B-168412, APR. 3, 1970

B-168412, APR. 3, 1970

TO SENIOR MASTER SERGEANT CHARLES E. NEUBAUM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1970, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RETIRED PAY OF A CHIEF WARRANT OFFICER, W-4, AND THAT OF SENIOR MASTER SERGEANT, E-8, EFFECTIVE FROM THE DATE OF YOUR RETIREMENT, SEPTEMBER 1, 1968. THE DISALLOWANCE OF SUCH CLAIM WAS SUSTAINED IN OUR DECISION TO YOU DATED FEBRUARY 12, 1970, B-168412.

AS STATED IN OUR DECISION, YOUR OFFICIAL RETIREMENT ORDER SHOWED THAT YOU WERE RETIRED EFFECTIVE SEPTEMBER 1, 1968, UNDER THE PROVISIONS OF 10 U.S.C. 8914 (YEARS OF SERVICE) IN THE GRADE OF SENIOR MASTER SERGEANT (E- 8). THE ORDER FURTHER SHOWED THAT THE HIGHEST GRADE HELD BY YOU WHILE ON ACTIVE DUTY WAS CHIEF WARRANT OFFICER, W-2, AND THAT YOU HELD THE RESERVE GRADE OF CHIEF WARRANT OFFICER, W-4. CONCERNING THIS, WE SAID THAT WE SAW NO INDICATION IN THAT ORDER THAT YOU WERE CONCURRENTLY RETIRED AS AN ENLISTED MAN (SENIOR MASTER SERGEANT, E-8), AND AS A WARRANT OFFICER, W- 4. RATHER, WE SAID THAT YOUR RETIREMENT ORDERS MERELY SHOWED THE RESERVE GRADE OF CHIEF WARRANT OFFICER, W-4, WHICH YOU HELD AT THE TIME OF YOUR RETIREMENT.

IN SUPPORT OF YOUR CONTENTION THAT YOU WERE CONCURRENTLY RETIRED AS A REGULAR ENLISTED MAN AND AS A RESERVE WARRANT OFFICER, W-4, YOU ENCLOSED A STATEMENT EXECUTED BY YOU AT THE TIME OF YOUR APPLICATION FOR RETIREMENT AND YOU INVITE OUR ATTENTION TO PARAGRAPH 2 OF THAT STATEMENT. THAT PARAGRAPH DISCLOSES THAT YOU HELD AN APPOINTMENT AS A RESERVE OF THE AIR FORCE IN THE GRADE OF CWO, W-4, AND YOU REQUESTED THAT "I BE ASSIGNED TO THE RETIRED RESERVE SECTION AND PLACED ON THE USAF RETIRED RESERVE LIST IN MY COMMISSIONED OR WARRANT OFFICER STATUS CONCURRENTLY WITH MY RETIREMENT AS A REGULAR ENLISTED MAN." YOU SAY THAT THIS REQUEST WAS ACCOMPLISHED AS SHOWN IN YOUR RETIREMENT ORDERS IN THE BLOCK "ASSIGNED TO RETIRED RESERVE." YOU STATE THAT THIS CANNOT POSSIBLY REFER TO YOUR ENLISTED STATUS.

THE LAW (10 U.S.C. 8914) UNDER WHICH YOU RETIRED PROVIDES THAT A REGULAR ENLISTED MAN, AT THE TIME OF RETIREMENT, "BECOMES A MEMBER OF THE AIR FORCE RESERVE" AND HE IS REQUIRED TO PERFORM SUCH ACTIVE DUTY AS MAY BE PRESCRIBED UNTIL HIS ACTIVE SERVICE, PLUS HIS INACTIVE SERVICE AS A MEMBER OF THE AIR FORCE RESERVE, EQUALS 30 YEARS. THE STATEMENT YOU EXECUTED SEEMS TO BE IN ACCORDANCE WITH THAT LAW AND THE IMPLEMENTING REGULATIONS REQUIRING ASSIGNMENT TO THE RETIRED RESERVE SECTION UPON RETIREMENT AS PROVIDED IN PARAGRAPH 2-10, AIR FORCE MANUAL 35-7 AS FOLLOWS:

"RESERVE STATUS OF RETIRED MEMBERS. A MEMBER OF THE AIR FORCE RESERVE WHO IS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 8911 IS AUTOMATICALLY TRANSFERRED TO THE RETIRED RESERVE IN ACCORDANCE WITH 10 U.S.C. 274 (1), AS AMENDED. IT IS AIR FORCE POLICY THAT ANY OTHER MEMBER WHO RETAINS OR ACQUIRES STATUS AS A MEMBER OF THE AIR FORCE RESERVE IN CONNECTION WITH RETIREMENT WILL ALSO BE ASSIGNED TO THE RETIRED RESERVE. UNLESS SUCH MEMBER HAS ALREADY BEEN TRANSFERRED TO THE RETIRED RESERVE PRIOR TO APPLYING FOR VOLUNTARY RETIREMENT, HE WILL BE REQUIRED TO APPLY FOR TRANSFER OR ASSIGNMENT TO THE RETIRED RESERVE CONCURRENTLY WITH SUBMITTING HIS APPLICATION FOR VOLUNTARY RETIREMENT. A REGULAR ENLISTED MEMBER OF THE AIR FORCE WHO IS RETIRED UNDER 10 U.S.C. 8914 IS REQUIRED BY THAT LAW TO SERVE AS A MEMBER OF THE AIR FORCE RESERVE UNTIL HIS ACTIVE SERVICE, PLUS HIS INACTIVE SERVICE AS A MEMBER OF THE AIR FORCE RESERVE, EQUALS 30 YEARS. DURING THE ENTIRE PERIOD OF HIS INACTIVE SERVICES AS A MEMBER OF THE AIR FORCE RESERVE, HE ALSO RETAINS HIS STATUS AS A RETIRED ENLISTED MEMBER OF THE REGULAR AIR FORCE."

IT WILL BE SEEN THAT THE STATEMENT EXECUTED BY YOU MERELY REQUESTED THAT YOU BE ASSIGNED TO THE RETIRED RESERVE SECTION IN YOUR WARRANT OFFICER GRADE, W-4, CONCURRENTLY WITH "YOUR RETIREMENT AS A REGULAR ENLISTED MAN." SUCH ASSIGNMENT, IN ITSELF, DOES NOT ESTABLISH A RIGHT TO RETIRED PAY IN THE GRADE OF WARRANT OFFICER.

WHILE YOUR RETIREMENT ORDERS DO NOT AFFIRMATIVELY STATE THE GRADE IN WHICH YOU WERE ASSIGNED TO THE RETIRED RESERVE, THEY CLEARLY SHOW THAT YOU WERE RETIRED AS A REGULAR ENLISTED MAN IN THE GRADE OF "SMSGT," SENIOR MASTER SERGEANT. THE RETIREMENT LAW THERE CITED, 10 U.S.C. 8914, APPLIES TO "REGULAR ENLISTED MEMBERS," NOT TO WARRANT OFFICERS. NEITHER THE ABOVE -MENTIONED STATEMENT EXECUTED BY YOU NOR YOUR RETIREMENT ORDERS, AS APPROVED BY THE SECRETARY OF THE AIR FORCE, SUPPORT YOUR VIEW THAT YOU WERE CONCURRENTLY RETIRED AS A WARRANT OFFICER, W-4, AND IT IS CLEAR THAT YOU PERFORMED NO ACTIVE DUTY WHICH ENTITLED YOU TO RETIREMENT IN THAT GRADE.

SINCE YOU DID NOT MEET THE 5-YEAR ACTIVE DUTY REQUIREMENT AS A WARRANT OR COMMISSIONED OFFICER AS PRESCRIBED IN RULE 7, TABLE 3-1, AIR FORCE MANUAL 35-7, COPY ENCLOSED, WHICH REGULATION HAS THE FORCE AND EFFECT OF LAW, THE SECRETARY OF THE AIR FORCE PROPERLY RETIRED YOU AS A REGULAR ENLISTED MAN UNDER 10 U.S.C. 8914. ACCORDINGLY, THE ACTION TAKEN IN OUR DECISION OF FEBRUARY 12, 1970, IS AFFIRMED.