B-83703, MAY 20, 1949, 28 COMP. GEN. 655

B-83703: May 20, 1949

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EVEN THOUGH SUCH PERSON ALSO MAY HAVE BEEN A MEMBER OF A RESERVE COMPONENT DURING THE SAID TWELVE YEARS. THE PERIOD OF TIME DURING WHICH AN OFFICER IS IN THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS AS ESTABLISHED UNDER THE GENERAL AUTHORITY IN SECTION 37 OF THE NATIONAL DEFENSE ACT. MAY NOT INCLUDE SUCH SERVICE AFTER SUCH DATE FOR THE PURPOSE OF DETERMINING WHETHER THEIR LAST EIGHT YEARS ARE THE TYPE OF SERVICE CONTEMPLATED BY THE ACT. IS CONCLUSIVE UPON THIS OFFICE INSOFAR AS IT RELATES TO SPANISH-AMERICAN WAR SERVICE PENSION AND OTHER PENSIONS AND COMPENSATION ADMINISTERED BY SUCH ADMINISTRATION UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF OCTOBER 17. THE PROHIBITION APPEARING IN THE CURRENT MILITARY APPROPRIATION ACT THAT NO PAYMENT SHALL BE MADE TO "ANY OFFICER" ON THE RETIRED LIST OF THE ARMY WHO IS ENGAGED IN THE SELLING OF.

B-83703, MAY 20, 1949, 28 COMP. GEN. 655

RETIREMENT - RETIRED PAY - ARMY RESERVE OFFICERS - ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 WHILE, UNDER THE SECOND PROVISO OF SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, SIMULTANEOUS SERVICE IN A RESERVE COMPONENT AND IN THE REGULAR ARMY, NAVY, ETC., MAY NOT BE CONSIDERED AS SERVICE IN A RESERVE COMPONENT FOR RETIRED PAY PURPOSES, SUCH PROVISO WOULD NOT PRECLUDE THE PAYMENT OF RETIRED PAY TO A PERSON OTHERWISE ELIGIBLE THEREFOR WHO HAD HAD TWENTY YEARS' SERVICE CONSISTING OF TWELVE YEARS' SERVICE IN OTHER THAN A RESERVE COMPONENT FOLLOWED BY EIGHT YEARS' SERVICE IN A RESERVE COMPONENT, EVEN THOUGH SUCH PERSON ALSO MAY HAVE BEEN A MEMBER OF A RESERVE COMPONENT DURING THE SAID TWELVE YEARS. THE PERIOD OF TIME DURING WHICH AN OFFICER IS IN THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS AS ESTABLISHED UNDER THE GENERAL AUTHORITY IN SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, MAY NOT BE CREDITED FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948. UNDER THE FIRST PROVISO OF SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, THE LAST EIGHT YEARS OF AN INDIVIDUAL'S QUALIFYING SERVICE FOR RETIREMENT PURPOSES MAY BE COMPOSED OF SERVICE IN RESERVE COMPONENTS OF TWO OR MORE OF THE SEVERAL ARMED SERVICES, INCLUDING THE COMBINED SERVICE IN DIFFERENT RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES; HOWEVER, MEMBERS OF RESERVE COMPONENTS OF THE AIR FORCE ENTITLED TO INCLUDE SERVICE AS MEMBERS OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES PERFORMED ON OR PRIOR TO JULY 26, 1949, MAY NOT INCLUDE SUCH SERVICE AFTER SUCH DATE FOR THE PURPOSE OF DETERMINING WHETHER THEIR LAST EIGHT YEARS ARE THE TYPE OF SERVICE CONTEMPLATED BY THE ACT. THE ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 800, DECEMBER 22, 1948, HOLDING THAT SPANISH-AMERICAN WAR PENSION MAY NOT BE PAID CONCURRENTLY WITH RETIRED PAY AUTHORIZED UNDER THE ACT OF JUNE 29, 1948, AND THAT RETIRED PAY MAY NOT BE WAIVED PURSUANT TO THE ACT OF MAY 27, 1944, FOR THE PURPOSE OF RECEIVING COMPENSATION OR PENSION FROM THE VETERANS' ADMINISTRATION, IS CONCLUSIVE UPON THIS OFFICE INSOFAR AS IT RELATES TO SPANISH-AMERICAN WAR SERVICE PENSION AND OTHER PENSIONS AND COMPENSATION ADMINISTERED BY SUCH ADMINISTRATION UNDER THE PROVISIONS OF SECTION 11 OF THE ACT OF OCTOBER 17, 1940. THE PROHIBITION APPEARING IN THE CURRENT MILITARY APPROPRIATION ACT THAT NO PAYMENT SHALL BE MADE TO "ANY OFFICER" ON THE RETIRED LIST OF THE ARMY WHO IS ENGAGED IN THE SELLING OF, ETC., TO THE DEPARTMENT OF THE ARMY, ANY WAR MATERIALS OR SUPPLIES IS NOT APPLICABLE TO PERSONS WHO ARE GRANTED RETIRED PAY UNDER SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, THE PAYMENT OF SUCH RETIRED PAY TO ANY PERSON THEREUNDER NOT BEING CONTINGENT UPON THE CONTINUATION OF HIS STATUS AS A RESERVE OFFICER AFTER HE BECOMES ELIGIBLE FOR RETIRED PAY. AN OTHERWISE QUALIFIED ARMY RESERVE OFFICER MAY BE RETIRED UNDER THE AUTHORITY IN SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED (SECTION 202 OF THE ACT OF JUNE 29, 1948), REGARDLESS OF WHETHER OR HE IS ON ACTIVE DUTY ON THE DATE OF HIS APPLICATION FOR RETIREMENT AND WITHOUT REGARD TO THE MATTER OF WHETHER HE IS ON AN ACTIVE LIST OR AN INACTIVE LIST ON THAT DATE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, MAY 20, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 11, 1949, PRESENTING FOR DECISION CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE ADMINISTRATION OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1087.

YOUR FIRST QUESTION IS AS FOLLOWS:

WITH REFERENCE TO THE SECOND PROVISO OF SECTION 302 (A), IS SUCH LIMITATION APPLICABLE ONLY TO THE LAST EIGHT YEARS OF A QUALIFYING SERVICE, REFERRED TO IN THE PRECEDING PROVISO, OR IS IT FOR APPLICATION TO ANY PERIOD DURING THE FULL TWENTY YEARS OF QUALIFYING SERVICE, REFERRED TO IN THE MAIN PROVISIONS OF THIS SECTION?

SUBSECTION (A) OF SECTION 302 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, SUPRA, PROVIDES THAT---

ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933, THE UNITED STATES NAVY INCLUDING THE RESERVE COMPONENTS THEREOF, THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, OR THE UNITED STATES COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF, AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY: PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT EXCEPT THAT ANY MEMBER OF A RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES SHALL BE ENTITLED TO INCLUDE SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES PERFORMED ON OR PRIOR TO JULY 26, 1949: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION, A SIMULTANEOUS SERVICE AS A MEMBER OF A RESERVE COMPONENT AND AS A MEMBER OF THE REGULAR ARMY, NAVY, AIR FORCE, OR MARINE CORPS, SHALL NOT BE DEEMED TO BE SERVICE IN A RESERVE COMPONENT: PROVIDED FURTHER, THAT NO PERSON WHO WAS A MEMBER OF A RESERVE COMPONENT ON OR BEFORE AUGUST 15, 1945, SHALL BE ELIGIBLE FOR RETIREMENT BENEFITS UNDER THIS TITLE UNLESS HE PERFORMED ACTIVE FEDERAL SERVICE DURING ANY PORTION OF EITHER OF THE TWO PERIODS BEGINNING APRIL 6, 1917, AND ENDING NOVEMBER 11, 1918, AND BEGINNING SEPTEMBER 9, 1940, AND ENDING DECEMBER 31, 1946. ( ITALICS SUPPLIED.)

THE SECOND PROVISO OF THE ABOVE-QUOTED SUBSECTION IS TO BE APPLIED "FOR THE PURPOSES" OF SUCH ,SUBSECTION" AND THIS NECESSARILY IS APPLICABLE TO ALL THE PROVISIONS RELATING TO "SERVICE IN A RESERVE COMPONENT" CONTAINED IN SUCH SUBSECTION. HOWEVER, WHILE, UNDER SUCH PROVISO, SIMULTANEOUS SERVICE IN A RESERVE COMPONENT AND IN THE REGULAR ARMY, NAVY, ETC., MAY NOT BE CONSIDERED SERVICE IN A RESERVE COMPONENT, THERE IS NOTHING TO PREVENT ITS BEING CONSIDERED SERVICE IN THE REGULAR ESTABLISHMENT. HENCE, SINCE SERVICE DURING THE FIRST TWELVE YEARS OF QUALIFYING SERVICE IS NOT REQUIRED TO BE SERVICE IN A RESERVE COMPONENT, THE PROVISO IN QUESTION WOULD NOT PRECLUDE THE PAYMENT OF RETIRED PAY TO A PERSON OTHERWISE ELIGIBLE THEREFOR WHO HAD HAD TWENTY YEARS' SERVICE CONSISTING OF TWELVE YEARS' SERVICE IN OTHER THAN A RESERVE COMPONENT FOLLOWED BY EIGHT YEARS' SERVICE IN A RESERVE COMPONENT EVEN THOUGH HE MAY ALSO HAVE BEEN A MEMBER OF A RESERVE COMPONENT DURING THE SAID TWELVE YEARS. SUCH SECOND PROVISO IS, BY ITS OWN TERMS, INAPPLICABLE TO THE PROVISIONS OF ANY OF THE SUBSECTIONS OF SECTION 302 OTHER THAN SUBSECTION (A). YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

QUESTIONS 2 (A), (B), AND (C) ARE PREMISED ON THE FACT THAT IN A DECISION OF THIS OFFICE DATED NOVEMBER 23, 1948, B-80804 (28 COMP. GEN. 321), IT WAS HELD, INTER ALIA--- ANSWER TO QUESTION (G/--- THAT AN INDIVIDUAL WHO IS NOT A MEMBER OF A RESERVE COMPONENT UPON REACHING THE AGE OF 60 YEARS MAY NOT BE GRANTED RETIREMENT BENEFITS UNDER TITLE III OF THE ACT OF JUNE 29, 1948, EVEN THOUGH HE MIGHT BE ELIGIBLE IN OTHER RESPECTS TO RECEIVE SUCH BENEFITS UPON REACHING THAT AGE. HOWEVER, IN DECISION OF MARCH 14, 1939, B-80804, 28 COMP. GEN. 510, IT WAS DETERMINED, CONTRARY TO THE CONCLUSION PREVIOUSLY REACHED, THAT MEMBERSHIP IN A RESERVE COMPONENT UPON REACHING THE AGE OF 60 YEARS IS NOT REQUIRED TO QUALIFY AN INDIVIDUAL FOR RETIRED PAY UNDER THE STATUTORY PROVISION IN QUESTION. ACCORDINGLY, IT WOULD NOT NOW APPEAR NECESSARY TO MAKE ANY REPLY TO THE SAID QUESTIONS 2 (A), (B), AND (C).

QUESTION 2 (D) IS AS FOLLOWS:

MAY A PERIOD DURING WHICH AN OFFICER HOLDS A COMMISSION IN THE HONORARY RESERVE BE INCLUDED IN THE SERVICE CREDITABLE IN THE COMPUTATION OF LONGEVITY ON WHICH HIS RETIREMENT PAY WOULD BE BASED?

IT APPEARS THAT THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS WAS NOT CREATED BY ANY EXPRESS STATUTORY PROVISION BUT WAS ESTABLISHED UNDER THE GENERAL AUTHORITY OF SECTION 37 OF THE NATIONAL DEFENSE ACT, 39 STAT. 189, AS AMENDED, CARRIED IN TITLE 10 OF THE U.S.C. AS SECTIONS 351, 352, 353, 355A, 358, 360, 370, AND 372. SEE SECTION VI OF WAR DEPARTMENT CIRCULAR NO. 356, DATED DECEMBER 3, 1946. WITH RESPECT TO THE HONORARY RESERVE, PARAGRAPH 8D AND 9, DEPARTMENT OF THE ARMY SPECIAL REGULATIONS 140-5-1, DATED DECEMBER 15, 1948, PROVIDE AS FOLLOWS:

D. THE HONORARY RESERVE WILL CONSIST OF OFFICERS OF THE OFFICERS' RESERVE CORPS ONLY WITHOUT ANY SUBDIVISION. THE RESERVE OFFICERS IN THIS GROUP ARE THOSE WHOSE SERVICE HAS BEEN HONORABLE AND WHO---

(1) HAVE REACHED THE MAXIMUM AGE-IN-GRADE FOR THE ACTIVE RESERVE OR INACTIVE RESERVE, PROVIDED THEY HAVE COMPLETED A TOTAL OF 20 YEARS' SERVICE IN AMY COMPONENT OF THE ARMY OF THE UNITED SATES, AND PROVIDED THEY APPLY FOR SUCH TRANSFER; OR

(2) UPON COMPLETING A TOTAL OF 20 YEARS' SERVICE IN ANY COMPONENT OF THE ARMY OF THE UNITED STATES, APPLY FOR TRANSFER TO THE HONORARY RESERVE; OR

(3) HAVING BECOME PHYSICALLY DISQUALIFIED OTHER THAN THROUGH THEIR OWN MISCONDUCT TO PERFORM DUTIES INCIDENT TO THE GRADES HELD BY THEM, APPLY FOR TRANSFER TO THE HONORARY RESERVE; OR

(4) HAVE REACHED THEIR SIXTIETH BIRTHDAY AND ARE OTHERWISE ELIGIBLE UNDER (2) ABOVE.

9. INELIGIBILITY FOR PROMOTION, ACTIVE DUTY, ETC., OF MEMBERS OF INACTIVE AND HONORARY RESERVE.--- OFFICERS WHILE ASSIGNED TO THE INACTIVE RESERVE AND HONORARY RESERVE WILL NOT BE ELIGIBLE FOR INACTIVE DUTY TRAINING PAY OR PROMOTION; NOR WILL ANY TIME-IN-GRADE CREDIT TOWARD PROMOTION ACCRUE TO ANY OFFICER WHILE IN THESE GROUPS. FURTHERMORE, OFFICERS ASSIGNED TO THE HONORARY RESERVE WILL NOT BE ELIGIBLE FOR ANY ACTIVE DUTY.

THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS, AS THUS ESTABLISHED, IS SOMEWHAT SIMILAR IN NATURE TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, ESTABLISHED BY SECTION 309 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, AS AMENDED, 34 U.S.C. SUPP. I, 855H, AND INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE MAY NOT BE COUNTED FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY (SEE SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367; 21 COMP. GEN. 737; 23 COMP. GEN. 284; 26 ID. 152, 157) NOR MAY IT BE COUNTED AS FEDERAL SERVICE FOR THE PURPOSE OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. SEE SECTION 306 (F) OF THE ACT, 62 STAT. 1090. MOREOVER, IT WILL BE NOTED THAT SECTION 306 (E) OF THE SAID ACT, 62 STAT. 1090, EXPRESSLY PROVIDES THAT "SERVICE * * * IN AN INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS * * * SHALL NOT BE DEEMED TO BE FEDERAL SERVICE" AND, ALSO, THAT THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS DOES NOT HAVE WHAT PROBABLY IS THE MOST IMPORTANT CHARACTERISTIC OF THE VARIOUS TYPES OF RESERVE SERVICE WHICH ARE AUTHORIZED BY THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 367, AS AMENDED, TO BE CREDITED FOR LONGEVITY PAY PURPOSES, I.E., AVAILABILITY OF THE MEMBERS THEREOF FOR ACTIVE DUTY, WHICH STRONGLY MILITATES AGAINST ANY CONCLUSION THAT THE PERIOD DURING WHICH AN OFFICER IS IN THE HONORARY RESERVE COULD BE COUNTED FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY. IN VIEW OF ALL THE CIRCUMSTANCES, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE PERIOD OF TIME DURING WHICH AN OFFICER IS IN THE HONORARY RESERVE OF THE OFFICER'S RESERVE CORPS MAY BE CREDITED FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY. ACCORDINGLY, QUESTION 2 (D) IS ANSWERED IN THE NEGATIVE.

THE THIRD QUESTION READS---

UNDER THE FIRST PROVISO OF SECTION 302 (A), WOULD COMBINED SERVICE IN (A) RESERVE COMPONENTS OF SEPARATE MILITARY SERVICES OR (B) SERVICE IN THE OFFICERS' RESERVE CORPS AND THE NATIONAL GUARD, BOTH OF WHICH ARE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, BE CONSTRUED AS SERVICE IN "A RESERVE COMPONENT?

THE PROVISO IN QUESTION IS TO THE EFFECT THAT FOR THE PURPOSES OF SECTION 302 THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER TITLE III OF THE ACT MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT "EXCEPT THAT ANY MEMBER OF A RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES SHALL BE ENTITLED TO INCLUDE SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES PERFORMED ON OR PRIOR TO JULY 26, 1949.' THE EXCEPTION RESPECTING MEMBERS OF RESERVE COMPONENTS OF THE AIR FORCE OF THE UNITED STATES WAS ADDED ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES AS AN AMENDMENT OF THE HOUSE COMMITTEE ON ARMED SERVICES (SEE PAGE 2503, PART 2, VOLUME 94, CONGRESSIONAL RECORD) AND PRIOR TO SUCH AMENDMENT THE PROVISO IN QUESTION READ AS FOLLOWS:

PROVIDED, THAT FOR THE PURPOSES OF THIS SUBSECTION THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE SERVICE TO WHICH APPLICATION IS MADE FOR RETIREMENT.

IT IS EVIDENT THAT, UNDER SUCH LANGUAGE, SERVICE IN A RESERVE COMPONENT OF ONE OF THE ARMED SERVICES COULD NOT HAVE BEEN COMBINED WITH SERVICE IN A RESERVE COMPONENT OF ANOTHER OF THE ARMED SERVICES IN DETERMINING WHETHER OR NOT AN INDIVIDUAL'S LAST EIGHT YEARS OF SERVICE WERE SUCH AS WOULD MEET THE TERMS OF THE STATUTE. AND THE PURPOSE OF THE AMENDMENT DEALING SPECIFICALLY WITH MEMBERS OF RESERVE COMPONENTS OF THE AIR FORCE WAS TO REMOVE THE INEQUITY THAT OTHERWISE WOULD HAVE BEN SUFFERED BY PERSONNEL OF SUCH RESERVE COMPONENTS WHO WERE TRANSFERRED THERETO FROM A RESERVE COMPONENT OF THE ARMY PURSUANT TO THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 495, 504. HOWEVER, AFTER THE BILL HAD PASSED THE HOUSE OF REPRESENTATIVES THE SENATE AMENDED THE MAIN PART OF THE PROVISO BY CHANGING THE WORD "SUBSECTION" TO "SECTION" AND, MORE IMPORTANT, BY STRIKING OUT THE WORDS "OF THE SERVICE TO WHICH APPLICATION IS MADE FOR RETIREMENT.' THERE CAN BE NO DOUBT THAT THE PURPOSE OF SUCH SENATE AMENDMENT WAS TO PERMIT SERVICE IN RESERVE COMPONENTS OF TWO OR MORE OF THE SEVERAL ARMED SERVICES TO BE COMBINED DURING THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR THE PURPOSE OF DETERMINING AN INDIVIDUAL'S ELIGIBILITY FOR RETIRED PAY BUT FOR SOME REASON THERE WAS NOT DELETED THE PROVISION ORIGINALLY INSERTED FOR THE PURPOSE OF DETERMINING AN INDIVIDUAL'S ELIGIBILITY FOR RETIRED PAY BUT FOR SOME REASON THERE WAS NOT DELETED THE PROVISION ORIGINALLY INSERTED FOR THE PURPOSE OF PERMITTING MEMBERS OF A RESERVE COMPONENT OF THE AIR FORCE TO INCLUDE, IN THEIR LAST EIGHT YEARS OF QUALIFYING SERVICE, SERVICE IN A RESERVE COMPONENT OF THE ARMY IF PERFORMED PRIOR TO JULY 26, 1949. IN VIEW OF THE CLEAR INTENT OF THE CONGRESS IN THE MATTER AS EVIDENCED BY THE SENATE AMENDMENT (CONCURRED IN BY THE HOUSE OF REPRESENTATIVES), THE ONLY CONCLUSION WHICH APPEARS TO BE TENABLE IS THAT, GENERALLY, THE LAST EIGHT YEARS OF AN INDIVIDUAL'S QUALIFYING SERVICE MAY BE COMPOSED OF SERVICE IN RESERVE COMPONENTS OF TWO OR MORE OF THE SEVERAL ARMED SERVICES. HOWEVER, THE PROVISION RELATIVE TO MEMBERS OF RESERVE COMPONENTS OF THE AIR FORCE MAY NOT BE IGNORED--- EVEN THOUGH AN ANOMALOUS SITUATION MAY RESULT FROM GIVING IT EFFECT--- AND, AS TO SUCH MEMBERS, I AM CONSTRAINED BY THE PLAIN WORDS OF SUCH PROVISION, AND IN THE ABSENCE OF CLARIFYING LEGISLATION, TO CONCLUDE THAT THEY MAY NOT INCLUDE SERVICE IN A RESERVE COMPONENT OF THE ARMY PERFORMED AFTER JULY 26, 1949, FOR THE PURPOSE OF DETERMINING WHETHER THEIR LAST EIGHT YEARS OF SERVICE ARE THE TYPE OF SERVICE CONTEMPLATED BY THE STATUTE, IT BEING A CARDINAL RULE OF STATUTORY CONSTRUCTION THAT SIGNIFICANCE AND EFFECT SHOULD, IF POSSIBLE, BE ACCORDED TO EVERY WORD, PHRASE, SENTENCE, AND PART OF AN ACT. SEE 50 AM. JUR., STATUTES, SECTIONS 231 AND 358. PART (A) OF THE THIRD QUESTION IS ANSWERED ACCORDINGLY. AS TO PART (B) OF SUCH QUESTION, NOTHING IS FOUND WHICH WOULD PROHIBIT THE COMBINING OF SERVICE IN DIFFERENT RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, SUCH AS SERVICE IN THE OFFICERS' RESERVE CORPS AND SERVICE IN THE NATIONAL GUARD, AND, ACCORDINGLY, PART (B) IS ANSWERED IN THE AFFIRMATIVE. THE FOURTH AND FIFTH QUESTIONS ARE:

MAY ARMY RETIRED PAY AUTHORIZED UNDER TITLE III, PUBLIC LAW 810, 80TH CONGRESS, BE PAID CONCURRENTLY WITH SPANISH-AMERICAN WAR SERVICE PENSION UNDER PUBLIC LAW 269, 74TH CONGRESS, AS AMENDED?

MAY RETIRED PAY AUTHORIZED UNDER TITLE III, PUBLIC LAW 810, 80TH CONGRESS, BE WAIVED PURSUANT TO PUBLIC LAW 314, 75TH CONGRESS, TO RECEIVE COMPENSATION OR PENSION FROM THE VETERANS' ADMINISTRATION?

SECTION 11 OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1197, PROVIDES THAT--

NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, EXCEPT AS PROVIDED IN SECTION 19 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, AND IN SECTION 817 OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, THE DECISIONS OF THE ADMINISTRATOR OF VETERANS' AFFAIRS ON ANY QUESTION OF LAW OR FACT CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER THIS OR ANY OTHER ACT ADMINISTERED BY THE VETERANS' ADMINISTRATION SHALL BE FINAL AND CONCLUSIVE AND NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES SHALL HAVE POWER OR JURISDICTION TO REVIEW ANY SUCH DECISIONS.

THE PAYMENT OF THE SPANISH-AMERICAN WAR SERVICE PENSION AND THE OTHER PENSIONS AND COMPENSATION REFERRED TO IN YOUR FOURTH AND FIFTH QUESTIONS IS GOVERNED BY LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION AND IN CONNECTION WITH SUCH QUESTIONS YOUR ATTENTION IS INVITED TO ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 800, DATED DECEMBER 22, 1948, WHEREIN IT WAS HELD:

(A) RETIRED PAY AUTHORIZED UNDER TITLE III, PUBLIC LAW 810, 80TH CONGRESS, MAY NOT BE PAID CONCURRENTLY WITH SPANISH-AMERICAN WAR SERVICE PENSION UNDER PUBLIC LAW 269, 74TH CONGRESS.

(B) RETIRED PAY AUTHORIZED UNDER TITLE III, PUBLIC LAW 810, 80TH CONGRESS IS NOT SUCH PAY AS MAY BE WAIVED UNDER PUBLIC LAW 314, 78TH CONGRESS, FOR THE PURPOSE OF RECEIVING COMPENSATION OR PENSION FROM THE VETERANS' ADMINISTRATION. ( OPINION OF THE SOLICITOR DATED NOVEMBER 30, 1948, APPROVED DECEMBER 1, 1948, C-2 744 627.)

SUCH CONCLUSIONS SEEM CLEARLY TO NEGATIVE PENSION OR COMPENSATION PAYMENTS BY THE VETERANS' ADMINISTRATION IN ANY CASE WHERE A PERSON APPLIES FOR AND IS GRANTED RETIRED PAY UNDER TITLE III OF THE SAID PUBLIC LAW 810. SINCE THAT DECISION, INSOFAR AS IT RELATES TO THE SPANISH- AMERICAN WAR SERVICE PENSION AND OTHER PENSIONS AND COMPENSATION ADMINISTERED BY THE VETERANS' ADMINISTRATION, IS CONCLUSIVE UPON THIS OFFICE AND IN VIEW OF THE NEGATIVE CONCLUSIONS THEREIN REACHED IT WOULD APPEAR THAT NO USEFUL PURPOSE WOULD BE SERVED BY A CONSIDERATION OF YOUR FOURTH AND FIFTH QUESTIONS BY THIS OFFICE AT THIS TIME.

THE SIXTH QUESTION READS---

ARE PERSONS WHO ARE RETIRED UNDER PROVISIONS OF TITLE III, PUBLIC LAW 810, 80TH CONGRESS, SUBJECT TO THE FOLLOWING QUOTED PROHIBITION APPEARING IN THE CURRENT MILITARY APPROPRIATION ACT ( PUBLIC LAW 766, 80TH CONGRESS) UNDER THE APPROPRIATION, FINANCE SERVICE, ARMY," NO. PAYMENT SHALL BE MADE TO ANY ARMY OFFICER ON THE RETIRED LIST OF THE ARMY WHO, FOR HIMSELF OR FOR OTHERS, IS ENGAGED IN THE SELLING OF, CONTRACTING FOR SALE OF, OR NEGOTIATING FOR SALE OF, TO THE DEPARTMENT OF THE ARMY, ANY WAR MATERIALS OR SUPPLIES? " SEE IN THIS CONNECTION FOR POSSIBLE APPLICATION THE PROVISIONS IN SECTION 37, NATIONAL DEFENSE ACT OF 1916 (10 U.S.C. 372) READING IN PART AS FOLLOWS: "MEMBERS OF THE OFFICERS' RESERVE CORPS, WHILE NOT ON ACTIVE DUTY SHALL NOT * * * BE HELD OR DEEMED TO BE OFFICERS OR EMPLOYEES OF THE UNITED STATES, OR PERSONS HOLDING ANY OFFICE OF TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER OR IN CONNECTION WITH ANY DEPARTMENT OF THE GOVERNMENT OF THE UNITED STATES.'

THE ONLY ARMY PERSONNEL OR FORMER ARMY PERSONNEL WHO MIGHT BE CONSIDERED AS BEING RETIRED UNDER TITLE III OF THE ACT OF JUNE 29, 1948, SUPRA, ARE THOSE GRANTED RETIRED PAY UNDER THE PROVISIONS OF SECTION 302 (A) OF SUCH TITLE. THE PROVISION IN SECTION 37 OF THE NATIONAL DEFENSE ACT (10 U.S.C. 372) TO WHICH YOU REFER COULD NOT APPLY, OF COURSE, TO THOSE PERSONS WHO ARE NO LONGER IN THE RESERVE AT THE TIME THEY BECOME ELIGIBLE FOR AND ARE GRANTED RETIRED PAY. HOWEVER, ASIDE FROM THE SAID PROVISION OF SECTION 37 OF THE NATIONAL DEFENSE ACT, IT DOES NOT APPEAR THAT THE APPROPRIATION PROVISION IN QUESTION IS REQUIRED TO BE CONSIDERED AS APPLICABLE TO PERSONS WHO ARE GRANTED RETIRED PAY UNDER THE SAID SECTION 302 (A) SINCE THE PAYMENT OF SUCH RETIRED PAY TO ANY PERSON IS NOT CONTINGENT UPON THE CONTINUATION OF HIS STATUS AS A RESERVE OFFICER AFTER HE BECOMES ELIGIBLE FOR RETIRED PAY AND SINCE THE SAID APPROPRIATION PROVISION APPLIES ONLY TO "ANY OFFICER" ON THE RETIRED LIST OF THE ARMY. SEE DECISIONS OF MARCH 14, 1949, B-80804, SUPRA, AND APRIL 19, 1949, B-84031, 28 COMP. GEN. 588. ACCORDINGLY, YOUR SIXTH QUESTION IS ANSWERED IN THE NEGATIVE.

YOUR SEVENTH AND LAST QUESTION IS AS FOLLOWS:

DOES SECTION 202 OF TITLE II, PUBLIC LAW 810, 80TH CONGRESS REQUIRE THAT AN OFFICER OF THE RESERVE COMPONENTS, IF OTHERWISE QUALIFIED BE: (A) ON ACTIVE DUTY AT THE TIME THAT APPLICATION FOR RETIREMENT THEREUNDER IS MADE, OR (B) ON AN ACTIVE LIST, AS DISTINGUISHED FROM INACTIVE LIST, AT THE TIME SUCH APPLICATION IS MADE?

THE SAID SECTION 202, 62 STAT. 1084, AMENDED SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, TO READ, IN PERTINENT PART, AS FOLLOWS:

THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY * * * OR ANY OFFICER OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES * * * WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY OR MORE THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY IN THE DISCRETION OF THE SECRETARY OF THE ARMY * * * BE RETIRED UPON HIS OWN APPLICATION * * *.

SUCH PROVISION REFERS BROADLY TO "ANY OFFICER OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES" AND NOTHING HAS BEEN FOUND IN THE STATUTE, OR IN ITS LEGISLATIVE HISTORY, WHICH WOULD FURNISH ANY SUBSTANTIAL BASIS FOR CONCLUDING THAT THE SAID PROVISION WAS INTENDED TO APPLY ONLY TO RESERVE OFFICERS ON ACTIVE DUTY OR RESERVE OFFICERS ON AN ACTIVE LIST. THE BENEFITS GRANTED BY SUCH PROVISION INSOFAR AS A RESERVE OFFICER IS CONCERNED ARE IN RECOGNITION OF THE FACT THAT THE OFFICER SERVED ON ACTIVE DUTY FOR A PERIOD OF NOT LESS THAN TWENTY YEARS, AT LEAST TEN YEARS OF WHICH MUST HAVE BEEN COMMISSIONED SERVICE, AND THAT IS THE ONLY REQUIREMENT HE MUST MEET, AS AN OFFICER OF ONE OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, IN ORDER TO BE ELIGIBLE TO BE RETIRED UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE SECRETARY OF THE ARMY. ACCORDINGLY, AN OTHERWISE QUALIFIED RESERVE OFFICER MAY BE RETIRED UNDER SECTION 202 REGARDLESS OF WHETHER OR NOT HE IS ON ACTIVE DUTY ON THE DATE OF HIS APPLICATION FOR RETIREMENT AND WITHOUT REGARD TO THE MATTER OF WHETHER HE IS ON AN ACTIVE OR AN INACTIVE LIST ON THAT DATE. QUESTION SEVEN IS ANSWERED ACCORDINGLY.