B-221944.2, Mar 24, 1989

B-221944.2: Mar 24, 1989

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Krueger: Returned is your file Z-2854796 relating to the claim of Lieutenant Commander Karl G. Lieutenant Commander Baer was initially commissioned in the Navy Reserve on January 28. At that time a medical officer of the uniformed services was entitled to a constructive service credit for basic pay purposes of 4 years service for medical school and 1 year for internship under 37 U.S.C. The provisions of law authorizing constructive service credit were repealed effective September 15. Lieutenant Commander Baer was reappointed a medical officer in the Navy Reserve. He applied for the constructive service credit but was refused by the Navy on the grounds that the laws authorizing such credit had been repealed and that he was not covered by the applicable savings provision of DOPMA since he was not in the Navy on the effective date of the act.

B-221944.2, Mar 24, 1989

MILITARY PERSONNEL - Pay - Additional pay - Service credits - Constructive service - Education DIGEST: The Defense Officer Personnel Management Act, Pub.L. No. 96-513, December 12, 1980, 94 Stat. 2904, repealed 37 U.S.C. Sec. 205(a)(7) and (8), which had authorized constructive longevity of service credit for medical and dental officers of the uniformed services based on their years of professional education. The statute contained a savings clause that preserved the credit for service members who had been credited with constructive service upon an original appointment. The savings clause may be extended to those officers who had been discharged from service after receiving the constructive credit and later reappointed in the service after the effective date of the Act. Constructive Service Credit - LCDR Karl G. Baer, USNR - Z-2854796; B-221944.2-0.M.

Senior Associate Director, Claims Group (GGD) - Oliver W. Krueger:

Returned is your file Z-2854796 relating to the claim of Lieutenant Commander Karl G. Baer, U.S. Navy Reserve, for constructive service credit formerly authorized under 37 U.S.C. Sec. 205. For the following reasons Lieutenant Commander Baer's claim may be allowed.

Lieutenant Commander Baer was initially commissioned in the Navy Reserve on January 28, 1969. At that time a medical officer of the uniformed services was entitled to a constructive service credit for basic pay purposes of 4 years service for medical school and 1 year for internship under 37 U.S.C. Sec. 205(a)(7) and (8). He received this service credit in the computation of his basic pay until his discharge from the Navy Reserve on August 19, 1980. With the enactment of the Defense Officer Personnel Management Act (DOPMA), Pub.L. No. 96-513, December 12, 1980, 94 Stat. 2904, the provisions of law authorizing constructive service credit were repealed effective September 15, 1981.

In 1984, Lieutenant Commander Baer was reappointed a medical officer in the Navy Reserve. He applied for the constructive service credit but was refused by the Navy on the grounds that the laws authorizing such credit had been repealed and that he was not covered by the applicable savings provision of DOPMA since he was not in the Navy on the effective date of the act.

The Navy applied section 625(b) of DOPMA to Lieutenant Commander Baer's circumstances and correctly concluded that he was not entitled to the service credit under that provision. Section 625(b) provides as follows:

"(b)(l) Any officer who on the effective date of the Act is an officer of the Army or Navy in the Medical or Dental Corps of his armed force ... is entitled to include in the years of service creditable to him for the computation of basic pay and retired pay the years of service creditable to him for such purposes under clauses (7) and (8) of section 205(a) of title 37, United States Code, as in effect on the day before the effective date of this act."

Since Lieutenant Commander Baer was not an officer in the Medical Corps on the effective date of the act, he is not entitled to the service credit saved under this section.

Although this provision is specific in dealing with constructive service, it is our view that section 625(a)(1) of DOPMA is controlling in Lieutenant Commander Baer's situation. That section provides as follows:

"625.(a) The amendments made by this Act do not affect the crediting of years of service to any person who on the day before the effective date of this Act-

(1) had been credited with years of service upon an original appointment as an officer or after such an appointment; or. ...."

The plain language of this section indicates that it was Congress' intent to preserve service credit for any person who had received credit as an officer prior to the enactment of DOPMA.

Lieutenant Commander Baer had been credited with constructive service on his original appointment on the day before the effective date of the act. Upon reappointment, he became entitled to credit for his previous actual and constructive service. Accordingly, his claim should be allowed.