B-138889, MAY 28, 1959, 38 COMP. GEN. 797

B-138889, MAY 28, 1959, 38 COMP. GEN. 797

MILITARY PERSONNEL - PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - MARITIME ACADEMIES TIME DURING WHICH CADETS AT THE UNITED STATES MERCHANT MARINE AND STATE MARITIME ACADEMIES HELD APPOINTMENTS AS MIDSHIPMEN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, NOT BEING CREDITABLE IN THE CASE OF OFFICERS FOR LONGEVITY PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, IS NOT CREDITABLE FOR BASIC PAY PURPOSES UNDER THE CAREER COMPENSATION ACT OF 1949. IN VIEW OF THE AUTHORITY FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES TO HAVE ACTIVE AND INACTIVE NAVAL RESERVE SERVICE CREDITED IN THE COMPUTATION OF YEARS OF SERVICE FOR LONGEVITY PURPOSES CONTAINED IN SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942 AND THE SAVINGS PROVISIONS SECTION 202 (A) (6) OF THE CAREER COMPENSATION ACT OF 1949, SERVICE AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, NAVAL RESERVE, MAY BE INCLUDED IN THE COMPUTATION OF SERVICE FOR BASIC PAY PURPOSES FOR ENLISTED PERSONNEL, BUT NO SERVICE MAY BE CREDITED FOR ANY PERIOD DURING WHICH A NAVAL RESERVE STATUS DID NOT EXIST, UNLESS A STATUS OTHERWISE RECOGNIZED FOR LONGEVITY PURPOSES EXISTED.

TO THE SECRETARY OF DEFENSE, MAY 28, 1959:

REFERENCE IS MADE TO LETTER OF FEBRUARY 24, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE, COMPTROLLER, REQUESTING A DECISION AS TO WHETHER A PERIOD OF TIME PRIOR TO OCTOBER 1, 1949, DURING WHICH CADETS AT THE UNITED STATES MERCHANT MARINE AND STATE MARITIME ACADEMIES HELD APPOINTMENTS AS MIDSHIPMAN, MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, MAY BE CREDITED FOR BASIC PAY PURPOSES. THE REQUEST HAS BEEN ASSIGNED NO. 237 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTIONS ARE STATED AS FOLLOWS:

1. PURSUANT TO THE NAVAL RESERVE ACT OF 1938 APPOINTMENTS AS MIDSHIPMAN, MERCHANT MARINE RESERVE, WERE MADE IN THE NAVY TO ENABLE SUCH APPOINTEES TO ATTEND MARITIME ACADEMIES IN AN INACTIVE DUTY STATUS. IN THE ABSENCE OF ANY OTHER POSSIBLE QUALIFYING STATUS, MAY THE ABOVE, PRIOR TO THE CAREER COMPENSATION ACT OF 1949, NOW CONSTITUTE ANY BASIS FOR CREDIT IN THE COMPUTATION OF CUMULATIVE YEARS OF SERVICE FOR PURPOSES OF BASIC PAY?

2. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, WOULD THE FOLLOWING CIRCUMSTANCES AFFECT SUCH ANSWER: TERMINATION OF ATTENDANCE PRIOR TO COMPLETION OF THE ACADEMIC COURSE BY DISCHARGE FROM THE NAVAL RESERVE?

IN THE DISCUSSION ATTACHED TO THE SUBMISSION IT IS INDICATED THAT THE PROBLEM ARISES WITH REGARD TO THE CORRECT BASIC PAY TO BE CREDITED INCIDENT TO A PRESENT STATUS IN THE NAVY. THE DISCUSSION POINTS OUT THAT IN JUNE 1941, THE SECRETARY OF THE NAVY ESTABLISHED A CLASSIFICATION OF MIDSHIPMAN, MERCHANT MARINE RESERVE, IN ACCORDANCE WITH THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 853J, PURSUANT TO WHICH APPOINTMENTS WERE MADE AS " MIDSHIPMAN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE.' IT IS ALSO INDICATED THAT ON THE BASIS OF SECTION 318 OF THE 1938 NAVAL RESERVE ACT, WHICH PROVIDED THAT THE MERCHANT MARINE RESERVE BE COMPOSED OF MEMBERS OF THE NAVAL RESERVE, ALL CADETS APPOINTED AFTER AUGUST 1942, IN THE UNITED STATES MERCHANT MARINE CADET CORPS AND STATE MARITIME ACADEMIES WERE APPOINTED AS MIDSHIPMAN, MERCHANT MARINE RESERVE, IN ORDER TO INSURE THAT CADETS TRAINED AT GOVERNMENT EXPENSE FOR SERVICE AT SEA WOULD BE REQUIRED TO SERVE IN THE MERCHANT MARINE OR ON ACTIVE DUTY IN THE NAVY. IN MANY INSTANCES MARITIME ACADEMIES WERE ATTENDED BY STUDENTS (MARITIME DUTY STATUS) AS APPOINTEES " MIDSHIPMAN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE," THAT BEING THEIR SOLE MILITARY STATUS. IT IS STATED, ALSO, THAT CERTAIN LANGUAGE IN OUR DECISION IN 32 COMP. GEN. 473 SEEMS TO SUPPORT THE VIEW THAT SERVICE IN THE STATUS OF MIDSHIPMAN, MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, MAY BE CREDITABLE FOR LONGEVITY PAY PRIOR TO THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 NOTE. THAT LANGUAGE IS QUOTED AS FOLLOWS:

UNDER THE PROVISIONS OF SECTIONS 8 AND 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 363, WARRANT OFFICERS AND ENLISTED MEN WERE AUTHORIZED TO COUNT ACTIVE FEDERAL SERVICE IN THE SERVICES MENTIONED IN THE TITLE OF THAT ACT OR RESERVE COMPONENTS THEREOF, INCLUDING SERVICE IN THE NAVAL RESERVE AND MARINE CORPS RESERVE, WITHOUT REGARD TO THE CAPACITY IN WHICH SUCH SERVICE WAS PERFORMED, AND HENCE, UNDER THE PROVISIONS OF THAT ACT, WARRANT OFFICERS AND ENLISTED MEN COULD COUNT SERVICE AS AN APPOINTED AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE FOR LONGEVITY PAY PURPOSES. SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, APPROVED OCTOBER 12, 1949, AND EFFECTIVE OCTOBER 1, 1949, PROVIDES THAT IN COMPUTING THE CUMULATIVE YEARS OF SERVICE, 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.

SINCE COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN WERE AUTHORIZED TO COUNT, FOR PAY PURPOSES, SERVICE AS APPOINTED AVIATION CADETS UNDER THE LAWS IN EFFECT ON AND BEFORE OCTOBER 1, 1949, YOU ARE ADVISED, IN ANSWER TO THE FIRST QUESTION, THAT ENLISTED AND WARRANT PERSONNEL, AS WELL AS COMMISSIONED PERSONNEL, PRESENTLY MAY COUNT SERVICE AS APPOINTED AVIATION CADETS FOR BASIC PAY PURPOSES.

SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PRESCRIBING THE PAY FOR WARRANT OFFICERS, PROVIDED, IN PART, THAT:

EVERY PERSON PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PER CENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE, NOT EXCEEDING THIRTY YEARS. SUCH SERVICE SHALL BE: ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE NAVAL RESERVE, MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE * * * ( ITALICS SUPPLIED.)

SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, PROVIDED, IN PART, THAT:

EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS. SUCH SERVICE SHALL BE ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OF RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE ENLISTED RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARITIME CORPS RESERVE, AND THE COAST GUARD RESERVE. ( ITALICS SUPPLIED.)

THE ABOVE-QUOTED SECTIONS 8 AND 9 PROVIDED FOR THE INCLUSION OF CERTAIN ACTIVE AND INACTIVE SERVICE, INCLUDING INACTIVE SERVICE IN THE NAVAL RESERVE, IN THE COMPUTATION OF YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES. SEE 22 COMP. GEN. 411, ANSWER TO QUESTION (G). HOWEVER, THE PROHIBITION CONTAINED IN THE ACT OF MARCH 4, 1913, 37 STAT. 891, 34 U.S.C. 880, PRECLUDES NAVY OFFICERS, INCLUDING WARRANT OFFICERS, FROM INCLUDING MIDSHIPMAN AND CADET SERVICE IN SUCH COMPUTATION. SEE 29 COMP. GEN. 331. ALSO, WE HAVE HELD THAT CADET SERVICE AT THE MERCHANT MARINE ACADEMY WAS NOT OF SUCH MILITARY NATURE AS TO BE INCLUDED IN THE COMPUTATION OF BASIC MILITARY PAY BY OFFICERS. B-135461, DATED SEPTEMBER 30, 1958. FOR THE REASONS INDICATED IN THAT DECISION, SERVICE AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, WAS NOT CREDITABLE, IN THE CASE OF OFFICERS, FOR LONGEVITY PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AND NEITHER IS SUCH SERVICE CREDITABLE BY OFFICER PERSONNEL FOR BASIC PAY PURPOSES UNDER THE CAREER COMPENSATION ACT. IT APPEARS, HOWEVER, THAT UNDER SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, AND IN VIEW OF THE SAVINGS PROVISIONS CONTAINED IN SECTION 202 (A) (6) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (A) (6), SERVICE AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, MAY BE INCLUDED BY ENLISTED PERSONNEL IN THE COMPUTATION OF THEIR YEARS OF SERVICE FOR BASIC PAY PURPOSES EVEN THOUGH THE NAVAL RESERVE STATUS IN INACTIVE AND EXISTS CONCURRENTLY WITH A STATUS AS A CADET.

YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE AS TO ENLISTED PERSONNEL ONLY. SINCE THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE ONLY INSOFAR AS CREDITING ENLISTED PERSONNEL WITH SERVICE IN THE NAVAL RESERVE IS CONCERNED, NO CREDIT MAY BE GIVEN FOR A PERIOD DURING WHICH NAVAL RESERVE STATUS DID NOT EXIST, UNLESS A STATUS OTHERWISE RECOGNIZED FOR LONGEVITY PAY PURPOSES EXISTED DURING THAT PERIOD. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.