B-114910, SEPTEMBER 11, 1953, 33 COMP. GEN. 118

B-114910: Sep 11, 1953

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PAY - RETIRED - SERVICE - CREDITS - NATIONAL GUARD SERVICE MEMBERSHIP ALONE IN THE NATIONAL GUARD IS NOT SUFFICIENT TO BE REGARDED AS ACTIVE SERVICE WITHIN THE MEANING OF THE RETIRED PAY COMPUTATION PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. PRESENTING FOR DECISION THE QUESTION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER (TRANSMITTED WITH YOUR LETTER) IN FAVOR OF LIEUTENANT COLONEL EDGAR C. SUCH INCREASE IS THE DIFFERENCE BETWEEN 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH 29 YEARS. COLONEL COURSEN'S RIGHT TO SUCH INCREASED RETIRED PAY IS DEPENDENT UPON WHETHER HIS SERVICE AGGREGATING 6 YEARS. DURING WHICH HE WAS NOT IN THE ACTIVE FEDERAL SERVICE.

B-114910, SEPTEMBER 11, 1953, 33 COMP. GEN. 118

PAY - RETIRED - SERVICE - CREDITS - NATIONAL GUARD SERVICE MEMBERSHIP ALONE IN THE NATIONAL GUARD IS NOT SUFFICIENT TO BE REGARDED AS ACTIVE SERVICE WITHIN THE MEANING OF THE RETIRED PAY COMPUTATION PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AND THEREFORE A RETIRED ARMY OFFICER MAY NOT INCLUDE SERVICE IN THE NATIONAL GUARD, EXCEPT FOR PERIODS OF ACTIVE DUTY AS SPECIFIED IN SECTION 511, FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR TO TO USED IN COMPUTING RETIRED PAY UNDER THE FORMULA PRESCRIBED IN METHOD (B) OF THE SAID SECTION.

COMPTROLLER GENERAL WARREN TO LIEUTENANT COLONEL JAMES H. COMINGS, DEPARTMENT OF THE ARMY, SEPTEMBER 11, 1953:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 26, 1953, WITH ENCLOSURES, FORWARDED HERE BY FIRST ENDORSEMENT OF THE CHIEF OF FINANCE, DATED APRIL 21, 1953, PRESENTING FOR DECISION THE QUESTION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER (TRANSMITTED WITH YOUR LETTER) IN FAVOR OF LIEUTENANT COLONEL EDGAR C. (G.) COURSEN, JR., UNITED STATES, ARMY, RETIRED, IN THE AMOUNT OF $2,985.84, REPRESENTING INCREASED RETIRED PAY FOR THE PERIOD JULY 1, 1950, TO MARCH 31, 1953. SUCH INCREASE IS THE DIFFERENCE BETWEEN 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH 29 YEARS, 6 MONTHS, AND 28 DAYS' SERVICE, UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, AND 75 PERCENTUM OF THE ACTIVE DUTY PAY OF AN OFFICER OF THAT GRADE AND LENGTH OF SERVICE, UNDER THE LAWS IN EFFECT SUBSEQUENT TO THAT DATE.

COLONEL COURSEN'S RIGHT TO SUCH INCREASED RETIRED PAY IS DEPENDENT UPON WHETHER HIS SERVICE AGGREGATING 6 YEARS, 7 MONTHS, AND 5 DAYS IN THE PENNSYLVANIA NATIONAL GUARD, BETWEEN APRIL 21, 1905, AND AUGUST 13, 1916, DURING WHICH HE WAS NOT IN THE ACTIVE FEDERAL SERVICE, MAY BE CONSIDERED AS "ACTIVE SERVICE" FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829.

COLONEL COURSEN APPARENTLY ASSUMES THAT HE IS ENTITLED TO COUNT SUCH SERVICE AS ACTIVE SERVICE IN VIEW OF THE DECISION BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF PRICE V. UNITED STATES, 121 C.1CLS. 664. HOWEVER, IN THAT CASE IT WAS HELD MERELY THAT SERVICE IN THE NATIONAL GUARD PRIOR TO JUNE 3, 1916, WAS SERVICE IN THE FEDERALLY RECOGNIZED NATIONAL GUARD WITHIN THE PURVIEW OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, THE QUESTION AS TO WHETHER SUCH SERVICE COULD BE CONSIDERED AS "ACTIVE SERVICE" NOT BEING PRESENT IN THAT CASE. COMPARE, IN THAT CONNECTION, THE SUPPLEMENTAL OPINION RENDERED IN THE PRICE CASE, 121 C.1CLS. 681. BE THAT AS IT MAY, THE SAID SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES, IN PERTINENT PART THAT:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION * * * MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: * * * (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING * * * SATISFACTORILY HELD, BY SUCH MEMBER * * * AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: * * * PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION, THE TERM ,ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN THE NATIONAL DEFENSE ACT, AS AMENDED * * * OR IN OTHER PROVISIONS OF LAW, INCLUDING PARTICIPATION IN EXERCISES OR THE PERFORMANCE OF THE DUTIES PROVIDED FOR BY SECTIONS 5, 81, 92, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED * * *. ( ITALICS SUPPLIED.)

OF COURSE, COLONEL COURSEN'S SERVICE IN THE NATIONAL GUARD MAY NOT BE CONSIDERED AS SERVICE ON THE "ACTIVE LIST" SINCE IT LONG HAS BEEN RECOGNIZED THAT THE TERM "ACTIVE LIST," WHEN USED WITH REFERENCE TO MEMBERS OF THE UNIFORMED SERVICES, IS USED TO DENOTE MEMBERS OF THE REGULAR COMPONENTS OF SUCH SERVICES AS DISTINGUISHED FROM MEMBERS OF THE RESERVE COMPONENTS AND MEMBERS ON THE RETIRED LISTS. SEE 25 COMP. GEN. 203; 26 ID. 171. NOR DOES HIS MEMBERSHIP IN THE NATIONAL GUARD FROM APRIL 21, 1905, TO AUGUST 13, 1916, QUALIFY AS ACTIVE SERVICE AS OTHERWISE DEFINED IN SECTION 511, I.E., "ACTIVE DUTY," "FULL-TIME TRAINING DUTY," AND "OTHER FULL-TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT (OF JUNE 3, 1916), AS AMENDED," "INCLUDING PARTICIPATION IN EXERCISES OR PERFORMANCE OF THE DUTIES PROVIDED FOR BY SECTIONS 5, 81, 92, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT (OF JUNE 3, 1916) AS AMENDED.' UNDER THE WELL SETTLED RULES OF STATUTORY CONSTRUCTION, THE SPECIFIC ENUMERATION OF THE TYPES OF SERVICE WHICH MAY BE CONSIDERED AS ACTIVE SERVICE WITHIN THE PURVIEW OF SECTION 511 PRECLUDES THE VIEW THAT THE INCLUSION OF OTHER TYPES OF SERVICE NOT SO ENUMERATED WAS INTENDED. THERE OBVIOUSLY WOULD BE NO REASON THUS TO SPECIFY AND INCLUDE CERTAIN PARTICULAR NATIONAL GUARD DUTIES IN THE DEFINITION OF "ACTIVE SERVICE" IF MERE MEMBERSHIP IN THE NATIONAL GUARD WAS ALONE SUFFICIENT TO BE REGARDED AS SUCH ACTIVE SERVICE. HENCE, EXCEPT FOR ANY PERIODS OF ACTIVE DUTY, ETC., AS SPECIFIED IN THE DEFINITION, THERE IS NO BASIS FOR CONSIDERING THE OFFICER'S MEMBERSHIP IN THE NATIONAL GUARD DURING THE PERIOD IN QUESTION AS ACTIVE SERVICE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER THE 1949 ACT. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.