B-180974, JAN 17, 1975, 54 COMP GEN 603

B-180974, JAN 17, 1975, 54 COMP GEN 603

PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - RETIRED PAY SERVICE AS CADET-MIDSHIPMAN, MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, AT THE UNITED STATES MERCHANT MARINE CADET BASIC SCHOOL, PASS CHRISTIAN, MISSISSIPPI, FROM MARCH 1945 UNTIL DECEMBER 1946, IS RESERVE SERVICE FOR PURPOSES OF 10 U.S.C. 1331(C) AND, THEREFORE, A PERSON SO ATTENDING MUST HAVE PERFORMED "WARTIME SERVICE" AS DEFINED IN THAT SUBSECTION IN ORDER TO BE ELIGIBLE FOR RETIRED PAY BASED ON NON REGULAR SERVICE UNDER CHAPTER 67 OF TITLE 10, UNITED STATES CODE.

IN THE MATTER OF ELIGIBILITY FOR RETIRED PAY, JANUARY 17, 1975:

THIS ACTION IS IN RESPONSE TO A LETTER FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), REQUESTING AN ADVANCE DECISION ON THE QUESTION AS TO WHETHER ATTENDANCE AS A MIDSHIPMAN AT A MERCHANT MARINE SCHOOL FROM MARCH 1945 UNTIL DECEMBER 1946 IS TO BE CONSIDERED AS SERVICE IN A RESERVE COMPONENT OF AN ARMED FORCE, WHICH WOULD REQUIRE THE PERSON SO ATTENDING TO PERFORM THE REQUISITE WARTIME SERVICE AS PROVIDED IN SECTION 1331(C), TITLE 10, U.S. CODE, IN ORDER FOR SUCH INDIVIDUAL TO BE ELIGIBLE FOR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10. THE SUBMISSION HAS BEEN ASSIGNED SUBMISSION NUMBER SS-A-1213 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION STATES THAT THE COMMANDER, FIRST UNITED STATES ARMY, QUESTIONS THE ELIGIBILITY OF LIEUTENANT COLONEL PAUL R.M. MILLER TO RECEIVE RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S.C. IT APPEARS THAT THE OFFICER, CURRENTLY A COMMISSIONED MEMBER OF THE ARMY RESERVE IN AN ACTIVE STATUS, WAS APPOINTED A MIDSHIPMAN, MERCHANT MARINE RESERVE. UNITED STATES NAVAL RESERVE, ON MARCH 14, 1945, TO ATTEND THE MERCHANT MARINE CADET BASIC SCHOOL, PASS CHRISTIAN, MISSISSIPPI, AND ON DECEMBER 2, 1946, WAS DISCHARGED THEREFROM PRIOR TO THE NORMAL DATE OF GRADUATION. ENLISTED IN THE UNITED STATES NAVAL RESERVE ON SEPTEMBER 15, 1947, AND WAS DISCHARGED THEREFROM ON JULY 26, 1949, TO ACCEPT A COMMISSION IN THE UNITED STATES ARMY RESERVE; HOWEVER, THE SUBMISSION INDICATES THAT HE HAS PERFORMED NO EXTENDED ACTIVE DUTY DURING HIS SERVICE IN THE NAVAL RESERVE OR ARMY RESERVE.

THE SUBMISSION STATES THAT AN OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, DATED JUNE 13, 1973, STATED THAT SERVICE AS A MIDSHIPMAN, MERCHANT MARINE RESERVE, UNITED STATES NAVAL RESERVE, WAS CONSIDERED SERVICE AS A RESERVE OF AN ARMED FORCE WITHIN THE MEANING OF SECTION 1331(C), TITLE 10, U.S.C. HOWEVER, IT WAS FURTHER STATED THEREIN THAT A PERSON WITH SUCH SERVICE BEFORE AUGUST 16, 1945, WOULD NOT BE ENTITLED TO RETIRED PAY UNDER PROVISIONS OF CHAPTER 67, TITLE 10, U.S. CODE, UNLESS HE HAD THE REQUISITE WARTIME SERVICE AS PROVIDED IN SECTION 1331(C) OF THE SAME TITLE.

THE SUBMISSION GOES ON TO STATE THAT AN OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, DATED MARCH 24, 1955, HELD THAT IF A MERCHANT MARINE CADET WAS NOT CALLED TO ACTIVE DUTY IN THE NAVAL RESERVE, HE WOULD BE UNDER THE JURISDICTION OF THE UNITED STATES MARITIME COMMISSION WHICH WOULD NOT CONSTITUTE MEMBERSHIP IN A RESERVE COMPONENT. AS A RESULT, SUCH A PERSON WOULD NOT BE PRECLUDED FROM QUALIFYING FOR RETIREMENT PAY UNDER TITLE III, SUBSECTION 302(A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1087, AS AMENDED, AND PRESENTLY CODIFIED AS 10 U.S.C. 1331.

WITH REGARD TO THE ABOVE, THE SUBMISSION MAKES REFERENCE TO 38 COMP. GEN. 797 (1959), WHEREIN WE HELD THAT THE TIME DURING WHICH CADETS AT THE UNITED STATES MERCHANT MARINE AND STATE MARITIME ACADEMIES HELD APPOINTMENTS AS MIDSHIPMEN, MERCHANT MARINE RESERVE, WAS NOT CREDITABLE IN THE CASE OF OFFICERS FOR LONGEVITY PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, NOR WAS IT CREDITABLE FOR BASIC PAY PURPOSES UNDER THE CAREER COMPENSATION ACT OF 1949. WE SAID, HOWEVER, THAT SUCH SERVICE MAY BE INCLUDED BY ENLISTED PERSONNEL IN THE COMPUTATION OF THEIR YEARS OF SERVICE FOR BASIC PAY PURPOSES EVEN THOUGH THE NAVAL RESERVE STATUS IS INACTIVE AND EXISTS CONCURRENTLY WITH HIS STATUS AS A CADET.

ADDITIONAL REFERENCE IS MADE TO 47 COMP. GEN. 221 (1967), WHEREIN WE HELD THAT INACTIVE SERVICE AS A RESERVE MIDSHIPMAN CONSTITUTES "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE" WITHIN THE MEANING OF THE PHRASE CONTAINED IN CLAUSE (4), SECTION 1333 OF TITLE 10, U.S.C. THEREFORE, WE DECIDED THAT INACTIVE RESERVE MIDSHIPMAN SERVICE PRIOR TO JULY 1, 1949, SHOULD BE CREDITABLE SERVICE IN ESTABLISHING THE MULTIPLIER FACTOR FOR RETIRED PAY IN FORMULA NO. 3, 10 U.S.C. 1401.

CONSEQUENTLY, IN VIEW OF THE CONFLICT IN THE JUDGE ADVOCATE GENERAL OPINIONS, A DECISION IS REQUESTED AS TO WHETHER ATTENDANCE AS A MIDSHIPMAN AT THE UNITED STATES MERCHANT MARINE CADET BASIC SCHOOL, PASS CHRISTIAN, MISSISSIPPI, FROM MARCH 1945 UNTIL DECEMBER 1946 IS "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE" WHICH WOULD REQUIRE THE PERSON SO ATTENDING TO PERFORM THE "WARTIME SERVICE" (ACTIVE DUTY) AS PROVIDED IN SECTION 1331(C), TITLE 10, U.S. CODE, IN ORDER TO BE ELIGIBLE FOR RETIRED PAY FOR NON-REGULAR SERVICE UNDER CHAPTER 67 OF THE SAME TITLE (10 U.S.C. 1331-1337).

SECTION 1331 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART:

(C) NO PERSON WHO, BEFORE AUGUST 16, 1945, WAS A RESERVE OF AN ARMED FORCE, OR A MEMBER OF THE ARMY WITHOUT COMPONENT OR OTHER CATEGORY COVERED BY SECTION 1332(A)(1) OF THIS TITLE EXCEPT A REGULAR COMPONENT, IS ELIGIBLE FOR RETIRED PAY UNDER THIS CHAPTER, UNLESS HE PERFORMED ACTIVE DUTY AFTER APRIL 5, 1917, AND BEFORE NOVEMBER 12, 1918, OR AFTER SEPTEMBER 8, 1940, AND BEFORE JANUARY 1, 1947, OR UNLESS HE PERFORMED ACTIVE DUTY (OTHER THAN FOR TRAINING) AFTER JUNE 26, 1950, AND BEFORE JULY 28, 1953.

IN OUR DECISION OF AUGUST 11, 1971, 51 COMP. GEN. 91, CONCERNING A FORMER MEMBER OF A RESERVE COMPONENT AND HIS ENTITLEMENT TO RECEIVE RETIRED PAY BASED UPON THE NON-REGULAR RETIREMENT LAW PRESENTLY IN EFFECT, WE STATED THAT AT THE TIME THE 1948 LAW WAS FIRST ENACTED CONGRESS STIPULATED THAT FOR THOSE INDIVIDUALS WHO WERE MEMBERS OF A RESERVE COMPONENT PRIOR TO AUGUST 16, 1945, ONLY THOSE WHO SERVED ON ACTIVE DUTY DURING WORLD WAR I OR WORLD WAR II COULD BECOME ELIGIBLE FOR RETIRED PAY ON THE BASIS OF NON- REGULAR SERVICE. FOR THOSE WHO WERE RESERVES OF AN ARMED FORCE BEFORE AUGUST 16, 1945, AND WHO HAD NO SUCH SERVICE, THE ONLY MANNER IN WHICH THEY COULD SUBSEQUENTLY BECOME ENTITLED TO RETIRED PAY BENEFITS FOR NON- REGULAR SERVICE (TITLE III OF THE 1948 ACT AND CHAPTER 67 OF THE CURRENT TITLE 10, U.S. CODE) WOULD BE AS THE RESULT OF ACTIVE SERVICE IN ONE OF THE LATER PERIODS OF WAR OR NATIONAL EMERGENCY ADDED BY SUBSEQUENT LEGISLATION. WE CONCLUDED THEREIN THAT, IN THE ABSENCE OF THAT ACTIVE SERVICE, NO RIGHT TO RETIRED PAY EXISTED UNDER THE PRESENT LAW. THE RESTRICTION ON RECEIPT OF RETIRED PAY, HOWEVER, DOES NOT APPLY TO ANY PERSON WHO WAS NOT A RESERVE OF AN ARMED FORCE BEFORE AUGUST 16, 1945.

IN OUR DECISION OF NOVEMBER 25, 1969, 49 COMP. GEN. 356, INVOLVING A CADET-MIDSHIPMAN, MMR, USNR, WHO ATTENDED THE UNITED STATES MERCHANT MARINE CADET SCHOOL AT SAN MATEO, CALIFORNIA, FROM AUGUST 1943 UNTIL APRIL 1945, IN ANSWER TO QUESTION 2, WE HELD THAT WHILE ATTENDANCE AT THE SCHOOL MAY NOT BE CREDITED IN COMPUTING YEARS OF SERVICE ON RETIREMENT UNDER CHAPTER 67 OF TITLE 10, U.S. CODE, SUCH A CADET MIDSHIPMAN IS TO BE CREDITED FOR THAT SERVICE UNDER 10 U.S.C. 1333(4), AS "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT ***."

IN ARRIVING AT THAT DECISION, WE MADE REFERENCE TO TITLE 46, CODE OF FEDERAL REGULATIONS, CUMULATIVE SUPPLEMENT, CHAPTER III, PART 310 AND THE 1945 AND 1946 SUPPLEMENTS THERETO, WHICH GOVERNED THE APPOINTMENT AND TRAINING OF ENROLLEES IN THE MERCHANT MARINE, INCLUDING CADETS IN THE U.S. MERCHANT MARINE CADET CORPS WHO ATTENDED DIFFERENT ACADEMIES AND SCHOOLS THERE MENTIONED, WHICH INCLUDED BOTH THE UNITED STATES MERCHANT MARINE CADET SCHOOL, SAN MATEO, CALIFORNIA, AND THE UNITED STATES MERCHANT MARINE CADET SCHOOL AT PASS CHRISTIAN, MISSISSIPPI, AND PROVIDED IN PART IN SECTION 310.2 OF PART 310:

(C) ALL CADETS AT STATE MARITIME ACADEMIES WILL BE ENROLLED IN THE MARITIME SERVICE, AND IN THE U.S. NAVAL RESERVE, AS MIDSHIPMEN, MERCHANT MARINE RESERVE (INACTIVE) ***.

SINCE THE MEMBER, WHILE ATTENDING THE UNITED STATES MERCHANT MARINE CADET SCHOOL, PASS CHRISTIAN, MISSISSIPPI, FROM MARCH 1945 UNTIL DECEMBER 1946, WAS REQUIRED TO HAVE A STATUS AS A MEMBER OF THE UNITED STATES NAVAL RESERVE, SUCH SERVICE BEING PROPERLY CREDITABLE UNDER THE PROVISIONS OF 10 U.S.C. 1333(4), THE RESTRICTION IMPOSED BY 10 U.S.C. 1331(C) WHICH REQUIRES THE MEMBER TO HAVE HAD THE REQUISITE "WARTIME SERVICE" MUST BE APPLIED. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.