B-115877, JAN 11, 1954

B-115877: Jan 11, 1954

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PRECIS-UNAVAILABLE THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF JUNE 17. WHICH IS CREDITABLE IN ACCORDANCE WITH SECTION 302(C). IN VIEW OF THE FOREGOING STATUTORY PROVISIONS THE QUESTION PRESENTED IS WHETHER INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE MAY BE CREDITED IN DETERMINING ELIGIBILITY UNDER SECTION 302(A) AND IN THE COMPUTATION OF RETIRED PAY UNDER SECTION 303. UNDER THIS PROVISION THERE IS GENERALLY FOR EXCLUSION FROM ANY PERIOD OF SERVICE OTHERWISE AUTHORIZED TO BE DEEMED AS FEDERAL SERVICE FOR THE PURPOSES OF TITLE III ALL SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE. THIS IS RENDERED DOUBTFUL.

B-115877, JAN 11, 1954

PRECIS-UNAVAILABLE

THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF JUNE 17, 1953, FROM THE ACTING SECRETARY OF THE NAVY, FORWARDING A LETTER DATED MAY 12, 1953, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING DECISION AS TO WHETHER INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE, PRIOR TO JULY 1, 1949, MAY BE CREDITED IN DETERMINING ELIGIBILITY TO RECEIVE RETIRED PAY AND IN THE COMPUTATION OF SUCH RETIRED PAY UNDER THE PROVISIONS OF SECTIONS 302(C) AND 303, RESPECTIVELY, TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AS AMENDED, 34 U.S.C. 440H, ET SEQ.

SECTION 302(A) PROVIDES THAT ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED "SATISFACTORY FEDERAL SERVICE," AS DEFINED IN THAT SECTION, SHALL UPON APPLICATION THEREFOR BE GRANTED RETIRED PAY. SECTION 302(C), AS AMENDED BY THE ACT OF SEPTEMBER 7, 1949, 63 STAT. 693, PROVIDES:

"EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, SHALL BE DEEMED TO BE A YEAR OF SATISFACTORY FEDERAL SERVICE FOR THE PURPOSES OF THIS SECTION, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) OF SECTION 306 OF THIS ACT."

WHILE THIS SUBSECTION BY EXPRESS REFERENCE TO SECTION 306(E) SPECIFICALLY EXCLUDES CERTAIN INACTIVE SERVICE OF PERSONNEL OF THE ARMY AND AIR FORCE MENTIONED IN THE LATTER SUBSECTION, IT OTHERWISE PROVIDES WITHOUT LIMITATION THAT EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, SHALL BE DEEMED TO BE A YEAR OF "SATISFACTORY FEDERAL SERVICE" FOR THE PURPOSE OF COMPUTING THE NUMBER OF YEARS OF SATISFACTORY FEDERAL SERVICE PRESCRIBED IN SUBSECTION (A). ALSO, THE LAST PROVISO OF SECTION 303 PROVIDES THAT FOR EACH YEAR OF FEDERAL SERVICE, OTHER THAN ACTIVE FEDERAL SERVICE, PERFORMED AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, AND WHICH IS CREDITABLE IN ACCORDANCE WITH SECTION 302(C), SUCH MEMBER SHALL BE CREDITED WITH 50 DAYS FOR EACH OF SUCH YEARS FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY.

IN VIEW OF THE FOREGOING STATUTORY PROVISIONS THE QUESTION PRESENTED IS WHETHER INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE MAY BE CREDITED IN DETERMINING ELIGIBILITY UNDER SECTION 302(A) AND IN THE COMPUTATION OF RETIRED PAY UNDER SECTION 303, NOTWITHSTANDING THE PROVISIONS OF SECTION 306(F), 62 STAT. 1090, 34 U.S.C. 440MF).

FOR THE PURPOSES OF TITLE III OF THE ACT OF JUNE 29, 1948, SECTION 306(F) PROVIDES AS FOLLOWS:

"(F) SUBJECT TO THE PROVISIONS OF SUBSECTION (D) HEREOF, SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL AND MARINE CORPS RESERVES SHALL NOT BE DEEMED TO BE FEDERAL SERVICE."

UNDER THIS PROVISION THERE IS GENERALLY FOR EXCLUSION FROM ANY PERIOD OF SERVICE OTHERWISE AUTHORIZED TO BE DEEMED AS FEDERAL SERVICE FOR THE PURPOSES OF TITLE III ALL SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE, OTHER THAN PERIODS OF ACTIVE DUTY PERFORMED UNDER COMPETENT FEDERAL ORDERS AND PERIODS OF ANNUAL TRAINING DUTY OR ATTENDANCE AT SERVICE SCHOOLS AS PROVIDED IN SECTION 306(D). STANDING ALONE, THE SAID SUBSECTION (F) WOULD DENOTE A LEGISLATIVE INTENT TO EXCLUDE ALL INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE FOR THE PURPOSES OF TITLE III. THIS IS RENDERED DOUBTFUL, HOWEVER, BY THE LANGUAGE USED IN SECTIONS 302(A) AND 302(E), INDICATING THAT EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN SAID SECTION 302, THE TERM "SATISFACTORY FEDERAL SERVICE" AS THEREIN DEFINED FOR THE PURPOSES OF SUCH SECTION IS NOT TO BE LIMITED OR RESTRICTED BY THE PROVISIONS ELSEWHERE CONTAINED IN TITLE III.

THE BROAD QUESTION CONSIDERED IN THE DECISION OF MAY 20, 1949, 28 COMP. GEN. 655, RELATED TO THE COUNTING OF TIME IN THE HONORARY RESERVE OF THE ARMY OFFICERS' RESERVE CORPS FOR RETIRED PAY PURPOSES UNDER TITLE III, AND SPECIFIC REFERENCE WAS MADE TO THE PROHIBITIONS CONTAINED IN SECTIONS 306(E) AND 306(F). IT IS TO BE NOTED PARTICULARLY, HOWEVER, THAT WHILE SECTION 302(C), QUOTED ABOVE, EXPRESSLY REFERS TO SECTION 306(E) AND SPECIFICALLY EXCLUDES THE INACTIVE ARMY AND AIR FORCE SERVICE THERE DESCRIBED, THERE IS NO SIMILAR REFERENCE TO SECTION 306(F), RELATING TO INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE. THIS SHOWS THAT THE LEGISLATORS HAD THE PROVISIONS OF SECTION 306 IN MIND IN DRAFTING SECTION 302 AND CONSIDERED IT NECESSARY TO EXCLUDE SPECIFICALLY THE INACTIVE ARMY SERVICE GENERALLY EXCLUDED BY SECTION 306(E). THE FACT THAT NO SIMILAR MENTION WAS MADE OF SECTION 306(F) CLEARLY INDICATES THAT THE INTENTION WAS NOT TO EXCLUDE INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE FOR SECTION 302 PURPOSES. THIS DIFFERENCE IN TREATMENT MAY BE ASCRIBED TO THE FACT THAT MEMBERS ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE ARE SUBJECT TO CALL TO ACTIVE DUTY IN TIME OF WAR AND, WITH THEIR CONSENT, IN TIME OF PEACE. WHILE THE MATTER IS NOT WHOLLY FREE FROM DOUBT, THE CONCLUSION APPEARS TO BE WARRANTED THAT SUBSECTIONS (A) AND (C) OF SECTION 302 ARE NOT SUBJECT TO THE PROVISIONS OF SECTION 306(F). OTHERWISE THE INCLUSION IN SECTION 302(C) OF THE REFERENCE TO SECTION 306(E) AND THE EXCLUSION OF ANY SUCH REFERENCE TO SECTION 306(F) WOULD APPEAR MEANINGLESS.

ON THAT BASIS, EACH YEAR OF INACTIVE SERVICE PRIOR TO JULY 1, 1949, ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE, BEING SERVICE AS A MEMBER OF A RESERVE COMPONENT, IS TO BE DEEMED A YEAR OF SATISFACTORY FEDERAL SERVICE AS PROVIDED IN SECTION 302(C) FOR THE PURPOSES OF THAT SECTION. IT FOLLOWS THAT INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVAL OR MARINE CORPS RESERVE PRIOR TO JULY 1, 1949, MAY BE INCLUDED IN DETERMINING ELIGIBILITY UNDER SECTION 302 TO THE RETIRED PAY BENEFITS THEREIN PRESCRIBED AND ALSO IN THE COMPUTATION OF SUCH RETIRED PAY UNDER THE LAST PROVISO OF SECTION 303.

THE QUESTION PRESENTED IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE.