Appealed from U.S. Claims Court, Judge Miller.
Before Newman and Bissell, Circuit Judges, and Re, Chief Judge.*fn*
Lieutenant Colonel (LTC.) Oliver Donovan Ulmet, appeals from a judgment of the United States Claims Court which granted defendant's motion for summary judgment, and denied his cross-motion for summary judgment. The Claims Court held that LTC. Ulmet, a reserve officer who had been involuntarily released after 15 years of service, and who had received readjustment pay, could not "tack on" his subsequent active duty for training service in order to become eligible for the "sanctuary provision" of 10 U.S.C. § 1163(d).
The question presented on this appeal is whether a United States Army Reserve officer can apply time served on active duty for training tours in computing the total amount of active service time required for sanctuary under 10 U.S.C. § 1163(d), and retirement under 10 U.S.C. § 3911.
Since the court holds that time served on active duty for training is active service within the active service time required for the sanctuary provision of 10 U.S.C. § 1163(d), and the 20-year retirement provision of 10 U.S.C. § 3911, the decision of the Claims Court is reversed, and LTC. Ulmet is entitled to sanctuary under the terms of the statutory provision.
LTC. Ulmet seeks reinstatement to active duty, and maintains that, pursuant to 10 U.S.C. § 1163(d), he should be retained on active duty for another 2 years, in order to qualify for retirement under 10 U.S.C. § 3911. It is his contention that the "plain meaning" of "active duty," as defined in 10 U.S.C. § 101(22), requires that the time that he served on "active duty for training" be included in the computation of his active service for retirement purposes, and that 10 U.S.C. § 3926(a)(1) is dispositive of this case. The inclusion of the "active duty for training time" would allow LTC. Ulmet to invoke the sanctuary provision, 10 U.S.C. § 1163(d), since he would have accumulated over 18 years of active service time.
The defendant contends that the Claims Court properly refused to "tack" LTC. Ulmet's active duty for training time to his previous active service. Defendant argues that when the sanctuary provision was enacted, "active duty for training" was specifically excluded from the definition of "active duty." Armed Forces Reserve Act of 1952, Pub. L. No. 476, § 101(b), 66 Stat. 481. The present definition of "active duty," which expressly includes active duty for training, became part of the statute in 1956 when Title 10 was revised and codified. Notwithstanding the present definition of "active duty," defendant asserts that the codification of Title 10 in 1956 was not intended to make any substantive change in the law, and, thus, the time served on active duty for training should not count towards the time needed for sanctuary under section 1163(d).
The defendant also contends that LTC. Ulmet fails to qualify for the protection of section 1163(d) because his time was not served continuously. Alternatively, defendant submits that the readjustment pay received by LTC. Ulmet served as an alternative to the retirement benefits of 10 U.S.C. § 3911. Finally, the defendant contends that even if this court were to "tack on" LTC. Ulmet's service while on active duty for training, he would still fall short, by 8 days, of the 18 years required for sanctuary.
On June 6, 1958, Oliver Donovan Ulmet joined the United States Army as an enlisted soldier, and in 1966 was appointed a Reserve commissioned officer of the Army. On September 12, 1973, after serving in Vietnam, as part of a reduction in the number of military personnel following the cessation of hostilities in Southeast Asia, he was involuntarily released from active duty. He had attained the rank of Captain, and had accrued 15 years, 3 months, and 7 days of active service. In order to facilitate his transition to civilian life, he received $15,000 of readjustment pay pursuant to 10 U.S.C. § 687 (1970) (repealed 1981).
From 1973 to 1985, Ulmet continued to serve in the Army Reserve, and participated in 15 periods of what was classified by the Army as active duty for training. During these periods, which ranged in duration from 2 days to over 1 year, he became skilled as a Training Requirements Analysis System manager. He attained the rank of Lieutenant Colonel, and amassed over 18 years of active service.
On September 7, 1983, contending that he had completed over 18 years of active service, LTC. Ulmet requested that he be retained on active duty, and allowed to complete 20 years of service necessary for retirement. The Army denied LTC. Ulmet's request and released him from active duty on September 31, 1983. Subsequent1y, while on another active duty tour in April 1985, LTC. Ulmet requested assignment to various extended tours. These requests were also denied.
In this action in the United States Claims Court, LTC. Ulmet sought back pay, reinstatement to active duty status, and active duty credit for retirement from September 31, 1983. Holding that a reservist was not entitled to include periods served on active duty for training for the time required for the sanctuary provision, 10 U.S.C. § 1163(d), the Claims Court granted defendant's motion for summary judgment. Ulmet v. United States, 10 Cl. Ct. 522, 525 (1986).
To determine the questions presented the court must interpret Title 10 U.S.C., and the meaning of "active duty." It is axiomatic that "the starting point for interpreting a statute is the language of the statute itself," and that, "absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); see also Institut Pasteur v. United States, 814 F.2d 624, 626-27, 2 U.S.P.Q.2D (BNA) 1048 (Fed. Cir. 1987).
Section 1163(d) of Title 10 U.S.C., commonly referred to as the "sanctuary provision," in part, states that:
[A] member of a reserve component who is on active duty and is within two years of becoming eligible for retired or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless his release is approved by the Secretary.
10 U.S.C. 1163(d) (1982). By its express language, the benefits of section 1163(d), the sanctuary provision, inure to a member of a reserve component who is on active duty, and "within two years of becoming eligible for retired or retainer pay under a purely military retirement system."
Section 3911 of Title 10 U.S.C. sets forth the retirement system for regular or reserve commissioned officers:
The Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of ...