B-130703, APRIL 25, 1957, 36 COMP. GEN. 735

B-130703, APRIL 25, 1957, 36 COMP. GEN. 735

MILITARY PERSONNEL - RETIREMENT ELIGIBILITY - SERVICE CREDITS - DOUBLE TIME FOR FOREIGN SERVICE OFFICERS AND ENLISTED MEN OF THE UNIFORMED SERVICES WHO HAD ACTIVE ENLISTED SERVICE IN CHINA, CUBA, PHILIPPINE ISLANDS, GUAM, ALASKA, AND PANAMA PRIOR TO AUGUST 24, 1912, AND IN PUERTO RICO AND HAWAII PRIOR TO APRIL 23, 1904, MAY HAVE SUCH SERVICE CREDITED AS DOUBLE TIME FOR COMPUTATION OF SERVICE FOR DETERMINING ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 1331, BUT NOT FOR COMPUTATION OF RETIRED PAY. RETIRED PAY PROVIDED IN 10 U.S.C. 1331-1337 FOR MEMBERS OF THE UNIFORMED SERVICES IS PAYABLE FROM THE FIRST DAY OF THE FIRST MONTH FOLLOWING THE MONTH IN WHICH APPLICATION IS FILED.

TO THE SECRETARY OF DEFENSE, APRIL 25, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 12, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON THE FOLLOWING QUESTIONS PRESENTED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 170 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

1. MAY ACTIVE ENLISTED SERVICE IN CHINA, CUBA, PHILIPPINE ISLANDS, GUAM, ALASKA, AND PANAMA PRIOR TO 24 AUGUST 1, AND IN PUERTO RICO AND THE TERRITORY OF HAWAII PRIOR TO 23 APRIL 1904 BE CREDITED AS DOUBLE TIME FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIRED PAY PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1331?

2. IN THE EVENT OF AN AFFIRMATIVE ANSWER, WOULD THE DECISION CONTAINED IN 35 COMP. GEN. 563 BE CONTROLLING WITH RESPECT TO THE EFFECTIVE DATE FOR RETIREMENT PAY PURPOSES?

3. MAY THE PERIODS OF SERVICE ITEMIZED IN QUESTION 1 BE ALLOWED AS DOUBLE -TIME IN THE COMPUTATION OF RETIRED PAY?

THE PROVISIONS OF 10 U.S.C. 1331, PERTAIN TO RETIRED PAY FOR CERTAIN NONREGULAR PERSONNEL AND ARE, IN PERTINENT PART, AS FOLLOWS:

(A) EXCEPT AS PROVIDED IN SUBSECTION (C), A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE, IF-

(1) HE IS AT LEAST 60 YEARS OF AGE;

(2) HE HAS PERFORMED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332 OF THIS TITLE;

(3) HE PERFORMED THE LAST EIGHT YEARS OF QUALIFYING SERVICE AS A MEMBER OF A RESERVE COMPONENT OF ANY OF THE ARMED FORCES, OF THE ARMY OR THE AIR FORCE WITHOUT COMPONENT, OR OF ANY OTHER CATEGORY NAMED IN SECTION 1332 (A) (1) OF THIS TITLE EXCEPT AS A MEMBER OF (A) A REGULAR COMPONENT OF AN ARMED FORCE, (B) THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, OR (C) A REGULAR AND A RESERVE COMPONENT OF AN ARMED FORCE AT THE SAME TIME; AND

(4) HE IS NOT ENTITLED, UNDER ANY OTHER PROVISION OF LAW, TO RETIRED PAY FROM AN ARMED FORCE OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE. * * *

THE PROVISIONS OF 10 U.S.C. 1332, PERTAINING TO THE COMPUTATION OF YEARS OF SERVICE IN DETERMINING ENTITLEMENT TO RETIRED PAY UNDER THE QUOTED SECTION 1331, ARE AS FOLLOWS:

(A) EXCEPT AS PROVIDED IN SUBSECTION (B), FOR THE PURPOSE OF DETERMINING WHETHER A PERSON IS ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE, HIS YEARS OF SERVICE ARE COMPUTED BY ADDING---

(1) HIS YEARS OF SERVICE, BEFORE JULY 1, 1949, IN--- (A) THE ARMED FORCES; (B) THE FEDERALLY RECOGNIZED NATIONAL GUARD BEFORE JUNE 15, 1933; (C) A FEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD BEFORE JUNE 15, 1933; (D) THE NAVAL RESERVE FORCE; (E) THE NAVAL MILITIA THAT CONFORMED TO THE STANDARDS PRESCRIBED BY THE SECRETARY OF THE NAVY; AND (F) THE NATIONAL NAVAL VOLUNTEERS; AND * * * * * * *

(B)THE FOLLOWING SERVICE MAY NOT BE COUNTED UNDER SUBSECTION (A):

(1) SERVICE (OTHER THAN ACTIVE SERVICE) IN AN INACTIVE SECTION OF THE ORGANIZED RESERVE CORPS OR OF THE ARMY RESERVE, OR IN AN INACTIVE SECTION OF THE OFFICERS' SECTION OF THE AIR FORCE RESERVE.

(2) SERVICE (OTHER THAN ACTIVE SERVICE) AFTER JUNE 30, 1949, WHILE ON THE HONORARY RETIRED LIST OF THE NAVAL RESERVE OR OF THE MARINE CORPS RESERVE.

(3) SERVICE IN THE INACTIVE NATIONAL GUARD.

(4) SERVICE IN A NONFEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD.

(5) SERVICE IN THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE.

(6) SERVICE IN ANY STATUS OTHER THAN THAT AS A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED MEMBER.

VARIOUS PROVISIONS AS TO DOUBLE-TIME CREDIT FOR ENLISTED SERVICE WERE CODIFIED AS 10 U.S.C. 956, AS FOLLOWS:

IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT, CREDIT SHALL BE GIVEN SOLDIERS FOR DOUBLE THE TIME OF THEIR ACTUAL SERVICE IN CHINA, PUERTO RICO, CUBA, THE PHILIPPINE ISLAND OF GUAM, ALASKA, AND PANAMA, BUT DOUBLE CREDIT SHALL NOT BE GIVEN FOR SERVICE RENDERED SUBSEQUENT TO APRIL 23, 1904, IN PUERTO RICO OR THE TERRITORY OF HAWAII, NOR SHALL CREDIT FOR DOUBLE TIME FOR FOREIGN SERVICE BE GIVEN TO THOSE WHO ENLISTED AFTER AUGUST 24, 1912: PROVIDED, THAT NOTHING HEREIN SHALL BE SO CONSTRUED AS TO FORFEIT CREDIT FOR DOUBLE TIME ACCRUED PRIOR TO AUGUST 24, 1912.

AS POINTED OUT IN THE ABOVE COMMITTEE ACTION, IT WAS HELD IN WHITAKER V. UNITED STATES, 134 C.1CLS. 245, DECIDED MARCH 6, 1956, THAT DOUBLE TIME CREDIT FOR ENLISTED SERVICE UNDER 10 U.S.C. 956 COULD BE INCLUDED BY AN OFFICER IN COMPUTING THE YEARS OF SERVICE NECESSARY TO QUALIFY FOR RETIRED PAY UNDER SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, CODIFIED IN 10 U.S.C. 1331.

ON NOVEMBER 7, 1956, THE DEPARTMENT OF JUSTICE ADVISED US THAT THE WHITAKER CASE WAS CONSIDERED CLOSED AND THERE APPEARS TO BE NO GOOD REASON TO ASSUME THAT THE COURT OF CLAIMS WOULD NOT FOLLOW THAT DECISION IF SIMILAR CASES ARE PRESENTED TO IT. WHILE WE DEFINITELY ARE OF THE OPINION THAT THE WHITAKER DECISION IS ERRONEOUS, WE FEEL THAT NO GOOD PURPOSE WOULD BE SERVED BY REQUIRING THE FEW MEN WHO MIGHT BENEFIT BY THAT DECISION TO GO TO COURT TO OBTAIN THAT BENEFIT. THEREFORE, HE WILL FOLLOW THE WHITAKER HOLDING IN SIMILAR CASES COMING BEFORE US INSOFAR AS IT RELATES TO COMPUTING SERVICE FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT.

ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE BOTH AS TO INDIVIDUALS RETIRING AS OFFICERS AND AS TO INDIVIDUALS RETIRING AS ENLISTED MEN.

IT WAS HELD IN 35 COMP. GEN. 563 THAT RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948--- NOW CODIFIED AS 10 U.S.C. 1331-1337--- BEGINS ON THE FIRST DAY OF THE FIRST MONTH FOLLOWING THE MONTH IN WHICH APPLICATION THEREFOR IS FILED. THAT HOLDING HAS NOT BEEN MODIFIED.

ACCORDINGLY, THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IN THE WHITAKER DECISION THE COURT DID NOT PASS UPON THE QUESTION OF WHETHER DOUBLE-TIME CREDIT MIGHT BE INCLUDED IN THE COMPUTATION OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948. HOWEVER, IN DIRECTING ENTRY OF JUDGMENT FOR WHITAKER, THE COURT STATED THAT THE AMOUNT THEREOF WAS ON THE BASIS OF DOUBLE-TIME CREDIT FOR QUALIFICATION PURPOSES ONLY.

IN CONSONANCE WITH THAT STATEMENT, THE THIRD QUESTION IS ANSWERED IN THE NEGATIVE.