B-129286, OCTOBER 29, 1964, 44 COMP. GEN. 235

B-129286, OCTOBER 29, 1964, 44 COMP. GEN. 235

PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - SERVICE CREDITS - RETIREMENT FROM ARMED FORCES ALTHOUGH A PERIOD OF ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE CORPS OF THE PUBLIC HEALTH SERVICE MAY NOT BE INCLUDED BY A NAVY OFFICER IN ESTABLISHING ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 6323, NONE OF STATUTORY PROVISIONS DEFINING THE TERM "ARMED FORCES" REFERRING TO THE PUBLIC HEALTH SERVICE OR THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE AS CONSTITUTING A PART OF THE ARMED FORCES, IN THE EVENT THE OFFICER BECOMES OTHERWISE ELIGIBLE FOR RETIREMENT AND IS RETIRED PURSUANT TO 10 U.S.C. 6232, IN THE COMPUTATION OF HIS RETIRED PAY UNDER 10 U.S.C. 6323 (E), HIS COMMISSIONED SERVICE IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MAY BE INCLUDED IN DETERMINING THE SERVICE MULTIPLIER FACTOR PRESCRIBED IN 10 U.S.C. 6323 (E) BY VIRTUE OF 10 U.S.C. 1405 (3), THE OFFICER HAVING BEEN ENTITLED PRIOR TO THE EFFECTIVE DATE OF SECTION 1405 TO BE CREDITED WITH SUCH SERVICE IN THE COMPUTATION OF HIS BASIC PAY.

TO THE SECRETARY OF THE NAVY, OCTOBER 29, 1964:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 3, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION WHETHER ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE DURING THE PERIOD FROM OCTOBER 22, 1947, TO OCTOBER 4, 1949, MAY BE COUNTED BY CAPTAIN JAMES D. KING, MC, USN, FOR PURPOSES OF RETIREMENT AND COMPUTATION OF RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 6323. THE REQUEST FOR DECISION WAS ASSIGNED CLEARANCE NO. SS-N 799 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT CAPTAIN KING SERVED ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES DURING WORLD WAR II AND THAT HE HAS BEEN ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE REGULAR NAVY SINCE NOVEMBER 4, 1949. THE ISSUE PRESENTED IS WHETHER ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MAY BE INCLUDED BY AN OFFICER OF THE NAVY IN DETERMINING ELIGIBILITY FOR RETIREMENT AND IN THE COMPUTATION OF RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 6323.

SECTION 6323, TITLE 10, U.S. CODE, WAS AMENDED BY SECTION 1 (142) OF PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1509, AND BY SECTION 5 (H) (4) OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, OCTOBER 2, 1963, 77 STAT. 214, TO READ, IN PERTINENT PART, AS FOLLOWS:

(A) AN OFFICER OF THE NAVY OR THE MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT.

(B) FOR THE PURPOSES OF THIS SECTION---

(1) AN OFFICER'S YEARS OF ACTIVE SERVICE ARE COMPUTED BY ADDING ALL HIS ACTIVE SERVICE IN THE ARMED FORCES; AND

(2) HIS YEARS OF SERVICE AS A COMMISSIONED OFFICER ARE COMPUTED BY ADDING ALL HIS ACTIVE SERVICE IN THE ARMED FORCES UNDER PERMANENT OR TEMPORARY APPOINTMENTS IN GRADES ABOVE WARRANT OFFICER, W-1.

(E) UNLESS OTHERWISE ENTITLED TO HIGHER PAY, AN OFFICER RETIRED UNDER THIS SECTION IS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE IN WHICH RETIRED MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED.

COMMENTING ON SUBSECTION (B) OF SECTION 6323, IT IS STATED AT PAGE 71, S.REPT. NO. 2095, ON H.R. 8493, 85TH CONG., WHICH BECAME THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-861, THAT "IN SUBSECTION (B), THE WORDS "ARMED FORCES" ARE SUBSTITUTED FOR THE WORDS "NAVY, MARINE CORPS, ARMY, AIR FORCE, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF" BECAUSE "ARMED FORCES," AS DEFINED IN THIS TITLE, IS A COLLECTIVE TERM FOR THESE ELEMENTS.'

THE LEGISLATIVE HISTORY OF SECTION 6323 CONFIRMS THE FOREGOING COMMENTS. SECTION 6323, TITLE 10, U.S. CODE, AS CODIFIED IN THE ACT OF AUGUST 10, 1956, WAS DERIVED FROM SECTION 6, ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, 34 U.S.C. 410B (1952 ED.), WHICH PROVIDED THAN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF WHO HAD ,COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF," COULD, UPON HIS OWN APPLICATION AND IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST. SECTION 6 OF THE 1946 ACT WAS AMENDED BY SECTION 1, ACT OF AUGUST 4, 1955, CH. 553, 69 STAT. 493, SO AS TO READ "COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, ARMY, AIR FORCE, OR COAST GUARD OR THE RESERVE COMPONENTS THEREOF.' THUS, THE LANGUAGE OF 10 U.S.C. 6323 (B), AS PRESCRIBED IN PUBLIC LAW 85-861, SEPTEMBER 2, 1958,REFLECTS THE PROVISIONS OF SECTION 6 OF THE 1946 ACT, AS AMENDED BY THE ACT OF OCTOBER 4, 1955.

THE TERM "ARMED FORCES" IS EXPRESSLY DEFINED IN 10 U.S.C. 101 (4) FOR THE PURPOSES OF THAT TITLE AS MEANING THE "ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD.' IN 10 U.S.C. 3062 (C) IT IS PROVIDED THAT THE ARMY RESERVE IS A COMPONENT OF THE ARMY; IN 10 U.S.C. 5001 (A) (1) AND (2) THAT THE TERMS "NAVY" AND "MARINE CORPS" INCLUDE THE NAVAL RESERVE AND THE MARINE CORPS RESERVE, RESPECTIVELY; IN 10 U.S.C. 8062 (D) THAT THE AIR FORCE RESERVE IS A COMPONENT OF THE AIR FORCE AND IN 14 U.S.C. 751A THAT THE COAST GUARD RESERVE IS THE RESERVE COMPONENT OF THE COAST GUARD. NONE OF THE STATUTORY PROVISIONS ABOVE REFERRED TO IS THE PUBLIC HEALTH SERVICE OR THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MENTIONED AS CONSTITUTING A PART OF THE "ARMED FORCES.' THE TERMS "UNIFORMED SERVICES" AND "ARMED FORCES" ARE DEFINED IN CLAUSES (3) AND (4), RESPECTIVELY, SECTION 101, TITLE 37, U.S. CODE, PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 451. IN CLAUSE (3) THE TERM "UNIFORMED SERVICES" INCLUDES THE PUBLIC HEALTH SERVICES, WHEREAS IN CLAUSE (4) THE TERM "ARMED FORCES" IS DEFINED IN PRECISELY THE SAME MANNER AS THAT TERM IS DEFINED IN 10 U.S.C. 101 (4).

IT IS EVIDENT THAT CONGRESS WAS FULLY AWARE AND DID NOT INTEND THAT THE PUBLIC HEALTH SERVICE SHOULD BE CONSIDERED AS COMING WITHIN THE SCOPE OF THE TERM "ARMED FORCES" AS USED IN TITLE 10, UNITED STATES CODE.

IN THE CIRCUMSTANCES, THE CONCLUSION APPEARS REQUIRED THAT CAPTAIN KING MAY NOT INCLUDE HIS ACTIVE SERVICE IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE TO ESTABLISH ELIGIBILITY FOR RETIREMENT AS AN OFFICER OF THE REGULAR NAVY UNDER THE PROVISIONS OF 10 U.S.C. 6323 (A) AND (B).

IN THE EVENT THAT CAPTAIN KING, AFTER EXCLUDING HIS ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, BECOMES OTHERWISE ELIGIBLE AND IS RETIRED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6323, THE COMPUTATION OF HIS RETIRED PAY UNDER 10 U.S.C. 6323 (E) WOULD BE BASED ON THE "BASIC PAY OF THE GRADE IN WHICH RETIRED MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 (OF TITLE 10, U.S. CODE).' UNDER CURRENT PROVISIONS OF LAW, 37 U.S.C. 205 (A) (2), PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 458, THE SERVICE CREDITABLE IN COMPUTING HIS BASIC PAY WOULD INCLUDE ALL HIS SERVICE AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE. SECTION 11 (A) (1) (A), PUBLIC LAW 85-422, MAY 20, 1958, 72 STAT. 130, ADDED SECTION 1405 TO TITLE 10, U.S.C. SECTION 1405 BECAME EFFECTIVE JUNE 1, 1958 (SEE SECTION 9, PUBLIC LAW 84-422) AND AS AMENDED BY SECTION 1 (31A) PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1451 AND BY SECTION 6 (F) (4), PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 494, IN PERTINENT PART PROVIDES, UNDER THE HEADING "YEARS OF SERVICE"---

FOR THE PURPOSES OF SECTION * * * 6323 (E) * * * THE YEARS OF SERVICE OF A MEMBER OF THE ARMED FORCES ARE COMPUTED BY ADDING---

(1) HIS YEARS OF ACTIVE SERVICE;

(2) THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 205 (A) (7) AND (8) OF TITLE 37;

(3) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1) OR (2) WITH WHICH HE WAS ENTITLED TO BE CREDITED, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS SECTION, IN COMPUTING HIS BASIC PAY; AND

(4) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1), (2), OR (3), WITH WHICH HE WOULD BE ENTITLED TO BE CREDITED UNDER SECTION 1333 OF THIS TITLE, IF HE WERE ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE.

IT WOULD APPEAR THAT ON MAY 31, 1958, THE DAY BEFORE THE EFFECTIVE DATE OF SECTION 1405, CAPTAIN KING WAS ENTITLED TO BE CREDITED IN THE COMPUTATION OF HIS BASIC PAY WITH ALL HIS COMMISSIONED SERVICE IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE. SEE 37 U.S.C. 233 (A) (2) (1958 ED.). HENCE, IF CAPTAIN KING IS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 6323, HIS COMMISSIONED SERVICE IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MAY BE INCLUDED (BY VIRTUE OF CLAUSE (3), SECTION 1405, TITLE 10, U.S. CODE) IN DETERMINING THE MULTIPLIER FACTOR PRESCRIBED IN 10 U.S.C. 6323 (E).

SPECIFIC REFERENCE IS MADE IN THE LETTER OF SEPTEMBER 3, 1964, TO SEVERAL EXECUTIVE ORDERS (THEREIN CITED) DECLARING THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE "TO BE A MILITARY SERVICE.' EVIDENTLY IT IS THOUGHT THAT BECAUSE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE WAS A "MILITARY SERVICE" DURING THE PERIOD THAT CAPTAIN KING WAS ON ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE (OCTOBER 22, 1947, TO OCTOBER 4, 1949) HE MAY BE CREDITED WITH SUCH SERVICE IN DETERMINING HIS ENTITLEMENT TO THE RETIREMENT PRIVILEGES PRESCRIBED IN 10 U.S.C. 6323 (A). WE FIND NO BASIS FOR SUCH CONCLUSION SINCE A DETERMINATION THAT THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE WAS A MILITARY SERVICE IS NOT A RELEVANT FACTOR FOR CONSIDERATION UNDER THE PROVISIONS OF LAW CITED ABOVE WHICH GOVERN HIS RIGHTS IN THE PREMISES.