B-171273, DEC 22, 1970, 50 COMP GEN 428

B-171273: Dec 22, 1970

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PAY - RETIRED - RETENTION AFTER AGE AND SERVICE QUALIFICATIONS - SERVICE CREDITS - BASIS FOR RETENTION THE RETENTION BEYOND AGE 60 OF AN AIR FORCE SERGEANT UNDER PARAGRAPH 14O(2) OF THE AIR NATIONAL GUARD REGULATION 39-10 TO PERMIT HIM TO COMPLETE 26 YEARS OF MILITARY SERVICE FOR PAY PURPOSES IN RECOGNITION OF "LONG AND DISTINGUISHED MILITARY SERVICE" WOULD NOT SATISFY THE REQUIREMENT OF 10 U.S.C. 676 THAT THE SECRETARY CONCERNED ORDER A RETENTION IN SERVICE FOR THE PURPOSE OF ACQUIRING ADDITIONAL SERVICE CREDITS ONLY IF THE SERVICES ARE A MILITARY REQUIREMENT. IS NOT ELIGIBLE FOR RETIRED PAY COMPUTED AT THE PAY RATE OF OVER 26 YEARS OF MILITARY SERVICE. 1970: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 13.

B-171273, DEC 22, 1970, 50 COMP GEN 428

PAY - RETIRED - RETENTION AFTER AGE AND SERVICE QUALIFICATIONS - SERVICE CREDITS - BASIS FOR RETENTION THE RETENTION BEYOND AGE 60 OF AN AIR FORCE SERGEANT UNDER PARAGRAPH 14O(2) OF THE AIR NATIONAL GUARD REGULATION 39-10 TO PERMIT HIM TO COMPLETE 26 YEARS OF MILITARY SERVICE FOR PAY PURPOSES IN RECOGNITION OF "LONG AND DISTINGUISHED MILITARY SERVICE" WOULD NOT SATISFY THE REQUIREMENT OF 10 U.S.C. 676 THAT THE SECRETARY CONCERNED ORDER A RETENTION IN SERVICE FOR THE PURPOSE OF ACQUIRING ADDITIONAL SERVICE CREDITS ONLY IF THE SERVICES ARE A MILITARY REQUIREMENT; AND THE SERGEANT RETIRED UNDER 10 U.S.C. 1331 AND 1401, AND AUTHORIZED RETIRED PAY ON THE BASIS OF "WITH OVER 22 BUT LESS THAN 26 YEARS" OF NON REGULATOR SERVICE, THEREFORE, IS NOT ELIGIBLE FOR RETIRED PAY COMPUTED AT THE PAY RATE OF OVER 26 YEARS OF MILITARY SERVICE.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, DECEMBER 22, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 13, 1970, WHICH WAS FORWARDED HERE BY LETTER DATED NOVEMBER 9, 1970, FROM HEADQUARTERS, UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $115.37 IN FAVOR OF MASTER SERGEANT VICTOR CABALLERO, XXX-XX-XXXX, USAF, RETIRED, REPRESENTING ADDITIONAL RETIRED PAY FOR THE PERIOD FROM MARCH 1, 1970, TO AUGUST 31, 1970. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1102 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON DECEMBER 10, 1969, THE COMMANDER, 149TH TACTICAL FIGHTER GROUP, AIR NATIONAL GUARD, KELLY AIR FORCE BASE, TEXAS, REQUESTED THAT A 30 DAY WAIVER BE GRANTED TO SERGEANT CABALLERO, UNDER THE PROVISIONS OF PARAGRAPH 14O(2) OF AIR NATIONAL GUARD REGULATION 39-10, ALLOWING HIM TO BE RETAINED BEYOND AGE 60 TO PERMIT HIM TO COMPLETE 26 YEARS OF MILITARY SERVICE FOR PAY PURPOSES. HE STATED THAT SERGEANT CABALLERO WOULD BE 60 YEARS OF AGE ON JANUARY 23, 1970, AND THAT SINCE THE LATTER WOULD COMPLETE 26 YEARS OF MILITARY SERVICE ON FEBRUARY 11, 1970, HE SHOULD BE DISCHARGED ON THAT DATE. THE REQUEST FOR WAIVER WAS MADE FOR THE REASON THAT IT WAS FELT "SPECIAL CONSIDERATION SHOULD BE GIVEN IN THIS CASE." BY FIRST ENDORSEMENT DATED DECEMBER 22, 1969, THE ADJUTANT GENERAL OF TEXAS RECOMMENDED FAVORABLE CONSIDERATION OF THE REQUEST FOR WAIVER "IN VIEW OF THIS INDIVIDUAL'S LONG AND DISTINGUISHED MILITARY SERVICE AS A GUARDSMAN/AIR TECHNICIAN."

ON JANUARY 15, 1970, SERGEANT CABELLERO MADE APPLICATION FOR RETIRED PAY FOR NON-REGULAR SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 1331, EFFECTIVE MARCH 1, 1970. YOU SAY THAT HE WAS RETAINED PAST AGE 60. IT IS NOT SHOWN THAT SUCH RETENTION WAS BY ORDER OF THE SECRETARY OF THE AIR FORCE, THE CHIEF, NATIONAL GUARD BUREAU, OR ANY OTHER OFFICER HAVING AUTHORITY TO ORDER SUCH A RETENTION PURSUANT TO 10 U.S.C. 676.

RETIREMENT PAY ORDER, RESERVE ORDER EL-426, DATED JULY 9, 1970, ISSUED BY HEADQUARTERS, AIR RESERVE PERSONNEL CENTER, DENVER, COLORADO, PROVIDED THAT EFFECTIVE FEBRUARY 28, 1970, SERGEANT CABALLERO WAS PLACED ON THE UNITED STATES AIR FORCE RETIRED LIST AND AUTHORIZED RETIRED PAY UNDER 10 U.S.C. 1331 AND 1401, EFFECTIVE MARCH 1, 1970, IN THE GRADE OF MASTER SERGEANT. HE WAS CREDITED WITH 25 YEARS 11 MONTH 10 DAYS OF SERVICE FOR BASIC PAY AND 10.11 YEARS OF SERVICE UNDER 10 U.S.C. 1333 FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY.

SERGEANT CABALLERO HAS APPARENTLY BEEN PAID RETIRED PAY COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF THE GRADE OF MASTER SERGEANT WITH OVER 22 BUT LESS THAN 26 YEARS OF SERVICE. THE VOUCHER FORWARDED WITH YOUR LETTER REPRESENTING RETIRED PAY "WITHHELD PENDING LONGEVITY DETERMINATION" APPARENTLY IS FOR THE DIFFERENCE BETWEEN RETIRED PAY RECEIVED AND THAT WHICH WOULD BE DUE IF HIS RETIRED PAY MAY BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF A MASTER SERGEANT WITH OVER 26 YEARS OF SERVICE. YOU EXPRESS DOUBT AS TO WHETHER RETENTION IN THIS CASE WAS IN ACCORDANCE WITH THE ABOVE-CITED REGULATIONS AND WHETHER SERGEANT CABALLERO IS ELIGIBLE FOR RETIRED PAY COMPUTED AT THE PAY RATE OF OVER 26 YEARS OF MILITARY SERVICE "ON THE BASIS OF THE WAIVER GRANTED BY THE NATIONAL GUARD BUREAU."

CHAPTER 67, TITLE 10, U.S. CODE, AUTHORIZES PAYMENT OF RETIRED PAY FOR NON-REGULAR SERVICE, UPON APPLICATION, TO A PERSON WHO IS AT LEAST 60 YEARS OF AGE AND HAS PERFORMED AT LEAST 20 YEARS OF QUALIFYING SERVICE AS SPECIFIED IN THAT CHAPTER. SECTION 676, TITLE 10, U.S. CODE, PROVIDES:

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.

PARAGRAPH 14, AIR NATIONAL GUARD REGULATIONS 39-10, PROVIDES IN PERTINENT PART AS FOLLOWS:

14. CONVENIENCE OF THE GOVERNMENT. ALL DISCHARGE CRITERIA OUTLINED BELOW ARE CONSIDERED TO BE WITHIN THE TERM "CONVENIENCE OF THE GOVERNMENT." HOWEVER, THE TERM "CONVENIENCE OF THE GOVERNMENT," WHEN CITED IN ADMINISTRATIVE ACTIONS AS REASONS FOR DISCHARGE, MUST BE FOLLOWED BY THE SPECIFIC REASON FOR DISCHARGE, AS DETERMINED BY THE APPROPRIATE SUBPARAGRAPH, BELOW:

"O. ATTAINMENT OF AGE 60, EXCEPT FOR THE FOLLOWING CIRCUMSTANCES:

(2) AN AIRMAN WHO HAS RECEIVED APPROVAL FROM THE CHIEF, NATIONAL GUARD BUREAU, FOR RETENTION BEFORE HIS 60TH BIRTHDAY WHEN HE WILL BECOME ELIGIBLE FOR RETIRED PAY, MAY BE RETAINED UNTIL HIS 62D BIRTHDAY, PROVIDED THAT HE IS OTHERWISE QUALIFIED. REQUEST FOR WAIVER WILL BE BASED UPON MILITARY REQUIREMENTS AND WILL BE SUBMITTED THROUGH ANG CHANNELS TO THE NATIONAL GUARD BUREAU (NG-AFPMA) AT LEAST 90 DAYS BEFORE AIRMAN'S 60TH BIRTHDAY.

IN OUR DECISION 38 COMP. GEN. 146 (1958) IN ANSWER TO QUESTION 5(C) AS TO WHAT WOULD BE THE REQUISITES OF AN ORDER OF THE SECRETARY CONCERNED WHICH WOULD ACCOMPLISH A VALID RETENTION UNDER 10 U.S.C. 676, WE SAID "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." OUR 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 OUR DECISION 38 COMP. GEN. 647 (1959) WE STATED THAT UNLESS IT REASONABLY MAY BE CONCLUDED IN ANY CASE THAT THE MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION, OR REGULATION ISSUED BY THE SECRETARY, SERVICE PERFORMED BY THE MEMBER AFTER BECOMING QUALIFIED FOR RETIREMENT PAY IS NOT WITHIN THE SCOPE OF 10 U.S.C. 676. WE HAVE LONG HELD THE VIEW THAT THE STATUTE WAS INTENDED TO HAVE A LIMITED APPLICATION TO PERMIT ADDITIONAL SERVICE IN THOSE CASES IN WHICH, BECAUSE OF SOME SPECIAL QUALIFICATION, ABILITY, OR SITUATION, THE SECRETARY CONCERNED ORDERS THE MEMBER'S RETENTION. SEE 41 COMP. GEN. 375 (1961). IN LINE WITH THAT VIEW, THE ABOVE-QUOTED REGULATIONS CONTEMPLATE A RETENTION UNDER SECTION 676 ONLY IN SITUATIONS WHERE "MILITARY REQUIREMENTS" SUGGEST THE ADVISABILITY OF SUCH ACTION. WE HAVE FOUND NOTHING WHICH WOULD INDICATE THAT THE CONGRESS INTENDED SUCH RETENTION AFTER AGE 60 MIGHT BE ORDERED MERELY BECAUSE THE MEMBER REQUESTED AN EXTENSION OR FOR THE SPECIFIC PURPOSE OF INCREASING A MEMBER'S RETIRED PAY AS A REWARD FOR "LONG AND DISTINGUISHED MILITARY SERVICE."

PARAGRAPH 22 OF AIR NATIONAL GUARD REGULATION 35-01 PROVIDES THAT PLACEMENT OF MEMBERS OF THE AIR NATIONAL GUARD ON THE UNITED STATES AIR FORCE RETIRED LIST WILL BE IN ACCORDANCE WITH AIR FORCE MANUAL 35-7. PARAGRAPH 9-7 OF THE LATTER REGULATIONS PROVIDES THAT:

AUTHORITY TO APPROVE APPLICATIONS FOR RETIRED PAY BENEFITS UNDER THIS CHAPTER IS VESTED IN THE SECRETARY OF THE AIR FORCE. ARPC HAS BEEN DELEGATED APPROVAL AUTHORITY FOR MEMBERS NOT ON EXTENDED ACTIVE DUTY AND FOR INDIVIDUALS WHO DO NOT HAVE MILITARY STATUS. WHEN APPLICATION IS PREPARED AND FORWARDED AS SHOWN IN TABLE 9-3, AFPMARB OR ARPC WILL NOTIFY THE APPLICANT IF HE DOES NOT MEET THE ELIGIBILITY REQUIREMENTS IN THIS CHAPTER, OR PUBLISH ORDERS PLACING HIM ON THE USAF RETIRED LIST AND CERTIFY HIM TO AFAFC FOR RETIRED PAY.

THE RIGHT TO NON-REGULAR RETIRED PAY DOES NOT ACCRUE UNTIL APPLICATION FOR SUCH PAY IS MADE BY THE MEMBER AND THE RIGHT TO SUCH PAY ACCRUES, SUBJECT TO THE PROVISIONS OF 5 U.S.C. 8301, FROM THE DATE OF QUALIFICATION UNLESS THE APPLICATION SPECIFIES A LATER DATE. SEE 38 COMP. GEN. 146 (1958), ANSWER TO QUESTION 4. HOWEVER, MILITARY SERVICE SUBSEQUENT TO DATE OF QUALIFICATION MAY NOT BE CREDITED IN THE COMPUTATION OF THE MEMBER'S RETIRED PAY UNLESS HE WAS VALIDLY RETAINED UNDER THE PROVISIONS OF 10 U.S.C. 676. WHILE THE RETIREMENT ORDER OF JULY 9, 1970, DIRECTED THAT SERGEANT CABALLERO'S NAME BE PLACED ON THE RETIRED LIST EFFECTIVE MARCH 1, 1970, IN ACCORDANCE WITH HIS REQUEST, THERE IS NO INDICATION THAT HE WAS RETAINED "IN SERVICE IN A RESERVE COMPONENT" PURSUANT TO 10 U.S.C. 676, NOR IS IT SHOWN THAT THE AIR RESERVE PERSONNEL CENTER HAS AUTHORITY TO ORDER SUCH RETENTION. IT IS NOT SHOWN THAT A WAIVER WAS GRANTED TO HIM BY THE NATIONAL GUARD BUREAU "BASED UPON MILITARY REQUIREMENTS." PARAGRAPH 14O(2), ANGR 39-10, ALONE IS NOT AN "ORDER OF THE SECRETARY CONCERNED" SUCH AS WOULD SATISFY THE REQUIREMENTS OF 10 U.S.C. 676 IN AN INDIVIDUAL CASE.

ACCORDINGLY, IN THE ABSENCE OF EVIDENCE THAT SERGEANT CABALLERO RECEIVED APPROVAL FROM THE CHIEF, NATIONAL GUARD BUREAU FOR RETENTION BEYOND HIS 60TH BIRTHDAY PURSUANT TO 10 U.S.C. 676 IN ACCORDANCE WITH THE REGULATIONS, THERE IS NO AUTHORITY FOR COUNTING SERVICE AFTER JANUARY 22, 1970, FOR BASIC PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY. THERE BEING NO PRESENT AUTHORITY FOR PAYMENT ON THE VOUCHER, IT WILL BE RETAINED HERE.