B-138125, FEBRUARY 16, 1959, 38 COMP. GEN. 553

B-138125: Feb 16, 1959

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ABSENCES AS ENLISTED MEMBER WHILE HOLDING RESERVE COMMISSION SINCE OFFICERS OF THE UNIFORMED SERVICES MAY HAVE PERIODS OF ABSENCE WHILE SERVING ON ACTIVE DUTY CREDITED FOR PAY PURPOSES. WAS ABSENT BECAUSE OF SICKNESS NOT IN LINE OF DUTY NEED NOT BE EXCLUDED IN THE DETERMINATION OF YEARS OF CREDITABLE SERVICE FOR BASIC PAY PURPOSES FOR COMPUTATION OF RETIRED PAY. THE REQUEST FOR ADVANCE DECISION WAS APPROVED BY THE DEPARTMENT OF DEFENSE. IT APPEARS THAT COLONEL GREGORY WAS RETIRED SEPTEMBER 30. YOUR DOUBT IN THE MATTER IS SAID TO ARISE FROM THE FACT THAT. HE HAD 62 DAYS LOST TIME UNDER AW 107 (SICKNESS NOT IN LINE OF DUTY) IN 1936 AND WAS RETAINED IN SERVICE 62 DAYS BEYOND THE NORMAL EXPIRATION OF ENLISTMENT TO MAKE UP THE TIME LOST.

B-138125, FEBRUARY 16, 1959, 38 COMP. GEN. 553

MILITARY PERSONNEL - SERVICE CREDITS - ABSENCES DUE TO MISCONDUCT, ETC. ABSENCES AS ENLISTED MEMBER WHILE HOLDING RESERVE COMMISSION SINCE OFFICERS OF THE UNIFORMED SERVICES MAY HAVE PERIODS OF ABSENCE WHILE SERVING ON ACTIVE DUTY CREDITED FOR PAY PURPOSES, INACTIVE SERVICE AS AN OFFICER IN A RESERVE COMPONENT DURING THE SAME PERIOD THE MEMBER, WHILE SERVING ON ACTIVE DUTY AS ENLISTED MAN IN THE REGULAR ARMY, WAS ABSENT BECAUSE OF SICKNESS NOT IN LINE OF DUTY NEED NOT BE EXCLUDED IN THE DETERMINATION OF YEARS OF CREDITABLE SERVICE FOR BASIC PAY PURPOSES FOR COMPUTATION OF RETIRED PAY.

TO COLONEL R. P. MUHLBACH, UNITED STATES AIR FORCE, FEBRUARY 16, 1959:

BY LETTER DATED DECEMBER 8, 1959, THE DIRECTORATE OF ACCOUNTING AND FINANCE OF THE AIR FORCE FORWARDED YOUR LETTER DATED DECEMBER 2, 1958, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY FOR PAYMENT OF A VOUCHER PRESENTED BY COLONEL JESSE O. GREGORY, AO 319391, USAFR, RETIRED, REPRESENTING, FOR THE MONTH OF OCTOBER 1958, THE DIFFERENCE IN RETIRED PAY OF 67 1/2 PERCENT AND 70 PERCENT OF BASIC PAY OF A COLONEL WITH OVER 26 YEARS OF SERVICE. THE REQUEST FOR ADVANCE DECISION WAS APPROVED BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, AS AIR FORCE REQUEST NO. 384.

IT APPEARS THAT COLONEL GREGORY WAS RETIRED SEPTEMBER 30, 1958, UNDER SECTION 8911, TITLE 10, U.S. CODE, AFTER COMPLETING OVER 26 YEARS' ACTIVE SERVICE. YOU STATE THAT SOME DOUBT EXISTS AS TO WHETHER HE HAS 27 YEARS, 6 MONTHS, 16 DAYS OR 27 YEARS, 4 MONTHS, 17 DAYS' SERVICE FOR BASIC PAY PURPOSES. YOUR DOUBT IN THE MATTER IS SAID TO ARISE FROM THE FACT THAT, WHILE SERVING IN THE REGULAR ARMY AS AN ENLISTED MAN, HE HAD 62 DAYS LOST TIME UNDER AW 107 (SICKNESS NOT IN LINE OF DUTY) IN 1936 AND WAS RETAINED IN SERVICE 62 DAYS BEYOND THE NORMAL EXPIRATION OF ENLISTMENT TO MAKE UP THE TIME LOST. DURING THAT PERIOD OF LOST TIME, HOWEVER, HE HELD A COMMISSION AS SECOND LIEUTENANT, COAST ARTILLERY RESERVE, WHICH WOULD NORMALLY PERMIT HIM TO CLAIM THIS TIME FOR BASIC PAY PURPOSES. BECAUSE HE WAS NOT READILY AVAILABLE TO HIS GOVERNMENT IN EITHER A COMMISSIONED OR ENLISTED STATUS, YOU STATE THAT IT WOULD SEEM, AS A MATTER OF EQUITY, THAT CREDIT OUGHT NOT BE ALLOWED FOR A PERIOD OF TIME WHEN SERVICE WAS REQUIRED BUT NOT RENDERED.

THE STATEMENT OF SERVICE ( DD FORM 13) ENCLOSED WITH YOUR LETTER DISCLOSES THAT COLONEL GREGORY FIRST ENLISTED WITH THE ALABAMA NATIONAL GUARD ON FEBRUARY 2, 1931, AND HAD CONTINUOUS MILITARY SERVICE UNTIL THE DATE OF HIS RETIREMENT, SEPTEMBER 30, 1958, EXCEPT FOR THE PERIODS FROM JUNE 21, TO 30, 1932, AND FROM JULY 1 TO AUGUST 1, 1933, INCLUSIVE. THE TOTAL COMBINED PERIOD OF SERVICE, CREDITABLE FOR BASIC PAY PURPOSES, EXCLUDING THE PERIODS OF ABSENCE INVOLVED, IS 27 YEARS, 4 MONTHS AND 17 DAYS; IF CREDIT IS ALLOWED FOR 62 DAYS LOST TIME, BY REASON OF THE MEMBER HOLDING A COMMISSION IN THE COAST ARTILLERY RESERVE CONCURRENTLY WITH THE PERIOD OF ENLISTED SERVICE INVOLVED, SUCH TIME WOULD TOTAL MORE THAN 27 YEARS AND 6 MONTHS.

THE SERVICE RECORD OF COLONEL GREGORY SHOWS HE WAS ELIGIBLE TO HAVE HIS RETIREMENT PAY COMPUTED UNDER PROVISIONS OF FORMULA B, SECTION 8991, TITLE 10, U.S. CODE, (SEE SECTION 301 (22) OF THE ACT OF AUGUST 21, 1957, 71 STAT. 389), THE PERCENTAGE MULTIPLE BEING BASED ON THE NUMBER OF YEARS CREDITABLE FOR BASIC PAY PURPOSES--- 6 MONTHS OR MORE CONSTITUTING A WHOLE YEAR.

SECTION 233, 37 U.S.C., PROVIDES IN PERTINENT PART, THAT:

(A) * * * IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE, SUCH MEMBERS SHALL BE CREDITED WITH---

(1) FULL TIME FOR ALL PERIODS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER * * * IN ANY REGULAR OR RESERVE COMPONENT OF ANY OF THE UNIFORMED SERVICES; AND

(2) FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS * * * IN THE OFFICERS' RESERVE CORPS

HAVING HELD A COMMISSION IN THE COAST ARTILLERY RESERVE DURING THE PERIODS HE LOST TIME AS AN ENLISTED MAN, MAY 5 TO JUNE 4, AND JUNE 17 TO JULY 17, 1936, HIS COMMISSIONED STATUS MEETS THE CONDITIONS OF THE QUOTED STATUTE AND HE MAY BE GIVEN CREDIT THEREFOR IN THE COMPUTATION OF BASIC PAY. IN DECISION OF NOVEMBER 7, 1958, B-136913, 38 COMP. GEN. 352, WE HELD THAT, IN DETERMINING SERVICE CREDITABLE FOR BASIC PAY PURPOSES, AN OFFICER MAY INCLUDE PERIODS OF UNAUTHORIZED ABSENCES, ABSENCES FROM DUTY AS AN OFFICER. SUCH PERIODS OF ABSENCE WHILE SERVING ON ACTIVE DUTY AS AN OFFICER BEING CREDITABLE FOR PAY PURPOSES, THERE DOES NOT APPEAR TO BE ANY BASIS FOR NOT CREDITING INACTIVE SERVICE AS AN OFFICER MERELY BECAUSE DURING SUCH INACTIVE OFFICER SERVICE HE WAS ABSENT FROM DUTY BECAUSE OF SICKNESS NOT IN LINE OF DUTY WHILE SIMULTANEOUSLY SERVING ON ACTIVE DUTY AS AN ENLISTED MAN. ACCORDINGLY, COLONEL GREGORY IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 28 YEARS OF SERVICE FOR BASIC PAY PURPOSES, OR AT THE RATE OF 70 PERCENT OF HIS BASIC PAY.