B-41492, JULY 13, 1944, 24 COMP. GEN. 23

B-41492: Jul 13, 1944

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OR COMMISSIONED PERSONNEL OF THE COAST GUARD TO COUNT AS DOUBLE TIME TOWARD RETIREMENT SERVICE FOR WHICH DOUBLE-TIME CREDIT IS AUTHORIZED BY 10 U.S.C. 956 AND SECTION 17 OF THE ACT OF MARCH 3. REQUESTING DECISION WHETHER SERVICE FOR WHICH DOUBLE TIME CREDIT IS AUTHORIZED UNDER SECTION 956. IS ENTITLED TO COUNT AS DOUBLE TIME. FROM WHICH HE WAS DISCHARGED ON MARCH 24. BE PLACED ON THE RETIRED LIST THEREBY CREATED WITH THE RANK HELD BY HIM AT THE DATE OF RETIREMENT WITH 75 PERCENTUM OF THE PAY AND ALLOWANCES OF THE RANK OR RATING UPON WHICH HE WAS RETIRED. IT WAS PROVIDED: THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY. ARE HEREBY REPEALED. THE PROVISION FOR ALLOWANCES WAS REPEALED BY SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942.

B-41492, JULY 13, 1944, 24 COMP. GEN. 23

RETIREMENT - COAST GUARD PERSONNEL - DOUBLE-TIME CREDIT THE AUTHORITY IN SECTION 3 OF THE ACT OF JANUARY 28, 1915--- RELATING TO RETIREMENT OF COAST GUARD PERSONNEL--- TO COUNT ALL "CREDITABLE SERVICE" IN THE ARMY, NAVY OR MARINE CORPS IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE DOES NOT INCLUDE AUTHORITY FOR ENLISTED, WARRANT, OR COMMISSIONED PERSONNEL OF THE COAST GUARD TO COUNT AS DOUBLE TIME TOWARD RETIREMENT SERVICE FOR WHICH DOUBLE-TIME CREDIT IS AUTHORIZED BY 10 U.S.C. 956 AND SECTION 17 OF THE ACT OF MARCH 3, 1899, FOR RETIREMENT IN THE ARMY AND NAVY, RESPECTIVELY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 13, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 17, 1944, REQUESTING DECISION WHETHER SERVICE FOR WHICH DOUBLE TIME CREDIT IS AUTHORIZED UNDER SECTION 956, TITLE 10, AND SECTION 432, TITLE 34, U.S. CODE, MAY BE COUNTED AS DOUBLE TIME IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT OF A COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MAN OF THE COAST GUARD. ALSO, YOU REQUEST DECISION WHETHER LIEUTENANT COMMANDER EARLE S. FLETCHER, USCG, IS ENTITLED TO COUNT AS DOUBLE TIME, IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT, ENLISTED SERVICE IN THE ARMY IN THE PHILIPPINE ISLANDS UNDER CIRCUMSTANCES STATED IN YOUR LETTER AS FOLLOWS:

THE SERVICE RECORD OF LIEUTENANT COMMANDER FLETCHER SHOWS THAT HE SERVED IN THE ARMY IN THE PHILIPPINE ISLANDS FROM DECEMBER 3, 1911, TO FEBRUARY 15, 1914, UNDER AN ENLISTMENT DATED MARCH 24, 1911, FROM WHICH HE WAS DISCHARGED ON MARCH 24, 1914; THAT HE ENLISTED IN THE COAST GUARD ON MAY 9, 1921, AND NOW HOLDS A PERMANENT STATUS OF CHIEF WARRANT OFFICER, SERVING AS A COMMISSIONED OFFICER UNDER TEMPORARY APPOINTMENT; THAT AS OF JANUARY 31, 1944, HIS TOTAL SERVICE AGGREGATED 25 YEARS, 1 MONTH, 6 DAYS, COUNTING AS STRAIGHT TIME HIS PRIOR ARMY ENLISTED SERVICE IN THE PHILIPPINE ISLANDS, WHICH AMOUNTS TO 2 YEARS, 2 MONTHS, 13 DAYS.

SECTION 17 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1008, PROVIDED THAT WHEN AN ENLISTED MAN OR APPOINTED PETTY OFFICER HAS SERVED AS SUCH THIRTY YEARS IN THE UNITED STATES NAVY HE SHOULD, BY MAKING APPLICATION TO THE PRESIDENT, BE PLACED ON THE RETIRED LIST THEREBY CREATED WITH THE RANK HELD BY HIM AT THE DATE OF RETIREMENT WITH 75 PERCENTUM OF THE PAY AND ALLOWANCES OF THE RANK OR RATING UPON WHICH HE WAS RETIRED, WITH A PROVISO AS FOLLOWS:

* * * THAT IF SAID ENLISTED MAN OR APPOINTED PETTY OFFICER HAD ACTIVE SERVICE IN THE NAVY OR IN THE ARMY OR MARINE CORPS, EITHER AS VOLUNTEER OR REGULAR, DURING THE CIVIL OR SPANISH-AMERICAN WAR, SUCH WAR SERVICE SHALL BE COMPUTED AS DOUBLE TIME IN COMPUTING THE THIRTY YEARS NECESSARY TO ENTITLE HIM TO BE RETIRED: AND PROVIDED FURTHER, THAT APPLICANTS FOR RETIREMENT UNDER THIS SECTION SHALL, UNLESS PHYSICALLY DISQUALIFIED FOR SERVICE, BE AT LEAST FIFTY YEARS OF AGE.

THE ACT OF JUNE 22, 1906, 34 STAT. 451, PROVIDES THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME FOR THE RETIREMENT OF PETTY OFFICERS AND ENLISTED MEN OF THE NAVY ALL SERVICE IN THE ARMY, NAVY OR MARINE CORPS SHOULD BE CREDITED. THEREAFTER, BY THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 1218 (10 U.S.C. 947; 34 ID. 431), IT WAS PROVIDED:

THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT: PROVIDED, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED.

SEC. 2. THAT ALL ACTS AND PARTS OF ACTS, SO FAR AS THEY CONFLICT WITH THE PROVISIONS OF THIS ACT, ARE HEREBY REPEALED.

THE PROVISION FOR ALLOWANCES WAS REPEALED BY SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 369.

BY A PROVISO IN SECTION 3 OF THE ACT OF JUNE 4, 1920, 41 STAT. 834, 835, IT WAS PROVIDED THAT, FOR PURPOSES OF COMPUTING LONGEVITY PAY AND RETIREMENT PRIVILEGES OF OFFICERS AND ENLISTED MEN OF THE NAVY, ALL CREDITABLE SERVICE IN THE COAST GUARD AND FORMER REVENUE-CUTTER SERVICE SHOULD BE COUNTED. THE ACT OF MARCH 2, 1907, BY ITS TERMS, IS APPLICABLE ONLY TO ENLISTED MEN OF THE ARMY, NAVY AND MARINE CORPS AND, STANDING ALONE, OF COURSE, IS NO AUTHORITY FOR COUNTING OTHER THAN ACTUAL SERVICE IN THE SERVICES MENTIONED, IN COMPUTING THE NECESSARY THIRTY YEARS' TIME FOR PURPOSES OF RETIREMENT THEREUNDER.

THE PROVISIONS OF LAW RELATING TO THE CREDITING OF CERTAIN FOREIGN SERVICE IN THE ARMY AS DOUBLE TIME, IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT OF SOLDIERS, WERE CONTAINED IN ARMY APPROPRIATION ACTS AND ARE CODIFIED UNDER SECTION 956 OF TITLE 10, U.S. CODE, AS FOLLOWS:

IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT, CREDIT SHALL BE GIVEN SOLDIERS FOR DOUBLE THE TIME OF THEIR ACTUAL SERVICE IN CHINA, PUERTO RICO, CUBA, THE PHILIPPINE ISLANDS, THE ISLAND OF GUAM, ALASKA, AND PANAMA, BUT DOUBLE CREDIT SHALL NOT BE GIVEN FOR SERVICE RENDERED SUBSEQUENT TO APRIL 23, 1904, IN PUERTO RICO OR THE TERRITORY OF HAWAII, NOR SHALL CREDIT FOR DOUBLE TIME FOR FOREIGN SERVICE BE GIVEN TO THOSE WHO ENLISTED AFTER AUGUST 24, 1912: PROVIDED, THAT NOTHING HEREIN SHALL BE SO CONSTRUED AS TO FORFEIT CREDIT FOR DOUBLE TIME ACCRUED PRIOR TO AUGUST 24, 1912.

THE STATUTORY PROVISIONS CONFERRING A RIGHT UPON ENLISTED MEN OF THE ARMY AND NAVY TO COUNT CERTAIN PRESCRIBED SERVICE AS DOUBLE TIME FOR PURPOSES OF RETIREMENT ARE EXCLUSIVE AND, PRESUMABLY, ARE INTENDED TO OPERATE ONLY WITH RESPECT TO THE PARTICULAR SERVICE UPON WHICH SUCH BENEFITS WERE BESTOWED. INDEED, WHEN PROVISION WAS MADE BY THE ACT OF JUNE 30, 1941, 55 STAT. 394, FOR THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY FOR DISABILITY UPON COMPLETION OF TWENTY YEARS OR MORE OF MILITARY SERVICE, SPECIFIC PROVISION WAS REQUIRED TO COUNT OTHER THAN ACTUAL ARMY SERVICE. THIS IS EVIDENCED BY SECTION 5 OF THAT ACT, 55 STAT. 395, IN WHICH IT WAS PROVIDED:

ALL PERIODS OF SERVICE WHICH ARE NOW COUNTED UNDER PROVISIONS OF EXISTING LAW IN COMPUTING THE TIME NECESSARY TO ENABLE AN ENLISTED MAN TO RETIRE UPON COMPLETION OF THIRTY YEARS OF SERVICE SHALL BE CREDITED IN THE COMPUTATION OF THE TWENTY YEARS OF SERVICE NECESSARY TO CONFER ELIGIBILITY FOR RETIREMENT HEREUNDER.

THE ACT OF MARCH 2, 1907, DID NOT AFFECT THE SPECIFIC DOUBLE TIME PROVISION WITH RESPECT TO THE RETIREMENT AFTER THIRTY YEARS' SERVICE OF ENLISTED MEN OF THE ARMY, NAVY AND MARINE CORPS, BUT NO PROVISION OF LAW HAS BEEN FOUND EXTENDING SIMILAR BENEFITS TO ENLISTED MEN OF THE COAST GUARD ENTITLED TO RETIREMENT UPON THE COMPLETION OF THIRTY YEARS' SERVICE UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JANUARY 28, 1915. SAID SECTION 3 (38 STAT. 801, 802) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE PROVISIONS OF SECTION THREE, FOUR, FIVE, SIX, SEVEN, EIGHT, AND NINE OF THE ACT OF APRIL TWELFTH, NINETEEN HUNDRED AND TWO, IN SO FAR AS THEY PROVIDE FOR THE RETIREMENT OF OFFICERS OF THE REVENUE-CUTTER SERVICE, ARE HEREBY EXTENDED TO INCLUDE COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE COAST GUARD. A COMMISSIONED OFFICER, WARRANT OFFICER, OR ENLISTED MAN WHO HAS SERVED THIRTY YEARS, UPON SUITABLE APPLICATION AND AS TO COMMISSIONED OFFICERS UPON APPROVAL BY THE SECRETARY OF THE TREASURY, MAY BE RETIRED FROM ACTIVE SERVICE AND RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY, SALARY AND INCREASE OF HIS GRADE OR RATING: * * * PROVIDED FURTHER, THAT IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE ALL CREDITABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, REVENUE-CUTTER SERVICE, AND LIFE-SAVING SERVICE SHALL BE INCLUDED, COUNTING PART OF A YEAR AS A WHOLE YEAR WHERE STATIONS WERE OPERATED ONLY PART OF A YEAR * *

UNDER THE SAME ACT ENLISTED MEN OF THE COAST GUARD BECAME ENTITLED TO RETIREMENT PRIVILEGES FOR DISABILITY WITHOUT REGARD TO LENGTH OF SERVICE BY VIRTUE OF EXTENSION TO THEM OF THE BENEFITS OF RETIREMENT CONTAINED IN THE ACT OF APRIL 12, 1902, 32 STAT. 100, WHICH WAS APPLICABLE TO OFFICERS, ONLY, OF THE FORMER REVENUE-CUTTER SERVICE. ALSO, FOR PURPOSES OF COMPUTING LENGTH OF SERVICE, A FRACTIONAL PART OF A YEAR WAS COUNTED AS A WHOLE YEAR WHERE STATIONS OF THE LIGHTHOUSE SERVICE WERE OPERATED ONLY PART OF A YEAR. IT SEEMS CLEAR, THEREFORE, IN VIEW OF THESE PRIVILEGES WHICH APPLY EXCLUSIVELY TO THE COAST GUARD, THAT THE COAST GUARD IS NOT CONTENDING THAT SUCH PERSONNEL ARE ASSIMILATED FOR RETIREMENT PURPOSES TO THE RETIREMENT PROVISIONS APPLICABLE TO THE ARMY AND NAVY, BUT IS RELYING, FOR THE PURPOSE OF COUNTING THE DOUBLE TIME CONFERRED UPON ENLISTED MEMBERS OF THE LATTER SERVICES, UPON THAT PROVISION OF THE ACT OF JANUARY 28, 1915, SUPRA, WHICH PROVIDES: "THAT IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE ALL CREDITABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS * * * SHALL BE INCLUDED.' THERE CANNOT BE ASCRIBED TO THE LANGUAGE OF SAID PROVISION A MEANING WHICH LEGALLY JUSTIFIES A CONCLUSION THAT MEMBERS OF THE COAST GUARD THEREBY SECURE THE BENEFIT OF DOUBLE TIME SPECIFICALLY AUTHORIZED IN THE CASE OF ENLISTED MEN IN THE ARMY AND NAVY. THE WORDS "CREDITABLE SERVICE" IN SECTION 3 OBVIOUSLY ARE USED AS WORDS OF LIMITATION AND NOT WORDS OF ENLARGEMENT. THERE IS NOTHING IN THE LAWS RELATING TO THE COAST GUARD SUGGESTING THAT PRIOR ARMY OR NAVY SERVICE SHALL BE COUNTED AS DOUBLE TIME ON THE SAME BASIS AS THOUGH RETIREMENT WAS IN THE ARMY OR NAVY, AND THE USE OF THE TERM "CREDITABLE SERVICE" DOES NOT SUPPLY THIS OMISSION. HAD SUCH A PURPOSE BEEN INTENDED, IT IS REASONABLE TO SUPPOSE THAT A PROVISION SOMEWHAT AKIN TO THE LANGUAGE CONTAINED IN SECTION 5 OF THE ACT OF JUNE 30, 1941, WOULD HAVE BEEN INCORPORATED IN THE STATUTE. THE USE OF THE QUALIFYING ADJECTIVE "CREDITABLE" PRESUMABLY WAS USED TO INSURE THAT ONLY SERVICE OF A CREDITABLE NATURE IN THE SERVICES MENTIONED SHOULD BE INCLUDED IN THE COMPUTATION AND THAT ALL OTHER SERVICE, SUCH AS PERIODS OF UNAUTHORIZED ABSENCE, CONFINEMENT, SERVICE UNDER A FRAUDULENT ENLISTMENT RESULTING IN DISHONORABLE DISCHARGE, ETC., SHOULD BE EXCLUDED. AT ANY RATE, DURING THE MORE THAN TWENTY-NINE YEARS THAT THE ACT OF JANUARY 28, 1915, HAS BEEN IN OPERATION, IT HAS NOT HERETOFORE BEEN SUGGESTED, OR AT LEAST NOT URGED BEFORE THE ACCOUNTING OFFICES THAT SUCH ARMY OR NAVY SERVICE SHOULD BE COUNTED AS DOUBLE TIME FOR RETIREMENT PURPOSES OF COAST GUARD PERSONNEL. CONSEQUENTLY, THIS OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING CREDIT OF RETIREMENT PAY WHERE THE COUNTING OF DOUBLE TIME IS NECESSARY IN ORDER TO MAKE UP THE REQUIRED THIRTY YEARS' TIME FOR THE RETIREMENT OF ENLISTED, WARRANT OR COMMISSIONED PERSONNEL OF THE UNITED STATES COAST GUARD.

IN THE SPECIFIC CASE PRESENTED, IN VIEW OF THE CONCLUSIONS HEREINBEFORE REACHED IT MUST BE CONCLUDED THAT COMMANDER FLETCHER IS NOT ENTITLED TO COUNT AS DOUBLE TIME TOWARD RETIREMENT ENLISTED SERVICE IN THE ARMY IN THE PHILIPPINES DURING THE PERIOD INVOLVED.