B-157325, SEP. 8, 1965, 45 COMP. GEN. 103

B-157325: Sep 8, 1965

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HAS NOT STARTED THE ADVANCED OFFICER TRAINING PRESCRIBED IN 10 U.S.C. 2104 FOR THE LAST 2 YEARS OF THE 4-YEAR ROTC PROGRAM AUTHORIZED IS CREDITABLE TO AN ENLISTED MEMBER FOR BASIC PAY PURPOSES. MILITARY PERSONNEL - RETIREMENT - ELIGIBILITY DETERMINATION - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS A MEMBER OF THE UNIFORMED SERVICES WHO CONCURRENTLY IS A MEMBER OF THE PROGRAM AUTHORIZED BY THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964. WHO HAS NOT STARTED THE ADVANCED TRAINING PROVIDED IN 10 U.S.C. 2104 MAY HAVE HIS ENLISTED RESERVE SERVICE CONSIDERED SATISFACTORY SERVICE UNDER 10 S.C. CREDIT FOR ENLISTED RESERVE SERVICE PERFORMED PRIOR TO STARTING ADVANCED OFFICER TRAINING PURSUANT TO SECTION 2104 IS PERMITTED FOR THE PURPOSES OF 10 U.S.C.

B-157325, SEP. 8, 1965, 45 COMP. GEN. 103

PAY - SERVICE CREDITS - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS - ENLISTED RESERVE SERVICE CREDIT THE ENLISTED RESERVE SERVICE OF A MEMBER OF THE UNIFORMED SERVICES WHO ALTHOUGH CONCURRENTLY "A MEMBER OF THE PROGRAM" AUTHORIZED BY THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, ENACTED OCTOBER 13, 1964, HAS NOT STARTED THE ADVANCED OFFICER TRAINING PRESCRIBED IN 10 U.S.C. 2104 FOR THE LAST 2 YEARS OF THE 4-YEAR ROTC PROGRAM AUTHORIZED IS CREDITABLE TO AN ENLISTED MEMBER FOR BASIC PAY PURPOSES, 10 U.S.C. 2106 (C) AND 2107 (G) AND 37 U.S.C. 205 (E), ADDED BY THE 1964 ACT, NOT PROHIBITING ENLISTED MEMBERS FROM COUNTING CONCURRENT ENLISTED SERVICE WHILE A MEMBER OF THE ROTC PROGRAM; HOWEVER, AN OFFICER MAY NOT BE CREDITED WITH ENLISTED SERVICE PERFORMED ON AND AFTER OCTOBER 13, 1964, EITHER BEFORE OR AFTER STARTING ADVANCED TRAINING, 10 U.S.C. 2106 (C) PROHIBITING CREDIT FOR THE PERIOD OF ADVANCED TRAINING "FOR ANY PURPOSE," AND 37 U.S.C. 205 (E) PROHIBITING CREDIT IN COMPUTING BASIC PAY FOR ANY PERIOD OF SERVICE PERFORMED CONCURRENTLY AS A MEMBER OF THE UNIFORMED SERVICES AND AS A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS. MILITARY PERSONNEL - RETIREMENT - ELIGIBILITY DETERMINATION - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS A MEMBER OF THE UNIFORMED SERVICES WHO CONCURRENTLY IS A MEMBER OF THE PROGRAM AUTHORIZED BY THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, AND AN ENLISTED MEMBER OF A RESERVE COMPONENT, BUT WHO HAS NOT STARTED THE ADVANCED TRAINING PROVIDED IN 10 U.S.C. 2104 MAY HAVE HIS ENLISTED RESERVE SERVICE CONSIDERED SATISFACTORY SERVICE UNDER 10 S.C., CHAPTER 67, FOR RETIREMENT ELIGIBILITY AND RETIREMENT PAY PURPOSES, THE PROHIBITION IN 10 U.S.C. 2106 (C) ONLY DENYING CREDIT FOR ENLISTED SERVICE TO AN OFFICER IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE FOR THE PERIOD COVERED BY HIS ADVANCED TRAINING; THEREFORE, CREDIT FOR ENLISTED RESERVE SERVICE PERFORMED PRIOR TO STARTING ADVANCED OFFICER TRAINING PURSUANT TO SECTION 2104 IS PERMITTED FOR THE PURPOSES OF 10 U.S.C., CHAPTER 67, RETIRED PAY FOR NONREGULAR SERVICE. MILITARY PERSONNEL - RETIREMENT - ELIGIBILITY DETERMINATION - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS ABSENT LEGISLATIVE INTENT TO APPLY TO ATTENDANCE AT AUTHORIZED DRILLS THE RESTRICTIVE PROVISIONS OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, DENYING IN THE COMPUTATION OF LENGTH OF SERVICE, CREDIT FOR INACTIVE RESERVE SERVICE WHILE CONTEMPORANEOUSLY RECEIVING ROTC ADVANCED TRAINING, A MEMBER APPOINTED AN OFFICER UNDER 10 U.S.C. 2106 (A) MAY BE CREDITED WITH THE RETIREMENT POINTS EARNED BY ATTENDING DRILLS OR PERIODS OF EQUIVALENT INSTRUCTION, BY PERFORMING ACTIVE DUTY FOR TRAINING, OR BY RESERVE MEMBERSHIP FOR A PERIOD PRIOR TO, BUT NOT AFTER COMMENCEMENT OF ADVANCED TRAINING UNDER 10 U.S.C. 2104, AND THE DRILLS HAVING BEEN AUTHORIZED, THE MEMBER IS ENTITLED TO PAYMENT FOR THE DRILLS ATTENDED. PAY - RETAINER - RESERVE OFFICERS' TRAINING CORPS - EFFECTIVE DATE A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS SELECTED FOR ADVANCED TRAINING UNDER 10 U.S.C. 2104, WHOSE ENLISTED SERVICE DURING ADVANCED TRAINING IS NOT CREDITABLE, IS ENTITLED UNDER 37 U.S.C. 209 (A) TO RETAINER PAY AT PRESCRIBED RATES "BEGINNING ON THE DAY HE STARTS ADVANCED TRAINING," AND CREDIT TO THE MEMBER FOR ENLISTED SERVICE STOPS ON THE DAY PRECEDING THE FIRST DAY HE ACCRUES RETAINER PAY UNDER THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964. MILITARY PERSONNEL - RETIREMENT - ELIGIBILITY DETERMINATION - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS CREDIT FOR RETIREMENT ELIGIBILITY PURPOSES UNDER 10 U.S.C. 6323 OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING BY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES, WHO CONCURRENTLY A "MEMBER OF THE PROGRAM" PROVIDED BY THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 HAS NOT STARTED THE ADVANCED TRAINING PRESCRIBED IN 10 U.S.C. 2104, IS PERMITTED UNDER THE PROVISIONS OF THE 1964 ACT. MILITARY PERSONNEL - RETIREMENT - ELIGIBILITY DETERMINATION - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS THE FIELD TRAINING AND PRACTICE CRUISES PERFORMED PURSUANT TO 10 U.S.C. 2109 BY REGULAR NAVAL RESERVE OFFICERS' TRAINING CORPS 4-YEAR COLLEGE STUDENTS APPOINTED CADETS AND MIDSHIPMEN AND CONCURRENTLY ENLISTED IN A RESERVE COMPONENT OF THE ARMED SERVICES MAY NOT BE CREDITED AS ACTIVE SERVICE FOR RETIREMENT ELIGIBILITY PURPOSES WITHIN THE MEANING OF 10 U.S.C. 6323, IRRESPECTIVE OF WHETHER THE CONCURRENT ENLISTED STATUS OF THE STUDENT BEGAN AFTER THE ENACTMENT OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, OCTOBER 13, 1964, OR SUBSEQUENT TO THE ACT OF JUNE 25, 1956, ENACTED TO PREVENT AVOIDANCE OF COMPULSORY MILITARY SERVICE, AND OCTOBER 12, 1964, IN VIEW OF THE DISQUALIFYING PROVISION OF 10 U.S.C. 2107 (G) THAT AN OFFICER MAY NOT BE CREDITED WITH SERVICES EITHER AS A CADET OR MIDSHIPMAN, OR FOR CONCURRENT ENLISTED SERVICE IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE. MILITARY PERSONNEL - RETIREMENT - ELIGIBILITY DETERMINATION - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS ALTHOUGH MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS--- CONTRACT NAVAL RESERVE OFFICERS' TRAINING CORPS STUDENTS APPOINTED AS CADETS AND MIDSHIPMEN AND ELIGIBLE DURING THE LAST 2 YEARS OF COLLEGE TO THE "ADVANCED TRAINING" PROVIDED IN 10 U.S.C. 2104 WHILE CONCURRENTLY IN AN ENLISTED STATUS--- ARE ENTITLED TO PAY AT THE RATES PRESCRIBED FOR CADETS AND MIDSHIPMEN AT THE SERVICE ACADEMIES FOR ATTENDING FIELD TRAINING OR PRACTICE CRUISES, SUCH SERVICE IS NOT CREDITABLE FOR RETIREMENT ELIGIBILITY UNDER 10 U.S.C. 6323 AFTER OCTOBER 13, 1964, THE DATE OF ENACTMENT OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, 10 U.S.C. 2106 (C) PROHIBITING CREDITING AN OFFICER WITH ENLISTED SERVICE FOR THE PERIOD OF ADVANCED TRAINING DURING HIS THIRD AND FOURTH YEARS AT COLLEGE IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE, AND ABSENT AUTHORITY, PARTICIPATION IN TRAINING OR CRUISES DURING THE FIRST 2 YEARS OF COLLEGE IS NOT CREDITABLE SERVICE WITHIN THE MEANING OF 10 U.S.C. 6323 FOR RETIREMENT ELIGIBILITY. PAY - SERVICE CREDITS - CONCURRENT ENLISTED RESERVE AND RESERVE OFFICERS' TRAINING CORPS STATUS - ENLISTED RESERVE SERVICE CREDIT THE SERVICE CREDITABLE FOR BASIC PAY PURPOSES TO AN ENLISTED RESERVIST, CONCURRENTLY A CONTRACT STUDENT IN THE THIRD OR FOURTH YEAR OF A 4-YEAR NAVAL RESERVE OFFICERS' TRAINING CORPS PROGRAM ON THE DATE OF ENACTMENT OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, OCTOBER 13, 1964, HAVING BEEN AUTHORIZED TO BE COUNTED ON OCTOBER 12, 1964, CONTINUES TO BE AUTHORIZED AFTER THAT DATE, THE RESTRICTION IN 37 U.S.C. 205 (E), ADDED BY THE 1964 ACT, BARRING CREDIT FOR "ANY PERIOD OF SERVICE AFTER THE ENACTMENT OF THIS SUBSECTION" THAT AN OFFICER PERFORMED CONCURRENTLY AS A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS, EFFECTIVE OCTOBER 13, 1964, APPLYING ONLY TO SERVICE PERFORMED AFTER OCTOBER 13, 1964.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 8, 1965:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 23, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER CERTAIN SERVICE OF MEMBERS OF THE RESERVE OFFICERS' TRAINING CORPS IS CREDITABLE UNDER THE PROVISIONS OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 FOR PAY AND RETIREMENT PURPOSES UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 359 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PRIOR TO THE ENACTMENT OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1063, 10 U.S.C.PREC. 2031 NOTE, SOME COLLEGES AND OTHER EDUCATIONAL INSTITUTIONS OF HIGHER LEARNING MAINTAINED A 4-YEAR SENIOR ROTC PROGRAM, DIVIDED INTO THE BASIC COURSE FOR THE FIRST 2 YEARS OF COLLEGE AND THE "ADVANCED RAINING" PROGRAM FOR THE LAST 2 YEARS OF COLLEGE. THE 1964 LAW PROVIDES FOR THE CONTINUATION OF THE 4-YEAR SENIOR ROTC PROGRAM AND THE ESTABLISHMENT OF AN OPTIONAL 2-YEAR SENIOR ROTC PROGRAM, WHICH WOULD PROVIDE 2 YEARS' ROTC ADVANCED TRAINING. TO BE ELIGIBLE FOR SUCH ADVANCED TRAINING IN EITHER A 2-YEAR OR 4-YEAR SENIOR ROTC PROGRAM, THE STUDENT MUST HAVE COMPLETED THE FIRST 2 YEARS OF HIS 4-YEAR ROTC COURSE OR HAVE SUCCESSFULLY COMPLETED FIELD TRAINING OR A PRACTICE CRUISE OF AT LEAST 6 WEEKS' DURATION "IN THE SIMULATED GRADE OF PRIVATE (E-1) AT $78 PER MONTH * * * AS A SUBSTITUTE FOR THE FIRST 2 YEARS OF ROTC TRAINING (BASIC COURSE)" OF THE 4-YEAR SENIOR ROTC PROGRAM. (SEE H.REPT. NO. 925, 88TH CONG., 1ST SESS. 22 AND S.REPT. NO. 1514, 88TH CONG., 2D SESS. 2.)

THE 1964 LAW ALSO PROVIDES THAT TO BE ELIGIBLE TO PARTICIPATE IN ADVANCED TRAINING, FOR WHICH PARTICIPATION MONETARY BENEFITS ARE PROVIDED FOR THE STUDENT PARTICIPANTS, THE STUDENT MUST ENLIST IN A RESERVE COMPONENT OF THE APPROPRIATE ARMED FORCE FOR A PERIOD PRESCRIBED BY THE SECRETARY, AGREE THAT HE WILL ACCEPT AN APPOINTMENT IF OFFERED AS A COMMISSIONED OFFICER IN THE APPROPRIATE ARMED FORCE AND SERVE IN THE ARMED FORCES FOR THE PERIOD PRESCRIBED BY THE SECRETARY. THE PURPOSE OF THE COMPULSORY ENLISTMENT REQUIREMENT IS TO SECURE INVOLUNTARY ACTIVE MILITARY SERVICE AS AN ENLISTED MEMBER IF THE STUDENT FAILS TO COMPLETE THE COURSE OF INSTRUCTION OR REFUSES TO ACCEPT APPOINTMENT AS A COMMISSIONED OFFICER WITH ITS OBLIGATED SERVICE REQUIREMENT.

THE 1964 ACT ALSO CONTAINS PROVISIONS DENYING CREDIT FOR SUCH INACTIVE ENLISTED SERVICE THAT IS CONTEMPORANEOUS WITH THE ROTC ADVANCED TRAINING. THUS SECTION 2104 (B), WHICH WAS ADDED TO TITLE 10, U.S.C. BY SECTION 201 (1), PUBLIC LAW 88-647, PROVIDES THAT TO BE ELIGIBLE FOR CONTINUATION, OR INITIAL ENROLLMENT, IN THE PROGRAM FOR ADVANCED TRAINING, A PERSON MUST---

(3) ENLIST IN A RESERVE COMPONENT OF AN ARMED FORCE UNDER THE JURISDICTION OF THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FOR THE PERIOD PRESCRIBED BY THE SECRETARY * * *.

SECTION 2106 (C), ALSO ADDED BY SECTION 201 (1), PROVIDES AS FOLLOWS:

(C) IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE, AN OFFICER APPOINTED UNDER THIS SECTION MAY NOT BE CREDITED WITH ENLISTED SERVICE FOR THE PERIOD COVERED BY HIS ADVANCED TRAINING.

SECTION 2107 (G), ALSO ADDED, PROVIDES AS FOLLOWS:

(G) IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE, AN OFFICER APPOINTED UNDER THIS SECTION MAY NOT BE CREDITED WITH SERVICE EITHER AS A CADET OR MIDSHIPMAN OR CONCURRENT ENLISTED SERVICE.

SECTION 202 (1), PUBLIC LAW 88-647, AMENDS 37 U.S.C. 205 BY ADDING THE FOLLOWING NEW SUBSECTION AT THE END THEREOF:

(E) NOTWITHSTANDING SUBSECTION (A), A COMMISSIONED OFFICER MAY NOT COUNT IN COMPUTING HIS BASIC PAY ANY PERIOD OF SERVICE AFTER THE ENACTMENT OF THIS SUBSECTION THAT HE PERFORMED CONCURRENTLY AS A MEMBER OF A UNIFORMED SERVICE AND AS A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS.

THE PURPOSE OF THE ABOVE-QUOTED PROVISIONS OF LAW EXCLUDING LONGEVITY CREDIT FOR ROTC STUDENTS WHO HOLD A RESERVE STATUS IS STATED IN S.REPT. 1514 ON H.R. 9124 AT PAGE 3 AS FOLLOWS:

SOME ROTC STUDENTS NOW HOLD A RESERVE STATUS WHILE UNDERGOING ROTC TRAINING. MANY OF THEM DO NOT ACTUALLY PERFORM ANY RESERVE DUTY, BUT MERELY ARE ASSIGNED TO A CONTROL GROUP. UPON GRADUATION THESE PERSONS HAVE AN UNJUSTIFIABLE PAY ADVANTAGE OVER THEIR CONTEMPORARIES AND OVER GRADUATES OF THE MILITARY ACADEMIES BECAUSE THEY START OFF WITH AS MUCH AS 4 YEARS OF SERVICE FOR PAY PURPOSES WITHOUT ACTUALLY HAVING PARTICIPATED IN THE RESERVE PROGRAM. THE BILL WOULD DENY LONGEVITY CREDIT FOR RESERVE SERVICE WHILE A PERSON IS CONCURRENTLY UNDERGOING ROTC INSTRUCTION.

THE TERM "ADVANCED TRAINING" IS DEFINED IN 10 U.S.C. 2101 (3), ADDED BY SECTION 201 (1) OF THE 1964 ACT, AS MEANING---

* * * THE TRAINING AND INSTRUCTION OFFERED IN THE SENIOR RESERVE OFFICERS' TRAINING CORPS TO STUDENTS IN THE THIRD AND FOURTH YEARS OF A FOUR-YEAR SENIOR RESERVE OFFICERS' TRAINING CORPS COURSE, OR THE EQUIVALENT PERIOD OF TRAINING IN AN APPROVED TWO-YEAR SENIOR RESERVE OFFICERS' TRAINING CORPS COURSE.

THE COMMITTEE ACTION STATES THAT BUPERS NOTICE 1533 DATED NOVEMBER 3, 1964, OUTLINES PROCEDURES FOR ENLISTING CONTRACT NROTC STUDENTS IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 2104 (B), AND THAT IT REQUIRES ALL CONTRACT NROTC STUDENTS IN THEIR THIRD AND FOURTH YEARS OF TRAINING TO BE ENLISTED IN THE U.S. NAVAL OR MARINE CORPS RESERVE IN ORDER TO CONTINUE IN THE PROGRAM AND TO BE ELIGIBLE TO DRAW RETAINER PAY.

IT ALSO POINTS OUT THAT BUPERS INSTRUCTION 1001.31 DATED DECEMBER 4, 1964, PROVIDES THAT NROTC STUDENTS HAVING CONCURRENT ENLISTED NAVAL STATUS SHALL NOT BE REQUIRED TO ATTEND DRILLS OUTSIDE THEIR ASSIGNED NAVAL SCIENCE COURSES. IT PROHIBITS ALL REGULAR STUDENTS, AND ALL CONTRACT STUDENTS DURING THEIR THIRD AND FOURTH YEARS OF NROTC TRAINING, FROM ATTENDING DRILLS WITH NAVAL RESERVE DRILLING UNITS. HOWEVER, IT DOES PERMIT CONTRACT STUDENTS IN THEIR FIRST AND SECOND YEARS OF TRAINING IN THE 4-YEAR NROTC TRAINING PROGRAM WHO ARE CONCURRENTLY ENLISTED NAVAL RESERVISTS TO DRILL OR CONTINUE TO DRILL AT THEIR OWN OPTION.

THE COMMITTEE ACTION STATES FURTHER THAT PRIOR TO THE ENACTMENT OF PUBLIC LAW 88-647, A CONTRACT NROTC STUDENT WAS NOT REQUIRED TO ENLIST IN THE RESERVE, BUT THAT IF HE HELD A CONCURRENT ENLISTED STATUS, SUCH SERVICE WAS CREDITABLE FOR BASIC PAY AND RETIREMENT PURPOSES. UNDER THE PROVISIONS OF THE 1964 ACT, CONTRACT STUDENTS IN THEIR THIRD AND FOURTH YEARS OF NROTC TRAINING ARE REQUIRED TO ENLIST IN THE NAVAL OR MARINE CORPS RESERVE IN ORDER TO PARTICIPATE, OR TO CONTINUE TO PARTICIPATE, IN THE NROTC PROGRAM. CONTRACT STUDENTS IN THEIR FIRST AND SECOND YEARS OF NROTC TRAINING ARE NOT REQUIRED TO ENLIST IN THE NAVY OR MARINE CORPS RESERVE, AND THEY DO NOT QUALIFY FOR THE $40 A MONTH RETAINER PAY AUTHORIZED FOR CONTRACT STUDENTS IN THEIR THIRD AND FOURTH YEARS OF TRAINING. THESE FIRST AND SECOND YEAR CONTRACT STUDENTS, HOWEVER, MAY HOLD CONCURRENT ENLISTED STATUS AND ATTEND DRILLS. IT IS STATED THAT THE QUESTIONS ARISE, THEREFORE, WHETHER THESE CONTRACT STUDENTS IN THEIR FIRST AND SECOND YEARS OF NROTC TRAINING ARE TO BE CONSIDERED MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS WITHIN THE MEANING OF 37 U.S.C. 205 (E) AND WHETHER ANY CONCURRENT ENLISTED SERVICE THEY MAY PERFORM IS CREDITABLE FOR RETIREMENT PURPOSES IF SUCH SERVICE IS OTHERWISE CREDITABLE UNDER THE PARTICULAR RETIREMENT LAW BEING APPLIED.

THE FIRST QUESTION IS AS FOLLOWS:

1. DO THE PROVISIONS OF PUBLIC LAW 88-647 PERMIT, ON AND AFTER ITS EFFECTIVE DATE, CREDITING FOR BASIC PAY PURPOSES AS AN OFFICER OR ENLISTED MEMBER THE ENLISTED RESERVE SERVICE OF A MEMBER WHO IS CONCURRENTLY A "MEMBER OF THE PROGRAM" BUT WHO HAS NOT STARTED HIS ADVANCED TRAINING UNDER 10 U.S.C. 2104?

IT WILL BE NOTED THAT THE PROVISIONS OF 10 U.S.C. 2106 (C) AND 2107 (G), AND 37 U.S.C. 205 (E), AS ADDED BY THE 1964 ACT, DO NOT PURPORT TO PROHIBIT ENLISTED MEMBERS FROM COUNTING CONCURRENT ENLISTED SERVICE WHILE A "MEMBER OF THE PROGRAM," BUT, LIKE THE PROHIBITION THERETOFORE CONTAINED IN 10 U.S.C. 971, 3682, 6116, AND 8682, AND THEIR SOURCE STATUTES, RELATE ONLY TO SERVICE CREDITABLE TO OFFICERS. SEE 29 COMP. GEN. 331 AND 37 COMP. GEN. 465. WHILE SUBSECTION 2106 (C) PROHIBITS THE CREDITING TO OFFICERS OF ENLISTED SERVICE ONLY FOR THE PERIOD COVERED BY ADVANCED TRAINING "FOR ANY PURPOSE," THE NEW SUBSECTION 205 (E) ADDED TO TITLE 37 U.S. CODE, PROHIBITS THE CREDITING TO OFFICERS IN COMPUTING BASIC PAY "ANY PERIOD OF SERVICE * * * PERFORMED CONCURRENTLY AS A MEMBER OF A UNIFORMED SERVICE AND AS A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING RPS.' HENCE, IT APPEARS THAT THE 1964 ACT PLACES NO RESTRICTIONS ON ENLISTED MEMBERS AT ANY TIME CREDITING THE SERVICE CONCERNED, BUT FOR BASIC PAY PURPOSES PROHIBITS THE CREDITING TO OFFICERS OF SUCH SERVICE.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AS TO PERSONS RECEIVING BASIC PAY AS ENLISTED MEMBERS. IN VIEW OF THE PROVISIONS OF 37 U.S.C. 205 (E), AS ADDED BY THE 1964 ACT, AN OFFICER MAY NOT BE CREDITED WITH ENLISTED SERVICE DESCRIBED IN QUESTION 1 THAT WAS PERFORMED ON AND AFTER OCTOBER 13, 1964, EITHER BEFORE STARTING ADVANCED TRAINING OR WHILE PERFORMING ADVANCED TRAINING UNDER 10 U.S.C. 2104 WHILE A "MEMBER OF THE PROGRAM.'

QUESTION 2 IS AS FOLLOWS:

2. DO THE PROVISIONS OF PUBLIC LAW 88-647 PERMIT, ON AND AFTER ITS EFFECTIVE DATE, THE CREDITING AS SATISFACTORY SERVICE UNDER CHAPTER 67, 10 U.S.C. (OTHER CONDITIONS BEING MET) OF THE ENLISTED RESERVE SERVICE OF A MEMBER WHO IS CONCURRENTLY A "MEMBER OF THE PROGRAM" BUT WHO HAS NOT STARTED HIS ADVANCED TRAINING UNDER 10 U.S.C. 2104?

THE ONLY PROVISION IN PUBLIC LAW 88-647 WHICH MENTIONS "ADVANCED TRAINING" AS SUCH IN RELATION TO DENIAL OF CREDIT FOR RETIREMENT ELIGIBILITY AND RETIREMENT PAY PURPOSES AND THE ONLY ONE WHICH APPEARS TO RELATE TO ADVANCED TRAINING AS DEFINED IN THE ACT IS THAT CONTAINED IN 10 U.S.C. 2106 (C) WHICH DENIES CREDIT TO AN OFFICER IN "COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE" FOR ,ENLISTED SERVICE FOR THE PERIOD COVERED BY HIS ADVANCED TRAINING.' THIS QUESTION IS INTERPRETED AS NOT RELATING TO THE PROVISIONS OF 10 U.S.C. 2107. SINCE CREDIT FOR SUCH PURPOSES IS DENIED ONLY "FOR THE PERIOD COVERED BY HIS ADVANCED TRAINING," QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 READS AS FOLLOWS:

3. A. IF THE ANSWER TO QUESTION 2 IS AFFIRMATIVE, SHOULD THE MEMBER, AFTER HE IS APPOINTED AS AN OFFICER PURSUANT TO 10 U.S.C. 2106 (A), BE CREDITED WITH THE RETIREMENT POINTS HE MAY HAVE EARNED BY ATTENDING AUTHORIZED DRILLS OR PERIODS OF EQUIVALENT INSTRUCTION, PERFORMING ACTIVE DUTY FOR TRAINING, OR BY RESERVE MEMBERSHIP?

B. WOULD HE BE ENTITLED TO PAY FOR DRILLS ATTENDED?

QUESTION 3A IS ANSWERED IN THE AFFIRMATIVE AS TO SERVICE PERFORMED PRIOR TO THE COMMENCEMENT OF ADVANCED TRAINING UNDER 10 U.S.C. 2104 AND IN THE NEGATIVE AS TO SERVICE PERFORMED ON OR AFTER COMMENCEMENT OF SUCH ADVANCED TRAINING. THERE IS NOTHING IN THE LANGUAGE OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY TO INDICATE THAT THERE WAS ANY LEGISLATIVE INTENT TO PROHIBIT ATTENDANCE BY ROTC MEMBERS AT AUTHORIZED DRILLS OR THAT PAY SHOULD BE DENIED FOR SUCH ATTENDANCE. IT WAS THE UNFAIR ADVANTAGE OF OFFICER GRADUATES OF THE ROTC PROGRAM COUNTING INACTIVE RESERVE SERVICE OVER OFFICERS APPOINTED FROM THE SERVICE ACADEMIES WHICH PROMPTED THE CONGRESS TO ENACT THE RESTRICTIVE PROVISIONS OF THE 1964 LAW DENYING CREDIT FOR SUCH SERVICE "IN COMPUTING LENGTH OF SERVICE.' NEITHER RESERVE MEMBERSHIP AS SUCH NOR THE PERFORMANCE OF DRILLS IS PROHIBITED BY THE 1964 LAW. SINCE THE QUESTION RELATES TO "AUTHORIZED" DRILLS, IT IS ASSUMED THAT ATTENDANCE AT THE DRILLS IS NOT PROHIBITED BY REGULATION. AS TO SUCH AUTHORIZED DRILLS, QUESTION 3B IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4 READS---

4. A. IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE AFFIRMATIVE, AND THE MEMBER BEGINS HIS ADVANCED TRAINING UNDER 10 U.S.C. 2104, WOULD THE MEMBER'S ENLISTED SERVICE STOP BEING CREDITABLE ON THE DAY PRECEDING THE FIRST DAY HE ACCRUES RETAINER PAY UNDER THE PROVISIONS OF PUBLIC LAW 88-647?

B. SOME OTHER DATE?

SECTION 209 (A) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 202 (2) OF THE 1964 ACT PROVIDES THAT A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS WHO IS SELECTED FOR ADVANCED TRAINING UNDER 10 U.S.C. 2104 IS ENTITLED TO RETAINER PAY AT THE PRESCRIBED RATES "BEGINNING ON THE DAY HE STARTS ADVANCED TRAINING.' ASSUMING THAT QUESTION 4A RELATES ONLY TO THOSE MEMBERS WHOSE ENLISTED SERVICE DURING ADVANCED TRAINING IS NOT CREDITABLE (THAT IS, THAT SUCH QUESTION DOES NOT INVOLVE THE APPLICATION OF THE PROVISIONS OF THE NEW SUBSECTION (E) OF 37 U.S.C. 205), SUCH QUESTION IS ANSWERED IN THE AFFIRMATIVE. NO ANSWER TO QUESTION 4B IS REQUIRED. QUESTION 5 READS---

5. DO THE PROVISIONS OF PUBLIC LAW 88-647 PERMIT CREDITING FOR RETIREMENT ELIGIBILITY PURPOSES UNDER THE PROVISIONS OF 10 U.S.C. 6323 ANY ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PERFORMED BY AN ENLISTED MEMBER WHO IS CONCURRENTLY A "MEMBER OF THE PROGRAM" BUT WHO HAS NOT STARTED HIS ADVANCED TRAINING UNDER 10 U.S.C. 2104?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTIONS 6 AND 7 READ AS FOLLOWS:

6. DO THE PROVISIONS OF PUBLIC LAW 88-647 (10 U.S.C. 2107 (G) ( PERMIT THE CREDITING OF PRACTICE CRUISES UNDER 10 U.S.C. 2109 AS ACTIVE SERVICE WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 6323?

A. FOR REGULAR NROTC STUDENTS (MIDSHIPMAN, USNR) HAVING CONCURRENT ENLISTED STATUS AFTER 13 OCT 1964?

B. FOR REGULAR NROTC STUDENTS (MIDSHIPMAN, USNR) HAVING CONCURRENT ENLISTED SERVICE BETWEEN 26 JUNE 1956 AND 12 OCTOBER 1964?

C. AFTER 13 OCTOBER 1964 FOR CONTRACT NROTC STUDENTS IN THEIR THIRD AND FOURTH YEARS OF TRAINING WHO HAVE CONCURRENT ENLISTED STATUS?

D. AFTER 13 OCTOBER 1964 FOR CONTRACT NROTC STUDENTS IN THEIR FIRST AND SECOND YEARS OF TRAINING WHO HAVE CONCURRENT ENLISTED STATUS?

7. IN THE CASE OF AN ENLISTED RESERVIST WHO WAS CONCURRENTLY A CONTRACT STUDENT IN THE THIRD OF (OR) FOURTH YEAR OF THE FOUR-YEAR NROTC PROGRAM ON THE DATE OF ENACTMENT OF PUBLIC LAW 88-647, WOULD HIS CREDITABLE SERVICE FOR BASIC PAY PURPOSES AS AN OFFICER CONTINUE THROUGH 13 OCTOBER 1964?

FOR THE PURPOSES OF 10 U.S.C. 6323, WHICH AUTHORIZES AN OFFICER OF THE NAVY OR MARINE CORPS TO BE RETIRED AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER,"AN OFFICER'S YEARS OF ACTIVE SERVICE ARE COMPUTED BY ADDING ALL HIS ACTIVE SERVICE IN THE ARMED FORCES.' THE TERM "ACTIVE SERVICE" IS DEFINED IN 10 U.S.C. 101 (24) AS "SERVICE ON ACTIVE DUTY," AND THE TERM "ACTIVE DUTY" IS DEFINED IN 10 U.S.C. 101 (22) AS "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES" AND---

* * * INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.

THE 1964 LAW PROVIDES FOR TWO DIFFERENT TYPES OF PROGRAMS FOR THE SENIOR ROTC TRAINING. THE ,ADVANCED TRAINING" PROGRAM PROVIDED IN 10 U.S.C. 2104 IS GIVEN TO STUDENTS IN PARTICIPATING INSTITUTIONS WHERE THE STUDENTS ARE ENLISTED IN THE APPROPRIATE SERVICE AT THE COMMENCEMENT OF THE ADVANCED TRAINING PROGRAM AND RECEIVE AT LEAST 2 YEARS OF REGULAR ROTC TRAINING AS CIVILIANS DURING THE LAST 2 YEARS OF COLLEGE AND UNDER THE PROVISIONS OF 37 U.S.C. 209 (A) RECEIVE RETAINER PAY OF NOT MORE THAN $50 A MONTH FOR NOT MORE THAN 20 MONTHS. STUDENTS PARTICIPATING IN THIS PROGRAM ARE REFERRED TO AS CONTRACT NROTC STUDENTS IN QUESTIONS 6 AND 7.

THE 1964 LAW ALSO ESTABLISHES A 4-YEAR PROGRAM WITH SCHOLARSHIP ASSISTANCE FOR SPECIALLY SELECTED STUDENTS IN ORDER TO SATISFY SPECIAL LONG-TERM SERVICE REQUIREMENTS FOR CAREER-TYPE OFFICERS. THE SCHOLARSHIP ASSISTANCE CONSISTS OF TWO ELEMENTS: PAYMENT OF TUITION, FEES, BOOKS, AND LABORATORY EXPENSES ESTIMATED AT $800 TO $850 A YEAR PER STUDENT AND PAYMENT OF RETAINER PAY AT $50 A MONTH TO THE STUDENT FOR NOT MORE THAN 4 YEARS. STUDENTS PARTICIPATING IN THIS PROGRAM ARE APPOINTED CADETS OR MIDSHIPMEN AND MUST ENLIST IN THE RESERVE COMPONENT OF THE ARMED FORCE IN WHICH APPOINTED CADETS OR MIDSHIPMEN AND MUST AGREE TO ACCEPT APPOINTMENTS AS OFFICERS AND SERVE ON ACTIVE DUTY FOR 4 OR MORE YEARS. SEE 10 U.S.C. 2107 AS ADDED BY THE 1964 LAW, SUBSECTION (G) OF WHICH (QUOTED ABOVE) PROHIBITS CREDITING OF SERVICE AS A CADET OR MIDSHIPMAN OR CONCURRENT ENLISTED SERVICE IN COMPUTING LENGTH OF SERVICE AS AN OFFICER FOR ANY PURPOSE. STUDENTS PARTICIPATING IN THIS PROGRAM ARE REFERRED TO AS "REGULAR NROTC STUDENTS" IN QUESTION 6.

PRIOR TO THE ENACTMENT OF THE 1964 LAW ONLY THE NAVY MAINTAINED THIS PARTICULAR TYPE OF PROGRAM, WHICH WAS FIRST ESTABLISHED BY THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1057, 10 U.S.C. 6903 (1958 ED.). SEE 42 COMP. GEN. 669, 671. SOME ENLISTED PERSONNEL OF THE SEVERAL SERVICES WHO WERE APPOINTED CADETS OR MIDSHIPMEN, FOLLOWING DISCHARGE FROM ENLISTED STATUS TO ACCEPT SUCH APPOINTMENTS, RESIGNED SHORTLY THEREAFTER AND THEREBY AVOIDED COMPULSORY MILITARY SERVICE. TO END THIS ABUSE, THE ACT OF JUNE 25, 1956, CH. 439, 70 STAT. 333, PROVIDED THAT ENLISTMENT CONTRACTS OR PERIODS OF OBLIGATED SERVICE OF MEMBERS OF THE ARMED FORCES SHOULD NOT TERMINATE BY REASON OF APPOINTMENT AS CADETS OR MIDSHIPMEN AND THAT PERIODS OF TIME SERVED UNDER AN ENLISTMENT CONTRACT OR PERIOD OF OBLIGATED SERVICE WHILE ALSO SERVING AS A CADET OR MIDSHIPMAN UNDER AN APPOINTMENT MADE AFTER THE DATE OF ENACTMENT OF THAT ACT SHOULD NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF AN ARMED FORCE. SEE SECTION 4 OF THAT ACT NOW CODIFIED IN 10 U.S.C. 971.

SECTION 2109 PROVIDES THAT THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY PRESCRIBE AND CONDUCT FIELD TRAINING AND PRACTICE CRUISES WHICH MEMBERS MUST COMPLETE BEFORE THEY ARE COMMISSIONED AND 37 U.S.C. 209, AS AMENDED, PROVIDES THAT A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS IS ENTITLED, WHILE ATTENDING FIELD TRAINING OR PRACTICE CRUISES UNDER 10 U.S.C. 2109, TO PAY AT THE RATE PRESCRIBED FOR CADETS AND MIDSHIPMEN OF THE UNITED STATES MILITARY, NAVAL, AND AIR FORCE ACADEMIES. THERE IS NOTHING IN THE 1964 ACT, HOWEVER, WHICH PROVIDES THAT SUCH FIELD TRAINING OR PRACTICE CRUISES UNDER 10 U.S.C. 2109 ARE ACTIVE DUTY OR ACTIVE SERVICE FOR ANY PURPOSE ANY MORE THAN SUCH DUTY UNDER 10 U.S.C. 2104 IN SIMULATED ENLISTED STATUS UNDER 37 U.S.C. 209, AS AMENDED, IS ACTIVE DUTY, NOR IS THERE ANY OTHER PROVISION OF LAW EXEMPTING SUCH FIELD TRAINING OR PRACTICE CRUISES FROM THE DISQUALIFYING PROVISIONS OF 10 U.S.C. 2107 (G), QUOTED ABOVE. QUESTION 6A IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 25, 1956, QUESTION 6B MUST BE ANSWERED IN THE NEGATIVE.

IN VIEW OF THE PROVISIONS OF 10 U.S.C. 2106 (C), QUESTION 6C MUST BE ANSWERED IN THE NEGATIVE. SINCE THERE IS NO PROVISION OF LAW MAKING SUCH FIELD TRAINING OR PRACTICE CRUISES ACTIVE DUTY FOR SUCH CONTRACT NROTC STUDENTS, QUESTION 6D IS ALSO ANSWERED IN THE NEGATIVE.

THE PROVISIONS OF 37 U.S.C. 205 (E) AS ADDED BY THE 1964 ACT BAR CREDIT FOR "ANY PERIOD OF SERVICE AFTER THE ENACTMENT OF THIS SUBSECTION" THAT THE OFFICER PERFORMED CONCURRENTLY AS A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS AND AS A MEMBER OF A UNIFORMED SERVICE. IT IS OUR VIEW THAT THE PHRASE "AFTER THE ENACTMENT OF THIS SUBSECTION" MODIFIES THE TERM "PERIOD OF SERVICE" WHICH IMMEDIATELY PRECEDES IT RATHER THAN THE REMOTE CLAUSE "A COMMISSIONED OFFICER MAY NOT COUNT.' THAT CONSTRUCTION IS CONSISTENT WITH THE PLAIN INTENT OF SUBSECTIONS 2106 (C) AND 2107 (G), WHICH PLACE RESTRICTIONS ONLY ON OFFICERS APPOINTED UNDER THOSE SECTIONS. ACCORDINGLY, QUESTION 7 IS ANSWERED BY SAYING THAT SERVICE WHICH WAS AUTHORIZED TO BE COUNTED FOR BASIC PAY PURPOSES ON OCTOBER 12, 1964, WOULD CONTINUE TO BE SO AUTHORIZED AFTER THAT DATE, IT BEING OUR VIEW THAT THE PROVISIONS OF 37 U.S.C. 205 (E) ARE APPLICABLE ONLY TO SERVICE PERFORMED AFTER ENACTMENT THEREOF. SINCE THAT SUBSECTION (E) WAS ENACTED ON OCTOBER 13, 1964, THE RESTRICTION BECAME EFFECTIVE ON THAT DAY.