B-141440, MAR. 2, 1960

B-141440: Mar 2, 1960

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WAS DISCHARGED ON MAY 19. WHEN HE WAS APPOINTED ENSIGN (TEMPORARY). HE WAS APPOINTED LIEUTENANT (JG) (TEMPORARY) ON MARCH 1. HE WAS RELEASED TO INACTIVE DUTY ON JUNE 30. HIS RECORD WAS CORRECTED BY THE BOARD FOR CORRECTION OF MILITARY RECORDS TO SHOW CONTINUOUS SERVICE ON INACTIVE DUTY IN THE U.S. HIS INACTIVE STATUS CONTINUED UNTIL HE WAS RECALLED TO ACTIVE DUTY ON AUGUST 20. THE OFFICER WAS PROMOTED TO LIEUTENANT COMMANDER (TEMPORARY) ON AUGUST 26. HE WAS APPOINTED LIEUTENANT COMMANDER (PERMANENT) TO RANK FROM AUGUST 26. HE WAS APPOINTED COMMANDER (TEMPORARY) EFFECTIVE JULY 1. YOU STATE THAT THE OFFICER WAS PLACED ON THE U.S. OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER.

B-141440, MAR. 2, 1960

TO C. C. GORDON, AUTHORIZED CERTIFYING OFFICER, U.S. COAST GUARD HEADQUARTERS:

BY FIRST ENDORSEMENT DATED DECEMBER 2, 1959, THE COMMANDANT, U.S. COAST GUARD, FORWARDED HERE YOUR LETTER OF DECEMBER 2, 1959, WITH ENCLOSURES, REQUESTING A DECISION WHETHER COMMANDER FREDERICK N. MARTIN, U.S. COAST GUARD RESERVE, MAY BE CREDITED 4 YEARS, 1 MONTH AND 19 DAYS SERVICE IN THE INACTIVE COAST GUARD RESERVE FROM JULY 1, 1946, THROUGH AUGUST 19, 1950, IN THE MULTIPLIER IN THE COMPUTATION OF YEARS OF SERVICE FOR RETIREMENT PAY PURPOSES. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-CG-469 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT APPEARS FROM THE STATEMENT OF SERVICE FURNISHED BY YOU THAT THE MEMBER ENLISTED IN THE COAST GUARD ON AUGUST 7, 1925, AND WAS DISCHARGED ON MAY 19, 1933. HE REENLISTED ON AUGUST 10, 1942, ENTERED ON ACTIVE DUTY ON THAT DATE, AND SERVED AS AN ENLISTED MAN AND WARRANT OFFICER UNTIL AUGUST 31, 1943, WHEN HE WAS APPOINTED ENSIGN (TEMPORARY). HE WAS APPOINTED LIEUTENANT (JG) (TEMPORARY) ON MARCH 1, 1944, AND LIEUTENANT (TEMPORARY) ON OCTOBER 23, 1945. HE WAS RELEASED TO INACTIVE DUTY ON JUNE 30, 1946. HIS RECORD WAS CORRECTED BY THE BOARD FOR CORRECTION OF MILITARY RECORDS TO SHOW CONTINUOUS SERVICE ON INACTIVE DUTY IN THE U.S. COAST GUARD RESERVE, WITH CREDIT FOR SATISFACTORY FEDERAL SERVICE UNDER PUBLIC LAW 810 (62 STAT. 1087), NOW CODIFIED IN 10 U.S.C. 1331-1337, DURING THE PERIOD JULY 1 TO 17, 1946, INCLUSIVE.

ON JULY 17, 1946, HE EXECUTED AN OATH AS LIEUTENANT IN THE U.S. COAST GUARD RESERVE. HIS INACTIVE STATUS CONTINUED UNTIL HE WAS RECALLED TO ACTIVE DUTY ON AUGUST 20, 1950. THE OFFICER WAS PROMOTED TO LIEUTENANT COMMANDER (TEMPORARY) ON AUGUST 26, 1952, AND ON APRIL 16, 1957, HE WAS APPOINTED LIEUTENANT COMMANDER (PERMANENT) TO RANK FROM AUGUST 26, 1952. HE WAS APPOINTED COMMANDER (TEMPORARY) EFFECTIVE JULY 1, 1959. YOU STATE THAT THE OFFICER WAS PLACED ON THE U.S. COAST GUARD RESERVE RETIRED LIST ON DECEMBER 1, 1959, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6223 AND 14 U.S.C. 755 (E), HAVING COMPLETED A TOTAL OF 26 YEARS, 3 MONTHS AND 24 DAYS' CREDITABLE SERVICE IN THE ARMED FORCES FOR RETIREMENT PURPOSES ON NOVEMBER 30, 1959, INCLUDING 1 YEAR, 2 MONTHS AND 20 DAYS' SERVICE IN THE ARMY AND 4 YEARS, 1 MONTH AND 19 DAYS' INACTIVE SERVICE IN THE U.S. COAST GUARD RESERVE PRIOR TO JUNE 1, 1958.

SECTION 6323 (A), TITLE 10 OF THE U.S. CODE, PROVIDES THAT AN OFFICER OF THE NAVY OR MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT. THAT SECTION WAS DERIVED FROM SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, WHICH AUTHORIZED THE RETIREMENT OF OFFICERS OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF UPON THE COMPLETION OF MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COST GUARD, OR THE RESERVE COMPONENTS THEREOF, AT LEAST TEN YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE. SECTION 7 (A) OF THAT ACT PROVIDED THAT THE RETIRED PAY OF SUCH OFFICERS WOULD BE DETERMINED BY MULTIPLYING THE APPLICABLE ACTIVE DUTY PAY RATE "BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY WHILE ON ACTIVE DUTY" TIMES 2 1/2 PERCENT, WHICH UNDER THE LAW THEN IN EFFECT INCLUDED INACTIVE SERVICE IN THE COAST GUARD RESERVE. BY THE ACT OF AUGUST 10, 1956, THAT FORMULA WAS CODIFIED IN 10 U.S.C. 6325 (A) GOVERNING THE COMPUTATION OF PAY FOR OFFICERS RETIRED UNDER 10 U.S.C. 6323. BY THE ACT OF SEPTEMBER 2, 1958. PUBLIC LAW 85-561, THAT FORMULA WAS INCORPORATED IN 10 U.S.C. 6323 (E) AND 10 U.S.C 6325 (A) WAS AMENDED BY OMITTING REFERENCE TO SECTION 6323.

WHILE 10 US.C. 6323 (A) REFERS ONLY TO AN OFFICER "OF THE NAVY OR THE MARINE CORPS," 10 U.S.C. 5001 (A) (1) DEFINES THE TERM "NAVY" AS INCLUDING THE NAVAL RESERVE. SEE ALSO THE REVISION NOTES TO 10 U.S.C. 6323. THE PROVISIONS OF 14 U.S.C. 755 (E) PROVIDE THAT MEMBERS OF THE COAST GUARD RESERVE SHALL BE ENTITLED TO THE SAME RETIREMENT BENEFITS AS PRESCRIBED BY LAW FOR PERSONNEL OF THE NAVAL RESERVE. IT FOLLOWS THAT A COMMISSIONED OFFICER OF THE COAST GUARD RESERVE WITH THE REQUISITE SERVICE IS ENTITLED TO THE RETIRED PAY BENEFITS PROVIDED IN 10 U.S.C. 6323.

THE RETIRED PAY AUTHORIZED BY 10 U.S.C. 6323 IS REQUIRED TO BE COMPUTED AS PRESCRIBED IN SUBSECTION 6323 (E) ON THE BASIS OF

"* * * 2 1/2 PERCENT OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE * * *.'

SECTION 1405 PROVIDES AS FOLLOWS:

"FOR THE PURPOSE OF SECTION * * * 6323 (E) * * * OF THIS TITLE, THE YEARS OF SERVICE OF A MEMBER OF THE ARMED FORCES ARE COMPUTED BY ADDING---

"/1) HIS YEARS OF ACTIVE SERVICE:

"/2) THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 233 (A) (7) OF TITLE 37;

"/3) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1) OR (2) WITH WHICH HE WAS ENTITLED TO BE CREDITED, ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS SECTION, IN COMPUTING HIS BASIC PAY; AND

"/4) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1), (2), AND (3), WITH WHICH HE WOULD BE ENTITLED TO BE CREDITED UNDER SECTION 1333 OF THIS TITLE, IF HE WERE ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE.

FOR THE PURPOSE OF THIS SECTION, A PART OF A YEAR THAT IS SIX MONTHS OR MORE IS COUNTED AS A WHOLE YEAR, AND A PART OF A YEAR THAT IS LESS THAN SIX MONTHS IS DISREGARDED.'

SINCE COMMANDER MARTIN IS REPORTED TO HAVE BEEN PLACED ON THE COAST GUARD RESERVE RETIRED LIST, UNDER THE PROVISIONS OF 10 U.S.C. 6323 AND 1405 (3), HIS RETIRED PAY IS AUTHORIZED TO BE COMPUTED ON THE BASIS OF YEARS OF SERVICE WITH WHICH HE WAS PREVIOUSLY ENTITLED TO BE CREDITED (INCLUDING THE PERIODS OF INACTIVE DUTY PROVIDED FOR) "ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS SECTION" (JUNE 1, 1958) FOR THE PURPOSE OF COMPUTING HIS BASIC PAY IF SERVING ON ACTIVE DUTY.

SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AUTHORIZED, IN COMPUTING LONGEVITY (BASIC) PAY, THE CREDITING WITH THE FULL TIME FOR ALL PERIODS DURING WHICH THE OFFICER HELD A COMMISSION IN THE U.S. COAST GUARD RESERVE, AND OTHER PROVISIONS OF THAT ACT AUTHORIZED THE CREDITING OF ENLISTED AND WARRANT OFFICER SERVICE IN COMPUTING LONGEVITY PAY. UNDER SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, ADDITIONAL SERVICE CREDIT WAS AUTHORIZED FOR BASIC PAY PURPOSES FOR COMMISSIONED WARRANT OFFICER AND ENLISTED SERVICE, WHETHER ACTIVE OR INACTIVE. CF. 22 COMP. GEN. 358; 37 ID. 728. CONCERNING THE PERIOD FROM JULY 1 TO 17, 1946, IT CONSISTENTLY HAS BEEN HELD THAT, UPON CORRECTION OF RECORDS PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 65 STAT. 555, A SERVICEMAN'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY AND ALLOWANCES DUE UPON APPLICATION OF THE PAY STATUTES TO THE FACTS IN HIS CASE AS SHOWN BY THE CORRECTED RECORDS. SEE 32 COMP. GEN. 242 AT 247-248; 34 ID. 7; 38 ID. 208. SINCE THE OFFICER'S RECORD FOR THE PERIOD JULY 1, TO 17, 1946, WAS CORRECTED TO SHOW CONTINUOUS SERVICE ON INACTIVE DUTY UNDER A COMMISSION IN THE U.S. COAST GUARD RESERVE, HE WOULD BE ENTITLED TO COUNT SUCH SERVICE FOR THE PURPOSE OF COMPUTING HIS LONGEVITY (BASIC) PAY.

IN VIEW OF THE ABOVE, IF OTHERWISE CORRECT, THE 4 YEARS, 1 MONTH AND 19 DAYS IN QUESTION, DURING WHICH COMMANDER MARTIN HELD A COMMISSION IN THE COAST GUARD RESERVE PRIOR TO JUNE 1, 1958, MAY BE INCLUDED IN THE MULTIPLIER FACTOR IN THE COMPUTATION OF HIS RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 6323 AND 1405 (3). ACCORDINGLY, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.