B-158027, NOVEMBER 2, 1967, 47 COMP. GEN. 221

B-158027, NOVEMBER 2, 1967, 47 COMP. GEN. 221

PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - NONACADEMY SERVICE IN THE COMPUTATION OF RETIRED PAY AUTHORIZED IN 10 U.S.C. 1331-1337 FOR NONREGULAR SERVICE, THE FULL-TIME NONACADEMY SERVICE OF A MIDSHIPMAN APPOINTED UNDER SECTION 3 OF THE ACT OF AUGUST 13, 1946, 60 STAT. 1058, MAY BE USED TO INCREASE THE MULTIPLIER FACTOR IN FORMULA 3, 10 U.S.C. 1401 --- 2-1/2 PERCENT OF YEARS OF SERVICE CREDITED UNDER SECTION 1333--- ABSENT A RESTRICTION AS TO THE STATUS IN WHICH ACTIVE SERVICE MUST HAVE BEEN PERFORMED IN ORDER TO BE CREDITABLE SERVICE. HOWEVER, IN ESTABLISHING THE MULTIPLIER FACTOR, CREDIT FOR INACTIVE MIDSHIPMAN SERVICE IN A NAVAL RESERVE PRIOR TO JULY 1, 1949 MAY ONLY BE INCLUDED PURSUANT TO THAT PART OF CLAUSE (4), SECTION 1333, THAT DOES NOT REFER TO SERVICE COVERED BY SECTION 1332 (A) (1), THE INACTIVE SERVICE CONSTITUTING "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE" ONLY WITHIN THE MEANING OF THAT PHRASE IN CLAUSE (4), SECTION 1333.

TO THE SECRETARY OF DEFENSE, NOVEMBER 2, 1967:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 28, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) FORWARDING A COPY OF COMMITTEE ACTION NO. 401 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE PRESENTING THE FOLLOWING THREE QUESTIONS FOR DECISION:

"1. UNDER THE AUTHORITY OF SECTION 3 (B) OF THE ACT OF AUGUST 13, 1946 (PUBLIC LAW 729, 79TH CONGRESS), CH. 962, 60 STAT. 1057 (1058), A MEMBER IS APPOINTED A MIDSHIPMAN IN THE NAVY AND SO SERVES ON ACTIVE DUTY FOR THE PERIOD 20 DECEMBER 1946 THROUGH 21 JULY 1948. THROUGHOUT THIS PERIOD HE HAD NO STATUS OTHER THAN MIDSHIPMAN. MAY THIS SERVICE BE USED TO INCREASE THE MULTIPLIER AUTHORIZED TO BE APPLIED UNDER SECTION 1401 OF TITLE 10, U.S.C. (FORMULA NO. 3) IN THE COMPUTATION OF RETIRED PAY UNDER CHAPTER 67?

"2. WOULD THE ANSWER BE THE SAME AS TO A MIDSHIPMAN IN THE NAVAL RESERVE APPOINTED UNDER THE AUTHORITY OF SECTION 3 (A) OF THE ACT OF AUGUST 13, 1946 WHO SIMILARLY SERVED ON ACTIVE DUTY?

"3.IF A PART OF THE SERVICE OF THE MIDSHIPMAN CONCERNED IN QUESTION 2 HAD BEEN OTHER THAN ACTIVE SERVICE, BUT IN THE STATUS OF MIDSHIPMAN, MAY SUCH SERVICE BE USED TO INCREASE THE MULTIPLIER AUTHORIZED TO BE APPLIED IN THE COMPUTATION OF RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S. CODE?

ALL THREE QUESTIONS RELATE EXCLUSIVELY TO THE MULTIPLIER FACTOR IN FORMULA NO. 3, 10 U.S.C. 1401, GOVERNING THE COMPUTATION OF RETIRED PAY AUTHORIZED IN CHAPTER 67 (SECTIONS 1331 - 1337), TITLE 10, U.S. CODE, FOR NON-REGULAR SERVICE. IT IS POINTED OUT IN COMMITTEE ACTION NO. 401 THAT THE SOLE ISSUE RAISED IS WHETHER "FULL-TIME NON-ACADEMY MIDSHIPMAN SERVICE" MAY BE USED TO INCREASE THE MULTIPLIER FACTOR IN COMPUTING CHAPTER 67 RETIRED PAY. IT IS FURTHER POINTED OUT THAT NO ISSUE IS RAISED WITH RESPECT TO ACADEMY MIDSHIPMAN SERVICE AND THE APPLICABILITY OF THE PROVISIONS OF 10 U.S.C. 6116 IN THE CASE OF NAVAL AND MARINE CORPS OFFICERS.

AS STATED IN COMMITTEE ACTION NO. 401, UNDER FORMULA NO. 3, 10 U.S.C. 1401, CHAPTER 67 RETIRED PAY IS COMPUTED BY TAKING THE RETIREE'S MONTHLY BASIC PAY (AS PROVIDED THEREIN) AND ALLOWING 2-1/2 PERCENT OF IT FOR EACH YEAR OF SERVICE CREDITED TO HIM UNDER 10 U.S.C. 1333. THUS, IN DETERMINING THE MULTIPLIER FACTOR FOR THE PURPOSE OF COMPUTING THE RETIRED PAY OF A PERSON UNDER CHAPTER 67 HIS YEARS OF SERVICE AND ANY FRACTION OF SUCH A YEAR ARE COMPUTED BY ADDING---

"/1) HIS DAYS OF ACTIVE SERVICE;

"/2) HIS DAYS OF FULL-TIME SERVICE UNDER SECTIONS 316, 502, 503, 504, AND 505 OF TITLE 32 WHILE PERFORMING ANNUAL TRAINING DUTY OR WHILE ATTENDING A PRESCRIBED COURSE OF INSTRUCTION AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY CONCERNED:

"/3) ONE DAY FOR EACH POINT CREDITED TO HIM UNDER CLAUSE (B) OR (C) OF SECTION 1332 (A) (2) OF THIS TITLE, BUT NOT MORE THAN 60 DAYS IN ANY ONE YEAR; AND

"/4) 50 DAYS FOR EACH YEAR BEFORE JULY 1, 1949, AND PROPORTIONATELY FOR EACH FRACTION OF A YEAR, OF SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE, IN THE ARMY OR THE AIR FORCE WITHOUT COMPONENT, OR IN ANY OTHER CATEGORY COVERED BY SECTION 1332 (A) (1) OF THIS TITLE EXCEPT A REGULAR COMPONENT; " AND BY DIVIDING THE SUM OF THAT ADDITION BY 360.

THE TERM "ACTIVE SERVICE"--- SEE CLAUSE (1) ABOVE--- IS DEFINED IN 10 U.S.C. 101 (24) AS MEANING "SERVICE ON ACTIVE DUTY.' SECTION 101 (22) DEFINES THE TERM "ACTIVE DUTY" AS FOLLOWS:

"-ACTIVE DUTY- MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.'

IN DECISION OF JUNE 7, 1963, 42 COMP. GEN. 669, IT WAS HELD THAT ACTIVE DUTY "NON-NAVAL CADEMY" MIDSHIPMAN SERVICE IN THE REGULAR NAVY MAY BE CREDITED TOWARD THE "MORE THAN 20 YEARS OF ACTIVE SERVICE" REQUIRED FOR RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 6323. THAT CONCLUSION RESTED ON THE FACT THAT THE RESTRICTIONS IMPOSED BY 10 U.S.C. 6116 ON SERVICE PERFORMED AS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY (OR AS A CADET AT THE U.S. MILITARY ACADEMY), IF APPOINTED AS A MIDSHIPMAN OR CADET AFTER MARCH 4, 1913, ARE NOT APPLICABLE TO ACTIVE DUTY "NON-NAVAL ACADEMY" MIDSHIPMAN SERVICE.

IN COMPUTING RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 6323 (E) THE MULTIPLIER FACTOR IS BASED ON "THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED * * * UNDER SECTION 1405," TITLE 10, U.S.C. UNDER SECTION 1405 THE NUMBER OF YEARS OF SERVICE CREDITABLE FOR THE PURPOSES OF SECTION 6323 (E) INCLUDE "HIS YEARS OF ACTIVE SERVICE.' IN DECISION OF DECEMBER 20, 1965, 45 COMP. GEN. 363, IT WAS HELD (QUOTING THE SYLLABUS):

"ACTIVE SERVICE AS A MIDSHIPMAN IN THE REGULAR NAVY PERFORMED UNDER THE AUTHORITY OF SECTION 3 OF THE ACT OF AUGUST 13, 1946, BY AN OFFICER RETIRED UNDER 10 U.S.C. 6323, PROVIDING FOR THE COMPUTATION OF RETIRED PAY AT 2-1/2 PERCENT OF THE BASIC PAY OF THE GRADE IN WHICH RETIRED, MULTIPLIED BY THE YEARS OF SERVICE PRESCRIBED BY SECTION 1405,MAY BE CREDITED TO ESTABLISH THE PERCENTAGE MULTIPLE FOR COMPUTING THE OFFICER'S RETIRED PAY, SECTION 1405 PRESCRIBING BUT NOT DEFINING YEARS OF SERVICE,- THE DEFINITIONS IN 10 U.S.C. 101 (22) AND (24) ARE FOR APPLICATION, AND THE PARAGRAPHS CONTAINING NO RESTRICTION AS TO STATUS IN WHICH ACTIVE SERVICE MUST HAVE BEEN PERFORMED IN ORDER TO BE CREDITABLE, THE ACTIVE SERVICE OF THE OFFICER AS A MIDSHIPMAN IS CREDITABLE UNDER SECTION 1405 AND SHOULD BE INCLUDED IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY.'

IN VIEW OF THE CONCLUSIONS REACHED IN THE TWO DECISIONS MENTIONED ABOVE, ACTIVE SERVICE PERFORMED AS A MIDSHIPMAN IN A "NON-ACADEMY" STATUS PROPERLY MAY BE INCLUDED IN ESTABLISHING THE MULTIPLIER FACTOR UNDER FORMULA NO. 3, 10 U.S.C. 1401, IN COMPUTING CHAPTER 67 RETIRED PAY. QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 POSES THE ISSUE WHETHER INACTIVE MIDSHIPMAN SERVICE IN THE NAVAL RESERVE MAY BE INCLUDED IN ESTABLISHING THE MULTIPLIER FACTOR IN FORMULA NO. 3, 10 U.S.C. 1401. AS ABOVE POINTED OUT THE MULTIPLIER FACTOR IN FORMULA NO. 3 IS BASED UPON THE NUMBER OF YEARS OF SERVICE CREDITABLE UNDER SECTION 1333. CLAUSE (3) OF SECTION 1333 AUTHORIZES CREDIT OF ONE DAY FOR EACH POINT CREDITED UNDER CLAUSE (B) OR (C) OF SECTION 1332 (A) (2) BUT NOT MORE THAN 60 DAYS IN ANY ONE YEAR. CLAUSE (4) OF SECTION 1333 AUTHORIZES A CREDIT OF 50 DAYS FOR EACH YEAR BEFORE JULY 1, 1949, AND PROPORTIONATELY FOR EACH FRACTION OF A YEAR OF SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE, IN THE ARMY OR THE AIR FORCE WITHOUT COMPONENT, OR IN ANY OTHER CATEGORY COVERED BY SECTION 1332 (A) (1) EXCEPT A REGULAR COMPONENT.

SECTION 1332 (B), TITLE 10, U.S. CODE, PROVIDES THAT:

"/B) THE FOLLOWING SERVICE MAY NOT BE COUNTED UNDER SUBSECTION (A):

"/7) SERVICE IN ANY STATUS OTHER THAN THAT AS COMMISSIONED OFFICER, WARRANT OFFICER, NURSE, FLIGHT OFFICER, APPOINTED AVIATION CADET, OR ENLISTED MEMBER, AND THAT DESCRIBED IN CLAUSES (I) AND (J) OF SUBSECTION (A) (1).'

SINCE MIDSHIPMAN SERVICE, ACTIVE OR INACTIVE, REGULAR OR RESERVE, IS NOT LISTED IN SUCH STATUTORY PROVISIONS, SUCH SERVICE MAY NOT BE CREDITED UNDER CLAUSE (3) OR THAT PART OF CLAUSE (4) OF SECTION 1333 WHICH REFERS TO SERVICE COVERED BY SECTION 1332 (A) (1). HOWEVER, INACTIVE SERVICE AS A RESERVE MIDSHIPMAN DOES CONSTITUTE "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE" WITHIN THE MEANING OF THAT PHRASE CONTAINED IN CLAUSE (4), SECTION 1333. THEREFORE INACTIVE RESERVE MIDSHIPMAN SERVICE PRIOR TO JULY 1, 1949, SHOULD BE CREDITED AS THERE PRESCRIBED IN ESTABLISHING THE MULTIPLIER FACTOR IN FORMULA NO. 3, 10 U.S.C. 1401. QUESTION 3 IS ANSWERED ACCORDINGLY.