In re Lieutenant Colonel Thomas E. Snyder, USA Retired, B-194278

• Decision Date: 25 May 1979
• Docket Number: B-194278
• Parties: IN THE MATTER OF LIEUTENANT COLONEL THOMAS E. SNYDER, USA RETIRED
• Court: Comptroller General of the United States

58 Comp.Gen. 566

IN THE MATTER OF LIEUTENANT COLONEL THOMAS E. SNYDER, USA RETIRED

No. B-194278

Comptroller General of the United States

May 25, 1979

Pay - retired -foreign citizenship effect a retired regular army officer residing in israel acquired israeli citizenship by operation of israeli law, but also remains a United States citizen. While the loss of United States citizenship is inconsistent with status as a retired regular officer and thus results in loss of status as an officer and loss of entitlement to retired pay, dual israeli/United States citizenship alone does not require loss of entitlement to retired pay. Pay - retired - foreign military service effect a retired regular army officer residing in israel who has dual israeli/United States citizenship is subject to service in the israel defense forces, the israeli armed force. Such service in a foreign armed force by a retired regular officer appears inherently inconsistent with his position as a regular army officer, as well as being prohibited (without congressional consent) by article i, section 9, clause 8 of the constitution of the United States. Thus, service in the foreign armed force would make his status as a retired army officer very doubtful. Retired pay May not be paid to him without authorizing legislation.

This issue presented by this case is the effect on a retired regular army officer's retired pay when he lives in a foreign country, acquires dual citizenship by operation of the foreign country's laws, and serves in the armed forces of the foreign country. We conclude that while dual citizenship would not affect retired pay, service in a military force of the foreign country is incompatible with regular retired status as well as contrary to a provision of the constitution. Thus, retired pay must be discontinued when a retired officer becomes a member of the foreign military force.

The matter was presented for decision by the assistant secretary of the army (installations, logistics and financial matters) and was assigned submission number ss-a-1313 by the department of defense military pay and allowance committee.

Background

The reported facts of the matter are that lieutenant colonel thomas E. Snyder, USA, was retired under 10 U.S.C. 3911 (1976) with over 20 years' service and is residing in Israel. He is a citizen of the United States but automatically acquired israeli citizenship because of his jewish heritage and residence in that country. The United States department of state and embassy in israel consider colonel snyder to have dual citizenship. Colonel snyder states that he has not relinquished his United States citizenship but acquired foreign citizenship with no action on his part. He states, however, that as a citizen of israel he is required to serve in the israel defense forces for a period of 3 or 4 weeks each year. It is not known whether he will receive pay for the time he serves.

Because of our decisions holding in certain cases that loss of United States citizenship is inconsistent with continued military status, which then entails loss of entitlement to retired pay, the assistant secretary questions colonel snyder's entitlement. He also asks if loss of entitlement to retired pay is not required because of dual citizenship, what is the proper application of article i, section 9, clause 8 of the constitution of the United States if he serves in the israel defense forces.

The assistant secretary presents the following specific questions:

1.Would colonel snyder, an officer of a regular component who retired under 10 U.S.C. 3911, and who is a citizen of the United States, forfeit his retired pay if he automatically becomes a citizen of israel by reason of his jewish heritage and residence in that country?

2. If the answer to question 1 is in the negative, does he forfeit payment of retired pay because of mandatory service in the defense forces of that country for 3 to 4 weeks each year?

3. If the answer to question 2 is in the affirmative, is the forfeiture of pay only during the period of military service or a total forfeiture?

Status of retired regular officers

Retired regular officers are members of the military service of the United States and are considered as holding an office of profit or trust. See 10 U.S.C. 3075 (1976) and puglisi v United States, 564 F.2d 403, 410 (ct.Cl. 1977), CERT. Denied 435 U.S. 968 (1978); hooper v. United States, 164 ct.Cl. 151 (1964); and United States v. Tyler, 105 U.S. 244 (1881).

Regular officers retired for years of service, such as those retired under 10 U.S.C. 3911, receive retired pay by virtue of their continuing status as military officers, and loss of that status would entail loss of entitlement to retired pay. 41 Comp.Gen. 715 (1962); 37 Id. 207, 209 (1957) (question 3); and 23 Id. 284, 286 (1943).

Loss of United States citizenship effect

It has long been our view that retired military officers who recieve retired pay by virtue of their continuing military status lose their entitlement to retired pay upon the loss of their United States citizenship. The theory in those cases is that acceptance of foreign citizenship which results in the loss of United States citizenship is repugnant to their oath of office and inconsistent with the continuation of their status as officers of the United States. See 37 Comp.Gen. 207, 209 (1957); 41 Id. 715 (1962), and 10 U.S.C. 3285 (1976). See also 44 Comp.Gen. 51 (1964), and 44 Id 227 (1964), to the same effect concerning certain retired enlisted members and members of the fleet reserve.

Since apparently colonel snyder has not lost his United States citizenship merely by residing in israel and receiving israeli citizenship, he would not lose his entitlement to retired pay on that basis. Question 1 is, therefore answered, no.

We also note, however, that section 349 of the immigration nationality act, June 27, 1952, ch. 477, 66 Stat. 163 267-268, as amended, 8 U.S.C. 1481 (1976), provides in subsection (A)(3) that a United States national shall lose his nationality by--

Entering or serving in, the armed forces of a foreign state unless, prior to such entry or service, such entry or service is specifically authorized in writing by the secretary of...