B-229294.2, Dec 20, 1988

B-229294.2, Dec 20, 1988

MILITARY PERSONNEL - Pay - Retirement pay - Amount determination - Computation - Effective dates DIGEST: A Reserve Officer who is otherwise eligible for retired pay at the age of 60, requests that retirement points earned after the date established for his mandatory removal, but prior to his actual removal from the active Reserve, be credited in computation of his retirement pay. This request is denied unless the officer is retained beyond his mandatory removal date through some affirmative action by the service secretary, or an appropriate official with authority to act for him, intending to retain the member. Unexplained failure to transfer the member from the active Reserve is not an affirmative action by an official with intent to retain the member.

The Honorable Daniel K. Inouye:

This letter is in response to your inquiry of October 4, 1988, on behalf of Colonel Frank Slocum, U.S. Army Reserve (Retired) concerning the crediting of retirement points earned between the time of his mandatory removal date from Active Reserve status on March 16, 1982, and his actual removal from this status on May 26, 1983. Actual removal was delayed due to administrative oversight. Under the circumstances presented here, the retirement points claimed by Colonel Slocum cannot be credited.

At the time of his mandatory removal, Colonel Slocum had more than 20 years of service and was otherwise entitled to actually receive retired pay when he reached 60 years of age on September 4, 1986. He received his letter of notification of eligibility for retired pay at age 60 in October 1969, but continued in the active Reserve up to and beyond March 16, 1982. In fact, he attended Reserve drills from March 17, 1982 through May 16, 1982, and is claiming 10 retirement points based on this attendance. After May 16, 1982, Colonel Slocum stopped attending drills but still claims 17 additional membership points as a participant in the active Reserve from March 17, 1982 through his actual transfer from the active Reserve on May 26, 1983. Other than the characterization of it as administrative error, the record is devoid of any explanation for the 14- month delay in transferring Colonel Slocum from the active Reserve. Colonel Slocum does not contest the time established for his mandatory removal.

On December 9, 1987, the Department of the Army Board for Correction of Military Records denied Colonel Slocum's request for the crediting of these points. It cited our decision in B-146603 (actually B-146608, December 1, 1961, 41 Comp.Gen. 375) as the basis for denying retirement credit where a member participates beyond mandatory removal due to administrative oversight.

Colonel Slocum qualifies for retired pay for non-regular service under chapter 67 of title 10 of the United States Code, Secs. 1331 1337. The question presented here, therefore, is not whether he should have been allowed to have these points considered for the purpose of determining entitlement to retired pay, but whether the points he earned after the date established for his mandatory removal can be considered under 10 U.S.C. Secs. 1333 and 1401 in computation of his retired pay.

Chapter 67 of title 10, United States Code, 10 U.S.C. Secs. 1331 1337, 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 service as specified in that chapter. However, 10 U.S.C. Sec. 1334 provides a limitation in that "service in an inactive status may not be counted in any computation of years of service under this chapter." Additionally, that section provides that services performed "after retirement (without pay) for failure to conform to standards and qualifications prescribed" under 10 U.S.C. Sec. 1001 may not be counted in the computation of years of service under this chapter.

Among other provisions, 10 U.S.C. Sec. 3851 contains statutory qualifications for retaining Reserve officers in the grade of colonel.

It provides that each officer in that grade shall, 30 days after completion of 30 years of service or after the fifth anniversary of appointment in current grade, be transferred to the Retired Reserve, if qualified and he applies, or if he is not qualified or does not apply, be discharged from his Reserve appointment.

Implementing regulations are found in Army Regulation (AR) 140-10, chapter 3, section I, para. 3-3a(1)(b)(15 December 1978, as amended, 1 July 1981). Concerning Colonel Slocum's situation, we note subparagraph 3 -6c of AR 140-10 specifically provides that a member "will not be credited any retirement points earned after the date removal action was required even though actual removal is effective at a later date."

In 41 Comp.Gen. 375, we held that when provisions of law required mandatory transfer from an active status, 10 U.S.C. Sec. 1334 precludes the crediting of service performed subsequently to the mandatory removal date. An exception to this rule precluding service credit occurs only when the member is called to active duty or extended in the active Reserve by the affirmative and intentional action of the service secretary. Grahl v. United States, 336 F.2d 199, 204-206 (Ct. Cl. 1964); Fogg v. United States, 180 Ct. Cl. 605, 613 (1967); Colonel John F. McCormick, B-190830, Feb. 13, 1978. Although Colonel Slocum requests that we change our position on this point, the holding in 41 Comp.Gen. 375 with which he disagrees was based on statutory provisions which have not changed materially in the intervening years. Accordingly, there is no basis for changing our position.

In the absence of a showing that the Secretary of the Army, or an official with proper authority, intends to retain an officer and affirmatively exercises this authority through some valid order, instruction, directive or regulation (specific or general in nature), retirement points earned after the date of mandatory removal cannot be credited to him. An unexplained administrative error resulting in a delay in transferring a member from the active Reserve is insufficient to demonstrate that an appropriate official intended to retain the member.

Since it appears that there was no intent to retain Colonel Slocum in an active status beyond his mandatory removal date, he may not be credited with retirement points for service performed subsequent to that date.

We trust this serves the purpose of your inquiry.

TO: FILE

FROM: Attorney-Advisor, OGC - Michael D. Hipple

SUBJECT: B-229294.2

On 1 Nov. 88, I spoke to Harry Sykes (697-9515) of the Army Board for Correction of Military Records. Mr. Sykes was the examiner in COL Slocum's appeal before the Board on the retirement point issue. I needed to confirm two issues: one, did the Army dispute 27 as the number of points; and two, was the release date from the active Reserve on 26 May 1983 or 26 May 1982 as stated in the record of the Board's proceedings. Mr. Sykes said that 26 May 82 might have been a typo and would check with RCPAC on the matter. He said he would get back to me.

On 2 Nov 88 at 7:40 AM, Mr. Sykes told me that it would take some time to retrieve COL Slocum's 201 file from St. Louis but that these questions might be answered from his files. Mr. Sykes explained that the transfer date of 26 May 83 to the Retired Reserve is the effective date of the military order so transferring COL Slocum. According to Mr. Sykes' records and from what he remembers of the case, COL Slocum continued to attend Reserve drills through May of 1982, and then he stopped. The 27 retirement points is probably based on 10 points for the drills from March through May of 1982, plus 17 points based on membership (apparently 15 from May 82-83 and 2 constructive points for May 82 - May 82). Mr. Sykes stated that COL Slocum's RYE was 16 March, and while the Army is not disputing the 27 points as claimed and not specifically disputed by the Board, we were left to speculate whether any of the 27 points would be creditable in any event because 50 points are needed for a good year.

Mr. Sykes said that he would send a confirming Memorandum for Record of our telephone conversation. B-229294.2