B-131372, MAY 21, 1957

B-131372, MAY 21, 1957

TO THE SECRETARY OF THE NAVY:

FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 1, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY REQUESTING A DECISION WHETHER UNDER CIRCUMSTANCES SET FORTH IN AN ACCOMPANYING MEMORANDUM OF NOVEMBER 27, 1956, FROM THE CHIEF OF NAVAL PERSONNEL TO THE NAVY MEMBER OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, LIEUTENANT COMMANDER FREDERICK C. STEINMETZ, USNR, CAN BE RETAINED IN AN ACTIVE STATUS UNDER AUTHORITY OF SECTION 412/A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, TO ACQUIRE SUFFICIENT SERVICE CREDITS TO QUALIFY FOR RETIREMENT BENEFITS UNDER THE PROVISIONS OF TITLE 10, U.S.C. SECTIONS 1331 AND 6017.

TO QUALIFY FOR RETIRED PAY BENEFITS UNDER THE CITED PROVISIONS OF TITLE 10, U.S.C. AN OFFICER OF THE NAVAL RESERVE MUST, IN ADDITION TO OTHER REQUIREMENTS, HAVE PERFORMED AT LEAST 20 YEARS OF SATISFACTORY FEDERAL SERVICE. IT IS STATED THAT COMMANDER STEINMETZ WAS BORN ON NOVEMBER 19, 1898, AND THAT AS OF JUNE 30, 1956, HE HAD A TOTAL OF 13 YEARS, 7 MONTHS AND 7 DAYS OF SATISFACTORY FEDERAL SERVICE. PROVIDED ALL OF HIS SERVICE IS SATISFACTORY FROM JULY 1, 1956, TO NOVEMBER 19, 1960, HIS 62ND BIRTHDAY, HE THEN WILL HAVE A TOTAL OF 17 YEARS, 11 MONTHS AND 26 DAYS OF SATISFACTORY FEDERAL SERVICE. SECTION 412/A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1171, PROVIDES AS FOLLOWS:

"A RESERVE OFFICER NOT PREVIOUSLY TRANSFERRED TO THE RETIRED RESERVE SHALL BE SO TRANSFERRED ON THE DATE ON WHICH HE BECOMES SIXTY TWO YEARS OF AGE. HOWEVER, A RESERVE OFFICER INITIALLY APPOINTED PRIOR TO JANUARY 1, 1953, WHO CANNOT COMPLETE TWENTY YEARS OF SATISFACTORY FEDERAL SERVICE FOR RETIREMENT PURPOSES BY AGE SIXTY-TWO, BUT CAN COMPLETE SUCH SERVICE BY AGE SIXTY-FOUR, MAY BE RETAINED IN AN ACTIVE STATUS NOT LATER THAN THE DATE ON WHICH HE BECOMES SIXTY-FOUR YEARS OF AGE.' WHILE IT IS APPARENT THAT COMMANDER STEINMETZ COULD NOT HAVE 20 YEARS OF CREDITABLE SERVICE ON HIS 64TH BIRTHDAY, THE QUESTION RAISED IN THE MEMORANDUM OF NOVEMBER 27, 1956, IS WHETHER THE OFFICER MIGHT BE CONSIDERED AS ABLE TO QUALIFY ON THE BASIS OF 20 YEARS OF SERVICE BY VIRTUE OF THE FACT THAT HIS RETIREMENT WOULD NOT BE EFFECTED UNTIL DECEMBER 1, 1960, BECAUSE THE RESERVE OFFICER PERSONNEL ACT OF 1954 IS SUBJECT TO THE UNIFORM RETIREMENT DATE ACT OF 1930, IT BEING SUGGESTED THAT IF HE WERE RETAINED IN AN ACTIVE STATUS UNTIL HE REACHES HIS 64TH BIRTHDAY, HE COULD COMPLETE THE REQUIRED 20 YEARS OF SERVICE AFTER THAT BIRTHDAY BUT PRIOR TO THE ACTUAL DATE OF HIS RETIREMENT ON DECEMBER 1, 1962.

THE QUOTED PROVISIONS OF SECTION 412/A) AUTHORIZE RETENTION IN AN ACTIVE STATUS OF ONLY THOSE RESERVE OFFICERS WHO CAN COMPLETE 20 YEARS OF SATISFACTORY FEDERAL SERVICE "BY AGE SIXTY-FOUR.' QUALIFICATION, THEREFORE, IS EXPRESSLY CONTINGENT UPON THE COMPLETION OF THE REQUIRED SERVICE BY THE 64TH BIRTH DATE RATHER THAN BY THE DATE OF ACTUAL RETIREMENT. CONSEQUENTLY, SINCE COMMANDER STEINMETZ CANNOT COMPLETE THE REQUIRED 20 YEARS OF SERVICE BY NOVEMBER 19, 1962, HIS 64TH BIRTHDAY, IT NECESSARILY FOLLOWS THAT HE CANNOT QUALIFY FOR RETIREMENT BENEFITS UNDER THE PROVISIONS OF TITLE 10, UNITED STATES CODE, SECTIONS 1331 AND 6017, ON THE BASIS OF SERVICE CREDITS GAINED BY RETENTION IN AN ACTIVE STATUS UNDER THE PROVISIONS OF SECTION 412/A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954.