B-153394, MARCH 4, 1964, 43 COMP. GEN. 577

B-153394: Mar 4, 1964

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1946 (10 U.S.C. 6903) IS NOT ENTITLED TO CREDIT FOR SUCH SERVICE IN DETERMINING HIS ACTIVE DUTY BASIC PAY RATE. " AND ABSENT AUTHORITY TO ALLOW CREDIT FOR MIDSHIPMAN SERVICE IN DETERMINING THE RATE OF BASIC PAY TO WHICH A MEMBER IS ENTITLED. IS ENTITLED TO HAVE HIS PAY ENTRY BASE DATE ADJUSTED TO REFLECT CREDIT FOR SERVICE AS A MIDSHIPMAN PERFORMED UNDER AUTHORITY OF THE ACT OF AUGUST 13. THAT HE WAS DISCHARGED FROM HIS RESERVE STATUS IN ORDER TO ACCEPT APPOINTMENT AS A MIDSHIPMAN IN THE UNITED STATES NAVY UNDER AUTHORITY OF THE ACT OF AUGUST 13. WAS NOT CREDITABLE IN COMPUTATION OF BASIC PAY UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949. WE HELD THAT: AS TO THOSE MEMBERS WHO WERE APPOINTED MIDSHIPMEN IN THE NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 3.

B-153394, MARCH 4, 1964, 43 COMP. GEN. 577

PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - BASIC PAY PURPOSES A NAVAL OFFICER WHO SERVED AS A MIDSHIPMAN UNDER THE AUTHORITY OF THE ACT OF AUGUST 13, 1946 (10 U.S.C. 6903) IS NOT ENTITLED TO CREDIT FOR SUCH SERVICE IN DETERMINING HIS ACTIVE DUTY BASIC PAY RATE, THE MIDSHIPMAN SERVICE NOT COMING WITHIN THE PURVIEW OF SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949 (37 U.S.C. 205), PROVIDING FOR CREDITING "ALL PERIODS OF ACTIVE SERVICE AS AN OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, OR ENLISTED MEMBER OF A UNIFORMED SERVICE," AND ABSENT AUTHORITY TO ALLOW CREDIT FOR MIDSHIPMAN SERVICE IN DETERMINING THE RATE OF BASIC PAY TO WHICH A MEMBER IS ENTITLED, THE OFFICER'S ENTRY BASE DATE MAY NOT BE ADJUSTED TO INCLUDE CREDIT FOR HIS MIDSHIPMAN SERVICE.

TO G. D. POLAND, DEPARTMENT OF THE NAVY, MARCH 4, 1964:

YOUR LETTER OF JANUARY 3, 1964, WITH ENDORSEMENTS, PRESENTS FOR DECISION UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-745 THE QUESTION WHETHER LIEUTENANT COMMANDER LEO T. PROFILET, USN, 506413/1310, IS ENTITLED TO HAVE HIS PAY ENTRY BASE DATE ADJUSTED TO REFLECT CREDIT FOR SERVICE AS A MIDSHIPMAN PERFORMED UNDER AUTHORITY OF THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1057, 10 U.S.C. 6903, FOR THE PURPOSE OF DETERMINING HIS ACTIVE DUTY BASIC PAY RATE EFFECTIVE MARCH 13, 1950.

YOU REPORT THAT COMMANDER PROFILET ENLISTED IN THE UNITED STATES NAVAL RESERVE ON APRIL 19, 1946; THAT HE WAS DISCHARGED FROM HIS RESERVE STATUS IN ORDER TO ACCEPT APPOINTMENT AS A MIDSHIPMAN IN THE UNITED STATES NAVY UNDER AUTHORITY OF THE ACT OF AUGUST 13, 1946; THAT HE SERVED UNDER CONTRACT AS A MIDSHIPMAN FOR THE PERIOD MARCH 13, 1948, THROUGH MARCH 12, 1950; AND THAT HE ACCEPTED APPOINTMENT AS ENSIGN, UNITED STATES NAVY, ON MARCH 13, 1950, AND HAS SERVED CONTINUOUSLY SINCE THAT DATE AS AN OFFICER IN THE UNITED STATES NAVY.

IN DECISION DATED APRIL 22, 1959, B-138442, MENTIONED IN YOUR LETTER, WE HELD THAT SERVICE PERFORMED IN 1942 AS A MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE, WAS NOT CREDITABLE IN COMPUTATION OF BASIC PAY UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 807 (NOW 37 U.S.C. 205), BECAUSE NO PROVISION OF LAW AUTHORIZED CREDIT FOR SUCH SERVICE. IN ANOTHER DECISION CITED BY YOU, B-150780, JUNE 7, 1963, 42 COMP. GEN. 669, IN REFERRING TO APPOINTMENTS UNDER THE ACT OF AUGUST 13, 1946, WE HELD THAT:

AS TO THOSE MEMBERS WHO WERE APPOINTED MIDSHIPMEN IN THE NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 3, IT IS OUR VIEW THAT THOSE PERIODS FOR WHICH THEY WERE ENTITLED TO RECEIVE ACTIVE DUTY PAY PROPERLY MAY BE CONSIDERED AS PERIODS OF ACTIVE SERVICE IN THE ARMED FORCES WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 6323 * * *.

THAT DECISION, BASED ON THE FACTS THERE PRESENTED, INVOLVED THE PROVISIONS OF 10 U.S.C. 6323 WHICH AUTHORIZE VOLUNTARY RETIREMENT OF CERTAIN OFFICERS UPON COMPLETION OF 20 YEARS OF "ACTIVE SERVICE" AND THE DEFINITION OF "ACTIVE SERVICE" IN 10 U.S.C. 101, WHICH CONTAIN NO LIMITATION AS TO STATUS SIMILAR TO THAT CONTAINED IN 37 U.S.C. 205. THE PROHIBITION IN 10 U.S.C. 6116, AGAINST CREDITING A NAVAL OFFICER,"IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE," WITH PRIOR SERVICE AS MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY OR AS A CADET AT THE UNITED STATES MILITARY ACADEMY, WAS NOT DEEMED APPLICABLE BY ANALOGY TO OFFICERS WHO HAD SERVED AS MIDSHIPMEN OTHER THAN AT THE NAVAL ACADEMY. NO QUESTION AROSE IN THAT CASE RELATIVE TO CREDITING ANY TYPE OF MIDSHIPMAN SERVICE FOR LONGEVITY OR BASIC PAY PURPOSES.

AT THE TIME OF COMMANDER PROFILET'S APPOINTMENT AS ENSIGN IN 1950, SERVICE TO BE CREDITED IN DETERMINING THE RATE OF BASIC PAY TO WHICH A MEMBER WAS ENTITLED WAS GOVERNED BY SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, WHICH GENERALLY AUTHORIZED CREDIT FOR ACTIVE SERVICE. HOWEVER, THAT CREDIT WAS LIMITED TO PERIODS OF "ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, AND ENLISTED PERSON" WITH EXCEPTIONS SUCH AS NURSES, ETC., NOT PERTINENT IN THIS CASE. THIS PROVISION OF LAW IS NOW CONTAINED IN 37 U.S.C. 205 WHICH AUTHORIZES CREDIT FOR "ALL PERIODS OF ACTIVE SERVICE AS AN OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, OR ENLISTED MEMBER OF A UNIFORMED SERVICE.' AUTHORITY TO CREDIT CERTAIN SERVICE FOR OTHER PURPOSES, SUCH AS ELIGIBILITY FOR RETIREMENT, DOES NOT ESTABLISH A RIGHT TO COUNT SUCH SERVICE FOR LONGEVITY AND BASIC PAY PURPOSES. SINCE NO CREDIT IS AUTHORIZED FOR MIDSHIPMAN SERVICE AND A MIDSHIPMAN, ALTHOUGH A MEMBER OF THE NAVAL SERVICE, DOES NOT COME WITHIN ANY OF THE CATEGORIES SPECIFICALLY LISTED ABOVE, THERE IS NO AUTHORITY UNDER THOSE PROVISIONS FOR ALLOWING CREDIT FOR SUCH SERVICE IN DETERMINING THE RATE OF BASIC PAY TO WHICH A MEMBER IS ENTITLED. ACCORDINGLY, COMMANDER PROFILET IS NOT ENTITLED TO HAVE HIS PAY ENTRY BASE DATE ADJUSTED TO INCLUDE CREDIT FOR HIS MIDSHIPMAN SERVICE.