B-138684, MARCH 26, 1959, 38 COMP. GEN. 633

B-138684, MARCH 26, 1959, 38 COMP. GEN. 633

MILITARY PERSONNEL - ERRONEOUS PLACEMENT ON RETIRED LIST - INCLUSION OF NONCREDITABLE SERVICE - RETIRED PAY REFUND AN ARMY OFFICER WHO IS TRANSFERRED TO THE RETIRED LIST, WITH RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, BASED ON MORE THAN 20 YEARS OF CREDITABLE SERVICE, INCLUDING NATIONAL GUARD RESERVE AND INACTIVE NATIONAL GUARD SERVICE, WHICH SERVICE IS SUBSEQUENTLY DETERMINED TO HAVE BEEN IMPROPERLY INCLUDED IN THE ESTABLISHMENT OF THE OFFICER'S ELIGIBILITY FOR RETIRED PAY SO THAT HE DOES NOT HAVE ENOUGH SERVICE TO QUALIFY FOR RETIRED PAY, IS REGARDED AS HAVING BEEN PLACED ON THE TITLE III RETIRED LIST WITHOUT LAWFUL AUTHORITY AND THE ERRONEOUS PAYMENTS OF RETIRED PAY MAY NOT BE RETAINED.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, MARCH 26, 1959:

YOUR REQUEST IN LETTER OF JANUARY 19, 1959, FOR AN ADVANCE DECISION CONCERNING THE PAYMENT PROPOSED ON A VOUCHER STATED IN FAVOR OF CAPTAIN CHARLES F. MURPHY, REPRESENTING RETIRED PAY FOR THE PERIOD FROM NOVEMBER 1 TO DECEMBER 31, 1958, INCLUSIVE, UNDER TITLE III, ACT OF JUNE 29, 1948, 62 STAT. 1087-1091 (NOW CODIFIED IN SECTIONS 1331-1337, TITLE 10, U.S. CODE, 70A STAT. 102-104), WAS FORWARDED HERE WITH FIRST ENDORSEMENT DATED FEBRUARY 10, 1959, BY THE OFFICE OF CHIEF OF FINANCE, HEADQUARTERS, DEPARTMENT OF THE ARMY, UNDER D.O. NO. 397, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT CAPTAIN MURPHY WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST ON AUGUST 31, 1954, WITH RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE 1948 ACT, ON THE BASIS THAT HE HAD 22 YEARS, 8 MONTHS AND 10 DAYS' TOTAL SERVICE CREDITABLE FOR RETIREMENT AND THAT HE HAS BEEN PAID RETIRED PAY FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO OCTOBER 31, 1958, INCLUSIVE. IT ALSO APPEARS THAT THE ACTION TAKEN IN CAPTAIN MURPHY'S CASE WAS BASED ON AN OPINION RENDERED DECEMBER 19, 1951, BY THE JUDGE ADVOCATE GENERAL OF THE ARMY, HOLDING THAT SERVICE IN A NATIONAL GUARD RESERVE STATUS DURING THE PERIOD FROM JUNE 3, 1916, TO JUNE 14, 1933--- "IF THE MEMBER CONCERNED WAS " FEDERALLY RECOGNIZED" AS AN INDIVIDUAL OR WAS ASSIGNED TO A " FEDERALLY RECOGNIZED" NATIONAL GUARD UNIT DURING SUCH PERIOD, AND IF SUCH "FEDERAL SERVICE" WAS "SATISFACTORY" "--- CONSTITUTED FEDERAL SERVICE FOR THE PURPOSES OF AND AS DEFINED IN SECTIONS 302 (A), 10 U.S.C. 1036 (A) (1952 USED.) AND 306 (C), 10 U.S.C. 1036E (C) (1952 USED.) TITLE III, ACT OF JUNE 29, 1948.

THE RECORD INDICATES THAT ON SEPTEMBER 8, 1954, THE OPINION PREVIOUSLY RENDERED DECEMBER 19, 1951, WAS REVERSED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY WHO RULED THAT IN VIEW OF THE DECISION OF THE COURT OF CLAIMS IN WATERBURY V. UNITED STATES, 121 C. CLS. 691 (DECIDED APRIL 15, 52),"SERVICE IN THE NATIONAL GUARD RESERVE SHOULD NOT BE CREDITED FOR PURPOSES OF DETERMINING ELIGIBILITY FOR AND THE COMPUTATION OF RETIREMENT PAY UNDER TITLE III.' IN THAT CONNECTION, YOU STATE THAT THE JUDGE ADVOCATE GENERAL'S OPINION OF SEPTEMBER 8, 1954,"WAS PROSPECTIVELY APPLIED * * * IN DETERMINING TOTAL SERVICE FOR RETIREMENT PURSUANT TO TITLE III * * * AND THEREFORE DID NOT AFFECT THE RETIREMENT OF CAPTAIN MURPHY.'

YOU FURTHER STATE THAT EXCLUDING CAPTAIN MURPHY'S SERVICE AS A MEMBER OF THE NATIONAL GUARD RESERVE, 5 YEARS AND 24 DAYS, AND 1 YEAR, 4 MONTHS AND 6 DAYS REPRESENTING HIS MEMBERSHIP IN THE INACTIVE NATIONAL GUARD DURING THE PERIOD BEGINNING JUNE 15, 1933, A TOTAL OF 6 YEARS AND 5 MONTHS ERRONEOUSLY CREDITED AS QUALIFYING SERVICE,"RESULTS IN TOTAL SERVICE FOR RETIREMENT AS 16 YEARS, 3 MONTHS AND 10 DAYS, MAKING CAPTAIN MURPHY INELIGIBLE FOR PAYMENT OF RETIREMENT PAY.' THE RECORD INDICATES THAT THE RETIRED PAY DIVISION HAS BEEN REQUESTED BY THE ADJUTANT GENERAL OF THE ARMY "TO SUSPEND THE RETIRED PAY OF CAPTAIN MURPHY, PENDING FINAL DETERMINATION OF HIS STATUS ON THE RETIRED LIST.'

SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036A (A) (1952 USED.), IN PERTINENT PART PROVIDED THAT---

ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION * * * AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE * * * SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY: * * *

SECTION 302 (C), 62 STAT. 1088 (AS AMENDED BY THE ACT OF SEPTEMBER 7, 1949, 63 STAT. 693), 10 U.S.C. 1036A (C) (1952 USED.), PROVIDED AS FOLLOWS:

EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, SHALL BE DEEMED TO BE A YEAR OF SATISFACTORY FEDERAL SERVICE FOR THE PURPOSES OF THIS SECTION, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) OF SECTION 306 OF THIS ACT.

SECTION 306, 10 U.S.C. 1036E (1952 USED.), IN PERTINENT PART PROVIDED (FOR THE PURPOSES OF TITLE III) AS FOLLOWS:

(A) THE TERM " FEDERAL SERVICE" SHALL BE DEEMED TO INCLUDE ALL ACTIVE FEDERAL SERVICE AND ALL SERVICE IN A RESERVE COMPONENT OTHER THAN ACTIVE FEDERAL SERVICE, OR BOTH, EXCEPT AS PROVIDED IN (E) AND (F) BELOW.

(C) SERVICE IN A RESERVE COMPONENT, AS USED IN THIS TITLE, SHALL CONSIST OF SERVICE IN THE FOLLOWING ORGANIZATIONS, AND SHALL BE DEEMED TO BE FEDERAL SERVICE FOR THE PURPOSES OF THIS TITLE---

(1) THE NATIONAL GUARD OF THE UNITED STATES;

(2) THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES;

(3) THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933;

(4) A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD PRIOR TO 1933;

(5) THE OFFICERS' RESERVE CORPS AND THE ENLISTED RESERVE CORPS PRIOR TO THE ENACTMENT OF PUBLIC LAW 460, EIGHTIETH CONGRESS, APPROVED MARCH 25, 1948;

(6) THE ORGANIZED RESERVE CORPS;

(7) THE ARMY OF THE UNITED STATES WITHOUT COMPONENT;

(8) THE NAVAL RESERVE AND THE NAVAL RESERVE FORCE, EXCLUDING THOSE MEMBERS OF THE FLEET RESERVE AND THE FLEET NAVAL RESERVE TRANSFERRED THERETO AFTER COMPLETION OF SIXTEEN OR MORE YEARS OF ACTIVE NAVAL SERVICE;

(9) THE MARINE CORPS RESERVE AND THE MARINE CORPS RESERVE FORCE, EXCLUDING THOSE MEMBERS OF THE FLEET MARINE CORPS RESERVE TRANSFERRED THERETO AFTER COMPLETION OF SIXTEEN OR MORE YEARS OF ACTIVE NAVAL SERVICE;

(10) THE LIMITED SERVICE MARINE CORPS RESERVE;

(11) THE NAVAL MILITIA WHO HAVE CONFORMED TO THE STANDARDS PRESCRIBED BY THE SECRETARY OF THE NAVY; AND

(12) THE NATIONAL NAVAL VOLUNTEERS;

(13) THE AIR NATIONAL GUARD;

(14) THE AIR FORCE RESERVE ( OFFICERS OR ENLISTED SECTIONS);

(15) THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT; AND

(16) THE COAST GUARD RESERVE.

(E) WITH RESPECT TO PERSONNEL OF THE ARMY OR THE AIR FORCE, SERVICE IN THE INACTIVE NATIONAL GUARD OR AIR NATIONAL GUARD, IN A NON FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD OR AIR NATIONAL GUARD, OR IN AN INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS OR AN INACTIVE OFFICERS' SECTION OF THE AIR FORCE RESERVE SHALL NOT BE DEEMED TO BE FEDERAL SERVICE.

(F) SUBJECT TO THE PROVISIONS OF SUBSECTION (D) HEREOF, SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL AND MARINE CORPS RESERVES SHALL NOT BE DEEMED TO BE FEDERAL SERVICE.

IT WILL BE NOTED, AS POINTED OUT BY THE COURT IN WATERBURY V. UNITED STATES, 121 C. CLS. 691, 693, THAT " THE NATIONAL GUARD RESERVE IS NOT INCLUDED AMONG THE ORGANIZATIONS SPECIFICALLY ENUMERATED IN SECTION 306 (C).' THE COURT ALSO STATED (AT PAGE 694):

THUS WHENEVER CONGRESS HAS INTENDED SERVICE IN THE NATIONAL GUARD RESERVE TO BE CREDITED FOR PAY PURPOSES IT HAS EXPRESSLY NAMED THE NATIONAL GUARD RESERVE IN ADDITION TO THE NATIONAL GUARD, TREATING THEM IN SUCH INSTANCES AS DISTINCT ORGANIZATIONS. THIS WOULD INDICATE THAT CONGRESS DID NOT INTEND THAT THE ENUMERATION OF THE NATIONAL GUARD IN SECTION 306 (C) OF THE EQUALIZATION ACT OF 1948, SHOULD BE CONSTRUED TO INCLUDE THE NATIONAL GUARD RESERVE, AND THAT BY OMITTING THE NATIONAL GUARD RESERVE FROM SECTION 306 (C) CONGRESS INTENDED THAT SERVICE IN THE NATIONAL GUARD RESERVE AS SUCH WOULD NOT BE CONSIDERED SERVICE WITHIN THE MEANING OF THAT ACT.

THEREFORE, IN DETERMINING THE NUMBER OF YEARS OF "SATISFACTORY FEDERAL SERVICE" CREDITABLE TO CAPTAIN MURPHY UNDER THE PROVISIONS OF SECTION 302 (C) FOR THE PURPOSE OF ESTABLISHING HIS ELIGIBILITY UNDER SECTION 302 (A/- -- (20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE/-- HIS SERVICE IN THE NATIONAL GUARD RESERVE AND ALSO THE PERIOD OF HIS MEMBERSHIP IN THE INACTIVE NATIONAL GUARD (SEE SECTION 306 (E), 10 U.S.C. 1036E (E) (1952 USED.), ABOVE QUOTED) PROPERLY MAY NOT BE INCLUDED

AS INDICATED, THE EXCLUSION OF CAPTAIN MURPHY'S NATIONAL GUARD RESERVE AND INACTIVE NATIONAL GUARD SERVICE, TOTALING 6 YEARS AND 5 MONTHS, FROM THE 22 YEARS, 8 MONTHS AND 10 DAYS' SERVICE HERETOFORE CREDITED TO HIM, REDUCES THE TOTAL OF HIS CREDITABLE SERVICE TO 16 YEARS, 3 MONTHS AND 10 DAYS, OR LESS THAN THE MINIMUM OF 20 YEARS' SATISFACTORY FEDERAL SERVICE PRESCRIBED IN SECTION 302 (A).

CONSEQUENTLY, CAPTAIN MURPHY MUST BE HELD TO HAVE BEEN PLACED ON THE TITLE III RETIRED LIST WITHOUT LAWFUL AUTHORITY AND HIS STATUS WITH RESPECT TO THE ERRONEOUS PAYMENT OF RETIRED PAY MADE TO HIM FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO OCTOBER 31, 1958, INCLUSIVE, COMES SQUARELY WITHIN THE HOLDING OF OUR DECISION OF JUNE 28, 1950, B-93525 (29 COMP. GEN. 520). IN THE DECISION OF JUNE 28, 1950, IT WAS HELD (QUOTING THE SYLLABUS) THAT:

WHERE CERTAIN SERVICE WAS INCLUDED ERRONEOUSLY IN DETERMINING THE ENTITLEMENT TO RETIREMENT AND IN COMPUTING THE RATE OF RETIRED PAY OF RESERVISTS OR FORMER RESERVISTS TRANSFERRED TO THE ARMY OF THE UNITED STATES RETIRED LIST UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, SUCH PERSONS MAY NOT BE CONSIDERED AS IN THE STATUS OF DE FACTO RETIRED OFFICERS AND, THEREFORE, MAY NOT RETAIN THE ERRONEOUS PAYMENTS OF RETIRED PAY MADE TO THEM.

ACCORDINGLY, PAYMENT ON THE VOUCHER ACCOMPANYING YOUR REQUEST FOR DECISION IS NOT AUTHORIZED, AND SUCH VOUCHER WILL BE RETAINED HERE.