B-126989, APRIL 19, 1956, 35 COMP. GEN. 566

B-126989, APRIL 19, 1956, 35 COMP. GEN. 566

PAY - RETIRED - SERVICE CREDITS - CADET OR MIDSHIPMAN SERVICE SERVICE PERFORMED BY RESERVE OFFICERS OF THE ARMY AND AIR FORCE AS A CADET AT THE MILITARY ACADEMY UNDER AN APPOINTMENT MADE ON OR PRIOR TO AUGUST 24, 1912, OR SERVICE PERFORMED BY RESERVE OFFICERS OF THE NAVY AND MARINE CORPS AS A MIDSHIPMAN AT THE NAVAL ACADEMY UNDER AN APPOINTMENT MADE ON OR PRIOR TO MARCH 4, 1913, WILL BE CONSIDERED ACTIVE FEDERAL SERVICE IN ACCORDANCE WITH THE COURT OF CLAIMS DECISION IN BRAND V. UNITED STATES FOR COMPUTATION OF RETIRED PAY UNDER SECTION 303 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 31 COMP. GEN. 145, OVERRULED.

TO THE SECRETARY OF DEFENSE, APRIL 19, 1956:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 13, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION WHETHER SERVICE AS A CADET AT THE UNITED STATES NAVAL ACADEMY UNDER AN APPOINTMENT MADE ON OR PRIOR TO AUGUST 24, 1912, IN THE CASE OF RESERVE OFFICERS OF THE ARMY AND AIR FORCE, OR ON OR PRIOR TO MARCH 4, 1913, IN THE CASE OF RESERVE OFFICERS OF THE NAVY AND MARINE CORPS, PROPERLY MAY BE COUNTED AS "ACTIVE FEDERAL SERVICE" IN THE COMPUTATION OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 34 U.S.C. 440H.

SECTION 303 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, 34 U.S.C. 440J, PROVIDES, IN PART, THAT:

ANY PERSON GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL RECEIVE SUCH PAY AT AN ANNUAL RATE EQUAL TO 2 1/2 PERCENTUM OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR) WHICH SHALL CONSIST OF THE SUM OF THE FOLLOWING

(I) ALL PERIODS OF ACTIVE FEDERAL SERVICE.

IN THE CASE OF BRAND V. UNITED STATES, C.1CLS. NO. 474-52, DECIDED OCTOBER 4, 1955, INVOLVING A RESERVE OFFICER OF THE ARMY, THE COURT OF CLAIMS HELD THAT SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY UNDER AN APPOINTMENT MADE PRIOR TO AUGUST 24, 1912, IS ACTIVE FEDERAL SERVICE FOR THE PURPOSE OF THE PROVISIONS QUOTED ABOVE.

WHILE WE HAD REACHED A CONCLUSION SUBSTANTIALLY TO THE CONTRARY IN DECISION OF OCTOBER 19, 1951, 31 COMP. GEN. 145 (INVOLVING AN OFFICER OF THE NAVAL RESERVE), WE DID NOT RECOMMEND FURTHER PROCEEDINGS IN THE BRAND CASE, IT BEING RECOGNIZED THAT THE COURT'S INTERPRETATION OF THE TERM ,ACTIVE FEDERAL SERVICE" FOR THE PURPOSES OF SECTION 303 OF THE 1948 ACT CAME REASONABLY WITHIN THE RANGE OF PERMISSIBLE STATUTORY INTERPRETATION, CONSIDERING THE HOLDINGS OF THE UNITED STATES SUPREME COURT IN UNITED STATES V. MORTON, 112 U.S. 1; UNITED STATES V. WATSON, 130 U.S. 80; AND UNITED STATES V. NOCE, 268 U.S. 613.

ACCORDINGLY, IN THE AUDIT OF PAYMENTS AND SETTLEMENT OF CLAIMS, INVOLVING RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WE WILL FOLLOW THE PRINCIPLE OF THE COURT'S DECISION IN THE BRAND CASE AND APPLY SUCH PRINCIPLE IN THE CASES OF RESERVE OFFICERS OF THE AIR FORCE, NAVY, AND MARINE CORPS, IT BEING OUR UNDERSTANDING, OF COURSE, THAT OFFICERS OF THE NAVY AND MARINE CORPS WILL COME UNDER THE PRINCIPLE OF THE BRAND DECISION WITH RESPECT TO CADET OR MIDSHIPMAN SERVICE UNDER APPOINTMENTS MADE ON OR BEFORE MARCH 4, 1913.