B-20766, OCTOBER 13, 1941, 21 COMP. GEN. 319

B-20766, OCTOBER 13, 1941, 21 COMP. GEN. 319

RETIREMENT - MILITARY - MILITARY OR NAVAL ACADEMY SERVICE ARMY OFFICERS WHOSE ONLY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS CADET SERVICE IN THE MILITARY OR NAVAL ACADEMY ARE NOT ENTITLED TO THE RETIREMENT BENEFITS OF THE ACTS OF JUNE 13, 1940, AND JULY 29, 1941, SINCE THE GENERAL LANGUAGE "WHO SERVED IN ANY CAPACITY * * * PRIOR TO NOVEMBER 12, 1918," AS USED IN SAID ACTS TO SPECIFY THE CLASS OF ARMY OFFICERS ENTITLED TO THE BENEFITS PROVIDED THEREIN, DOES NOT OVERCOME THE SPECIFIC PROHIBITION IN SECTION 6 OF THE ACT OF AUGUST 24, 1912, AGAINST COUNTING ACADEMY SERVICE "IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.'

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 13, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 25, 1941, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF JUNE 13, 1940 (54 STAT. 379), AND THE ACT OF JULY 29, 1941 ( PUBLIC LAW 190, 77TH CONG.), WHICH CONTAIN PROVISIONS RELATING TO THE RETIREMENT OF OFFICERS OF THE ARMY. EACH STATUTE EMPLOYS THE WORDS "WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," IN DEFINING A CLASS ENTITLED TO ANNUAL RETIRED PAY EQUAL TO75 PERCENTUM OF ACTIVE-DUTY ANNUAL PAY UPON RETIREMENT. THE SPECIFIC QUESTION HAS ARISEN IN THE WAR DEPARTMENT WHETHER SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY OR SERVICE AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY PRIOR TO NOVEMBER 12, 1918, IS SERVICE WITHIN THE MEANING OF THE QUOTED PROVISION OF THE STATUTES.

THE CADETS AT THE UNITED STATES MILITARY ACADEMY HAVE LONG BEEN RECOGNIZED AS A PART OF THE ARMY ( UNITED STATES V. MORTON, 112 U.S. 1, AND STATUTES THEREIN CITED; SEC. 2, ACT JUNE 3, 1916, 39 STAT. 166, AS AMENDED BY ACT JUNE 4, 1920, 41 STAT. 759, 10 U.S.C. 4). HOWEVER, THE COUNTING BY CERTAIN OFFICERS OF THE ARMY OF SERVICE AS A CADET "IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE" HAS BEEN PROHIBITED BY VARIOUS STATUTES FIRST AMONG WHICH WAS THE ACT OF AUGUST 24, 1912 (37 STAT. 594; 10 U.S.C. 684). THE PROHIBITION OF THESE STATUTES EXTENDS TO SERVICE AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY. YOUR OFFICE RECENTLY RECOGNIZED THAT SERVICE AS A CADET IS SERVICE IN THE ARMY IN DECIDING THAT THE ACT OF AUGUST 24, 1912, SUPRA, HAD NO APPLICATION IN THE COMPUTATION OF LONGEVITY PAY FOR AN ENLISTED MAN (1MS. COMP. GEN. A- 69538, MAR. 18, 1936). IN VIEW OF THESE STATUTES AND AUTHORITIES, IT APPEARS THAT THE BROAD TERM "IN ANY CAPACITY" AS USED IN THE STATUTES FIRST MENTIONED EMBRACES SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY FOR THE PURPOSE OF ESTABLISHING MEMBERSHIP IN A CLASS ENTITLED TO THE BENEFITS PROVIDED BY THOSE STATUTES, ALTHOUGH NOT FOR THE PURPOSE OF COMPUTING "THE LENGTH OF SERVICE" OF AN OFFICER, WHICH IS PROHIBITED BY THE ACT OF AUGUST 24, 1912, SUPRA. SERVICE AS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY SEEMS TO BE GOVERNED BY SIMILAR PRINCIPLES. IT IS ALSO PERTINENT TO MENTION THAT WHILE COMMISSIONED SERVICE PRIOR TO NOVEMBER 12, 1918, WAS REQUIRED BY THE ACT OF JULY 31, 1935 (49 STAT. 505), TO ESTABLISH ELIGIBILITY FOR RETIREMENT IN CERTAIN CASES, THE AMENDMENT BY THE ACT OF JUNE 13, 1940, SUPRA, BROADENED THE DEFINITION OF THE ELIGIBLE CLASS TO INCLUDE SERVICE "IN ANY CAPACITY.'

AS THE DETERMINATION OF THE SPECIFIC QUESTION PRESENTED WILL AFFECT THE AMOUNT OF RETIRED PAY OF CERTAIN PERSONS WHOSE CASES ARE NOW PENDING, IT IS REQUESTED THAT AN ADVANCE DECISION IN THE PREMISES BE RENDERED AT THE EARLIEST PRACTICABLE DATE.

THE ACT OF JUNE 13, 1940, 54 STAT. 379, 380, CONTAINS THE FOLLOWING PROVISION:

* * * THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT UNLESS ENTITLED TO RETIRED PAY OF A HIGHER GRADE AS HEREINAFTER PROVIDED, EXCEPT THAT OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE AND OFFICERS WHO ARE UNDER INVESTIGATION OR WHO ARE AWAITING TRIAL BY COURTS MARTIAL OR THE RESULT OF SUCH TRIAL, OR WHOSE CASES ARE PENDING BEFORE COURTS OF INQUIRY SHALL BE RETIRED ONLY WHEN THE APPLICATION FOR RETIREMENT IN EACH CASE HAS BEEN APPROVED BY THE SECRETARY OF WAR: * * *

SECTION 2 OF THE ACT OF JULY 29, 1941, 55 STAT. 606, CONTAINS THE FOLLOWING PROVISION:

* * * OFFICERS REMOVED FROM THE ACTIVE LIST WHO HAVE SEVEN OR MORE COMPLETED YEARS OF COMMISSIONED SERVICE AT THE TIME OF REMOVAL SHALL BE RETIRED WITH RETIREMENT PAY COMPUTED AS FOLLOWS: ANY OFFICER SO RETIRED WHO HAS OVER THIRTY YEARS' SERVICE OR ANY OFFICER SO RETIRED WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT; * * *

SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507 (WHICH WAS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940), CONTAINED A PROVISION AS FOLLOWS:

* * * THAT ANY OFFICER OF THE REGULAR ARMY OR PHILIPPINE SCOUTS BELOW THE GRADE OF MAJOR WHO SERVED AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHOSE APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF THIS SECTION HAS BEEN APPROVED BY THE PRESIDENT SHALL BE RETIRED IN THE GRADE OF MAJOR WITH RETIRED PAY COMPUTED AS HEREINBEFORE PROVIDED AS FOR A MAJOR WITH THE SAME LENGTH OF SERVICE: *

SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 594, IS AS FOLLOWS:

THAT HEREAFTER THE SERVICE OF A CADET WHO MAY HEREAFTER BE APPOINTED TO THE UNITED STATES MILITARY ACADEMY OR TO THE NAVAL ACADEMY SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.

IN THE CASE OF UNITED STATES V. NOCE, 268 U.S. 613, THE SUPREME COURT OF THE UNITED STATES HAD BEFORE IT THE QUESTION WHETHER AN ARMY OFFICER WAS ENTITLED TO HAVE SERVICE IN THE UNITED STATES MILITARY ACADEMY INCLUDED IN THE CALCULATION OF HIS LONGEVITY PAY. IN THAT CASE IT WAS CONTENDED FOR THE APPELLEE, AND THE COURT OF CLAIMS HAD HELD (58 CT.CLS. 688), THAT SO MUCH OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, SUPRA, AS PROHIBITS THE COMPUTING OF SERVICE AS A CADET AT THE MILITARY ACADEMY FOR THE PURPOSE OF LONGEVITY PAY WAS BY NECESSARY IMPLICATION REPEALED BY THE PROVISO TO SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, WHICH IS AS FOLLOWS:

* * * PROVIDED, THAT HEREAFTER LONGEVITY PAY FOR OFFICERS IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES.

THE SUPREME COURT REJECTED THE APPELLEE'S CONTENTION AND REVERSED THE JUDGMENT OF THE COURT OF CLAIMS. MR. CHIEF JUSTICE TAFT, IN DELIVERING THE OPINION OF THE COURT, STATED (268 U.S. 617-619):

THE QUESTION WHETHER SERVICE IN EITHER OF THE ACADEMIES WAS ARMY OR NAVY SERVICE WHICH SHOULD COUNT FOR LONGEVITY PAY AND RETIREMENT WAS A LONG STANDING ISSUE BETWEEN THE OFFICERS OF THE ARMY AND NAVY WHO WERE GRADUATES OF THE TWO ACADEMIES ON THE ONE HAND AND THE OFFICERS WHO WERE NOT GRADUATES AND THE ACCOUNTING OFFICERS OF THE TREASURY ON THE OTHER. THIS IS EVIDENT FROM THE DECISION OF THIS COURT IN UNITED STATES V. MORTON, 112 U.S. 1; AND UNITED STATES V. WATSON, 130 U.S. 80. THE LEGISLATIVE HISTORY OF THE ACT OF 1912 AND THAT OF 1913 SHOWS THAT THE QUESTION WAS MUCH CONTESTED BETWEEN THE TWO HOUSES. THE REPORT OF THE HOUSE COMMITTEE ON MILITARY AFFAIRS ( H.R. 270, 62ND CONGRESS, 2ND SESS.) GIVES AN EXTENDED ARGUMENT AGAINST THE PRACTICE OF COMPUTING CADET SERVICE FOR PAY AND RETIREMENT PURPOSES. IT SAID:

"THE RESULT OF THIS PRACTICE IS THAT A GRADUATE OF THE MILITARY ACADEMY WHO WAS APPOINTED A SECOND LIEUTENANT, AFTER HAVING BEEN EDUCATED FOR THAT APPOINTMENT FOR FOUR OR MORE YEARS WHOLLY AT THE EXPENSE OF THE GOVERNMENT, RECEIVES HIS FIRST 10 PERCENT INCREASE OF PAY AFTER NOT MORE THAN ONE YEAR OF SERVICE AS A COMMISSIONED OFFICER, WHEREAS THE SECOND LIEUTENANT WHO IS APPOINTED FROM CIVIL LIFE, AFTER HAVING BEEN FITTED FOR THE APPOINTMENT WHOLLY AT HIS OWN EXPENSE, MUST SERVE FOR FIVE FULL YEARS AS A COMMISSIONED OFFICER BEFORE HE CAN RECEIVE HIS FIRST 10 PERCENT INCREASE OF PAY. AND THE SAME DISPARITY BETWEEN THE TWO CASES CONTINUES TO THE END.'

AFTER POINTING OUT OTHER DISCRIMINATIONS ARISING FROM THIS PRACTICE, THE REPORT CONTINUES:

"IT IS BUT JUST TO SAY THAT THIS PREPOSTEROUS PRACTICE DID NOT ORIGINATE WITH THE WAR DEPARTMENT. IT WAS THE RESULT OF A DECISION RENDERED BY THE SUPREME COURT OCTOBER 27, 1884 ( MORTON V. UNITED STATES, 112 U.S. 1), TO THE EFFECT THAT THE TIME DURING WHICH A PERSON HAS SERVED AS A CADET IS TO BE REGARDED AS "ACTUAL TIME OF SERVICE IN THE ARMY.'

AFTER REFERRING SPECIFICALLY TO RETIREMENT, THE REPORT SAYS:

"THESE ARE ADDITIONAL DISCRIMINATIONS AGAINST THE CIVILIAN APPOINTEE WHO PAYS FOR HIS OWN PRELIMINARY EDUCATION AND IN FAVOR OF THE GRADUATE OF THE MILITARY ACADEMY WHO IS EDUCATED FOR HIS COMMISSION AT THE EXPENSE OF THE GOVERNMENT.'

IN VIEW OF THIS LONG CONTINUED CONTROVERSY WHICH BEFORE 1912 HAD FINALLY BEEN SETTLED ONLY BY TWO DECISIONS OF THIS COURT, IT IS INCONCEIVABLE THAT THE TWO ACTS OF 1912 AND 1913, NULLIFYING THE EFFECT OF THOSE DECISIONS, AND PASSED AFTER A HEATED STRUGGLE, SHOULD HAVE BEEN REPEALED WITHOUT MENTION OF THE CADET SERVICE IN THE PROVISO NOW SAID TO HAVE WORKED THIS RESULT. AS ALREADY POINTED OUT, THE ACT OF WHICH THIS WAS A PART DETAILED IN ITS REFERENCE TO THE COMMISSIONED OFFICERS, THE NONCOMMISSIONED OFFICERS AND TO THE ENLISTED MEN OF THE VARIOUS SIX SERVICES AFFECTED, AND TO THE PAY AND INCREASES WHICH THEY WERE TO RECEIVE. HAD IT BEEN INTENDED TO INCREASE THE "FOGEY" PAY, AS THE LONGEVITY PAY IS CALLED, FOR ONLY A PART OF THE COMMISSIONED OFFICERS OF THE ARMY AND ONLY A PART OF THE COMMISSIONED OFFICERS OF THE NAVY, AND ONLY A PART OF THE COMMISSIONED OFFICERS OF THE MARINE CORPS IN SUCH A SPECIFIC ACT, THE FAVOR THUS TO BE CONFERRED UPON THEM WOULD CERTAINLY HAVE BEEN SET FORTH IN LANGUAGE WHOSE MEANING COULD NOT BE MISTAKEN.

IT IS, INDEED, VERY DIFFICULT TO SAY THAT THERE IS ANY REAL INCONSISTENCY BETWEEN THE PROVISO OF 1920 AND THE ACTS OF 1912 AND 1913. IT IS SUPPOSED TO BE SHOWN IN THE USE OF THE WORDS "ANY OR ALL THE SERVICES" AND IT IS SAID THAT AS "ANY" MAY MEAN ONE OR MORE, IT MAY APPLY TO THE ARMY ALONE, AND CAN ONLY BE SATISFIED BY MAKING IT APPLY TO THE TOTAL SERVICE IN THE ARMY ALONE AND MUST THEREFORE MEAN SERVICE IN THE ARMY AS CONSTRUED BY THIS COURT IN THE MORTON CASE AND THE WATSON CASE, IN WHICH IT WAS HELD THAT, UNDER THEN EXISTING LEGISLATION, SERVICE IN THE MILITARY ACADEMY WAS SERVICE IN THE ARMY. THIS, IT SEEMS TO US, IS A STRAINED METHOD OF FIRST FINDING AN INCONSISTENCY, BY NO MEANS CLEAR, IF IT EXISTS AT ALL, AND THEN ERECTING IT INTO AN IMPLIED REPEAL. IMPLIED REPEALS ARE NOT FAVORED. UNITED STATES V. GREATHOUSE, 166 U.S. 601, 605; FROST V. WENIE, 157 U.S. 46, 58; UNITED STATES V. YUGINOVICH, 256 U.S. 450, 463.

IN YOUR LETTER IT IS SUGGESTED THAT THE TERM "IN ANY CAPACITY" AS USED IN THE ACTS OF JUNE 13, 1940, 54 STAT. 379, AND JULY 29, 1941, 55 STAT. 606, APPEARS TO EMBRACE "SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY FOR THE PURPOSE OF ESTABLISHING MEMBERSHIP IN A CLASS ENTITLED TO THE BENEFITS PROVIDED BY THOSE STATUTES, ALTHOUGH NOT FOR THE PURPOSE OF COMPUTING "THE LENGTH OF SERVICE" OF AN OFFICER, WHICH IS PROHIBITED BY THE ACT OF AUGUST 24, 1912.' FROM THE HISTORY OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS EXPLAINED IN THE ABOVE QUOTED OPINION OF THE SUPREME COURT, IT IS HARDLY TO BE DOUBTED THAT THE CONGRESS INTENDED BY THAT SECTION NOT ONLY TO PROVIDE AGAINST THE INCLUSION OF SERVICE AT THE MILITARY AND NAVAL ACADEMIES IN THE COMPUTATION FOR ANY PURPOSE OF THE LENGTH OF SERVICE OF AN ARMY OFFICER, BUT ALSO THAT SERVICE AT THE ACADEMIES SHOULD BE EXCLUDED IN DETERMINING WHETHER AN ARMY OFFICER HAS HAD SERVICE WITHIN THE MEANING OF LAWS SUCH AS THE ACTS OF JUNE 13, 1940, AND JULY 29, 1941, CONFERRING SUBSTANTIAL BENEFITS UPON OFFICERS WHO HAVE HAD SERVICE IN THE MILITARY OR NAVAL FORCES DURING A SPECIFIED PERIOD. OTHER WORDS, THE TERM "LENGTH OF SERVICE," AS USED IN SECTION 6, IS SYNONYMOUS WITH "SERVICE.'

FURTHERMORE, UNDER ESTABLISHED RULES OF STATUTORY CONSTRUCTION, IT MAY NOT BE INFERRED THAT THE CONGRESS INTENDED THE BROAD GENERAL LANGUAGE OF THE ACTS OF JUNE 13, 1940, AND JULY 29, 1941, TO OPERATE AS A MODIFICATION OF THE SPECIFIC INHIBITION OF SECTION 6 OF THE 1912 ACT. SUCH A CONCLUSION WOULD BE REPUGNANT TO THE REASONING OF THE SUPREME COURT IN THE NOCE CASE, SUPRA, AND IN NUMEROUS OTHER DECISIONS, INCLUDING UNITED STATES V. JACKSON, 302 U.S. 628, WHERE THE COURT SAID:

REPEALS BY IMPLICATIONS ARE NOT FAVORED. THE LAW IS NOT TO BE CONSTRUED AS IMPLIEDLY REPEALING A PRIOR LAW UNLESS NO OTHER REASONABLE CONSTRUCTION CAN BE APPLIED.

THE FACT THAT THE DATE NOVEMBER 12, 1918, IS SPECIFIED IN THE ACTS OF JUNE 13, 1940, AND JULY 29, 1941, IS AN INDICATION THAT THE CONGRESS INTENDED TO PLACE IN A SELECT CLASS FOR RETIREMENT PURPOSES, ARMY OFFICERS WHO HAD COMMISSIONED OR ENLISTED SERVICES IN THE ARMED FORCES DURING THE WORLD WAR PERIOD, AND PRIOR TO THE SIGNING OF THE ARMISTICE ON NOVEMBER 11, 1918, BUT THERE IS NO SUBSTANTIAL REASON FOR CONCLUDING THAT THE CONGRESS INTENDED TO OVERCOME THE INHIBITION OF THE 1912 ACT AND INCLUDE IN THIS SELECT CLASS OFFICERS WHOSE ONLY SERVICE PRIOR TO THE SIGNING OF THE ARMISTICE WAS AT THE MILITARY ACADEMY OR AT THE NAVAL ACADEMY. THIS IS MADE APPARENT BY A COMPARISON OF THE PROVISION IN THE ACT OF JUNE 13, 1940, WITH THE PRIOR PROVISION IN SECTION 5 OF THE ACT OF JULY 31, 1935. YOUR SPECIFIC QUESTION, AS PRESENTED IN THE FIRST PARAGRAPH OF YOUR LETTER, IS ANSWERED IN THE NEGATIVE.