B-135968, MAY 12, 1958, 37 COMP. GEN. 747

B-135968: May 12, 1958

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THAT ONLY STAFF CORPS SERVICE WAS FOR CONSIDERATION IN DETERMINING ELIGIBILITY OF NAVY OFFICERS FOR CONTINUATION ON THE ACTIVE LIST OR FOR INVOLUNTARY RETIREMENT. 1958: REFERENCE IS MADE TO LETTER OF APRIL 25. THE QUESTIONS ARE BASED ON A PROPOSED MEMORANDUM OF LAW BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN WHICH IT IS CONCLUDED THAT CERTAIN SPECIFIC LANGUAGE USED IN THOSE SUBSECTIONS WHICH IS BASED ON SECTION 202 (D) OF THE OFFICER PERSONNEL ACT OF 1947. IS CITED IN SUPPORT OF THAT CONCLUSION AND THE QUESTIONS PRESENTED ARE BASED ON THE ASSUMPTION THAT SUCH CONCLUSION IS CORRECT. EACH OTHER OFFICER SHALL BE DEEMED TO HAVE FOR THESE PURPOSES AS MUCH TOTAL COMMISSIONED SERVICE AS ANY OFFICER DESCRIBED ABOVE IN THIS SUBSECTION WHO SHALL NOT HAVE LOST NUMBERS OR PRECEDENCE AND WHO IS.

B-135968, MAY 12, 1958, 37 COMP. GEN. 747

MILITARY PERSONNEL - SERVICE CREDITS - NAVY OFFICERS - STAFF CORPS SERVICE - LINE SERVICE THE ADOPTION OF THE WELL-ESTABLISHED ADMINISTRATIVE INTERPRETATION OF SECTION 202 (D) (1) OF THE OFFICER PERSONNEL ACT OF 1947, THAT ONLY STAFF CORPS SERVICE WAS FOR CONSIDERATION IN DETERMINING ELIGIBILITY OF NAVY OFFICERS FOR CONTINUATION ON THE ACTIVE LIST OR FOR INVOLUNTARY RETIREMENT, BY THE CONGRESS WHEN IT ENACTED INTO POSITIVE LAW 10 U.S.C. 6388 AND SUBSTITUTED THE WORDS "ANY STAFF CORPS OF THE NAVY" FOR THE WORDS " REGULAR NAVY" PRECLUDES THE DEPARTMENT FROM DISREGARDING THE PLAIN LANGUAGE OF THE SECTION AND REVERSING THE FORMER INTERPRETATION TO INCLUDE LINE SERVICE AS WELL AS STAFF CORPS SERVICE.

TO THE SECRETARY OF THE NAVY, MAY 12, 1958:

REFERENCE IS MADE TO LETTER OF APRIL 25, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES/--- ASSIGNED SUBMISSION NO. 340 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE--- REQUESTING DECISION ON CERTAIN QUESTIONS RELATING TO THE PROPER INTERPRETATION OF SUBSECTIONS (A) AND (B) OF 10 U.S.C. 6388 AS ENACTED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 409. THE QUESTIONS ARE BASED ON A PROPOSED MEMORANDUM OF LAW BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IN WHICH IT IS CONCLUDED THAT CERTAIN SPECIFIC LANGUAGE USED IN THOSE SUBSECTIONS WHICH IS BASED ON SECTION 202 (D) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 816, 34 U.S.C. 3B (D), AS INTERPRETED IN A 1949 OPINION OF HIS OFFICE, MAY BE DISREGARDED IN APPLYING THE CURRENT LAW BECAUSE HE NOW CONSIDERS THAT THE 1949 OPINION DID NOT CORRECTLY INTERPRET SECTION 202 (D). SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, IS CITED IN SUPPORT OF THAT CONCLUSION AND THE QUESTIONS PRESENTED ARE BASED ON THE ASSUMPTION THAT SUCH CONCLUSION IS CORRECT.

SECTION 202 (D) (1), 34 U.S.C. 3B (D) (1), OF THE 1947 ACT PROVIDES AS FOLLOWS:

FOR THE PURPOSES OF THIS TITLE IN RESPECT TO ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST AND IN RESPECT TO SEPARATION FROM THE ACTIVE LIST, THE TOTAL COMMISSIONED SERVICE OF AN OFFICER ORIGINALLY APPOINTED IN THE GRADE OR RANK OF LIEUTENANT (JUNIOR GRADE) OR ENSIGN IN THE REGULAR NAVY, WHO HAS SERVED CONTINUOUSLY ON THE ACTIVE LIST SHALL BE COMPUTED FROM JUNE 30 OF THE FISCAL YEAR IN WHICH HE ACCEPTED SUCH APPOINTMENT, EXCEPT FOR OFFICERS APPOINTED PURSUANT TO THE ACT OF APRIL 18, 1946 ( PUBLIC LAW 347, SEVENTY-NINTH CONGRESS). EACH OTHER OFFICER SHALL BE DEEMED TO HAVE FOR THESE PURPOSES AS MUCH TOTAL COMMISSIONED SERVICE AS ANY OFFICER DESCRIBED ABOVE IN THIS SUBSECTION WHO SHALL NOT HAVE LOST NUMBERS OR PRECEDENCE AND WHO IS, OR SHALL HAVE BEEN, JUNIOR TO SUCH OTHER OFFICER IN HIS CORPS FOR THE PURPOSE OF ELIGIBILITY FOR PROMOTION OR SELECTION FOR PROMOTION SINCE THE DATE OF THE LATTER'S FIRST APPOINTMENT TO PERMANENT COMMISSIONED RANK IN THE REGULAR NAVY ABOVE THE GRADE OF COMMISSIONED WARRANT OFFICER FOLLOWING WHICH HE SHALL HAVE SERVED CONTINUOUSLY ON THE ACTIVE LIST OF THE REGULAR NAVY.

SUBSECTIONS (A) AND (B), 10 U.S.C. 6388, ARE AS FOLLOWS:

(A) FOR THE PURPOSE OF THE PRECEDING SECTIONS OF THIS CHAPTER, THE TOTAL COMMISSIONED SERVICE OF EACH OFFICER ORIGINALLY APPOINTED IN THE GRADE OF LIEUTENANT (JUNIOR GRADE) OR ENSIGN IN ANY STAFF CORPS OF THE NAVY, WHO HAS SINCE THAT APPOINTMENT SERVED CONTINUOUSLY ON THE ACTIVE LIST OF THE NAVY, IS COMPUTED FROM JUNE 30 OF THE FISCAL YEAR IN WHICH HE ACCEPTED THAT APPOINTMENT. HOWEVER, THIS SUBSECTION DOES NOT APPLY TO OFFICERS APPOINTED UNDER THE ACT OF APRIL 18, 1946, CH. 141 (60 STAT. 92).

(B) EACH OTHER COMMISSIONED OFFICER ON THE ACTIVE LIST OF THE NAVY IN ANY STAFF CORPS IS CONSIDERED TO HAVE THE SAME TOTAL COMMISSIONED SERVICE FOR THE PURPOSE OF THE PRECEDING SECTIONS OF THIS CHAPTER AS THE OFFICER IN HIS CORPS DESCRIBED IN SUBSECTION (A) HAVING THE MAXIMUM TOTAL COMMISSIONED SERVICE WHO---

(1) HAS NOT LOST NUMBERS OR PRECEDENCE; AND

(2) IS, OR AT ANY TIME HAS BEEN, JUNIOR TO THE OTHER OFFICER FOR THE PURPOSES OF ELIGIBILITY FOR PROMOTION AND SELECTION FOR PROMOTION DURING THAT OTHER OFFICER'S LATEST PERIOD OF CONTINUOUS SERVICE ON THE ACTIVE LIST.

IT IS REPORTED THAT BASED ON THE 1949 OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY ( G:II:GSS:1H, 13, JANUARY 1949), THE BUREAU OF NAVAL PERSONNEL HAS BEEN COUNTING YEARS OF COMMISSIONED SERVICE BEGINNING ON JUNE 30 OF THE YEAR IN WHICH THE OFFICER WAS ORIGINALLY COMMISSIONED IN A STAFF CORPS OF THE REGULAR NAVY, WITH A PERMANENT COMMISSION, FOR THE PURPOSE OF DETERMINING A STAFF CORPS OFFICER'S ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST AND SEPARATION FROM THE ACTIVE LIST UNDER APPLICABLE PROVISIONS OF THE 1947 ACT AND CHAPTER 573, 10 U.S.C. CODE. ALL PRIOR PERIODS OF COMMISSIONED SERVICE WERE IGNORED, INCLUDING PERIODS OF SERVICE AS A LINE OFFICER. THE PROPOSED MEMORANDUM OF LAW BY THE JUDGE ADVOCATE GENERAL OF THE NAVY WOULD OVERRULE THE 1949 OPINION AND REQUIRE, AMONG OTHER THINGS, THE INCLUSION OF TIME SERVED AS A LINE OFFICER, PRIOR TO BEING COMMISSIONED IN A STAFF CORPS OF THE REGULAR NAVY, FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR CONTINUATION ON THE ACTIVE LIST AND SEPARATION FROM SUCH LIST. IF SUCH INTERPRETATION SHOULD BE ADOPTED, IT APPEARS THAT THE STATUS OF AT LEAST NINE STAFF CORPS OFFICERS WOULD BE BROUGHT INTO QUESTION SINCE IT WOULD FOLLOW THAT THEY SHOULD HAVE BEEN RETIRED FOR YEARS OF SERVICE BEFORE THIS TIME, THE COMBINED LINE SERVICE AND STAFF CORPS SERVICE IN EACH CASE HAVING EXCEEDED THE STATUTORY PERIOD OF SERVICE FOR INVOLUNTARY RETIREMENT, ALTHOUGH THE STAFF CORPS SERVICE IN EACH CASE APPARENTLY IS LESS THAN SUCH STATUTORY PERIOD. THE SUBMITTED QUESTIONS RELATE TO THE LEGALITY OF FUTURE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES TO SUCH OFFICERS.

WE DO NOT AGREE THAT SOME OF THE WORDS IN SUBSECTIONS (A) AND (B) OF 10 U.S.C. 6388 MAY BE IGNORED. IN OTHER WORDS, WE DO NOT AGREE THAT THE WORDS "ANY STAFF CORPS" MAY BE CANCELED OR DISREGARDED IN INTERPRETING AND APPLYING SUCH SUBSECTIONS. IT IS TRUE THAT SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, PROVIDES THAT IN ENACTING THE NEW TITLE 10, U.S. CODE,"IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED" BY THE NEW TITLE 10. THIS GENERAL STATEMENT OF PURPOSE, HOWEVER, HAS NOT BEEN CONSIDERED AS AUTHORIZING INTERPRETATIONS OF SPECIFIC PROVISIONS OF THE NEW TITLE 10 WHICH WOULD REQUIRE THE OMISSION OF PLAIN LANGUAGE, OR THE ADDITION OF LANGUAGE NOT INCLUDED IN THE LAW, AT LEAST NOT IN INSTANCES WHERE A DIFFERENCE IN LANGUAGE BETWEEN THE NEW PROVISIONS AND THE OLD PROVISIONS RESULTED FROM DELIBERATE ACTION TO MAKE THE LANGUAGE OF THE NEW LAW CONFORM TO A DEPARTMENTAL OR OTHER INTERPRETATION OF THE OLD LAW OR AN ESTABLISHED ADMINISTRATIVE PRACTICE UNDER THE OLD LAW. IN THAT CONNECTION, SEE PAGE 8, HOUSE REPORT NO. 970, TO ACCOMPANY H.R. 7049 (WHICH BECAME THE ACT OF AUGUST 10, 1956), WHERE A STATEMENT IS MADE TO THE EFFECT THAT WHERE COURT DECISIONS, OPINIONS OF GOVERNMENT OFFICIALS, OR WELL-ESTABLISHED ADMINISTRATIVE PRACTICES HAD ESTABLISHED AUTHORITATIVE INTERPRETATIONS CLARIFYING AMBIGUITIES IN THE LAW, APPROPRIATE LANGUAGE WAS USED IN THE CODIFICATION TO EXPRESS AND ADOPT THOSE INTERPRETATIONS.

THERE APPEARS TO BE NO REASONABLE BASIS TO CONCLUDE THAT IN THE REWORDING USED IN THE CODIFICATION OF SECTION 202 (D) (1) OF THE 1947 ACT, THE WORDS "ANY STAFF CORPS OF THE NAVY" WERE SUBSTITUTED FOR THE WORDS "THE REGULAR NAVY" FOR A PURPOSE OTHER THAN THAT OF EXPRESSING AND ADOPTING THE ADMINISTRATIVE INTERPRETATION OF THAT SECTION WHICH APPARENTLY WAS BEING FOLLOWED CONSISTENTLY BY THE DEPARTMENT OF THE NAVY--- THE ONLY DEPARTMENT HAVING PERSONNEL SUBJECT TO SUCH SECTION. THE CONGRESS HAS ADOPTED THAT INTERPRETATION BY ENACTING PLAIN AND SPECIFIC LANGUAGE BASED ON SUCH INTERPRETATION AND, IN OUR VIEW, THAT PLAIN LANGUAGE MUST BE GIVEN ITS PLAIN MEANING AND APPLICATION. SEE DECISION DATED JANUARY 10, 1957, B- 130034, 36 COMP. GEN. 498, AND DECISION DATED SEPTEMBER 4, 1957, B-132268, 37 COMP. GEN. 166.

IT APPEARING THAT THE OFFICERS TO WHOM YOU REFER HAD INSUFFICIENT STAFF CORPS SERVICE TO HAVE REQUIRED THEIR RETIREMENT UNDER THE INVOLUNTARY RETIREMENT PROVISIONS OF CHAPTER 573, 10 U.S. CODE, BEFORE THIS TIME, THERE IS NO BASIS FOR QUESTIONING THEIR ENTITLEMENT TO THE ACTIVE-DUTY PAY AND ALLOWANCES NOW BEING PAID TO THEM. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.