B-81552, FEB 16, 1949

B-81552, FEB 16, 1949

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1949, REQUESTING RECONSIDERATION OF CERTAIN LANGUAGE IN OFFICE DECISION DATED DECEMBER 17, 1948, B-81552, TO THE SECRETARY OF THE ARMY, WHICH LANGUAGE INFERRED THAT RETIRED PAY FOR RESERVE OFFICERS MAY BE LIMITED TO PAY COMPUTED UPON THE BASIS OF THE HIGHEST GRADES HELD BY THEM "WHILE ON ACTIVE DUTY."

THE QUESTION WHICH NOW IS PRESENTED BY YOU WAS NOT BEFORE THIS OFFICE FOR CONSIDERATION AT THE TIME THE DECISION OF DECEMBER 17 WAS RENDERED, AND SAID DECISION DOES NOT PURPORT TO BE AND SHOULD NOT BE REGARDED AS A RULING UPON SUCH QUESTION. AS POINTED OUT IN YOUR LETTER, SECTION 303, OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1088, PROVIDES, IN EFFECT, THAT THE RETIRED PAY AUTHORIZED TO BE PAID TO A RESERVIST UNDER TITLE III OF SUCH ACT SHALL BE COMPUTED UPON THE BASIS OF THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE. IN VIEW THEREOF, IT IS REASONABLE CLEAR THAT THE RETIRED PAY OF A RESERVIST PLACED ON THE RETIRED LIST OF THE APPLICABLE SERVICE IN ACCORDANCE WITH TITLE III, SUPRA, IS NOT LIMITED TO RETIRED PAY COMPUTED UPON THE BASIS OF THE HIGHEST RANK HELD BY HIM WHILE ON ACTIVE DUTY. HOWEVER, IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING IN THE MATTER, THE LANGUAGE OF THE SENTENCE INVOLVED IS MODIFIED AS FOLLOWS:

"*** THE CONCLUSION APPEARS INESCAPABLE, THEREFORE, THAT A COMMISSIONED RESERVE OFFICER, WHO MAY BE RETIRED UNDER TITLE III OF GRADE, TEMPORARY OR PERMANENT, HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, IN ACCORDANCE WITH THE FORMULA SET OUT IN SECTION 303, OF SUCH TITLE, NECESSARILY WILL BE REQUIRED TO BE REGARDED AS RECEIVING RETIRED PAY 'FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER' AS USED IN THE PROHIBITION CONTAINED IN SECTION 212 OF THE 1932 ACT, SUPRA. ..END :