B-172053, APR 16, 1971

B-172053: Apr 16, 1971

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IS CREDITABLE. SECRETARY: REFERENCE IS MADE TO LETTER DATED FEBRUARY 25. IT IS STATED THAT COMMANDER DAVIS. WAS A MEMBER OF THE CIVILIAN CREW OF CERTAIN U.S. HE WAS ORDERED TO ACTIVE DUTY ON DECEMBER 16. WHEN HE WAS APPOINTED AN ENSIGN IN THE U.S. HE WAS RELEASED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS ON OCTOBER 20. IT IS REPORTED THAT THERE ARE FOUR OTHER REGULAR COAST GUARD OFFICERS WHO HAVE HAD SIMILAR DUTY AND IN ORDER TO BE ABLE TO ADVISE THEM REGARDING THEIR RETIREMENT BENEFITS. OUR VIEWS ON THE FOLLOWING QUESTIONS ARE REQUESTED: "A. IS SUCH A PERIOD OF ACTIVE DUTY SERVED WHILE A MEMBER OF THE MERCHANT MARINE RESERVE. HENCE FOR THE MULTIPLIER UNDER 14 U.S.C. 423 ONCE QUALIFICATION FOR BASIC RETIREMENT IS HAD.

B-172053, APR 16, 1971

MILITARY PERSONNEL - RETIRED PAY - ACTIVE DUTY - MERCHANT MARINE RESERVE ADVISING THAT ACTIVE DUTY PERFORMED AS A MIDSHIPMAN IN THE MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, IS CREDITABLE, UNDER 14 U.S.C. 291 FOR DETERMINING ELIGIBILITY FOR RETIREMENT; UNDER, 10 U.S.C. 1208 FOR QUALIFYING FOR DISABILITY RETIREMENTS; AND, FOR DETERMINING THE MULTIPLIER FACTOR UNDER 14 U.S.C. 423.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 25, 1971, FROM THE ACTING COMMANDANT OF THE COAST GUARD REQUESTING A DECISION AS TO THE CREDITABILITY OF ACTIVE DUTY PERFORMED AS A MIDSHIPMAN IN THE MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, FOR THE PURPOSES OF DETERMINING BASIC PAY, ELIGIBILITY FOR RETIREMENT, AND IN THE COMPUTATION OF RETIRED PAY IN THE CASE OF COMMANDER EDWARD S. DAVIS 6078, USCG.

IT IS STATED THAT COMMANDER DAVIS, A REGULAR COAST GUARD OFFICER NOW ON ACTIVE DUTY, ENTERED THE NAVAL SERVICE AS A CADET, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, ON AUGUST 26, 1941, AND WAS A MEMBER OF THE CIVILIAN CREW OF CERTAIN U.S. ARMY TRANSPORTS. ON OCTOBER 20, 1941, HE ACCEPTED AN APPOINTMENT AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, AND HE WAS ORDERED TO ACTIVE DUTY ON DECEMBER 16, 1941. CONTINUED TO SERVE ON ACTIVE DUTY IN THAT CAPACITY UNTIL FEBRUARY 23, 1943, WHEN HE WAS APPOINTED AN ENSIGN IN THE U.S. NAVAL RESERVE. HE WAS RELEASED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS ON OCTOBER 20, 1945.

IT IS REPORTED THAT THERE ARE FOUR OTHER REGULAR COAST GUARD OFFICERS WHO HAVE HAD SIMILAR DUTY AND IN ORDER TO BE ABLE TO ADVISE THEM REGARDING THEIR RETIREMENT BENEFITS, OUR VIEWS ON THE FOLLOWING QUESTIONS ARE REQUESTED:

"A. IS SUCH A PERIOD OF ACTIVE DUTY SERVED WHILE A MEMBER OF THE MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, PROPERLY CREDITABLE FOR PURPOSES OF QUALIFYING FOR RETIREMENT OF A REGULAR COAST GUARD OFFICER OR ENLISTED MAN, RETIRING EITHER FOR YEARS OF SERVICE (14 U.S.C. 291, 292, 354, 355), OR DISABILITY (CHAPTER 61, TITLE 10, U.S. CODE)?

"B. IN THE EVENT OF AN AFFIRMATIVE ANSWER ABOVE, WOULD THIS TIME COUNT FOR LONGEVITY FOR BASIC PAY PURPOSES WHILE ON ACTIVE DUTY, AND HENCE FOR THE MULTIPLIER UNDER 14 U.S.C. 423 ONCE QUALIFICATION FOR BASIC RETIREMENT IS HAD, EITHER ON THE BASIS OF YEARS OF SERVICE, AGE, OR DISABILITY, AS ABOVE MENTIONED?"

THE SECTIONS OF TITLE 14, U.S. CODE, REFERRED TO IN QUESTION "A" RELATING TO RETIREMENT FOR YEARS OF SERVICE PROVIDE AS FOLLOWS:

"291. VOLUNTARY RETIREMENT AFTER TWENTY YEARS' SERVICE

"ANY REGULAR COMMISSIONED OFFICER WHO HAS COMPLETED TWENTY YEARS' ACTIVE SERVICE IN THE COAST GUARD, NAVY, ARMY, AIR FORCE, OR MARINE CORPS, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE WITH WHICH RETIRED."

"292. VOLUNTARY RETIREMENT AFTER THIRTY YEARS' SERVICE

"ANY REGULAR COMMISSIONED OFFICER WHO HAS COMPLETED THIRTY YEARS' SERVICE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE SECRETARY, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY OF THE GRADE WITH WHICH RETIRED."

"354. VOLUNTARY RETIREMENT AFTER THIRTY YEARS' SERVICE

"ANY ENLISTED MAN WHO HAS COMPLETED THIRTY YEARS' SERVICE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE COMMANDANT, BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE OR RATING WITH WHICH RETIRED."

"355. VOLUNTARY RETIREMENT AFTER TWENTY YEARS' SERVICE

"ANY ENLISTED MAN WHO HAS COMPLETED TWENTY YEARS' SERVICE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE COMMANDANT, BE RETIRED FROM ACTIVE SERVICE, WITH RETIRED PAY OF THE GRADE OR RATING WITH WHICH RETIRED."

SINCE SECTION 291 PROVIDES FOR VOLUNTARY RETIREMENT OF COMMISSIONED OFFICERS WHO HAVE COMPLETED 20 YEARS OF "ACTIVE SERVICE," ACTIVE SERVICE AS A MIDSHIPMAN IN THE MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, IS CREDITABLE IN DETERMINING ELIGIBILITY FOR RETIREMENT UNDER THAT SECTION. WHILE SECTIONS 292, 354, AND 355 DO NOT SPECIFY ACTIVE SERVICE, IT SEEMS OBVIOUS THAT THE TERM "SERVICE" AS USED THEREIN INCLUDES ACTIVE SERVICE.

IN THIS CONNECTION, PARAGRAPH 12-C-2 OF THE COAST GUARD PERSONNEL MANUAL, 1967 EDITION, CAPTIONED, "SERVICE CREDITABLE FOR QUALIFYING FOR RETIREMENT" LISTS ONLY "ACTIVE SERVICE" AS BEING CREDITABLE FOR THAT PURPOSE, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE. IN VIEW OF THE ABOVE- CITED PROVISIONS OF LAW AND REGULATIONS, IT IS CLEAR THAT ACTIVE SERVICE IN THE MERCHANT MARINE RESERVE, WHICH WAS MADE A PART OF THE NAVAL RESERVE BY SECTIONS 1 AND 318 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1185, IS CREDITABLE IN DETERMINING ELIGIBILITY FOR RETIREMENT UNDER SUCH STATUTORY PROVISIONS.

CHAPTER 61 OF TITLE 10, U.S. CODE, PERTAINS TO DISABILITY RETIREMENTS. SECTION 1208, WHICH IS A PART OF CHAPTER 61, PROVIDES IN PART AS FOLLOWS:

"1208. COMPUTATION OF SERVICE

"(A) FOR THE PURPOSES OF THIS CHAPTER, A MEMBER OF A REGULAR COMPONENT SHALL BE CREDITED WITH THE SERVICE DESCRIBED IN CLAUSE (1) OR THAT DESCRIBED IN CLAUSE (2), WHICHEVER IS GREATER:

"(1) THE SERVICE THAT HE IS CONSIDERED TO HAVE FOR THE PURPOSE OF SEPARATION OR MANDATORY ELIMINATION FROM THE ACTIVE LIST.

"(2) THE SUM OF -

"(A) HIS ACTIVE SERVICE AS A MEMBER OF THE ARMED FORCES *** ;

UNDER THE ABOVE-QUOTED PROVISIONS OF CHAPTER 61, IT IS CLEAR THAT ACTIVE SERVICE AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE IS CREDITABLE FOR PURPOSES OF QUALIFYING FOR DISABILITY RETIREMENTS UNDER THOSE STATUTORY PROVISIONS. ACCORDINGLY, QUESTION "A" IS ANSWERED IN THE AFFIRMATIVE.

QUESTION "B" RELATES TO MULTIPLIER FACTOR UNDER 14 U.S.C. 423. AT THE OUTSET IT SHOULD BE MADE CLEAR THAT MIDSHIPMAN SERVICE, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, IS NOT CREDITABLE FOR THE PURPOSES OF COMPUTING THE BASIC PAY OF COMMISSIONED OFFICERS OF THE COAST GUARD, SINCE SUCH SERVICE WAS NOT PERFORMED IN ONE OF THE CATEGORIES MENTIONED IN 37 U.S.C. 205. SEE B-138442, APRIL 22, 1959, AND 43 COMP. GEN. 577 (1964).

SECTION 423 OF TITLE 14, U.S. CODE, PROVIDES AS FOLLOWS:

"423. COMPUTATION OF RETIRED PAY

"THE RETIRED PAY OF A GRADE OR RATING SHALL BE COMPUTED AT THE RATE OF 2- 1/2 PERCENT OF THE SUM OF THE BASIC PAY OF THAT GRADE OR RATING, AND ALL PERMANENT ADDITIONS THERETO, INCLUDING LONGEVITY CREDIT, TO WHICH THE OFFICER OR ENLISTED MAN CONCERNED WAS ENTITLED AT THE TIME OF RETIREMENT, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE THAT MAY BE CREDITED TO HIM UNDER SECTION 1405 OF TITLE 10. *** "

AMONG THE YEARS OF SERVICE WHICH ARE CREDITABLE UNDER SECTION 1405 OF TITLE 10 ARE "YEARS OF ACTIVE SERVICE." THERE BEING NO RESTRICTIONS IN SUCH SECTION CONCERNING THE CATEGORY IN WHICH SUCH SERVICE IS PERFORMED, IT APPEARS THAT ACTIVE SERVICE AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, MAY BE CREDITED AS ACTIVE SERVICE FOR THE PURPOSE OF DETERMINING THE APPLICABLE MULTIPLIER UNDER SECTION 423 OF TITLE 14, U.S.C.

INASMUCH AS RETIREMENT FOR DISABILITY IS GOVERNED BY THE PROVISIONS OF CHAPTER 61 OF TITLE 10, RATHER THAN SECTION 423 OF TITLE 14 AND THE YEARS OF SERVICE USED IN COMPUTING THE RETIRED PAY OF MEMBERS RETIRED UNDER CHAPTER 61 ARE DESCRIBED IN SECTION 1208, THE DISCUSSION RELATING TO SECTION 1208 CONTAINED IN THE ANSWER TO QUESTION "A" IS FOR APPLICATION HERE. QUESTION "B" IS ANSWERED BY STATING THAT ACTIVE SERVICE AS A MIDSHIPMAN IN THE MERCHANT MARINE RESERVE, NAVAL RESERVE, IS CREDITABLE FOR DETERMINING THE MULTIPLIER FACTOR UNDER SECTION 423 AND FOR COMPUTING YEARS OF SERVICE UNDER SECTION 1208.