Moore v. Department of Military Affairs

230 N.W.2d 422, 60 Mich. App. 338, 1975 Mich. App. LEXIS 1446
CourtMichigan Court of Appeals
DecidedApril 9, 1975
DocketDocket No. 20966
StatusPublished
Cited by1 cases

This text of 230 N.W.2d 422 (Moore v. Department of Military Affairs) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Department of Military Affairs, 230 N.W.2d 422, 60 Mich. App. 338, 1975 Mich. App. LEXIS 1446 (Mich. Ct. App. 1975).

Opinion

D. F. Walsh, J.

This is an appeal from a judgment of the Court of Claims granting the defendant’s motion for summary judgment. It invites our interpretation of certain sections of two acts, both of which pertain to matters relating to Michigan’s military establishment. One is the military establishments law, 1909 PA 84, as amended, MCLA 32.1-32.85; MSA 4.591-4.675, and the other is the Michigan Military Act (new), 1967 PA 150; MCLA 32.501-32.851; MSA 4.678(101)-4.678(451).

Plaintiff, a brigadier general, was honorably separated from the Michigan National Guard at age 55, on August 9, 1967. His separation resulted from the loss of Federal recognition by reason of completion of maximum service under the provisions of National Guard Regulation No. 20-4, § 5c(l)(b). By special order dated August 24, 1967, plaintiffs name was placed on the list of retired [340]*340officers of the Michigan National Guard effective August 10, 1967, under the provisions of Section 405, 1967 PA 150. MCLA 32.805; MSA 4.678(405).

Although his name was placed on the list of retired officers plaintiff was not at this time eligible for nor did he receive retirement benefits.

On May 30, 1972, a special retirement board of officers was convened pursuant to Section 421, 1967 PA 150; MCLA 32.821; MSA 4.678(421), for the purpose of considering plaintiff’s application for retirement and made the following recommendation:

" * * * the Board recommends that Brigadier General Noble O. Moore, having been found qualified for retirement benefits, be retired pursuant to the provisions of § 49 and 49c, P.L. 84, 1909, as amended, and § 435, PA 150, 1967, State of Michigan, beginning 11 July 1972.”1

The Governor approved this recommendation on June 8, 1972.

Section 49, 1909 PA 84, as amended, which is cited in the retirement recommendations, clearly provides that retirement benefits are to be computed on the basis of the active service annual pay to which an officer was entitled "at the time of his retirement”.

"Sec. 49. Notwithstanding any other provisions of this act any officer of the national guard * * * who shall have completed not less than fifteen years service * * * and who is or has been on actual state duty for not less than ten years, may be retired with annual pay equal to the product of two and one-half per centum of the' active service annual pay to which entitled at the time [341]*341of his retirement multiplied by a number equal to the years of his active service, not in excess of thirty years * * * .” (Emphasis supplied.) MCLA 32.49; MSA 4.640(1).

Disagreement over the proper application of the words "at the time of his retirement” in Section 49, as they apply to the circumstances of this case, generated plaintiffs complaint in the Court of Claims.

Plaintiff argues that his retirement took place on July 11, 1972, as the result of the Governor’s approval of the recommendation affirming his eligibility to receive benefits. Defendant argues that plaintiffs date of retirement was August 10, 1967, the effective date of placement of his name on the state military retirement list. Computation of benefits based on active service annual pay as of the 1972 date results in an increase in monthly retirement pay in the amount of $611.78.

Plaintiff’s contention that retirement status is attained only after the recommendation of a board of officers, duly convened under the provisions of Section 421, 1967 PA 150; MCLA 32.821; MSA 4.678(421), has been approved by the Governor is unpersuasive. If approval by the Governor of a retirement board’s recommendation is the event that confers retirement status, then two officers who have been separated honorably from active service on the same date and under identical circumstances could attain retirement status on different dates depending upon when the board of officers was convened in each case. They could thereby each acquire a different basis for the computation of retirement benefits. Such a result makes it obvious that the recommendation of the board of officers does not confer retirement status nor does the approval of the recommendation by [342]*342the Governor. The board must itself look to the statutory enactments and make its determination based upon those enactments insofar as they apply to the circumstances of each individual case. In other words, the board does not confer retirement status, it makes a determination as to whether or not an officer has attained retirement status through compliance with statutory requirements.

Plaintiff also maintains that an officer’s name could properly be placed on the retirement list prior to the effective date of his retirement. It seems obvious to us, however, from the plain meaning of the words used that one could not have his name placed on a list of retired officers unless and until he had attained retirement status. The statute certainly does not provide for the creation, regulation, and maintenance of an official list of retired officers on which the names of officers who have not yet retired could be enrolled.

In addition Section 407, 1967 PA 150; MCLA 32.807; MSA 4.678(407), permits the Governor to remove an officer from the retired list for the purpose of recalling or recommissioning him to active service. The act provides that the officer so recalled to active service shall be restored to his "prior retirement status” when he is again separated from active service. If the officer had not attained retirement status when his name was placed on the list, then the words referring to his "prior retirement status” would be nonsensical.

The same section also provides that no person on the state military retirement list is entitled to receive any pay or emolument from the state for military duty during the time he remains on the retired list. Retirement benefits are computed with reference to the active service annual pay to which the retiree was entitled at the time of his retire[343]*343ment. Plaintiff was entitled to active service monthly pay in the amount of $1,384.80 in August of 1967 when his name was placed on the retirement list. He claims to be entitled to active service monthly pay in the amount of $2,200.50 in July of 1972. If this claim is meritorious, the Department of Military Affairs would be required to credit him with all active service pay increases earned for military duty between August 1967 and July 1972. Plaintiff would thus have received an emolument from the state for military duty during the time he remained on the retired list, in contravention of Section 407.

We are equally unpersuaded by defendant’s argument that placement of an officer’s name on the retirement list is the event which confers retirement status.

Plaintiffs name was placed on the retirement list under authority of Section 405, 1967 PA 1502 which provides:

"Sec. 405. An officer who has served in the national guard, upon honorable retirement from active service whether on his own application or otherwise, may be carried on the state military retired list maintained in the office of the adjutant general.” (Emphasis supplied.) MCLA 32.805; MSA 4.678(405).

A reading of this section makes it clear that "honorable retirement” from active service is a prerequisite to placement on the list.

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Related

Moore v. Department of Military Affairs
247 N.W.2d 801 (Michigan Supreme Court, 1976)

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Bluebook (online)
230 N.W.2d 422, 60 Mich. App. 338, 1975 Mich. App. LEXIS 1446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-department-of-military-affairs-michctapp-1975.