B-244180, Aug 19, 1991, Office of General Counsel

B-244180, Aug 19, 1991, Office of General Counsel

MILITARY PERSONNEL - Eligibility - Retired personnel - Reserve officers DIGEST: 1. An enlisted member who qualifies for active duty military retired pay under other law is not eligible for retirement benefits under 10 U.S.C. Sec. 1331 even if he or she waives active duty retirement for civil service retirement credit. MILITARY PERSONNEL - Pay - Eligibility - Retired personnel - Reserve officers 2. A member of a reserve component who is drawing retired pay for prior military service, and who performs duty for which he or she is entitled to pay may elect to receive either retired pay, or pay and allowances for current duty, but not both.

Honorable Arthur Ravenel, Jr.

Member, United States House of Representatives

Mr. Ravenel:

This is in response to your inquiry on behalf of Master Sergeant Joseph D. Finn concerning a number of questions related to his eligibility for retirement benefits.

Sergeant Finn maintains that he is entitled to waive receipt of military retired pay for active duty service in order to receive credit for such service under the Civil Service Retirement System. He also maintains that his service in the Air Force Reserve after his retirement from active duty qualifies him to receive additional retired pay under 10 U.S.C. Sec. 1331, et seq., for that service on the theory that since he no longer qualifies for retired pay for his active duty service, having waived it, he therefore qualifies for retired pay for his Reserve service. Finally, Sergeant Finn suggests that if he is not qualified for retired pay as a result of his Reserve service, the active duty retired pay he waived in return for military pay and allowances for the periods he performed Reserve duties should be refunded to him.

For the reasons discussed below, we conclude that although it appears that Sergeant Finn may waive the receipt of retired pay for his active duty service in order to increase his Civil Service annuity, his eligibility to receive military retired pay for his earlier active duty service in the absence of a waiver precludes him from receiving retired pay for his service in the Air Force Reserve. Also, Sergeant Finn's initial election to receive pay and allowances for his Reserve duty instead of the military retired pay to which he otherwise would have been entitled cannot now be withdrawn.

Sergeant Finn retired from active duty with the Air Force in January 1973 and began receiving military retired pay. In October 1975 he became a member of the Air Force Reserve, waiving his right to receive military retired pay for his earlier active duty service in return for the receipt of pay and allowances for his reserve duty. In January 1976 he was employed in the civil service and apparently plans to retire in the near future.

Although the question of Sergeant Finn's ability to increase his civil service retirement benefits by means of waiving the receipt of military retired pay must be decided by the Office of Personnel Management, it appears that waiver would be appropriate in his case. See 5 U.S.C. Sec. 8332(c) (1988) and 5 C.F.R. Sec. 842.306 (1991).

On the question of Sergeant Finn's eligibility to receive retired pay under 10 U.S.C. Sec. 1331, the waiver of his entitlement to receive retired pay for active duty service does not result in an entitlement to retired pay for Reserve service. In this regard, 10 U.S.C. Sec. 1331(a)(4) provides that a person is not entitled to retired pay for service in a military reserve component if he "is entitled to retired pay from an armed force."

In 41 Comp.Gen. 458 (1962) we concluded that Sec. 1331 does not make benefits available to members of reserve components who are eligible for military retirement benefits under other laws. That case held that an enlisted man who was discharged from the retired list, thereby relinquishing his entitlement to retired pay, could not qualify for retirement under 10 U.S.C. Sec. 1331 because the intent of Congress in enacting the law was to make it "applicable only to Reserve members and former members who were not covered by any other retirement law." Furthermore, the waiver of an entitlement to receive retired pay for active duty service does not mean that no benefit is retained as a result, as Sergeant Finn implies, since the years of military active duty service are added to civilian service in order to secure a larger civil service annuity than would otherwise be possible.

There is no connection between Sergeant Finn's inability to qualify for reserve retired pay under 10 U.S.C. Sec. 1331 and his claim for a refund of retired pay for earlier active duty that was withheld while he performed Reserve duty. A member of a reserve component who is receiving retired pay for prior military service, and who performs duty which results in an entitlement to pay, may elect to receive either retired pay or pay and allowances for current duty. He may not receive both. See Department of Defense Military Pay and Allowance Entitlement Manual Secs. 80204 and 80303. Since Sergeant Finn received pay and allowances for his Reserve service at the time the service was performed, he may not now receive a refund of the retired pay he elected to forgo at that time.

We trust this serves the purpose of your inquiry.