B-166166, MARCH 21, 1969, 48 COMP. GEN. 632

B-166166: Mar 21, 1969

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INACTIVE SERVICE CREDIT THE COUNTING OF INACTIVE SERVICE IN DETERMINING THE RETIRED PAY PERCENTAGE MULTIPLE FOR PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS IS NOT AUTHORIZED PRIOR TO JUNE 1958 BY VIRTUE OF THE ENACTMENT OF 10 U.S.C. 1405. 1969: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10. IT IS STATED THAT THE USE OF SUCH INACTIVE SERVICE IS NOT INCLUDED IN THE YEARS OF SERVICE AUTHORIZED TO BE CREDITED FOR COMPUTING RETIRED PAY UNDER SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT AND THAT. THAT THE AMERICAN LAW DIVISION CONCLUDED THAT SECTION 1405 OF TITLE 10 IS APPLICABLE TO PUBLIC HEALTH SERVICE OFFICERS. THAT NEW LEGISLATION IS THEREFORE UNNECESSARY. WAS DESIGNED TO ALLOW FULL TIME FOR INACTIVE SERVICE PERFORMED PRIOR TO JUNE 1958 IN DETERMINING THE MULTIPLIER FACTOR IN COMPUTING RETIRED PAY.

B-166166, MARCH 21, 1969, 48 COMP. GEN. 632

PUBLIC HEALTH SERVICE--COMMISSIONED PERSONNEL--RETIRED PAY--INACTIVE SERVICE CREDIT THE COUNTING OF INACTIVE SERVICE IN DETERMINING THE RETIRED PAY PERCENTAGE MULTIPLE FOR PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS IS NOT AUTHORIZED PRIOR TO JUNE 1958 BY VIRTUE OF THE ENACTMENT OF 10 U.S.C. 1405, WHICH IN PROHIBITING CREDIT FOR INACTIVE SERVICE PERFORMED AFTER MAY 1958 IN COMPUTING THE RETIRED PAY PERCENTAGE MULTIPLE OF ARMY, NAVY, MARINE CORPS, AIR FORCE, COAST GUARD, AND COAST AND GEODETIC SURVEY OFFICERS, SAVED TO THOSE MEMBERS ONLY THE INACTIVE YEARS OF SERVICE ACCUMULATED BEFORE JUNE 1958. THE PUBLIC HEALTH SERVICE ACT AUTHORIZING CREDIT ONLY FOR ACTIVE SERVICE IN THE COMPUTATION OF THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE SERVICE, 10 U.S.C. 1405, HAS NO APPLICATION TO THEM, AND TO CREDIT THE OFFICERS WITH INACTIVE SERVICE PERFORMED PRIOR TO JUNE 1, 1958, THEREFORE WOULD REQUIRE ADDITIONAL LEGISLATION.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, MARCH 21, 1969:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10, 1969, REQUESTING DECISION AS TO THE SERVICE WHICH MAY BE CREDITED TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE IN THE COMPUTATION OF THEIR RETIRED PAY.

YOU SAY THAT SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, 42 U.S.C. 212, PROVIDES SEVERAL FORMULAE FOR COMPUTING RETIRED PAY OF PUBLIC HEALTH SERVICE OFFICERS UNDER VARYING CIRCUMSTANCES; THAT SUBSECTION (A) (4) OF SECTION 220 (221) OF THAT ACT, AS AMENDED, 42 U.S.C. 213A (A) (4), ASSIMILATES COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE TO COMMISSIONED OFFICERS OF THE ARMY FOR THE PURPOSES OF THE BENEFITS PROVIDED UNDER CHAPTER 71 OF TITLE 10, U.S. CODE, COMPUTATION OF RETIRED PAY; AND THAT SECTION 1405, INCLUDED IN CHAPTER 71, "ESTABLISHES A FORMULA FOR COMPUTATION OF RETIRED PAY" WHICH INCLUDES THE USE OF YEARS OF SERVICE (INCLUDING INACTIVE SERVICE) FOR BASIC PAY PURPOSES TO THE CREDIT OF AN OFFICER ON MAY 31, 1958. IT IS STATED THAT THE USE OF SUCH INACTIVE SERVICE IS NOT INCLUDED IN THE YEARS OF SERVICE AUTHORIZED TO BE CREDITED FOR COMPUTING RETIRED PAY UNDER SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT AND THAT, FOR REASONS NOT CLEARLY ASCERTAINABLE, SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT HAS BEEN USED EXCLUSIVELY TO COMPUTE THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE.

YOU FURTHER STATE THAT AN AGGRIEVED OFFICER REQUESTED REVIEW BY HIS CONGRESSMAN OF HIS ELIGIBILITY TO USE HIS BASIC PAY CREDITS (INACTIVE SERVICE) IN THE MULTIPLIER FACTOR IN COMPUTING HIS RETIRED PAY WHICH RESULTED IN BILLS BEING INTRODUCED IN PRIOR CONGRESSES TO AUTHORIZE CREDIT OF SUCH INACTIVE SERVICE IN THE COMPUTATION OF THE RETIRED PAY OF PUBLIC HEALTH SERVICE OFFICERS.

YOUR LETTER INDICATES THAT, PRIOR TO THE REINTRODUCTION OF SUCH PROPOSED LEGISLATION IN THE 91ST CONGRESS, CONGRESSMAN HENRY P. SMITH III REQUESTED THE AMERICAN LAW DIVISION, LEGISLATIVE REFERENCE SERVICE, LIBRARY OF CONGRESS, TO REVIEW THE NEED FOR SUCH LEGISLATION; THAT THE AMERICAN LAW DIVISION CONCLUDED THAT SECTION 1405 OF TITLE 10 IS APPLICABLE TO PUBLIC HEALTH SERVICE OFFICERS; THAT NEW LEGISLATION IS THEREFORE UNNECESSARY; AND THAT THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ALSO HAS REACHED THE SAME CONCLUSION. THE BILL INTRODUCED IN THE 90TH CONGRESS, H.R. 912, WAS DESIGNED TO ALLOW FULL TIME FOR INACTIVE SERVICE PERFORMED PRIOR TO JUNE 1958 IN DETERMINING THE MULTIPLIER FACTOR IN COMPUTING RETIRED PAY.

SECTION 211 (A) (4) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, PROVIDES THAT THE RETIRED PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE SHOULD BE COMPUTED ON THE BASIS OF 2 1/2 PERCENT OF THE BASIC PAY OF THE OFFICER'S GRADE MULTIPLIED BY HIS YEARS OF ACTIVE SERVICE PLUS, IN THE CASE OF MEDICAL AND DENTAL OFFICERS, CERTAIN CONSTRUCTIVE SERVICE. SECTION 221 (A) (4) OF THAT ACT, AS ADDED BY SECTION 4 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 619, PROVIDES THAT COMMISSIONED OFFICERS OF THE SERVICE ARE ENTITLED TO ALL THE RIGHTS AND BENEFITS NOW OR HEREAFTER PROVIDED FOR COMMISSIONED OFFICERS OF THE ARMY UNDER CHAPTER 71 OF TITLE 10, U.S. CODE, COMPUTATION OF RETIRED PAY, EXCEPT FORMULA 3 OF SECTION 1401. WHEN THAT ACT WAS ENACTED CHAPTER 71 OF TITLE 10, U.S. CODE, DID NOT CONTAIN A SECTION 1405.

SECTION 1405 OF TITLE 10, U.S. CODE, WAS MADE A PART OF CHAPTER 71 BY THE ACT OF MAY 20, 1958, AND INSOFAR AS THAT SECTION RELATES TO COMMISSIONED OFFICERS OF THE ARMY ITS EFFECT IS TO AUTHORIZE THE INCLUSION IN THE MULTIPLIER FACTOR, IN COMPUTING THE RETIRED PAY OF SUCH OFFICERS, OF THEIR YEARS OF INACTIVE SERVICE PRIOR TO JUNE 1, 1958, UNDER FORMULA 4 OF SECTION 1401, SECTION 3888 (1), SECTION 3927 (B) (1), AND FORMULA B OF SECTION 3991. THOSE SECTIONS REFER TO COMPUTATION OF RETIRED PAY OF (1) WARRANT OFFICERS (FORMULA 4 OF SECTION 1401); (2) CERTAIN OFFICERS OF THE ARMY MANDATORILY RETIRED FOR AGE (SECTION 3888 (1)); (3) CERTAIN OFFICERS INVOLUNTARILY RETIRED BECAUSE NOT RECOMMENDED FOR PROMOTION, EXCESSIVE NUMBER IN GRADE, ETC. (SECTION 3927 (B) (1)); AND (4) COMMISSIONED OFFICERS OF THE ARMY VOLUNTARILY RETIRED FOR MORE THAN 20 YEARS OF SERVICE (FORMULA B OF SECTION 3991).

IT SHOULD BE NOTED THAT FORMULA 4 OF SECTION 1401, THE ONLY SECTION MENTIONED IN SECTION 1405 THAT IS A PART OF CHAPTER 71, DOES NOT APPLY TO COMMISSIONED OFFICERS OF THE ARMY (THE SPECIFIED SECTIONS OF TITLE 10, U.S. CODE, TO WHICH THAT FORMULA APPLIES RELATE TO WARRANT OFFICERS) AND HENCE THAT FORMULA DOES NOT APPEAR TO BE FOR CONSIDERATION HERE.

PRIOR TO THE ENACTMENT OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 359, REGULAR COMMISSIONED OFFICERS OF THE UNIFORMED SERVICES APPOINTED ON AND AFTER JUNE 1, 1922, GENERALLY COULD COUNT ONLY ACTIVE COMMISSIONED SERVICE IN COMPUTING THEIR ACTIVE DUTY PAY. SEE SECTION 1 OF THE UNIFORMED SERVICES PAY ACT OF JUNE 10, 1922, CH. 212,42 STAT. 627, 37 U.S.C. 4 (1940 ED.). THUS, COMMISSIONED OFFICERS COULD NOT EVEN COUNT ACTIVE SERVICE AS ENLISTED MEN FOR LONGEVITY PAY PURPOSES. 5 COMP. GEN. 1035.

AS LONG AS THOSE PROVISIONS REMAINED IN EFFECT, RETIREMENT STATUTES THAT PROVIDED THAT THE PERCENTAGE MULTIPLE IN THE COMPUTATION OF THE RETIRED PAY OF COMMISSIONED OFFICERS SHOULD BE BASED ON THE NUMBER OF YEARS OF SERVICE TO WHICH THEY WERE ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST PRECLUDED THE COUNTING OF INACTIVE COMMISSIONED SERVICE OR EVEN ACTIVE ENLISTED SERVICE IN DETERMINING THEIR RETIRED PAY PERCENTAGE MULTIPLE. SEE, FOR EXAMPLE, SECTION 5 OF THE ACT OF JULY 31, 1935,CH. 422, 49 STAT. 507, AS AMENDED, 10 U.S.C. 971B (1940 ED.); AND SECTION 12 OF THE ACT OF JUNE 23, 1938, CH. 598, 52 STAT. 949, 34 U.S.C. 404 (B) (1940 ED.).

DURING WORLD WAR II CERTAIN CHANGES WERE MADE RELATING TO THE COMPUTATION OF ACTIVE DUTY PAY AND, POSSIBLY WITHOUT THERE BEING A GENERAL AWARENESS OF THE FULL EFFECT THEREOF, SUCH CHANGES CONCERNING ACTIVE DUTY PAY INDIRECTLY PERMITTED MUCH MORE SERVICE TO BE USED IN THE COMPUTATION OF RETIRED PAY. HOWEVER, IN THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 26, AND THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1081, 10 U.S.C. 6394, AMENDING PRIOR LAWS, THE FORMULA FOR COMPUTING THE RETIRED PAY MULTIPLIER FACTOR ON THE BASIS OF SERVICE CREDITABLE FOR LONGEVITY PAY PURPOSES WAS RETAINED WITH RESPECT TO OFFICERS OF THE ARMY, NAVY, MARINE CORPS, AIR FORCE AND COAST GUARD.

UNDER THE DEPARTMENT OF DEFENSE PROPOSALS MADE PURSUANT TO THE RECOMMENDATIONS OF THE DEFENSE ADVISORY COMMITTEE ON PROFESSIONAL AND TECHNICAL COMPENSATION (CORDINER COMMITTEE), THE COMPENSATION SYSTEM OF THE UNIFORMED SERVICES WOULD HAVE PRACTICALLY ELIMINATED THE LONGEVITY (LENGTH OF SERVICE) CONCEPT IN MILITARY COMPENSATION AND REPLACED IT WITH A PAY SYSTEM BASED ON YEARS OF SERVICE IN GRADE, RATHER THAN CUMULATIVE YEARS OF SERVICE (LONGEVITY CONCEPT).

IN A BILL INTRODUCED IN THE SENATE, S. 2014, 85TH CONGRESS, 1ST SESSION, TO CARRY INTO EFFECT THOSE RECOMMENDATIONS, SECTION 202 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 205, WHICH SET FORTH THE SERVICE CREDITABLE FOR LONGEVITY PAY PURPOSES, WOULD HAVE BEEN ELIMINATED, MAKING IT NECESSARY TO PROVIDE ELSEWHERE IN THE STATUTORY LAW THE SERVICE CREDITABLE FOR COMPUTING RETIRED PAY. SECTION 5 (3) OF THAT BILL WOULD HAVE ADDED A NEW SECTION TO TITLE 10, U.S. CODE, SECTION 1405, TO LIST THE SERVICE CREDITABLE IN DETERMINING YEARS OF SERVICE FOR THE COMPUTATION OF RETIRED PAY. IN ORDER TO ALLOW THE COMPUTATION OF RETIRED PAY TO CONTINUE TO INCLUDE SERVICE THEN CREDITABLE FOR THAT PURPOSE WITHOUT CHANGE, THE NEW SECTION 1405 WOULD HAVE RESTATED THE SUBSTANCE OF THE RULES THEN CONTAINED IN SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949 FOR BASIC (LONGEVITY) PAY PURPOSES.

SECTION 12 (A) (4) OF THAT BILL WOULD HAVE ADDED A NEW SUBSECTION (H) TO SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT TO PERMIT CERTAIN RETIRED PUBLIC HEALTH SERVICE OFFICERS TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF "YEARS OF SERVICE COMPUTED UNDER SECTION 1405 OF TITLE 10, UNITED STATES CODE."

IN VIEW OF THE CONCLUSION OF THE SENATE ARMED SERVICES COMMITTEE THAT THOSE COMMISSIONED OFFICERS OF THE ARMED SERVICES WHO HAD SERVED AT LEAST 20 YEARS ON ACTIVE DUTY AND THEREAFTER REMAINED IN OR WERE APPOINTED IN THE RESERVE PRIOR TO BEING TRANSFERRED TO A RETIRED LIST WITH PAY UNDER THEN EXISTING LAW SHOULD NOT BE ELIGIBLE, WHEN THEIR ACTIVE AND INACTIVE RESERVE SERVICE TOTALED 30 YEARS, TO RECEIVE THE SAME RETIRED PAY AS OFFICERS WHO HAD SERVED ON ACTIVE DUTY FOR 30 YEARS, THAT COMMITTEE ADOPTED AN AMENDMENT TO SECTION 11, REFERRED TO AS "SECTION AFFECTING RETIRED PAY MULTIPLIER," OF H.R. 11470, WHICH BECAME THE 1958 MILITARY PAY ACT, "WHICH WILL PREVENT THE INCLUSION OF NONACTIVE DUTY RESERVE SERVICE IN THE COMPUTATION OF THE RETIRED PAY ON THE BASIS OF A FULL ACTIVE DUTY YEAR." S. REPT. NO. 1472, 85TH CONG; 2D SESS. 14.

THE COMMITTEE EXPLAINED ITS AMENDMENT RELATING TO ELIMINATING CREDIT FOR INACTIVE SERVICE IN THE MULTIPLIER FACTOR AS FOLLOWS:

SUBSECTION (A): CLAUSE (1) AMENDS CHAPTER 71 OF TITLE 10, UNITED STATES CODE, BY ADDING A NEW SECTION 1405 AT THE END THEREOF. THE NEW SECTION PROVIDES THAT, FOR THE PURPOSES OF THOSE ENUMERATED SECTIONS OF TITLE 10 RELATING TO RETIREMENT FROM AN ARMED FORCE, THE YEARS OF SERVICE TO BE USED AS A MULTIPLIER IN COMPUTING RETIRED PAY, BUT NOT ELIGIBILITY FOR RETIREMENT, WILL BE AS FOLLOWS:

(1) ALL ACTIVE SERVICE PERFORMED IN THE ARMED FORCES BY THE MEMBER CONCERNED.

(2) THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949 FOR HIS PROFESSIONAL EDUCATION, IF HE IS A MEDICAL OR DENTAL OFFICER.

(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 RETIRED PAY.

THE EFFECT OF THIS RULE IS TO ELIMINATE, WITH ONE EXCEPTION, THE FUTURE ACCUMULATION OF YEARS OF NONACTIVE SERVICE FOR USE AS A MULTIPLIER IN THE COMPUTATION OF RETIRED PAY. HOWEVER, SUCH YEARS ACCUMULATED BEFORE THE EFFECTIVE DATE OF THIS ACT WILL CONTINUE TO BE CREDITED. * * *

SEE PAGE 25 OF THAT SENATE REPORT. THE SENATE AMENDMENT IS FURTHER EXPLAINED IN THE CONFERENCE REPORT (H. REPT. NO. 1701, 85TH CONG; 2D SESS. 16) AS FOLLOWS:

8. ANOTHER PROVISION OF THE SENATE AMENDMENT CONTAINED A PROVISION WHICH WILL PREVENT THE INCLUSION OF NONACTIVE DUTY RESERVE SERVICE IN THE COMPUTATION OF THE RETIRED PAY ON THE BASIS OF A FULL ACTIVE DUTY YEAR, AND WILL PROVIDE THAT SUCH SERVICE WILL BE COMPUTED ON THE BASIS OF THE POINT COMPUTATION SYSTEM APPLICABLE TO RESERVE OFFICERS RETIRED UNDER THE RESERVE RETIREMENT LAW AT AGE 60. THIS SECTION WOULD AFFECT THOSE OFFICERS WHO HAD SERVED AT LEAST 20 YEARS ON ACTIVE DUTY AND THEREAFTER REMAIN OR ARE APPOINTED IN THE RESERVE PRIOR TO BEING TRANSFERRED TO A RETIRED LIST WITH PAY. AS A RESULT OF THE SENATE AMENDMENT ALL FUTURE INACTIVE RESERVE TIME WILL BE COMPUTED ON THE SAME BASIS FOR RETIRED PAY PURPOSES.

WHILE THE CONGRESS IN ENACTING THE 1958 MILITARY PAY BILL DID NOT ELIMINATE THE LONGEVITY CONCEPT OF MILITARY PAY AND THEREFORE DID NOT DELETE SECTION 202 GOVERNING SERVICE CREDITABLE FOR BASIC (LONGEVITY) PAY PURPOSES FROM THE CAREER COMPENSATION ACT, IT MADE CONFORMING CHANGES IN THE RETIREMENT LAWS WITH RESPECT TO SERVICE CREDITABLE FOR COMPUTING RETIRED PAY AND ADDED SECTION 1405TO CHAPTER 71 OF TITLE 10, U.S. CODE, TO ELIMINATE THE CREDITING OF FULL TIME FOR INACTIVE SERVICE PERFORMED THEREAFTER IN DETERMINING THE PERCENTAGE MULTIPLE IN RETIRED PAY FORMULAE.

IT MAY BE NOTED THAT SECTION 3 OF S. 3082, A COMPANION BILL TO S. 3081 (SIMILAR TO H.R. 11470), WHICH WAS DESIGNED TO ACCOMPLISH WHAT SECTION 11 OF THE 1958 MILITARY PAY ACT DID ACCOMPLISH, WOULD HAVE AMENDED THE LAW AUTHORIZING THE CREDITING OF INACTIVE SERVICE IN THE RETIRED PAY PERCENTAGE MULTIPLE OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY (WHO, LIKE PUBLIC HEALTH SERVICE OFFICERS, HAD BEEN MADE ELIGIBLE FOR THE BENEFITS OF CHAPTER 71 OF TITLE 10, U.S. CODE, BY SECTION 3 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 619) BY STRIKING OUT THE WORDS "FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY WHILE ON ACTIVE DUTY" IN 33 U.S.C. 853O (1952 ED.) AND INSERTING THERE THE WORDS, "THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF TITLE 10, UNITED STATES CODE."

IN COMMENTING ON THAT SECTION OF THE PROPOSED BILL, THE DEPARTMENT OF THE AIR FORCE AS SPOKESMAN FOR THE DEPARTMENT OF DEFENSE RECOMMENDED THAT SECTION 3 BE CLARIFIED:

IT FURTHER APPEARS THAT THERE MAY BE SOME DOUBT THAT SECTION 3 OF THE BILL WOULD MAKE THE NEW FORMULA APPLICABLE TO THE COAST AND GEODETIC SURVEY. THEREFORE, IT IS SUGGESTED THAT THERE SHOULD BE INSERTED ON LINE 23 OF PAGE 4, AFTER THE WORD "CODE," THE PHRASE "AS IF HIS SERVICE WERE SERVICE AS A MEMBER OF THE ARMED FORCES." SEE LETTER OF APRIL 4, 1958, TO THE CHAIRMAN OF THE SENATE COMMITTEE ON ARMED SERVICES, S. REPT. NO. 1472, 85TH CONG; 2D SESS. 32, 33. THAT LANGUAGE WAS INCLUDED IN SECTION 11 (C) OF THE 1958 MILITARY PAY LAW AS RECOMMENDED BY THE DEPARTMENT OF THE AIR FORCE. NO SIMILAR PROVISION WAS MADE WITH RESPECT TO THE PUBLIC HEALTH SERVICE, FOR WHICH THERE THEN EXISTED NO AUTHORITY TO COUNT INACTIVE SERVICE IN THE RETIRED PAY PERCENTAGE MULTIPLE. SECTION 221 (A) OF THE PUBLIC HEALTH SERVICE ACT WAS ENACTED BY SECTION 4 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 619, WHICH CODIFIED TITLES 10 AND 34 OF THE U.S.C. AS TITLE 10 THEREOF. IT IS CLEAR THAT AT THAT TIME COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WERE NOT AUTHORIZED TO COUNT INACTIVE SERVICE IN THEIR RETIRED PAY PERCENTAGE MULTIPLE.

SECTION 1405 WAS NOT A PART OF TITLE 10, U.S. CODE, AS CODIFIED BY THE 1956 ACT, BUT WAS ADDED BY SECTION 11 OF THE 1958 MILITARY PAY ACT, THE EXPRESS PURPOSE OF WHICH WAS TO PROHIBIT FULL CREDIT FOR INACTIVE SERVICE PERFORMED AFTER MAY 1958 IN COMPUTING THE RETIRED PAY PERCENTAGE MULTIPLE OF ARMY, NAVY, MARINE CORPS, AIR FORCE, COAST GUARD, AND COAST AND GEODETIC SURVEY OFFICERS. IN 1956 WHEN SECTION 221 OF THE PUBLIC HEALTH SERVICE ACT WAS ENACTED, CHAPTER 71 OF TITLE 10 HAD NOTHING TO DO WITH COUNTING INACTIVE TIME IN THE RETIRED PAY PERCENTAGE MULTIPLE OF ARMY OFFICERS RETIRED WITH OVER 20 YEARS OF ACTIVE SERVICE. ARMY OFFICERS COULD COUNT SUCH INACTIVE TIME NOT BY VIRTUE OF 10 U.S.C. 1405 BUT BY VIRTUE OF 10 U.S.C. 3911 AND 3991 AND THEIR SOURCE STATUTES, THE ACT OF JULY 31, 1935, AS AMENDED BY SECTION 202 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1084.

IN 1956 PUBLIC HEALTH SERVICE OFFICERS DID NOT HAVE A SIMILAR RIGHT AND COULD COUNT ONLY ACTIVE SERVICE IN THEIR RETIRED PAY PERCENTAGE MULTIPLE UNDER SECTION 211 OF THE PUBLIC HEALTH SERVICE ACT. WHILE SECTION 4 OF THE 1956 ACT MENTIONS RIGHTS "NOW OR HEREAFTER PROVIDED FOR ARMY OFFICERS," SECTION 1405 OF CHAPTER 71 AS ADDED IN 1958 BY SECTION 11 OF THE 1958 MILITARY PAY ACT DID NOT ADD TO, BUT ACTUALLY RESTRICTED, THE RIGHT OF ARMY OFFICERS TO COUNT INACTIVE SERVICE PERFORMED AFTER MAY 1958 FOR RETIRED PAY PERCENTAGE MULTIPLE PURPOSES.

THUS, SECTION 1405 DID NOT CONFER UPON ARMY OFFICERS THE RIGHT TO FULL CREDIT FOR INACTIVE SERVICE PRIOR TO JUNE 1958 IN THEIR RETIRED PAY PERCENTAGE MULTIPLE, BUT RESTRICTED THE RIGHT TO SUCH CREDIT TO SERVICE PERFORMED PRIOR TO JUNE 1958, THAT IS, TO SUCH SERVICE AS WAS CREDITABLE FOR THAT PURPOSE ON MAY 31, 1958. WE FIND NOTHING IN THE LAW WHICH THUS REDUCED THE RIGHTS OF OTHER RETIRED OFFICERS, WHICH MIGHT BE VIEWED AS INCREASING THE RIGHTS OF RETIRED OFFICERS OF THE PUBLIC HEALTH SERVICE.

IN VIEW OF THE FOREGOING CONSIDERATIONS, THE FACT THAT THE RETIRED PAY PROPOSAL IN S. 2014 TO AUTHORIZE THE PUBLIC HEALTH SERVICE OFFICERS TO COUNT INACTIVE SERVICE IN THEIR RETIRED PAY PERCENTAGE MULTIPLE WAS NOT ENACTED IN THE 1958 MILITARY PAY LAW, AND THE FACT THAT THE PURPOSE OF SECTION 11 OF THAT LAW ADDING SECTION 1405 TO TITLE 10, U.S. CODE, WAS TO LIMIT THE AUTHORIZATION FOR OTHER OFFICERS OF THE UNIFORMED SERVICES TO COUNT INACTIVE SERVICE IN THEIR RETIRED PAY PERCENTAGE MULTIPLE TO SUCH SERVICE PERFORMED PRIOR TO JUNE 1958, IT IS OUR OPINION THAT PUBLIC HEALTH SERVICE OFFICERS ARE NOT AUTHORIZED TO COUNT INACTIVE SERVICE PRIOR TO JUNE 1958 IN THEIR RETIRED PAY PERCENTAGE MULTIPLE BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 1405.

IN THIS CONNECTION, IT IS NOTED THAT THE ABOVE-MENTIONED CONFERENCE REPORT STATES THAT SINCE THE 1958 AMENDMENT IS PROSPECTIVE IN SCOPE, IT WOULD "NOT AFFECT THE SERVICE PRESENTLY CREDITABLE UNDER EXISTING LAW."

SINCE, IN OUR VIEW, PUBLIC HEALTH SERVICE OFFICERS ARE NOT AUTHORIZED TO COUNT ANY OF THEIR INACTIVE SERVICE IN DETERMINING THEIR RETIRED PAY PERCENTAGE MULTIPLE UNDER EXISTING LAW, WE BELIEVE THAT ADDITIONAL LEGISLATION WOULD BE NECESSARY IF CREDIT FOR SUCH SERVICE PRIOR TO JUNE 1, 1958, IS TO BE AUTHORIZED FOR THEM. LEGISLATION SUCH AS THAT PROPOSED IN S. 912, 90TH CONGRESS, WOULD SEEM TO BE APPROPRIATE FOR THAT PURPOSE IF THE CONGRESS SHOULD DECIDE THAT PUBLIC HEALTH SERVICE OFFICERS SHOULD RECEIVE THAT BENEFIT.