Appealed from U.S. Claims Court; Judge Merow.
Nies, Chief Judge, Rich, Markey,*fn* Circuit Judges, Bennett,*fn** Senior Circuit Judge, Newman, Archer, Mayer, Michel, Plager, Lourie, and Clevenger, Circuit Judges. Mayer, Circuit Judge, dissents.
In this case, plaintiff, an officer in an Army reserve component, sought back pay, retirement pay, reinstatement and correction of records. His claim was based on 10 U.S.C. § 1163(d), the "sanctuary" provision, which provides that members of a reserve component are, under specified circumstances, protected from involuntary release prior to qualifying for retirement. Before us is an appeal from a judgment of the Claims Court entered May 22, 1989, and reported as Wilson v. United States, 16 Cl. Ct. 765 (1989). Both Lieutenant Colonel (LTC) Wilson and the United States moved in the trial court for summary judgment. LTC Wilson's motion was based on a decision of this court, Ulmet v. United States, 822 F.2d 1079 (Fed. Cir. 1987). The Claims Court granted LTC Wilson's motion, holding that he is entitled to sanctuary under § 1163 (d). The United States appealed pursuant to 28 U.S.C. § 1295(a)(3). We reverse.
I. The Factual Background
Wilson enlisted in the United States Army on July 5, 1963. In 1965, he received a commission as a second lieutenant in the United States Army Reserve; in 1966 his reserve commission was converted to one in the Regular Army. On February 1, 1980, with the rank of captain, but having twice failed selection to the rank of major, Wilson was discharged from the Regular Army. At the time of his discharge, Wilson had served over sixteen years on active duty.
Subsequently, Wilson became a member of the Army Reserve and attained the rank of lieutenant colonel. After performing several active duty for training tours, Wilson received orders to report by October 3, 1983 to Fort McPherson, Georgia, for a special active duty for training (SADT) tour*fn1 of 179 days, to and including March 28, 1984.
While serving on the SADT tour, LTC Wilson wrote to Army headquarters in Washington, D.C. requesting that, because he had now completed more than 18 qualifying years of Army service, he be retained on active duty pursuant to the "sanctuary" provision of 10 U.S.C. § 1163(d). If the Army responded to LTC Wilson's letter, it is not of record. On March 28, 1984, when his SADT tour expired, LTC Wilson was released from his tour of active duty for training and returned to civilian status.
On August 10, 1984, Wilson submitted a request that he be recalled to active duty in order to complete 20 years of service for retirement purposes. Army officials disapproved this request by a written response dated October 5, 1984.
On January 5, 1985, Wilson's counsel wrote the Secretary of the Army requesting that Wilson be reinstated to active duty so that he could complete his 20 years of active duty and retire with benefits. By a letter dated February 22, 1985, William D. Clark, Principal Deputy Assistant Secretary (Manpower and Reserve Affairs), provided LTC Wilson's attorney, Avery T. Salter, the basis for the Secretary's denial of LTC Wilson's request, stating (in relevant part):
Section 1163(d), 10 United States Code, does not give Reserve members who complete 18 years active federal service (AFS) while on Active Duty for Training (ADT) or Special Active Duty for Training (SADT) the right to be continued on active duty solely for the purpose of completing 20 years of service for retirement purposes. Officers on ADT/SADT should understand that future service in an ADT/SADT status is based upon valid requirements as determined by the Department of the Army rather than upon the amount of AFS accumulated by the officer.
While Major Wilson is not automatically entitled by law to further active duty, he is neither precluded from such service. However, future service depends upon the existence of a valid requirement and Major Wilson's selection as the best qualified officer available. The Department of the Army retains the right to make such determinations.
On August 13, l987, Wilson filed a complaint in the Claims Court seeking back pay, allowances and benefits from March 27, 1984, reinstatement to active duty, records correction and other relief. On October 14, 1988, the Claims Court issued an interlocutory order, as to liability only, in Wilson's favor on cross motions for summary judgment. The Government petitioned this court for interlocutory review. In an order dated November 18, 1988, we denied the Government's petition. Thereafter, the parties filed stipulated facts as to quantum in the Claims Court. On May 22, 1989, the Claims Court issued its final decision granting Wilson's motion for summary judgment, incorporating therein "with limited modifications" its prior interlocutory order or October 14, 1988. Wilson v. United States, 16 Cl. Ct. at 766 n.1. The Claims Court held, inter alia, that: under Ulmet v. United States, 822 F.2d 1079 (Fed. Cir. 1987), § 1163(d) entitled LTC Wilson to sanctuary; LTC Wilson, having affirmatively sought sanctuary under 1163 (d), was "involuntarily" released from service as that term is used in § 1163(d); and LTC Wilson's involuntary release was not approved by the Secretary in accordance with § 1163(d).
Although the details of each Service's program may vary, tailored as they are to meet the differing needs of the particular Service, the basic structure of the Federal Government's plan for eligibility for retirement of military officers is fairly straightforward. The plan addresses two basic categories of officers. There are career officers who complete twenty or more years of full-time active military service. These officers typically enter through one of the Service academics or through on of the special officer training programs designed for that purpose.*fn2 These officers usually are given "regular," as distinct from "reserve" commissions, although some number of officers with initial "reserve" commissions remain in the service and make it a career.
By law and regulation, these full-time career officers, both regular and reserve, are entitled to retire from the Service, regardless of age, with a substantial pension upon completion of twenty or more years of service. See 10 U.S.C. §§ 3911 & 3991 (1988).
The system also provides retirement benefits for officers who, although not making a career of military service, complete the requisite number of years of creditable federal service. These may be officers who began with regular commissions and later decided not to make a career of the Service or are terminated involuntarily, but choose to remain affiliated, or they could be officers with an initial reserve commission who, upon completion of their full-time active duty obligation, remain active with a reserve component.
This second group of officers, reserve component officers, all of whom will hold commissions in the reserve, may be placed in the active reserve, where, while holding civilian jobs, they regularly drill evenings or weekends an part of the country's citizen soldiery. The purpose is to have a cadre of trained and ready civilians able to augment the full-time forces in time of national need. As part of their readiness training, these officers typically go on an annual period of active duty for training, during which they work side-by-side with their full-time active duty counterparts.
Individuals who serve in those reserve components and who earn a total of twenty or more years of qualifying federal service -- combining the active duty years with years of qualifying reserve time -- are also eligible for a federal pension. Here, though, the pension is considerably less generous: it cannot be drawn until the retired reservist attains age 60, and the monthly stipend is only a fraction of that paid to the career ...