B-134214, JANUARY 9, 1958, 37 COMP. GEN. 465

B-134214, JANUARY 9, 1958, 37 COMP. GEN. 465

MILITARY PERSONNEL - RETIRED PAY - ADVANCEMENT TO OFFICER GRADE ON RETIRED LIST - CADETS, MIDSHIPMEN, ETC., SERVICE RETIRED ENLISTED MEN WHO ARE ADVANCED ON THE RETIRED LIST TO COMMISSIONED OR WARRANT OFFICER GRADE, PURSUANT TO 10 U.S.C. 3964, AND WHO HAVE SERVICE AS CADETS IN THE UNITED STATES MILITARY ACADEMY, OR AS MIDSHIPMEN IN THE UNITED STATES NAVAL ACADEMY, OR AS CADETS IN THE UNITED STATES COAST GUARD ACADEMY RETAIN THEIR ENLISTED STATUS SO THAT THE PROHIBITION IN 10 U.S.C. 3682 AGAINST COMMISSIONED OFFICERS COUNTING CADET OR MIDSHIPMAN SERVICE IS NOT APPLICABLE, AND, THEREFORE, SUCH CADET AND MIDSHIPMAN SERVICE IS CREDITABLE FOR RETIRED PAY PURPOSES.

TO THE SECRETARY OF DEFENSE, JANUARY 9, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 23, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON TWO QUESTIONS WHICH ARE SET FORTH IN COMMITTEE ACTION NO. 196 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

QUESTION 1.

MAY SERVICE AS A CADET IN THE UNITED STATES MILITARY ACADEMY OR AS A MIDSHIPMAN IN THE NAVAL ACADEMY WHICH IS NOW CREDITABLE IN THE COMPUTATION OF ENLISTED RETIRED PAY BE INCLUDED FOR RETIRED PAY PURPOSES UPON ADVANCEMENT TO A COMMISSIONED OR WARRANT OFFICER GRADE PURSUANT TO 10 U.S.C. 3964?

QUESTION 2.

WOULD THE ANSWER BE THE SAME IN CASES OF SERVICE IN THE UNITED STATES COAST GUARD ACADEMY?

SECTION 3964 OF TITLE 10, U.S.C. 70A STAT. 231, PROVIDES:

EACH WARRANT OFFICER OF THE ARMY, AND EACH ENLISTED MEMBER OF THE REGULAR ARMY, WHO IS RETIRED BEFORE OR AFTER THIS TITLE IS ENACTED IS ENTITLED, WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, AFTER SEPTEMBER 8, 1940, AND BEFORE JULY 1, 1946.

SECTION 1 OF THE ACT OF MAY 31, 1956, 70 STAT. 222, 10 U.S.C. 1002, AND SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, WHEN READ TOGETHER, HAVE THE EFFECT OF STRIKING FROM THE ABOVE PROVISIONS THE WORDS "AFTER SEPTEMBER 8, 1940, AND BEFORE JULY 1, 1946.' SECTION 3992 OF TITLE 10, U.S.C. 70A STAT. 233, PROVIDES THE METHOD OF RECOMPUTING THE RETIRED PAY OF A MEMBER OF THE ARMY WHO IS ADVANCED ON THE RETIRED LIST UNDER SECTION 3964. SECTIONS 3964 AND 3992 ARE DERIVED FROM SECTION 203 (E) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1086, 10 U.S.C. 1004.

IN OUR DECISION OF OCTOBER 28, 1946, 26 COMP. GEN. 271, 275, REGARDING NAVY PERSONNEL, IT IS STATED THAT:

* * * THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED (BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28) WHILE AFFECTING THE RETIRED RANK AND THE RETIRED PAY OF OFFICERS AND ENLISTED MEN WITHIN THE PURVIEW THEREOF UPON RETIREMENT OR RETURN TO AN INACTIVE STATUS, PROPERLY MAY NOT BE VIEWED AS AFFECTING, IN ANY WAY, THE "OFFICE" HELD BY SUCH PERSONNEL. CONSEQUENTLY, A RETIRED ENLISTED MAN RETURNED TO INACTIVE STATUS WITH THE HIGHER COMMISSIONED GRADE OR RANK HELD UNDER A TEMPORARY PROMOTION WHILE ON ACTIVE DUTY PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE 1941 STATUTE, AS AMENDED, STILL RETAINS THE "OFFICE" OF AN ENLISTED MAN ON THE RETIRED LIST * * *.

IN THE DECISION OF JUNE 24, 1949, 28 COMP. GEN. 727, THE PRINCIPLE THUS STATED WAS HELD TO APPLY WITH EQUAL FORCE TO RETIRED ENLISTED MEN OF THE ARMY WHO ARE ADVANCED TO COMMISSIONED RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 203 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, SUPRA, 10 U.S.C. 1002. HENCE, THE PROHIBITION IN SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 594 (NOW IN 10 U.S.C. 3682) AGAINST AN ARMY OFFICER INCLUDING SERVICE AS A CADET OR MIDSHIPMAN, UNDER AN APPOINTMENT TO THE MILITARY ACADEMY OR THE NAVAL ACADEMY SUBSEQUENT TO AUGUST 24, 1912, IN THE COMPUTATION OF HIS LENGTH OF SERVICE IS NOT APPLICABLE TO THE PERSONNEL INVOLVED IN YOUR PRESENT QUESTIONS.

THE ABOVE CONSIDERATIONS ARE EQUALLY APPLICABLE TO CADET SERVICE AT THE UNITED STATES COAST GUARD ACADEMY. COMPARE 29 COMP. GEN. 331; 31 COMP. GEN. 528.