B-157646, OCT 5, 1965

B-157646, OCT 5, 1965

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 8, 1965, REQUESTING A DECISION AS TO WHETHER TERMINATION OF THE RETIRED PAY OF CAPTAIN REINIER E. VOUTE WILL BE REQUIRED IF HE BECOMES A CITIZEN OF A FOREIGN COUNTRY. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-A 864 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REPORT THAT IN 1953 CAPTAIN VOUTE IMMIGRATED TO THE UNITED STATES FROM THE NETHERLANDS AND BECAME A NATURALIZED CITIZEN; THAT HE WAS APPOINTED A COMMISSIONED OFFICER IN THE UNITED STATES ARMY RESERVE; AND THAT HE WAS ORDERED TO ACTIVE DUTY AND ENTERED ON SUCH DUTY ON MARCH 24, 1959. WHILE SO SERVING HE SUFFERED INJURIES IN AN AIRCRAFT ACCIDENT AND BY PARAGRAPH 184, SPECIAL ORDERS NUMBER 140, DATED JUNE 14, 1963, HE WAS RETIRED FROM ACTIVE DUTY WITH THE GRADE AND PAY OF CAPTAIN UNDER 10 U.S.C. 1201 AND 1372 BY REASON OF 90 PERCENT PHYSICAL DISABILITY AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST, EFFECTIVE JUNE 22, 1963. THE SAME ORDERS EFFECTED HIS TRANSFER TO THE RETIRED RESERVE.

CAPTAIN VOUTE RETURNED TO THE NETHERLANDS FOLLOWING HIS RETIREMENT, AND FOUND PERMANENT EMPLOYMENT THERE. HE SAYS THAT IN ORDER NOT TO HAMPER HIS POSSIBILITIES OF PROMOTION IT IS NECESSARY FOR HIM TO RESUME HIS FORMER DUTCH NATIONALITY. HE THEREFORE REQUESTS INFORMATION AS TO WHETHER HIS ELIGIBILITY TO RECEIVE MILITARY RETIRED PAY WILL BE AFFECTED IN ANY WAY BY HIS ACQUISITION OF FOREIGN CITIZENSHIP.

WE HAVE HELD GENERALLY THAT UNDER CERTAIN LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, WHERE A RIGHT TO RETIREMENT PAY FOR NONREGULAR MEMBERS IS NOT CONDITIONED ON THEIR REMAINING IN THE SERVICE, SUCH RETIRED NONREGULAR MEMBERS ARE ENTITLED TO RETIREMENT PAY WITHOUT REGARD TO WHETHER THEY REMAIN CITIZENS OF THE UNITED STATES. SEE 37 COMP.GEN. 207. YOUR REQUEST FOR A DECISION IN THIS CASE IS MADE BECAUSE OF THE DOUBT AS TO WHETHER THIS PRINCIPLE HAS BEEN FIRMLY ESTABLISHED UNDER PRIOR DECISIONS.

AS WAS STATED IN 43 COMP.GEN. 785, 787, TO WHICH YOU REFER, IT IS THE LAW UNDER WHICH A MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIREMENT PAY WHICH GOVERNS HIS "RETIRED" STATUS AND FIXES HIS RIGHTS. IN THIS CONNECTION, ATTENTION IS DIRECTED TO THE FACT THAT THE CONGRESS HAS RECOGNIZED A DISTINCTION BETWEEN A RETIREMENT CREATING A STATUS WITH AN ACCOMPANYING RIGHT TO RETIRED PAY AND A MERE GRANT OF RETIREMENT PAY. SEE 40 COMP.GEN. 541.

THE RULE STATED IN 37 COMP.GEN. 207 APPLIES ONLY IN THOSE CASES WHERE ENTITLEMENT TO RETIREMENT PAY IS NOT CONTINGENT UPON THE MEMBER REMAINING IN THE SERVICE WITH AN ATTENDANT OBLIGATION TO CONFORM TO PRESCRIBED RULES AND REGULATIONS AND PERFORM SUCH SERVICE AS IS REQUIRED BY PROPER AUTHORITY. THE LAW UNDER WHICH CAPTAIN VOUTE IS RECEIVING RETIRED PAY (10 U.S.C. 1201) CLEARLY PROVIDES FOR RETIREMENT, AS DISTINGUISHED FROM A GRANT OF RETIREMENT PAY. HE HAS BEEN TRANSFERRED TO THE RETIRED RESERVE IN ACCORDANCE WITH 10 U.S.C. 267 AND HE IS SUBJECT TO THE PROVISIONS OF 10 U.S.C. 675 RELATING TO RECALL TO ACTIVE DUTY. A SIMILAR SITUATION WAS CONSIDERED IN DECISION OF MAY 1, 1962, 41 COMP.GEN. 715, AND IT WAS HELD THAT A RESERVE OFFICER RETIRED FOR YEARS OF SERVICE AND THEREUPON TRANSFERRED TO THE RETIRED RESERVE WOULD LOSE HIS RETIRED PAY IF HE BECAME A CITIZEN OF A FOREIGN COUNTRY THEREBY TERMINATING HIS STATUS AS A RESERVE OFFICER. IT IS OUR VIEW THAT ALTHOUGH CAPTAIN VOUTE WAS RETIRED UNDER DIFFERENT PROVISIONS OF LAW THAN THOSE INVOLVED IN 41 COMP.GEN. 715, HIS CASE FALLS WITHIN THE RULE OF THAT DECISION, ANSWER TO QUESTIONS 1 THROUGH 3. HE HAS A CONTINUING RETIRED STATUS WHICH WOULD TERMINATE IF HE BECAME A CITIZEN OF THE NETHERLANDS. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE. COMPARE 44 COMP.GEN. 51. ..END :