B-56168, APRIL 12, 1946, 25 COMP. GEN. 718

B-56168: Apr 12, 1946

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AS FOLLOWS: REFERENCE IS MADE TO PUBLIC LAW 281. THAT SUCH DETERMINATION WILL BE MADE BY GRANTING AN INDIVIDUAL SO APPOINTED CREDIT FOR (1) ALL ACTIVE FEDERAL COMMISSIONED SERVICE PERFORMED BY HIM IN THE ARMY OF THE UNITED STATES FROM 7 DECEMBER 1941. WHICHEVER IS THE LATER. AFTER COMPLETION OF THE ACTUAL AND CONSTRUCTIVE SERVICE IS MADE. THE GREATER FIGURE IS APPLIED AND THE APPOINTMENT IS ACCOMPLISHED IN A GRADE IN ACCORDANCE WITH THE SCHEDULE OF YEARS OF SERVICE PRESCRIBED BY EXISTING LAW FOR THE PROMOTION OF REGULAR ARMY OFFICERS OF THE ARM OR SERVICE IN WHICH SUCH PERSON IS APPOINTED. WITH RESPECT TO THE CONSTRUCTIVE SERVICE AUTHORIZED IN SECTION 5 FOR THE PURPOSE OF DETERMINING GRADE IN WHICH APPOINTMENT IS TO BE MADE AND ALSO AUTHORIZED IN SECTION 7 FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR PROMOTION.

B-56168, APRIL 12, 1946, 25 COMP. GEN. 718

PAY - SERVICE CREDITS - CONSTRUCTIVE SERVICE OF OFFICERS COMMISSIONED IN REGULAR ARMY UNDER ACT OF DECEMBER 28, 1945 THE CONSTRUCTIVE SERVICE BASED ON AGE, ETC., AUTHORIZED TO BE CREDITED FOR APPOINTMENT AND PROMOTION PURPOSES UNDER SECTION 5 AND 7 OF THE ACT OF DECEMBER 28, 1945, PROVIDING FOR THE APPOINTMENT OF ADDITIONAL COMMISSIONED OFFICERS IN THE REGULAR ARMY, MAY NOT BE CREDITED FOR PAY PURPOSES PURSUANT TO SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OR FOR RETIREMENT PAY PURPOSES UNDER THE STATUTES PROVIDING FOR THE RETIREMENT OF REGULAR ARMY OFFICERS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, APRIL 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 20, 1946, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 281, 79TH CONGRESS, APPROVED 28 DECEMBER 1945, ENTITLED " AN ACT TO PROVIDE FOR THE APPOINTMENT OF ADDITIONAL COMMISSIONED OFFICERS IN THE REGULAR ARMY, AND FOR OTHER PURPOSES.'

SECTION 5 OF THE ABOVE-CITED ACT PRESCRIBES THE METHOD OF DETERMINING THE GRADE TO BE HELD BY AN INDIVIDUAL APPOINTED IN THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 4 THEREOF AND PROVIDES, IN EFFECT, THAT SUCH DETERMINATION WILL BE MADE BY GRANTING AN INDIVIDUAL SO APPOINTED CREDIT FOR (1) ALL ACTIVE FEDERAL COMMISSIONED SERVICE PERFORMED BY HIM IN THE ARMY OF THE UNITED STATES FROM 7 DECEMBER 1941, OR FROM THE DATE UPON WHICH HE ATTAINED THE AGE OF 21 YEARS, WHICHEVER IS THE LATER, TO DATE OF APPOINTMENT, OR (2) A CONSTRUCTIVE SERVICE CREDIT EQUAL TO THE YEARS, MONTHS, AND DAYS BY WHICH HIS AGE EXCEEDS 25 YEARS AT THE TIME OF APPOINTMENT. AFTER COMPLETION OF THE ACTUAL AND CONSTRUCTIVE SERVICE IS MADE, THE GREATER FIGURE IS APPLIED AND THE APPOINTMENT IS ACCOMPLISHED IN A GRADE IN ACCORDANCE WITH THE SCHEDULE OF YEARS OF SERVICE PRESCRIBED BY EXISTING LAW FOR THE PROMOTION OF REGULAR ARMY OFFICERS OF THE ARM OR SERVICE IN WHICH SUCH PERSON IS APPOINTED.

SECTION 7 OF THE ABOVE-CITED ACT PROVIDES THAT, FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR PROMOTION, EACH PERSON APPOINTED AS A COMMISSIONED OFFICER UNDER SECTION 4 THEREOF SHALL BE CREDITED WITH CONTINUOUS COMMISSIONED SERVICE ON THE ACTIVE LIST OF THE REGULAR ARMY EQUAL TO THE PERIOD OF SERVICE CREDITED UNDER SECTION 5.

WITH RESPECT TO THE CONSTRUCTIVE SERVICE AUTHORIZED IN SECTION 5 FOR THE PURPOSE OF DETERMINING GRADE IN WHICH APPOINTMENT IS TO BE MADE AND ALSO AUTHORIZED IN SECTION 7 FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR PROMOTION, THERE NOW ARISES THE QUESTION WHETHER OR NOT SUCH CONSTRUCTIVE SERVICE MAY BE COUNTED FOR PAY PURPOSES PURSUANT TO THE PROVISIONS OF SECTION 3A, ACT OF 7 SEPTEMBER 1944 (58 STAT. 729), AND/OR FOR RETIREMENT PAY COMPUTATION PURPOSES UNDER THE VARIOUS STATUTES AUTHORIZING THE RETIREMENT OF REGULAR ARMY OFFICERS.

THE DEPARTMENT IS RECEIVING MANY INQUIRIES ON THIS SUBJECT FROM TEMPORARY OFFICERS WHO ARE CONTEMPLATING SUBMISSION OF APPLICATIONS FOR COMMISSIONS IN THE REGULAR ARMY UNDER THE ACT CITED ABOVE. IN ORDER THAT CLEAR AND CONCISE INFORMATION MAY BE FURNISHED IN REPLY TO SUCH INQUIRIES, YOUR EARLY DECISION ON THE QUESTIONS PRESENTED WILL BE APPRECIATED.

PUBLIC LAW 281, 79TH CONGRESS, APPROVED DECEMBER 28, 1945, 59 STAT. 664, 665, PROVIDES, IN PART:

SEC. 4. AT ANY TIME NOT LATER THAN A DATE EIGHT MONTHS FOLLOWING THE DATE OF ENACTMENT OF THIS ACT, THE PRESIDENT IS AUTHORIZED TO APPOINT AND COMMISSION ADDITIONAL OFFICERS IN THE REGULAR ARMY, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IN THE GRADES OF SECOND LIEUTENANT, FIRST LIEUTENANT, CAPTAIN, AND, MAJOR, SUBJECT TO THE CONDITIONS AND LIMITATIONS HEREINAFTER SET FORTH. PERSONS APPOINTED UNDER THE PROVISIONS OF THIS SECTION SHALL---

(A) BE MALE CITIZENS OF THE UNITED STATES, AT LEAST TWENTY-ONE YEARS OF AGE, OF GOOD MORAL CHARACTER, PHYSICALLY QUALIFIED FOR ACTIVE MILITARY SERVICE, AND HAVE SUCH OTHER QUALIFICATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR; AND SHALL

(B) HAVE SERVED HONORABLY IN THE ACTIVE FEDERAL SERVICE AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF ON OR AFTER DECEMBER 7, 1941, IN GRADES EQUAL TO OR HIGHER THAN THOSE PRESCRIBED IN SECTION 5 OF THIS ACT FOR OFFICERS CREDITED WITH THE AMOUNTS OF SERVICE WITH WHICH THEY WOULD BE CREDITED UNDER THAT SECTION IF APPOINTED IN THE REGULAR ARMY.

SEC. 5. EACH PERSON APPOINTED AS A COMMISSIONED OFFICER OF THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 4 OF THIS ACT, SHALL BE CREDITED, AT THE TIME OF APPOINTMENT, WITH SERVICE EQUIVALENT TO THE TOTAL PERIOD OF ACTIVE FEDERAL SERVICE PERFORMED BY HIM AFTER ATTAINING THE AGE OF TWENTY- ONE YEARS AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES OR ANY COMPONENT THEREOF FROM DECEMBER 7, 1941, TO THE DATE OF SUCH APPOINTMENT, OR A PERIOD OF SERVICE EQUAL TO THE NUMBER OF DAYS, MONTHS, AND YEARS BY WHICH HIS AGE AT THE TIME OF SUCH APPOINTMENT EXCEEDS TWENTY- FIVE YEARS, WHICHEVER IS THE GREATER: PROVIDED, THAT IN COMPUTING THE TOTAL PERIOD OF ACTIVE COMMISSIONED FEDERAL SERVICE OF ANY SUCH PERSON WHO WAS HONORABLY DISCHARGED OR RELIEVED FROM ACTIVE SERVICE SUBSEQUENT TO MAY 12, 1945, THERE SHALL ALSO BE CREDITED THE PERIOD FROM THE DATE OF HIS DISCHARGE OR RELIEF FROM ACTIVE SERVICE TO THE DATE OF HIS APPOINTMENT IN THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 4 OF THIS ACT. UPON THE BASIS OF SERVICE SO CREDITED, THE GRADE IN WHICH EACH SUCH PERSON SHALL BE APPOINTED SHALL BE DETERMINED AS FOLLOWS:

(A) PERSONS APPOINTED IN ARMS OR SERVICES OF THE REGULAR ARMY, THE OFFICERS OF WHICH ARE ON THE PROMOTION LIST, WHO ARE CREDITED WITH LESS THAN THREE YEARS' SERVICE SHALL BE APPOINTED IN THE GRADE OF SECOND LIEUTENANT; SUCH PERSONS WHO ARE CREDITED WITH THREE OR MORE YEARS' SERVICE, BUT LESS THAN TEN YEARS' SERVICE, SHALL BE APPOINTED IN THE GRADE OF FIRST LIEUTENANT; SUCH PERSONS WHO ARE CREDITED WITH TEN OR MORE YEARS' SERVICE, BUT LESS THAN SEVENTEEN YEARS' SERVICE SHALL BE APPOINTED IN THE GRADE OF CAPTAIN; AND SUCH PERSONS WHO ARE CREDITED WITH SEVENTEEN OR MORE YEARS' SERVICE, BUT LESS THAN TWENTY-THREE YEARS' SERVICE, SHALL BE APPOINTED IN THE GRADE OF MAJOR. SUCH PERSONS SHALL BE PLACED ON THE PROMOTION LIST IMMEDIATELY BELOW THOSE OFFICERS OF THE SAME GRADE HAVING THE SAME OR NEXT GREATER PERIOD OF SERVICE; * * *

SEC. 7. FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR PROMOTION, EACH PERSON APPOINTED AS A COMMISSIONED OFFICER OF THE REGULAR ARMY UNDER THE PROVISIONS OF SECTION 4 OF THIS ACT SHALL BE CREDITED, AS OF THE TIME OF SUCH APPOINTMENT, WITH CONTINUOUS COMMISSIONED SERVICE ON THE ACTIVE LIST OF THE REGULAR ARMY EQUAL TO THE PERIOD OF SERVICE CREDITED TO HIM UNDER SECTION 5 OF THIS ACT. EACH SUCH PERSON APPOINTED IN A PROMOTION-LIST ARM OR SERVICE IN THE GRADE OF MAJOR SHALL BE DEEMED TO HAVE SERVED IN THAT GRADE DURING THAT PORTION OF SUCH CREDITED SERVICE WHICH EXCEEDS SEVENTEEN YEARS.

NOTHING HAS BEEN FOUND IN EITHER THE ACT OR ITS LEGISLATIVE HISTORY INDICATING THAT THE CONSTRUCTIVE SERVICE SPECIFICALLY AUTHORIZED BY THE ACT TO BE CREDITED FOR THE PARTICULAR PURPOSES OF DETERMINING GRADES IN WHICH APPOINTMENTS ARE TO BE MADE AND OF DETERMINING ELIGIBILITY THEREAFTER FOR PROMOTION WAS LEGISLATIVELY INTENDED TO BE CREDITED FOR ANY OTHER PURPOSE WHATEVER. STATUTORY PROVISIONS AUTHORIZING CREDIT IN THE ARMED FORCES FOR SPECIFIED PURPOSES OF CERTAIN ,CONSTRUCTIVE" SERVICE--- THAT IS, TIME DURING WHICH SERVICE IN FACT WAS NOT PERFORMED -- ARE GENERALLY NOT TO BE UNDERSTOOD OR APPLIED AS EXTENDING BEYOND THE PARTICULAR PURPOSES SO SPECIFIED. COMPARE YOUNG V. UNITED STATES, 19 C.1CLS. 145; LAWS V. UNITED STATES, 27 C.1CLS. 69; 14 COMP. DEC. 380; 7 COMP. GEN. 36; 16 ID. 988.

IN CONNECTION WITH THE PRESENT MATTER, THERE HAS BEEN FURNISHED THIS OFFICE A COPY OF A MEMORANDUM DATED JANUARY 29, 1946, BY THE CHIEF OF MILITARY AFFAIRS DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, REACHING THE FOLLOWING CONCLUSION:

IT IS THE OPINION OF THIS OFFICE THAT A PROMOTION-LIST OFFICER APPOINTED IN THE REGULAR ARMY UNDER THE PROVISIONS OF THE ACT OF 28 DECEMBER 1945 ( PUBLIC LAW 261, 79TH CONG.) WILL, BY VIRTUE OF THE FIFTH PROVISO OF SECTION 5, ACT OF 31 JULY 1935 (49 STAT. 507,) AS AMENDED (SEC. 3, ACT 13 JUNE 1940, 54 STAT. 380; 10 U.S.C. 971B), BE ASSUMED TO HAVE AT LEAST THE SAME LENGTH OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY AS ANY OFFICER JUNIOR TO HIM ON THE PROMOTION LIST FOR THE PURPOSE OF DETERMINING HIS ELIGIBILITY FOR RETIREMENT UNDER EITHER THE 15 TO 29 YEAR PROVISIONS OF SECTION 5 OF THE MENTIONED ACT OF 31 JULY 1935, AS AMENDED, SUPRA, OR SECTION 1243 OF THE REVISED STATUTES (10 U.S.C. 943).

THE CITED FIFTH PROVISO OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 381, PROVIDES:

* * * THAT EACH PROMOTION-LIST OFFICER SHALL BE ASSUMED TO HAVE FOR RETIREMENT PURPOSES, AT LEAST THE SAME LENGTH OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY AS ANY OFFICER JUNIOR TO HIM ON THE PROMOTION LIST * * *.

THE CONCLUSION IN THE SAID MEMORANDUM IS THAT PROMOTION-LIST OFFICERS APPOINTED IN THE REGULAR ARMY UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1945, QUOTED ABOVE, WILL BE ENTITLED TO THE BENEFITS OF SUCH FIFTH PROVISO IN THE 1935 ACT, AS AMENDED; THAT IS, AS PROMOTION LIST OFFICERS IN THE REGULAR ARMY THEY WILL BE ASSUMED TO HAVE FOR RETIREMENT PURPOSES AT LEAST THE SAME LENGTH OF ,CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY" AS ANY JUNIOR OFFICER TO THEM ON THE PROMOTION LIST. THAT CONCLUSION IS BASED ON A DISCUSSION OF THE SCOPE AND PURPOSES OF THE EARLIER STATUTE AND THE OPINION DOES NOT IMPLY OR PURPORT TO HOLD THAT OFFICERS APPOINTED UNDER THE SAID ACT OF DECEMBER 28, 1945, WILL BE ENTITLED TO COUNT EITHER FOR RETIREMENT OR PAY PURPOSES THE CONSTRUCTIVE SERVICE BASED ON AGE, ETC., WHICH THE LATTER STATUTE AUTHORIZED TO BE CREDITED FOR THE SPECIFIC PURPOSES OF DETERMINING THEIR GRADE AND PLACE ON THE PROMOTION LIST AT TIME OF APPOINTMENT AND THEIR ELIGIBILITY FOR PROMOTION THEREAFTER.

IN THE ABSENCE OF ANY CLEAR AND DEFINITE INDICATION IN EITHER THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE SAID ACT OF DECEMBER 28, 1945, THAT THE CONSTRUCTIVE SERVICE SO AUTHORIZED TO BE CREDITED FOR APPOINTMENT AND PROMOTION PURPOSES WAS LEGISLATIVELY INTENDED TO BE CREDITED ALSO FOR PAY AND RETIRED PAY PURPOSES, THE QUESTIONS IN THE NEXT TO LAST PARAGRAPH OF YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE. TO HOLD OTHERWISE WOULD MEAN THAT EVERY PERSON 40 YEARS OLD OR OVER NEWLY APPOINTED AS AN OFFICER IN THE REGULAR ARMY UNDER THE SAID ACT OF DECEMBER 28, 1945, WITH CONSTRUCTIVE CREDIT THEREUNDER FOR AGE, WOULD IMMEDIATELY UPON APPOINTMENT BE ELIGIBLE FOR RETIREMENT FOR LIFE WITH RETIRED PAY OF AT LEAST 37 1/2 PERCENTUM OF HIS ACTIVE LIST PAY, EVEN THOUGH HE PREVIOUSLY MAY HAVE MORE THAN A FEW WEEKS OR MONTHS OF ACTUAL MILITARY SERVICE OF ANY KIND. WOULD TAKE THE MOST CLEAR AND CONVINCING EXPRESSION OF THE LEGISLATIVE WILL TO WARRANT A CONCLUSION THAT THE CONGRESS INTENDED TO MAKE ALL OFFICERS APPOINTED UNDER THE ACT ELIGIBLE FOR RETIREMENT WITH PAY FOR LIFE WHEN 40 YEARS OLD, REGARDLESS OF THEIR PRIOR ACTUAL SERVICE. IN THAT CONNECTION IT MAY BE NOTED THAT WHILE THE SAID FIFTH PROVISO OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, RELATES TO CONSTRUCTIVE SERVICE WHICH MAY BE COUNTED "FOR RETIREMENT PURPOSES," IT DOES NOT AUTHORIZE THE COMPUTATION OF RETIRED PAY ON THE BASIS OF SUCH CONSTRUCTIVE SERVICE. THE CONTRARY, A PRECEDING PROVISION IN THE SAID SECTION EXPRESSLY PROVIDES THAT AN OFFICER RETIRED WITH NOT LESS THAN 15 NOR MORE THAN 29 YEARS'"SERVICE" SHALL HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 2 1/2 PERCENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF RETIREMENT, MULTIPLIED BY A NUMBER OF YEARS EQUAL TO THE YEARS OF "HIS ACTIVE SERVICE.'