBER 1, 1963, IN THE GRADE OF CAPTAIN, U.S. COAST GUARD RESERVE, PURSUANT TO CHAPTER 61, TITLE 10, U.S.C. ON THE SAME DAY HE WAS RECALLED TO ACTIVE DUTY FOR AN INDEFINITE PERIOD, BUT NOT TO EXTEND BEYOND THE FIRST DAY OF THE MONTH FOLLOWING THE DATE HE WOULD ATTAIN AGE 62, THE ORDERS CITING 14 U.S.C. 332 AS AUTHORITY FOR SUCH ACTION. HE ATTAINED THE AGE OF 62 ON JUNE 18, 1965. ON MARCH 19, 1965, THE ORDERS RECALLING HIM TO ACTIVE DUTY WERE AMENDED TO EXTEND HIS ACTIVE DUTY FOR AN INDEFINITE PERIOD, BUT NOT TO EXTEND BEYOND JUNE 30, 1966. SINCE HE HAS BEEN RETAINED ON ACTIVE DUTY SUBSEQUENT TO HIS SIXTY-SECOND BIRTHDAY, THE QUESTION HAS BEEN RAISED WHETHER THERE IS SUFFICIENT AUTHORITY TO PERMIT HIM TO RECEIVE PAY AND ALLOWANCES SUBSEQUENT TO THAT DATE. ACTIVE DUTY PAY AND ALLOWANCES WERE SUSPENDED AFTER JULY 1, 1965.

SECTION 332 (A), 14 U.S. CODE, PROVIDES AS FOLLOWS:

"/A) ANY REGULAR OFFICER ON THE RETIRED LIST MAY, WITH HIS CONSENT, BE ASSIGNED TO SUCH DUTIES AS HE MAY BE ABLE TO PERFORM BUT NO OFFICER ON THE RETIRED LIST WHO HAS REACHED THE AGE OF SIXTY-TWO YEARS SHALL BE RECALLED IN TIME OF PEACE.'

THE FOREGOING STATUTORY PROVISIONS WERE ENACTED INTO LAW BY SECTION 1 (10) (C), PUB.L. 88-130, SEPTEMBER 24, 1963, 77 STAT. 189 AND SUPERSEDED THE SIMILAR PROVISIONS CONTAINED IN 14 U.S.C. 241 (1958 ED.). THE WORDS "REGULAR OFFICER" AND "OFFICER" REPLACED THE WORDS "COMMISSIONED OFFICER" USED IN TWO PLACES IN SECTION 241 AS ORIGINALLY ENACTED BY THE ACT OF AUGUST 4, 1949, CH. 393, 63 STAT. 517. SUCH PROVISIONS OF LAW ESTABLISHED A DEFINITE LEGISLATIVE POLICY OF BARRING THE RECALL TO ACTIVE DUTY IN TIME OF PEACE OF ANY COMMISSIONED OFFICER WHO HAS REACHED THE AGE OF 62. FIND NOTHING IN THE 1963 ACT OR IN ITS LEGISLATIVE HISTORY WHICH SUGGESTS THAT BY SUBSTITUTING THE WORD "REGULAR" FOR THE WORD "COMMISSIONED" IN THE FIRST CLAUSE OF SECTION 332 (A) (RELATING TO ASSIGNMENT TO DUTIES), THE CONGRESS INTENDED TO CHANGE THAT POLICY IN ANY WAY. THE SUBSTITUTION APPARENTLY WAS MADE IN CONNECTION WITH A SIMILAR SUBSTITUTION MADE IN THE PRECEDING SECTION. IT SEEMS UNLIKELY THAT THE CONGRESS COULD HAVE INTENDED TO PERMIT OVERAGE RETIRED RESERVE OFFICERS TO BE RECALLED TO ACTIVE DUTY WHILE AT THE SAME TIME BARRING THE RECALL OF RETIRED REGULAR OFFICERS OVER THE AGE OF 62 IN TIME OF PEACE.

WITH RESPECT TO THE PROVISIONS OF 10 U.S.C. 672 (D), RELATING GENERALLY TO THE AUTHORITY OF THE SECRETARY CONCERNED TO ORDER A MEMBER OF A RESERVE COMPONENT TO ACTIVE DUTY AT ANY TIME WITH HIS CONSENT, YOUR ATTENTION IS INVITED TO THE FACT THAT NO LANGUAGE IS CONTAINED THEREIN WHICH RELATES SPECIFICALLY TO THE RECALL TO ACTIVE DUTY OF RETIRED RESERVE OFFICERS. IS OUR VIEW THAT SUCH GENERAL PROVISIONS COULD NOT HAVE BEEN INTENDED AS NEGATIVING A POLICY CLEARLY ESTABLISHED BY THE MORE DEFINITE PROVISIONS CONTAINED IN TITLE 14, U.S.C. WITH RESPECT TO THE RECALL TO ACTIVE DUTY OF RETIRED OFFICERS OF THE COAST GUARD, WHICH WERE ENACTED BOTH BEFORE AND AFTER THE ENACTMENT OF 10 U.S.C. 672 AND THE PROVISIONS OF SECTIONS 233 AND 234 OF THE ACT OF JULY 9, 1952, CH. 602, 66 STAT. 489, 490, ON WHICH SECTION 672 IS BASED.

UNDER DATE OF SEPTEMBER 23, 1965, THE CHIEF, OFFICE OF PERSONNEL, U.S. COAST GUARD, ADVISED THIS OFFICE THAT THE AMENDATORY ORDERS OF MARCH 19, 1965, CONSTITUTED AN APPROVAL BY THE SECRETARY OF THE TREASURY TO RETAIN CAPTAIN CALIENDO ON ACTIVE DUTY BEYOND THE AGE OF 60 UNDER AUTHORITY OF 10 U.S.C. 676. HOWEVER, SECTION 676 IS APPLICABLE ONLY TO PERSONS WHO HAVE QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10. 10 U.S.C. 1331 (A) (4) PROVIDES THAT A PERSON IS ENTITLED TO RETIRED PAY UNDER CHAPTER 67 OF THAT TITLE ONLY IF HE IS NOT ENTITLED TO RETIRED PAY UNDER ANY OTHER PROVISION OF LAW AND SINCE CAPTAIN CALIENDO IS ENTITLED TO RETIRED PAY UNDER CHAPTER 61, HE COULD NOT QUALIFY FOR RETIRED PAY UNDER CHAPTER 67. HENCE THE ADMINISTRATIVE ACTION TAKEN UNDER SECTION 676 WAS WITHOUT SIGNIFICANCE IN THIS CASE.

IT WOULD SEEM THAT THERE IS NECESSARILY INCLUDED IN THE POLICY BARRING THE RECALL OF RETIRED OFFICERS WHO HAVE REACHED THE AGE OF 62, THE REQUIREMENT THAT ALL RETIRED OFFICERS RECALLED TO ACTIVE DUTY AT AN EARLIER TIME BE RELEASED TO INACTIVE DUTY UPON REACHING THAT AGE. CAPTAIN CALIENDO SHOULD HAVE BEEN RELEASED FROM ACTIVE DUTY ON JUNE 18, 1965, AND NO RIGHT TO PAY AND ALLOWANCES ACCRUED TO HIM AFTER THAT DATE. YOUR QUESTION IS ANSWERED ACCORDINGLY.