B-113387, APRIL 10, 1956, 35 COMP. GEN. 563

B-113387, APRIL 10, 1956, 35 COMP. GEN. 563

PAY - RETIRED - EFFECTIVE DATE - SEAGRAVE CASE THE HOLDING IN 28 COMP. GEN. 321 AND 30 COMP. GEN. 287 THAT MEMBERS OF THE UNIFORMED SERVICES WHO QUALIFY FOR RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ARE ENTITLED TO RETIRED PAY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION OFR RETIRED PAY IS FILED WILL CONTINUE TO BE FOLLOWED UNTIL CERTAIN QUESTIONS RAISED AS A RESULT OF A CONTRARY CONCLUSION OF THE COURT OF CLAIMS IN SEAGRAVE V. UNITED STATES HAVE BEEN RESOLVED.

TO SECRETARY OF DEFENSE, APRIL 10, 1956:

REFERENCE IS MADE TO LETTER OF FEBRUARY 16, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036A, AS A RESULT OF THE DECISION OF THE/COURT OF CLAIMS IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790.

IN DECISIONS OF NOVEMBER 23, 1948, AND JANUARY 11, 1951, 28 COMP. GEN. 321 AND 30 COMP. GEN. 287, RESPECTIVELY, WE HELD, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, IS PAYABLE, IF OTHER CONDITIONS OF THE STATUTE ARE MET, FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION FOR SUCH RETIRED PAY IS FILED. DEPARTMENTAL REGULATIONS GIVE EFFECT TO THOSE DECISIONS IN THE ADMINISTRATION OF THE LAW.

CONTRARY TO THE CONCLUSION REACHED IN THE DECISIONS OF NOVEMBER 23, 1948, AND JANUARY 11, 1951, IT WAS HELD BY THE COURT OF CLAIMS IN THE SEAGRAVE CASE (JUDGMENT ENTERED JULY 12, 1955) THAT RETIRED PAY UNDER TITLE III IS PAYABLE FROM THE DATE OF ENACTMENT OF THE ACT IN THE CASE OF A PERSON WHO MET THE AGE AND SERVICE REQUIREMENTS FOR RETIRED PAY ON THAT DATE, EVEN THOUGH THE APPLICATION FOR RETIREMENT WAS NOT MADE UNTIL A LATER DATE.

THE COURT'S DECISION IN THE SEAGRAVE CASE DOES NOT APPEAR TO BE IN CONSONANCE WITH ITS CONCLUSION IN THE CASE OF PRICE V. UNITED STATES, 121 C.1CLS. 664, THAT THE PLAINTIFF'S RETIRED PAY WAS "TO BECOME EFFECTIVE AS OF THE DATE OF FILING OF THE APPLICATION," AND IT SEEMS TO REPRESENT A DEPARTURE FROM THE POSITION WHICH THE COURT HAD TAKEN IN CONSTRUING SOMEWHAT SIMILAR LANGUAGE IN THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 10 U.S.C. 947, AUTHORIZING THE RETIREMENT OF ENLISTED MEN AFTER THIRTY YEARS' SERVICE. SEE, FOR EXAMPLE, BLACKETT V. UNITED STATES, 81 C.1CLS. 884.

ALSO, SECTION 302 (E) OF TITLE III, 62 STAT. 1088, 10 U.S.C. 1036B, PROVIDES THAT:

ANY PERSON WHO, UPON ATTAINING THE AGE OF SIXTY YEARS, HAS QUALIFIED FOR RETIREMENT WITH PAY PURSUANT TO THIS TITLE, MAY, WITH HIS CONSENT AND BY ORDER OF THE COGNIZANT SECRETARY, BE RETAINED ON DUTY TO PERFORM FEDERAL SERVICE. ANY PERSON SO RETAINED SHALL BE CREDITED WITH EQUIVALENT PERIODS OF FEDERAL SERVICE FOR THE PERFORMANCE OF SUCH DUTIES.

UNDER THAT SECTION "ANY PERSON" QUALIFIED FOR RETIRED PAY MAY NEVERTHELESS WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED, BE RETAINED IN AN ACTIVE RESERVE STATUS AFTER HE HAS ATTAINED THE AGE OF 60 YEARS AND RECEIVE CREDIT FOR FEDERAL SERVICE PERFORMED WHILE SO RETAINED. SINCE CONGRESS THUS HAS GIVEN SUCH PERSONS SOME CHOICE OF REMAINING IN AN ACTIVE STATUS AFTER AGE 60, PERMITTING THEM TO THAT EXTENT TO DEFER THE RECEIPT OF RETIRED PAY UNTIL THEY DECIDE TO APPLY FOR IT, IT IS NOT CLEAR HOW A RIGHT TO RETIRED PAY MAY BE CONSIDERED AUTOMATICALLY TO ATTACH EFFECTIVE AT AGE 60, PROVIDED APPLICATION FOR SUCH RETIRED PAY BE MADE EVENTUALLY. MOREOVER, THE COURT'S CONCLUSION THAT THE RIGHT TO RETIRED PAY RETROACTIVELY ATTACHES EFFECTIVE AT AGE 60, WHEN A LATER APPLICATION IS FILED, WOULD SEEM TO PRECLUDE THE PAYMENT OF BASIC PAY AND ALLOWANCES FOR FEDERAL SERVICE PERFORMED BY PERSONS RETAINED IN ACTIVE RESERVE SERVICE FOR THE PERFORMANCE OF FEDERAL SERVICE AFTER ATTAINING THAT AGE.

THAT POINT APPARENTLY WAS NOT ADVANCED OR CONSIDERED BY THE COURT IN THE SEAGRAVE CASE. IT COULD, HOWEVER, BE CONSIDERED IN THE CASE OF DOLPH V. UNITED STATES, C.1CLS. NO. 480-54, NOW PENDING BEFORE THE COURT. ALSO, THE EFFECT OF SECTION 302 (E) IN SUCH RESPECT IS BEFORE THE COURT IN THE PENDING CASE OF ESTEVES V. UNITED STATES, C.1CLS. NO. 118-55. THE PLAINTIFF, ESTEVES, IS CLAIMING PAY FOR PERIODS OF "INSTRUCTION" OR "APPROPRIATE DUTY" PERFORMED WHILE RECEIVING RETIRED PAY UNDER TITLE III AND ALSO INCREASED RETIRED PAY FOR A PROMOTION RECEIVED AFTER RETIREMENT. THE COURT'S DECISION IN THAT CASE MAY AFFECT OR ALTER THE PRINCIPLE OF ITS DECISION IN THE SEAGRAVE CASE.

IT WOULD SEEM THAT THE BILL, H.R. 9752, RECENTLY INTRODUCED BY MR. VINSON, THE CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES OF THE HOUSE OF REPRESENTATIVES, TO OVERCOME THE EFFECT OF THE SEAGRAVE CASE IS INDICATIVE OF SOME DISAGREEMENT WITH THE COURT AS TO THE INTENT OF THE STATUTE. ANY EVENT CONGRESSIONAL ACTION ON THAT BILL MAY SERVE TO CLARIFY THE LEGISLATIVE INTENT IN THAT RESPECT.

ACCORDINGLY, WE WOULD NOT BE JUSTIFIED AT THIS TIME IN ACCEPTING THE COURT'S OPINION IN THE SEAGRAVE CASE AS A BASIS FOR ANY CHANGE IN THE POSITION WHICH WE HAVE TAKEN IN OUR PRIOR DECISIONS.