B-126606, MAY 7, 1956, 35 COMP. GEN. 630

B-126606, MAY 7, 1956, 35 COMP. GEN. 630

PAY - SERVICE CREDITS - TIME BETWEEN GRADUATION FROM MILITARY ACADEMY AND OFFICER'S COMMISSION ARMY OFFICER WHO, PRIOR TO GRADUATION FROM UNITED STATES MILITARY ACADEMY, WAS DETERMINED TO BE PHYSICALLY DISQUALIFIED FOR REGULAR ARMY APPOINTMENT BUT, NEVERTHELESS WAS PERMITTED TO GRADUATE AND WHO, AFTER AN OPERATION WHICH REMOVED THE DISQUALIFICATION, RECEIVED A COMMISSION IS ENTITLED TO COUNT SERVICE AS A GRADUATED CADET FROM GRADUATION TO ACCEPTANCE OF COMMISSION IN THE COMPUTATION OF BASIC PAY.

TO MAJOR R. U. IVEY, DEPARTMENT OF THE ARMY, AMY 7, 1956:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 21, 1955, FORWARDED HERE BY SECOND ENDORSEMENT OF THE CHIEF OF FINANCE DATED JANUARY 11, 1956, REQUESTING A DECISION WHETHER LIEUTENANT ROGER L. RODERICK PROPERLY MAY COUNT, FOR BASIC PAY PURPOSES, THE PERIOD FROM THE DATE OF HIS GRADUATION FROM THE UNITED STATES MILITARY ACADEMY ( JUNE 2, 1953), TO THE DATE OF HIS ACCEPTANCE OF COMMISSION AS SECOND LIEUTENANT IN THE REGULAR ARMY ( JULY 2, 1954). A MILITARY PAY ORDER IN HIS FAVOR, AND RELATED PAPERS, WERE SUBMITTED WITH YOUR LETTER.

IT APPEARS THAT, PRIOR TO GRADUATION FROM THE UNITED STATES MILITARY ACADEMY, CADET RODERICK WAS DETERMINED TO BE PHYSICALLY DISQUALIFIED FOR A REGULAR ARMY APPOINTMENT. ON THE RECOMMENDATION OF THE SUPERINTENDENT OF THE MILITARY ACADEMY, HOWEVER, HE WAS PERMITTED TO CONTINUE THE COURSE AND GRADUATE SINCE IT APPEARED THAT AN OPERATION WOULD REMOVE HIS PHYSICAL DISQUALIFICATION. HE GRADUATED FROM THE MILITARY ACADEMY ON JUNE 2, 1953, AND SHORTLY THEREAFTER HE UNDERWENT AN OPERATION AND WAS DETERMINED TO BE PHYSICALLY QUALIFIED FOR A REGULAR ARMY APPOINTMENT. IT FURTHER APPEARS THAT HE WAS COMMISSIONED A SECOND LIEUTENANT ON JULY 2, 1954, WITH DATE OF RANK FROM JUNE 2, 1953. LIEUTENANT RODERICK STATES THAT FOLLOWING GRADUATION HE WAS A PATIENT AT WALTER REED ARMY HOSPITAL FOR APPROXIMATELY TWO MONTHS AND ON CONVALESCENT LEAVE UNTIL JULY 2, 1954, WHEN HE RECEIVED HIS COMMISSION.

SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233, LISTING OR DESCRIBING THE CLASSES OF SERVICE TO BE CREDITED IN THE COMPUTATION OF THE BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, AUTHORIZES THE CREDITING OF "ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.' THE OFFICER'S MILITARY PAY RECORD OPENED JANUARY 1, 1954, SHOWS A RETROACTIVE CREDIT OF PAY AND ALLOWANCES AS SECOND LIEUTENANT FOR THE PERIOD JUNE 2, 1953, TO JUNE 30, 1954. PRESUMABLY SUCH CREDIT WAS MADE UNDER THE PROVISIONS OF THE ACT OF DECEMBER 20, 1886, AS AMENDED, 10 U.S.C. 1150, WHICH READS AS FOLLOWS:

EVERY CADET WHO HAS GRADUATED OR MAY GRADUATE AT THE WEST POINT MILITARY ACADEMY, AND WHO HAS BEEN OR MAY BE COMMISSIONED A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES, UNDER THE LAWS APPOINTING SUCH GRADUATE TO THE ARMY, SHALL BE ALLOWED FULL PAY AS SECOND LIEUTENANT FROM THE DATE OF HIS GRADUATION TO THE DATE OF HIS ACCEPTANCE OF AND QUALIFICATION UNDER HIS COMMISSION IN ACCORDANCE WITH THE UNIFORM PRACTICE WHICH HAS PREVAILED SINCE THE ESTABLISHMENT OF THE MILITARY ACADEMY.

PRIOR TO THE ENACTMENT OF THE ACT OF DECEMBER 20, 1886, THE RIGHT OF A GRADUATED CADET TO THE PAY OF AN OFFICER WAS CONSIDERED BY THE SECOND COMPTROLLER IN A DECISION DATED OCTOBER 24, 1885. IT WAS HELD IN THAT DECISION THAT GRADUATION DOES NOT MAKE A CADET AN OFFICER AND THAT A GRADUATED CADET IS ONLY A "CANDIDATE FOR A COMMISSION" AND CONTINUES TO BE A CADET UNTIL HE IS MADE AN OFFICER AS PROVIDED BY LAW OR UNTIL HE IS DISCHARGED FROM THE SERVICE. SEE DIGEST, SECOND COMPTROLLER'S DECISIONS, VOL. 3, SEC. 858. THE SUBSTANCE OF THAT DECISION BECAME A PART OF THE ARMY REGULATIONS AND CURRENTLY APPEARS IN PARAGRAPH 7, ARMY REGULATIONS 35 -1610, DATED OCTOBER 4, 1955. THE ACT OF DECEMBER 20, 1886, HOWEVER, HAD THE EFFECT OF NULLIFYING THE RULE STATED IN DECISION OF OCTOBER 24, 1885, INSOFAR AS PAY IS CONCERNED.

IN THE INSTANT CASE, HOWEVER, THERE IS ALSO FOR CONSIDERATION SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 U.S.C. 4C, WHICH PROVIDES AS FOLLOWS:

HEREAFTER THE SERVICE OF A CADET WHO MAY HEREAFTER BE APPOINTED TO THE UNITED STATES MILITARY ACADEMY OR TO THE NAVAL ACADEMY SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.

SUCH PROVISIONS, WHICH PRECLUDE THE COUNTING OF CADET SERVICE IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY, WERE CONSIDERED IN DECISION DATED JANUARY 8, 1927, 6 COMP. GEN. 461, AND IN THAT DECISION IT WAS HELD, QUOTING FROM THE SYLLABUS:

A CADET GRADUATED FROM THE UNITED STATES MILITARY ACADEMY IN 1920 IS NOT ENTITLED TO HAVE THE PERIOD BETWEEN DATE OF GRADUATION AND DATE OF COMMISSION COUNTED IN COMPUTING LENGTH OF SERVICE FOR LONGEVITY PAY PURPOSES BECAUSE OF THE PROVISIONS IN THE ACT OF JUNE 4, 1920, 41 STAT. 786, WHICH PROHIBITED THE DATING OF THE COMMISSIONS OF CADETS GRADUATING IN THAT YEAR, PRIOR TO JULY 2, 1920.

FOLLOWING THAT DECISION, AND AT LEAST AS EARLY AS MARCH 22, 1930, ARMY REGULATIONS (PARAGRAPH 3A (2), ARMY REGULATIONS 35-1680) PROVIDED FOR THE COUNTING OF SERVICE, FOR LONGEVITY INCREASES, FROM THE DATE OF GRADUATION FOR OFFICERS COMMISSIONED UPON GRADUATION FROM THE UNITED STATES MILITARY ACADEMY. THE REGULATIONS CITED AS AUTHORITY THE ACT OF DECEMBER 20, 1886, 10 U.S.C. 1150, AND 6 COMP. GEN. 461. SUCH PROVISIONS HAVE BEEN CARRIED FORWARD AND NOW APPEAR IN PARAGRAPH 18C, ARMY REGULATIONS 35-1110, DATED MAY 25, 1950.

WHILE SECTION 6 OF THE ACT OF AUGUST 24, 1912, PRECLUDES THE COUNTING OF CERTAIN "CADET" SERVICE IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY, ITS APPLICATION TO A "GRADUATED CADET" IS NOT ENTIRELY CLEAR. SINCE CONGRESS AUTHORIZED (ACT OF DECEMBER 20, 1886) FULL PAY TO A "GRADUATED CADET" AS A SECOND LIEUTENANT FROM THE DATE OF HIS GRADUATION TO THE DATE OF HIS ACCEPTANCE OF AND QUALIFICATION UNDER HIS COMMISSION, AND IN VIEW OF THE LONG ESTABLISHED PRACTICE OF THE DEPARTMENT OF THE ARMY (AS AUTHORIZED IN ARMY REGULATIONS APPARENTLY BASED ON THE DECISION OF JANUARY 8, 1927, CITED ABOVE) OF RECOGNIZING THE RIGHT OF A COMMISSIONED OFFICER OF THE ARMY REGULATIONS APPARENTLY BASED ON THE DECISION OF JANUARY 8, 1927, CITED ABOVE) OF RECOGNIZING THE RIGHT OF A COMMISSIONED OFFICER OF THE ARMY TO COMPUTE HIS SERVICE FROM THE DATE OF HIS GRADUATION FROM THE MILITARY ACADEMY, WE BELIEVE THE CONCLUSION IS JUSTIFIED THAT LIEUTENANT RODERICK IS ENTITLED TO COUNT, IN THE COMPUTATION OF HIS CREDITABLE SERVICE FOR BASIC PAY PURPOSES, SERVICE AS A "GRADUATED CADET" FROM THE DATE OF GRADUATION TO THE DATE OF ACCEPTANCE OF HIS COMMISSION.

THE MILITARY PAY ORDER AND SUPPORTING PAPERS ARE RETURNED AND PAYMENT ON THE BASIS OF SUCH ORDER IS AUTHORIZED, IF OTHERWISE CORRECT.