B-171519, MAR 11, 1971

B-171519: Mar 11, 1971

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THE SAME RESULT IS REACHED. IF THE ATTENDANCE AT A SERVICE SCHOOL WAS DURING A PERIOD OF FULL TIME TRAINING DUTY IN THE U.S. SECRETARY: FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 9. REQUESTING A DECISION WHETHER NON-NAVAL ACADEMY MIDSHIPMAN SERVICE IS CREDITABLE IN COMPUTING BASIC PAY. SMITH ARE CITED AND DISCUSSED TO ILLUSTRATE THE NEED FOR ANSWERS TO THE QUESTIONS PRESENTED. WAS NOT CREDITABLE FOR INCREASED BASIC PAY. REFERENCE IS ALSO MADE TO THE HOLDING IN 42 COMP. THAT PERSONS WHO WERE IN RECEIPT OF "RETAINER PAY" WHILE SERVING AS MIDSHIPMEN. VIEW OF WHAT ARE THUS REGARDED AS "VARYING DECISIONS. " THE FOLLOWING QUESTIONS ARE PRESENTED: "A. "B. MAY NON-NAVAL ACADEMY MIDSHIPMAN SERVICE BE CONSIDERED BY ARMY PERSONNEL AS CREDITABLE TOWARDS RETIREMENT IF OFFICERS WERE IN RECEIPT OF RETAINER PAY?

B-171519, MAR 11, 1971

MILITARY - RETIRED PAY AND BASIC PAY - NON-NAVAL ACADEMY MIDSHIPMEN SERVICE ADVISING THAT SINCE SECTION 202 OF THE CAREER COMPENSATION ACT (NOW 37 U.S.C. 205) WHICH GOVERNS SERVICE TO BE CREDITED IN DETERMINING THE RATE OF BASIC PAY ALTHOUGH GENERALLY AUTHORIZING CREDIT FOR "ACTIVE SERVICE" LIMITS THE CREDIT TO PERIODS OF "ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, AND ENLISTED PERSON"; THEREFORE, ARMY PERSONNEL MAY NOT BE CREDITED WITH NON-NAVAL ACADEMY MIDSHIPMEN SERVICE FOR INCREASED BASIC PAY. SECTION 6323 OF 10 U.S.C. ALLOWS ACTIVE DUTY INCLUDING ATTENDANCE AT A DESIGNATED SERVICE SCHOOL WHILE IN THE ACTIVE MILITARY SERVICE, TO BE CREDITED TO A NAVY OFFICER'S YEARS OF SERVICE IN DETERMINING ELIGIBILITY FOR RETIREMENT; SECTION 3926 OF 10 U.S.C. PROVIDES THAT AN OFFICER OF THE ARMY MAY BE CREDITED FOR RETIREMENT PURPOSES WITH ALL SERVICE IN THE NAVY IF SUCH SERVICE WOULD BE INCLUDED IN DETERMINING THE ELIGIBILITY OF A NAVY OFFICER FOR RETIREMENT; THEREFORE, NON-NAVAL ACADEMY MIDSHIPMAN SERVICE MAY BE CONSIDERED FOR ARMY PERSONNEL AS CREDITABLE TOWARDS RETIREMENT. THE SAME RESULT IS REACHED, AS UNDER 10 U.S.C. 6323, IF THE ATTENDANCE AT A SERVICE SCHOOL WAS DURING A PERIOD OF FULL TIME TRAINING DUTY IN THE U.S. NAVAL RESERVE.

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 9, 1970, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), REQUESTING A DECISION WHETHER NON-NAVAL ACADEMY MIDSHIPMAN SERVICE IS CREDITABLE IN COMPUTING BASIC PAY, IN DETERMINING ELIGIBILITY FOR RETIREMENT AND IN THE COMPUTATION OF RETIRED PAY. THE CASES OF LIEUTENANT COLONEL ROBERT B. KNOWLES, COLONEL EDWIN M. SCHMIDT, AND LIEUTENANT COLONEL ROBERT B. KNOWLES, COLONEL EDWIN M. SCHMIDT, AND LIEUTENANT COLONEL VINCENT K. SMITH ARE CITED AND DISCUSSED TO ILLUSTRATE THE NEED FOR ANSWERS TO THE QUESTIONS PRESENTED. THIS REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS A 1098 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE LETTER FROM THE ASSISTANT SECRETARY STATES THAT IN DECISION B 138442 (APRIL 22, 1959), THE COMPTROLLER GENERAL HELD THAT NON-NAVAL ACADEMY MIDSHIPMAN SERVICE PERFORMED (FROM SEPTEMBER 2 TO DECEMBER 1, 1942, BY COLONEL EDWIN M. SCHMIDT (UNDER THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1175), WAS NOT CREDITABLE FOR INCREASED BASIC PAY. REFERENCE IS ALSO MADE TO THE HOLDING IN 42 COMP. GEN. 669 (1963), THAT NAVY PERSONNEL RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 6323 COULD COUNT ACTIVE SERVICE PERFORMED AS NON-NAVAL ACADEMY MIDSHIPMEN IN DETERMINING ELIGIBILITY FOR RETIREMENT, BUT THAT PERSONS WHO WERE IN RECEIPT OF "RETAINER PAY" WHILE SERVING AS MIDSHIPMEN, COULD NOT COUNT THAT SERVICE TOWARD RETIREMENT. VIEW OF WHAT ARE THUS REGARDED AS "VARYING DECISIONS," THE FOLLOWING QUESTIONS ARE PRESENTED:

"A. MAY ARMY PERSONNEL BE CREDITED WITH NON-NAVAL ACADEMY MIDSHIPMAN SERVICE FOR INCREASED BASIC PAY?

"B. MAY NON-NAVAL ACADEMY MIDSHIPMAN SERVICE BE CONSIDERED BY ARMY PERSONNEL AS CREDITABLE TOWARDS RETIREMENT IF OFFICERS WERE IN RECEIPT OF RETAINER PAY?

"C. MAY NON-NAVAL ACADEMY MIDSHIPMAN SERVICE BE CONSIDERED CREDITABLE BY ARMY OFFICER PERSONNEL IN COMPUTING RETIREMENT PERCENTAGE MULTIPLIER?"

THE LETTER AND ENCLOSURES INDICATE THAT COLONEL KNOWLES SERVED ON ACTIVE DUTY AS A NON-NAVAL ACADEMY MIDSHIPMAN, U.S. NAVY, FROM APRIL 15, 1947, TO OCTOBER 1, 1947, AND THAT HE RECEIVED INCREASED BASIC PAY BASED ON THIS SERVICE. THE ENCLOSURES PERTINENT TO COLONEL KNOWLES' CASE INDICATE THAT HE ENLISTED IN THE U.S. NAVAL RESERVE AS AN APPRENTICE SEAMAN (V-5) ON JUNE 6, 1945, AND THAT FOR THE PERIOD APRIL 15, 1947, TO OCTOBER 1, 1947, HE WAS A MIDSHIPMAN, U.S. NAVY.

UNDER THE V-5 PROGRAM OF THE NAVY, OFFICER CANDIDATES WERE ENTIRELY SUBSIDIZED BY THE GOVERNMENT WHILE ATTENDING A COLLEGE LEVEL INSTITUTION WITH ACTIVE DUTY PAY AS APPRENTICE SEAMEN, USNR ($50 TO $75 PER MONTH) AND QUARTERS, SUBSISTENCE, TUITION, BOOKS, ETC., FURNISHED BY THE GOVERNMENT. UNDER THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1057, THE AVIATION COMPONENT UNDER THAT ACT REPLACED THE COLLEGE TRAINING PROGRAM (V-5). THE NEW PROGRAM WAS IDENTICAL WITH THE V-5 PROGRAM WITH THE EXCEPTION THAT UNTIL THE COMPLETION OF THE REQUIRED 2 YEARS OF SCHOLASTIC WORK THE APPRENTICE SEAMEN, USNR, RECEIVED AS TOTAL COMPENSATION RETAINER PAY OF $50 PER MONTH INSTEAD OF ACTIVE DUTY PAY AS APPRENTICE SEAMEN. WHEN THE CANDIDATES WERE ORDERED TO FLIGHT TRAINING THEY WERE APPOINTED MIDSHIPMEN IN THE REGULAR NAVY WITH THE SAME PAY AND ALLOWANCES AS A MIDSHIPMAN AT THE NAVAL ACADEMY.

THE ONLY INFORMATION FURNISHED CONCERNING COLONEL SMITH IS CONTAINED IN A LETTER DATED APRIL 24, 1970, IN WHICH HE STATES THAT HE ENLISTED IN THE "USNR" ON MAY 11, 1946, IN A PROGRAM KNOWN AS THE "HOLLOWAY PLAN," AND SERVED IN THE INACTIVE RESERVE UNTIL AUGUST 10, 1948. HE WAS APPOINTED A MIDSHIPMAN, USN, ON AUGUST 11, 1948, AND SERVED ON ACTIVE DUTY AS AN "AVIATION" MIDSHIPMAN UNTIL HONORABLY DISCHARGED ON APRIL 10, 1950.

IT APPEARS THAT COLONEL SMITH WAS A NAVAL AVIATION OFFICER CANDIDATE UNDER THE ACT OF AUGUST 13, 1946, AND WAS APPOINTED A MIDSHIPMAN UNDER SECTION 3(B) OF THAT ACT. SECTION 6(A)2 OF THAT ACT PROVIDED:

"2. MIDSHIPMEN APPOINTED PURSUANT TO SECTION 3(B) MAY BE COMMISSIONED AS ENSIGNS IN THE LINE OF THE NAVY OR SECOND LIEUTENANTS IN THE MARINE CORPS FOLLOWING THE SATISFACTORY COMPLETION OF TWO YEARS' FLIGHT TRAINING AND FLIGHT DUTY AS MIDSHIPMEN AS PRESCRIBED IN PART (B) OF SECTION 3 AND IN SECTION 5."

SECTION 4 OF THE 1946 ACT PROVIDED THAT:

" *** WHILE IN FLIGHT TRAINING OR ON OTHER FLIGHT DUTY MIDSHIPMEN APPOINTED UNDER PART (B) OF SECTION 3 SHALL BE ENTITLED TO THE PAY AND ALLOWANCES NOW OR HEREAFTER PROVIDED BY LAW FOR MIDSHIPMEN UNDER INSTRUCTION AT THE UNITED STATES NAVAL ACADEMY *** ."

IT IS REPORTED THAT WHILE SERVING AS A MIDSHIPMAN FROM SEPTEMBER 2, 1942, TO DECEMBER 1, 1942, COLONEL SCHMIDT RECEIVED RETAINER PAY. HIS SERVICE RECORDS SHOW THAT ON MARCH 27, 1942, HE ENLISTED IN THE U.S. NAVAL RESERVE, CLASS V-7, AND ON AUGUST 14, 1942, REPORTED TO THE USNR MIDSHIPMAN'S SCHOOL, NEW YORK, NEW YORK, PURSUANT TO ACTIVE DUTY ORDERS OF JULY 20, 1942. ON SEPTEMBER 2, 1942, HE WAS APPOINTED A MIDSHIPMAN, VOLUNTEER RESERVE, IN THE UNITED STATES NAVAL RESERVE, HIS ENLISTMENT AS AN APPRENTICE SEAMAN, V-7, USNR, HAVING BEEN TERMINATED THE PREVIOUS DAY. CONTAINED IN AN ENCLOSURE ENTITLED "INFORMATION FOR CANDIDATES FOR APPOINTMENT AS MIDSHIPMEN, U.S. NAVAL RESERVE 1941-1942," CIRCULATED WITH BUREAU OF NAVIGATION CIRCULAR LETTER NO. 56-41, DATED MAY 6, 1941, IS INFORMATION RELATING TO THE V-7 PROGRAM. THAT ENCLOSURE STATES MEN ENLISTED AS APPRENTICE SEAMEN, CLASS V-7, WILL BE ENTITLED TO NO PAY. THAT ENCLOSURE STATES FURTHER THAT AFTER APPOINTMENT AS RESERVE MIDSHIPMAN AND DURING THE PERIOD UNDER INSTRUCTION EACH MIDSHIPMAN, U.S. NAVAL RESERVE, WILL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS A MIDSHIPMAN OF THE REGULAR NAVY.

QUESTION "A" RELATES TO OUR DECISION B-138442, APRIL 22, 1959, IN WHICH IT WAS HELD THAT COLONEL SCHMIDT'S SERVICE PERFORMED IN 1942 AS A MIDSHIPMAN (V-7), UNITED STATES NAVAL RESERVE, WAS NOT CREDITABLE IN THE COMPUTATION OF BASIC PAY UNDER SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (NOW 37 U.S.C. 205), BECAUSE NO PROVISION OF LAW AUTHORIZED CREDIT FOR SUCH SERVICE.

IN 43 COMP. GEN. 577 (1964), WHICH PERTAINED TO THE CREDITABILITY OF ACTIVE DUTY NON-NAVAL ACADEMY MIDSHIPMAN SERVICE UNDER THE AUTHORITY OF THE ACT OF AUGUST 13, 1946, IT WAS HELD THAT SECTION 202 OF THE CAREER COMPENSATION ACT, WHICH GOVERNED SERVICE TO BE CREDITED IN DETERMINING THE RATE OF BASIC PAY TO WHICH A MEMBER WAS ENTITLED, ALTHOUGH GENERALLY AUTHORIZING CREDIT FOR "ACTIVE SERVICE," LIMITED THE CREDIT TO PERIODS OF "ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, AND ENLISTED PERSON" WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT. A SUBSTANTIALLY SIMILAR PROVISION OF LAW IS NOW CONTAINED IN 37 U.S.C. 205. ACCORDINGLY, QUESTION "A" IS ANSWERED IN THE NEGATIVE.

QUESTION "B" RELATES TO THE CREDITABILITY FOR RETIREMENT OF NON-NAVAL ACADEMY MIDSHIPMAN SERVICE BY ARMY OFFICERS WHO WERE IN RECEIPT OF RETAINER PAY AS MIDSHIPMEN WHILE SERVING AS SUCH.

10 U.S.C. 6323 PROVIDES IN PART AS FOLLOWS:

"(A) AN OFFICER OF THE NAVY OR THE MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT.

"(B) FOR THE PURPOSES OF THIS SECTION -

"(1) AN OFFICER'S YEARS OF ACTIVE SERVICE ARE COMPUTED BY ADDING ALL HIS ACTIVE SERVICE IN THE ARMED FORCES; AND"

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, 34 U.S.C. 410B (1952 ED.), FROM WHICH THE ABOVE-QUOTED PART OF SECTION 6323 WAS DERIVED, PROVIDED THAT 20 YEARS OF ACTIVE SERVICE SHOULD INCLUDE "ACTIVE DUTY FOR TRAINING." A REVISION NOTE TO 10 U.S.C.A. 6323 STATES THAT THE WORDS "INCLUDING ACTIVE DUTY FOR TRAINING" WERE OMITTED THEREFROM BECAUSE THE TERM "ACTIVE DUTY" IS DEFINED IN TITLE 10 AS INCLUDING TRAINING DUTY. "ACTIVE SERVICE" AND "ACTIVE DUTY" ARE DEFINED IN SECTION 101, TITLE 10, U.S. CODE, 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." IN VIEW OF THESE PROVISIONS WE SEE NO REASON WHY ACTIVE DUTY NON-NAVAL ACADEMY MIDSHIPMAN SERVICE, WHETHER IT BE UNDER THE NAVAL RESERVE ACT OF 1938 OR THE ACT OF AUGUST 13, 1946, SHOULD NOT BE CREDITABLE IN COMPUTING NAVY OFFICERS' YEARS OF SERVICE IN DETERMINING THEIR ELIGIBILITY FOR RETIREMENT UNDER 10 U.S.C. 6323.

SECTION 3926 OF TITLE 10, U.S. CODE, PROVIDES FOR THE COMPUTATION OF YEARS OF SERVICE FOR VOLUNTARY RETIREMENT OF REGULAR AND RESERVE COMMISSIONED OFFICERS OF THE ARMY. THAT SECTION PROVIDES IN PART AS FOLLOWS:

"(A) FOR THE PURPOSE OF DETERMINING WHETHER AN OFFICER OF THE ARMY MAY BE RETIRED UNDER SECTION 3911, 3918, OR 3924 OF THIS TITLE, HIS YEARS OF SERVICE ARE COMPUTED BY ADDING -

"(2) ALL SERVICE IN THE NAVY OR MARINE CORPS THAT MAY BE INCLUDED IN DETERMINING THE ELIGIBILITY OF AN OFFICER OF THE NAVY OR MARINE CORPS FOR RETIREMENT;"

ACCORDINGLY, SERVICE THAT WOULD BE CREDITABLE TO AN OFFICER OF THE NAVY UNDER 10 U.S.C. 6323, IS ALSO CREDITABLE IN THE COMPUTATION OF YEARS OF SERVICE OF AN ARMY OFFICER UNDER 10 U.S.C. 3926.

IN 42 COMP. GEN. 669 (1963), THE TERM "RETAINER PAY" WAS USED ONLY IN CONNECTION WITH THE SERVICE OF MIDSHIPMEN, U.S. NAVAL RESERVE, APPOINTED UNDER THE PROVISIONS OF THE ACT OF AUGUST 13, 1946. THAT TERM WAS USED TO ILLUSTRATE AND DISTINGUISH BETWEEN ACTIVE AND INACTIVE DUTY OF MIDSHIPMEN OF THE NAVAL RESERVE.

IT APPEARS THAT COLONELS SMITH AND KNOWLES WERE APPOINTED MIDSHIPMEN IN THE U.S. NAVY, NOT THE NAVAL RESERVE. THE SERVICE PERFORMED BY THEM WAS SERVICE AS MIDSHIPMEN, U.S. NAVY, AND THEREFORE THE DISCUSSION HEREIN CONCERNING "RETAINER PAY" AND "INACTIVE DUTY" OF MIDSHIPMEN IN THE NAVAL RESERVE IS NOT APPLICABLE TO THEM. THE SERVICE PERFORMED BY MIDSHIPMEN, U.S. NAVY, IS "ACTIVE SERVICE" WITHIN THE MEANING OF THAT TERM AS DEFINED IN 10 U.S.C. 101(22) AND (24) AND HENCE SUCH SERVICE IS CREDITABLE UNDER 10 U.S.C. 6323. THUS, QUESTION "B", AS STATED, IS NOT APPLICABLE TO EITHER COLONEL KNOWLES OR COLONEL SMITH AND THEIR MIDSHIPMAN SERVICE IS CREDITABLE IN DETERMINING YEARS OF SERVICE FOR ELIGIBILITY FOR RETIREMENT UNDER PERTINENT STATUTES REFERRED TO ABOVE.

THE RECORD INDICATES THAT ON SEPTEMBER 2, 1942, COLONEL SCHMIDT WAS APPOINTED A MIDSHIPMAN IN THE U.S. NAVAL RESERVE UNDER AUTHORITY OF THE NAVAL RESERVE ACT OF 1938. THE ASSISTANT SECRETARY STATES THAT HE RECEIVED "RETAINER PAY" FOR SERVICE PERFORMED AS A MIDSHIPMAN DURING THE PERIOD SEPTEMBER 2 TO DECEMBER 1, 1942. AS NOTED ABOVE, THE TERM "RETAINER PAY" USED IN CONNECTION WITH MIDSHIPMAN SERVICE IN THE NAVAL RESERVE CONSIDERED IN 42 COMP. GEN. 669 APPLIED ONLY TO MIDSHIPMEN, NAVAL RESERVE, APPOINTED UNDER THE PROVISIONS OF THE 1946 ACT.

WHILE NO ORDERS HAVE BEEN FURNISHED COVERING THE DUTY PERFORMED BY COLONEL SCHMIDT AS A MIDSHIPMAN IN 1942, OUR FILE INCLUDES INFORMATION CONCERNING SERVICE PERFORMED BY ANOTHER MIDSHIPMAN IN THE NAVAL RESERVE V- 7 PROGRAM UNDER CIRCUMSTANCES WHICH APPEAR TO BE SIMILAR TO THOSE HERE INVOLVED. THAT CASE INVOLVED AN INDIVIDUAL WHO INITIALLY REPORTED FOR DUTY PURSUANT TO ORDERS DATED FEBRUARY 15, 1943, WHICH ORDERED HIM TO "ACTIVE DUTY" AT THE NAVAL RESERVE MIDSHIPMAN'S SCHOOL, NORTHWESTERN UNIVERSITY, CHICAGO, ON MARCH 9, 1943, FOR "APPROXIMATELY ONE MONTH'S ACTIVE DUTY WITH PAY AS AN APPRENTICE SEAMAN, CLASS V-7, U.S. NAVAL RESERVE." THOSE ORDERS ALSO PROVIDED THAT:

" *** IF AFTER YOUR MONTH'S TRAINING AS AN APPRENTICE SEAMAN, YOU ARE RECOMMENDED FOR FURTHER TRAINING, YOU WILL BE APPOINTED A MIDSHIPMAN, USNR, ON ACTIVE DUTY AND GIVEN A COURSE OF INSTRUCTION LEADING TO APPOINTMENT AS ENSIGN, USNR *** . WHILE ON ACTIVE DUTY AS AN APPRENTICE SEAMAN OR AS A MIDSHIPMAN, USNR, YOU WILL RECEIVE PAY AND ALLOWANCES OF THAT RATING OR RANK." THAT INDIVIDUAL WAS APPOINTED A MIDSHIPMAN, USNR, ON APRIL 2, 1943. WE FIND NO BASIS FOR QUESTIONING THE CORRECTNESS OF THE CONCLUSION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IN THAT CASE THAT THE DUTY PERFORMED UNDER THOSE ORDERS FROM APRIL 12, 1943, THROUGH JUNE 30, 1943, WAS "ACTIVE SERVICE IN THE ARMED FORCES" WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 6323.

AS INDICATED ABOVE, COLONEL SCHMIDT'S SERVICE AS A MIDSHIPMAN, USNR, IN THE V-7 PROGRAM IN 1942 APPEARS TO HAVE BEEN SIMILAR TO THAT COVERED BY THE ABOVE-MENTIONED ORDERS OF FEBRUARY 15, 1943. ALTHOUGH A COPY OF THE SIMILAR ORDERS RELATING TO COLONEL SCHMIDT'S PERFORMANCE OF DUTY AS A MIDSHIPMAN, USNR, DURING THE PERIOD SEPTEMBER 2 TO DECEMBER 1, 1942, HAS NOT BEEN FURNISHED, IT IS CLEAR THAT HE WAS APPOINTED A MIDSHIPMAN, USNR, ON SEPTEMBER 2, 1942. IN SUCH CIRCUMSTANCES AND SINCE AN ANNOTATED COPY OF AN OPINION DATED FEBRUARY 26, 1968, OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, STATES THAT COLONEL SCHMIDT PERFORMED "FULL-TIME TRAINING DUTY AT THE USNR MIDSHIPMEN'S SCHOOL IN NEW YORK" DURING THE PERIOD INVOLVED, THE CONCLUSION APPEARS WARRANTED THAT SUCH DUTY IS CREDITABLE AS "ACTIVE SERVICE" UNDER SECTION 3926. QUESTION "B" IS ANSWERED ACCORDINGLY. THE ASSISTANT SECRETARY'S STATEMENT THAT COLONEL SCHMIDT RECEIVED "RETAINER PAY" WHILE PERFORMING MIDSHIPMAN SERVICE IN 1942 IS NOT UNDERSTOOD. APPEARS THAT WHEN COLONEL KNOWLES AND COLONEL SMITH PERFORMED DUTY AS MIDSHIPMEN, USN, UNDER THE 1946 ACT, THEY RECEIVED THE SAME PAY AND ALLOWANCES PROVIDED FOR MIDSHIPMEN AT THE NAVAL ACADEMY AS AUTHORIZED BY SECTION 4 OF THAT ACT. PRESUMABLY, COLONEL SCHMIDT WAS PAID ON THE SAME BASIS AS AUTHORIZED BY SECTION 7 OF THE 1938 NAVAL RESERVE ACT.

WITH RESPECT TO QUESTION "C", FORMULAS A AND B OF 10 U.S.C. 3991 PROVIDE FOR THE COMPUTATION OF RETIRED PAY OF COMMISSIONED OFFICERS OF THE ARMY. FORMULA B STATES THAT THE MULTIPLIER IS 2-1/2 PERCENT OF THE YEARS OF SERVICE CREDITABLE UNDER SECTION 1405 OF TITLE 10. FORMULA A PROVIDES THAT THE MULTIPLIER IS 2-1/2 PERCENT OF THE YEARS OF SERVICE CREDITABLE UNDER SECTION 3888 OR 3927(B) OF TITLE 10. SECTION 3888 OF TITLE 10 PROVIDES IN PERTINENT PART AS FOLLOWS:

"FOR THE PURPOSE OF COMPUTING THE RETIRED PAY OF A COMMISSIONED OFFICER OF THE REGULAR ARMY RETIRED UNDER SECTION 3883, 3884, 3885, OR 3886 OF THIS TITLE, HIS YEARS OF SERVICE ARE THE GREATEST OF -

"(1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE;"

SECTION 3927(B) OF TITLE 10, PROVIDES IN PART AS FOLLOWS:

"(B) FOR THE PURPOSE OF COMPUTING THE RETIRED PAY OF A COMMISSIONED OFFICER OF THE REGULAR ARMY RETIRED UNDER SECTION 3913, 3915, 3916, 3919, 3921, 3922, OR 3923 OF THIS TITLE, HIS YEARS OF SERVICE ARE THE GREATER OF

"(1) THE YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF THIS TITLE;"

SECTION 1405 OF TITLE 10 PROVIDES IN PERTINENT PART AS FOLLOWS:

"FOR THE PURPOSES OF SECTION 1401 (FORMULA 4), 3888(1), 3927(B)(1), 3991 (FORMULA B) *** OF THIS TITLE, THE YEARS OF SERVICE OF A MEMBER OF THE ARMED FORCES ARE COMPUTED BY ADDING -

"(1) HIS YEARS OF ACTIVE SERVICE;"

SINCE THE TERM "ACTIVE SERVICE" IS NOT OTHERWISE DEFINED, THE DEFINITIONS IN 10 U.S.C. 101(22) AND (24) ARE FOR APPLICATION AND THERE BEING NO RESTRICTION AS TO THE STATUS IN WHICH ACTIVE SERVICE MUST HAVE BEEN PERFORMED, ACTIVE DUTY NON-NAVAL ACADEMY MIDSHIPMAN SERVICE - EITHER USN OR USNR - IS CREDITABLE UNDER SECTION 1405 OF TITLE 10. SEE 45 COMP. GEN. 363 (1965).

ACCORDINGLY, QUESTION "C" IS ANSWERED IN THE AFFIRMATIVE.