B-130034, JANUARY 10, 1957, 36 COMP. GEN. 498

B-130034, JANUARY 10, 1957, 36 COMP. GEN. 498

MILITARY PERSONNEL - RESERVES - PAY - SERVICE CREDITS - NON-REGULAR SERVICE DEDUCTIONS - ENACTMENT OF TITLES OF THE U.S.C. INTO POSITIVE LAW THE OMISSION OF THE LANGUAGE "OTHER THAN ACTIVE FEDERAL SERVICE" FOR RESERVE MEMBERSHIP CREDIT IN 10 U.S.C. 1332 (A) (2) (C), WHEN TITLE 10 OF THE U.S.C. WAS ENACTED INTO POSITIVE LAW, REPRESENTS A SUBSTANTIVE CHANGE OF PHRASEOLOGY FROM THE DERIVATIVE STATUTE, AND, IN VIEW OF THE CLEAR INTENT AS SHOWN IN THE LEGISLATIVE HISTORY TO ADOPT THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY WITH RESPECT TO THE CREDITABLE POINTS FOR RESERVE MEMBERSHIP, IT WILL NO LONGER BE NECESSARY TO MAKE A DEDUCTION FOR PERIODS OF ACTIVE FEDERAL SERVICE DURING THE YEAR IN DETERMINING ENTITLEMENT TO MILITARY RETIRED PAY FOR NONREGULAR SERVICE.

TO THE SECRETARY OF DEFENSE, JANUARY 10, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 10, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION WHETHER, IN DETERMINING A PERSON'S ENTITLEMENT TO MILITARY RETIRED PAY FOR NONREGULAR SERVICE, THE ANNUAL 15-POINT CREDIT FOR RESERVE COMPONENT MEMBERSHIP MAY BE ALLOWED UNDER SECTION 1332 (A) (2) (C) OF TITLE 10, U.S.C. FOR EACH YEAR OF SUCH MEMBERSHIP SUBSEQUENT TO AUGUST 9, 1956, WITHOUT MAKING A PRO RATA REDUCTION IN THE 15 POINTS FOR PERIODS OF ACTIVE FEDERAL SERVICE DURING THE YEAR.

IN CONNECTION WITH THE COMPUTATION OF THE 50 POINTS WHICH A RESERVIST MUST EARN DURING A YEAR IN ORDER THAT SUCH YEAR MAY BE COUNTED AS ONE OF THE TWENTY YEARS OF "SATISFACTORY FEDERAL SERVICE" REQUIRED FOR RETIRED PAY PURPOSES UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, SECTION 302 (B) (3), 10 U.S.C. 1036A (B) (3), OF THAT ACT PROVIDED FOR THE CREDITING OF 15 POINTS FOR MEMBERSHIP IN A RESERVE COMPONENT FOR EACH YEAR OF FEDERAL SERVICE "OTHER THAN ACTIVE FEDERAL SERVICE.' THE REVISION AND RESTATEMENT OF SUCH STATUTORY PROVISION CONTAINED IN SECTION 1332 (A) (2) (C), OF THE NEW TITLE 10, U.S.C. (ACT OF AUGUST 10, 1956, 70A STAT. 102), PROVIDES FOR CREDITING POINTS IN THE COMPUTATION OF YEARS OF SERVICE "AT THE RATE OF 15 A YEAR FOR MEMBERSHIP IN A RESERVE COMPONENT OF AN ARMED FORCE, IN THE ARMY OR THE AIR FORCE WITHOUT COMPONENT, OR IN ANY OTHER CATEGORY COVERED BY SUBSECTION (A) (1) EXCEPT A REGULAR COMPONENT.'

IN OUR DECISION TO YOU OF APRIL 15, 1955, 34 COMP. GEN. 520, IT WAS HELD THAT IN COMPUTING POINTS UNDER TITLE III OF THE 1948 ACT, IT IS REQUIRED THAT IN EACH YEAR OF FEDERAL SERVICE AFTER JUNE 30, 1949, THERE MUST BE DEDUCTED THE NUMBER OF DAYS OF ACTIVE FEDERAL SERVICE IN ORDER TO DETERMINE WHAT PORTION OF THE 15 POINTS MAY BE CREDITED IN SUCH YEAR FOR SERVICE IN AN ACTIVE RESERVE COMPONENT. SINCE THAT CONCLUSION WAS BASED UPON THE INCLUSION OF THE PHRASE "OTHER THAN ACTIVE FEDERAL SERVICE" IN SECTION 302 (B) (3) OF THE 1948 ACT, THE EFFECT TO BE ACCORDED THE OMISSION OF SUCH PHRASE FROM THE 1956 ACT IS THE MATTER AT ISSUE HERE.

IN CONSTRUING A STATUTE, THE INTENT OF THE CONGRESS IS PARAMOUNT. WITH RESPECT TO A CODIFICATION STATUTE, THE JUDICIAL VIEW APPEARS TO BE THAT THE LAW IS INTENDED TO REMAIN SUBSTANTIVELY UNCHANGED UNLESS A CONTRARY INTENTION IS CLEARLY SHOWN. SEE STEWART V. KAHN, 11 WALL. 493, 502; UNITED STATES V. LE BRIS, 121 U.S. 278, 280; AND UNITED STATES V. RYDER, 110 U.S. 729, 740. SEE ALSO, MCDONALD V. HOVEY, 110 U.S. 619, 629, WHERE THE FOLLOWING IS STATED:

SO, UPON A REVISION OF STATUTES, A DIFFERENT INTERPRETATION IS NOT TO BE GIVEN TO THEM WITHOUT SOME SUBSTANTIAL CHANGE OF PHRASEOLOGY--- SOME CHANGE OTHER THAN WHAT MAY HAVE BEEN NECESSARY TO ABBREVIATE THE FORM OF THE LAW. THE NEW TITLE 10, U.S.C. IS A CODIFICATION BASED ON A LARGE NUMBER OF STATUTES APPLICABLE TO THE ARMED FORCES. THE GENERAL INTENT OF THE CONGRESS WITH RESPECT TO THE EFFECT OF SUCH CODIFICATION IS STATED IN SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, 10 U.S.C. PREC. SUBTITLE A NOTE, 801 NOTE, AS FOLLOWS: "IN SECTIONS 1-48 OF THIS ACT, IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED BY THOSE SECTIONS ON THE EFFECTIVE DATE OF THIS ACT.'

IN CARRYING OUT THE GENERAL INTENT, AS EXPLAINED ABOVE, IT APPEARS THAT NEW LANGUAGE WAS USED IN THE RESTATEMENT WHEN SUCH ACTION WOULD MORE APTLY EXPRESS AND GIVE EFFECT TO AUTHORITATIVE INTERPRETATIONS OF PROVISIONS IN THE EXISTING LAW WHICH WERE BEING RESTATED AND REPLACED. IN AGREEMENT WITH THAT CONCEPT, THE FOLLOWING STATEMENT APPEARS ON PAGE 8, HOUSE REPORT NO. 970 TO ACCOMPANY H.R. 7049, LATER ENACTED INTO LAW AS THE ACT OF AUGUST 10, 1956:

THE OBJECT OF THE NEW TITLES HAS BEEN TO RESTATE EXISTING LAW, NOT TO MAKE NEW LAW. CONSISTENTLY WITH THE GENERAL PLAN OF THE UNITED STATES CODE, THE PERTINENT PROVISIONS OF LAW HAVE BEEN FREELY REWORDED AND REARRANGED, SUBJECT TO EVERY PRECAUTION AGAINST DISTURBING EXISTING RIGHTS, PRIVILEGES, DUTIES, OR FUNCTIONS. ADHERENCE TO THE SUBSTANCE OF EXISTING LAW, HOWEVER, HAS NOT ALWAYS MEANT ADHERENCE TO THE LETTER OF THE STATUTE. WHERE COURT DECISIONS, OPINIONS OF OFFICIALS SUCH AS THE ATTORNEY GENERAL OR THE COMPTROLLER GENERAL, EXECUTIVE ORDERS, REGULATIONS, OR WELL-ESTABLISHED ADMINISTRATIVE PRACTICE HAVE ESTABLISHED AUTHORITATIVE INTERPRETATIONS CLARIFYING AMBIGUITIES IN THE LAW, THE TEXT HAS BEEN REWORDED TO EXPRESS THOSE INTERPRETATIONS. THESE CHANGES HAVE BEEN EXPLAINED IN THE APPLICABLE REVISION NOTES.

CONCERNING 10 U.S.C. 1332 (A) (2) (C), IT APPEARS THAT THE WORDS "OTHER THAN ACTIVE FEDERAL SERVICE" WERE OMITTED FROM THAT SECTION, AS ENACTED IN THE ACT OF AUGUST 10, 1956, TO EXPRESS THE INTERPRETATION OF THE 1948 ACT ADOPTED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY IN AN OPINION DATED MARCH 3, 1953, TO THE EFFECT THAT THE POINTS TO BE CREDITED FOR MEMBERSHIP IN A RESERVE COMPONENT ARE NOT REDUCED BY ACTIVE DUTY. SEE EXPLANATION OF SUCH ACTION APPEARING ON PAGE 110, HOUSE REPORT NO. 970. APPARENTLY THE QUOTED LANGUAGE WAS NOT REGARDED AS CONSISTENT WITH THAT CONCLUSION AND WAS OMITTED FOR THAT REASON. NEVERTHELESS, IT SEEMS APPARENT THAT THE NEW STATUTORY LANGUAGE DOES REPRESENT A "SUBSTANTIVE CHANGE OF PHRASEOLOGY" FROM THAT OF THE OLD LAW WHICH IT SUPERSEDED. WHILE THE CONCLUSION SET FORTH IN OUR DECISION OF APRIL 15, 1955, IS NOT IN AGREEMENT WITH THAT APPARENTLY REACHED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY AND WHILE IT IS NOT KNOWN WHAT INTERPRETATION MIGHT HAVE BEEN ADOPTED IN CONNECTION WITH THE REVISION OF THE LAW IF OUR DECISION HAD BEEN BROUGHT TO THE ATTENTION OF THE APPROPRIATE CONGRESSIONAL COMMITTEES WHILE H.R. 7049 WAS PENDING IN COMMITTEE--- IT IS UNDERSTOOD THAT THE DRAFT OF THE THEN PROPOSED LEGISLATION WAS PREPARED AND SUBMITTED PRIOR TO APRIL 15, 1955 -- THE INTENT OF THE CONGRESS, AS SHOWN BY THE LANGUAGE USED IN SECTION 1332 (A) (2) (C) AND BY ITS LEGISLATIVE HISTORY WAS TO ADOPT THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY AND SUCH CLEARLY EXPRESSED INTENT, WITH RESPECT TO THE SPECIFIC MATTER HERE INVOLVED, MUST BE GIVEN EFFECT.