B-113387, SEPTEMBER 26, 1958, 38 COMP. GEN. 246

B-113387, SEPTEMBER 26, 1958, 38 COMP. GEN. 246

MILITARY PERSONNEL - PAY - RETIRED - RETENTION AFTER AGE AND SERVICE QUALIFICATION THE AUTHORITY IN 10 U.S.C. 676 FOR THE RETENTION OF MEMBERS OF THE UNIFORMED SERVICES IN THE SERVICE AFTER QUALIFICATION BY REASON OF AGE AND SERVICE FOR RETIRMENT PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. ESTABLISHES AN EXCEPTION TO THE GENERAL REQUIREMENTS OF OTHER PROVISIONS OF LAW FOR MANDATORY DISCHARGE OR TRANSFER BECAUSE OF AGE AND, THEREFORE, MEMBERS ARE ENTITLED TO CREDIT FOR SUCH SERVICE. 38 COMP. GEN. 146, MODIFIED.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 26, 1958:

FURTHER CONSIDERATION HAS BEEN GIVEN TO QUESTION 5 (D) IN DECISION TO YOU, DATED AUGUST 25, 1958, B-113387, 38 COMP. GEN. 146. SUCH QUESTION RELATES TO RETENTION OF MEMBERS OF RESERVE COMPONENTS FOR SERVICE BEYOND AGE 60 AND THE CREDITS TO BE ALLOWED FOR SUCH SERVICE.

QUESTION 5 (D) IS QUOTED FROM THE ABOVE DECISION AS FOLLOWS:

IN ACCORDANCE WITH 10 U.S.C. 676 A PERSON WHO HAS QUALIFIED FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10, U.S.C., WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, MAY BE RETAINED IN SERVICE AND CREDITED WITH SUCH SERVICE FOR ALL PURPOSES:

D. ASSUMING CONSENT AND A SECRETARIAL ORDER FOR RETENTION PURSUANT TO 10 U.S.C. 676 IN THE CASE OF A PERSON ALREADY QUALIFIED FOR RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S.C., MAY SUCH PERSON CONTINUE TO ACCUMULATE SERVICE CREDIT AND INCREASE HIS MONTHLY BASIC PAY FACTOR (10 U.S.C. 1401) WITHOUT LIMITATION AS TO AGE UNTIL SUCH ORDER IS TERMINATED BY THE SECRETARY?

IT IS PROVIDED IN 10 U.S.C. 676 THAT:

ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDEER CHAPTER 67 OF THIS TITLE MAY, WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, BE RETAINED ON ACTIVE DUTY, OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN SECTION 1332 (B) OF THIS TITLE. A MEMBER SO RETAINED SHALL BE CREDITED WITH THAT SERVICE FOR ALL PURPOSES.

THE PROVISIONS OF 50 U.S.C. 1393 (A), SUPP. V, 1952 USED; ARE AS FOLLOWS:

A RESERVE OFFICER, IF OTHERWISE QUALIFIED, SHALL BE TRANSFERRED TO THE RETIRED RESERVE ON THE DATE UPON WHICH HE BECOMES SIXTY-TWO YEARS OF AGE, EXCEPT THAT A RESERVE OFFICER INITIALLY APPOINTED PRIOR TO JANUARY 1, 1953, AT SUCH AGE THAT COMPLETION OF TWENTY YEARS OF SATISFACTORY FEDERAL SERVICE FOR RETIREMENT PURPOSES CANNOT BE ACCOMPLISHED BY AGE SIXTY-TWO MAY BE RETAINED IN AN ACTIVE STATUS NOT LATER THAN THE DATE UPON WHICH HE BECOMES SIXTY-FOUR YEARS OF AGE.

IN ANSWER TO QUESTION 5 (D), WE QUOTED SECTION 1393 (A) AND STATED THAT:

QUESTION 5 (D) IS ANSWERED BY SAYING THAT THE RETENTION IS SUBJECT TO THE RESTRICTIONS OF SECTION 1393 (A), QUOTED ABOVE.

SECTION 1393 (A) PERTAINS TO MEMBERS OF THE COAST GUARD RESERVE AND WAS CITED IN THE DISCUSSION IN COMMITTEE ACTION NO. 213, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, PRESENTING THE QUESTIONS WHICH WERE CONSIDERED IN THE DECISION OF AUGUST 25, 1958. OTHER SECTIONS OF 50 U.S.C., SUPP. V, 1952 USED., PERTAIN TO MANDATORY DISCHARGE OR TRANSFER TO THE RETIRED RESERVE OF MEMBERS OF OTHER RESERVE COMPONENTS BY REASON OF REACHING CERTAIN AGES. SECTION 1263 PERTAINS TO THE ARMY RESERVE, SECTION 1312 TO THE NAVAL RESERVE AND MARINE CORPS RESERVE, AND SECTION 1353 TO THE AIR FORCE RESERVE.

AFTER FURTHER CONSIDERATION OF QUESTION 5 (D) AND OUR ANSWER THERETO, AS STATED IN THE DECISION OF AUGUST 25, 1958, WE ARE OF THE OPINION THAT 10 U.S.C. 676 ESTABLISHES AN EXCEPTION TO THE GENERAL REQUIREMENTS OF OTHER PROVISIONS OF LAW FOR MANDATORY DISCHARGE OR TRANSFER BECAUSE OF AGE AND THAT QUESTION 5 (D) SHOULD HAVE BEEN ANSWERED IN THE AFFIRMATIVE. THE DECISION OF AUGUST 25, 1958, IS MODIFIED ACCORDINGLY.