B-147232, OCT. 6, 1961

B-147232, OCT. 6, 1961

TO LIEUTENANT COMMANDER E. L. TRUAX, SC, USN:

YOUR LETTER OF JULY 27, 1961, FORWARDED BY THE COMPTROLLER OF THE NAVY ON SEPTEMBER 19, 1961, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-606, REQUESTS A DECISION AS TO WHETHER VICE ADMIRAL EDWARD C. HOLDEN, USNR (RETIRED), 43828, IS ENTITLED TO CREDIT FOR ADDITIONAL POINTS IN COMPUTING HIS RETIRED PAY BY VIRTUE OF ACTIVE DUTY PERFORMED SUBSEQUENT TO HIS RETIREMENT UNDER CHAPTER 67, 10 U.S.C.

YOU STATE THAT ADMIRAL HOLDEN QUALIFIED FOR RETIRED PAY UNDER 10 U.S.C. 1331 ON JANUARY 17, 1956, THE DATE HE BECAME 60 YEARS OF AGE, BUT THAT HE WAS VALIDLY RETAINED UNDER 10 U.S.C. 676 UNTIL APRIL 1, 1958, ON WHICH DATE HE WAS PLACED ON THE RETIRED LIST WITH THE RANK OF REAR ADMIRAL (UPPER HALF) AND WITH A TOTAL OF 3825 POINTS UPON WHICH TO COMPUTE HIS RETIRED PAY. HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF VICE ADMIRAL PURSUANT TO 10 U.S.C. 6150, WITH SERVICE FOR BASIC PAY PURPOSES OF 39 YEARS, 7 MONTHS AND 15 DAYS. EFFECTIVE MARCH 13, 1961, HE WAS ORDERED TO TEMPORARY ACTIVE DUTY IN THE GRADE OF REAR ADMIRAL AND RELEASED FROM SUCH DUTY ON APRIL 20, 1961, AFTER SERVING FOR A PERIOD OF 1 MONTH AND 8 DAYS. THE BUREAU OF NAVAL PERSONNEL HAS INDICATED THAT HE IS ENTITLED TO 41 ADDITIONAL POINTS FOR RETIRED PAY PURPOSES FOR THE ACTIVE DUTY PERFORMED. YOU EXPRESS DOUBT AS TO WHETHER IT CAN BE CONSIDERED THAT HIS TEMPORARY ACTIVE DUTY WAS PERFORMED WHILE IN A RETENTION STATUS UNDER 10 U.S.C. 676, SINCE, IN THE CASE CONSIDERED IN 38 COMP. GEN. 159 THE OFFICER CONCERNED WAS RETIRED UNDER TITLE III OF PUBLIC LAW 810 APPROVED JUNE 29, 1948, AND WAS RETAINED ON ACTIVE DUTY, WHEREAS ADMIRAL HOLDEN WAS PLACED ON THE RETIRED LIST AND SUBSEQUENTLY RECALLED TO ACTIVE DUTY.

IN B-136124, AUGUST 26, 1958, 38 COMP. GEN. 159, CITED BY YOU, 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.'

A QUESTION SIMILAR TO THAT HERE INVOLVED WAS CONSIDERED IN B-146276 DATED AUGUST 18, 1961, 41 COMP. GEN. - AND WE THERE HELD THAT THE PROPER TERMINAL DATE FOR THE COMPUTATION OF ADDITIONAL CREDITS ACQUIRED BY THE OFFICER THERE CONCERNED, AFTER HIS QUALIFICATION FOR RETIREMENT PAY, WAS THE DATE HE WAS TRANSFERRED TO THE RETIRED RESERVE FOLLOWING THE TERMINATION OF HIS RETENTION UNDER 10 U.S.C. 676. WE SAID THAT SUCH VIEW WAS CONSISTENT WITH 10 U.S.C. 1334 (B) WHICH IS TO THE EFFECT THAT TIME SPENT AFTER RETIREMENT OR TRANSFER TO THE RETIRED RESERVE MAY NOT BE CREDITED IN ANY COMPUTATION OF YEARS OF SERVICE UNDER CHAPTER 67, 10 U.S.C. WE SAID FURTHER THAT THE ONLY PROVISION FOR INCREASING THE RETIRED PAY OF A PERSON WHO QUALIFIES UNDER CHAPTER 67 IS 10 U.S.C. 676 AND SINCE THAT SECTION REFERS ONLY TO PERSONS "RETAINED" ON ACTIVE DUTY OR IN SERVICE IN A RESERVE COMPONENT OTHER THAN THAT LISTED IN SECTION 1332 (B), THE CREDITING OF SERVICE AFTER THE MEMBER'S RETENTION UNDER SECTION 676 WAS TERMINATED BY HIS TRANSFER TO THE RETIRED RESERVE, WAS TOO DOUBTFUL FOR US TO AUTHORIZE ANY ADDITIONAL CREDITS. SEE ALSO 38 COMP. GEN. 647, ANSWER TO QUESTION 1 (C).

IN THE ABSENCE OF A HOLDING BY A COURT OF COMPETENT JURISDICTION CONTRARY TO THE VIEWS EXPRESSED ABOVE, WE CONCLUDE THAT ADMIRAL HOLDEN IS NOT ENTITLED TO ADDITIONAL SERVICE CREDIT FOR ACTIVE DUTY PERFORMED AFTER APRIL 1, 1958, THE DATE HE WAS TRANSFERRED TO THE RETIRED RESERVE.