Sergeant First Class Charles J. O'Fearna, USA, B-212481

• Decision Date: 02 February 1984
• Docket Number: B-212481
• Parties: SERGEANT FIRST CLASS CHARLES J. O'FEARNA, USA (RET.):
• Court: Comptroller General of the United States

SERGEANT FIRST CLASS CHARLES J. O'FEARNA, USA (RET.):

No. B-212481

Comptroller General of the United States

February 2, 1984

Digest a retired member of the armed forces who becomes a citizen of a foreign country by naturalization and who voluntarily renounces his united states citizenship loses the right to retired pay since entitlement to retired pay depends upon the continuation of the individual's status as a retired member of the military service available for service as required and that status is incompatible with renunciation of united states citizenship. However, such a person who elected to participate in the survivor benefit plan and from whose retired pay the required deductions were being made for coverage under the plan when he renounced his U.S Citizenship, May continue coverage under the plan by making the required payments into the treasury.

Former sergeant first class charles J. O'fearna seeks restoration of his military retired pay which was terminated upon his becoming a citizen of Australia. The question is also raised as to whether Mr. O'fearna May continue participation in the survivor benefit plan if his retired pay is terminated provided he deposits the amounts in the treasury which would otherwise be deducted from his retired pay. Retired pay May not be reinstated because a continuing status as a retired member of the army is not compatible with renunciation of united states citizenship; however, he May continue participation in the survivor benefit plan by making the required payments. Fn1

Facts

Although we have not been furnished a complete history of Mr O'fearna's service, the facts given are sufficient for purposes of the questions presented. On July 31, 1965, he was retired after serving over 22 years in the regular army. As required by law he was transferred to the army reserves until the completion of a total of 30 years active and reserve service, at which time he was fully retired. 10 U.S.C. Sec. 3914. However, notwithstanding his reserve status, Mr. O'fearna moved to australia in 1966, where he has lived ever since. On December 21, 1972, he elected to participate in the survivor benefit plan to provide an annuity for his wife upon his death. Apparently, the required deductions were made from his monthly retired pay payments to cover the cost of his participation in the plan. See 10 U.S.C. Sec. 1452.

The questions of retired pay entitlement and survivor benefit plan participation result from the fact that Mr. O'fearna became a naturalized citizen of australia on April 29, 1981. Mr. O'fearna continued to receive his retired pay until May 1, 1982, at which time the department of the army terminated his retired pay on the basis that he was an australian citizen. Apparently this action was initiated as a result of a letter Mr. O'fearna wrote to the finance center asking that federal income tax withholding from his retired pay be discontinued in view of the fact that he had become a citizen of Australia. In response the finance center advised that if a retiree loses his U.S. Citizenship he also loses his entitlement to retired pay. In addition to having his retired pay stopped, Mr. O'fearna was advised that he would have to refund the retired pay he received for the period from April 29, 1981, through April 30, 1982.

Because he became an australian citizen, Mr. O'fearna was issued a certificate of loss of nationality of the united states by the U.S. Department of state expatriating him as of the date he became a naturalized australian. Fn2 the certificate of loss of nationality was issued by the department on August 5 1982, and forwarded to Mr. O'fearna by letter from the consulate general in sydney, australia, on August 26, 1982. Instructions were included for appeal of the "loss of nationality, " but there is no indication that an appeal was ever filed. Mr. O'fearna's attorney does not base his argument for restoration of retired pay on the question of whether Mr. O'fearna lost U.S. Citizenship, and it appears that the loss of citizenship is admitted.

It is noted that loss of U.S. Citizenship requires a specific intent and action by the individual concerned to renounce U.S. Citizenship. See vance v. Terrazas, 444 U.S. 252 (1979); terrazas v. Haig, 653 F.2d 285 (1981) (on remand). However the action by the department of state in issuing a certificate of loss of nationality which to our knowledge has not been revoked or even questioned is determinative of that issue for purposes of this decision.

Retired pay

We have held that a military retiree is no longer entitled to receive retired pay if he loses U.S. Citizenship by acquiring foreign citizenship. 44 Comp.Gen. 51 (1964); matter of snyder, 58 Comp.Gen. 566 (1979). This position is predicated on the fact that the military status of a retired member continues after retirement and the right to retired pay is dependent upon continuation of that status. 37 Comp.Gen. 207, 209 (1957). A retired member remains a part of the army and his right to retired pay is contingent upon maintaining his military status. In some cases citizenship is not a requirement for enlistment in the armed forces if the individual owes allegiance to the united states. However, a member's...