B-166142, APR. 24, 1969, 48 COMP. GEN. 699

B-166142, APR. 24, 1969, 48 COMP. GEN. 699

PAY--RETIRED--FOREIGN CITIZENSHIP OR SERVICE EFFECT--NON-REGULAR SERVICE MEMBERS THE RETIRED PAY BENEFITS AUTHORIZED FOR NON-REGULAR SERVICE MEMBERS OF THE UNIFORMED SERVICES IN CHAPTER 67 OF TITLE 10, U.S. CODE, VIEWED AS A PENSION, ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331 IS NOT DEPENDENT ON THE CONTINUATION OF MILITARY STATUS. THEREFORE A PERSON ELIGIBLE TO RETIRED PAY AT AGE 60 AS PROVIDED IN SECTION 1331 WHO PRIOR TO ATTAINING AGE 60 ACQUIRES FOREIGN CITIZENSHIP AND/OR STATUS IN A FOREIGN MILITARY SERVICE DOES NOT LOSE HIS ENTITLEMENT TO RETIRED PAY AT AGE 60, NOR IS A PERSON IN RECEIPT OF RETIRED PAY PURSUANT TO SECTION 1331 REQUIRED TO FORFEIT SUCH PAY IF HE BECOMES A CITIZEN OF A FOREIGN COUNTRY AND/OR ENTERS THE ARMED FORCES OF THE FOREIGN COUNTRY, PROVIDED THE FOREIGN COUNTRY IS NOT ONE THAT IS ENGAGED IN HOSTILE MILITARY OPERATIONS AGAINST THE UNITED STATES.

TO THE SECRETARY OF DEFENSE, APRIL 24, 1969:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 7, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO THE EFFECT, IF ANY, OF ACQUISITION OF FOREIGN CITIZENSHIP AND/OR STATUS IN A FOREIGN MILITARY SERVICE BY A PERSON WHO WOULD BE ELIGIBLE TO RECEIVE OR IS PRESENTLY IN RECEIPT OF RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 ET SEQ. A COPY OF DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 427 SETTING FORTH AND DISCUSSING THE SEVERAL QUESTIONS WAS ATTACHED.

THE SPECIFIC QUESTIONS ASKED ARE AS FOLLOWS:

A. WOULD A PERSON OTHERWISE ELIGIBLE TO RECEIVE RETIRED PAY AT AGE 60 AS PROVIDED IN 10 U.S.C. 1331 LOSE ENTITLEMENT TO SUCH PAY IF, PRIOR TO ATTAINING AGE 60, THE PERSON (1) BECOMES A CITIZEN OF A FOREIGN COUNTRY OR (2) ENTERS THE ARMED FORCES OF A FOREIGN COUNTRY OR (3) BECOMES A CITIZEN OF A FOREIGN COUNTRY AND ALSO ENTERS THE ARMED FORCES OF THAT COUNTRY?

B. WOULD A PERSON IN RECEIPT OF RETIRED PAY AWARDED AS PROVIDED IN 10 U.S.C. 1331, BE REQUIRED TO FORFEIT SUCH PAY IF HE (1) BECOMES A CITIZEN OF A FOREIGN COUNTRY OR (2) ENTERS THE ARMED FORCES OF A FOREIGN COUNTRY OR (3) BECOMES A CITIZEN OF A FOREIGN COUNTRY AND ALSO ENTERS THE ARMED FORCES OF THAT COUNTRY?

IN THE COMMITTEE ACTION DISCUSSION IT IS STATED THAT UNLIKE OTHER MILITARY RETIREMENT PROGRAMS, THERE IS NO REQUIREMENT THAT A PERSON RECEIVING RETIRED PAY BENEFITS AUTHORIZED BY CHAPTER 67,TITLE 10, U.S. CODE, CONTINUE TO SERVE IN ANY CAPACTY, CITING 28 COMP. GEN. 510. THE VIEW IS EXPRESSED THAT EVEN THOUGH ACQUISITION OF FOREIGN CITIZENSHIP AND/OR MILITARY STATUS IN A FOREIGN COUNTRY WOULD REQUIRE TERMINATION OF A MEMBER'S RESERVE STATUS, SUCH TERMINATION WOULD NOT AFFECT ENTITLEMENT TO RETIRED PAY ALREADY ESTABLISHED.

CHAPTER 67 OF TITLE 10, U.S. CODE, ENTITLED "RETIRED PAY FOR NON REGULAR SERVICE," SETS FORTH THE ELIGIBILITY AND SERVICE REQUIREMENTS WHICH MUST BE MET BY PERSONS BEFORE THEY SHALL BECOME ENTITLED TO RECEIVE RETIRED PAY. SECTION 1331, PROVIDES IN PERTINENT PART:

(A) EXCEPT AS PROVIDED IN SUBSECTION (C), A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE, IF-

(1) HE IS AT LEAST 60 YEARS OF AGE;

(2) HE HAS PERFORMED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332 OF THIS TITLE;

(3) HE PERFORMED THE LAST EIGHT YEARS OF QUALIFYING SERVICE WHILE A MEMBER OF ANY CATEGORY NAMED IN SECTION 1332 (A) (1) OF THIS TITLE, BUT NOT WHILE A MEMBER OF THE REGULAR COMPONENT, THE FLEET RESERVE, OR THE FLEET MARINE CORPS RESERVE; AND

(4) HE IS NOT ENTITLED, UNDER ANY OTHER PROVISION OF LAW, TO RETIRED PAY FROM AN ARMED FORCE OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE.

(D) THE SECRETARY CONCERNED SHALL PROVIDE FOR NOTIFYING EACH PERSON WHO HAS COMPLETED THE YEARS OF SERVICE REQUIRED FOR ELIGIBILITY FOR RETIRED PAY UNDER THIS CHAPTER. THE NOTICE MUST BE SENT, IN WRITING, TO THE PERSON CONCERNED WITHIN ONE YEAR AFTER HE HAS COMPLETED THAT SERVICE.

(E) NOTWITHSTANDING SECTION 8301 OF TITLE 5, U.S.C. THE DATE OF ENTITLEMENT TO RETIRED PAY UNDER THIS SECTION SHALL BE THE DATE ON WHICH THE REQUIREMENTS OF SUBSECTION (A) HAVE BEEN COMPLETED.

IN A DICISION OF OCTOBER 19, 1943, 23 COMP. GEN. 284, WE HELD THAT RETIRED PAY PAID TO OFFICERS OF THE REGULAR ARMY BASED UPON YEARS OF SERVICE IS DEEMED TO BE COMPENSATION OR PAY FOR THEIR CONTINUED SERVICE AS OFFICERS AFTER RETIREMENT AND PAYMENT THEREOF IS AUTHORIZED ONLY WHILE THEY REMAIN IN THE SERVICE. LATER, A SIMILAR CONCLUSION WAS REACHED WITH RESPECT TO RETIRED PAY TO ENLISTED MEMBERS OF THE REGULAR NAVY (38 COMP. GEN. 523), AS WELL AS RETIRED PAY RECEIVED BY RESERVE MEMBERS UNDER CERTAIN PROVISIONS OF LAW, VIZ; 10 U.S.C. 3911, 6323, 8911 AND 14 U.S.C. 232. SEE 41 COMP. GEN. 715. IN EACH OF THESE CASES, ENTITLEMENT TO RETIRED PAY WAS DEEMED TO BE CONTINGENT UPON THE MEMBER REMAINING IN THE MILITARY SERVICE WITH THE ATTENDANT OBLIGATION TO CONFORM TO PRESCRIBED RULES AND REGULATIONS AND TO REMAIN SUBJECT TO RECALL TO ACTIVE DUTY. THEREFORE, THE TERMINATION OF SUCH MILITARY STATUS IN THOSE CASES WOULD OPERATE TO DEPRIVE A MEMBER OF ENTITLEMENT TO RETIRED PAY.

IN CONTRAST, IT WAS CONCLUDED IN 37 COMP. GEN. 207---WHICH INVOLVED A MARINE CORPS RESERVE OFFICER RETIRED FOR DISABILITY UNDER SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED, 34 U.S.C. 855C-1 (1946 ED.)--- THAT SINCE A RIGHT TO RETIRED PAY UNDER THE LAW THERE INVOLVED WAS NOT DEPENDENT ON THE EXISTENCE OF A MILITARY STATUS, THE TERMINATION OF SUCH STATUS COULD NOT AFFECT THAT RIGHT AND IT WOULD NOT TERMINATE UPON ACQUISITION OF FOREIGN CITIZENSHIP. SUCH RETIRED PAY WAS VIEWED AS BEING IN THE NATURE OF A PENSION. WHILE A DISABILITY RETIREMENT WAS THERE INVOLVED, THE SAME RULE APPEARS TO BE APPLICABLE IN THE PRESENT CASE.

A RIGHT TO RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S. CODE, FOR NON- REGULAR SERVICE ACCRUES TO A "PERSON" WHO MEETS THE STATUTORY CONDITIONS AND SERVICE REQUIREMENTS THEREIN SET FORTH. LIKE THE RETIRED PAY MENTIONED IN THE PRECEDING PARAGRAPH PAYABLE UNDER THE LAWS THERE CONSIDERED, THE RETIRED PAY HERE INVOLVED IS VIEWED AS BEING IN THE NATURE OF A PENSION. SEE 29 COMP. GEN. 220, 424. THE TERMINATION OF THE RESERVE STATUS OF A PERSON OTHERWISE QUALIFIED BY VIRTUE OF THE SERVICE REQUIREMENTS SPECIFIED IN NO WAY AFFECTS HIS RIGHT TO RECEIVE RETIRED PAY UPON REACHING AGE 60 SINCE HIS CONTINUED SERVICE AS A RESERVIST IS NOT ONE OF THE CONDITIONS SPECIFIED BY THE STATUTE. SEE 28 COMP. GEN. 510, AND 41 COMP. GEN. 131, 134. WHILE IT APPEARS THAT A MEMBER MAY NOT BE PERMITTED TO RETAIN A RESERVE STATUS HAVING A CONTINUED MILITARY OBLIGATION, IN THE EVENT THAT HE ACQUIRES A MILITARY STATUS IN A FOREIGN COUNTRY, NEITHER THAT ACTION NOR THE ASSUMPTION OF FOREIGN CITIZENSHIP BY A PERSON QUALIFIED UNDER CHAPTER 67, OF TITLE 10, U.S. CODE, WOULD TERMINATE HIS RIGHT TO RETIRED PAY.

ACCORDINGLY, YOUR QUESTIONS ARE ANSWERED IN THE NEGATIVE. IT IS ASSUMED THAT YOUR QUESTIONS DO NOT RELATE TO CITIZENSHIP IN, OR MEMBERSHIP IN THE MILITARY FORCES OF, A FOREIGN COUNTRY ENGAGED IN HOSTILE MILITARY OPERATIONS AGAINST THE UNITED STATES AND NOTHING SAID HEREIN IS TO BE CONSIDERED AS DECIDING THE RIGHTS OF A PERSON SO SITUATED.