B-160453, AUGUST 4, 1967, 47 COMP. GEN. 87

B-160453, AUGUST 4, 1967, 47 COMP. GEN. 87

MILITARY PERSONNEL - RESERVE OFFICERS TRAINING CORPS - PROGRAMS AT EDUCATIONAL INSTITUTIONS - EMPLOYMENT OF RETIRED MEMBERS A RETIRED MEMBER OF THE UNIFORMED SERVICES PERFORMING INSTRUCTIONAL AND ADMINISTRATIVE DUTIES PURSUANT TO 10 U.S.C. 2031 (D) IN CONNECTION WITH THE JUNIOR ROTC PROGRAM WHO HAD WAIVED HIS MILITARY RETIRED PAY IN ORDER TO HAVE HIS MILITARY SERVICE ADDED TO HIS FEDERAL CIVILIAN SERVICE TO OBTAIN A GREATER CIVIL SERVICE RETIREMENT ANNUITY IS ENTITLED UNDER SECTION 2031 (D) (1) TO THE DIFFERENCE BETWEEN THE MILITARY RETIRED PAY TO WHICH HE WOULD BE ENTITLED BUT FOR THE WAIVER AND THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY, EVEN THOUGH THE DIFFERENCE WHEN ADDED TO THE MEMBER'S CIVIL SERVICE RETIREMENT ANNUITY EXCEEDS THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY, THE MEMBER'S WAIVER NOT CHANGING HIS QUALIFICATION FOR EMPLOYMENT IN THE ROTC PROGRAM, NOR BARRING HIM FROM PARTICIPATION IN THE PROGRAM, AND, THEREFORE, THE "RETIRED PAY" HE WOULD BE ENTITLED TO BUT FOR THE WAIVER IS WITHIN THE CONTEMPLATION OF THE TERM AS USED IN 10 U.S.C. 2031 (D).

TO THE SECRETARY OF DEFENSE, AUGUST 4, 1967:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 26, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO THE "ADDITIONAL AMOUNT" WHICH A RETIRED MEMBER OF THE UNIFORMED SERVICES PERFORMING INSTRUCTIONAL DUTIES IN CONNECTION WITH THE JUNIOR ROTC PROGRAM IS ENTITLED TO RECEIVE WHERE HE HAS WAIVED HIS MILITARY RETIRED PAY IN ORDER TO HAVE HIS MILITARY SERVICE ADDED TO HIS FEDERAL CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER CIVIL SERVICE RETIREMENT ANNUITY.

THE PARTICULAR QUESTION ON WHICH THE DECISION IS REQUESTED AS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 398 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE IS AS FOLLOWS:

"A RETIRED MEMBER (NONCOMMISSIONED OR COMMISSIONED OFFICER OR MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE OF APPROVED QUALIFICATIONS) HAS ELECTED TO WAIVE HIS MILITARY RETIRED PAY AND HAVE HIS MILITARY SERVICE ADDED TO HIS CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER BENEFIT IN HIS CIVIL SERVICE RETIREMENT ANNUITY. ASSUMING SUCH A MEMBER IS NOW RECEIVING CIVIL SERVICE RETIRED PAY IN AN AMOUNT GREATER THAN HIS MILITARY RETIRED PAY, WHAT WOULD BE THE PROPER BASIS FOR COMPUTING THE AMOUNT HE MAY RECEIVE FOR PERFORMING INSTRUCTIONAL AND ADMINISTRATIVE DUTIES IN CONNECTION WITH THE JUNIOR ROTC PROGRAM IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 2031/D/? "

SECTION 2031/D), 10 U. S. CODE, PROVIDES WITH RESPECT TO THE EMPLOYMENT OF RETIRED MEMBERS BY QUALIFIED INSTITUTIONS IN CONNECTION WITH THE JUNIOR ROTC PROGRAM:

"/D) INSTEAD OF, OR IN ADDITION TO, DETAILING NONCOMMISSIONED AND COMMISSIONED OFFICERS ON ACTIVE DUTY UNDER SUBSECTION (C) (1), THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY AUTHORIZE QUALIFIED INSTITUTIONS TO EMPLY, AS ADMINISTRATORS AND INSTRUCTORS IN THE PROGRAM, RETIRED NONCOMMISSIONED AND COMMISSIONED OFFICERS, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, WHOSE QUALIFICATIONS ARE APPROVED BY THE SECRETARY AND THE INSTITUTION CONCERNED AND WHO REQUEST SUCH EMPLOYMENT, SUBJECT TO THE FOLLOWING:

"/1) RETIRED MEMBERS SO EMPLOYED ARE ENTITLED TO RECEIVE THEIR RETIRED OR RETAINER PAY AND AN ADDITIONAL AMOUNT OF NOT MORE THAN THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY, AND ONE HALF OF THAT ADDITIONAL AMOUNT SHALL BE PAID TO THE INSTITUTION CONCERNED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FROM FUNDS APPROPRIATED FOR THAT PURPOSE.

"/2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH A RETIRED MEMBER IS NOT, WHILE SO EMPLOYED, CONSIDERED TO BE ON ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PURPOSE.'

IT SEEMS TO US THAT THE BASIC QUESTION HERE INVOLVED IS WHETHER IN ENACTING LEGISLATION WHICH REFERS TO "RETIRED MEMBERS" AND "THEIR RETIRED PAY," THE CONGRESS INTENDED THAT SUCH STATUTORY PROVISIONS SHOULD APPLY ONLY TO PERSONS WHO ACTUALLY ARE IN RECEIPT OF MILITARY RETIRED PAY. THAT QUESTION IS ANSWERED IN THE NEGATIVE, LITTLE DIFFICULTY IS ENCOUNTERED IN DETERMINING THE PROPER BASIS FOR COMPUTING THE AMOUNT PAYABLE TO SUCH A RETIRED MEMBER FOR PERFORMING INSTRUCTIONAL OR ADMINISTRATIVE DUTIES IN CONNECTION WITH THE JUNIOR ROTC PROGRAM.

SINCE, UNDER APPLICABLE PROVISIONS OF LAW AND REGULATIONS, A RETIRED MEMBER MAY WAIVE HIS MILITARY RETIRED PAY FOR THE PURPOSE OF ADDING HIS MILITARY SERVICE TO HIS CIVILIAN SERVICE AND THUS OBTAIN A GREATER BENEFIT IN HIS CIVILIAN SERVICE RETIREMENT ANNUITY (41 COMP. GEN. 460), AND SINCE SUCH WAIVER WOULD NOT CHANGE IN ANY WAY THE SKILLS AND EXPERIENCE (OBTAINED AS A RESULT OF HIS MILITARY SERVICE) WHICH WOULD QUALIFY HIM FOR EMPLOYMENT IN THE PROGRAM, IT IS OUR VIEW THAT THE CONGRESS DID NOT INTEND TO BAR FROM PARTICIPATION IN THE PROGRAM IN AN INSTRUCTIONAL OR ADMINISTRATIVE CAPACITY THOSE RETIRED MEMBERS WHO HAVE SO WAIVED THEIR RETIRED PAY. THEY ARE STILL "RETIRED MEMBERS" IN THE SENSE THAT THEY EARNED A RIGHT TO AND HAVE RECEIVED RETIRED PAY BY VIRTUE OF THEIR MILITARY SERVICE AND THE AMOUNT OF THE RETIRED PAY THEY WOULD BE RECEIVING BUT FOR THEIR WAIVER, CAN BE VIEWED AS "THEIR RETIRED PAY.'

YOUR QUESTION IS ANSWERED BY STATING THAT THE MEMBER INVOLVED WOULD BE ENTITLED TO THE DIFFERENCE BETWEEN THE MILITARY RETIRED PAY TO WHICH HE WOULD BE ENTITLED BUT FOR HIS WAIVER AND THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY. WHILE THAT DIFFERENCE PLUS HIS CIVIL SERVICE RETIREMENT ANNUITY WILL BE MORE THAN SUCH ACTIVE DUTY PAY AND ALLOWANCES, IT MUST NOT BE OVERLOOKED THAT HE HAS EARNED ADDITIONAL RETIREMENT BENEFITS BY VIRTUE OF HIS CIVILIAN EMPLOYMENT. AN OTHERWISE QUALIFIED RETIRED PERSON EMPLOYED IN THE PROGRAM WHO IS ENTITLED TO AND IS RECEIVING SEPARATE CIVIL SERVICE ANNUITY AND MILITARY RETIREMENT BENEFITS WOULD NOT LOSE THE FORMER BY ACCEPTING SUCH EMPLOYMENT. COMPENSATION FOR INSTRUCTIONAL OR ADMINISTRATIVE SERVICES UNDER SECTION 2031/D) IS PHRASED IN TERMS OF LAWS RELATING TO MILITARY SERVICE AND IT MUST BE COMPUTED ON THAT BASIS.