B-145849, AUGUST 22, 1961, 41 COMP. GEN. 131

B-145849, AUGUST 22, 1961, 41 COMP. GEN. 131

PAY - RETIRED - RESERVISTS - APPOINTMENT VALIDITY - NONREGULAR SERVICE - COMPONENT MEMBERSHIP--- RETENTION AFTER AGE AND SERVICE QUALIFICATION - REINSTATEMENT AFTER TERMINATION OF STATUS A RETIRED OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS MORE THAN 65 YEARS OF AGE ON JULY 18, 1960, WHEN HE WAS APPOINTED A COLONEL IN THE UNITED STATES ARMY RESERVE SO THAT HE COULD QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 3911, WAS INELIGIBLE BY REASON OF AGE FOR SUCH APPOINTMENT UNDER 10 U.S.C. 3843 (B), AND IMPLEMENTING REGULATIONS, WHICH IN EFFECT PROHIBIT, AFTER JULY 1, 1960, APPOINTMENT OF ANY PERSON WHO HAS REACHED THE AGE OF 60, AS A COLONEL IN THE UNITED STATES ARMY RESERVE, AND, THEREFORE, THE MEMBER COULD NOT BE EFFECTIVELY RETIRED AS A RESERVE OFFICER UNDER 10 U.S.C. 3911 AND IS NOT ENTITLED TO RETIRED PAY ON THE BASIS OF A HIGHER TEMPORARY GRADE. ALTHOUGH A RETIRED RESERVE OFFICER WHOSE APPOINTMENT AS A COLONEL IN THE UNITED STATES ARMY RESERVE AFTER RESIGNATION FROM A COMMISSION AS BRIGADIER GENERAL IN THE RETIRED RESERVE WAS WITHOUT EFFECT BECAUSE OF HIS AGE SO THAT HE COULD NOT BE RETIRED AS A RESERVE UNDER 10 U.S.C. 3911, THE MEMBER WOULD BE ENTITLED, UPON APPLICATION, FOR RETIRED PAY AS A BRIGADIER GENERAL UNDER 10 U.S.C. 1331-1337, THERE BEING NO REQUIREMENT UNDER THE PROVISIONS IN 10 U.S.C. 1331-1337 THAT THE PERSON MAKING APPLICATION FOR RETIRED PAY, AND WHO IS OTHERWISE QUALIFIED, BE A MEMBER OF ANY COMPONENT OF THE ARMED SERVICES. IN THE ABSENCE OF A CERTIFICATION BY THE SECRETARY OF THE ARMY THAT A BRIGADIER GENERAL WAS BEING RETAINED ON ACTIVE DUTY OR IN THE SERVICE IN A RESERVE COMPONENT WITHIN THE MEANING OF 10 U.S.C. 676, A RETIRED RESERVE OFFICER MAY NOT HAVE THE SERVICE PERFORMED FROM THE DATE OF QUALIFICATION FOR RETIREMENT PAY UNDER 10 U.S.C. 1331-1337 TO THE DATE HE RESIGNED FROM RETIRED RESERVES TO ACCEPT A COMMISSION AS COLONEL IN THE UNITED STATES ARMY USED TO INCREASE THE RETIRED PAY TO WHICH HE WOULD BE ENTITLED ON THE BASIS OF SERVICE AND GRADE AT THE TIME OF QUALIFICATION, AND SINCE THE OFFICER COULD NOT HAVE BEEN RETAINED IN THE SERVICE AFTER BEING TRANSFERRED TO THE RETIRED RESERVE, THE ACTIVE SERVICE, PERFORMED AS A COLONEL IN THE ARMY OF THE UNITED STATES, MAY NOT BE COUNTED FOR SERVICE CREDIT UNDER 10 U.S.C. 1331-1337.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, AUGUST 22, 1961:

BY FIRST ENDORSEMENT DATED MAY 11, 1961, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED APRIL 25, 1961, WITH ENCLOSURES, SUBMITTING FOR AN ADVANCE DECISION A VOUCHER IN THE AMOUNT OF $142.50 STATED IN FAVOR OF BRIGADIER GENERAL CHARLES H. GRAHL, 10234562, REPRESENTING THE DIFFERENCE IN RETIRED PAY OF A COLONEL AND A BRIGADIER GENERAL WITH HIS LENGTH OF SERVICE FOR THE MONTH OF SEPTEMBER 1960. THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED D.O. NO. 576 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU HAVE FURNISHED THE FOLLOWING INFORMATION CONCERNING GENERAL GRAHL. HE WAS APPOINTED BRIGADIER GENERAL IN THE NATIONAL GUARD OF THE UNITED STATES EFFECTIVE APRIL 21, 1934, AND PERFORMED ACTIVE FEDERAL SERVICE IN THAT GRADE FOR THE PERIODS DECEMBER 8, 1940, TO JULY 15, 1947, AND FEBRUARY 27 TO MARCH 5, 1949, TOTALING 6 YEARS 7 MONTHS AND 15 DAYS. WAS REDUCED TO THE RANK OF COLONEL AT HIS OWN REQUEST ON SEPTEMBER 1, 1950, SO THAT HE COULD BE CALLED TO ACTIVE DUTY AS STATE DIRECTOR, SELECTIVE SERVICE, STATE OF IOWA, AND HE SERVED IN THAT GRADE FROM SEPTEMBER 29, 1950, TO JUNE 30, 1955, WHEN, BY REASON OF AGE, HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF BRIGADIER GENERAL UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087 (NOW 10 U.S.C. 1331-1337) WITH ENTITLEMENT TO RETIREMENT PAY IN THAT GRADE EFFECTIVE JULY 1, 1955. BY ORDERS DATED JUNE 30, 1955, THE SECRETARY OF THE ARMY DETERMINED THAT GENERAL GRAHL HAD PERFORMED THE REQUISITE 20 YEARS OF SATISFACTORY FEDERAL SERVICE. THE PAPERS ACCOMPANYING THE REQUEST FOR DECISION SHOW TWO DATES OF BIRTH FOR GENERAL GRAHL. DD FORM 424, PREPARED JUNE 30, 1955, SHOWS JUNE 23, 1894, AS HIS DATE OF BIRTH, WHEREAS A LIKE FORM PREPARED AUGUST 2, 1960, SHOWS HIS DATE OF BIRTH AS SEPTEMBER 23, 1894. USING EITHER DATE OF BIRTH, HE WOULD HAVE BEEN MORE THAN 60 YEARS OF AGE ON JULY 1, 1955. IN OCTOBER 1955, GENERAL GRAHL RESIGNED HIS COMMISSION AS BRIGADIER GENERAL, RETIRED RESERVE, IN ORDER TO ACCEPT APPOINTMENT AND ENTER ON ACTIVE DUTY AS A COLONEL IN THE ARMY OF THE UNITED STATES, AND ON JUNE 23, 1960, HAVING COMPLETED 20 YEARS OF ACTIVE SERVICE, HE REQUESTED APPOINTMENT IN THE GRADE OF COLONEL IN THE UNITED STATES ARMY RESERVE IN ORDER THAT HE COULD RETIRE UNDER THE PROVISIONS OF 10 U.S.C. 3911. IT IS REPORTED THAT HE WAS SO APPOINTED ON JULY 18, 1960, AT WHICH TIME HE WAS MORE THAN 65 YEARS OF AGE, AND RETIRED ON SEPTEMBER 1, 1960, IN THE GRADE OF COLONEL. ON THAT DATE HE WAS TRANSFERRED TO THE UNITED STATUTES ARMY RESERVE ( RETIRED RESERVE).

ATTACHED TO THE FILE IS A COPY OF LETTER OF JANUARY 27, 1961, FROM GENERAL GRAHL'S ATTORNEY SETTING FORTH THE CONTENTION THAT, SINCE GENERAL GRAHL HAD SERVED IN THE GRADE OF BRIGADIER GENERAL IN THE FEDERAL SERVICE FOR MORE THAN 6 YEARS, HE SHOULD HAVE BEEN RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3963 (A), AS CONSTRUED BY THE COURT OF CLAIMS IN THE CASE OF GRAYSON V. UNITED STATES, 137 CT.1CL. 779, IN THE GRADE OF BRIGADIER GENERAL AND ENTITLED TO RECEIVE RETIRED PAY BASED ON THE PAY OF THAT GRADE.

SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, WAS REPEALED AND REENACTED AS 10 U.S.C. 3963 (A) BY THE ACT OF AUGUST 10, 1956, 70A STAT. 230, AND, AS AMENDED BY THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1437, 1489, NOW READS AS FOLLOWS:

A REGULAR COMMISSIONED OFFICER WHO IS RETIRED, OR A RESERVE COMMISSIONED OFFICER WHO IS RETIRED OR TO WHOM RETIRED PAY IS GRANTED, IS ENTITLED TO A RETIRED GRADE EQUAL TO THE HIGHEST TEMPORARY GRADE IN THE ARMY IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, FOR NOT LESS THAN SIX MONTHS.

IT IS CLEAR THAT AS A PREREQUISITE TO ENTITLEMENT TO THE BENEFITS OF THE ABOVE-QUOTED PROVISIONS OF LAW, A RESERVE OFFICER MUST HAVE BEEN RETIRED OR DETERMINED TO BE ENTITLED TO RECEIVE RETIRED PAY PURSUANT TO AN APPROPRIATE PROVISION OF LAW WHICH IS APPLICABLE TO HIM. AS INDICATED ABOVE, THE ACTION WITH RESPECT TO GENERAL GRAHL'S RETIREMENT IN 1960 WAS TAKEN UNDER THE PROVISIONS OF 10 U.S.C. 3911, WHICH READS AS FOLLOWS:

THE SECRETARY OF THE ARMY MAY, UPON THE OFFICER'S REQUEST, RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE ARMY WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THIS TITLE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER. PURPORTEDLY, GENERAL GRAHL WAS APPOINTED A COLONEL IN THE UNITED STATES ARMY RESERVE ON JULY 18, 1960, IN ORDER TO QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 3911. BASED ON INFORMATION ATTACHED TO THE VOUCHER, IT APPEARS THAT AT THE TIME OF THAT APPOINTMENT HE WAS MORE THAN 65 YEARS OF AGE. THE PROVISIONS OF 10 U.S.C. 3843 (B) ARE AS FOLLOWS:

EXCEPT AS PROVIDED IN SECTION 3845 OF THIS TITLE, AFTER JULY 1, 1960, EACH COMMISSIONED OFFICER IN AN ACTIVE STATUS IN A RESERVE GRADE BELOW BRIGADIER GENERAL SHALL, ON THE LAST DAY OF THE MONTH IN WHICH HE BECOMES 60 YEARS OF AGE---

(1) BE TRANSFERRED TO THE RETIRED RESERVE, IF HE IS QUALIFIED AND APPLIES THEREFOR; OR

(2) IF HE IS NOT QUALIFIED OR DOES NOT APPLY THEREFOR, BE DISCHARGED FROM HIS RESERVE APPOINTMENT. THE PROVISIONS OF 10 U.S.C. 3845 DO NOT APPEAR APPLICABLE TO THIS CASE. SEE, ALSO, PARAGRAPH 25 OF ARMY REGULATION NO. 140-100, DATED MAY 17, 1956, AND PARAGRAPHS 15 AND 16 OF ARMY REGULATION NO. 140-160, DATED MAY 25, 1959, WHICH, IN EFFECT, PROHIBIT THE APPOINTMENT AFTER JULY 1, 1960, OF ANY PERSON WHO HAS REACHED THE AGE OF 60, AS COLONEL IN THE UNITED STATES ARMY RESERVE.

WE HAVE FOUND NO STATUTORY PROVISIONS WHICH MAKE THE FOREGOING REGULATIONS AND LAW INAPPLICABLE TO GENERAL GRAHL. HENCE, IT APPEARS THAT BY REASON OF HIS AGE HE WAS INELIGIBLE FOR APPOINTMENT AS A COLONEL IN THE UNITED STATES ARMY RESERVE ON JULY 18, 1960, AND, THEREFORE, IT IS BELIEVED THAT HE COULD NOT BE EFFECTIVELY RETIRED AS A RESERVE OFFICER UNDER THE PROVISIONS OF 10 U.S.C. 3911. IN VIEW OF THAT CONCLUSION, NO QUESTION ARISES AS TO HIS ENTITLEMENT TO THE RETIRED PAY OF A BRIGADIER GENERAL WITHIN THE HOLDING OF THE GRAYSON CASE.

IN CONSIDERING GENERAL GRAHL'S PRESENT RIGHTS TO RETIRED PAY UNDER OTHER PROVISIONS OF LAW, IT APPEARS THAT HIS RESIGNATION AS BRIGADIER GENERAL IN THE RETIRED RESERVE ON OCTOBER 11, 1955, WAS SOLELY FOR THE PURPOSE OF ACCEPTING APPOINTMENT AS A COLONEL IN THE ARMY OF THE UNITED STATES AND ENTERING ON ACTIVE DUTY IN SUCH GRADE. WHILE THERE APPEARS TO HAVE BEEN NO AUTHORITY FOR HIS APPOINTMENT AS COLONEL IN THE UNITED STATES ARMY RESERVE ON JULY 18, 1960, BECAUSE OF HIS AGE, THERE IS NO REQUIREMENT, UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337, THAT THE PERSON MAKING APPLICATION FOR RETIRED PAY THEREUNDER AND WHO IS OTHERWISE QUALIFIED, BE A MEMBER OF ANY COMPONENT OF THE ARMED SERVICES. SEE 28 COMP. GEN. 510; 29 ID. 520, TOP OF PAGE 522. IT IS OUR VIEW THAT, UPON APPLICATION, GENERAL GRAHL WOULD BE ENTITLED UNDER 10 U.S.C. 1331-1337 TO RETIRED PAY EFFECTIVE SEPTEMBER 1, 1960, AS A BRIGADIER GENERAL.

IT IS NOTED, HOWEVER, THAT GENERAL GRAHL'S NAME DOES NOT APPEAR ON THE LISTS OF PERSONS CERTIFIED BY THE SECRETARY OF THE ARMY TO HAVE BEEN "RETAINED ON ACTIVE DUTY, OR IN SERVICE IN A RESERVE COMPONENT" WITHIN THE MEANING OF 10 U.S.C. 676. SEE B-138452 DATED DECEMBER 22, 1960, AND B- 138452 DATED JULY 13, 1959. IN THE ABSENCE OF A RETENTION IN AN ACTIVE STATUS UNDER THAT SECTION, SERVICE PERFORMED BY GENERAL GRAHL FROM THE DATE HE QUALIFIED FOR RETIREMENT PAY UNDER 10 U.S.C. 1331-1337 AND ENDING JUNE 30, 1955, MAY NOT BE USED TO INCREASE THE RETIRED PAY TO WHICH HE WOULD BE ENTITLED ON THE BASIS OF HIS SERVICE AND GRADE AT TIME OF QUALIFICATION. WE KNOW OF NO LAW WHICH WOULD PERMIT THE PERIOD DURING WHICH HE SERVED ON ACTIVE DUTY AS A COLONEL, ARMY OF THE UNITED STATES, FROM OCTOBER 12, 1955, TO AUGUST 31, 1960, TO BE COUNTED FOR SERVICE CREDIT FOR THE PURPOSES OF 10 U.S.C. 1331 1337. SEE 10 U.S.C. 1334 (B) WHICH PROVIDES THAT TIME SPENT AFTER RETIREMENT OR TRANSFER TO THE RETIRED RESERVE MAY NOT BE CREDITED IN ANY COMPUTATION OF YEARS OF SERVICE UNDER THOSE SECTIONS. THE PROVISIONS OF 10 U.S.C. 676, WHICH PROVIDE FOR CREDIT FOR SERVICE FOR PERIODS A MEMBER IS RETAINED ON ACTIVE DUTY WITH HIS CONSENT AND BY ORDER OF THE SECRETARY CONCERNED AFTER QUALIFYING FOR RETIRED PAY, DO NOT APPEAR TO BE FOR APPLICATION TO THAT PERIOD SINCE GENERAL GRAHL COULD NOT HAVE BEEN RETAINED AFTER BEING TRANSFERRED TO THE RETIRED RESERVE ON JULY 1, 1955. SEE 38 COMP. GEN. 146, 152-163, ANSWER TO QUESTIONS 6 AND 7.

THERE BEING NO LEGAL BASIS FOR PAYMENT OF THE VOUCHER WHICH ACCOMPANIED YOUR REQUEST, IT IS BEING RETAINED HERE.