B-53092, MAY 10, 1946, 25 COMP. GEN. 758

B-53092: May 10, 1946

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PAY - RETIRED - NAVY OFFICERS - ADVANCEMENT TO HIGHER GRADE UPON RETIREMENT A NAVY OFFICER WHO WAS ADVANCED TO THE RANK OF LIEUTENANT COMMANDER UPON RETIREMENT PURSUANT TO THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23. IS ENTITLED. WAS THAT OF A MIDSHIPMAN AT THE NAVAL ACADEMY MAY NOT BE REGARDED AS HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12. IS TO BE REGARDED AS AN OFFICER WHO "SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12. REQUESTING DECISION ON SEVERAL QUESTIONS AS FOLLOWS: (1) WHAT IS THE CORRECT RATE OF RETIRED PAY TO WHICH LIEUTENANT COMMANDER ROWLAND D. WILL BE ENTITLED UPON RETURN TO INACTIVE DUTY STATUS ON NOVEMBER 1.

B-53092, MAY 10, 1946, 25 COMP. GEN. 758

PAY - RETIRED - NAVY OFFICERS - ADVANCEMENT TO HIGHER GRADE UPON RETIREMENT A NAVY OFFICER WHO WAS ADVANCED TO THE RANK OF LIEUTENANT COMMANDER UPON RETIREMENT PURSUANT TO THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED, AND RECALLED TO ACTIVE DUTY IN A HIGHER WARTIME TEMPORARY RANK, IS ENTITLED, UPON REVERTING TO AN INACTIVE STATUS, TO RECEIVE RETIRED PAY, AS PROVIDED IN SECTION 12 (B) OF SAID ACT, COMPUTED ON THE BASIS OF SUCH HIGHER RANK IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY UNDER SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, WITH CREDIT FOR ACTIVE DUTY AFTER RETIREMENT AS AUTHORIZED BY SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. A LIEUTENANT OF THE NAVY WHOSE ONLY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS THAT OF A MIDSHIPMAN AT THE NAVAL ACADEMY MAY NOT BE REGARDED AS HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED, SO AS TO BE ENTITLED THEREUNDER, UPON RETIREMENT, TO ADVANCEMENT TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST WITH THE RETIRED PAY OF THAT GRADE. A NAVY OFFICER WHO IMMEDIATELY PRIOR TO SERVICE AS A MIDSHIPMAN, HAD ENLISTED SERVICE DURING A PERIOD PRIOR TO NOVEMBER 12, 1918, IS TO BE REGARDED AS AN OFFICER WHO "SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF SECTION 15, PARAGRAPH FOUR, OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO BE ENTITLED THEREUNDER, UPON VOLUNTARY RETIREMENT UNDER SECTION 12 (E) OF ACT OF JUNE 23, 1938, TO RETIRED PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 10, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 11, 1945 (FILE JAG: II:WJG:Z/L16-4 (2), WITH ENCLOSURES FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING DECISION ON SEVERAL QUESTIONS AS FOLLOWS:

(1) WHAT IS THE CORRECT RATE OF RETIRED PAY TO WHICH LIEUTENANT COMMANDER ROWLAND D. HILL, R., U.S. NAVY, RETIRED, 20371, WILL BE ENTITLED UPON RETURN TO INACTIVE DUTY STATUS ON NOVEMBER 1, 1945, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSURE?

(2) AN OFFICER OF THE PERMANENT RANK OF COMMANDER, WHO WAS COMMISSIONED ENSIGN TO RANK FROM JUNE 6, 1919, AND WHO HAD PRIOR ENLISTED AND MIDSHIPMAN SERVICE FROM APRIL 1, 1914, TO MAY 31, 1916, AND JUNE 1, 1916, TO JUNE, 1919, RESPECTIVELY, IS RETIRED ON HIS OWN APPLICATION UNDER THE PROVISIONS OF 34 U.S.C. 404 (E) ON SEPTEMBER 1, 1945. IS THIS OFFICER ENTITLED TO PAYMENT OF RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING AT THE TIME OF HIS RETIREMENT AS AUTHORIZED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. 115, SUPP. IV/?

THE CIRCUMSTANCES SURROUNDING THE RETIREMENT OF LIEUTENANT HILL, AS WELL AS THE PRECISE QUESTION RAISED IN HIS CASE BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, ARE SET FORTH IN THE ENCLOSURE OF SEPTEMBER 19, 1945, AS FOLLOWS:

REF: (A) ACT OF MARCH 4, 1913 (37 STAT. 891).

(B) SECTION 12K OF THE ACT OF JUNE 23, 1938, AS AMENDED BY THE

ACT OF OCTOBER 14, 1940 (34 U.S.C. 404 (K) ).

(C) SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (37

U.S.C. 115).

(D) SECTION 5 OF THE ACT OF JULY 31, 1935 (49 STAT. 507),

AS AMENDED BY THE ACT OF JUNE 13, 1940 (54 STAT. 379,

380).

(E) SECTION 2 OF THE ACT OF JULY 29, 1941 (55 STAT. 606).

(F) OPINION OF THE JUDGE ADVOCATE GENERAL, OO-1HILL,

ROWLAND D., P17-2 (391101) APPROVED BY THE SECRETARY OF

THE NAVY ON 16 JANUARY 1940.

(G) DECISION OF THE COMPTROLLER GENERAL B-20766, DATED 13

OCTOBER 1941 (21 C.G., 319).

ENCL: (A) COPY OF REFERENCE (F).

1. IN VIEW OF THE RULING OF THE COMPTROLLER GENERAL IN REFERENCE (G) CONSTRUING REFERENCES (D) AND (E) WHICH GOVERN RETIREMENT OF CERTAIN ARMY OFFICERS, THE SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, DEEMS IT ADVISABLE TO REQUEST A DECISION AS TO THE RETIRED PAY STATUS OF LIEUTENANT COMMANDER ROWLAND D. HILL, JR. USN ( RETIRED), AND CERTAIN OTHER OFFICERS PLACED ON THE RETIRED LIST IN THE RANK OF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF REFERENCE (B) BY REASON OF SERVICE AS MIDSHIPMAN PRIOR TO 12 NOVEMBER 1918.

2. SUBJECT NAMED OFFICER WAS APPOINTED A MIDSHIPMAN ON 20 JUNE 1916 AND ON 7 JUNE 1919 ACCEPTED APPOINTMENT AS ENSIGN TO RANK FROM 6 JUNE 1919. HE WAS APPOINTED A LIEUTENANT ON 30 JANUARY 1928 TO RANK FROM 16 NOVEMBER 1925 AND ON 30 JUNE 1941 WAS TRANSFERRED TO THE RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF REFERENCE (B). IN ACCORDANCE WITH THE SECOND PROVISO OF REFERENCE (B) AND THE INTERPRETATIONS PLACED THEREON BY THE JUDGE ADVOCATE GENERAL IN REFERENCE (F), LIEUTENANT HILL WAS ADVANCED TO THE RANK OF LIEUTENANT COMMANDER ON THE RETIRED LIST FROM 30 JUNE 1941 AND IS THEREBY ENTITLED TO RETIRED PAY COMPUTED AS SET FORTH IN THE SECOND PROVISO OF REFERENCE (B) AS FOLLOWS:

"PROVIDED FURTHER, THAT LIEUTENANTS WHO SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, AND WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY-ONE YEARS OF SERVICE, AND WHO SUBSEQUENT TO JUNE 23, 1938, HAVE BEEN OR SHALL HEREAFTER BE RETIRED UNDER ANY PROVISION OF LAW, SHALL BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST EFFECTIVE FROM DATE OF RETIREMENT WITH THE RETIRED PAY OF THAT GRADE.' (ITALICS SUPPLIED).

LIEUTENANT COMMANDER HILL HAS BEEN ON CONTINUOUS ACTIVE DUTY SINCE RETIREMENT, BUT UNDER ORDERS OF 23 JUNE 1945 HE WILL BE RELEASED FROM ACTIVE DUTY AT EXPIRATION OF TERMINAL LEAVE ON 31 OCTOBER 1945. SUCH OFFICER, THEREFORE, ON DATE OF RELEASE FROM ACTIVE DUTY WILL HAVE 26 YEARS 4 MONTHS AND 25 DAYS SERVICE CREDITABLE FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942 AND THE SAME AMOUNT OF SERVICE FOR PURPOSE OF DETERMINING PERCENTUM RATE APPLICABLE UNDER SECTION 12 (B) OF THE ACT OF JUNE 23, 1938 (34 U.S.C. 404 (B) ).

3. IT WILL BE NOTED THAT THE JUDGE ADVOCATE GENERAL, IN REFERENCE (F), STATED THAT SERVICE AS A MIDSHIPMAN MAY NOT BE COUNTED IN COMPUTING THE "TWENTY-ONE YEARS OF SERVICE" PRESCRIBED IN REFERENCE (B) AND THAT THE STATUS OF HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918" IS NOT "LENGTH OF SERVICE.' THEREFORE, IT WAS CONCLUDED:

"* * * THAT UPON RETIREMENT AFTER COMPLETING NOT LESS THAN TWENTY ONE YEARS SERVICE, EXCLUSIVE OF SERVICE AS MIDSHIPMAN, LIEUTENANT ROWLAND D. HILL, JR., IF TRANSFERRED TO THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, SUPRA, MUST BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST.'

4. THE COMPTROLLER GENERAL, IN REFERENCE (G), DISCUSSING THE PHRASE "WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918" STATED AS FOLLOWS:

"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 SERVICE 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.'

IT WAS HELD IN REFERENCE (G) THAT ARMY OFFICERS WHOSE ONLY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS CADET SERVICE IN THE MILITARY ACADEMY 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 14, 1912, AGAINST COUNTING ACADEMY SERVICE "IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.' SECTION 6 OF THE ACT OF AUGUST 24, 1912 (37 STAT. 594), RELATING TO THE ARMY, AND THE ACT OF MARCH 4, 1913 (37 STAT. 891), RELATING TO THE NAVY AND MARINE CORPS ARE SUBSTANTIALLY THE SAME IN CONTENT. IN VIEW OF THE FOREGOING, IT IS RECOMMENDED THAT ACTION BE TAKEN TO SECURE A DECISION OF THE COMPTROLLER GENERAL AS TO THE RETIRED PAY TO WHICH LIEUTENANT COMMANDER HILL WILL BE ENTITLED.

SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, AS AMENDED BY THE ACT OF OCTOBER 14, 1940, 54 STAT. 1174, 1175; 34 U.S.C. 404 (K), PROVIDES AS FOLLOWS:

LIEUTENANT COMMANDERS AND LIEUTENANTS WITH DATE OF RANK AS SUCH PRIOR TO JUNE 23, 1938, AND LIEUTENANTS (JUNIOR GRADE) WHO ON THAT DATE WERE CARRIED AS ADDITIONAL NUMBERS IN GRADE BY REASON OF NOT HAVING BEEN RECOMMENDED FOR PROMOTION SHALL, AT THEIR OWN REQUEST, IN LIEU OF HONORABLE DISCHARGE AS PROVIDED IN SUBSECTION (C) OF THIS SECTION, BE RETIRED ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY FAIL OF SELECTION AS BEST FITTED THE SECOND TIME OR ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY COMPLETE THE PERIOD OF SERVICE DESIGNATED IN THE ACT OF MARCH 3, 1931, AS AMENDED ( U.S.C., TITLE 34, SUPP. III, SECS. 286A AND 286I), WHICHEVER DATE SHALL BE LATER WITH RETIRED PAY COMPUTED AS PROVIDED IN SUBSECTION (B) OF THIS SECTION: PROVIDED, THAT ANY OFFICER RETAINED ON THE ACTIVE LIST PURSUANT TO THIS SUBSECTION SHALL BE INELIGIBLE FOR CONSIDERATION FOR PROMOTION BY SUBSEQUENT SELECTION BOARDS; PROVIDED FURTHER, THAT LIEUTENANTS WHO SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, AND WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY-ONE YEARS OF SERVICE, AND WHO SUBSEQUENT TO JUNE 23, 1938, HAVE BEEN OR SHALL HEREAFTER BE RETIRED UNDER ANY PROVISION OF LAW, SHALL BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST EFFECTIVE FROM DATE OF RETIREMENT WITH THE RETIRED PAY OF THAT GRADE.

THE RETIRED PAY AUTHORIZED UNDER SECTION 12 (B) OF THE ACT OF JUNE 23, 1938, 52 STAT. 949, 34 U.S.C. 404 (B), REFERRED TO IN THE SAID SECTION 12 (K), IS AS FOLLOWS:

* * * 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY * * *

THE OPINION DATED JANUARY 16, 1940, OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, REFERRED TO IN THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WHEREIN IT WAS CONCLUDED THAT LIEUTENANT HILL BY REASON OF SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY DURING THE PERIOD JUNE 20, 1916, TO JUNE 6, 1919, IS TO BE REGARDED AS HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF THE SAID SECTION 12 (K), IS AS FOLLOWS:

REFERENCES: (A) LET. OF LT. HILL TO SECNAV. DATED NOV. 1, 1939.

(B) C.O. US. S.S. CAPELLA ST IND. OF NOV. 1, 1939,

FILE AK13/00-RDH/EX/473).

(C) J.A.G. 2ND IND. OF NOV. 9, 1939, FILE 100-1HILL,

ROWLAND D./P17-2 (391101).

(D) BUNAV 3RD IND. OF NOV. 27, 1939, FILE 20371-133

NAV-327-MW.

1. IN REFERENCE (A) LIEUTENANT ROWLAND D. HILL, JR., U.S. NAVY, REQUESTS INFORMATION AS TO WHETHER UPON RETIREMENT IN ACCORDANCE WITH THE PROVISIONS OF THE LINE PERSONNEL ACT OF JUNE 23, 1938, HE WILL BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER WITH THE RANK AND PAY OF THAT GRADE.

2. LIEUTENANT HILL HAS TWICE FAILED OF SELECTION AS BEST FITTED FOR PROMOTION TO THE GRADE OF LIEUTENANT COMMANDER, AND IN LIEU OF HONORABLE DISCHARGE AS PROVIDED IN SECTION 12 (C) OF THE ACT OF JUNE 23, 1938 (34 U.S.C. SUPP. 404 (C) (, HE HAS REQUESTED RETENTION ON THE ACTIVE LIST IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12 (K) OF THE SAME ACT (34 U.S.C. SUPP. 404 (K) ). UNLESS RECOMMENDED FOR SELECTION PRIOR THERETO LIEUTENANT HILL WILL BE SUBJECT TO RETIREMENT ON JUNE 30, 1941. HE WAS APPOINTED A MIDSHIPMAN ON JUNE 20, 1916, AND SERVED ON THE U.S.S. MICHIGAN AS A MIDSHIPMAN FROM MAY 29, 1917 TO AUGUST 23, 1917, AND ON THE U.S.S. NORTH CAROLINA FROM JUNE 7, 1918 TO AUGUST 21, 1918. HE WAS COMMISSIONED ENSIGN FROM JUNE 7, 1919.

3. SECTION 12 (DK) OF THE ACT OF JUNE 23, 1938, CONTAINS THE FOLLOWING PROVISO:

"THAT LIEUTENANTS WHO SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, AND WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY-ONE YEARS OF SERVICE SHALL ON RETIREMENT AS PROVIDED IN THIS SUBSECTION BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST WITH THE RETIRED PAY OF THAT GRADE.'

4. THE QUESTION FOR DETERMINATION IN THIS CASE IS WHETHER A MIDSHIPMAN WHO PARTICIPATED IN CRUISES ON BOARD COMBATANT VESSELS OF THE NAVY IN ACTIVE SERVICE DURING THE WORLD WAR PRIOR TO NOVEMBER 12, 1918, MAY BE CONSIDERED AS HAVING "SERVED IN THE NAVY" WITHIN THE MEANING OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, SUPRA.

5. SERVICE OF A MIDSHIPMAN AT THE NAVAL ACADEMY AFTER MARCH 4, 1913, MAY NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER IN THE NAVY OR IN THE MARINE CORPS. (ACT OF MARCH 4, 1913, AS AMENDED, 34 U.S.C. 230) THIS ACT PROVIDES THAT---

"THE SERVICE OF A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, OR THAT OF A CADET AT THE UNITED STATES MILITARY ACADEMY, APPOINTED TO THE UNITED STATES NAVAL ACADEMY, OR TO THE UNITED STATES MILITARY ACADEMY, AFTER MARCH 4, 1913, SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER IN THE NAVY OR IN THE MARINE CORPS.'

6. IT IS APPARENT FROM A CONSIDERATION OF THE ACT OF MARCH 4, 1913, SUPRA, TOGETHER WITH SECTION 12 (K) OF THE ACT OF JUNE 23,1938, THAT SERVICE AS A MIDSHIPMAN MAY NOT BE COUNTED IN COMPUTING THE PERIOD OF "NOT LESS THAN TWENTY-ONE YEARS OF SERVICE" REFERRED TO IN SECTION 12 (K), SINCE THIS PERIOD CONSTITUTES "LENGTH OF SERVICE" WITHIN THE MEANING OF THE ACT OF MARCH 4, 1913. IN THIS CONNECTION IN CONSTRUING SUBSTANTIALLY THE SAME LANGUAGE IN SECTION 9 (C) OF THE ACT OF JUNE 23, 1938, IT WAS HELD IN AN OPINION OF THE JUDGE ADVOCATE GENERAL, APPROVED BY THE SECRETARY OF THE NAVY OCTOBER 19, 1938 ( C.M.O. 7, 1938, 68), THAT THE SERVICE TO BE COUNTED IN CASES OF OFFICERS "OF LESS THAN TWENTY-ONE YEARS' SERVICE" WHOSE PERFORMANCE OF DUTY HAS BEEN UNSATISFACTORY, WOULD NOT INCLUDE SERVICE AS A MIDSHIPMAN IF APPOINTED TO THE NAVAL ACADEMY AFTER MARCH 4, 1913. SIMILARLY THE TERM,"TWENTY YEARS' SERVICE" AS USED IN SECTION 12 (I) IN CONNECTION WITH THE DISCHARGE OR RETIREMENT OF OFFICERS WHO FAIL ON PROFESSIONAL EXAMINATION, WAS HELD NOT TO INCLUDE SERVICE AS A MIDSHIPMAN IF APPOINTED TO THE NAVAL ACADEMY AFTER MARCH 4, 1913. SINCE THE TERM "NOT LESS THAN TWENTY-ONE YEARS OF SERVICE" APPEARS IN THE SAME SECTION AND IN THE SAME PROVISO OF THE ACT OF JUNE 23, 1938, AS THE TERM "WHO SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918," THE QUESTION IS PRESENTED AS TO WHETHER SERVICE THAT MAY NOT BE INCLUDED WITHIN THE FORMER TERM MAY BE ACCEPTED AS CONSTITUTING SERVICE UNDER THE LATTER TERM.

8. SUBSEQUENT TO MARCH 4, 1913, IT WAS HELD THAT MIDSHIPMEN WERE IN THE ACTIVE SERVICE AND ENTITLED TO THE BENEFITS OF THE WAR RISK INSURANCE ACT, AS AMENDED, AND THE WORLD WAR VETERANS' ACT OF 1924, AS AMENDED (38 U.S.C., CHAPTER. 10) WHEN THEY WERE ASSIGNED TO DUTY ON BOARD A SHIP, INCLUDING A PRACTICE CRUISE, BUT NOT WHILE PURSUING THEIR STUDIES AT THE NAVAL ACADEMY ( LET. ADM. OF VETS' AFFAIRS, FILE 10L11/L16-9 (331109) OF FEB. 5, 1934). THE DISTINCTION WAS MADE BECAUSE THE LEGISLATION REFERRED TO SPECIFICALLY REQUIRED THAT SERVICE THAT COULD BE CONSIDERED MUST HAVE BEEN ACTIVE SERVICE.

9. FOR SERVICE AS MIDSHIPMEN DURING THE WORLD WAR MIDSHIPMEN WERE ISSUED VICTORY MEDALS, WITH ATLANTIC FLEET CLASPS IN THE CASES OF THOSE WHO SERVED ON COMBATANT VESSELS, UNDER AUTHORITY OF THE ACT OF CONGRESS OF MAY 13, 1908 (35 STAT. 132), WHICH AUTHORIZED THE PREPARATION AND DISTRIBUTION OF BADGES AND RIBBONS TO OFFICERS AND MEN OF THE NAVY AND MARINE CORPS WHO PARTICIPATED IN ENGAGEMENTS AND CAMPAIGNS DEEMED WORTHY OF SUCH COMMEMORATION. ARTICLE A-1025, BUREAU OF NAVIGATION MANUAL, PROVIDES FOR THE AWARD OF THE VICTORY MEDAL IN PART AS FOLLOWS:

"A WAR SERVICE MEDAL TO BE KNOWN AS A VICTORY MEDAL WILL BE AWARDED TO ALL PERSONS IN THE NAVAL SERVICE WHO SERVED ON ACTIVE DUTY BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, * * *.'

10. THE NAVY DEPARTMENT HAS CONSISTENTLY HELD THAT MIDSHIPMEN ARE IN THE NAVAL SERVICE AS WELL WHILE AT THE NAVAL ACADEMY AS WHILE ON CRUISES ( L.R.N.A., SUPP., P. 148; FILE QW13/0L11 (300217) OF FEBRUARY 26, 1930; FILE 0L11/P17-1 (310131) OF FEBRUARY 0. 1931; FILE 00 1DEMAREST, CLAYTON (A18 (331127) OF DECEMBER 1, 1933; FILE 10L11/L16-9 (331109) OF DECEMBER 12, 1933) (SEE ALSO ART. 149 (3), NAVY REGULATIONS; SEC. 333, NAVAL COURTS AND BOARDS; 25 OP. ATTY. GEN. 579; 30 OP. ATTY. GEN. 457). THE PERTINENT DECISIONS HAVE BEEN BASED UPON OPINIONS OF THE SUPREME COURT THEREIN CITED AND IN PART BECAUSE OF THE FACT THAT MIDSHIPMEN ARE SUBJECT TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY INCLUDING TRIAL BY COURT- MARTIAL.

II. IN THE CASE OF UNITED STATES VS. MORTON (112 U.S. 1), THE SUPREME COURT HELD THAT "THE CORPS OF CADETS OF THE MILITARY ACADEMY WAS A PART OF THE ARMY OF THE UNITED STATES, AND A PERSON SERVING AS A CADET WAS SERVING IN THE ARMY.' THIS OPINION WAS FOLLOWED BY THE CASE OF UNITED STATES VS. BAKER (125 U.S. 646) IN WHICH THE SUPREME COURT HELD THAT A MIDSHIPMAN AT THE NAVAL ACADEMY WAS AN OFFICER THE NAVY. OF LIKE EFFECT WERE THE CASES OF UNITED STATES VS. HENEE (124 U.S. 309), UNITED STATES VS. COOK (128 U.S. 254), AND UNITED STATES VS. WATSON (130 U.S. 80).

12. IN THE CASE OF UNITED STATES VS. NOCE (268 U.S. 613), THE SUPREME COURT AFTER CONSIDERING THE MORTON CASE AND THE WATSON CASE, SUPRA, HELD THAT THE ACT OF MARCH 4, 1913, SUPRA, HAD NOT BEEN REPEALED BY SUBSEQUENT LEGISLATION, BUT IT DID NOT INDICATE THAT SERVICE AT THE NAVAL ACADEMY OR THE MILITARY ACADEMY COULD NOT BE CONSIDERED AS SERVICE IN THE NAVY, WHERE NOT SPECIFICALLY PRECLUDED BY LAW FROM BEING SO CONSIDERED.

13. IT WAS HELD IN CONNECTION WITH THE PROVISION IN THE ACT OF JUNE 29, 1906 (34 STAT. 554), AUTHORIZING ADVANCED RANK ON THE RETIRED LIST OF OFFICERS WHO SERVED AS OFFICER OR ENLISTED MAN IN THE CIVIL WAR, THAT AN OFFICER WHO SERVED AS A CADET WAS AN OFFICER OF THE NAVY "WHO SERVED DURING THE CIVIL WAR.' ( L.R.N.A. SUPP., P. 395).

14. THE FACT THAT IT WAS NECESSARY TO ENACT THE LEGISLATION CONTAINED IN THE ACT OF MARCH 4, 1913, SUPRA, PROHIBITING THE COUNTING OF SERVICE AT THE NAVAL ACADEMY AS SERVICE IN THE NAVY FOR THE PURPOSES THEREIN SPECIFIED, IS IN ITSELF INDICATIVE THAT SUCH SERVICE DOES CONSTITUTE NAVAL SERVICE AND MAY BE CONSIDERED AS SUCH FOR PURPOSES NOT PROHIBITED BY LAW. SIMILARLY, IN THE ,1WORLD WAR ADJUSTED COMPENSATION ACT," AFTER DEFINING A VETERAN AS ANY PERSON "A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES AT ANY TIME AFTER APRIL 5, 1917, AND BEFORE NOVEMBER 12, 1918," IT WAS PROVIDED THAT SERVICE AS A MIDSHIPMAN SHOULD NOT BE COUNTED IN COMPUTING ADJUSTED COMPENSATION.

15. THERE CAN BE NO QUESTION, AS ABOVE STATED, THAT IN VIEW OF THE PROVISIONS OF THE ACT OF MARCH 4, 1913, SUPRA, SERVICE AS A MIDSHIPMAN MAY NOT BE COUNTED IN COMPUTING THE "TWENTY-ONE YEARS OF SERVICE" PRESCRIBED IN SECTION 12 (K) OF THE ACT OF JUNE 23, 1938. HOWEVER, THE STATUS OF HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918" IS NOT "LENGTH OF SERVICE.' IT IS PERTINENT IN THIS CONNECTION THAT THE WORD "SERVED" IS USED IN THE LEGISLATION UNDER CONSIDERATION RATHER THAN THE MORE RESTRICTED TERM "ACTIVE SERVICE.' WHERE THE WORDING OF A STATUTE IS UNAMBIGUOUS IT MAY NOT BE EXTENDED TO COVER MATTERS NOT INCLUDED WITHIN ITS TERMS. ( L.R.N.A. P. 13)THEREFORE THE PROVISIONS OF THE ACT OF MARCH 4, 1913, SHOULD NOT BE CONSTRUED TO EXTEND BEYOND THE OBVIOUS MEANING OF THE WORDS USED THEREIN.

16. SPECIFICALLY ANSWERING THE QUESTION PRESENTED, IT IS THE OPINION OF THIS OFFICE THAT UPON RETIREMENT AFTER COMPLETING NOT LESS THAN TWENTY-ONE YEARS SERVICE, EXCLUSIVE OF SERVICE AS A MIDSHIPMAN, LIEUTENANT ROWLAND D. HILL, JR., IF TRANSFERRED TO THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, SUPRA, MUST BE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER ON THE RETIRED LIST.

THUS, IT APPEARS THAT LIEUTENANT HILL WAS RETIRED ON JUNE 30, 1941, UPON COMPLETION OF MORE THAN 21 YEARS' SERVICE AND WAS ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER IN ACCORDANCE WITH THE ABOVE-QUOTED OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY CONSTRUING SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED, BUT THAT DOUBT NOW HAS ARISEN AS TO WHETHER THE OFFICER IS ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COMMANDER IN VIEW OF THE CONTRARY CONCLUSION REACHED IN THE DECISION OF OCTOBER 13, 1941, 21 COMP. GEN. 319, CONSTRUING A SIMILAR STATUTORY PROVISION APPLICABLE TO OFFICERS OF THE ARMY. ALSO, IT IS NOTED THAT WHILE THE OFFICER HERE INVOLVED WAS RETIRED ON JUNE 30, 1941, AS A LIEUTENANT COMMANDER, HE IMMEDIATELY WAS RECALLED TO ACTIVE DUTY; THAT HE WAS APPOINTED A TEMPORARY COMMANDER ON AUGUST 27, 1943, PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603 ( REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE U.S. NAVY AND MARINE CORPS, JULY 1, 1945, PAGE 526); AND THAT HE RETURNED TO AN INACTIVE DUTY STATUS OCTOBER 31, 1945. IN VIEW OF THE OFFICER'S APPOINTMENT AS A TEMPORARY COMMANDER WHILE SERVING ON ACTIVE DUTY THERE ARE FOR CONSIDERATION THE PROVISIONS OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, ENACTED SUBSEQUENT TO YOUR PRESENT SUBMISSION, SECTION 8 OF WHICH, 60 STAT. 28, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 8. (A) SECTION 10 OF THE ACT APPROVED JULY 24, 1941 (55 STAT. 605), IS HEREBY AMENDED TO READ AS FOLLOWS:

"1SEC. 10. (A) PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS AND THOSE OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE AND RANK PURSUANT TO SECTION 8 OF THIS ACT, AS NOW OR HEREAFTER AMENDED.

"/B) (1) PERSONNEL OF THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER RANK PURSUANT TO SUBSECTION (A) SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

"/C) PERSONNEL OF THE CLASSES DESCRIBED ABOVE WHO HAVE BEEN RETIRED OR RELEASED FROM ACTIVE DUTY PRIOR TO THE DATE OF THIS AMENDMENT SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RELEASE FROM ACTIVE DUTY, AS THE CASE MAY BE.'

UNDER THE RETROACTIVE PROVISIONS OF THE SAID SECTION 8, AUTHORIZING PERSONNEL ON THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER TEMPORARY RANK TO RECEIVE RETIRED PAY, COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE, BASED UPON SUCH HIGHER TEMPORARY RANK, THE OFFICER HERE INVOLVED, HAVING BEEN APPOINTED A TEMPORARY COMMANDER PURSUANT TO THE ACT OF JULY 24, 1941, AND HAVING BEEN RETURNED TO AN INACTIVE STATUS, IS ENTITLED TO RETIRED PAY AS PROVIDED IN SECTION 12 (B) OF THE ACT OF JUNE 23, 1938, SUPRA, ON THE BASIS OF THE HIGHEST GRADE OR RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT. ALSO, THE SECOND PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, PROVIDES AS FOLLOWS:

IN THE COMPUTATION OF THE RETIRED PAY OF OFFICERS HERETOFORE OR HEREAFTER RETIRED WITH PAY AT THE RATE OF 2 1/2, 3, OR 4 PERCENTUM OF THE ACTIVE DUTY PAY RECEIVED BY THEM AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE DUTY PAY, ACTIVE DUTY PERFORMED BY SUCH RETIRED OFFICERS SUBSEQUENT TO THE DATE OF THEIR RETIREMENT SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETIRED PAY. THE INCREASES SHALL BE AT THE RATE OF 2 1/2, 3, OR 4 PERCENTUM FOR EACH YEAR OF ACTIVE DUTY AND A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS: PROVIDED, THAT THE INCREASED RETIRED PAY OF SUCH RETIRED OFFICERS SHALL IN NO CASE EXCEED 75 PERCENTUM OF THE ACTIVE DUTY PAY AS AUTHORIZED BY EXISTING LAW. UNDER THE EXPRESS PROVISION OF THE SAID SECTION 15, THE ACTIVE DUTY PERFORMED BY COMMANDER HILL SUBSEQUENT TO RETIREMENT MAY BE ADDED TO HIS SERVICE PRIOR TO RETIREMENT IN COMPUTING THE RETIRED PAY TO WHICH HE IS ENTITLED UPON RETURN TO INACTIVE DUTY. IN THIS CONNECTION SEE 21 COMP. GEN. 301. ACCORDINGLY, IN ANSWER TO THE FIRST QUESTION PRESENTED, I HAVE TO ADVISE THAT SINCE THE OFFICER HAD COMPLETED 22 YEARS AND 24 DAYS' ACTIVE COMMISSIONED SERVICE PRIOR TO RETIREMENT ON JUNE 30, 1941, AND 4 YEARS AND 4 MONTHS' ACTIVE DUTY SUBSEQUENT TO RETIREMENT, OR A TOTAL OF 26 YEARS, 4 MONTHS, AND 24 DAYS, HE IS ENTITLED, UPON RETURN TO INACTIVE DUTY, TO 65 PERCENTUM (26 X 2 1/2) OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 24 BUT LESS THAN 27 YEARS' SERVICE, ASSUMING, OF COURSE, THAT SUCH IS THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, HE SERVICED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT.

WHILE THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, AND THE PARTICULAR CIRCUMSTANCES RELATING TO COMMANDER HILL MAKE IT UNNECESSARY TO DECIDE WHETHER HE, AS A MIDSHIPMAN, MAY BE CONSIDERED AS HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1919," IT IS UNDERSTOOD THAT A DECISION IS DESIRED ON THE MATTER GENERALLY, INASMUCH AS OTHER LIEUTENANTS OF THE NAVY HAVE BEEN RETIRED AND ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER WITH THE RETIRED PAY OF THAT GRADE UNDER THE PROVISIONS OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED, BUT EITHER WERE NOT CALLED TO ACTIVE DUTY, OR IF CALLED TO ACTIVE DUTY DID NOT RECEIVE A TEMPORARY APPOINTMENT TO A HIGHER GRADE OR RANK.

IN THE SAID DECISION OF OCTOBER 13, 1941, 21 COMP. GEN. 319, IT WAS CONCLUDED THAT AN ARMY OFFICER WHOSE ONLY SERVICE PRIOR TO NOVEMBER 12, 1918, CONSISTED OF SERVICE AS A CADET AT THE MILITARY ACADEMY MAY NOT BE REGARDED AS HAVING "SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918" WITHIN THE MEANING OF THE ACTS OF JUNE 13, 1940, 54 STAT. 379, 380, AND JULY 29, 1941, 55 STAT. 606, AUTHORIZING INCREASED RETIRED PAY BENEFITS FOR OFFICERS OF THE ARMY WHO HAD SO SERVED. THE CONCLUSION IN THAT DECISION WAS ON THE BASIS THAT THE LEGISLATIVE PURPOSE OF THE SAID 1940 AND 1941 ACTS WAS TO PLACE IN A SELECT CLASS FOR RETIREMENT PURPOSES ARMY OFFICERS WHO HAD COMMISSIONED OR ENLISTED SERVICE IN THE ARMED FORCES PRIOR TO THE SIGNING OF THE ARMISTICE ON NOVEMBER 11, 1918, AND THAT THE PROHIBITION IN SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 594, AGAINST COUNTING CADET SERVICE "IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY," WAS INTENDED NOT ONLY TO PRECLUDE THE COUNTING OF CADET SERVICE IN DETERMINING WHETHER AN ARMY OFFICER HAD SERVICE FOR INCREASED RETIREMENT OR RETIRED PAY BENEFITS WITHIN THE MEANING OF SUCH LAWS AS THE SAID ACTS OF JUNE 13, 1940, AND JULY 29, 1941. HOWEVER, THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY--- RENDERED APPROXIMATELY TWO YEARS PRIOR TO THE SAID DECISION RELATING TO ARMY OFFICERS--- REACHED A CONTRARY CONCLUSION ON THE BASIS OF CERTAIN COURT CASES HOLDING THAT MIDSHIPMEN AT THE NAVAL ACADEMY ARE OFFICERS IN THE NAVY; THAT UNDER THE " ACT OF JUNE 29, 1906 (34 STAT. 554) "--- PRESUMABLY SECTION 11 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, PROVIDING THAT OFFICERS OF THE NAVY "WHO SERVED DURING THE CIVIL WAR" SHALL BE RETIRED WITH THE RANK AND PAY OF THE NEXT HIGHER GRADE--- AN OFFICER OF THE NAVY WHO SERVED AS A MIDSHIPMAN HAS BEEN HELD TO BE AN OFFICER OF THE NAVY WHO "SERVED DURING THE CIVIL WAR; " AND, ALSO, THAT THE ACT OF MARCH 4, 1913, 37 STAT. 891 (34 U.S.C. 230), PRECLUDING THE COUNTING OF SERVICE AS A MIDSHIPMAN OR CADET BY PERSONS APPOINTED TO THE MILITARY OR NAVAL ACADEMIES AFTER THAT DATE "IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER IN THE NAVY OR IN THE MARINE CORPS," HAS REFERENCE ONLY TO DETERMINING "LENGTH OF SERVICE" FOR RETIREMENT AND LONGEVITY PAY PURPOSES AND NOT TO THE "STATUS" OF SUCH MIDSHIPMEN OR CADETS.

PRESUMABLY, THE COURT CASES RELIED UPON IN THE OPINION OF THE JUDGE ADVOCATE GENERAL FOR THE PROPOSITION THAT MIDSHIPMEN ARE OFFICERS OF THE NAVY WHO "SERVED DURING THE CIVIL WAR" WITHIN THE MEANING OF SECTION 11 OF THE ACT OF MARCH 3, 1899, ARE THE JASPER AND MOSER CASES. IN JASPER V. UNITED STATES, 38 C.1CLS. 213 (1903), THE COURT HAD BEFORE IT A QUESTION SIMILAR TO THAT HERE INVOLVED, THAT IS, WHETHER A PERSON WHO ENTERED THE NAVAL ACADEMY ON JULY 21, 1864, AND GRADUATED JUNE 2, 1868, SHOULD BE CONSIDERED "AN OFFICER OF THE NAVY" WHO "SERVED DURING THE CIVIL WAR" WITHIN THE MEANING OF SECTION 11 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, PROVIDING THAT OFFICERS WHO SO SERVED SHOULD BE RETIRED WITH THE RANK AND PAY OF THE NEXT HIGHER GRADE. THE OPINION IN THAT CASE IS IN PART AS FOLLOWS:

IT HAS BEEN HELD THAT A MIDSHIPMAN AT THE NAVAL ACADEMY IS AN OFFICER OF THE NAVY, AND THAT WHILE PURSUING HIS EDUCATION THERE THAT HE IS SERVING AS SUCH. ( BAKER'S CASE, 23 C.1CLS. R., 81; 125 U.S., 646).

IT HAS ALSO BEEN HELD THAT A CADET MIDSHIPMAN AT THE NAVAL ACADEMY IS AN OFFICER OF THE NAVY, AND THAT HIS SERVICE THERE IS TO BE RECKONED WHEN ESTIMATING HIS LONGEVITY PAY. ( UNITED STATES V. COOK, 128 U.S. 254.)

BUT THESE DECISIONS DO NOT TOUCH THE QUESTION INVOLVED IN THE PRESENT CASE. THE CLAIMANT DID NOT ENTER THE NAVAL ACADEMY UNTIL JULY 21, 1864. HE WAS IN SERVICE THERE AS A STUDENT UNTIL HE WAS GRADUATED, JUNE 2, 1868. HE WAS RETIRED SEPTEMBER 21, 1899, WITH THE RANK HE THEN HELD, COMMANDER. THE QUESTION THEREFORE IS WHETHER AN UNDERGRADUATE AT THE NAVAL ACADEMY PURSUING HIS STUDIES THERE DURING THE PERIOD OR A PART OF THE PERIOD OF THE CIVIL WAR, WAS, WITHIN THE INTENT OF THE NAVY PERSONNEL ACT 3D MARCH 1899,"AN OFFICER OF THE NAVY, WITH A CREDITABLE RECORD, WHO HAS SERVED DURING THE CIVIL WAR.'

TO GIVE TO THE STATUTE THE INTERPRETATION FOR WHICH THE CLAIMANT CONTENDS WOULD BE TO REDUCE THE SIGNIFICANCE OF ITS LANGUAGE TO A MERE DATE. THAT WAS THE LEGISLATIVE INTENT, CONGRESS MIGHT AS WELL, OR BETTER, HAVE PROVIDED THAT ALL OFFICERS OF THE NAVY HAVING A CREDITABLE RECORD, WHO SERVED AT ANY TIME BEFORE THE 30TH OF JUNE 1865, SHALL BE RETIRED WITH THE RANK AND THREE-FOURTHS OF THE PAY OF THE NEXT HIGHER GRADE. TO THE COURT IT SEEMS PLAIN THAT CONGRESS INTENDED TO MAKE A HIGHLY FAVORABLE EXCEPTION IN THE GENERAL RULE OF RETIREMENT IN FAVOR OF OFFICERS WHO WERE IN FACT VETERANS OF THE CIVIL WAR.

THE DECISIONS BEFORE CITED DO, INDEED, HOLD THAT AN UNDERGRADUATE OF THE NAVAL ACADEMY IS AN OFFICER AND THAT HIS ACADEMIC COURSE IS SERVICE; AND THE STATUTE DOES, INDEED, SAY THAT AN OFFICER WITH A CREDITABLE RECORD, WHO SERVED DURING THE CIVIL WAR, SHALL BE RETIRED WITH THE RANK AND THREE- FOURTHS PAY OF THE NEXT HIGHER GRADE. TAKEN LITERALLY, THE WORDS OF THESE DECISIONS AND THIS STATUTE ARE APPLICABLE TO THE CLAIMANT'S CASE, BUT STATUTES ARE TO BE INTERPRETED SO AS TO GIVE EFFECT TO THE PURPOSE OF THE LAW-MAKING POWER; AND TO THE LEGISLATIVE INTENT IS TO (BE) ASCRIBED A REASONABLE AND NOT A TECHNICAL MEANING; AND IN ASCERTAINING THAT MEANING IT IS THE DUTY OF COURTS TO CONSIDER THE FACTS AND CIRCUMSTANCES WHICH INDUCE THE LEGISLATION. THE PURPOSE OF CONGRESS IN THE LEGISLATION BEFORE US WAS NOT TO FIX BY THE WORDS "DURING THE CIVIL WAR" DATES AT WHICH THE BENEFIT OF THE STATUTE SHOULD BEGIN AND END, BUT TO BESTOW A SUITABLE BENEFIT UPON ACTUAL OFFICERS WHO ACTUALLY SERVED IN THE CIVIL WAR, OR AT LEAST WHO VOLUNTARILY OFFERED AND OBLIGATED THEMSELVES TO ENCOUNTER ITS HARDSHIPS AND DANGERS.

THE COUNSEL FOR DEFENDANTS HAS RAISED A JURISDICTIONAL QUESTION, TO WIT, THAT THE FINDING OF THE RETIRING BOARD, APPROVED BY THE SECRETARY OF THE NAVY, IS FINAL AND CAN NOT BE REVIEWED BY THE COURTS. BUT THE FACTS BEING UNDISPUTED AND A MATTER OF RECORD, IT IS MANIFEST THAT THE DECISION IN REGARD TO THE CLAIMANT'S RIGHT TO RETIREMENT UPON THE RANK OF A HIGHER GRADE THAN THAT WHICH HE HELD ON THE ACTIVE LIST TURNED UPON THE PROPER CONSTRUCTION OF AN ACT OF CONGRESS. UNDER THE DECISION OF THE SUPREME COURT, IN THE RECENT CASE OF MEDBURY VS. THE UNITED STATES (173 U.S. 492), SUCH A DECISION, WHERE IT IS ADVERSE TO A CLAIMANT AND INVOLVES THE DETERMINATION OF A QUESTION OF LEGAL RIGHT IS SUBJECT TO JUDICIAL REVIEW.

THIS PETITION DISMISSED. THEREAFTER, ON DECEMBER 5, 1904 (40 C.1CLS. 76), THE COURT, IN GRANTING MOTION FOR A NEW TRIAL IN THAT CASE, STATED THAT IT HAD OVERLOOKED THE FACT THAT MIDSHIPMEN AT THE NAVAL ACADEMY WERE LIABLE TO BE AND ACTUALLY WERE CALLED INTO THE SERVICE DURING THE CIVIL WAR, AND THAT THE COURT WAS SATISFIED THAT THERE WAS ERROR IN ITS ORIGINAL CONCLUSION IN THAT CASE. A HEARING ON THE CASE WAS POSTPONED, HOWEVER, PENDING DETERMINATION BY THE NAVY DEPARTMENT AS TO WHETHER THE OFFICER HAD "A CREDITABLE RECORD" AS REQUIRED BY THE STATUTE. BEFORE THE FINAL DECISION WAS RENDERED IN THAT CASE, THE COURT CONSIDERED THE MOSER CASE, 42 C.1CLS. 86, JANUARY 7, 1907, INVOLVING THE SAME QUESTION AS THAT PRESENTED IN THE JASPER CASE, WITH THE EXCEPTION THAT MOSER HAD PERFORMED NO SERVICE OTHER THAN THAT REQUIRED OF HIM AS A STUDENT AT THE NAVAL ACADEMY. IN ITS OPINION IN THAT CASE THE COURT POINTED OUT THAT SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY WAS INCLUDED IN COMPUTING THE 40 YEARS' SERVICE REQUIRED FOR RETIREMENT, AND AFTER QUOTING FROM THE BAKER CASE, 125 U.S. 646, HOLDING THAT MIDSHIPMEN AT THE NAVAL ACADEMY ARE "OFFICERS OF THE NAVY" WITHIN THE MEANING OF THE ACT OF MARCH 3, 1883, 22 STAT. 473, AUTHORIZING SUCH OFFICERS TO BE CREDITED WITH TIME SERVED OR ENLISTED MEN FOR PAY PURPOSES, THE COURT CONCLUDED THAT UNDER THE RULING IN THE BAKER CASE, MOSER MUST BE REGARDED AS AN OFFICER OF THE NAVY, AND, THEREFORE, HIS SERVICE AS A MIDSHIPMAN CONSTITUTED SERVICE "DURING THE CIVIL WAR" WITHIN THE MEANING OF SAID SECTION 11 OF THE ACT OF MARCH 3, 1899, NOTWITHSTANDING THE FACT THAT HE WAS NOT ORDERED TO ACTIVE DUTY ON BOARD SHIP OR OTHERWISE WHILE PURSUING HIS STUDIES AT THE NAVAL ACADEMY. SHORTLY THEREAFTER THE COURT RENDERED ITS OPINION ON THE NEW TRIAL IN THE JASPER CASE (43 C.1CLS. 368, APRIL 20, 1908). IN THAT CASE THE COURT'S ATTENTION HAD BEEN INVITED FOR THE FIRST TIME TO THE PROVISION IN THE ACT OF JUNE 29, 1906, 34 STAT. 554--- ENACTED SUBSEQUENT TO THE GRANTING OF THE MOTION FOR A NEW TRIAL IN THE JASPER CASE--- AUTHORIZING OFFICERS OF THE NAVY WHO SERVED WITH CREDIT AS AN OFFICER OR ENLISTED MAN IN THE REGULAR OR VOLUNTEER FORCES DURING THE CIVIL WAR PRIOR TO APRIL 9, 1865, OTHERWISE THAN AS A CADET, WHO HAD THERETOFORE BEEN, OR MIGHT THEREAFTER BE, RETIRED ON ACCOUNT OF AGE, ETC., TO BE PLACED ON THE RETIRED LIST OF THE NAVY WITH THE RANK AND RETIRED PAY OF ONE GRADE HIGHER THAN THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT, WITH THE PROVISO THAT THE ACT SHOULD NOT APPLY, INTER ALIA, TO ANY OFFICER WHO RECEIVED AN ADVANCE OF GRADE AT OR SINCE THE DATE OF RETIREMENT. IN ITS OPINION THE COURT STATED THAT, IN THE ABSENCE OF THE PROVISION IN THE ACT OF JUNE 29, 1906, SPECIFICALLY EXCLUDING SERVICE AS A CADET AS TIME SERVED AS AN OFFICER DURING THE CIVIL WAR, IT WOULD FEEL CONSTRAINED TO ADHERE TO ITS VIEWS IN FAVOR OF THE OFFICERS IN RULING ON THE MOTION FOR A NEW TRIAL IN THE JASPER CASE (40 C.1CLS. 76), AND IN ITS DECISION IN THE MOSER CASE (42 C.1CLS. 86), UNDER THE RULINGS IN THE BAKER AND COOK CASES, 125 U.S. 646, AND 128 ID. 254, HOLDING THAT MIDSHIPMEN AT THE NAVAL ACADEMY ARE "OFFICERS OF THE NAVY" AND, AS SUCH, WERE ENTITLED TO COUNT MIDSHIPMAN SERVICE FOR RETIREMENT AND LONGEVITY PAY PURPOSES. HOWEVER, THE COURT WENT ON TO POINT OUT THAT THE NAVY DEPARTMENT HAD DENIED JASPER-S--- AND PRESUMABLY MOSER-S--- APPLICATION FOR RETIREMENT IN THE NEXT HIGHER GRADE ON THE BASIS THAT HIS SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY WAS NOT SERVICE DURING THE CIVIL WAR AND THAT THE ACT OF JUNE 29, 1906, IN EFFECT RATIFIED THE ADMINISTRATIVE CONSTRUCTION OF THE 1899 STATUTE IN THAT RESPECT. HENCE, THE COURT CONCLUDED THAT JASPER, ALTHOUGH RETIRED PRIOR TO THE ACT OF JUNE 29, 1906, WAS NOT ENTITLED UNDER SECTION 11 OF THE ACT OF MARCH 3, 1899, BY REASON OF HIS MIDSHIPMAN SERVICE DURING THE CIVIL WAR TO BE RETIRED IN THE NEXT HIGHER GRADE WITH THE RETIRED PAY OF SUCH HIGHER GRADE. THE COURT FURTHER STATED BY WAY OF DICTA THAT IF ITS ATTENTION HAD BEEN INVITED TO THE SAID ACT OF JUNE 29, 1906, AT THE TIME IT GRANTED THE MOTION FOR A NEW TRIAL IN THE JASPER CASE AND RENDERED THE DECISION IN THE MOSER CASE IT "WOULD NOT IN THE FACE OF THAT STATUTE RATIFYING THE ACTION OF THE NAVY DEPARTMENT IN ITS CONSTRUCTION OF SECTION 11 HAVE GIVEN JUDGMENT FOR THE CLAIMANT ( MOSER), WITHOUT WHICH HE COULD NOT HAVE BEEN ADVANCED IN GRADE AND PAY.' THEREAFTER, IN VIEW OF THE DICTA IN THE JASPER CASE, THE GOVERNMENT DISCONTINUED PAYMENTS OF RETIRED PAY TO MOSER ON THE BASIS OF THE NEXT HIGHER GRADE AND HE AGAIN FILED SUIT IN THE COURT OF CLAIMS (49 C.1CLS. 285) AND, WHILE THE COURT UPHELD MOSER'S RIGHT TO RECEIVE RETIRED PAY ON THE BASIS OF THE NEXT HIGHER GRADE, SUCH DECISION RESTED ON THE PROPOSITION THAT THE PRIOR MOSER CASE WAS IDENTICAL WITH THE CASE AT BAR AND THE ISSUES HAD BEEN TRIED AND DETERMINED, AND, THEREFORE, THE JUDGMENT IN THE FORMER CASE WAS RES JUDICATA AND CONCLUSIVE UPON THE PARTIES. THAT DECISION WAS AFFIRMED ON SUCH BASIS BY THE SUPREME COURT OF THE UNITED STATES ON NOVEMBER 17, 1924. 266 U.S. 236. THUS, IT WILL BE SEEN THAT AFTER ITS ATTENTION HAD BEEN INVITED TO THE 1906 ACT, THE COURT OF CLAIMS DID NOT--- AS INDICATED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL--- HOLD THAT MIDSHIPMEN AT THE NAVAL ACADEMY ARE OFFICERS OF THE NAVY WHO "SERVED DURING THE CIVIL WAR" WITHIN THE MEANING OF SECTION 11 OF THE ACT OF MARCH 3, 1899. ON THE CONTRARY THE COURT'S FINAL CONCLUSION IN THE JASPER CASE (43 C.1CLS. 368), ON THE MERITS OF THE QUESTION WAS THAT MIDSHIPMEN ARE NOT OFFICERS OF THE NAVY WHO ,SERVED DURING THE CIVIL WAR" WITHIN THE MEANING OF THE 1899 STATUTE.

AS STATED IN THE OPINION OF THE JUDGE ADVOCATE GENERAL, THE MORTON CASE (112 U.S. 1), BAKER CASE (125 U.S. 646), COOK CASE (128 U.S. 254), AND SIMILAR CASES, HAVE HELD THAT CADETS AND MIDSHIPMEN ARE OFFICERS OF THE ARMY OR NAVY, AS THE CASE MAY BE, AND THAT SERVICE AS A CADET OR MIDSHIPMAN IS SERVICE IN THE ARMY OR NAVY, AND, AS SUCH, IS TO BE CREDITED IN COMPUTING LONGEVITY PAY. HOWEVER, SECTION 6 OF THE ACT OF AUGUST 24, 1916, 37 STAT. 594, AND THE ACT OF MARCH 4, 1913, 37 STAT. 891, PROVIDING THAT SERVICE OF CADETS AND MIDSHIPMEN THEREAFTER APPOINTED SHOULD NOT BE COUNTED THEREAFTER IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE RESPECTIVELY OF ANY OFFICER IN THE ARMY OR OF ANY OFFICER IN THE NAVY OR MARINE CORPS, NULLIFIED THE EFFECT OF THOSE DECISIONS. NOCE V. UNITED STATES, 268 U.S. 613. IT WILL THUS BE SEEN THAT THE CONGRESS ON THREE SEPARATE OCCASIONS WITHIN A PERIOD OF SEVEN YEARS ENACTED LEGISLATION (ACT OF JUNE 29, 1906, AND THE 1912 AND 1913 ACTS, SUPRA), SOLELY FOR THE PURPOSE OF NULLIFYING THE EFFECT OF COURT DECISIONS HOLDING THAT SERVICE AS CADETS AND MIDSHIPMEN WAS REQUIRED TO BE CREDITED FOR INCREASED MONETARY BENEFITS AUTHORIZED FOR SERVICE AS OFFICERS OF THE ARMY AND NAVY, GENERALLY.

WHILE THE OPINION OF THE JUDGE ADVOCATE GENERAL IN THE HILL CASE RECOGNIZES THAT SERVICE AS A MIDSHIPMAN MAY NOT BE COUNTED IN COMPUTING THE "TWENTY-ONE YEARS OF SERVICE" REQUIRED UNDER SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED, IT IS ARGUED THAT THE STATUS OF HAVING "SERVED IN THE NAVY OR NAVY RESERVE FORCE PRIOR TO NOVEMBER 12, 1918," IS NOT A MATTER OF "LENGTH OF SERVICE" WITHIN THE MEANING OF THE 1912 AND 1913 STATUTES. WHILE LITERALLY THE TERM "LENGTH OF SERVICE" AS USED IN THOSE STATUTES MIGHT BE VIEWED AS HAVING NO DIRECT APPLICATION TO THE QUESTION OF WHETHER MIDSHIPMEN MAY BE REGARDED AS HAVING "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918," THE SAID PROVISIONS IN THE 1912 AND 1913 STATUTES EXEMPLIFY THE DEFINITE LEGISLATIVE POLICY OF DISTINGUISHING BETWEEN SERVICE AS A CADET OR MIDSHIPMAN AND SERVICE AS AN OFFICER OR ENLISTED MAN OF THE ARMY OR NAVY UNDER STATUTES GRANTING INCREASED MONETARY BENEFITS ON ACCOUNT OF SERVICE IN SUCH ARMED FORCES. THE REASONS INDUCING THE ENACTMENT OF SUCH PROVISIONS IN THE 1912 AND 1913 STATUTES, EXCLUDING CADET AND MIDSHIPMEN SERVICE IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF OFFICERS OF THE ARMY, NAVY AND MARINE CORPS, ARE EXPLAINED IN THE REPORT OF THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES ( REPORT NO. 270, PAGE 65, 62D CONGRESS, 2D SESSION), RESPECTING PROVISIONS IN H.R. 18956 LATER INCORPORATED IN H.R. 25531, WHICH BECAME SECTION 6 OF THE ACT OF AUGUST 24, 1912. THE SAID REPORT IS IN PART AS FOLLOWS: SECTION 7 OF THE BILL (LATER CHANGED TO SECTION 6) ALSO PROPOSES THAT SERVICE AS A CADET OF THE UNITED STATES MILITARY ACADEMY, OR AS A NAVAL CADET OR MIDSHIPMAN, SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY. IN COMPUTING LENGTH OF SERVICE OF OFFICERS OF THE ARMY IN ORDER TO DETERMINE THEIR RIGHT TO THE 10 PERCENT INCREASE OF PAY THAT IS ALLOWED BY LAW FOR EACH FIVE-YEAR PERIOD DURING 20 YEARS ACTIVE SERVICE, IT HAS BEEN THE PRACTICE OF THE WAR DEPARTMENT FOR A CONSIDERABLE NUMBER OF YEARS TO COUNT THE TIME PREVIOUSLY SPENT BY SUCH OFFICERS AS PUPILS UNDERGOING INSTRUCTION, AT THE EXPENSE OF THE UNITED STATES, AS CADETS OF THE MILITARY ACADEMY OR AS NAVAL CADETS OR MIDSHIPMEN, THIS INSTRUCTION BEING FOR THE PURPOSE OF ENABLING THEM TO SECURE APPOINTMENTS AS SECOND LIEUTENANTS IN THE ARMY OR AS ENSIGNS IN THE NAVY. 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, THE GRADUATE OF THE ACADEMY RECEIVING EACH SUCCEEDING LONGEVITY INCREASE OF PAY AT LEAST FOUR YEARS IN ADVANCE OF THE OFFICER APPOINTED AT THE SAME TIME FROM CIVIL LIFE. MOREOVER, IF, AS IS NOT INFREQUENTLY THE CASE, A CADET IS RETAINED AT THE ACADEMY FOR FIVE YEARS BECAUSE OF HIS INABILITY TO KEEP UP WITH HIS CLASS AND COMPLETE THE COURSE IN THE PRESCRIBED FOUR YEARS, HE RECEIVES HIS FIRST LONGEVITY INCREASE OF PAY IMMEDIATELY UPON BEING GRADUATED AND COMMISSIONED AS A SECOND LIEUTENANT. IN OTHER WORDS, HIS OWN DEFICIENCY OR INABILITY AS A STUDENT GIVES HIM AN ADVANTAGE OF A YEAR, IN RESPECT OF SERVICE INCREASE OF PAY, OVER THOSE WHO WERE GRADUATED AND COMMISSIONED WITH HIM AFTER COMPLETING THE COURSE IN FOUR YEARS; AND IT GIVES HIM AN ADVANTAGE OF FIVE YEARS OVER SECOND LIEUTENANTS APPOINTED FROM CIVIL LIFE. FORMER NAVAL CADETS OR MIDSHIPMEN, OF WHOM A GOOD MANY HAVE BEEN APPOINTED SECOND LIEUTENANTS IN THE ARMY, BEGIN THEIR MILITARY CAREERS WITH AN ALLOWANCE OF FOUR TO SIX YEARS' SERVICE FOR LONGEVITY PAY PURPOSES, AND THE ADVANTAGE THUS GIVEN THEM IN THIS RESPECT OVER GRADUATES OF THE MILITARY ACADEMY AND APPOINTEES FROM CIVIL LIFE CONTINUES THROUGH ALL OF THE FOUR PERIODS FOR WHICH INCREASE OF PAY FOR LENGTH OF SERVICE IS ALLOWED BY LAW.

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. U.S., 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" WITHIN THE MEANING OF THE ARMY APPROPRIATION ACT APPROVED FEBRUARY 24, 1881 (21 STAT. L., 346), WHICH PROVIDED THAT "THE ACTUAL TIME OF SERVICE IN THE ARMY OR NAVY, OR BOTH, SHALL BE ALLOWED ALL OFFICERS IN COMPUTING THEIR PAY.'

THE TOTAL NUMBER OF OFFICERS OF THE ARMY, ACTIVE AND RETIRED, WHO ARE NOW ENJOYING LONGEVITY INCREASES OF PAY TO WHICH THEY WOULD NOT BE ENTITLED IF IT WERE NOT FOR THE PRIVILEGE OF COUNTING TIME SPENT BY THEM AS CADETS OF THE MILITARY ACADEMY OR AS NAVAL CADETS OR MIDSHIPMEN IS 1,166, AND THE TOTAL AMOUNT OF INCREASES OF PAY SO ENJOYED IS $243,462.50 ANNUALLY.

IN ADDITION TO COUNTING SERVICE AS A CADET OF THE MILITARY ACADEMY IN COMPUTING LENGTH OF SERVICE FOR LONGEVITY INCREASE OF PAY, SUCH SERVICE IS COUNTED UNDER THE LAW AUTHORIZING THE RETIREMENT OF OFFICERS ON THEIR OWN APPLICATIONS AFTER 30 YEARS OF SERVICE. THE GRADUATE OF THE MILITARY ACADEMY IS ELIGIBLE FOR RETIREMENT UNDER THE LAW AFTER 26 YEARS' SERVICE AS A COMMISSIONED OFFICER, WHEREAS THE OFFICER APPOINTED FROM CIVIL LIFE MUST SERVE 30 FULL YEARS BEFORE HIS APPLICATION FOR RETIREMENT UNDER THAT LAW CAN BE FAVORABLY CONSIDERED. SIMILARLY, CADET SERVICE IS COUNTED IN DETERMINING THE ELIGIBILITY OF OFFICERS FOR RETIREMENT UNDER THE LAW THAT REQUIRES THAT THEY SHALL BE RETIRED ON THEIR OWN APPLICATIONS AFTER 40 YEARS OF SERVICE. 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.

IT IS BELIEVED THAT THIS PRACTICE OF COUNTING THE PERIOD OF CADET SERVICE IN COMPUTING THE LENGTH OF SERVICE OF OFFICERS FOR ANY PURPOSE IS AS INDEFENSIBLE AS IT IS ILLOGICAL AND UNFAIR, AND CONSEQUENTLY, IT IS PROPOSED BY SECTION 7 OF THE BILL TO ABOLISH IT. * * *

THUS IT CLEARLY APPEARS THAT THE LEGISLATIVE PURPOSE OF THE PROVISIONS IN THE 1912 AND 1913 STATUTES WAS TO ABOLISH THE SO DENOMINATED "PREPOSTEROUS," "INDEFENSIBLE," "ILLOGICAL AND UNFAIR" PRACTISE OF PERMITTING OFFICERS TO RECEIVE INCREASED MONETARY BENEFITS ON THE BASIS OF HAVING HAD PRIOR SERVICE AS CADETS OR MIDSHIPMEN AT THE MILITARY OR NAVAL ACADEMIES. THE PRIMARY OBJECT WAS TO END THE RESULTING DISCRIMINATION PAY AND RETIREMENT BENEFITS IN FAVOR OF ACADEMY MEN AS AGAIN APPOINTED FROM CIVIL LIFE WHO HAD PAID FOR THEIR OWN PRELIMINARY EDUCATION. TO VIEW THE SAID PROVISIONS IN THE 1912 AND 1913 STATUTES AS PROHIBITING THE INCLUSION OF CADET AND MIDSHIPMAN SERVICE IN DETERMINING THE LENGTH OF SERVICE FOR RETIREMENT AND LONGEVITY PAY PURPOSES BUT AS PERMITTING THE INCLUSION THEREOF SO AS TO BESTOW A SUBSTANTIAL INCREASE IN THE RETIRED RANK AND PAY ON CERTAIN OFFICERS OF THE ARMY AND NAVY SOLELY BECAUSE OF SUCH CADET OR MIDSHIPMAN SERVICE WOULD BUT RENEW IN A SLIGHTLY DIFFERENT FORM SUCH LEGISLATIVELY PRESCRIBED DISCRIMINATION AND WOULD SEEM TO IGNORE COMPLETELY THE CLEAR LEGISLATIVE POLICY AND PURPOSE IN THAT RESPECT AS EXPRESSED IN THE 1906, 1912 AND 1913 STATUTES. IT WILL BE NOTED THAT A PROVISION LIKE THAT APPEARING IN THE ACTS OF JUNE 13, 1940, AND JULY 29, 1941, APPLICABLE TO ARMY OFFICERS, IS CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 368, THE PURPOSE THEREOF BEING TO EXTEND TO OFFICERS OF THE NAVY CERTAIN INCREASED RETIRED PAY BENEFITS BESTOWED UPON ARMY OFFICERS BY THE ACT OF JUNE 13, 1940. SEE DECISION OF SEPTEMBER 18, 1945, 25 COMP. GEN. 274. ALTHOUGH THIS OFFICE THERETOFORE HAD CONSTRUED THE SAID 1940 AND 1941 ACTS AS NOT AUTHORIZING THE INCLUSION OF CADET SERVICE IN DETERMINING WHETHER AN OFFICER HAD SERVED IN THE MILITARY OF NAVAL FORCES PRIOR TO NOVEMBER 12, 1918 (21 COMP. GEN. 319), NO ATTEMPT APPEARS TO HAVE BEEN MADE TO HAVE SUCH SERVICE INCLUDED UPON THE SUBSEQUENT ENACTMENT OF THE SAID SIMILAR PROVISION IN THE ACT OF JUNE 16, 1942. A FURTHER EXAMPLE OF THE LEGISLATIVE POLICY OF EXCLUDING CADETS AND MIDSHIPMEN FROM THE MONETARY BENEFITS BESTOWED UPON MEMBERS OF THE ARMED FORCES GENERALLY, IS CONTAINED IN SECTION B (7) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, 9, SPECIFICALLY EXCLUDING FROM THE BENEFITS OF THAT ACT ANY MEMBER OF THE ARMED FORCES WHOSE SOLE SERVICE HAS BEEN AS A CADET OR MIDSHIPMAN AT ONE OF THE ACADEMIES, THE PURPOSE APPARENTLY BEING TO MAKE DOUBLY CERTAIN THAT SUCH SERVICE WOULD BE EXCLUDED, ALTHOUGH THE ACCOUNTING OFFICERS THERETOFORE HAD HELD ON A SIMILAR MATTER THAT MIDSHIPMEN AND CADETS AT THE ACADEMIES WERE NOT PERSONS "SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1406 OF THE ACT OF FEBRUARY 24, 1919, 40 STAT. 1151, AUTHORIZING A WAR SERVICE GRATUITY OF $60 FOR PERSONS SERVING IN SUCH FORCES DURING THE FIRST WORLD WAR PRIOR TO NOVEMBER 12, 1918. SEE 26 COMP. DEC. 236 AND 1 COMP. GEN. 262. AND COMPARE THE PROVISION OF SECTION 10 OF THE ACT OF JULY 13, 1943, 57 STAT. 556, SPECIFICALLY PROVIDING THAT SERVICE AS A CADET OR MIDSHIPMAN ON OR AFTER DECEMBER 7, 1941, AND BEFORE THE TERMINATION OF HOSTILITIES INCIDENT TO THE PRESENT WAR AS DETERMINED BY THE PRESIDENT OR CONCURRENT RESOLUTION OF THE CONGRESS SHALL BE CONSIDERED ACTIVE MILITARY OR NAVAL SERVICE IN WORLD WAR II FOR THE PURPOSE OF LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION, IT APPARENTLY BEING REGARDED AS SUCH A SPECIFIC PROVISION WAS NEEDED TO BRING CADET AND MIDSHIPMAN SERVICE WITHIN THE TERM ACTIVE MILITARY OR NAVAL SERVICE.

IN VIEW OF THE CITED DECISIONS OF THE COURTS AND ACCOUNTING OFFICERS AND THE LEGISLATIVE POLICY SHOWN BY ENACTMENTS PRECLUDING THE INCLUSION OF MIDSHIPMAN AND CADET SERVICE FOR INCREASED PAY PURPOSES, I HAVE TO ADVISE THAT IN THE ABSENCE OF A FAVORABLE JUDICIAL DETERMINATION OF THE SPECIFIC QUESTION THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT AN OFFICER WHOSE ONLY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS THAT OF A MIDSHIPMAN APPOINTED TO THE NAVAL ACADEMY "SERVED IN THE NAVY OR NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF SECTION 12 (K) OF THE ACT OF JUNE 23, 1938, AS AMENDED.

IT APPEARS THAT THE OFFICER INVOLVED IN THE SECOND QUESTION SERVED AS AN ENLISTED MAN FROM APRIL 1, 1914, TO MAY 31, 1916; AS A MIDSHIPMAN FROM JUNE 1, 1916, TO JUNE 5, 1919; WAS COMMISSIONED AN ENSIGN JUNE 6, 1919; AND AT THE TIME OF HIS RETIREMENT ON SEPTEMBER 1, 1945, UNDER THE PROVISIONS OF SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950 (34 U.S.C. 404 (E), HELD THE PERMANENT RANK OF COMMANDER. THE SAID SECTION 12 (E) PROVIDES AS FOLLOWS:

WHEN OFFICERS OF THE LINE OF THE NAVY, OTHER THAN COMMISSIONED WARRANT OFFICERS, HAVE COMPLETED TWENTY YEARS' COMMISSIONED SERVICE, THEY MAY AT ANY TIME THEREAFTER, UPON THEIR OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH RETIRED PAY COMPUTED AS PROVIDED IN SUBSECTION (B) OF THIS SECTION.

SECTION 12 (B) OF THE SAID ACT AUTHORIZES RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF AN OFFICER'S ACTIVE DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS' SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH ACTIVE DUTY PAY. HOWEVER, SINCE THE OFFICER HERE INVOLVED WAS RETIRED SUBSEQUENT TO THE ENACTMENT OF THE PAY READJUSTMENT ACT OF 1942, AND IN ADDITION TO HIS ACADEMY SERVICE HAD SERVED AS AN ENLISTED MAN DURING THE PERIOD APRIL 1, 1914, TO MAY 31, 1916, THAT IS, PRIOR TO NOVEMBER 12, 1918, HIS CASE COMES WITHIN THE PROVISION IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, THAT THE RETIRED PAY OF ANY OFFICER THEREAFTER 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 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT. ON THAT BASIS, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE, IT BEING ASSUMED THAT THE OFFICER WAS SERVING IN HIS PERMANENT GRADE OF COMMANDER AT THE TIME OF RETIREMENT OR, IF SERVING IN A HIGHER TEMPORARY GRADE, THAT HE WAS ENTITLED TO BE PLACED ON THE RETIRED LIST IN SUCH HIGHER TEMPORARY GRADE UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA. SEE 25 COMP. GEN. 274.