B-138512, MARCH 11, 1959, 38 COMP. GEN. 605

B-138512: Mar 11, 1959

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1922 - BROWNELL AND FOSTER CASES COMMISSIONED OFFICERS OF THE REGULAR ARMY OR NAVY WHO WERE "IN THE SERVICE ON JUNE 30. RESIGNED THEIR COMMISSIONS AND LATER ACCEPTED NEW COMMISSIONS IN THE RESERVE COMPONENTS MAY HAVE SUCH ACADEMY SERVICE INCLUDED IN THE DETERMINATION OF YEARS OF ACTIVE SERVICE FOR RETIRED PAY COMPUTATION PURPOSES IN LINE WITH THE HOLDING OF THE COURT OF CLAIMS IN BROWNELL. WHEN HE WAS TRANSFERRED TO THE RETIRED LIST UNDER 34 U.S.C. 410B AND 410C (1046 USED.). MAY HAVE RETIRED PAY ADJUSTED EFFECTIVE FROM OCTOBER 1. A RETIRED NAVAL RESERVE OFFICER WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER 34 U.S.C. 417 (1946 USED.). WAS A COMMISSIONED OFFICER IN REGULAR NAVY ON JUNE 30.

B-138512, MARCH 11, 1959, 38 COMP. GEN. 605

MILITARY PERSONNEL - RETIRED PAY - CADET, MIDSHIPMAN, ETC., SERVICE - OFFICERS ON DUTY JUNE 30, 1922 - BROWNELL AND FOSTER CASES COMMISSIONED OFFICERS OF THE REGULAR ARMY OR NAVY WHO WERE "IN THE SERVICE ON JUNE 30, 1922" WITHIN THE MEANING OF SECTION 1 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 627, WHICH AUTHORIZED MILITARY ACADEMY SERVICE COMMENCED PRIOR TO AUGUST 24, 1912, AND NAVAL ACADEMY SERVICE COMMENCED PRIOR TO MARCH 4, 1913, TO BE INCLUDED IN THE COMPUTATION OF LONGEVITY PAY, BUT WHO SUBSEQUENT TO JUNE 30, 1922, RESIGNED THEIR COMMISSIONS AND LATER ACCEPTED NEW COMMISSIONS IN THE RESERVE COMPONENTS MAY HAVE SUCH ACADEMY SERVICE INCLUDED IN THE DETERMINATION OF YEARS OF ACTIVE SERVICE FOR RETIRED PAY COMPUTATION PURPOSES IN LINE WITH THE HOLDING OF THE COURT OF CLAIMS IN BROWNELL, ET AL. V. UNITED STATES, 140 C.1CLS. 427 AND FOSTER, ET AL. V. UNITED STATES, 140 C.1CLS. 427. 24 COMP. GEN. 854, OVERRULED. A RETIRED NAVAL RESERVE OFFICER WHO HAD SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY DURING PERIOD JUNE 30, 1908, TO JUNE 7, 1912, AS COMMISSIONED OFFICER IN REGULAR NAVY FROM JUNE 8, 1912, TO DECEMBER 31, 1926, AND AS A COMMISSIONED OFFICER IN U.S. NAVAL RESERVE, INACTIVE FROM MARCH 2, 1927, TO FEBRUARY 9, 1942, AND ACTIVE DUTY FROM FEBRUARY 10, 1942, TO FEBRUARY 28, 1947, WHEN HE WAS TRANSFERRED TO THE RETIRED LIST UNDER 34 U.S.C. 410B AND 410C (1046 USED.), MAY HAVE RETIRED PAY ADJUSTED EFFECTIVE FROM OCTOBER 1, 1949--- EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- UNDER SECTION 511 (B) OF THE 1949 ACT AS AMENDED, 37 U.S.C. 311 (B), TO REFLECT THE ADDITIONAL PERIOD OF MIDSHIPMAN SERVICE OF 3 YEARS, 11 MONTHS AND 8 DAYS INCLUDED IN THE ACTIVE SERVICE CREDIT. A RETIRED NAVAL RESERVE OFFICER WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER 34 U.S.C. 417 (1946 USED.) BUT WHO HAD SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY FROM JUNE 12, 1907, TO MARCH 6, 1912, AND WAS A COMMISSIONED OFFICER IN REGULAR NAVY ON JUNE 30, 1922, IS ENTITLED TO HAVE THE MIDSHIPMAN SERVICE OF 4 YEARS, 8 MONTHS AND 25 DAYS INCLUDED IN THE COMPUTATION OF RETIRED PAY, AND AS A RESULT OF PAY ELECTION THE OFFICER'S PAY STATUS WAS BROUGHT WITHIN THE SCOPE OF METHOD (B) IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 281, SO THAT AN ADJUSTMENT AS OF OCTOBER 1, 1949--- EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- SHOULD BE MADE TO REFLECT THE MIDSHIPMEN SERVICE, WITH DEDUCTION FOR THE MEMBER'S SURVIVORSHIP ANNUITY ELECTION; HOWEVER, UNDER SECTION 511 ONLY YEARS OF ACTIVE SERVICE MAY BE USED IN DETERMINATION OF YEARS OF SERVICE. THE RIGHT TO INCLUDE ACADEMY SERVICE IN THE COMPUTATION OF ACTIVE SERVICE FOR RETIRED PAY PURPOSES UNDER SECTIONS 412 AND 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 282 AND 311, IS DEPENDENT UPON WHETHER SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT, AND UNDER SECTION 1 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, EFFECTIVE JULY 1, 1922, ACADEMY SERVICE WAS AUTHORIZED TO BE INCLUDED IN THE COMPUTATION OF LONGEVITY PAY ONLY IN THE CASE OF COMMISSIONED OFFICERS WHO WERE IN THE SERVICE ON JUNE 30, 1922; THEREFORE, IF THE MEMBER WAS NOT ON ACTIVE DUTY ON JUNE 30, 1922, ACADEMY SERVICE IS NOT CREDITABLE IN DETERMINATION OF SERVICE FOR RETIRED PAY. COMMISSIONED OFFICERS WHO WERE SERVING ON ACTIVE DUTY ON JUNE 30, 1922, AND WHO HAD PRIOR ACADEMY SERVICE WHICH WAS AUTHORIZED TO BE INCLUDED IN THE COMPUTATION OF LONGEVITY PAY UNDER SECTION 1 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 627, MAY HAVE SUCH SERVICE CREDITED NOTWITHSTANDING THAT THERE MAY HAVE BEEN A BREAK IN SERVICE PRIOR TO JUNE 30, 1922.

TO COMMANDER R. A. WILSON, UNITED STATES NAVY, MARCH 11, 1959:

YOUR LETTER OF DECEMBER 2, 1958, WITH ENDORSEMENTS, PRESENTS FOR CONSIDERATION (UNDER MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-391), THE QUESTION WHETHER THIS OFFICE WILL FOLLOW, IN OTHER SIMILAR CASES, THE HOLDING OF THE COURT OF CLAIMS IN BROWNELL, ET AL. V. UNITED STATES, 140 C.1CLS. 427 AND FOSTER, ET AL. V. UNITED STATES, 140 C.1CLS. 427, DECIDED ON DECEMBER 4, 1957.

IN THE BROWNELL AND FOSTER CASES, THE PLAINTIFFS WERE SHOWN TO HAVE BEEN SERVING AS COMMISSIONED OFFICERS IN THE REGULAR NAVY ON JUNE 30, 1922. THEY SUBSEQUENTLY RESIGNED THEIR COMMISSIONS AND AFTER BREAKS IN SERVICE OF FROM ONE DAY TO 17 YEARS, ACCEPTED NEW COMMISSIONS IN THE NAVAL RESERVE. ON THOSE FACTS, THE COURT HELD THAT THE PLAINTIFFS WERE "OFFICERS IN THE SERVICE ON JUNE 30, 1922" WITHIN THE MEANING OF SECTION 1 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 625, 627, AND THEREFORE, ENTITLED TO INCLUDE IN THE COMPUTATION OF THEIR RETIRED PAY THEIR SERVICE AS MIDSHIPMEN AT THE NAVAL ACADEMY UNDER APPOINTMENTS MADE PRIOR TO MARCH 4, 1913.

THE EFFECT OF THE DECISION OF DECEMBER 4, 1957, IN THE BROWNELL AND FOSTER CASES WAS TO REVERSE THE ESTABLISHED RULE EARLY ADOPTED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT FOLLOWING PASSAGE OF THE 1922 LAW (SEE 2 COMP. GEN. 170) AND THEREAFTER CONSISTENTLY FOLLOWED. SEE 2 COMP. GEN. 854. THE CONFLICTING HOLDING IN THE HOFFMAN DECISION OF DECEMBER 3, 1928, 66 C.1CLS. 452, WAS CALLED SPECIFICALLY TO THE ATTENTION OF THE DEPARTMENT OF JUSTICE IN CONNECTION WITH OUR RECOMMENDATION MADE ON JANUARY 10, 1958, THAT APPROPRIATE ACTION BE TAKEN TO SECURE FURTHER JUDICIAL PROCEEDINGS IN THE BROWNELL AND FOSTER CASES. HOWEVER, NO FURTHER ACTION WAS TAKEN IN THE MATTER AND THE HOLDING OF THE COURT OF CLAIMS HAS NOW BECOME FINAL. IT IS NOT UNTENABLE TO TAKE THE VIEW THAT THE STATUS OF THE PLAINTIFFS IN THE BROWNELL AND FOSTER CASES WAS SUCH AS TO PLACE THEM WITHIN THE LITERAL LANGUAGE OF THE 1922 STATUTE, AND IT SEEMS UNLIKELY THAT THE DEPARTMENT OF JUSTICE WILL ATTEMPT TO DEFEND OUTER SIMILAR CLAIMS, BUT RATHER WILL STIPULATE FOR JUDGMENT IN SUCH CASES. THAT SITUATION IT HAS BEEN CONCLUDED THAT THE GENERAL ACCOUNTING OFFICER WILL FOLLOW THE COURT'S HOLDING IN THE BROWNELL AND FOSTER CASES WITH RESPECT TO SIMILAR CLAIMS PRESENTED HERE FOR SETTLEMENT AND OTHERWISE PROPER PAYMENTS OF RETIRED PAY MADE ADMINISTRATIVELY IN ACCORDANCE WITH SUCH RULE WILL NOT BE QUESTIONED IN THE AUDIT OF THE ACCOUNTS INVOLVED. THE DECISION OF MAY 26, 1945, 24 COMP. GEN. 854, IS OVERRULED.

THE STATEMENT OF NAVAL SERVICE SET FORTH IN YOUR LETTER WITH RESPECT TO CAPTAIN HAROLD B. GROW, UNITED STATES NAVAL RESERVE, RETIRED, DISCLOSES THAT HE SERVED AS A MIDSHIPMAN AT THE NAVAL ACADEMY DURING THE PERIOD JUNE 30, 1908, TO JUNE 7, 1912, INCLUSIVE; AS A COMMISSIONED OFFICER IN THE REGULAR NAVY FROM JUNE 8, 1912, TO DECEMBER 31, 1926, INCLUSIVE; AND THAT HE HELD A COMMISSION IN THE UNITED STATES NAVAL RESERVE, INACTIVE FROM MARCH 2, 1927, TO FEBRUARY 9, 1942, AND IN AN ACTIVE DUTY STATUS FROM FEBRUARY 10, 1942, TO FEBRUARY 28, 1947. ON THE LATTER DATE, HE WAS TRANSFERRED TO THE RETIRED LIST PURSUANT TO THE PROVISIONS OF 34 U.S.C. 410B AND 410C, 1946 USED. IT IS EVIDENT THAT CAPTAIN GROW WAS AN OFFICER IN THE SERVICE ON JUNE 30, 1922, AND UNDER THE RULE OF THE BROWNELL AND FOSTER CASES, HE WAS ENTITLED TO INCLUDE IN THE COMPUTATION OF HIS RETIRED PAY THE 3 YEARS, 11 MONTHS, AND 8 DAYS HE SERVED AS A MIDSHIPMAN. ACCORDINGLY, THE COMPUTATION OF CAPTAIN GROW'S RETIRED PAY MAY BE ADJUSTED EFFECTIVE FROM OCTOBER 1, 1949, UNDER THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, CAREER COMPENSATION ACT OF 1949, 63 STAT. 829 (AS AMENDED BY SECTION 4, ACT OF MAY 19, 1952, 66 STAT. 80), 37 U.S.C. 311 (B), SO AS TO REFLECT AN ADDITIONAL PERIOD OF 3 YEARS, 11 MONTHS, AND 8 DAYS OF CREDITABLE ACTIVE SERVICE.

IN THE CASE OF CAPTAIN HAROLD R. KELLER, UNITED STATES NAVAL RESERVE, RETIRED, IT IS STATED THAT HE SERVED AS A MIDSHIPMAN AT THE NAVAL ACADEMY DURING THE PERIOD FROM JUNE 12, 1907, TO MARCH 6, 1912, INCLUSIVE, AND THAT HE WAS SERVING AS A COMMISSIONED OFFICER IN THE REGULAR NAVY ON JUNE 30, 1922. ON THOSE FACTS, IT IS CLEAR THAT THE RULE IN THE BROWNELL AND FOSTER CASES APPLIES AND, THEREFORE, THAT CAPTAIN KELLER WAS ENTITLED UPON HIS RETIREMENT EFFECTIVE JUNE 1, 1947, TO INCLUDE IN THE COMPUTATION OF HIS RETIRED PAY THE 4 YEARS, 8 MONTHS, AND 25 DAYS HE SERVED AS A MIDSHIPMAN.

IT IS FURTHER STATED THAT CAPTAIN KELLER WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 417, 855C-1 AND 350I, 1946 USED. ALSO, THAT IN THE MONTH OF JUNE 1954 HE ELECTED, UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281, TO RECEIVE RETIRED PAY IN THE AMOUNT OF $412.50 PER MONTH "BASED ON LAWS IN EFFECT PRIOR TO 1 OCTOBER 1949," PLUS A 4 PERCENTUM INCREASE EFFECTIVE AS OF MAY 1, 1952, AS PROVIDED IN/SECTION 2 (B), ACT OF MAY 19, 1952, 66 STAT. 80, 37 U.S.C. 322. AS A RESULT OF THAT ELECTION, CAPTAIN KELLER'S RETIRED PAY STATUS WAS BROUGHT WITHIN THE SCOPE OF METHOD (B) IN SECTION 411 OF THE 1949 LAW, 37 U.S.C. 281, ENTITLING HIM "TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT.' ACCORDINGLY, CAPTAIN KELLER'S RETIRED PAY ACCOUNT MAY BE ADJUSTED EFFECTIVE FROM OCTOBER 1, 1949, IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, 63 STAT. 829 (AS AMENDED BY SECTION 4, ACT OF MAY 19, 1952, 66 STAT. 80), SO AS TO REFLECT AN ADDITIONAL PERIOD OF 4 YEARS, 8 MONTHS, AND 25 DAYS OF CREDITABLE ACTIVE SERVICE. SEE IN THIS CONNECTION 29 COMP. GEN. 404, 407-408. ALSO, AND AS INDICATED IN PARAGRAPH SIX OF YOUR LETTER, A CORRESPONDING ADJUSTMENT WILL BE NECESSARY WITH RESPECT TO THE DEDUCTIONS TO BE MADE IN CAPTAIN KELLER'S RETIRED PAY ACCOUNT EFFECTIVE FROM NOVEMBER 1, 1953, UNDER HIS ELECTION TO RECEIVE REDUCED RETIRED PAY AS PROVIDED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501-505, 37 U.S.C. 372A.

IT IS NOTED FROM THE COMPUTATIONS CONTAINED IN YOUR LETTER THAT INCLUSION OF MIDSHIPMAN SERVICE WOULD ENTITLE CAPTAIN KELLER TO RETIRED PAY AT THE RATE OF $471.32 PER MONTH EFFECTIVE OCTOBER 1, 1949, AND APPROPRIATE INCREASES THEREAFTER AS PROVIDED BY LAW. SUCH COMPUTATIONS APPEAR TO BE BASED ON A CREDIT OF 22 YEARS OF ACTIVE SERVICE, EXCLUSIVE OF MIDSHIPMAN SERVICE. INFORMATION FURNISHED WITH YOUR LETTER SHOWS THAT SUCH ACTIVE DUTY TOTALED ONLY 20 YEARS, 4 MONTHS AND 23 DAYS. HE HAS BEEN CREDITED WITH AN ADDITIONAL TWO YEARS BASED ON HIS INACTIVE SERVICE, POSSIBLY UNDER THE PROVISIONS OF SECTION 412 (2) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 282 (2). YOUR ATTENTION IS INVITED TO THE FACT THAT THE METHOD OF DETERMINING YEARS OF ACTIVE SERVICE THERE PROVIDED IS AUTHORIZED ONLY " FOR THE PURPOSES OF THIS TITLE ( TITLE IV).' HAVING ELECTED TO COME UNDER THE PROVISIONS OF SECTION 511 OF TITLE V, 37 U.S.C. 311, HIS YEARS OF "ACTIVE SERVICE" MUST BE COMPUTED BY THE METHOD PROVIDED IN THE THIRD PROVISO OF THAT SECTION WHICH APPARENTLY BARS THE INCLUSION OF THE TWO ADDITIONAL YEARS IN QUESTION. IT THUS APPEARS THAT HE HAD OVER 25 YEARS OF ACTIVE SERVICE AND THAT THE PERCENTAGE MULTIPLE APPLICABLE IN HIS CASE IS 62 1/2 PERCENT RATHER THAN THE 67 1/2 PERCENT USED IN THE COMPUTATIONS CONTAINED IN YOUR LETTER.

TWO ADDITIONAL QUESTIONS ARE PRESENTED IN THE FIRST ENDORSEMENT OF DECEMBER 19, 1958, TO YOUR LETTER AS FOLLOWS: WHAT EFFECT, IF ANY, SHALL BE GIVEN (1) WHEN THE MEMBER WAS NOT ON ACTIVE DUTY ON 30 JUNE 1922, AND (2) IF THE MEMBER HAD A BREAK IN SERVICE PRIOR TO 30 JUNE 1922?

THE ABOVE QUESTIONS ARE SAID TO ARISE BY REASON OF THE FACT THAT SECTIONS 412 AND 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 824 AND 829, RESPECTIVELY, 37 U.S.C. 282 AND 311 (AMENDED BY SECTION 4, ACT OF MAY 19, 1952, 66 STAT. 80), DO NOT CONTAIN THE CONDITION THAT THE "MEMBER MUST HAVE BEEN ON ACTIVE SERVICE ON 30 JUNE 1922.'

SECTION 412 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE 1952 LAW, EXPRESSLY DEFINES THE TERM "ACTIVE SERVICE" FOR THE PURPOSE OF TITLE IV OF THAT ACT AS INCLUDING "SERVICE AS A CADET OR MIDSHIPMAN IN THE CASE OF THOSE MEMBERS APPOINTED TO THE UNITED STATES MILITARY ACADEMY PRIOR TO AUGUST 24, 1912, OR TO THE UNITED STATES NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IF SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT.' ( ITALICS SUPPLIED.)

THE TERM "ACTIVE SERVICE" HAS THE SAME MEANING FOR PURPOSES OF SECTION 511. THUS, ACTIVE SERVICE ON JUNE 30, 1922, WAS NOT MADE AN EXPRESS REQUIREMENT IN EITHER SECTION 412 OR 511. HOWEVER, IT WILL BE NOTED THAT ENTITLEMENT TO THE BENEFITS OF SUCH MILITARY ACADEMY OR NAVAL ACADEMY SERVICE IS DEPENDENT ON WHETHER SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF THE MEMBER'S RETIREMENT.

EFFECTIVE AS OF JULY 1, 1922, THE JOINT SERVICE PAY ACT OF JUNE 10, 1922 (SECTION 1, 42 STAT. 627), AUTHORIZED MILITARY ACADEMY SERVICE COMMENCED PRIOR TO AUGUST 24, 1912, AND NAVAL ACADEMY SERVICE COMMENCED PRIOR TO MARCH 4, 1913, TO BE INCLUDED IN THE COMPUTATION OF LONGEVITY PAY ONLY IN THE CASE OF COMMISSIONED OFFICERS WHO WERE "IN THE SERVICE ON JUNE 30, 1922.' SIMILAR PROVISIONS WERE INCLUDED IN THE PAY READJUSTMENT ACT OF 1942 (SECTION 1, 56 STAT. 359, 360, 37 U.S.C. 101 (1946 USED.) (, AND IN THE CAREER COMPENSATION ACT OF 1949 (SECTION 202 (A) (3), 63 STAT. 807, 808, 37 U.S.C. 233 (A) (3) ). CONSEQUENTLY, COMMISSIONED OFFICERS WHO RETIRED ON OR AFTER JULY 1, 1922, WERE NOT ENTITLED TO INCLUDE SUCH MILITARY ACADEMY OR NAVAL ACADEMY SERVICE IN THE COMPUTATION OF THEIR LONGEVITY PAY AT THE TIME OF THEIR RETIREMENT UNLESS THEY HAD BEEN IN THE SERVICE ON JUNE 30, 1922.

IN LEONARD V. UNITED STATES, 64 C.1CLS. 384, DECIDED JANUARY 9, 1928, IT WAS HELD THAT "THE PROVISION TO BE FOUND IN SECTION 1 OF THE 1922 ACT, 42 STAT. 627, THAT "FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY" DOES NOT REFER TO OR INCLUDE OFFICERS ON THE RETIRED LIST. IT HAS REFERENCE TO OFFICERS ON THE ACTIVE LIST.' IN THE BROWNELL AND FOSTER CASES, THE COURT OF CLAIMS STATED "ALL OF THE PLAINTIFFS IN CASES NOS. 505-56 AND 506-56 WERE SERVING AS COMMISSIONED OFFICERS (ACTIVE DUTY) IN THE REGULAR NAVY ON JUNE 30, 1922.'

ACCORDINGLY, QUESTION (1) CONTAINED IN FIRST ENDORSEMENT DATED DECEMBER 19, 1958, IS ANSWERED BY STATING THAT A RIGHT TO COUNT MILITARY ACADEMY AND NAVAL ACADEMY SERVICE AS ACTIVE SERVICE DOES NOT ACCRUE TO ANY MEMBER OF THE UNIFORMED SERVICES BY VIRTUE OF SECTIONS 412 AND 511 OF THE CAREER COMPENSATION ACT OF 1949, UNLESS SUCH MEMBER WAS IN AN ACTIVE DUTY STATUS ON JUNE 30, 1922.

THERE APPEARS TO BE NO REQUIREMENT THAT IN ORDER TO RECEIVE THE BENEFITS OF COUNTING SERVICE IN THE MILITARY ACADEMY OR NAVAL ACADEMY MEMBERS APPOINTED TO SUCH ACADEMIES BEFORE AUGUST 24, 1912, OR MARCH 4. 1913, RESPECTIVELY, MUST SERVE CONTINUOUSLY ON ACTIVE DUTY UNTIL JUNE 30, 1922. SUCH SERVICE IS NO DIFFERENT THAN ANY OTHER SERVICE AUTHORIZED TO BE COUNTED (7 COMP. GEN. 463), AND IS CREDITABLE IF THE OFFICER WAS SERVING ON ACTIVE DUTY ON JUNE 30, 1922.

QUESTION (2) CONTAINED IN FIRST ENDORSEMENT DATED DECEMBER 19, 1958, IS ANSWERED ACCORDINGLY.