B-167053, SEP 11, 1969

B-167053, SEP 11, 1969

MILITARY - SERVICE CREDITS - RETIREMENT - MINORITY ENLISTMENT SERVICE DECISION TO COMMANDANT OF COAST GUARD CONCERNING WHETHER WARRANT OFFICER WHEN RETIRING MAY COUNT CONSTRUCTIVE MINORITY ENLISTMENT TIME FOR PERCENTAGE MULITPLIER PURPOSES. CONSTRUCTIVE SERVICE FOR MINORITY ENLISTMENT IS NOT CREDITABLE IN DETERMINING YEARS OF SERVICE FOR RETIREMENT UNDER 10 U.S.C. 1405, IN VIEW OF FACT THAT NOTHING IN THE NAVAL RESERVE ACT OR CODIFICATION REGARDING MINORITY ENLISTMENTS SUGGESTS THAT CONSTRUCTIVE SERVICE IS CREDITABLE IN THE COMPUTATION OF RETIRED PAY UNDER ANY OTHER STATUTES.

TO ADMIRAL W.J. SMITH, USCG:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1969, REQUESTING AN ADVANCE DECISION AS TO WHETHER A COMMISSIONED WARRANT OFFICER IN THE COAST GUARD, WHEN RETIRING FOR YEARS OF SERVICE UNDER 10 U.S.C. 1293 OR 1305, MAY COUNT TOWARD THE COMPUTATION OF HIS COAST GUARD RETIRED PAY, FOR PERCENTAGE MULTIPLIER PURPOSES, THE CONSTRUCTIVE MINORITY ENLISTMENT TIME ACCRUED BY HIM WHILE SERVING IN SUCH AN ENLISTMENT IN THE NAVY.

THE FOLLOWING FACTS WERE SET FORTH IN YOUR LETTER AS BEING PERTINENT TO THE QUESTION PRESENTED AND CONCERN CHIEF WARRANT OFFICER RUSSELL A. SCRUGGS, USCG, 27647. YOU STATE THAT MR. SCRUGGS FIRST ENLISTED IN THE NAVY ON JULY 21, 1931, IN A MINORITY ENLISTMENT TO SERVE UNTIL HIS 21ST BIRTHDAY (NOVEMBER 26, 1934). HE WAS DISCHARGED FROM THAT ENLISTMENT SHORTLY BEFORE THAT BIRTHDAY, HAVING SERVED APPROXIMATELY 3 YEARS AND 4 MONTHS ON ACTIVE DUTY. HE LATER SERVED ON ACTIVE DUTY FROM AUGUST 28, 1942, TO SEPTEMBER 29, 1945, IN THE V-6 PROGRAM AS A MEMBER OF THE U.S. NAVAL RESERVE. HE ENLISTED AGAIN IN THE V-6 PROGRAM ON MAY 1, 1948, AND WAS DISCHARGED ON MAY 30, 1949, HOWEVER, DURING THIS PERIOD HE PERFORMED NO ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING. ON MAY 31, 1949, HE ENLISTED IN THE U.S. COAST GUARD AND HAS HAD CONTINUOUS ACTIVE SERVICE IN THE COAST GUARD SINCE THEN.

WE UNDERSTAND THAT THIS IS THE ONLY SERVICE PERFORMED BY HIM AND THAT AT THE TIME OF ENTRANCE INTO THE COAST GUARD HE RECEIVED A CREDIT FOR BASE AND LONGEVITY PAY OF 7 YEARS, 5 MONTHS AND 27 DAYS FOR HIS NAVAL SERVICE, BUT SUCH CREDIT DID NOT INCLUDE CREDIT FOR CONSTRUCTIVE MINORITY ENLISTED TIME.

YOUR QUESTION RELATES TO RETIREMENT FOR YEARS OF SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 1293 AND 10 U.S.C. 1305 AND YOU ASK WHETHER CONSTRUCTIVE MINORITY ENLISTMENT TIME MAY BE USED IN FIXING THE PROPER PERCENTAGE MULITPLE TO BE USED IN COMPUTING RETIRED PAY FOR A MEMBER RETIRED UNDER ONE OF THOSE SECTIONS. RETIRED PAY FOR A MEMBER SO RETIRED IS A PROVIDED IN 10 U.S.C. 1401, FORMULA 4. IN COMPUTING RETIRED PAY UNDER THAT FORMULA THE USE OF A PERCENTAGE MULTIPLE BASED ON THE YEARS OF SERVICE THAT MAY BE CREDITED TO THE MEMBER UNDER 10 U.S.C. 1405 IS AUTHORIZED. SEE ALSO 14 U.S.C. 423 WHICH PROVIDES THAT THE SERVICE CREDITABLE FOR PERCENTAGE MULTIPLE PURPOSES UNDER THAT SECTION IS TO BE DETERMINED UNDER 10 U.S.C. 1405.

SECTION 1405, TITLE 10, U.S. CODE, PROVIDES IN MATERIAL PART FOR THE CREDITING OF -

"(1) HIS YEARS OF ACTIVE SERVICE;

"(2) THE YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 205(A)(7) AND (8) OF TITLE 37.

"(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 (JUNE 1, 1958), IN COMPUTING HIS BASIC PAY ***

"(4) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1), (2), AND (3), WITH WHICH HE WOULD BE ENTITLED TO BE CREDITED UNDER SECTION 1333 OF THIS TITLE, IF HE WERE ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE."

YOU SAY THAT MR. SCRUGGS IS APPROACHING RETIREMENT AND CLAIMS - FOR PERCENTAGE MULITPLE PURPOSES IN COMPUTING RETIRED PAY - APPROXIMATELY 8 MONTHS' CREDIT FOR CONSTRUCTIVE SERVICE AUTHORIZED IN SECTIONS 202 AND 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 1179, 34 U.S.C. 854A AND 854C (1952 ED.), FOR AN ENLISTMENT DURING HIS MINORITY.

THOSE PROVISIONS OF LAW, NOW CODIFIED IN 10 U.S.C. 6330 AND 6331, AUTHORIZED FOR PURPOSES OF TRANSFER TO THE FLEET RESERVE OF THE NAVY AND UPON TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE NAVY CREDIT FOR CONSTRUCTIVE SERVICE IN "MINORITY" ENLISTMENTS IN COMPUTING LENGTH OF SERVICE (1) IN THE BASIC PAY FACTOR AND (2) IN THE PERCENTAGE MULTIPLE IN THE COMPUTATION OF RETAINER PAY, AND RETIRED PAY WHEN TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE NAVY, BUT NOTHING IN THE NAVAL RESERVE ACT OR IN THE CODIFICATION OF THE CITED SECTIONS OF THAT ACT SUGGESTS THAT SUCH CONSTRUCTIVE SERVICE IS CREDITABLE IN THE COMPUTATION OF RETIRED PAY UNDER ANY OTHER RETIREMENT STATUTE. THE NAVAL RESERVE ACT OF 1938 PROVIDED THAT THE CONSTRUCTIVE CREDIT FOR MINORITY ENLISTMENT THERE AUTHORIZED WAS CREDITABLE "FOR ALL PURPOSES OF THIS ACT" AND NOT GENERALLY. SEE 40 COMP. GEN. 18, 40 COMP. GEN. 43.

AS POINTED OUT IN YOUR LETTER WE HELD IN 24 COMP. GEN. 23 THAT A COAST GUARD RETIREMENT STATUTE AUTHORIZING COUNTING "ALL CREDITABLE SERVICE" IN THE ARMY AND NAVY "IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE" DOES NOT INCLUDE "DOUBLE TIME" CREDIT FOR CERTAIN SERVICE IN THE ARMY AND NAVY. SIMILARLY, AS YOUR LETTER POINTS OUT, IN 25 COMP. GEN. 718 WE HELD THAT CONSTRUCTIVE SERVICE FOR APPOINTMENT AND PROMOTION PURPOSES IS NOT CREDITABLE FOR PURPOSES OF LONGEVITY PAY OR TOWARD QUALIFICATION FOR RETIREMENT, BUT ONLY FOR THE PURPOSES SPECIFICALLY AUTHORIZED BY STATUTE.

IN OUR OPINION SIMILAR REASONING IS APPLICABLE WITH RESPECT TO CREDITING CONSTRUCTIVE SERVICE FOR MINORITY ENLISTMENT IN DETERMINING CREDITABLE YEARS OF SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 1405. ACCORDINGLY, WE CONCLUDE THAT SUCH CONSTRUCTIVE SERVICE IS NOT CREDITABLE UNDER THOSE PROVISIONS. YOUR QUESTION IS ANSWERED IN THE NEGATIVE.