B-138452, APRIL 1, 1959, 38 COMP. GEN. 647

B-138452, APRIL 1, 1959, 38 COMP. GEN. 647

MILITARY PERSONNEL - RETIRED PAY - RETENTION IN THE SERVICE AFTER QUALIFICATION FOR RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 A MEMBER OF THE UNIFORMED SERVICES WHO WAS RETIRED FOLLOWING A PERIOD OF ACTIVE DUTY AFTER QUALIFYING FOR RETIREMENT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 10 U.S.C. 1331, MAY ELECT AS A RETIREMENT DATE THE DATE OF QUALIFICATION OR ANY SUBSEQUENT DATE DURING THE PERIOD OF ACTIVE DUTY. A MEMBER OF THE UNIFORMED SERVICES WHO WAS RETIRED FOLLOWING RETENTION IN AN ACTIVE DUTY STATUS UNDER 10 U.S.C. 676 AFTER QUALIFYING FOR RETIREMENT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 10 U.S.C. 1331, IS ENTITLED TO CREDIT IN THE COMPUTATION OF TITLE III RETIRED PAY FOR ALL SERVICE AND PROMOTIONS, REGARDLESS OF WHETHER THE SERVICE WAS PERFORMED BEFORE OR AFTER THE DATE ELECTED AS THE EFFECTIVE DATE OF RETIREMENT; HOWEVER, THE MEMBER IS NOT ENTITLED TO CREDIT FOR SERVICE AFTER QUALIFICATION IF HE WAS NOT VALIDLY RETAINED ON ACTIVE DUTY UNDER 10 U.S.C. 676, BUT, IRRESPECTIVE OF THE VALID RETENTION, THE MEMBER MAY KEEP THE PAY AND ALLOWANCES ACCRUED DURING THE ACTIVE DUTY BUT MAY NOT RECEIVE RETIRED PAY FOR THE SAME PERIOD. A MEMBER OF THE UNIFORMED SERVICES WHO WAS RETIRED FOLLOWING ASSIGNMENT TO A RESERVE COMPONENT AND AFTER QUALIFICATION FOR RETIREMENT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 AND WHO SUBSEQUENTLY PERFORMED ACTIVE DUTY IS ENTITLED TO CREDIT FOR SERVICE IN A RESERVE COMPONENT, PROVIDED THAT THE MEMBER WAS VALIDLY RETAINED IN A RESERVE COMPONENT UNDER 10 U.S.C. 676; HOWEVER, IF THE MEMBER WAS VALIDLY RETAINED IN A RESERVE COMPONENT UNDER 10 U.S.C. 676 BUT PERFORMED THE ACTIVE DUTY AFTER RETENTION CEASED, HE IS ONLY ENTITLED TO CREDIT FOR SERVICE AS OF THE DATE OF SUCH CESSATION. ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES WHO WAS RETIRED FOLLOWING A PERIOD OF ENLISTED SERVICE IN A REGULAR COMPONENT AFTER QUALIFYING FOR RETIREMENT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 IS NOT ENTITLED TO TITLE III RETIRED PAY CREDIT FOR SERVICE AS AN ENLISTED MAN UNDER 10 U.S.C. 676, WHICH AUTHORIZES ADDITIONAL RETIRED PAY CREDITS ONLY WHILE IN A RESERVE STATUS, THE MEMBER MAY RETAIN THE PAY AND ALLOWANCES FOR THE ENLISTED SERVICE BUT MAY NOT RECEIVE RETIRED PAY FOR THE SAME PERIOD. A MEMBER OF THE UNIFORMED SERVICES WHO IS RETAINED ON ACTIVE DUTY PURSUANT TO 10 U.S.C. 676, AFTER QUALIFYING FOR RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, MAY SUBSEQUENT TO RETIREMENT ELECT AN EARLIER DATE FOR RETIREMENT WHICH IS WITHIN OR PRIOR TO SUCH PERIOD OF RETENTION. A MEMBER OF THE UNIFORMED SERVICES WHO QUALIFIED FOR RETIREMENT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, BUT WHO CONTINUED AS A MEMBER OF A RESERVE UNIT AND THEN WAS RETIRED, MAY NOW ELECT AS A RETIREMENT DATE THE DATE OF QUALIFICATION OR ANY SUBSEQUENT DATE DURING THE PERIOD IN WHICH HE REMAINED A MEMBER OF A RESERVE COMPONENT. A MEMBER OF THE UNIFORMED SERVICES WHO WAS RETIRED FOLLOWING A PERIOD OF RETENTION AS A MEMBER OF A RESERVE COMPONENT UNDER 10 U.S.C. 676 AFTER QUALIFYING FOR RETIREMENT UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 10 U.S.C. 1331, IS ENTITLED TO CREDIT IN THE COMPUTATION OF TITLE III RETIRED PAY FOR LONGEVITY, PROMOTIONS AND POINTS FOR DRILLS AND FOR ACTIVE DUTY FOR TRAINING, REGARDLESS OF WHETHER THE SERVICE WAS PERFORMED BEFORE OR AFTER THE DATE ELECTED AS THE EFFECTIVE DATE OF RETIREMENT; HOWEVER, THE MEMBER IS NOT ENTITLED TO CREDIT FOR SERVICE AFTER QUALIFICATION IF HE WAS NOT VALIDLY RETAINED IN A RESERVE COMPONENT UNDER 10 U.S.C. 676, BUT PAY FOR DRILLS AND PAY AND ALLOWANCES FOR TRAINING MAY BE RETAINED BUT RETIRED PAY UNDER TITLE III MAY NOT BE PAID FOR SAME DAY ON WHICH DRILL OR ACTIVE DUTY PAY WAS RECEIVED. THE AUTHORITY VESTED IN THE SECRETARIES OF THE MILITARY DEPARTMENTS TO RETAIN MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY OR IN ONE OF CERTAIN RESERVE COMPONENTS UNDER 10 U.S.C. 676 AFTER THE MEMBERS HAVE QUALIFIED FOR RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 WAS INTENDED TO HAVE LIMITED APPLICATION TO PERMIT THE SECRETARIES TO ORDER A MEMBER RETAINED IN THE SERVICE BECAUSE OF SOME SPECIAL QUALIFICATION, ABILITY, OR SITUATION; HOWEVER, IN THOSE CASES WHERE MEMBERS HAVE BEEN RETAINED AFTER QUALIFICATION AND THERE IS A DOUBT AS TO WHETHER RETENTION WAS EFFECTED BY A SPECIFIC ORDER OR INSTRUCTION, NO QUESTION WILL BE RAISED.

TO THE SECRETARY OF DEFENSE, APRIL 1, 1959:

REFERENCE IS MADE TO LETTER OF JANUARY 13, 1959, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS OF ENTITLEMENT TO RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, SUPERSEDED BY CHAPTER 67 AND OTHER PROVISIONS OF TITLE 10, U.S.C. AS ENACTED AUGUST 10, 1956. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 231, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT WAS HELD IN B-113387, AUGUST 25, 1958, 38 COMP. GEN. 146, THAT INDIVIDUALS QUALIFIED TO RECEIVE RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, MIGHT, WHEN APPLYING FOR SUCH PAY, ELECT TO RECEIVE IT EFFECTIVE AS OF THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF QUALIFICATION FOR SUCH PAY OR AS OF THE FIRST DAY OF ANY MONTH SUBSEQUENT TO THAT DATE (ANSWER TO QUESTION 3), WHETHER OR NOT SERVICE CREDITS WERE ACQUIRED AFTER DATE OF QUALIFICATION (ANSWER TO QUESTIONS 4 AND 9); AND, AS TO PERSONS ALREADY RETIRED WITHOUT HAVING BEEN GIVEN AN OPPORTUNITY TO ELECT AN EFFECTIVE DATE FOR RETIRED PAY, THAT "IN CONNECTION WITH A CLAIM FOR RETROACTIVE TITLE III RETIRED PAY, THE MEMBER OR FORMER MEMBER MAY SUBSEQUENTLY ELECT THE DATE UPON WHICH HE ORIGINALLY WAS RETIRED AS THE EFFECTIVE DATE OF HIS RETIREMENT, RELINQUISHING ALL CLAIMS BASED ON AN EARLIER EFFECTIVE DATE" (ANSWER TO QUESTION 13).

OMITTING AS UNNECESSARY ANY REFERENCE HERE TO THE GENERALLY WELL UNDERSTOOD OPERATION OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, THE ANSWERS CITED IN THE ABOVE PARAGRAPH MAY BE SUMMARIZED BY SAYING THAT WHEN APPLYING FOR TITLE III RETIRED PAY A MEMBER OR FORMER MEMBER MAY ELECT TO HAVE SUCH PAY ACCRUE EFFECTIVE AS OF THE DATE OF QUALIFICATION THEREFOR OR AS OF ANY SUBSEQUENT DATE; AND THAT A MEMBER OR FORMER MEMBER WHO, PRIOR TO THE PRACTICE OF PERMITTING THE ELECTION OF EFFECTIVE RETIREMENT DATES, WAS GRANTED TITLE III RETIRED PAY AS OF SOME DATE SUBSEQUENT TO DATE OF QUALIFICATION, MAY NOW ELECT TO AFFIRM SUCH SUBSEQUENT DATE AS THE EFFECTIVE DATE OF RETIREMENT OR MAY ELECT THE DATE OF QUALIFICATION AS OF THE EFFECTIVE DATE OF RETIREMENT. THERE WAS NO INTIMATION IN 38 COMP. GEN. 146 THAT A MEMBER WHO HAD ONCE EXERCISED AN ELECTION AS TO THE EFFECTIVE DATE OF HIS RETIREMENT COULD THEREAFTER CHANGE SUCH EFFECTIVE DATE. AND THE ONLY HOLDING IN THE DECISION AS TO MEMBERS WHO HAD BEEN GRANTED RETIREMENT PAY WITHOUT HAVING BEEN GIVEN ANY ELECTION AS TO THE EFFECTIVE DATE FOR SUCH PAY WAS THAT QUOTED ABOVE FROM THE ANSWER TO QUESTION 13, THAT IS, THAT AS TO SUCH MEMBERS WHO WERE PLACED ON THE RETIRED LIST AS OF A DATE SUBSEQUENT TO THE DATE OF QUALIFICATION, AN ELECTION NOW IS PERMISSIBLE AS TO WHETHER THE EFFECTIVE DATE FOR TITLE III RETIRED PAY SHALL BE THE DATE OF QUALIFICATION OR THE DATE OF TRANSFER TO THE RETIRED LIST. HOWEVER, IN VIEW OF THE CONCLUSIONS REACHED RESPECTING THE PRESENT QUESTIONS, THE RIGHT OF ELECTION OF AN EFFECTIVE DATE FOR TITLE III RETIRED PAY APPEARS TO BE OF IMPORTANCE MAINLY, IF NOT SOLELY, IN CONNECTION WITH DETERMINATIONS OF THE EFFECTIVE DATE FOR DEDUCTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 37 U.S.C. 371 NOTE, AS AMENDED, AND THE SUCCESSOR PROVISIONS IN 10 U.S.C. CHAP. 73.

IN THE PRESENT REQUEST FOR DECISION THE MEMBERS REFERRED TO WERE RETIRED FOLLOWING SERVICE AFTER DATE OF QUALIFICATION FOR RETIREMENT. WHETHER THE EFFECTIVE DATES FOR RETIRED PAY WERE ESTABLISHED AT THE MEMBERS' ELECTIONS IS NOT STATED. HOWEVER, IN PRELIMINARY DISCUSSIONS BETWEEN MEMBERS OF THE MILITARY PAY AND ALLOWANCE COMMITTEE AND REPRESENTATIVES OF OUR OFFICE IT WAS INDICATED THAT THE QUESTIONS TO BE PRESENTED WOULD RELATE TO MEMBERS WHO HAD BEEN RETIRED BUT HAD NOT BEEN GIVEN ANY OPPORTUNITY TO ELECT THE EFFECTIVE DATES OF THEIR RETIREMENT. THE QUESTIONS WILL BE CONSIDERED ON THAT BASIS.

THE QUESTIONS PRESENTED, WHICH HAVE BEEN SUBDIVIDED AND THE SUBDIVISIONS RELETTERED AS A MATTER OF CONVENIENCE, ARE SEPARATELY QUOTED AND ANSWERED BELOW:

QUESTION 1

A MEMBER QUALIFIED FOR RETIREMENT UNDER TITLE III OF THE ACT OF 29 JUNE 1948 (10 U.S.C. 1331) BUT CONTINUED TO SERVE ON ACTIVE DUTY AND WAS SUBSEQUENTLY RETIRED.

A. MAY THE MEMBER NOW ELECT AS A RETIREMENT DATE THE DATE OF QUALIFICATION OR ANY SUBSEQUENT DATE DURING THE PERIOD OF ACTIVE DUTY?

B. IF SO, WHAT ARE HIS RIGHTS WITH RESPECT TO RETENTION OF SERVICE FOR LONGEVITY, POINTS, PROMOTIONS AND EMOLUMENTS RECEIVED DURING THE PERIOD OF ACTIVE DUTY BOTH PRIOR TO AND SUBSEQUENT TO THE DATE HE ELECTS?

C. WOULD THE ANSWER BE THE SAME IF THE MEMBER WAS ASSIGNED TO A RESERVE UNIT AND SUBSEQUENTLY PERFORMED ACTIVE DUTY?

D. WOULD THE ANSWER BE THE SAME IF THE MEMBER WAS SERVING, OR SUBSEQUENTLY SERVED, AS AN ENLISTED MAN IN A REGULAR COMPONENT?

E. IF A MEMBER IS RETAINED ON ACTIVE DUTY UNDER 10 U.S.C. 676, MAY HE SUBSEQUENT TO RETIREMENT ELECT AN EARLIER DATE FOR RETIREMENT WHICH IS WITHIN OR PRIOR TO SUCH PERIOD OF RETENTION?

THE ANSWER TO QUESTION 13 IN 38 COMP. GEN. 146, 155, WAS PREDICATED ON THE BASIS THAT A MEMBER ALREADY RETIRED, WITHOUT HAVING BEEN ALLOWED TO ELECT THE EFFECTIVE DATE FOR HIS RETIREMENT, SHOULD BE GIVEN THE SAME ADVANTAGES OF SUCH AN ELECTION AS ARE NOW OFFERED TO PERSONS APPLYING FOR RETIREMENT.

ACCORDINGLY, QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE.

IN B-136124, AUGUST 26, 1958, 38 COMP. GEN. 159, IT WAS HELD THAT A MEMBER TRANSFERRED TO THE RETIRED LIST UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AND RETAINED ON ACTIVE DUTY UNDER SECTION 302 (E) OF THAT ACT, 62 STAT. 1087, WAS ENTITLED, UPON RELEASE FROM SUCH ACTIVE DUTY, TO HAVE HIS RETIRED PAY COMPUTED UNDER TITLE III WITH FULL CREDIT FOR THE ACTIVE DUTY PERFORMED DURING THE PERIOD OF RETENTION SUBSEQUENT TO DATE OF TRANSFER TO THE RETIRED LIST. SECTION 302 (E) OF THE 1948 ACT HAS BEEN CODIFIED AS 10 U.S.C. 676, WHICH PROVIDES THAT:

ANY PERSON WHO HAS QUALIFIED FOR RETIRED PAY UNDER 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.

TRANSFER TO THE RETIRED LIST AND THE GRANTING OF "RETIRED" PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, DOES NOT CONSTITUTE AN ORDINARY RETIREMENT SUCH AS THAT AUTHORIZED BY OTHER PROVISIONS OF LAW WHICH CONTEMPLATE, AS A USUAL THING, THE TRANSFER FROM AN ACTIVE-DUTY STATUS TO A RETIRED STATUS. COMPARE 23 COMP. GEN. 284, 286, AS TO OFFICERS OF THE ARMY GRANTED "RETIREMENT AY" UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 369A. FORMER MEMBERS, AS WELL AS MEMBERS, ARE ELIGIBLE FOR TITLE III RETIRED PAY. 28 COMP. GEN. 510. MEMBERSHIP IN A RESERVE COMPONENT IS NOT TERMINATED BY TRANSFER TO A RETIRED LIST UNDER THAT TITLE. SEE 38 COMP. GEN. 281, 284, ANSWER TO QUESTION 2, AND CASES THERE CITED. IT WOULD SEEM TO FOLLOW, ESPECIALLY IN THE LIGHT OF THE PROVISIONS OF 10 U.S.C. 676, THAT THE EFFECTIVE DATE OF TRANSFER TO A RETIRED LIST OR AWARD OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, IS NOT THE CONTROLLING DATE INSOFAR AS THE COMPUTATION OF SERVICE CREDITS, ETC., FOR RETIRED PAY PURPOSES UNDER THAT TITLE IS CONCERNED. APPARENTLY THE LAW INTENDS THAT GENERALLY THE DATE AFTER WHICH CREDITS FOR TITLE III RETIRED PAY MAY NOT BE ACQUIRED SHOULD NOT BE THE EFFECTIVE DATE OF TRANSFER TO THE RETIRED LIST BUT THE DATE OF QUALIFICATION FOR RETIRED PAY, THE RESTRICTION AS TO THE ACCUMULATION OF TITLE III RETIRED PAY SERVICE CREDITS, ETC., AFTER SUCH LATTER DATE BEING SUBJECT TO BUT ONE EXCEPTION, THAT IS, THE OPERATION OF 10 U.S.C. 676. SEE DIGEST OF OPINIONS, JUDGE ADVOCATES GENERAL OF THE ARMED FORCES, VOLUME 6, RETIREMENT, SECTION 69.25.

IF THE MEMBER IN QUESTION 1 (B) WAS NOT VALIDLY RETAINED ON ACTIVE DUTY UNDER 10 U.S.C. 676 AFTER THE DATE OF HIS QUALIFICATION FOR TITLE III RETIRED PAY, HE IS NOT ENTITLED TO CREDIT FOR ANY SERVICE AFTER THAT DATE IN COMPUTING SUCH RETIRED PAY. 6 DIG OPS, SUPRA. IF HE WAS VALIDLY RETAINED UNDER 10 U.S.C. 676, HE IS ENTITLED UPON RELEASE FROM ACTIVE DUTY TO COMPUTE HIS TITLE III RETIRED PAY WITH CREDIT FOR ALL SERVICE AND PROMOTIONS (IF AUTHORIZED FOR A MEMBER OVER 60 YEARS OF AGE ON ACTIVE DUTY) REGARDLESS OF WHETHER SUCH SERVICE WAS PERFORMED AND SUCH PROMOTION OR PROMOTIONS WERE MADE BEFORE OR AFTER THE DATE ELECTED BY HIM AS THE EFFECTIVE DATE OF HIS RETIREMENT.

WHETHER OR NOT THE MEMBER WAS VALIDLY RETAINED UNDER 10 U.S.C. 676, IF HIS ACTIVE-DUTY ORDERS WERE OTHERWISE PROPER, HE IS ENTITLED TO RETAIN ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD OF HIS ACTIVE DUTY BUT MAY NOT, OF COURSE, RECEIVE RETIRED PAY FOR THE SAME PERIOD.

QUESTION 1 (B) IS ANSWERED ACCORDINGLY.

IF THE MEMBER IN QUESTION 1 (C) WAS VALIDLY RETAINED IN SERVICE IN A RESERVE COMPONENT UNDER 10 U.S.C. 676, AND WHILE STILL SO RETAINED PERFORMED ACTIVE DUTY, HE IS ENTITLED UPON RELEASE FROM SUCH ACTIVE DUTY TO THE RETIRED PAY BENEFITS OUTLINED IN ANSWER TO QUESTION 1 (B) FOR A MEMBER RETAINED UNDER THAT SECTION. IF HE WAS VALIDLY RETAINED UNDER 10 U.S.C. 676, BUT THE ACTIVE DUTY WAS PERFORMED AFTER SUCH RETENTION CEASED, HE IS ENTITLED, AS OF THE DATE OF SUCH CESSATION, TO THE RETIRED PAY COMPUTATION BENEFITS OUTLINED IN THE ANSWER TO QUESTION 1 (B) FOR A MEMBER RETAINED UNDER 10 U.S.C. 676, BUT IS ENTITLED TO NO TITLE III RETIRED PAY INCREASE FOR ANY SERVICE OR PROMOTION AFTER THE RETENTION CEASED. IF HE WAS NOT RETAINED UNDER 10 U.S.C. 676, HE IS ENTITLED TO NO INCREASE IN TITLE III RETIRED PAY BENEFITS FOR ANY SERVICE AFTER DATE OF QUALIFICATION FOR RETIRED PAY UNDER THAT TITLE. COMPARE ANSWER TO QUESTION 1 (B).

WHETHER OR NOT THE MEMBER IN QUESTION 1 (C) WAS RETAINED UNDER 10 U.S.C. 676, IF HIS ORDERS TO ACTIVE DUTY WERE OTHERWISE PROPER HE IS ENTITLED TO RETAIN ACTIVE-DUTY PAY AND ALLOWANCES RECEIVED FOR THE PERFORMANCE OF SUCH DUTY, BUT, OF COURSE, HE WOULD NOT BE ENTITLED TO RETIRED PAY FOR THE PERIOD DURING WHICH HE PERFORMED AND WAS PAID FOR ACTIVE DUTY.

QUESTION 1 (C) IS ANSWERED ACCORDINGLY.

THE PROVISIONS OF 10 U.S.C. 676 PERTAIN ONLY TO THE EARNING OF ADDITIONAL TITLE III RETIRED PAY CREDITS WHILE IN A RESERVE STATUS. THE MEMBER REFERRED TO IN QUESTION 1 (D) IS NOT ENTITLED TO ANY TITLE III RETIRED PAY CREDIT FOR SERVICE AS AN ENLISTED MAN IN A REGULAR COMPONENT PERFORMED AFTER QUALIFICATION FOR TITLE III RETIRED PAY. HE MAY RETAIN PAY AND ALLOWANCES FOR THE PERIOD OF SUCH SERVICE, BUT CANNOT BE ENTITLED TO RETIRED PAY FOR THE SAME PERIOD.

QUESTION 1 (D) IS ANSWERED ACCORDINGLY.

QUESTION 1 (E) IS ANSWERED IN THE AFFIRMATIVE. COMPARE ANSWER TO QUESTION 1 (A).

QUESTION 2

A MEMBER QUALIFIED FOR RETIREMENT UNDER TITLE III OF THE ACT OF 29 JUNE 1948, SUPRA, BUT CONTINUED AS A MEMBER OF A RESERVE UNIT. HE WAS SUBSEQUENTLY RETIRED.

A. MAY THE MEMBER NOW ELECT AS A RETIREMENT DATE THE DATE OF QUALIFICATION OR ANY SUBSEQUENT DATE DURING THE PERIOD IN WHICH HE REMAINED A MEMBER OF A RESERVE COMPONENT?

B. IF SO, WHAT ARE HIS RIGHTS WITH RESPECT TO RETENTION OF SERVICE FOR LONGEVITY, POINTS, PROMOTION AND EMOLUMENTS RECEIVED FOR DRILLS AND/OR ACTIVE DUTY FOR TRAINING BOTH PRIOR TO AND SUBSEQUENT TO THE DATE HE ELECTS?

C. WOULD THE ANSWER BE THE SAME FOR PERIODS OF ACTIVE DUTY FOR TRAINING BOTH PRIOR AND SUBSEQUENT TO 10 AUGUST 1956?

D. IF A MEMBER IS RETAINED IN A RESERVE COMPONENT UNDER 10 U.S.C. 676, MAY HE SUBSEQUENT TO RETIREMENT ELECT AN EARLIER DATE FOR RETIREMENT WHICH IS WITHIN OR PRIOR TO SUCH PERIOD OF RETENTION?

QUESTION 2 (A) IS ANSWERED IN THE AFFIRMATIVE. COMPARE ANSWER TO QUESTION 1 (A).

INSOFAR AS COMPUTATION OF TITLE III RETIRED PAY IS CONCERNED, QUESTION 2 (B) IS ANSWERED ON THE SAME BASIS AND SUBJECT TO THE SAME QUALIFICATIONS AS THE ANSWER TO QUESTION 1 (B), THE COMPUTATION TO BE MADE AT THE TERMINATION OF THE MEMBER'S RETENTION UNDER 10 U.S.C. 676.

PAY FOR DRILLS AND PAY AND ALLOWANCES FOR ACTIVE DUTY FOR TRAINING, WHETHER PERFORMED BEFORE OR AFTER THE DATE NOW ELECTED AS THE EFFECTIVE DATE OF RETIREMENT, AND WHETHER OR NOT THE MEMBER WAS RETAINED UNDER 10 U.S.C. 676, MAY BE RETAINED, IF AUTHORIZED BY LAW WHEN SUCH SERVICES WERE PERFORMED. RETIRED PAY UNDER TITLE III MAY NOT BE PAID FOR A DAY ON WHICH A DRILL OR PERIOD OF INSTRUCTION WAS PERFORMED FOR WHICH PAY WAS RECEIVED OR FOR A PERIOD FOR WHICH PAY AND ALLOWANCES FOR ACTIVE DUTY FOR TRAINING WERE RECEIVED.

QUESTION 2 (B) IS ANSWERED ACCORDINGLY.

QUESTION 2 (C) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 (D) IS ANSWERED IN THE AFFIRMATIVE. COMPARE ANSWER TO QUESTION 1 (E).

THE ANSWERS STATED ABOVE WHICH INVOLVE THE APPLICATION OF THE PROVISIONS OF 10 U.S.C. 676 HAVE BEEN GIVEN ON THE BASIS THAT THE CONDITIONS OF THAT SECTION HAVE BEEN MET. ONE OF THOSE CONDITIONS IS THAT THE MEMBER BE RETAINED ON ACTIVE DUTY OR IN ONE OF CERTAIN RESERVE COMPONENTS "BY ORDER OF THE SECRETARY CONCERNED.' IT IS OUR OPINION THAT THE STATUTE WAS INTENDED TO HAVE A LIMITED APPLICATION TO PERMIT ADDITIONAL SERVICE CREDITS IN THOSE CASES IN WHICH, BECAUSE OF SOME SPECIAL QUALIFICATION, ABILITY OR SITUATION THE SECRETARY OF THE SERVICE CONCERNED ORDERS A MEMBER'S RETENTION. HENCE, UNLESS IT REASONABLY MAY BE CONCLUDED IN ANY CASE THAT THE MEMBER WAS "RETAINED" UNDER AN ORDER, INSTRUCTION OR REGULATION ISSUED BY THE SECRETARY, SERVICE PERFORMED BY THE MEMBER AFTER BECOMING QUALIFIED FOR RETIREMENT PAY IS NOT WITHIN THE SCOPE OF THAT STATUTE. WE REALIZE THAT THERE MAY BE CASES OF MEMBERS WHO HERETOFORE HAVE BEEN RETAINED ON EXTENDED ACTIVE DUTY (AFTER MEETING THE AGE AND SERVICE REQUIREMENTS FOR TITLE III RETIRED PAY) UNDER CIRCUMSTANCES GIVING RISE TO A POSSIBLE QUESTION WHETHER THEIR RETENTION WAS EFFECTED BY A SPECIFIC ORDER OR INSTRUCTION OF THE SECRETARY CONCERNED. WE ARE INCLINED TO RESOLVE SUCH PAST CASES SOMEWHAT LIBERALLY, THAT IS, TO RAISE NO QUESTION OF NONCOMPLIANCE WITH THE "ORDER" REQUIREMENTS OF 10 U.S.C. 676 IN ANY ORDINARY CASE WHERE THE ACTIVE DUTY WAS PERFORMED UNDER ORDERS OF COMPETENT AUTHORITY. HOWEVER, IT SEEMS OBVIOUS THAT THE AUTHORITY VESTED IN THE SECRETARIES CONCERNED BY 10 U.S.C. 676 WAS INTENDED TO BE USED SPARINGLY AND DISCRIMINATINGLY AND, HENCE, THERE IS SUGGESTED FOR YOUR CONSIDERATION THE DESIRABILITY OF ISSUING REGULATIONS WHICH WOULD STRICTLY CIRCUMSCRIBE THE CONDITIONS UNDER WHICH RETENTIONS UNDER 10 U.S.C. 676 WOULD BE PERMITTED.

THE LAST PARAGRAPH UNDER THE HEADING " DISCUSSION" IN COMMITTEE ACTION NO. 231 IS AS FOLLOWS:

IF IT IS REQUIRED THAT THE PAYMENTS RECEIVED FOR ACTIVE DUTY TRAINING AND DRILLS PERFORMED BE RECOUPED, CERTAIN ADMINISTRATIVE PROBLEMS WILL ARISE. THE RECORDS OF THE DEPARTMENTS, IN MOST INSTANCES, SHOW ONLY THE NUMBER OF POINTS EARNED. THERE IS NO FACTUAL INFORMATION TO DEFINITELY INDICATE WHETHER OR NOT PAYMENT WAS RECEIVED. THEREFORE, IT WOULD APPEAR THAT EACH CLAIM WHERE THESE CIRCUMSTANCES EXIST SHOULD BE REFERRED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE FOR CERTIFICATION PRIOR TO PAYMENT IN ORDER THAT THE PAYROLLS OF THAT OFFICE MAY BE EXAMINED TO DETERMINE THE AMOUNTS TO BE DEDUCTED FROM THE RETROACTIVE ADJUSTMENT OF RETIRED PAY.