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During llw first 35 years of the tniW*1*. retirement program, the rolls grew to only 363 officers—aV one-third as many as are retired every month in the !•' With over 225,000 officers now on the rolls, a great deal of interest has 0 shown in this growing “second career’ segment of U. S. manp°
tal!
V unfit.
cthing was embraced by the Congress be- QffiUse something had to be done to purge the cer corps on the eve of an impending war. tj Pc Congress of course did not want re- u officers to “go South.” Moreover, some
Dfth,
I n the beginning, more than a century ago, ■*- there was the word, “retirement”—and it "'as almost exclusively reserved for military Personnel. No other government agency—- and few, if any, industrial firms—retired elder workers when, in 1861, the first general Military retirement statute was enacted.
Prior to 1861, officers generally left the active rolls through sentence of court-martial, desertion, resignation, or death. Those who Vvere demonstrably physically and/or mentally incompetent, could be furloughed under a reduced pay system. There was no method purging the rolls of superannuated officers, °r> of assuring a steady promotional flow.
On the threshold of the Civil War, the Con- ^ress and the military departments, recog- ni2ed the weaknesses of the officer structure—a 'Veakness which had practically stopped any Promotions to the point where 50-year-old Captains in the Army might, as the older men Cc* off, become generals in a very few years, ^ith the war clouds gathering, a statute as passed authorizing officers with 40 or 0rc years’ service, at their own request and O the approval of the secretary of the de- j, rtlnent involved, to request retirement. tj'lrther, the secretary was authorized to retire °Se officers with less than 40 years of service ae believed them to be physically or menrLhe radical idea of paying people for doing
I
^Ut °SC ret^rc<J might be summoned to active tJle ^ ln the future. Hence, the original retire- sU(y ^ ^aw Provided that retirees would remain ^ Jcct to the laws of military discipline. Their tL |Pc3 would be carried on a Register, and act' Vv°uid be subject to involuntary recall to 1Vc duty at any time.
Thus, the “retirement” system started. And from these simple beginnings evolved a complex, bewildering set of rules.
Possibly the most remarkable carry-over rule is that retired pay is not pay for services rendered, but a “retainer” pay, paid to the individual officer to keep him in a stand-by status for recall to active duty.
This “retained” rather than “retired” label affects these officers’ legal status quite remarkably.
For example, because the retainer concept is prospective in nature, a military retiree has no vested interest in his retirement. Although his retired pay is computed according to rules contemplating the rank he achieved; the years he served on active duty; and/or the disability he encountered on active duty—all “services rendered,”—he is not, according to “law,” entitled to pay because of these services, but because he is “standing by” to render further services.
Prior to 1958, the base for computation was whatever the current pay scale for active duty equivalents happened to be. Thus, it was easy to determine the pay of a retired officer. For pay purposes, all one needed to know was his rank, his total years of active service, and/or the degree of his physical disability. The figure was reached by multiplying these latter two factors by the then current active pay scales. The date of retirement was immaterial. If active duty pay was cut (as it was in the 1930s), retired pay was cut proportionately. When active duty pay was increased, retired pay was increased proportionately.
However, by a change of the rules in 1958, there are now nine different rates of pay for retirees, and a new rate is added each year. No longer are rank and length of service the sole criteria. The accident of the date of retirement is also a controlling factor. The differential in individual receipt of pay can run
had
of
mayor of a California city, and another been appointed to be the Commissioner Aqueducts in New York State. Both the ck’c tion and appointment were challenged in State courts, with the challengers relying the Tyler and all other subsequent cases court-martial jurisdiction.
if- ■ tha1
well over $100 a month. Prior to 1958, there was no differential.
The Court of Claims, as recently as 1966, affirmed this when a group of officers, who had retired prior to 1958, brought suit on the grounds that during their entire military careers, they had been given to understand by regulations, executive pronouncements, discussions in the Congress, and the like that they could expect their retired pay to be computed as per the rules during their service. They argued that a contract existed between themselves and the government. The retirees maintained that they had served their time in accordance with an agreement on the part of the government to pay them a retired pay computed in accordance with the rules in effect when they served.
The Court of Claims dismissed the argument on the grounds that the retirees had no contract whatsoever, nor any vested interest in retired pay, because they were “retained” ■—not pensioned.
In theory, of course, this means that the Congress need not appropriate any money to pay retired military personnel, and in practice, the “economy” excuse upon which the 1958 law was changed, actually “saved” the United States something over $400,000,000 by Fiscal Year 1967. This sum testifies to the magnitude of the differentials which have been generated since 1958.
Yet, while this court’s ruling dashed the hopes of many present-day retirees, another court—a nine-man body—had brought smiles of satisfaction to many late 19th century retirees.
In 1881, a retired Army Captain, Richard W. Tyler, on reading the then current statute involving retired pay computation, perceived that he might be able to have his pay under that statute computed on the total number of years he had served on active as well as inactive duty. Captain Tyler argued his preposterous point all the way to and through the Supreme Court. And he won his argument!
The rationale of the Tyler case was that a retiree, because he was subject to the Articles of War, was subject to recall involuntarily at any time, and had his name carried on a register, was still an “officer of the United States military services,” and under the working of the then current computation statute, could count all of his years of active and inactive duty to compute his pay. This legal loophole, however, was quickly cemented shut, when in 1888, the Congress changed the rules. It was specifically stated that computation would be based only on the number of active years served. This change was held by the Courts to be a legitimate exercise of Congressional power, and so it is even today.
Until the Tyler decision, the concept of the retired officer remaining an officer of the United States had not been attacked by the government’s lawyers, who divined it their duty to support the validity of the existing statutes.
Once the Supreme Court had spoken, hoW' ever, government attorneys pounced on the decision in an effort to clear the air on some other sticky points. The questions were, in reality, all paraphrases of the same query- “When is an officer not an officer?”
Could, for example, a retiree, be court- martialed? This question was argued before, and settled in, the Supreme Court, and today> the Uniform Code of Military Justice in' eludes in its jurisdictional clauses only members of a regular component of the arme° services entitled to receive pay.
Could a retiree hold office? Under m°st State Constitutions, an officer of the Unite States is ineligible to hold state elective or ap pointive offices.
A retired officer had been elected as the
Both State courts agreed that an “officC( connoted authority, and a retiree was speC ically stripped of all military authority! an “office” connoted occupation of a positin']’ and yet, when an officer was retired, 11 ^ vacancy was immediately filled by the pm1"0 tion of an officer from the rank directly be* that of the retiree, and this filled the statuto quotas for this rank as set by the Congm^ Further, this filling made the retiree inehglU for reappointment, even if a mistake had b made. ^
There being neither “authority” nor Pu
Th,
to
case to be tried before the Tax Court.
the Court reviewed the confusion as of 1 date in some detail, and recognized that th t , °le thing seemed rather silly, it ruled
tl0n,” the Courts argued that there could hardly be an “office” in the sense that the State Constitutions used the term “officer of the United States,” and hence, they refused follow the tenets of the Tyler Case, allowing Doth retired officers to retain their positions.
This twist of affairs resulted in the legal arguinent that a person could be an officer of the United States for one purpose, and not an Dfficer of the United States for other purposes ~~~a tenet which is still legally valid today, hough it leads to some confusion, of course.
The legal questions posed, and the answers rcceived, were taken in stride, if not always in good grace, by the affected officers. Yet, there one area of legitimate inquiry which, hatever the ultimate ruling, inevitably raised the blood of retirees. This was the realm ‘conflict of interests,” and while other T'estions might cast doubt upon one’s judgment or motives, questions in this area seemed 0 lrnpugn a man’s integrity, his honor.
J.n 1863, the Congress enacted a statute '*ch provided punishment for any Congress- njan) appointee, “or other officer or em- h °yce” of the United States who accepted Cornpensation for pressing claims, assisting .^htractors, and the like, in matters affecting d interests of the United States. n 1938, a lawyer named Leonard L. Bar*> who had been retired for 20 years from ac Anny appeared in Washington with
e clerk of the Court refused to admit him -p Practice, citing the 1863 statute and the . Cr case as his reasons. Barrett brought suit, * a> the following year, the Circuit Court of ^Ppeals of the District of Columbia upheld ^.plerk °f the Tax Court’s contentions.
th,
cat the weight of the cases favored the con. lhat a retiree was still an “officer of the States.”
vq ^ at same year, 1939, the Congress acted fctt ^reat alacrity, recognizing that the Bar- case had made criminals out of a number pu^ct.ired officers who were, in private life, %SUlng vocations which would be disallowed a public life career.
Dc retirees were not to get off scot-free.
The Barrett case was first considered by the Senate Committee on the Judiciary. They held hearings, and came forth with a bill which read: “Retired officers of the armed forces of the United States, while not on active duty, shall not by reason of their status as such be subject to the provisions of this section.”
This should have been the end of the Barrett case, for such was the intent of the Senate Bill. However, the amendment went over to the House of Representatives, and by some perverse switch of fate, it went to the Armed Services Committee (which did not have jurisdiction over the criminal statute being amended, though it did have jurisdiction over the retired officer). In the House, an additional sentence was added to the amendment, to wit: “Nothing herein shall be construed to allow any retired officer to represent any person in the sale of anything to the Government through the department in whose service he holds a retired status.”
The two sentences were enacted together as an amendment to what came down to 1962 as Section 281 of Title 18 of the United States Code.
In 1962, this statute was repealed, “except as it may apply to retired officers of the armed services.” The repealing statute also enacted what is now 18 USC 207, which precludes retired regular officers (because they are former officers or employees) from indulging in activities which are precluded to all former employees of the Executive Department, and which would fall into a common sense definition of switching sides in a matter under the person’s cognizance while on the government payroll, i.e., a “conflict of interest.” Thus, in successive statutes, on exactly the same basic principles (and in fact, in a statute codifying all former statutes on the same subject), the retired regular military officer turned out to be both an officer of the United States and a “former officer,” or “officer whose employment had ceased,” in the same family of statutes!
In fairness, the use of the word “may” in the repealing statute, and the oddity of the dual status appear to be basically insoluble. When testifying on the point in the hearings on the statute, the Deputy Attorney General of the United States merely noted that the
status of retired officers had been a subject of controversy, and that his department was not “capable” of resolving the matter. (Nor was the Association of the Bar of the City of New York which drafted the legislation after a three-year study. They simply gave up, and put the retired officer problem in a special appendix of their report.)
The Navy Department consistently has held that the second sentence of the 1939 amendment did not create a new crime, but was intended as a savings clause for the “selling” statutes which will be discussed later in this article. Virtually all other “authorities,” however, hold that this is not the case, and the wording, in fact, did create a new crime.
What this crime might be is difficult to define. The Navy’s “Reference Guide to Employment Activities of Retired Personnel (NAVSO-P-1778),” published in 1951, states: “As will be readily apparent, this criminal statute is imprecise in its terms, indefinite in its scope, and inscrutable in its application,” and, “The exact meaning and scope of this negatively-phrased and ambiguous statute are not free from doubt.”
Regardless of this opinion, the dual-statused retired regular officer is nonetheless, subject to these conflicts of interest laws.
Another interesting aspect of the status of retired regular officers is the prohibition of their selling supplies or war materials to any of the uniformed services within three years after their retirement. No other former government employees “enjoy” such a status, and the statute itself is unique in the law as it provides as a sanction that “No payment shall be made from appropriations in any Act... ,” a clause which, when tested as to civil servants whose dismissals for subversive activities had hit an administrative snag, was held to introduce a Bill of Attainder.
This unique statute resulted from an idea that appeared in the Navy Appropriation Act of 1896, and, as such, the sanction applied only to retired Navy and Marine officers. It was a lifetime sanction, and eventually came down in our law as 10 USC 6112b. No such statute was enacted for the Army until 1924.
In that year, a statute with similar wording was enacted for application to retired Army officers, but the sanction was stipulated as
applicable for only two years after retirement.
It is not quite clear why this discriminatory time span was injected, nor why it took such a long time for the Army to inherit the same ban on “selling.”
Finally, in 1962, the statutes were “uni" fied,” and the time limit for loss of pay was set at three years. The statute was reworded so that selling to any of the armed forces, as wen as the U. S. Public Health Service, the U- $• Coast Guard, and the U. S. Coast and Geodetic Survey were included in the forbidden agencies.
With the advent of a viable reserve retiren group after World War I, it became obviooj that the “criminal” and “pay” statutes wouk create a hardship on retired reserve officers- Hence, legislation was passed to exempt a retired reservists from either statute.
Similarly, the Uniform Code of Milhar' Justice, by specifically wording its jurisdiC' tional phrase to include the word “regular, has excluded retired reservists (except, under another clause, in the event they are under going hospitalization in an armed serviceS hospital).
There are approximately seven other stat utes which could be discussed in the conte of the confusion of the “status” under set1’ tiny here. Foremost of these is the so-caUe Dual Compensation Act, which as amende recently, merely depletes, by formula compu tation, the retired pay of any retired Regul officer working in the government if his exceeds a certain level. Of major inter again, is the fact that this particular class ^ citizen is singled out, because of a “static for discriminatory legislation applicable to other class or group of citizens. (
In essence, then, those citizens who e° the military forces from civilian life, and a)( tain an active duty designation as a “regujfr, officer, on their return to civilian life 0 themselves a breed quite apart.
The total effect of this change is not kn°^’ for it involves a complex and complicated ^ velopment of statutory, administrative, kga ’ and quasi-legal history which often used di and findings based on historical cirC, ut stances which were no longer current, v were carried over inadvertently. _ ,,,,
In effect, a fiction, founded on the origb13 unique situation wherein only the mm
extension
unconstitutional. The exis-
was
, Ce of a civilian court with j urisdiction was 0 to completely bar military jurisdiction. Quite obviously, retired personnel on in- *Ve duty can be tried by civilian courts for eir crimes, just as are dependents subject to man courts for their crimes, and just as
services knew “retirement,” has snowballed lnto basic unrealities in the present day.
In the perversity of the technicalities of the law,” one of the foundation stones of the l ylcr decision has been removed. No longer Is a retired Navy or Marine officer subject to '^voluntary recall to active duty at any time. Involuntary recall for these regular retirees Can only be accomplished in time of war or national emergency.
Oddly, retired reservists can be recalled Mtenever the Secretary of the Department c°ncerned decides that their recall is necesSary; and because of the draft laws and the theory of involuntary service implied by them, ®very other citizen is liable to call at any time r,e meets an administrative determination of el>gibility.
Hence, in effect, the retired regular Navy °r Marine officer is the most sacrosanct citizen °f all vis-d-vis involuntary military service, this is, of course, pure technical accident.
Insofar as court-martial jurisdiction is Concerned, since the enactment of the Uni- 0,1,1 Code of Military Justice, only one re- tlred officer has been subjected to a court- manial. This unhappy case, in the opinion °I this writer, went to the wrong civilian r°view court, after passing up to the Court 0 Military Appeals.
I °r, in six out of the last ten cases in
h'ch the Supreme Court has found a statute
^constitutional, the subject was “military
■jurisdiction” under the Uniform Code of
.hitary Justice. In declaring the jurisdic-
jonal section unconstitutional in every case,
e Court emphasized that though tradi-
lQnally military jurisdiction was allowed
°ver the defendants (e.g. dependents ac-
C°rnpanying military personnel overseas;
j'Mlians working at overseas military instal-
atl°ns), the times had changed and because
hitary jurisdiction was a very narrow juris-
ctl°n, unless there was overwhelming sup-
• rt that such jurisdiction was necessary, its J
ten, dependents and civilians working overseas can be tried in civil courts. And it is difficult, today, to conjure up a situation in which civilian jurisdiction could not be exercised over a retired regular officer or enlisted man.
The number of retired officers recalled to active duty in peacetime is, of course, negligible. When recalled, they, of course, must come back voluntarily, and the initiative must be taken by the secretary of the department concerned. Those on duty generally occupy jobs such as curators of museums, historians, and for short hauls, members of study groups inquiring into specific problems.
The idea, then, that retired pay is “retainer” pay finds basis in fact under no known circumstances, save the potential of recall in time of war or national emergency. Of course, this is a time when all citizens are subject to call, and can hardly be rationalized then as an excuse to pay this group money to “stand by.”
The “retainer” syndrome includes another basic weakness in the fact that retired officers are never required to take any kind of physical or mental examination; perform any duties or functions; or take any kind of schooling or correspondence courses to ensure their “readiness” for recall. Hence, if they are being retained, in fact, the government seems not to be working over-industriously to ensure any degree of up-dated qualification to meet the contingency underlying the concept.
The “selling” statutes compound the problems of retired regular officers in their civilian pursuits. The average age of the retired community is now something in the neighborhood of 50 years, and in the past seven years, the average age of those entering the retired ranks was less than 46 years for officers, and somewhat less for enlisted personnel.
Hence, unlike the 40-plus years of service of the group involved in the times of enactment of the original statutes, the modern day retiree has many productive years ahead of him. Since over 70 per cent are in the ranks of major and below (for officers), their retired pay is so low (average $384 per month) that they must seek civilian employment. Whatever “selling” might be, and few can agree on a definition, the statutes frighten the retirees and their employers, and tend to restrict
in
recent years involved what is considered g1-0 , misconduct in the military (i.e., sodomy) ^ was scarcely the type of case to evoke 1
grossly the fields of endeavor open to these men and women.
The “criminal” statute is unique, also, in that the act of “selling” denounced by the statute is perfectly legal if the retiree merely resigns his retired “commission” prior to committing the act. Hence, the crime is not “selling,” but holding a retired commission, and then “selling.” This is unique in our law, for no other denounced crimes can be purged simply by writing a letter. Compare the conflicts of interest statute which is effective because the subject was once in government service. Nothing he can do after he leaves the government service can purge him of liability if he performs the acts denounced by the statute.
The problem of the retired officer with “regular” status is complex. He is a “first class” citizen of the United States, for he earned this status through positive dedication and loyal service in an honorable profession.
Yet, in so earning this status, he has accumulated the disabilities of some moss- backed statutes applicable to his “class” and only to his class, statutes of such a confused nature that he finds that he has achieved an honorable status on the one hand, only to find that he has traded away certain freedoms from harassment as a civilian on the other.
Nor does he find unanimity on corrective measures among his fellow retirees. Few, of course, can claim any real familiarity with the details of the “status” as outlined above. Some sincerely feel that the restrictions imposed by the statutes are justified, though as they discuss why they feel this way, they often find themselves admitting that the justification implies a moral degeneration akin to influence peddling and undue influence over former cohorts.
Most retirees simply wish to be left alone as private citizens, free of the restrictions imposed because of their status, and free to come and go as all other private citizens who ever served the nation. All can accept the conflicts of interest statutes applicable to all former officers and employees.
It is probable that all retirees harbor a certain fear and consternation that, should the old and hoary statutes be repealed, and they be returned to a basically civilian status, the Congress will extract a quid pro quo for this
A graduate of the U. S. Naval Academy in the Class of 1941, Captain Taussig was wounded at Pearl Harbor 7 December 1941 while serving in the USS Nevada (BB-36). In 1949 he graduated from George Washington Law School. FroW 1952 to 1954, while Senior Instructor in Military Law at the U. S. Naval Academy, he assumed collateral duty as Secretary-Treasurer of the U. S. Naval Institute. After retirement from active duty, he stayed on at the Naval Institute as Executive Secretary for two years. In 1956, he went to Westing- house Air Arm as Senior Engineer, Advanced Development Engineering; in 1958, he became Corp°" rate Representative, The Raytheon Company. De was Director, Government Relations, Joy Manufacturing Company, when, in 1962, he es tablished Taussig Associates, a consulting and representative firm in Washington, D. C. He is a Director of the Retired Officers Association.
“benefit” by watering down other benefits- In short, they feel that, in order to continue to enjoy the fringe benefits granted by the Congress, they are better off accepting some of the restriction imposed as well.
The solution to this complex problem lS difficult to visualize. The lack of understand' ing implicit in the complications discussed, and the historical setting, traditionally leavC any statutory corrective measures extremely difficult to achieve.
Insofar as pay computation is concerned, the Congress has allowed the breach of falt j. to continue so long now, that the sums 0 money involved are so astronomical as t0 make any Congressman reluctant to try 10 right this ancient wrong. „
Though retired pay is called “retired pay in all statutes, changing the philosophy away from the “retainer” concept to what1 actually is might jeopardize the Court 0 Claims “no contract” ruling, and stir up m°r controversy. .
The imposition of court-martial jurisdlC tion is hardly a problem, save for a c°fl sciousness of a few retirees that these restr>c tions exist and that they can be dragged bat- before a court-martial. The single such case
sympathetic review by a court.
There seems to be no propensity on the part °f the Congress further to change the Dual pompensation Act, which was greatly liberal- *zed in 1964. The attitude still prevails that mtired pay is not “earned” in toto, and hence eyen though the retiree is doing a full day’s "'ork on a government job, he is not entitled to receive a full day’s pay for that job.
There is no further inclination to alleviate criminal and pay-loss “selling” statutes. *he Congress seems convinced that retired r<;gular officers have such a capability and/or Propensity to peddle their influence, that they are unwilling to repeal the “pay” statute, ^hich bars a retired regular officer from sell- UlS to a manpower pool in excess of six million People, even though it is obvious that he c°uld hardly be expected to know but a minute percentage of these people, much less nd one or two he could “unduly influence.” oe Courts will eventually get this case, and quite possibly hold the statute as a Bill of Attainder just as they did in the subversive civil service case.
The criminal “selling” statute simply is not enforced, but it, too, will eventually come under Court scrutiny (as it has once before, but the case was reversed on technical grounds, and never retried), and this statute will probably fail because the Courts will see the same deficiencies in it that the naval directive to retired officers perceived.
Must the answer, then, be that there is no one answer to the many frustrations confronting the retired officer? Perhaps. But, for each of us there is the comfort that, in the last analysis, our status is what we, as individuals, make it. There is a great deal of personal satisfaction in the knowledge that nobody gave us what we have—we had to fight for it. And no law or combination of laws can diminish our pride in who we are and what we are.
■■ ★ 1 " 1 -------------------------------------------------------------------------------------------------------------------
The Visiting Cockroach
In the early 1930s when roach control mostly depended on ship’s cleanliness, we had a commanding officer who especially hated these pests. The second deck forward was divided amidships with a bulkhead. The starboard side was assigned as Junior Officers’ messing and quarters and the port side as Warrant Officers’ messing and quarters.
The captain was making his usual Friday inspection. When the party arrived at the door to the Warrant Officers’ galley, a spotless steward was standing by. As the captain started to drop his hand from the returned salute, he spotted a large roach crossing the galley deck. His hand shot out in a point and he said,
“Steward, what is that roach doing there?”
“Captain, he no Warrant Officer cockroach,” replied the Steward, “he Junior Officer cockroach just passing through.”
---------------------------- Contributed by Lieutenant Commander F. W. Rice, CEC, U. S. Navy
★ ★ ★
Promotion in the Jet Age
On the day I was scheduled to receive my promotion, I had occasion to telephone the British liaison officer at Marine Corps Schools. Since it was still before the fact, I properly identified myself as Major Hammond. The liaison officer couldn’t answer my question offhand, but promised to call back in an hour. In the meantime, the ceremony of pinning the silver leaves to my collar took place, and I was officially promoted. Just as I returned to my office, I received a phone call, which I now proudly answered as Lieutenant Colonel Hammond.
A clipped British accent on the other end exclaimed, “Gad, you blokes move up fast!”
------------------------------------------------ Contributed by Lieutenant Colonel J. W. Hammond, Jr.,
U. S. Marine Corps
(The Naval Institute will pay $10.00 for each anecdote published in the Proceedings.)