B-147716, JANUARY 15, 1962, 41 COMP. GEN. 458

B-147716, JANUARY 15, 1962, 41 COMP. GEN. 458

PAY - RETIRED - ENLISTED MEMBERS IN REGULAR SERVICE - NON-REGULAR RETIREMENT ELIGIBILITY IN VIEW OF THE EVIDENCE OF A CONGRESSIONAL INTENT THAT THE RETIREMENT BENEFITS IN 10 U.S.C. 1331-1337 ARE APPLICABLE ONLY TO RESERVE MEMBERS AND FORMER MEMBERS NOT COVERED BY ANY OTHER RETIREMENT LAW, A RETIRED REGULAR ENLISTED MEMBER OF THE ARMY IN RECEIPT OF RETIRED PAY UNDER 10 U.S.C. 3914, ON THE BASIS OF AT LEAST 20 YEARS OF SERVICE BUT LESS THAN 30 YEARS OF SERVICE, MAY NOT UPON HIS OWN APPLICATION FOR DISCHARGE FROM THE RETIRED LIST QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 1331, EVEN THOUGH HE MAY MEET THE AGE AND SERVICE REQUIREMENTS OF THE STATUTE AND THAT BY REASON OF THE DISCHARGE FROM THE RETIRED LIST, UPON HIS OWN APPLICATION, HE THEREBY LOSES HIS RIGHT TO RETIRED PAY INCIDENT TO MILITARY SERVICE.

TO THE SECRETARY OF DEFENSE, JANUARY 15, 1962:

REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), DATED NOVEMBER 30, 1961, TRANSMITTING FOR DECISION COMMITTEE ACTION NO. 294 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE WHEREIN THE FOLLOWING QUESTIONS ARE PRESENTED:

A. MAY AN ENLISTED MAN RETIRED UNDER 10 U.S.C. 3914, AFTER AT LEAST 20 YEARS BUT LESS THAN 30 YEARS ACTIVE SERVICE, BE HONORABLY DISCHARGED FROM THE RETIRED LIST, UPON HIS OWN APPLICATION, AT THE TIME HE ATTAINS AGE 60, AND, IF OTHERWISE QUALIFIED, MAKE APPLICATION AND BE GRANTED RETIRED PAY UNDER 10 U.S.C. 1331?

B. IF ANSWER TO QUESTION A IS IN THE AFFIRMATIVE, WOULD SUCH PERSON DISCHARGED AFTER HIS 60TH BIRTHDAY BE ENTITLED TO RETIRED PAY UNDER 10 U.S.C. 1331 RETROACTIVE TO HIS EARLIEST ELIGIBILITY FOR THAT PAY OR ONLY FROM DATE OF DISCHARGE?

C. IF ANSWER TO QUESTION A IS AFFIRMATIVE, MAY SERVICE, IF ANY, PERFORMED IN THE ARMY RESERVE, ACTIVE OR INACTIVE, AFTER PLACEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3914 BE CREDITED UNDER 10 U.S.C. 1332 AND 1333.

D. MAY SERVICE PERFORMED IN THE ARMY RESERVE UNDER 10 U.S.C. 3914 SUBSEQUENT TO RETIREMENT UNDER THAT SECTION BE CREDITED AS QUALIFYING SERVICE IN DETERMINING ELIGIBILITY FOR RETIRED PAY UNDER 10 U.S.C. 1331 AND, SPECIFICALLY TOWARD MEETING THE "LAST 8 YEARS" CLAUSE PRESCRIBED IN SECTION 1331 (A) (3/?

10 U.S.C. 3914, ACT OF AUGUST 10, 1956, 70A STAT. 225, IS A RESTATEMENT, WITHOUT SUBSTANTIVE CHANGE, OF THE FIRST SENTENCE OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, 59 STAT. 539, 10 U.S.C. 948 (1952 USED.), THE STATED PURPOSE OF WHICH ACT WAS " TO STIMULATE VOLUNTEER ENLISTMENTS IN THE REGULAR MILITARY AND NAVAL ESTABLISHMENTS OF THE UNITED STATES.' 10 U.S.C. 1331-1337 OF THE SAME CODIFICATION ACT, 70A STAT. 102-104, RESTATED TITLE III OF THE " ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948," JUNE 29, 1948, 62 STAT. 1087- 1091, THE PRIMARY PURPOSE OF WHICH WAS TO PROVIDE AN INDUCEMENT TO MEMBERS OF RESERVE COMPONENTS TO REMAIN ACTIVE IN THE RESERVE OVER A LONG PERIOD OF TIME THEREBY PROVIDING A BETTER TRAINED AND MORE READY RESERVE TO MEET THE NEEDS OF OUR NATIONAL DEFENSE STRUCTURE. 10 U.S.C. 3914 RELATES TO RETIREMENT OF ENLISTED MEMBERS OF THE REGULAR ARMY, WHEREAS BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 1331 (A) (3) AND (4), 10 U.S.C. 1331-1337 REFERS EXCLUSIVELY TO THE GRANTING OF RETIRED PAY TO QUALIFIED MEMBERS AND FORMER MEMBERS OF THE NATIONAL GUARD AND RESERVE COMPONENTS OF THE MILITARY FORCES WHO ARE NOT ENTITLED TO RETIRED PAY UNDER ANY OTHER PROVISION OF LAW.

WHILE THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, HAVE BEEN REVISED, CODIFIED AND ENACTED INTO LAW AS SECTIONS 1331-1337, TITLE 10 OF THE U.S.C. THERE APPEARS TO BE NO EVIDENCE OF AN INTENTION ON THE PART OF THE CONGRESS TO CHANGE THE PURPOSE OF THE LAW AS IT WAS ORIGINALLY ENACTED. TITLE III ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIREMENT PAY FOR LONGEVITY TO MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS, CREDIT BEING AUTHORIZED FOR ACTIVE DUTY TOGETHER WITH LIMITED CREDIT FOR SERVICE OTHER THAN ACTIVE DUTY. IT WAS A STATUTE TO PROVIDE FOR RETIREMENT PAY AT A SPECIFIED AGE TO THOSE MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS WHO HAD CERTAIN SERVICE AND WHO THERETOFORE WERE NOT ELIGIBLE FOR RETIREMENT EXCEPT FOR DISABILITY.

SECTION 305 OF THE 1948 ACT, 10 U.S.C. 1036D (1952 USED.), THE PERTINENT PROVISIONS OF WHICH ARE NOW CONTAINED IN 10 U.S.C. 1331 (A) (4), PROVIDED IN PART AS FOLLOWS:

THE PROVISIONS OF THIS TITLE SHALL NOT BE APPLICABLE TO ANY OFFICER OR ENLISTED PERSON OF THE REGULAR OR RESERVE COMPONENTS OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS WHO, PRIOR TO OR SUBSEQUENT TO THE DATE OF ENACTMENT OF THIS TITLE, IS ENTITLED TO RECEIVE, OR IS RECEIVING UNDER ANY OTHER PROVISION OF LAW, RETIRED PAY FOR MILITARY OR NAVAL SERVICE, INCLUDING RETAINER PAY AS A TRANSFERRED MEMBER OF THE FLEET RESERVE. * *

THE QUOTED PROVISION IS SUBSTANTIALLY THE SAME AS THE CORRESPONDING SECTION ORIGINALLY CONTAINED IN H.R. 2744, 80TH CONGRESS, FOR WHICH THE FOLLOWING LANGUAGE WAS PROPOSED AS A SUBSTITUTE, BY JOHN H. HOEPPEL, MANAGER, NATIONAL DEFENSE PUBLICATION, ARCADIA, CALIFORNIA ( SEE HOUSE HEARINGS NO. 169 ON THIS BILL, PAGE 3544):

SECTION 305. THE PROVISIONS OF THIS TITLE SHALL BE APPLICABLE TO ANY OFFICER OR ENLISTED PERSON OF THE REGULAR OR RESERVE COMPONENTS OF THE ARMY, NAVY, OR MARINE CORPS WHO IS ENTITLED TO RECEIVE, OR IS RECEIVING, RETIRED PAY UNDER ANY OTHER PROVISION OF LAW, INCLUDING PAY AS A TRANSFERRED MEMBER OF THE FLEET RESERVE, PROVIDED SUCH OFFICER OR ENLISTED PERSON WAIVES RECEIPT OF SUCH PAY.

THE PURPOSE OF THE PROPOSED AMENDMENT WAS STATED AS FOLLOWS:

THE ELIMINATION OF THE EXISTING SECTION AND THE ACCEPTANCE OF THE SUGGESTED SECTION WILL MAKE IT POSSIBLE FOR AN INDIVIDUAL TO SELECT WHICH TYPE OF RETIRED PAY HE WISHES TO RECEIVE UNDER THE PROVISIONS OF THIS PURPOSED LEGISLATION. IT WILL BE OPTIONAL WITH HIM IF HE SHALL CONTINUE TO RECEIVE HIS PRESENT RETIRED PAY OR THE PAY OF A TRANSFERRED MEMBER OF THE FLEET RESERVE OR WHETHER HE WILL ACCEPT THE PAY AS PROVIDED IN TITLE III.

SINCE, AFTER DUE CONSIDERATION, THE PROPOSED AMENDMENT WAS NOT ACCEPTED, IT APPEARS THAT THE CONGRESS INTENDED, BY SECTION 305, TO MAKE TITLE III OF THE 1948 ACT APPLICABLE ONLY TO RESERVE MEMBERS AND FORMER MEMBERS WHO WERE NOT COVERED BY ANY OTHER RETIREMENT LAW. IN OTHER WORDS, IN ENACTING TITLE III, THE CONGRESS DID NOT INTEND TO ENHANCE THE RIGHTS OF PERSONS ON A RETIRED LIST OR OTHERS WHO MIGHT BECOME ENTITLED TO RETIRED PAY UNDER SOME OTHER PROVISIONS OF LAW, OR TO PROVIDE AN ALTERNATE METHOD OF COMPUTING RETIRED PAY IF CIRCUMSTANCES SHOULD MAKE A CHANGE ADVANTAGEOUS. ACCORDINGLY, IT IS OUR CONCLUSION THAT, NOTWITHSTANDING THE FACT THAT A RETIRED REGULAR ENLISTED MAN, UPON HIS OWN APPLICATION, MAY BE DISCHARGED FROM THE RETIRED LIST AND THEREBY LOSE HIS RIGHT TO RETIRED PAY INCIDENT TO HIS MILITARY SERVICE, HE CANNOT, BY THIS MEANS, QUALIFY FOR RETIREMENT UNDER 10 U.S.C. 1331 EVEN IF IT COULD BE SAID THAT HE OTHERWISE MEETS THE CONDITIONS OF THAT STATUTE.

IN ADDITION, IT IS OUR VIEW THAT SERVICE IN THE ARMY RESERVE UNDER 10 U.S.C. 3914 FOLLOWING RETIREMENT MAY NOT BE CREDITED TOWARD THE LAST 8 YEARS OF QUALIFYING SERVICE REQUIRED FOR RETIRED PAY QUALIFICATION UNDER 10 U.S.C. 1331. ALTHOUGH 10 U.S.C. 3914 PROVIDES THAT A REGULAR ENLISTED MAN RETIRED UNDER THAT SECTION BECOMES A MEMBER OF THE ARMY RESERVE HE DOES NOT THEREBY LOSE HIS STATUS AS A RETIRED MEMBER OF THE REGULAR ARMY. HE IS PLACED ON THE RETIRED LIST AS A MEMBER OF THE REGULAR ARMY AND IS PAID RETIRED PAY ON THE BASIS OF SUCH MEMBERSHIP. IT IS WELL ESTABLISHED THAT A MEMBER OF THE ARMY RETIRED FROM ACTIVE SERVICE IS STILL IN THE MILITARY SERVICE ( UNITED STATES V. TYLER, 105 U.S. 244, 1 COMP. GEN. 700, 702; 22 ID. 664, 671; 26 ID. 711, 716), AND AN ENLISTED MAN RETIRED UNDER 10 U.S.C. 3914 HAS A DUAL STATUS AS A RETIRED MEMBER OF THE REGULAR ARMY AND AS A MEMBER OF THE ARMY RESERVE. IN CONNECTION WITH QUALIFYING FOR RETIRED PAY UNDER 10 U.S.C. 1331, SUBSECTION (A) (3) OF THAT SECTION PROVIDES IN EFFECT THAT THE LAST 8 YEARS OF QUALIFYING SERVICE MAY NOT INCLUDE SERVICE WHILE A MEMBER OF A REGULAR AND A RESERVE COMPONENT OF AN ARMED FORCE AT THE SAME TIME.

QUESTION A IS, ACCORDINGLY, ANSWERED IN THE NEGATIVE AND NO ANSWERS ARE NECESSARY TO QUESTIONS B, C AND D. ..END :