B-142419, JUNE 9, 1960, 39 COMP. GEN. 819

B-142419: Jun 9, 1960

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ACCEPTANCE SINCE A PROFFERED COMMISSION IN THE REGULAR ARMY DOES NOT GIVE RISE TO A REGULAR ARMY COMMISSIONED STATUS UNTIL IT IS ACCEPTED AND ACTIVE COMMISSIONED SERVICE UNDER AN APPOINTMENT MADE UNDER THE ACT OF DECEMBER 28. THE TIME BETWEEN THE DATE OF SUCH APPOINTMENT AND THE ACCEPTANCE MAY NOT BE CONSIDERED FOR RETIREMENT PURPOSES UNDER 10 U.S.C. 3927 (A) WHICH PROVIDES THAT THE SERVICE CREDITABLE UNDER THE 1945 ACT IS THE SERVICE CREDITABLE AT THE TIME OF APPOINTMENT PLUS ACTIVE SERVICE AFTER THAT APPOINTMENT AND SECTION 9 OF THE 1945 ACT. IF THE SENATE IS IN SESSION. OR IF THE SENATE IS IN RECESS THE DATE OF THE RECESS APPOINTMENT SHALL BE CONSIDERED THE DATE OF APPOINTMENT. 1960: REFERENCE IS MADE TO LETTER OF MARCH 25.

B-142419, JUNE 9, 1960, 39 COMP. GEN. 819

MILITARY PERSONNEL - RETIREMENT - SERVICE CREDITS - TIME BETWEEN APPOINTMENTS UNDER ACT OF DECEMBER 28, 1945, AND ACCEPTANCE SINCE A PROFFERED COMMISSION IN THE REGULAR ARMY DOES NOT GIVE RISE TO A REGULAR ARMY COMMISSIONED STATUS UNTIL IT IS ACCEPTED AND ACTIVE COMMISSIONED SERVICE UNDER AN APPOINTMENT MADE UNDER THE ACT OF DECEMBER 28, 1945, WHICH AUTHORIZED THE APPOINTMENT OF ADDITIONAL OFFICERS OF THE REGULAR ARMY, COULD NOT BEGIN UNTIL THE DATE OF FORMAL ACCEPTANCE OF THE COMMISSION, THE TIME BETWEEN THE DATE OF SUCH APPOINTMENT AND THE ACCEPTANCE MAY NOT BE CONSIDERED FOR RETIREMENT PURPOSES UNDER 10 U.S.C. 3927 (A) WHICH PROVIDES THAT THE SERVICE CREDITABLE UNDER THE 1945 ACT IS THE SERVICE CREDITABLE AT THE TIME OF APPOINTMENT PLUS ACTIVE SERVICE AFTER THAT APPOINTMENT AND SECTION 9 OF THE 1945 ACT, AS ADDED BY THE ACT OF MAY 15, 1947, WHICH PROVIDES THAT THE DATE OF NOMINATION BY THE PRESIDENT, IF THE SENATE IS IN SESSION, OR IF THE SENATE IS IN RECESS THE DATE OF THE RECESS APPOINTMENT SHALL BE CONSIDERED THE DATE OF APPOINTMENT, DOES NOT REQUIRE ANY CHANGE IN COMPUTATION OF CREDITABLE SERVICE UNDER 1945 ACT APPOINTMENTS.

TO THE SECRETARY OF DEFENSE, JUNE 9, 1960:

REFERENCE IS MADE TO LETTER OF MARCH 25, 1960, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION AS TO WHETHER AN OFFICER APPOINTED IN THE REGULAR ARMY UNDER AUTHORITY OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 663, 10 U.S.C. 505C, 1946 USED., MAY INCLUDE AS CREDITABLE SERVICE FOR RETIREMENT PURPOSES UNDER SECTIONS 3913 AND 3921, TITLE 10, U.S. CODE,"THE TIME BETWEEN THE DATE OF HIS APPOINTMENT UNDER THAT ACT AND THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT AS EVIDENCED BY A SIGNED OATH OF OFFICE.' THE ISSUE PRESENTED IS SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 262.

COMMITTEE ACTION NO. 262 DISCLOSES THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS RENDERED AN OPINION THAT THE SERVICE CREDITABLE UNDER THE ACT OF DECEMBER 28, 1945, DOES NOT INCLUDE THE TIME BETWEEN THE DATE OF APPOINTMENT AND THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT AS EVIDENCED BY A SIGNED OATH OF OFFICE. IT IS STATED, HOWEVER, THAT THE POLICY OF THE DEPARTMENT OF THE AIR FORCE IN THIS MATTER IS TO INCLUDE THE TIME FROM THE DATE OF THE SPECIAL ORDERS ANNOUNCING THE APPOINTMENT TO THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT FOR PURPOSES OF THE ACT OF DECEMBER 28, 1945. THE FURTHER OBSERVATION IS MADE THAT "IT, THEREFORE, APPEARS THAT THE OPINION OF THE ARMY JUDGE ADVOCATE GENERAL IN THIS AREA IS A RULING WHICH ADMINISTRATIVELY PRECLUDES THE CREDITING OF SERVICE TO CERTAIN INDIVIDUALS WHICH IS AUTHORIZED BY LAW.'

PRESUMABLY THE MENTIONED AIR FORCE POLICY IS PREDICATED UPON THE PROVISIONS OF SECTION 208 (A) OF THE ARMED FORCES REGULAR OFFICER AUGMENTATION ACT OF 1956, 70 STAT. 586, REENACTED AS SECTION 27 OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1562, 10 U.S.C. 8287 NOTE, PERMITTING AN INCREASE OF UP TO TWO YEARS IN THE YEARS OF SERVICE CREDITED TO AN OFFICER OF THE REGULAR AIR FORCE ON JULY 20, 1956, FOR THE PURPOSES OF 10 U.S.C. 8927 (A) (1). SIMILAR PROVISIONS FOR ADDITIONAL SERVICE CREDIT FOR REGULAR ARMY OFFICERS IN THE SERVICE ON JULY 20, 1956, HOWEVER, WERE PURPOSELY OMITTED FROM THE 1956 ACT. THE REASONS FOR THIS OMISSION ARE EXPLAINED IN SENATE REPORT NO. 2420, TO ACCOMPANY H.R. 11683 WHICH BECAME THE 1956 ACT, AS FOLLOWS (PAGE 7):

THIS LEGISLATION CONTAINS NO AUTHORITY WHEREBY THE DEPARTMENT OF THE ARMY MAY INCREASE THE PROMOTION-LIST SERVICE OF ITS EXISTING REGULAR OFFICERS. SUCH AUTHORITY WAS NOT REQUESTED FOR TWO REASONS. FIRST, NO ADDITIONAL CREDITS ARE REQUIRED FOR THE PURPOSE OF REDUCING THE ARMY HUMP OR FOR ACCELERATING REGULAR PROMOTIONS. SECOND, ANY ADJUSTMENT FROM THE STANDPOINT OF EQUITY WOULD BE EXTREMELY DIFFICULT. FOR EXAMPLE, SINCE 1932 THE ARMY HAS INTEGRATED OFFICERS UNDER VARYING PROGRAMS WHICH HAS DENIED THEM FULL CREDIT FOR THEIR PRIOR COMMISSIONED SERVICE FOR PROMOTION -LIST PURPOSES. ON THE OTHER HAND, THE ARMY IN 1946 INTEGRATED OFFICERS AND AWARDED THEM UP TO 20 YEARS' CONSTRUCTIVE CREDIT FOR PROMOTION-LIST PURPOSES, WITH THE RESULT THAT YEARS NEVER ACTUALLY SERVED WERE AWARDED FOR PROMOTION-LIST AND MANDATORY RETIREMENT PURPOSES.

UNDER SECTION 4 OF THE ACT OF DECEMBER 28, 1945, AS AMENDED, THE PRESIDENT WAS AUTHORIZED TO APPOINT AND COMMISSION ADDITIONAL OFFICERS IN THE REGULAR ARMY, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IN GRADES UP TO MAJOR, SUBJECT TO THE QUALIFICATIONS THEREIN PRESCRIBED, INCLUDING HONORABLE ACTIVE FEDERAL SERVICE AS COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF, ON OR AFTER DECEMBER 7, 1941. SECTION 5 OF THE 1945 ACT, 59 STAT. 664, 10 U.S.C. 505C, PROVIDED IN PERTINENT PART AS FOLLOWS:

EACH PERSON APPOINTED AS A COMMISSIONED OFFICER OF THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 4 OF THIS ACT SHALL BE CREDITED, AT THE TIME OF APPOINTMENT, WITH SERVICE EQUIVALENT TO THE TOTAL PERIOD OF ACTIVE FEDERAL SERVICE PERFORMED BY HIM AFTER ATTAINING THE AGE OF TWENTY-ONE YEARS AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES OR ANY COMPONENT THEREOF FROM DECEMBER 7, 1941, TO THE DATE OF SUCH APPOINTMENT, OR A PERIOD OF SERVICE EQUAL TO THE NUMBER OF DAYS, MONTHS, AND YEARS BY WHICH HIS AGE AT THE TIME OF SUCH APPOINTMENT EXCEEDS TWENTY-FIVE YEARS, WHICHEVER IS THE GREATER: PROVIDED, THAT IN COMPUTING THE TOTAL PERIOD OF ACTIVE COMMISSIONED FEDERAL SERVICE OF ANY SUCH PERSON WHO WAS HONORABLY DISCHARGED OR RELIEVED FROM ACTIVE SERVICE SUBSEQUENT TO MAY 12, 1945, THERE SHALL ALSO BE CREDITED THE PERIOD FROM THE DATE OF HIS DISCHARGE OR RELIEF FROM ACTIVE SERVICE TO THE DATE OF HIS APPOINTMENT IN THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 4 OF THIS ACT. * * * ( ITALICS SUPPLIED.)

SECTION 9 OF THE ACT ADDED BY THE ACT OF MAY 15, 1947, 61 STAT. 95, 10 U.S.C. 505E AND 10 U.S.C. 505 NOTE, PROVIDED THAT:

FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF THIS ACT, THE DATE OF NOMINATION BY THE PRESIDENT IF THE SENATE IS IN SESSION, OR IF THE SENATE IS IN RECESS THE DATE OF A RECESS APPOINTMENT BY THE PRESIDENT, SHALL BE CONSIDERED AS THE DATE OR TIME OF APPOINTMENT IN DETERMINING ELIGIBILITY FOR APPOINTMENT, PERMANENT GRADE IN WHICH APPOINTED, DATE OF RANK IN SUCH GRADE, PERIOD OF SERVICE TO BE CREDITED UNDER SECTION 5 HEREOF, AND ELIGIBILITY FOR PROMOTION OF EACH PERSON APPOINTED AS A COMMISSIONED OFFICER OF THE REGULAR ARMY UNDER THE PROVISIONS OF THIS ACT: PROVIDED, THAT NO PERSON APPOINTED UNDER THE PROVISIONS OF THIS ACT SHALL BE ENTITLED, BY REASON OF SUCH APPOINTMENT, TO ANY PAY OR ALLOWANCES FOR ANY PERIOD PRIOR TO THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT. ( ITALICS SUPPLIED.)

COMMISSIONED OFFICERS OF THE REGULAR ARMY WITH "30 YEARS OF SERVICE COMPUTED UNDER SECTION 3927 (A)" OF TITLE 10, U.S. CODE, ARE ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF SECTIONS 3919 AND 3921 OF THAT TITLE. SECTION 3927 (A) OF TITLE 10, PROVIDED IN PERTINENT PART AS FOLLOWS:

(A) FOR THE PURPOSE OF DETERMINING WHETHER A REGULAR COMMISSIONED OFFICER MAY BE RETIRED UNDER SECTIONS 3913, 3915, 3916, 3921, 3922, OR 3923 OF THIS TITLE, HIS YEARS OF SERVICE ARE:

(1) FOR A COMMISSIONED OFFICER APPOINTED IN THE REGULAR ARMY BEFORE JANUARY 1, 1948, UNDER THE ACT OF DECEMBER 28, 1945, CH. 601 (59 STAT. 663), THE SERVICE CREDITED TO HIM UNDER THAT ACT AT THE TIME OF HIS APPOINTMENT, PLUS HIS YEARS OF ACTIVE COMMISSIONED SERVICE IN THE REGULAR ARMY AFTER THAT APPOINTMENT.

THE RESTATEMENT OF SECTION 3927 (A) IN THE ACT OF SEPTEMBER 2, 1958, SECTION 1 (98), 72 STAT. 1488, 10 U.S.C. 3927 (A), WAS "WITHOUT SUBSTANTIVE CHANGE.' SEE SECTION 34 (A), 72 STAT. 1568.

THE QUOTED LANGUAGE OF SECTION 3927 (A) IS DEFINITE AND UNAMBIGUOUS. PROVIDES THAT IN THE CASE OF AN OFFICER APPOINTED IN THE REGULAR ARMY BEFORE JANUARY 1, 1948, UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, SERVICE CREDITABLE FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY FOR RETIREMENT UNDER SECTIONS 3919 AND 3921, TITLE 10, U.S. CODE, IS THE SERVICE CREDITABLE TO HIM UNDER THE 1945 ACT "AT THE TIME OF HIS APPOINTMENT, PLUS HIS YEARS OF ACTIVE COMMISSIONED SERVICE IN THE REGULAR ARMY AFTER THAT APPOINTMENT.' SECTION 9 OF THE 1945 ACT, AS ADDED BY THE ACT OF MAY 15, 1947, 61 STAT. 95, EXPRESSLY PROVIDED THAT THE DATE OF NOMINATION BY THE PRESIDENT IF THE SENATE IS IN SESSION, OR IF THE SENATE IS IN RECESS THE DATE OF A RECESS APPOINTMENT BY THE PRESIDENT, SHALL BE CONSIDERED AS THE DATE OR TIME OF APPOINTMENT IN DETERMINING THE PERIOD OF SERVICE TO BE CREDITED UNDER SECTION 5 OF THAT ACT, AND ONLY "ACTIVE COMMISSIONED SERVICE IN THE REGULAR ARMY AFTER THAT APPOINTMENT" IS CREDITABLE. AS POINTED OUT IN COMMITTEE ACTION NO. 262, HOWEVER, THERE NORMALLY WAS A LAPSE OF TIME BETWEEN THE DATE OF AN APPOINTMENT UNDER THE 1945 ACT AND THE DATE OF ACCEPTANCE OF THE PROFFERED COMMISSION IN THE REGULAR ARMY AND IT IS THIS CRITICAL PERIOD WHICH THE ARMY EXCLUDES UNDER THE PROVISIONS OF SECTION 3927 (A), IN DETERMINING THE ELIGIBILITY OF OFFICERS OF THE REGULAR ARMY FOR RETIREMENT UNDER SECTIONS 3919 AND 3921.

GENERALLY, A PROFFERED COMMISSION IN THE REGULAR ARMY DOES NOT GIVE RISE TO A REGULAR ARMY COMMISSIONED STATUS UNTIL IT IS ACCEPTED. COMPARE 36 COMP. GEN. 283; 36 COMP. GEN. 645. WE FIND NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF THE ADDED SECTION 9 OF THE APPOINTMENTS UNDER THAT ACT. HENCE, ACTIVE COMMISSIONED SERVICE UNDER SUCH AN APPOINTMENT COULD NOT BEGIN UNTIL THE DATE OF FORMAL ACCEPTANCE OF THE COMMISSION. ACCORDINGLY, WE SEE NO LEGAL BASIS UPON WHICH IT MAY BE CONCLUDED THAT ANY PART OF THE PERIOD BETWEEN THE DATE OF APPOINTMENT FOR THE PURPOSES OF SECTION 5 OF THE ACT OF DECEMBER 28, 1945, AND THE DATE OF ACCEPTANCE OF SUCH APPOINTMENT PROPERLY MAY BE CONSIDERED AS CONSTITUTING CREDITABLE SERVICE FOR THE PURPOSES OF 10 U.S.C. 3927 (A).