B-205345.OM, JAN 20, 1982

B-205345.OM, JAN 20, 1982

SUBJECT: ACTIVE DUTY RECALL OF RETIRED REGULAR ENLISTED MEMBERS OF THE ARMY AND AIR FORCE - B-205345-O.M. DIGEST: 1. ENLISTED MEMBERS OF THE REGULAR ARMY AND REGULAR AIR FORCE RETIRED UNDER 10 U.S.C. 3914 AND 8914 (MORE THAN 20, BUT LESS THAN 30 YEARS' SERVICE), ARE IN THE RESERVES UNTIL THEY HAVE 30 YEARS OF COMBINED SERVICE. HOWEVER, THEY MAY BE RECALLED TO ACTIVE DUTY UNDER 10 U.S.C. 3504 AND 8504 BY THE PRESIDENT TO PERFORM DUTIES IN INTEREST OF NATIONAL DEFENSE, AS A RETIRED REGULAR. 2. ENLISTED MEMBERS OF THE REGULAR NAVY AND REGULAR MARINE CORPS WHO ARE PLACED IN THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 AFTER 20 YEARS OF SERVICE, MAY NOT BE RECALLED TO ACTIVE DUTY IN THE SAME MANNER AS RETIRED ENLISTED MEMBERS OF THE REGULAR ARMY AND REGULAR AIR FORCE UNDER 10 U.S.C. 3504 AND 8504. THEY MAY ONLY BE RECALLED TO ACTIVE DUTY UNDER 10 U.S.C. 6485, WHICH REQUIRES A PRESIDENTIAL OR CONGRESSIONAL DECLARATION OF NATIONAL EMERGENCY.

DIRECTOR, FEDERAL PERSONNEL AND COMPENSATION DIVISION:

THIS IS IN RESPONSE TO A REQUEST FROM YOUR DIVISION REGARDING THE AVAILABILITY FOR RECALL TO ACTIVE DUTY OF MEMBERS OF THE REGULAR ARMY AND AIR FORCE RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3914 AND 8914.

THE QUESTION ASKED IS WHETHER REGULAR ENLISTED MEMBERS OF THE ARMY AND AIR FORCE RETIRED UNDER 10 U.S.C. 3914 AND 8914, RETAIN A STATUS IN THE REGULAR COMPONENT OF THEIR RESPECTIVE SERVICES WHEN THEY BECOME MEMBERS OF THE ARMY AND AIR FORCE RESERVES UPON RETIREMENT SO AS TO PERMIT THEM TO BE RECALLED TO ACTIVE DUTY BY THE PRESIDENT UNDER 10 U.S.C. 3504 AND 8504. SECTIONS 3504 AND 8504 PERMIT THE PRESIDENT TO ORDER TO ACTIVE DUTY ANY RETIRED MEMBER OF THE REGULAR ARMY OR REGULAR AIR FORCE EVEN THOUGH A STATE OF WAR OR NATIONAL EMERGENCY HAS NOT BEEN DECLARED.

AT THE REQUEST OF MR. ARTHUR JAMES OF YOUR DIVISION ON NOVEMBER 10, 1981, WE HAVE EXPANDED THAT QUESTION TO INCLUDE THE POSSIBLE RECALL OF RETIRED ENLISTED MEMBERS OF THE REGULAR NAVY AND REGULAR MARINE CORPS IN SIMILAR CIRCUMSTANCES.

ARMY AND AIR FORCE

SECTIONS 3914 AND 8914 OF TITLE 10, U.S.C. AS AMENDED BY PARAGRAPHS 9(A)(1) AND 9(B)(1) OF PUBLIC LAW 96-343, APPROVED SEPTEMBER 8, 1980, 94 STAT. 1128, PROVIDE -

"*** AN ENLISTED MEMBER OF THE *** ARMY OR AIR FORCE WHO HAS AT LEAST 20, BUT LESS THAN 30, YEARS OF SERVICE *** MAY, UPON HIS REQUEST, BE RETIRED. A REGULAR ENLISTED MEMBER THEN BECOMES A MEMBER OF THE ARMY OR AIR FORCE RESERVE. ***"

UNDER THOSE PROVISIONS REGULAR ARMY AND AIR FORCE ENLISTED MEMBERS, WHO HAVE OVER 20, BUT LESS THAN 30 YEARS OF SERVICE, MAY BE RETIRED. RETIRED UNDER THOSE PROVISIONS, THEY THEN BECOME MEMBERS OF THE ARMY OR AIR FORCE RESERVE, AND THEY ARE REQUIRED TO PERFORM SUCH ACTIVE DUTY AS PRESCRIBED UNTIL THEIR ACTIVE SERVICE PLUS THEIR INACTIVE SERVICE IN THE RESERVE EQUALS 30 YEARS.

APPARENTLY IT IS THE SERVICES' VIEW THAT WHEN REGULAR ENLISTED MEMBERS IN THIS CATEGORY ARE RETIRED AND PLACED IN THE ARMY OR AIR FORCE RESERVE, THEY ARE CONSIDERED TO BE IN A DUAL STATUS. THAT IS, WHILE THEY ARE IN EITHER THE ARMY OR AIR FORCE RESERVE, THEY ALSO RETAIN THE STATUS OF RETIRED MEMBERS OF THE REGULAR ARMY OR REGULAR AIR FORCE FOR RECALL PURPOSES.

THE PROBLEM REGARDING CALLUP OF THESE INDIVIDUALS AS RESERVISTS APPARENTLY INVOLVES THE COMPLEXITY OF THE MECHANISM BUILT INTO THE LAW GOVERNING THE CALLUP OF ARMY AND AIR FORCE RESERVE FORCES NOT ON ACTIVE DUTY (10 U.S.C. 672). THIS MECHANISM HAS INHERENT DELAYS SINCE IT REQUIRES THAT A STATE OF WAR OR NATIONAL EMERGENCY BE DECLARED BY CONGRESS BEFORE THE SECRETARY OF THE SERVICE CONCERNED MAY ORDER THE RESERVES UNDER HIS JURISDICTION TO ACTIVE DUTY. ON THE OTHER HAND, IF RETIRED REGULAR ENLISTED MEMBERS OF THE ARMY AND AIR FORCE ARE CONSIDERED AS HAVING RETAINED THEIR STATUS AS REGULARS, 10 U.S.C. 3504 AND 8504, THE PRESIDENT MAY ORDER THEM TO ACTIVE DUTY EVEN IN THE ABSENCE OF A DECLARED NATIONAL EMERGENCY OR STATE OF WAR UNDER 10 U.S.C. 3504 AND 8504.

APPARENTLY, THE ARMY AND THE AIR FORCE HAVE BEEN OPERATING ON THE LATTER PREMISE AND HAVE BEGUN ISSUING STANDING ORDERS TO REGULAR ENLISTED MEMBERS RETIRED UNDER 10 U.S.C. 3914 AND 8914, AND WHO HAVE LESS THAN 30 YEARS' TOTAL SERVICE, TELLING THEM WHEN AND WHERE TO REPORT IF THEY ARE RECALLED TO ACTIVE DUTY.

SECTIONS 3504 AND 8504 OF TITLE 10, U.S.C. PROVIDE IN PART:

"(A) THE PRESIDENT MAY ORDER ANY RETIRED MEMBER OF THE REGULAR *** ARMY OR AIR FORCE TO ACTIVE DUTY. HE MAY ASSIGN A MEMBER ORDERED UNDER THIS SUBSECTION TO SUCH DUTIES AS HE CONSIDERS NECESSARY IN THE INTERESTS OF NATIONAL DEFENSE."

THE TERM "RETIRED MEMBER" IS NOT SPECIFICALLY DEFINED IN THAT SECTION; HOWEVER, UNDER THE PROVISIONS OF SECTIONS 3075 AND 8075 OF TITLE 10, U.S.C. THE COMPOSITION OF THE REGULAR ARMY AND AIR FORCE INCLUDES "RETIRED OFFICERS AND ENLISTED MEMBERS" OF THE REGULAR ARMY AND REGULAR AIR FORCE.

IN THE EARLY CASE OF TYLER V. UNITED STATES, 16 CT.CL. 223 (1880), AFFIRMED BY THE SUPREME COURT, UNITED STATES V. TYLER, 105 U.S. 244 (1881), IT WAS RECOGNIZED THAT RETIRED OFFICERS OF THE REGULAR ARMY ARE SUBJECT TO MILITARY JURISDICTION AND UNLESS THEY ARE DISMISSED FROM THE SERVICE BY MILITARY COURTS-MARTIAL, OR BY STATUTE TERMINATING THAT STATUS, THEY REMAIN A PART OF THE ARMY FOR ALL PURPOSES. SEE ALSO HOOPER V. UNITED STATES, 164 CT.CL. 151 (1964) AND CASES CITED. WHILE THE FOREGOING RELATES TO THE STATUS OF RETIRED REGULAR OFFICERS, IT IS TO BE NOTED THAT SINCE 1885 ENLISTED MEMBERS OF THE REGULAR ARMY HAVE BEEN AUTHORIZED TO RETIRE AFTER 30 YEARS OF SERVICE WITH PAY AND PLACEMENT ON THE RETIRED LIST OF THE REGULAR ARMY (23 STAT. 305). IN THIS REGARD THE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT OFFICERS AND ENLISTED MEMBERS OF THE REGULAR ARMED FORCES RETIRED FOR LENGTH OF SERVICE, RECEIVE RETIRED PAY BY VIRTUE OF THEIR CONTINUING STATUS IN THE MILITARY SERVICE AFTER RETIREMENT. 22 COMP.GEN. 664, 669-671 (1943); 23 ID. 284 (1943); 38 ID. 523 (1959) AND 53 ID. 753 (1974). ALSO, THE COMPTROLLER GENERAL HAS SPECIFICALLY RECOGNIZED THAT A RETIRED REGULAR ENLISTED MEMBER IS ONE OF THE CLASS WHO IS SUBJECT TO RECALL TO ACTIVE DUTY UNDER 10 U.S.C. 3504 OR 8504. 44 COMP.GEN. 51, 52 (1964). ALTHOUGH WE HAVE FOUND NO CASE SQUARELY ON POINT, THE SERVICES' VIEW OF THE APPLICABILITY OF 10 U.S.C. 3504 AND 8504 TO ENLISTED MEMBERS RETIRED UNDER 10 U.S.C. 3914 AND 8914 APPEARS CORRECT. WE WOULD LIKE TO ADD HOWEVER, THAT NOTWITHSTANDING OUR VIEWS CONCERNING THE AUTHORITY TO RECALL THESE INDIVIDUALS IN THEIR REGULAR STATUS, SINCE THE MATTER IS NOT ENTIRELY CLEAR, AN ATTEMPT AT RECALL COULD PRODUCE VOLUMINOUS AND PROTRACTED LITIGATION BY INDIVIDUALS OPPOSING THEIR RECALL. IF THE SERVICES HAVE NOT RECOGNIZED THE EXTENT OF THE POTENTIAL PROBLEM AND PROPOSED LEGISLATION TO CLARIFY THE STATUS OF THESE MEMBERS, PERHAPS IT WOULD BE WELL TO CONSIDER INCLUDING SUCH A RECOMMENDATION IN YOUR REPORT.

WE ALSO NOTE THAT MEMBERS, WITH 30 OR MORE YEARS OF SERVICE, RETIRED UNDER 10 U.S.C. 3917 AND 8917 ARE NOT PROVIDED A SANCTUARY FROM THE SAME RECALL. WHILE IT MAY BE THAT MANY REGULAR ENLISTED MEMBERS OF THE ARMY AND AIR FORCE RETIRED UNDER THOSE PROVISIONS ARE TOO OLD OR OTHERWISE INELIGIBLE FOR RECALL, IT APPEARS THAT ALL ABLE BODIED MEMBERS IN THAT RETIREMENT CATEGORY WOULD BE EQUALLY LIABLE TO RECALL UNDER SECTIONS 3504 AND 8504, "IN THE INTERESTS OF NATIONAL DEFENSE."

NAVY AND MARINE CORPS

WITH REGARD TO RETIRED REGULAR NAVY AND MARINE CORPS ENLISTED PERSONNEL, THE PROVISIONS OF LAW GOVERNING THEIR RECALL IS CONTAINED IN 10 U.S.C. 6482. THAT SECTION PROVIDES:

"IN TIME OF WAR OR NATIONAL EMERGENCY THE SECRETARY OF THE NAVY MAY ORDER TO ACTIVE DUTY ANY RETIRED ENLISTED MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS."

UNDER THE RETIREMENT LAWS APPLICABLE TO THE REGULAR NAVY AND REGULAR MARINE CORPS, AN ENLISTED MEMBER MAY NOT BE RETIRED UNTIL HE HAS COMPLETED 30 OR MORE YEARS OF SERVICE. 10 U.S.C. 6331. THIS IS COMPARABLE TO THE PROVISIONS OF 10 U.S.C. 3917 AND 8917, AND WOULD THUS, PRODUCE A LIMITED BODY OF AVAILABLE MANPOWER FOR RECALL PURPOSES (THOSE WITH 30 OR MORE YEARS OF SERVICE). WE ALSO NOTE THAT RECALL UNDER 10 U.S.C. 6482 IS AVAILABLE ONLY IN TIME OF WAR OR NATIONAL EMERGENCY, WHILE AS PREVIOUSLY NOTED, RETIRED ARMY AND AIR FORCE MEMBERS MAY BE RECALLED BY THE PRESIDENT WITH ASSIGNMENT TO SUCH DUTIES AS HE CONSIDERS NECESSARY "IN THE INTERESTS OF NATIONAL DEFENSE" UNDER 10 U.S.C. 3504 AND 8504. WE ARE UNCERTAIN AS TO THE SUBSTANTIVE DIFFERENCE, IF ANY, BETWEEN THE PHRASES "INTERESTS OF NATIONAL DEFENSE" AND "NATIONAL EMERGENCY", AS THEY RELATE TO RECALL OF RETIRED REGULAR SERVICE PERSONNEL; HOWEVER, IT IS OUR VIEW THAT WHILE IT MIGHT AFFECT THE TIMING OF THE RECALL IT WOULD NOT AFFECT THE ABILITY OF THE GOVERNMENT TO RECALL SUCH PERSONNEL.

WITH REGARD TO RECALL OF ENLISTED MEMBERS OF THE REGULAR NAVY AND MARINE CORPS WHO HAVE LESS THAN 30 YEARS OF SERVICE BUT WHO ARE NOT ON ACTIVE DUTY, THERE ARE NO STATUTORY PROVISIONS IDENTICAL TO 10 U.S.C. 3914 AND 8914 (ARMY AND AIR FORCE). WHERE REGULAR ARMY AND REGULAR AIR FORCE ENLISTED PERSONNEL MAY "RETIRE" IF THEY HAVE OVER 20 YEARS' SERVICE, ENLISTED MEMBERS OF THE REGULAR NAVY AND REGULAR MARINE CORPS, MAY BE PLACED IN THE SOMEWHAT SIMILAR STATUS OF BEING TRANSFERRED TO THE FLEET RESERVE UNDER 10 U.S.C. 6330 WHICH PROVIDES IN PART -

"(B) AN ENLISTED MEMBER OF THE REGULAR NAVY *** WHO HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE *** MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET RESERVE. AN ENLISTED MEMBER OF THE REGULAR MARINE CORPS *** WHO HAS COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE *** MAY, AT HIS REQUEST, BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE."

UNDER THE PROVISIONS OF SECTION 6330(C) EACH OF THESE MEMBERS SO TRANSFERRED IS ENTITLED TO RETAINER PAY.

WHILE "RETAINER PAY" IS THE SAME AS "RETIRED PAY" FOR MANY PURPOSES SINCE IT DESIGNATES INDIVIDUALS NOT ON ACTIVE DUTY BUT WHO RETAIN A DEFINITIVE MILITARY STATUS, A RETAINER PAY STATUS IS NOT EXACTLY THE SAME AS A RETIRED PAY STATUS FOR RECALL TO ACTIVE DUTY PURPOSES. UNDER THE PROVISIONS OF 10 U.S.C. 6331, A MEMBER OF THE FLEET OR FLEET MARINE CORPS RESERVE WHO WAS A MEMBER OF THE REGULAR NAVY OR REGULAR MARINE CORPS BEFORE TRANSFER TO THE FLEET OR FLEET MARINE CORPS RESERVE, IS AUTHORIZED TO BE TRANSFERRED TO THE RETIRED LIST OF HIS SERVICE UPON THE COMPLETION OF 30 YEARS OF SERVICE AND AT THAT TIME BECOMES "ENTITLED TO RETIRED PAY AT THE SAME RATE AS *** HIS RETAINER PAY." THE AUTHORITY TO RECALL MEMBERS OF THE FLEET RESERVE IS NOT 10 U.S.C. 6482, SINCE THEY ARE NOT RETIRED ENLISTED MEMBERS OF THE REGULAR NAVY OR REGULAR MARINE CORPS DURING THAT TIME. THE RECALL AUTHORITY APPLICABLE TO THEM IS CONTAINED IN 10 U.S.C. 6485, AND PROVIDES FOR INVOLUNTARY RECALL TO ACTIVE DUTY: (1) "IN TIME OF WAR OR NATIONAL EMERGENCY DECLARED BY CONGRESS," (2) "IN TIME OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT, (3) "WHEN OTHERWISE AUTHORIZED BY LAW." THE "WAR OR NATIONAL EMERGENCY DECLARED BY CONGRESS" IS SIMILAR TO THE LANGUAGE USED IN 10 U.S.C. 672 FOR RECALL OF RESERVES GENERALLY, AND OF COURSE MAY ENTAIL SOME DELAY. THE RECALL IN TIME OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT WOULD ACTUALLY REQUIRE SUCH A DECLARATION, AND TO THAT EXTENT THE AUTHORITY IS NOT AS BROAD AS THAT FOR RECALLING ARMY AND AIR FORCE MEMBERS UNDER 10 U.S.C. 3504 AND 8504.

CONCLUSION

IN CONCLUSION, IT IS OUR VIEW THAT THE FOLLOWING CATEGORIES OF ENLISTED MEMBERS OF THE REGULAR FORCES CONSTITUTE THE AVAILABLE MANPOWER FOR RECALL TO ACTIVE DUTY SHORT OF A DECLARATION OF NATIONAL EMERGENCY:

(1) ALL ENLISTED MEMBERS OF THE REGULAR ARMY, AIR FORCE, REGULAR NAVY AND REGULAR MARINE CORPS, RETIRED UNDER 10 U.S.C. 3917, 8917 AND 6482 (OVER 30 YEARS OF SERVICE).

(2) ALL ENLISTED MEMBERS OF THE REGULAR ARMY, AND REGULAR AIR FORCE, RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3914 AND 8914 (OVER 20, BUT UNDER 30 YEARS OF SERVICE).

ALL OTHER ENLISTED MEMBERS OF THE ARMY, AIR FORCE, NAVY OR MARINE CORPS NOT ON ACTIVE DUTY AT THE TIME OF SUCH NEEDED MOBILIZATION MAY BE CALLED UP, BUT ONLY PURSUANT TO THE PROVISIONS OF 10 U.S.C. 672 AND 10 U.S.C. 6485.