B-158027, DEC. 20, 1965, 45 COMP. GEN. 363

B-158027, DEC. 20, 1965, 45 COMP. GEN. 363

PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - RETIRED PAY ACTIVE SERVICE AS A MIDSHIPMAN IN THE REGULAR NAVY PERFORMED UNDER THE AUTHORITY OF SECTION 3 OF THE ACT OF AUGUST 13, 1946, BY AN OFFICER RETIRED UNDER 10 U.S.C. 6323, PROVIDING FOR THE COMPUTATION OF RETIRED PAY AT 2 1/2 PERCENT OF THE BASIC PAY OF THE GRADE IN WHICH RETIRED, MULTIPLIED BY THE YEARS OF SERVICE PRESCRIBED BY SECTION 1405, MAY BE CREDITED TO ESTABLISH THE PERCENTAGE MULTIPLE FOR COMPUTING THE OFFICER'S RETIRED PAY, SECTION 1405 PRESCRIBING BUT NOT DEFINING "YEARS OF SERVICE," THE DEFINITIONS IN 10 U.S.C. 101 (22) AND (24) ARE FOR APPLICATION, AND THE PARAGRAPHS CONTAINING NO RESTRICTION AS TO STATUS IN WHICH ACTIVE SERVICE MUST HAVE BEEN PERFORMED IN ORDER TO BE CREDITABLE, THE ACTIVE SERVICE OF THE OFFICER AS A MIDSHIPMAN IS CREDITABLE UNDER SECTION 1405 AND SHOULD BE INCLUDED IN DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, DECEMBER 20, 1965:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1965, XO:MTP:WR 7220/496 998, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NUMBER DO-N-882, REQUESTING DECISION WHETHER COMMANDER PETER A. WILLIAMS, USN, RETIRED, IS ENTITLED TO BE CREDITED WITH HIS ACTIVE SERVICE AS A MIDSHIPMAN, REGULAR NAVY, PERFORMED UNDER AUTHORITY OF SECTION 3 OF THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1058, 34 U.S.C. 1020B (1952 ED.), FOR THE PURPOSE OF COMPUTING HIS ACTIVE SERVICE UNDER 10 U.S.C. 1405.

YOU STATE THAT COMMANDER WILLIAMS ENLISTED IN THE UNITED STATES NAVAL RESERVE ON JANUARY 6, 1944, AND SERVED THEREIN UNTIL DECEMBER 18, 1946; THAT HE PERFORMED ACTIVE SERVICE AS A MIDSHIPMAN IN THE REGULAR NAVY FROM DECEMBER 19, 1946 THROUGH MARCH 28, 1948; AND THAT HE SERVED AS AN OFFICER IN THE REGULAR NAVY FROM MARCH 29, 1948 THROUGH AUGUST 31, 1965. SEPTEMBER 1, 1965, HE WAS TRANSFERRED TO THE RETIRED LIST PURSUANT TO 10 U.S.C. 6323.

SINCE WE HAVE HELD THAT ACTIVE SERVICE PERFORMED BY MIDSHIPMEN OF THE "NON-NAVAL ACADEMY" CATEGORY IS CREDITABLE FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 6323 (42 COMP. GEN. 669) AND THAT SUCH SERVICE IS NOT CREDITABLE FOR THE PURPOSE OF DETERMINING ACTIVE DUTY BASIC PAY RATES (43 COMP. GEN. 577), YOU RAISE A QUESTION AS TO THE CREDITABILITY OF SUCH SERVICE FOR THE PURPOSE OF ESTABLISHING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTATION OF RETIRED PAY.

PARAGRAPH (E) OF SECTION 6323, TITLE 10, U.S. CODE, IS AS FOLLOWS:

UNLESS OTHERWISE ENTITLED TO HIGHER PAY, AN OFFICER RETIRED UNDER THIS SECTION IS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF THE BASIC PAY OF 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, BUT THE RETIRED PAY MAY NOT BE MORE THAN 75 PERCENT OF THE BASIC PAY UPON WHICH THE COMPUTATION OF RETIRED PAY IS BASED.

SECTION 1405 PROVIDES THAT FOR THE PURPOSE OF SECTION 6323 (E) THE YEARS OF SERVICE ARE COMPUTED BY ADDING "HIS YEARS OF ACTIVE SERVICE"AND CERTAIN OTHER TYPES OF SERVICE THEREIN SPECIFIED. SINCE SECTION 1405 CONTAINS NO DEFINITION OF "ACTIVE SERVICE" WITHIN THE MEANING OF THAT SECTION, THE DEFINITIONS PROVIDED IN SECTION 101 FOR APPLICATION GENERALLY IN TITLE 10 GOVERN. PARAGRAPHS (22) AND (24) OF SECTION 101 ARE AS FOLLOWS:

(22) "ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT 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.

(24) "ACTIVE SERVICE" MEANS SERVICE ON ACTIVE DUTY.

IT WILL BE NOTED THAT THE DEFINITIONS QUOTED ABOVE CONTAIN NO RESTRICTION AS TO THE STATUS IN WHICH ACTIVE SERVICE MUST HAVE BEEN PERFORMED IN ORDER TO BE CREDITABLE THEREUNDER, SUCH AS THAT CONTAINED IN 37 U.S.C. 205, RELATIVE TO CREDITING OF SERVICE FOR BASIC PAY PURPOSES, UPON WHICH 43 COMP. GEN. 577 WAS BASED.

IT IS CONCLUDED THAT THE ACTIVE SERVICE PERFORMED BY COMMANDER WILLIAMS AS A MIDSHIPMAN PURSUANT TO APPOINTMENT UNDER SECTION 3 OF THE ACT OF AUGUST 13, 1946, IS CREDITABLE AS "ACTIVE SERVICE" UNDER 10 U.S.C. 1405 AND, THEREFORE, SHOULD BE INCLUDED IN THE SERVICE CREDITED FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING HIS RETIRED PAY UNDER 10 U.S.C. 6323.