B-138442, APR 22, 1959

B-138442, APR 22, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. R. KOSHKO, FC., DEPARTMENT OF THE ARMY:

BY SECOND INDORSEMENT DATED JANUARY 13, 1959, THE FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, FORWARDED TO US YOUR LETTER DATED DECEMBER 15, 1958, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF THE PAYMENT OF A CLAIM MADE BY MAJOR EDWIN M. SCHMIDT, JAGC, UNITED STATES ARMY, FOR BACK PAY, BASED ON ADDITIONAL CREDIT FOR SERVICE AS A MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE, FROM SEPTEMBER 2, 1942, THROUGH DECEMBER 1, 1942. THE REQUEST FOR AN ADVANCE DECISION WAS FORWARDED UNDER D.O. NO. 388, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU EXPRESS DOUBT AS TO PROPRIETY OF PAYMENT BECAUSE SECTION II, AR 37- 104, DOES NOT SPECIFICALLY MENTION SERVICE AS A MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE, AS CREDITABLE IN DETERMINING LENGTH OF SERVICE FOR BASIC PAY PURPOSES. MAJOR SCHMIDT CONTENDS THAT SERVICE AS A NAVAL RESERVE MIDSHIPMAN (V-7) IS CREDITABLE IN DETERMINING LENGTH OF SERVICE FOR BASIC PAY PURPOSES ALTHOUGH IT IS NOT SPECIFICALLY MENTIONED IN SECTION 202(A) OF THE CAREER COMPENSATION ACT OF 1949 OR IN PARAGRAPHS 1- 31 AND 1-33, AR 37-104. HE CITES AS PRECEDENT FOR THE INCLUSION OF HIS MIDSHIPMAN SERVICE OUR DECISION IN 32 COMP. GEN. 473, WHICH HELD THAT MEMBERS MAY COUNT FOR LONGEVITY PAY PURPOSES ACTIVE SERVICE AS APPOINTED AVIATION CADETS IN THE NAVAL RESERVE AND MARINE CORPS RESERVE.

SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY UNDER THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, IS LISTED IN SECTION 202 OF THAT ACT. AS TO MEMBERSHIP IN THE NAVAL RESERVE, SUBSECTION 202(A)(2) OF THAT ACT PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES SHALL BE CREDITED WITH "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS, COMMISSIONED WARRANT OFFICERS, WARRANT OFFICERS, ARMY FIELD CLERKS, OR FLIGHT OFFICERS, IN ANY OF THE REGULAR COMPONENTS *** OR IN THE NAVAL RESERVE." ACTIVE SERVICE IN THOSE CAPACITIES IS CREDITABLE UNDER THE PROVISIONS OF SUBSECTION 202(A)(1) OF THAT ACT. MIDSHIPMAN SERVICE IN THE NAVAL RESERVE IS NOT MENTIONED AND SUCH SERVICE DOES NOT CONSTITUTE ENLISTED, WARRANT, OR COMMISSIONED SERVICE. IT IS A SEPARATE AND DISTINCT STATUS IN THE NAVAL RESERVE. LONG HAS BEEN HELD THAT, WHILE MIDSHIPMEN MAY BE CONSIDERED NAVY OFFICERS OR MEMBERS OF THE ARMED SERVICES FOR CERTAIN PURPOSES, THEY ARE NEITHER COMMISSIONED OFFICERS NOR ENLISTED MEN. SEE 21 COMP. GEN. 932, AT 939- 940, AND 29 COMP. GEN. 331. INSOFAR AS THE CREDITING OF SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES IS CONCERNED, SECTION 202(A) OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES THAT, IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICE FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE, MEMBERS SHALL BE CREDITED WITH -

"(6) ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY."

ON THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, OCTOBER 1, 1949, THERE EXISTED STATUTORY AUTHORITY FOR THE CREDITING OF APPOINTED AVIATION CADET SERVICE. SEE 32 COMP. GEN. 473, 475. NO SUCH AUTHORITY IS APPARENT FOR MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE.

THE COUNTING OF MIDSHIPMAN SERVICE IN THE MILITARY SERVICE ACADEMIES IS SPECIFICALLY BARRED IN COMPUTING LENGTH OF SERVICE OF OFFICERS FOR ANY PURPOSE, EVEN THOUGH SUCH SERVICE ACTUALLY IS A PART OF A CAREER OF ACTIVE MILITARY SERVICE, AND IT WOULD SEEM THAT IF THE CONGRESS HAD INTENDED THAT SERVICE AS A MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE, SHOULD BE CREDITED IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, LANGUAGE OF THE CLEAREST KIND WOULD HAVE BEEN USED TO EXPRESS SUCH INTENT. SINCE MIDSHIPMAN SERVICE IN THE UNITED STATES NAVAL RESERVE IS NOT MENTIONED IN SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, SUCH SERVICE IS NOT AUTHORIZED TO BE COUNTED IN THE COMPUTATION OF BASIC PAY. ACCORDINGLY, PAYMENT ON THE MILITARY PAY ORDER IS NOT AUTHORIZED, AND IT WILL BE RETAINED HERE WITH THE OTHER ENCLOSURES RECEIVED.