B-138826, MARCH 10, 1959, 38 COMP. GEN. 598

B-138826: Mar 10, 1959

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TO PROVIDE FOR THE PLACEMENT OF ENLISTED MEMBERS IN PAY GRADES E-8 AND E-9 AFTER COMPLETION OF AT LEAST EIGHT YEARS OR TEN YEARS OF CUMULATIVE ENLISTED SERVICE PRECLUDES THE INCLUSION OF ACTIVE SERVICE AS A COMMISSIONED OR WARRANT OFFICER IN THE COMPUTATION OF CUMULATIVE ENLISTED SERVICE IN THE ABSENCE OF EVIDENCE OF A CONTRARY CONGRESSIONAL INTENT AND NOTWITHSTANDING THAT FOR CERTAIN PURPOSES ENLISTED MEMBERS ARE ENTITLED TO COUNT OFFICER SERVICES AS ENLISTED SERVICE. 1959: REFERENCE IS MADE TO LETTER OF FEBRUARY 24. THE QUESTIONS ARE AS FOLLOWS: 1. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE. IN COMMITTEE ACTION NO. 238 REFERENCE IS MADE TO SECTIONS 3258 AND 3684 OF TITLE 10. OR WHO WAS DISCHARGED AS AN ENLISTED MEMBER TO ACCEPT A TEMPORARY APPOINTMENT IN THE ARMY.

B-138826, MARCH 10, 1959, 38 COMP. GEN. 598

MILITARY PERSONNEL - SERVICE CREDITS - ENLISTED MEMBERS THE TERM "ENLISTED SERVICE" IN SECTION 1 (3) OF THE ACT OF MAY 20, 1958, WHICH AMENDED SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 232 (C), TO PROVIDE FOR THE PLACEMENT OF ENLISTED MEMBERS IN PAY GRADES E-8 AND E-9 AFTER COMPLETION OF AT LEAST EIGHT YEARS OR TEN YEARS OF CUMULATIVE ENLISTED SERVICE PRECLUDES THE INCLUSION OF ACTIVE SERVICE AS A COMMISSIONED OR WARRANT OFFICER IN THE COMPUTATION OF CUMULATIVE ENLISTED SERVICE IN THE ABSENCE OF EVIDENCE OF A CONTRARY CONGRESSIONAL INTENT AND NOTWITHSTANDING THAT FOR CERTAIN PURPOSES ENLISTED MEMBERS ARE ENTITLED TO COUNT OFFICER SERVICES AS ENLISTED SERVICE.

TO THE SECRETARY OF DEFENSE, MARCH 10, 1959:

REFERENCE IS MADE TO LETTER OF FEBRUARY 24, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON TWO QUESTIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 238, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTIONS ARE AS FOLLOWS:

1. IN THE ABSENCE OF A DUAL STATUS (OFFICER--- ENLISTED), MAY ACTIVE SERVICE AS A COMMISSIONED OR WARRANT OFFICER BE CREDITED IN DETERMINING THE 8 AND 10 YEARS OF CUMULATIVE ENLISTED SERVICE REQUIRED FOR PROMOTION OF REGULAR ARMY AND AIR FORCE ENLISTED MEMBERS TO THE GRADE OF E-8 AND E- 9, RESPECTIVELY, UNDER THE PROVISIONS OF SUBSECTION 201 (C), CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF 20 MAY 1958 (72 STAT. 124/?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD THE ANSWER BE THE SAME FOR PROMOTION OF ENLISTED MEMBERS OTHER THAN OF THE REGULAR ARMY AND AIR FORCE?

SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 1 (1) OF THE ACT OF MAY 20, 1958, 72 STAT. 123, 37 U.S.C. 232 (A), PRESCRIBES THE NEW ENLISTED GRADES OF E-8 AND E-9. SECTION 201 (C), AS AMENDED BY SECTION 1 (3) OF THE ACT OF MAY 20, 1958 37 U.S.C. 232 (C), PROVIDES IN PERTINENT PART AS FOLLOWS:

(C) FOR BASIC PAY PURPOSES, ENLISTED PERSONS SHALL BE DISTRIBUTED BY THE SECRETARY CONCERNED IN THE VARIOUS PAY GRADES PRESCRIBED FOR ENLISTED PERSONS IN SUBSECTION (A) OF THIS SECTION. HOWEVER, EXCEPT AS PROVIDED IN SECTION 209 OF THIS TITLE (NOT HEREIN APPLICABLE), AN ENLISTED MEMBER MAY NOT BE PLACED IN PAY GRADE E-8 OR E-9 UNTIL HE HAS COMPLETED AT LEAST EIGHT YEARS OR TEN YEARS, RESPECTIVELY, OF CUMULATIVE YEARS OF ENLISTED SERVICE CREDITABLE IN THE COMPUTATION OF HIS BASIC PAY * * * ( ITALICS SUPPLIED).

IN COMMITTEE ACTION NO. 238 REFERENCE IS MADE TO SECTIONS 3258 AND 3684 OF TITLE 10, U.S. CODE, WHICH PROVIDE AS FOLLOWS:

3258 REGULAR ARMY: REENLISTMENT AFTER SERVICE AS AN OFFICER

ANY FORMER ENLISTED MEMBER OF THE REGULAR ARMY WHO HAS SERVED ON ACTIVE DUTY AS A RESERVE OFFICER OF THE ARMY, OR WHO WAS DISCHARGED AS AN ENLISTED MEMBER TO ACCEPT A TEMPORARY APPOINTMENT IN THE ARMY, IS ENTITLED TO BE REENLISTED IN THE REGULAR ARMY IN THE ENLISTED GRADE THAT HE HELD BEFORE HIS SERVICE AS AN OFFICER, WITHOUT LOSS OF SENIORITY OR CREDIT FOR SERVICE, * * *

3684 SERVICE CREDIT: REGULAR ENLISTED MEMBERS; SERVICE AS AN OFFICER TO BE COUNTED AS ENLISTED SERVICE

AN ENLISTED MEMBER OF THE REGULAR ARMY IS ENTITLED TO COUNT ACTIVE SERVICE AS AN OFFICER IN THE ARMY AS ENLISTED SERVICE FOR ALL PURPOSES.

SEE SIMILAR PROVISIONS IN SECTION 8258 AND 8684 RELATING TO THE AIR FORCE.

CONCERNING THE APPLICATION OF THE ABOVE PROVISIONS OF SECTION 3684 OF TITLE 10, WITH RESPECT TO THE QUESTIONS UNDER CONSIDERATION, IT IS POINTED OUT IN COMMITTEE ACTION NO. 238 THAT BY COMMENT NO. 2 TO THE ADJUTANT GENERAL, DATED NOVEMBER 17, 1958, FILE REFERENCE JAGA 1958/7118, THE JUDGE ADVOCATE GENERAL OF THE ARMY RENDERED THE FOLLOWING OPINION:

IN VIEW OF THE PROVISIONS OF TITLE 10, U.S.C. SECTION 3684, IT IS THE OPINION OF THIS OFFICE THAT ACTIVE SERVICE AS A COMMISSIONED OR WARRANT OFFICER IS CREDITABLE IN DETERMINING THE 8 AND 10 YEARS OF CUMULATIVE SERVICE REQUIRED FOR PROMOTION OF REGULAR ARMY ENLISTED MEMBERS TO THE GRADES OF E-8 AND E-9, RESPECTIVELY, UNDER THE PROVISIONS OF SUBSECTION 201 (C), CAREER COMPENSATION ACT OF 1949 (63 STAT. 807), AS AMENDED (37 U.S.C. 232 (C); SUBSEC. 1 (3), ACT OF 20 MAY 1958 ( PUB. LAW 85-422; 72 STAT. 124). HOWEVER, THE "LEGISLATIVE HISTORY" OF THE FOREGOING AMENDMENT INDICATES THAT THE CONGRESS DID NOT SPECIFICALLY CONSIDER THE EFFECT OF TITLE 10, UNITED STATES CODE, SECTION 3684 IN CONNECTION WITH THIS MATTER. IN ADDITION, THE COMPTROLLER GENERAL APPEARS TO CONSIDER ACTIVE SERVICE AS AN OFFICER CREDITABLE ONLY DURING A PERIOD IN WHICH THE INDIVIDUAL CONCERNED OCCUPIES A DUAL OFFICER AND ENLISTED STATUS ( MS. COMP. GEN. B-136678, 23 JUL 1958). CONSEQUENTLY, WHETHER ACTIVE COMMISSIONED OR WARRANT OFFICER SERVICE MAY BE CREDITABLE FOR THE AFOREMENTIONED PURPOSE FOR ENLISTED MEMBERS OTHER THAN OF THE REGULAR ARMY, IN THE ABSENCE OF A DUAL STATUS, IS QUESTIONABLE. * * *

SUBSEQUENT TO THE ABOVE OPINION, THE JUDGE ADVOCATE GENERAL OF THE ARMY REAFFIRMED HIS VIEWS AS EXPRESSED IN THAT OPINION AND CONCLUDED THAT REGULAR ARMY ENLISTED MEN ARE AUTHORIZED TO COUNT FORMER OFFICER (OR WARRANT OFFICER) SERVICE AS ENLISTED SERVICE FOR PROMOTION TO PAY GRADES E -8 AND E-9 IN CASES INVOLVING (A) A MAN WHOSE PRIOR ENLISTED SERVICE WAS AS A NATIONAL GUARDSMAN OR AUS (DRAFTEE) BEFORE BECOMING AN OFFICER, (B) A MAN WHOSE PRIOR ENLISTED SERVICE WAS AS A REGULAR ARMY ENLISTED MAN BEFORE BECOMING AN OFFICER, AND (C) A COLLEGE ROTC GRADUATE WHO HAD NO ENLISTED SERVICE PRIOR TO BECOMING AN OFFICER.

PORTIONS OF THE HEARINGS BEFORE SUBCOMMITTEE NO. 2 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 9979, A SIMILAR BILL TO H.R. 11470, WHICH LATER BECAME THE ACT OF MAY 20, 1958, ARE QUOTED IN THE COMMITTEE ACTION (FROM PAGES 5140 AND 5187 OF SUCH HEARINGS) AS FOLLOWS:

( PAGE 5140)

MR. KILDAY. I FEEL THAT THE PROPOSAL--- THIS COMES FROM THE CORDINER COMMITTEE REPORT ORIGINALLY FOR THE TWO ADDITIONAL NON COMMISSIONED GRADES. I THINK IT IS AN EXCELLENT PROPOSAL. I AM WONDERING THOUGH IF WE OUGHT NOT TO MAKE SURE THAT THESE TWO ADDITIONAL ENLISTED GRADES GO TO CAREER ENLISTED MEN.

SECRETARY FRANCIS. I BELIEVE THAT WOULD BE ADVISABLE.

MR. KILDAY. THE ENLISTED GRADES BELOW E-7 ARE STYMIED BY AN OVERPOPULATION OF THE E-7 GRADE.

SECRETARY FRANCIS. I BELIEVE THE E-7'S ARE FULL, YES, SIR.

MR. KILDAY. AS LONG AS IT IS FULL, THE E-7 CAN-T COME UP TO 7, THE 5 TO 6 NOR THE 4 TO 5, AND IT CREATES SOME STAGNATION ALL THE WAY DOWN THE LINE.

NOW, I FEEL THAT FORMER OFFICERS WHO HAVE BEEN PERMITTED TO ENLIST AS E- 7'S SHOULD LOSE NOTHING BUT I WONDER WHAT THE POSITION OF THE DEPARTMENT WOULD BE IF THE 8 AND 9 WERE USED TO OPEN UP AN ORDERLY COURSE OF PROMOTION FOR THE CAREER ENLISTED MAN WHO HAS NEVER BEEN AN OFFICER.

SECRETARY FRANCIS. I THINK THAT WOULD BE A FAIR ADDITION. SOME PROVISION TO THE EFFECT THAT IF HE QUALIFIED, HE WOULD HAVE TO HAVE A CERTAIN NUMBER OF ENLISTED YEARS.

( PAGE 5187)

MR. KILDAY. I THINK THAT IS A VERY FINE SUGGESTION THAT YOU HAVE MADE, AS I STATED YESTERDAY. INSTEAD OF HAVING ONLY THE SEVENTH GRADES, WE WOULD HAVE THE 8 AND 9.

I REMARKED YESTERDAY TO SECRETARY FRANCIS WE PROBABLY OUGHT TO PUT IN SOME LANGUAGE TO RESERVE THOSE TO CAREER ENLISTED MEN, TO GIVE THE CAREER ENLISTED MAN THE SOLE OPPORTUNITY TO GET TO THAT, BUT THAT IS A DETAIL.

IN ADDITION, A STATEMENT APPEARING ON PAGE 19 OF HOUSE REPORT NO. 1538, TO ACCOMPANY H.R. 11470, WHICH BECAME THE ACT OF MAY 20, 1958, IS QUOTED AS FOLLOWS:

THE COMMITTEE ON ARMED SERVICES, IN ITS PROPOSED LEGISLATION, RECOMMENDS 2 LIMITING CONTROLS, NAMELY THAT ONLY 1 PERCENT OF THE ENLISTED PERSONNEL MAY BE ASSIGNED TO THE MILITARY RANK OF E-9, AND ONLY 2 PERCENT OF THE ENLISTED PERSONNEL MAY BE ASSIGNED TO THE RANK OF E-8. IN ADDITION, NO ENLISTED PERSON CAN BE PROMOTED TO THE MILITARY RANK OF E-8 UNTIL HE HAS COMPLETED 8 YEARS OF ENLISTED SERVICE, AND NO PERSON CAN BE PROMOTED TO THE MILITARY RANK OF E-9 UNTIL HE HAS COMPLETED 10 YEARS OF ENLISTED SERVICE. THE PERCENTAGE LIMITATIONS ARE INTENDED TO RESTRICT THESE TWO NEW ENLISTED RANKS TO OUTSTANDING ENLISTED PERSONNEL. IN OTHER WORDS, ENLISTED PERSONNEL WHO ENTER THE SERVICE ON A CAREER BASIS WILL NOW BE ABLE TO ASPIRE TO TWO NEW ENLISTED PAY GRADES WITH A SUBSTANTIAL INCREASE IN MONTHLY PAY. THE 8- AND 10-YEAR REQUIREMENT OF ENLISTED SERVICE BEFORE PROMOTION TO THE MILITARY RANK OF E-8 OR E-9 IS INCLUDED FOR THE PURPOSE OF PRESERVING THESE 2 NEW ENLISTED RANKS FOR THE CAREER ENLISTED MAN. OTHER WORDS, THE ONLY ENLISTED PERSONS WHO WILL BE ELIGIBLE FOR THESE MILITARY RANKS ARE ENLISTED PERSONNEL WHO HAVE COMPLETED 8 AND 10 YEARS, RESPECTIVELY, OF ENLISTED SERVICE. ( ITALICS SUPPLIED.)

IN OUR DECISION OF JULY 23, 1958, B-136678, 38 COMP. GEN. 68, REFERRED TO IN THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, WE SAID IN ANSWER TO QUESTION 2 (A) AND 2 (B), RESPECTING SERVICE IN A DUAL STATUS (OFFICER--- ENLISTED), THAT UNLIKE SECTION 1 (1) OF PUBLIC LAW 85-422 (ACT OF MAY 20, 1958), WHICH REQUIRES "ACTIVE SERVICE AS AN ENLISTED MEMBER," SECTION 1 (3) REQUIRES ,ENLISTED SERVICE CREDITABLE IN THE COMPUTATION OF HIS BASIC PAY.' WHILE THE LEGISLATIVE HISTORY OF SECTION 1 (3) OF THE 1958 ACT DOES NOT INDICATE THAT THE CONGRESS SPECIFICALLY CONSIDERED THE EFFECT OF THE PROVISIONS OF SECTIONS 3684 AND 8684, TITLE 10, U.S. CODE--- WHICH AUTHORIZE REGULAR ENLISTED SERVICE--- IT SEEMS CLEAR THAT APPLICATION OF THOSE SECTIONS TO THE PROVISIONS OF SECTION 1 (3) OF THE 1958 ACT WOULD BE INCONSISTENT WITH THE INTENTION OF THE DRAFTERS OF THE 1958 ACT. THE WORD "ENLISTED" AS USED TO DESCRIBE THE KIND OF CUMULATIVE SERVICE INTENDED MUST BE READ AS A WORD OF LIMITATION. THE WORDS "CUMULATIVE YEARS OF SERVICE," WITHOUT THE WORD "ENLISTED," WOU.D HAVE INCLUDED NOT ONLY ENLISTED SERVICE BUT ALSO COMMISSIONED AND WARRANT OFFICER SERVICE AS PROVIDED IN SECTION 202 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (A).

THE ESTABLISHED RULE OF STATUTORY CONSTRUCTION IS THAT WHERE ONE STATUTE DEALS WITH A SUBJECT IN GENERAL TERMS, AND ANOTHER DEALS WITH A PART OF THE SAME SUBJECT IN A MORE DETAILED WAY, THE MORE SPECIFIC WILL PREVAIL UNLESS IT APPEARS THAT THE LEGISLATURE INTENDED TO MAKE THE GENERAL ACT CONTROLLING. HASKINS AND SELLS V. UNITED STATES, 91 C.1CLS. 35; GINSBERG AND SONS V. POPKIN, 285 U.S. 204; DETRICH V. HOWARD 155 F.2D 307, AND IRIARTE V. UNITED STATES, 157 F.2D 105. FURTHER, WHERE THERE IS A SEEMING CONFLICT BETWEEN A GENERAL PROVISIONS AND A SPECIFIC PROVISION AND THE GENERAL PROVISION IS BROAD ENOUGH TO INCLUDE THE SUBJECT TO WHICH THE SPECIFIC PROVISION RELATES, THE SPECIFIC PROVISION SHOULD BE REGARDED AS AN EXCEPTION TO THE GENERAL PROVISION SO THAT BOTH MAY BE GIVEN EFFECT, THE GENERAL APPLYING ONLY WHERE THE SPECIFIC PROVISION IS INAPPLICABLE. TOWNSEND V. LITTLE, 109 U.S. 504, 512; UNITED STATES V. CHASE, 135 U.S. 255, 260; CITY OF TULSA V. SOUTHWESTERN BELL TELEPHONE COMPANY, 75 F.2D 343, 351; 82 C.J.S. 722, STATUTES, SECTION 347 (B), NOTES 1-3. SECTION 1 (3) OF THE 1958 ACT RELATES SPECIFICALLY TO THE MATTER OF PAY GRADES E-8 AND E-9 AND ITS PROVISIONS GOVERN A MEMBER'S RIGHT TO THE PAY OF SUCH GRADES.

IT CANNOT BE ASSUMED THAT IN ENACTING THE ACT OF MAY 20, 1958, THE CONGRESS INTENDED THAT ALL SERVICE COUNTABLE AS ENLISTED SERVICE UNDER OTHER PROVISIONS OF LAW SHOULD BE VIEWED AS ENLISTED SERVICE FOR THE PURPOSES OF SECTION 1 (3) OF THAT ACT, SINCE, IN THAT EVENT, DISPARITIES WOULD EXIST BETWEEN THE RIGHT OF ENLISTED MEMBERS OF THE REGULAR ARMY AND AND REGULAR AIR FORCE ON THE ONE HAND, AND THOSE OF OTHER ENLISTED MEMBERS OF THE UNIFORMED SERVICES ON THE OTHER, SECTIONS 3684 AND 8684, 10 U.S. CODE, BEING APPLICABLE ONLY TO ENLISTED MEMBERS OF THE REGULAR ARMY AND THE REGULAR AIR FORCE. SECTION 1 (3) OF THE 1958 ACT COVERS ENLISTED MEMBERS GENERALLY AND THERE IS NO INDICATION OF AN INTENT THAT ENLISTED MEMBERS OF SOME SERVICES SHOULD RECEIVE ADVANTAGES NOT GIVEN TO ENLISTED MEN OF OTHER SERVICES.

WE FIND NOTHING SIGNIFICANT IN THE ABOVE-QUOTED HEARINGS AND REPORT WHICH WOULD INDICATE IN ANY WAY THAT CONGRESS INTENDED THAT THE TERM "ENLISTED SERVICE" AS USED IN SECTION 1 (3), INCLUDES SERVICE AS A COMMISSIONED OR WARRANT OFFICER IN DETERMINING THE 8 AND 10 YEARS OF CUMULATIVE ENLISTED SERVICE. ON THE CONTRARY, IT SEEMS TO US THAT THE LEGISLATIVE HISTORY CLEARLY SUPPORTS THE VIEW THAT CONGRESS INTENDED THAT ENLISTED SERVICE ONLY MAY BE COUNTED IN COMPUTING THE CUMULATIVE YEARS OF ENLISTED SERVICE FOR PROMOTION TO THE GRADES E-8 AND E-9. SEE THE STATEMENT AT THE TOP OF PAGE 16, SENATE REPORT NO. 1472, TO ACCOMPANY H.R. 11470, AND THE SECTIONAL ANALYSIS OF SUBSECTION 3 ON PAGE 48 OF HOUSE REPORT NO. 1538. IN PARTICULAR, YOUR ATTENTION IS INVITED TO THE STATEMENT MADE BY MR. KILDAY ON MARCH 20, 1958 (PAGE 5895 OF REPORT NO. 78), WHEN THE FULL COMMITTEE OF THE HOUSE ARMED SERVICES CONSIDERED H.R. 11470, THAT "WE PLACED A PROVISION IN THE BILL THAT TO QUALIFY FOR E-8 AND E-9 YOU MUST HAVE 8 AND 10 YEARS OF SERVICE, OF CUMULATIVE ENLISTED SERVICE RESPECTIVELY. YOU MUST HAVE 8 YEARS ACCUMULATED OF ENLISTED SERVICE TO BE AN 8, AND 10 YEARS, TO BE A 9.' ALSO, ON PAGE 5909 OF THE SAME REPORT, A STATEMENT IS MADE BY MR. BLANDFORD THAT,"WE HAVE PROVIDED IN THE E-8 AND E -9 GRADE TWO MAJOR CONTROLS. ONE IS THAT NO MAN CAN GO TO THE MILITARY RANK OF E-8 WITH LESS THAN 8 YEARS OF SERVICE AND NO MAN CAN GO THE MILITARY RANK OF E-9 WITH LESS THAN 10 YEARS OF ENLISTED SERVICE.' ACCORDINGLY, IN VIEW OF THE LANGUAGE IN SECTION 1 (3) OF THE 1958 ACT, AND AFTER CAREFUL CONSIDERATION OF THE LEGISLATIVE HISTORY OF THAT SECTION, IT IS OUR VIEW THAT ACTIVE SERVICE AS A COMMISSIONED OR WARRANT OFFICER MAY NOT BE CREDITED IN DETERMINING THE 8 AND 10 YEARS OF CUMULATIVE ENLISTED SERVICE REQUIRED FOR PROMOTION OF REGULAR ARMY AND AIR FORCE ENLISTED MEMBERS TO THE GRADE OF E-8 AND E-9, RESPECTIVELY. QUESTION 1 IS ANSWERED IN THE NEGATIVE. SINCE QUESTION 1 IS ANSWERED IN THE NEGATIVE, NO ANSWER IS REQUIRED FOR QUESTION 2.