B-61208, JANUARY 7, 1947, 26 COMP. GEN. 455

B-61208: Jan 7, 1947

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AS FOLLOWS: THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE OFFICER-IN-CHARGE. YOUR DECISION IS REQUESTED ON THE QUESTIONS PRESENTED IN THE ENCLOSURE. IS ENTITLED TO COUNT FOR PAY PURPOSES INACTIVE SERVICE AS AN ENLISTED MAN IN THE UNITED STATES NAVAL RESERVE FOR THE PERIOD JUNE 15. DURING WHICH PERIOD HE WAS A MIDSHIPMAN AT THE U.S. DURING WHICH HE WAS A MIDSHIPMAN AT THE U.S. IN CASE HE DID HAVE TOTAL SERVICE OF 25 YEARS. WHICH IS LESS THAN THE RETIRED PAY COMPUTED UNDER (1) AND (2) ABOVE. WHICH IS ADDRESSED TO YOU BY THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS. IS. IT IS WELL ESTABLISHED THAT NEITHER COMMANDER DAVID HAYWARD MCCLINTOCK. IT IS ALSO WELL ESTABLISHED THAT SUCH OFFICERS ARE ENTITLED TO COUNT FOR PAY PURPOSES UNDER THE PROVISIONS OF REFERENCE (J).

B-61208, JANUARY 7, 1947, 26 COMP. GEN. 455

PAY - LONGEVITY CREDITS - NAVAL RESERVE SERVICE - RESERVISTS APPOINTED AS MIDSHIPMEN IN VIEW OF THE PROHIBITION IN THE ACT OF AUGUST 29, 1916, AGAINST MEMBERS OF THE NAVAL RESERVE FORCE ACCEPTING EMPLOYMENT AS OFFICERS OR ENLISTED MEN IN ANY BRANCH OF THE MILITARY SERVICE, AND THAT IN SECTION 4 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, AGAINST MEMBERS OF THE NAVAL RESERVE BEING MEMBERS OF OTHER MILITARY OR NAVAL ORGANIZATIONS, THE APPOINTMENT OF RESERVISTS AS MIDSHIPMEN AT THE NAVAL ACADEMY TERMINATED THEIR RESERVE STATUS, SO THAT NO PERIOD AFTER SUCH APPOINTMENT MAY BE COUNTED AS RESERVE SERVICE UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FOR PAY PURPOSES. 23 COMP. GEN. 939 AND 25 ID. 655, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO SECRETARY OF THE NAVY, JANUARY 7, 1947.

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 7, 1946, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE OFFICER-IN-CHARGE, OFFICERS' ACCOUNTS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, WASHINGTON, D.C., DATED AUGUST 13, 1946, WITH ACCOMPANYING ENDORSEMENT, RELATIVE TO THE COMPUTATION OF LONGEVITY PAY IN THE CASE OF COMMANDER DAVID HAYWARD MCCLINTOCK, U.S. NAVY, AND LIEUTENANT COMMANDER HARRELL W. HALL, U.S. NAVY.

YOUR DECISION IS REQUESTED ON THE QUESTIONS PRESENTED IN THE ENCLOSURE, AS FOLLOWS:

(1) WHETHER COMMANDER DAVID HAYWARD MCCLINTOCK, U.S. NAVY, IS ENTITLED TO COUNT FOR PAY PURPOSES INACTIVE SERVICE AS AN ENLISTED MAN IN THE UNITED STATES NAVAL RESERVE FOR THE PERIOD JUNE 15, 1931, TO JUNE 22, 1934, INCLUSIVE, DURING WHICH PERIOD HE WAS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY.

(2) WHETHER LIEUTENANT COMMANDER HARRELL W. HALL, U.S. NAVY, MAY COUNT FOR PAY PURPOSES INACTIVE SERVICE AS AN ENLISTED MAN IN THE NAVAL RESERVE FORCE FOR THE PERIOD DECEMBER 18, 1918, TO SEPTEMBER 30, 1921, DURING WHICH HE WAS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY.

(3) WHETHER LIEUTENANT COMMANDER HARRELL W. HALL, U.S. NAVY, IN CASE HE DID HAVE TOTAL SERVICE OF 25 YEARS, 6 MONTHS AND 21 DAYS CREDITABLE FOR PAY PURPOSES, WOULD BE ENTITLED ON AND AFTER JANUARY 1, 1947, TO RETIRED PAY:

(A) COMPUTED UNDER SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946 ( PUBLIC LAW 305--- 79TH CONGRESS), AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED (37 U.S.C. 115, SUPP. V), AS---

(1) 75 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 24 YEARS' SERVICE, $336.88;

(2) 65 PERCENT OF THE PAY OF A LIEUTENANT COMMANDER WITH OVER 24 YEARS' SERVICE, $291.96, OR

(3) RETIRED PAY COMPUTED AS 75 PERCENT OF THE PAY PRESCRIBED FOR A LIEUTENANT WITH OVER 24 YEARS' SERVICE, $288.75, WHICH IS LESS THAN THE RETIRED PAY COMPUTED UNDER (1) AND (2) ABOVE.

THE ENDORSEMENT REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER, WHICH IS ADDRESSED TO YOU BY THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IS, IN PART, AS FOLLOWS: SUBJ: REQUEST OF OFFICER-IN CHARGE, OFFICERS' ACCOUNTS DIVISION,

FOR DECISION OF COMPTROLLER GENERAL AS TO THE RIGHT OF AN

OFFICER TO COUNT FOR LONGEVITY PAY PURPOSES, INACTIVE SERVICE

AS AN ENLISTED MAN IN THE NAVAL RESERVE FORCE OR THE NAVAL

RESERVE SUBSEQUENT TO APPOINTMENT AS MIDSHIPMAN, USN. REFS: (A) ACT OF AUGUST 24, 1912 (37 STAT. 594) (37 U.S.C.

4C).

(B) ACT OF MARCH 4, 1913 (57 STAT. 891) (34 U.S.C. 230).

(C) ACT OF AUGUST 29, 1916 (39 STAT. 587).

(D) PARAGRAPH 17 OF THE ACT OF AUGUST 29, 1916 (39 STAT.

588), UNDER HEADING " NAVAL RESERVE FORCE.'

(E) NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1919,

APPROVED JULY 1, 1918 (40 STAT. 708).

(F) ACT OF JULY 11, 1919 (41 STAT. 141).

(G)SECTION 4 OF THE NAVAL RESERVE ACT OF 1925, APPROVED

FEBRUARY 28, 1925.

(H) ACTS OF MAY 28, 1924 (43 STAT. 194), FEBRUARY 11, 1925

(43 STAT. 872), AND MAY 21, 1926 (44 STAT. 604) (14 U.S.

CODE 865, 42 U.S.C. 63).

(I) SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, APPROVED

JUNE 25, 1938.

(J) SECTIONS 1 AND 3A OF THE PAY READJUSTMENT ACT OF 1942,

AS AMENDED.

(K) DECISION OF COMP. GEN. B-32883, DATED 1 APRIL 1943.

(L) DECISION OF COMP. GEN. B-41875, DATED 9 JUNE 1944 (23

COMP. GEN. 939).

(M) DECISION OF COMP. GEN. B-44092, DATED 31 AUGUST 1945

(25 COMP. GEN. 241).

(N) DECISION OF COMP. GEN. B-52344, DATED 20 MARCH 1946

(25 COMP. GEN. 655).

(O) ART. 149 (3), NAVY REGULATIONS 1920.

1. IN VIEW OF THE PROVISIONS OF REFERENCE (B), IT IS WELL ESTABLISHED THAT NEITHER COMMANDER DAVID HAYWARD MCCLINTOCK, USN, 74808, NOR LIEUTENANT COMMANDER HARRELL W. HALL, USN, MAY COUNT FOR PAY PURPOSES SERVICE AS A MIDSHIPMAN FROM 15 JUNE 1931 TO 5 JUNE 1935, AND 16 JUNE 1920 TO 4 JUNE 1924, RESPECTIVELY. IT IS ALSO WELL ESTABLISHED THAT SUCH OFFICERS ARE ENTITLED TO COUNT FOR PAY PURPOSES UNDER THE PROVISIONS OF REFERENCE (J), ENLISTED SERVICE (ACTIVE AND INACTIVE) IN THE NAVAL RESERVE OR NAVAL RESERVE FORCE FROM DATE OF ENLISTMENT OR ENROLLMENT TO DATE PRECEDING DATE OF ACCEPTANCE OF APPOINTMENT AS MIDSHIPMAN. CREDITABLE SERVICE IN THE NAVAL RESERVE IN THE CASE OF COMMANDER MCCLINTOCK EXTENDED FROM 23 JUNE 1930 TO 14 JUNE 1931, AND IN THE CASE OF LIEUTENANT COMMANDER HALL SUCH CREDITABLE SERVICE IN THE NAVAL RESERVE FORCE EXTENDED FROM 1 OCTOBER 1918 TO 15 JUNE 1920. THEREFORE, WHILE THE QUERY IN PARAGRAPH 1 OF THE BASIC LETTER OF 13 AUGUST 1946 IS STATED IN GENERAL LANGUAGE, IT APPEARS THAT THE COGNIZANT DISBURSING OFFICER IS REQUESTING A DECISION AS TO WHETHER THESE OFFICERS ARE ENTITLED TO COUNT FOR PAY PURPOSES INACTIVE SERVICE IN THE NAVAL RESERVE FORCE OR THE NAVAL RESERVE, AS APPLICABLE, WHICH RAN CONCURRENTLY WITH SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY.

2. IN CONNECTION WITH THE CASE OF COMMANDER MCCLINTOCK, IT IS POINTED OUT THAT HE ENLISTED IN THE NAVAL RESERVE, CREATED BY THE ACT OF FEBRUARY 28, 1925, SECTION 4 OF WHICH PROVIDED, INTER ALIA:

"THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.'

SECTION 6 OF THE CITED ACT PROVIDED "THAT IN TIME OF PEACE NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE DISCHARGED EXCEPT UPON EXPIRATION OF HIS TERM OF SERVICE OR UPON HIS OWN REQUEST, OR FOR FULL AND SUFFICIENT CAUSE, IN THE DISCRETION OF THE SECRETARY OF THE NAVY; * * *.' APPOINTMENTS AS MIDSHIPMAN ARE MADE BY THE SECRETARY OF THE NAVY " BY DIRECTION OF THE PRESIDENT.' THEREFORE, IT FOLLOWS THAT THE APPOINTIVE AUTHORITY ( SECRETARY OF THE NAVY) AND THE ADMINISTRATIVE OFFICIAL AUTHORIZED BY THE CITED SECTION TO DISCHARGE AN ENLISTED MEMBER OF THE NAVAL RESERVE, UNDER THE CONDITIONS SET FORTH THEREIN, ARE ONE AND THE SAME OFFICIAL. IT WOULD APPEAR THAT ACCEPTANCE OF APPOINTMENT AS MIDSHIPMAN AND REPORTING TO THE NAVAL ACADEMY TO PURSUE A COURSE OF INSTRUCTION LEADING TO A COMMISSION IN THE NAVY, REPRESENTED A VOLUNTARY RELINQUISHMENT OF HIS ENLISTED STATUS ON THE PART OF COMMANDER MCCLINTOCK AND CONSTITUTED AN AFFIRMATIVE ACTION TANTAMOUNT TO A REQUEST TO ABROGATE, PRIOR TO NORMAL DATE OF EXPIRATION THEREOF, CONTRACT OF ENLISTMENT ENTERED INTO ON 23 JUNE 1930 FOR 4 YEARS. THE PRIMARY PURPOSE OF MAINTAINING A NAVAL RESERVE IS TO PROVIDE A NUCLEUS OF TRAINED MEN WHO HAVE OBLIGATED THEMSELVES TO SERVE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. IT WOULD NOT BE COMPATIBLE WITH SUCH INTENT TO PERMIT AN INDIVIDUAL SERVING UNDER AN APPOINTMENT AS MIDSHIPMAN, USN, TO RETAIN HIS STATUS AS AN ENLISTED MAN OR OFFICER IN THE NAVAL RESERVE, IN VIEW OF THE FACT THAT MIDSHIPMAN STATUS WOULD PRECLUDE THE MEETING OF THE MILITARY OBLIGATIONS IMPOSED UPON MEMBERS OF THE NAVAL RESERVE TO SERVE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. THEREFORE, IT WOULD APPEAR THAT FAILURE OF PROPER ADMINISTRATIVE AUTHORITY TO ISSUE A FORMAL DISCHARGE IN THE CASE OF COMMANDER MCCLINTOCK UNTIL 22 JUNE 1934, DATE OF EXPIRATION OF ENLISTMENT, WOULD NOT SERVE TO OVERCOME OR NULLIFY THE QUOTED STATUTORY PROHIBITION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1925. HOWEVER, UNDER PROVISIONS OF EXISTING LAW, THE DISBURSING OFFICER IS ENTITLED TO REQUEST A DECISION OF THE COMPTROLLER GENERAL ON A PROSPECTIVE PAYMENT PENDING BEFORE HIM, AND THIS BUREAU HAS NO OBJECTION TO SUBMISSION TO THE COMPTROLLER GENERAL FOR DETERMINATION THE QUESTION OF WHETHER COMMANDER MCCLINTOCK IS ENTITLED TO COUNT FOR PAY PURPOSES INACTIVE SERVICE AS AN ENLISTED MAN IN THE NAVAL RESERVE FROM 15 JUNE 1931 TO 22 JUNE 1934, INCLUSIVE.

3. THE RIGHT OF LIEUTENANT COMMANDER HALL TO COUNT INACTIVE SERVICE IN THE NAVAL RESERVE FORCE, WHICH SERVICE RAN CONCURRENTLY WITH PERIOD DURING WHICH HE WAS A MIDSHIPMAN AT THE NAVAL ACADEMY, FROM 18 DECEMBER 1918 TO 30 SEPTEMBER 1921, INVOLVES NOT ONLY HIS ACTIVE DUTY PAY STATUS BUT ALSO HIS RETIRED PAY STATUS, SINCE HE WILL BE TRANSFERRED TO THE RETIRED LIST, EFFECTIVE 1 JANUARY 1947, UNDER THE PROVISIONS OF SECTION 6 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946. THIS OFFICER, WHILE A STUDENT AT CARNEGIE INSTITUTE OF TECHNOLOGY, WAS ENROLLED IN THE NAVAL RESERVE FORCE ON 1 OCTOBER 1918, WAS IMMEDIATELY PLACED ON ACTIVE DUTY WITH THE STUDENT ARMY TRAINING CORPS AT THAT INSTITUTION, AND REMAINED ON ACTIVE DUTY IN THAT CAPACITY UNTIL 18 DECEMBER 1918. THE ACT OF AUGUST 29, 1916 ESTABLISHED, INTER ALIA, THE NAVAL RESERVE FORCE, AND PROVIDED THAT:

"NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER (OF THE NAVAL RESERVE FORCE) FROM ACCEPTING EMPLOYMENT IN ANY BRANCH OF THE PUBLIC SERVICE, EXCEPT AS AN OFFICER OR ENLISTED MAN IN ANY BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES OR ANY STATE THEREOF, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO HIS RETAINER PAY.'

FROM THE FOREGOING, IT APPEARS THAT IT WAS THE INTENT OF THE CONGRESS NOT TO INTERFERE WITH OR RESTRICT THE CIVIL RIGHTS AND PRIVILEGES OF THOSE CITIZENS ENROLLED IN THE NAVAL RESERVE FORCE IN THE MATTER OF ACCEPTING (CIVIL) EMPLOYMENT IN ANY BRANCH OF THE PUBLIC SERVICE, SINCE THE MILITARY OBLIGATION IMPOSED AS A MEMBER OF THE NAVAL RESERVE FORCE IN TIME OF WAR OR NATIONAL EMERGENCY WOULD TAKE PRECEDENCE OVERHIS EMPLOYMENT AS A CIVILIAN IN THE PUBLIC SERVICE (MUNICIPAL, COUNTY, STATE, OR FEDERAL). THIS CONNECTION, IT WILL BE NOTED THAT MEMBERSHIP IN THE THEN EXISTING MILITARY ORGANIZATIONS ( STATE OR NATIONAL) WAS PRECLUDED. IT WILL ALSO BE NOTED THAT PARAGRAPH 1 OF REFERENCE (C), UNDER THE HEADING " FLEET NAVAL RESERVE," PROVIDED THAT ALL FORMER OFFICERS OF THE UNITED STATES NAVAL SERVICE, INCLUDING MIDSHIPMEN, WHO HAVE LEFT THAT SERVICE UNDER HONORABLE CONDITIONS, AND WHO SHALL HAVE ENROLLED IN THE NAVAL RESERVE FORCE, SHALL BE ELIGIBLE FOR MEMBERSHIP IN THE FLEET NAVAL RESERVE. (SEE ALSO PARAGRAPH 11 OF REFERENCE (C) UNDER THE HEADING " NAVAL RESERVE FORCE"). THE ACT OF AUGUST 29, 1916 LIKEWISE ESTABLISHED THE NATIONAL NAVAL VOLUNTEERS AND PROVIDED FOR ENROLLMENT OF MEMBERS OF THE NAVAL MILITIA ( ACT OF FEBRUARY 16, 1914) IN THAT BRANCH OF THE NAVAL SERVICE WITH THE PROVISO THAT SUCH MEMBERS, WHEN CALLED TO ACTIVE DUTY AS MEMBERS OF THE NATIONAL NAVAL VOLUNTEERS, WOULD STAND RELIEVED FROM DUTY AS MEMBERS OF THE NAVAL MILITIA.

4.ALL LAWS RELATING TO THE NATIONAL NAVAL VOLUNTEERS AND NAVAL MILITIA WERE REPEALED BY REFERENCE (E), WHICH AUTHORIZED TRANSFER OF 1 ALL MEMBERS OF THE NATIONAL NAVAL VOLUNTEERS TO APPROPRIATE CLASS IN THE NAVAL RESERVE "REGARDLESS OF THEIR BEING MEMBERS OF A STATE MILITARY FORCE" (PRESUMABLY NAVAL MILITIA OF THE SEVERAL STATES AND TERRITORIES IN WHICH DUAL MEMBERSHIP HAD THERETOFORE BEEN AUTHORIZED BY LAW.) REFERENCE (F) PROVIDED THAT NO PART OR PARTS OF ANY EXISTING LAWS SHALL BE REGARDED AS HAVING DISCHARGED FROM THE NAVAL MILITIA OF ANY STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA, THOSE MEMBERS OF THE NATIONAL NAVAL VOLUNTEERS WHO WERE TRANSFERRED TO THE NAVAL RESERVE FORCE BY AUTHORITY OF THE ACT OF CONGRESS MAKING APPROPRIATIONS FOR THE NAVAL SERVICE, WHICH BECAME A LAW ON JULY 1, 1918; NOR TO PREVENT MEMBERS OF THE NAVAL RESERVE FORCE FROM BEING OR BECOMING MEMBERS OF THE NAVAL MILITIA OF ANY STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA, PROVIDED SUCH MEMBERSHIP IN THE NAVAL MILITIA DID NOT INTERFERE WITH THE DISCHARGE OF DUTIES BY SUCH MEMBERS THEREOF WHO ARE ALSO MEMBERS OF THE NAVAL RESERVE FORCE. THE NAVAL MILITIA WAS RECONSTITUTED A PART OF THE MILITIA OF THE UNITED STATES (32 U.S.C. 1) BY SECTION 28 OF THE ACT OF FEBRUARY 28, 1925, AND PROVISION WAS MADE THEREIN FOR CONCURRENT MEMBERSHIP IN THE NAVAL MILITIA AND FLEET RESERVE OF THE NAVAL RESERVE EXCEPT WHEN AN INDIVIDUAL WITH SUCH DUAL STATUS WAS ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. IN THIS CONNECTION, IT WILL BE NOTED THAT THE LANGUAGE USED IN THE THIRD AND FOURTH PROVISO CLAUSES OF SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, IS SUBSTANTIALLY THE SAME IN CONTEXT AND IMPORT AS THAT PREVIOUSLY CONTAINED IN REFERENCE (D). (SEE ALSO PARAGRAPH 5 OF THE SAME ACT UNDER THE HEADING " NAVAL MILITIA," AND THE SECOND AND THIRD PROVISO CLAUSES OF SECTION 4 THE NAVAL RESERVE ACT OF 1938). IT IS WELL ESTABLISHED THAT MIDSHIPMEN ARE NOT ENLISTED MEN IN THE NAVAL SERVICE, AND IT IS ALSO WELL ESTABLISHED THAT THEY ARE NOT CIVIL EMPLOYEES OF THE UNITED STATES. THE GENERALLY ACCEPTED CONCEPTION IS THAT A MIDSHIPMAN IS A STUDENT AT THE UNITED STATES NAVAL ACADEMY UNDERGOING A COURSE OF INSTRUCTION LEADING TO A COMMISSION IN THE NAVY. (SEE C.M.O. 296--- 1919, P. 14 CITING ART. 1002 (3) (NOW ART. 149 (3) (, NAVY REGULATIONS, WHICH STATES THAT , MIDSHIPMEN ARE, BY LAW, OFFICERS IN A QUALIFIED SENSE. THEY ARE CLASSED AS BEING OF THE LINE.' SEE ALSO C.M.O. 1--- 1924, P. 6, WHEREIN IT WAS HELD THAT " MIDSHIPMEN ARE PERSONS IN THE NAVAL SERVICE WHOSE STATUS IS NOT DISSIMILAR TO A COMMISSIONED OFFICER UNDERGOING TRAINING. THEY ARE NOT ONLY OFFICERS, BUT THEY SERVE UNDER THEIR APPOINTMENTS AS MIDSHIPMEN.'' THE FOREGOING REPRESENTED THE CONCEPT OF THE STATUS OF MIDSHIPMEN DURING THE TIME THE ACT OF AUGUST 29, 1916 REMAINED IN EFFECT, AND THEREFORE, IT WOULD APPEAR THAT THE RESTRICTIVE PROVISION IN REFERENCE (D) MIGHT HAVE BEEN INTENDED TO ENCOMPASS MIDSHIPMEN WITHIN THE TERM "OFFICER," AS USED THEREIN, AND PRECLUDE AN INDIVIDUAL FROM MAINTAINING A LEGAL STATUS AS A MEMBER OF THE NAVAL RESERVE FORCE ON AND AFTER DATE OF ACCEPTANCE OF APPOINTMENT AS MIDSHIPMAN. IN THAT EVENT, THE DECISIONS NOTED AS REFERENCES (K) AND(N) WOULD NOT BE APPLICABLE IN THIS CASE.

5. LIEUTENANT COMMANDER HALL, WHOSE PERMANENT RANK IS LIEUTENANT WILL HAVE, AS OF 1 JANUARY 1947, DATE OF TRANSFER TO THE RETIRED LIST IN HIS TEMPORARY RANK UNDER SECTION 6 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, ACTIVE SERVICE CREDITABLE FOR PAY AND RETIREMENT PURPOSES, TOTALING 22 YEARS 9 MONTHS AND 8 DAYS (ACTIVE ENLISTED SERVICE 10/1-12/12/18, ACTIVE COMMISSIONED SERVICE 6/5/24 12/31/46). IN CASE HIS RETIRED PAY IS COMPUTED ON THE BASIS PRESCRIBED IN SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946, HE WOULD BE ENTITLED TO 57 1/2 PERCENT OF THE PAY PRESCRIBED FOR A LIEUTENANT COMMANDER WITH OVER 21 YEARS SERVICE, OR $213.47 PER MONTH. HOWEVER, IF THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 IS CONTROLLING IN DETERMINING THE PERCENTAGE MULTIPLE OF RETIRED PAY OF OFFICERS RETIRED IN HIGHER TEMPORARY RANK UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, LIEUTENANT COMMANDER HALL WOULD BE ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENT OF THE PAY PRESCRIBED FOR A LIEUTENANT COMMANDER WITH OVER 21 YEARS SERVICE, OR $278.44. SINCE THE PAY PRESCRIBED FOR A LIEUTENANT WITH OVER 17 YEARS' SERVICE AND A LIEUTENANT COMMANDER WITH LESS THAN 23 YEARS SERVICE IS THE SAME, NO CHANGE IN RETIRED PAY STATUS WOULD RESULT IF THE RULE IN 25 COMP. GEN. 274 WERE APPLIED. HOWEVER, IF IT IS HELD THAT INACTIVE SERVICE AS AN ENLISTED MAN FROM 16 JUNE 1920 TO 4 JUNE 1924 MAY BE COUNTED, THE INCLUSION OF SUCH SERVICE WOULD INCREASE THE AMOUNT CREDITABLE FOR PAY PURPOSES BY 2 YEARS 9 MONTHS AND 13 DAYS (TOTAL SERVICE--- 25 YEARS 6 MONTHS AND 21 DAYS AS OF 31 DECEMBER 1946) AND PLACE THIS OFFICER IN THE FIFTH PAY PERIOD ( LIEUTENANT COMMANDER WITH OVER 23 YEARS SERVICE) AND WITH OVER 24 YEARS SERVICE CREDITABLE FOR PAY PURPOSES. THEN THE QUESTION WOULD ARISE AS TO WHETHER THE PERCENTAGE MULTIPLE OR RATE APPLICABLE IN DETERMINING RETIRED PAY IS COMPUTED UNDER SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946 ON THE BASIS OF HIS TEMPORARY RANK, OR WHETHER THE PERCENTAGE MULTIPLE OR RATE APPLICABLE AS SET FORTH IN PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WOULD APPLY IN DETERMINING RETIRED PAY ON THE BASIS OF HIS PERMANENT RANK.

THE ACT OF MARCH 4, 1913, 37 STAT. 891, AS AMENDED (AS CODIFIED IN 34 U.S.C. 230), PROVIDES AS FOLLOWS:

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.

THE ABOVE-QUOTED STATUTE MAKES IT ABUNDANTLY CLEAR (AS RECOGNIZED IN YOUR SUBMISSION) THAT MIDSHIPMAN SERVICE, AS SUCH, AT THE NAVAL ACADEMY (UNDER AN APPOINTMENT MADE AFTER MARCH 4, 1913) MAY NOT BE INCLUDED IN COMPUTING THE LENGTH OF SERVICE OF A NAVY OFFICER FOR PAY, OR OTHER, PURPOSES. SEE, ALSO, UNITED STATES V. NOCE (1925), 268 U.S. 613. HOWEVER, THE OFFICERS INVOLVED IN YOUR QUESTIONS WERE ENLISTED NAVAL RESERVISTS WHEN APPOINTED TO THE NAVAL ACADEMY AND THEY CLAIM TO HAVE HAD PERIODS OF INACTIVE ENLISTED RESERVE SERVICE WHICH SHOULD BE INCLUDED IN THE COMPUTATION OF THEIR SERVICE FOR PAY PURPOSES ALTHOUGH THEY ACTUALLY SERVED AS MIDSHIPMEN AT THE NAVAL ACADEMY DURING THE PERIODS SO CLAIMED.

SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED (AS CODIFIED IN 37 U.S.C., SUPP. V, 103A), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF PERSONS PAID UNDER THE PROVISIONS OF SECTIONS 101, 103, 108, OR 109 OF THIS TITLE, SUCH PERSONS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY THE SECTIONS UNDER WHICH THEY ARE PAID, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED * * * IN THE NAVAL RESERVE FORCE, NAVAL RESERVE * * *.

UNDER THE TERMS OF THE ABOVE-QUOTED SECTION, THE OFFICERS HERE INVOLVED CLEARLY WOULD HAVE BEEN ENTITLED TO HAVE THE CLAIMED PERIODS OF INACTIVE RESERVE SERVICE COUNTED FOR PAY PURPOSES HAD THEY NOT HELD THEIR APPOINTMENTS AS MIDSHIPMEN.

WITH REFERENCE TO YOUR FIRST QUESTION, IT APPEARS THAT ON JUNE 23, 1930, COMMANDER MCCLINTOCK ENLISTED IN THE NAVAL RESERVE (CREATED BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080) AND THAT HE WAS NOT FORMALLY DISCHARGED FROM SUCH ENLISTMENT UNTIL JUNE 22, 1934, BUT THAT, ON JUNE 15, 1931, APPROXIMATELY THREE YEARS PRIOR TO SUCH FORMAL DISCHARGE, HE WAS APPOINTED AND ENTERED ON SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY. AS STATED IN THE LETTER OF THE ACTING CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, SUPRA, THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925 (WHICH WAS IN EFFECT AT THE TIME OF COMMANDER MCCLINTOCK'S APPOINTMENT AS MIDSHIPMAN AND THEREAFTER UNTIL IT WAS REPEALED AND SUPERSEDED BY THE NAVAL RESERVE ACT OF 1938) SPECIFICALLY PROVIDES, IN SECTION 4 THEREOF, 43 STAT. 1081, THAT "NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA.' THAT PROVISION, AND AN IDENTICAL PROVISION IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, SEEM TO BAR AN OFFICER OR ENLISTED MAN OF THE NAVAL RESERVE FROM BECOMING A MEMBER OF THE REGULAR NAVY AND AT THE SAME TIME RETAINING HIS STATUS AS A MEMBER OF THE NAVAL RESERVE; AND IT APPEARS THAT THE SAID PROVISIONS CONSISTENTLY HAVE BEEN SO CONSTRUED BY THE NAVY DEPARTMENT. FROM THE ORIGIN AND HISTORY OF "MIDSHIPMEN" OF THE NAVY AND FROM THE LAWS AND REGULATIONS PERTAINING TO MIDSHIPMEN AT THE NAVAL ACADEMY, IT SEEMS CLEAR THAT THEY ARE AND ALWAYS HAVE BEEN CONSIDERED MEMBERS OF THE REGULAR NAVY. (CF. DECISION OF THE COURTS AND OF THE ACCOUNTING OFFICERS CITED HEREINAFTER IN CONNECTION WITH YOUR SECOND QUESTION.) SINCE THE REGULAR NAVY AND THE NAVAL PRESERVE ARE UNDER THE JURISDICTION OF THE SAME AUTHORITIES, COMMANDER MCCLINTOCK'S APPOINTMENT AS A MIDSHIPMAN WAS TANTAMOUNT TO HIS DISCHARGE FROM THE NAVAL RESERVE. CF. 25 COMP. GEN. 241; ID. 313. HENCE, IT MUST BE HELD THAT UPON SUCH APPOINTMENT COMMANDER MCCLINTOCK CEASED TO BE A MEMBER OF THE NAVAL RESERVE EVEN THOUGH A DISCHARGE FROM HIS ENLISTMENT IN THE NAVAL RESERVE, DENOMINATED AS SUCH, WAS NOT ISSUED UNTIL SEVERAL YEARS LATER. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

DIFFERENCES IN PERTINENT STATUTORY PROVISIONS MAKE COMMANDER MCCLINTOCK'S CASE CLEARLY DISTINGUISHABLE FROM THE CASES CONSIDERED IN 25 COMP. GEN. 655, AND IN DECISION OF APRIL 1, 1943, B-32883, WHICH HELD, RESPECTIVELY, (1) THAT INACTIVE SERVICE AS A MEMBER OF THE ENLISTED RESERVE CORPS WHICH RAN CONCURRENTLY WITH SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY COULD BE COUNTED FOR PAY PURPOSES BY AN ARMY OFFICER, AND (2) THE INACTIVE SERVICE AS A MEMBER OF THE OFFICERS RESERVE CORPS WHICH RAN CONCURRENTLY WITH SERVICE AS A CADET AT THE COAST GUARD ACADEMY COULD BE COUNTED FOR PAY PURPOSES BY A COAST GUARD OFFICER. FOR MANIFEST REASONS THE PRESENT CASE ALSO IS DISTINGUISHABLE FROM THAT CONSIDERED IN DECISION OF JUNE 9, 1944, 23 COMP. GEN. 939, WHICH HELD THAT INACTIVE ENLISTED NAVAL RESERVE SERVICE WHICH RAN CONCURRENTLY WITH SERVICE AS MIDSHIPMEN (TEMPORARY) OF THE NAVAL RESERVE COULD BE COUNTED FOR PAY PURPOSES BY OFFICERS OF THE NAVAL RESERVE.

WITH RESPECT TO YOUR SECOND QUESTIONS, INVOLVING LIEUTENANT COMMANDER HALL, IT APPEARS THAT HIS CASE DIFFERS FROM THE CASE OF COMMANDER MCCLINTOCK, CONSIDERED ABOVE, IN ONLY ON PARTICULAR WHICH MIGHT BE MATERIAL, NAMELY, THE DIFFERENCE IN LANGUAGE BETWEEN THE PERTINENT PROVISIONS OF SECTION 4 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, SUPRA, AND THE CORRESPONDING PROVISIONS UNDER THE HEADING " NAVAL RESERVE FORCE" IN THE ACT OF AUGUST 29, 1916, 39 STAT. 588, THE LATTER ACT HAVING BEEN IN EFFECT DURING THE PERIOD WHEN COMMANDER HALL ENLISTED IN THE NAVAL RESERVE FORCE AND SERVED AS A MIDSHIPMAN AT THE NAVAL ACADEMY. THE PERTINENT PROVISIONS OF THE TWO ACTS ARE QUOTED IN PARAGRAPHS 2 AND 3 OF THE BUREAU OF SUPPLIES AND ACCOUNTS LETTER, SUPRA. AS NOTED ABOVE, THE 1925 ACT PROVIDES THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA. THE 1916 ACT PROVIDES, IN EFFECT, THAT NO MEMBER OF THE NAVAL RESERVE FORCE SHALL ACCEPT EMPLOYMENT AS AN OFFICER OR ENLISTED MAN IN ANY BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES OR ANY STATE THEREOF.

THE COURTS ON SEVERAL OCCASIONS HAVE LIKENED THE STATUS OF MIDSHIPMEN AT THE NAVAL ACADEMY TO THAT OF CADETS AT THE MILITARY ACADEMY AND CONCERNING THE LATTER THE COURT OF CLAIMS, IN BABBITT V. UNITED STATES (1880), 16 C.1CLS. 202, CONCLUDED THAT A CADET IS NEITHER A COMMISSIONED OFFICER, A NON-COMMISSIONED OFFICER NOR AN ENLISTED MAN BUT AN "INFERIOR OFFICER" WHO, FOR PURPOSES OF INSTRUCTION, MAY BE REQUIRED TO SERVE AS AN OFFICER, A NON-COMMISSIONED OFFICER OR A PRIVATE.

THE LAW RESPECTING THE STATUS OF CADETS AT THE MILITARY ACADEMY AND MIDSHIPMEN AT THE NAVAL ACADEMY IS SUMMARIZED IN VOLUME 36, AMERICAN JURISPRUDENCE ( TOPIC: MILITARY, SECTION 51, PAGE 217) AS FOLLOWS:

* * * THE LAW IS NOT WELL SETTLED AS TO WHETHER STUDENTS AT THE MILITARY AND NAVAL ACADEMY ARE OFFICERS. FOR THE PURPOSE OF DETERMINING LONGEVITY PAY, THEY WERE FORMERLY SO CLASSED; AND UNDER FORMER STATUTES, CADET ENGINEER GRADUATES WERE SO CLASSED, IN EFFECT, FOR CERTAIN PURPOSES, BUT WITHIN THE MEANING OF A STATUTE PROHIBITING DISMISSALS FROM SERVICE IN TIME OF PEACE, EXCEPT AFTER TRIAL AND CONVICTION BY COURT-MARTIAL, THEY ARE NOT CONSIDERED OFFICERS. * * *

SEE ALSO, UNITED STATES V. BAKER (1888), 125 U.S. 646; UNITED STATES V. COOK (1888), 128 U.S. 254; HARTIGAN V. UNITED STATES (1905) 196 U.S. 169; HOEPPEL V. UNITED STATES (1936), 85 F.2D 237; 8 COMP. DEC. 410; 15 ID. 39; 27 ID. 521; 5 COMP. GEN. 153; 12 ID. 73.

AN EXAMINATION OF THE ABOVE CITED DECISIONS REVEALS THAT MIDSHIPMEN AND CADETS GENERALLY HAVE NOT BEEN CONSIDERED AS BEING COMMISSIONED OFFICERS OR AS BEING ENLISTED MEN BUT THAT FOR THE PURPOSE OF CERTAIN STATUTES THEY HAVE BEEN CONSIDERED AS OFFICERS (IN A QUALIFIED SENSE) PARTICULARLY WHERE THE STATUTE (COUPLING THE WORD "OFFICERS" WITH THE TERM "ENLISTED MEN") REFERS TO "OFFICERS AND ENLISTED MEN.' IN THIS CONNECTION, THE SUPREME COURT OF THE UNITED STATES, IN CONSTRUING A STATUTE RELATING TO LONGEVITY PAY, CASE OF UNITED STATES V. HENDEE (1888), 124 U.S. 309, 313, STATED:

* * * WE THINK THE WORDS "OFFICERS OR ENLISTED MEN IN THE REGULAR OR VOLUNTEER ARMY OR NAVY, OR BOTH," WAS INTENDED TO INCLUDE ALL MEN REGULARLY IN SERVICE IN THE ARMY OR NAVY, AND THAT THE EXPRESSION "OFFICERS OR ENLISTED MEN" IS NOT TO BE CONSTRUED DISTRIBUTIVELY AS REQUIRING THAT A PERSON SHOULD BE AN ENLISTED MAN, OR AN OFFICER NOMINATED AND APPOINTED BY THE PRESIDENT, OR BY THE HEAD OF A DEPARTMENT, BUT THAT IT WAS MEANT TO INCLUDE ALL MEN IN SERVICE, EITHER BY ENLISTMENT OR REGULAR APPOINTMENT IN THE ARMY OR NAVY. * * *

IF THE REGULAR NAVY IS TO BE CONSIDERED A BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES WITHIN THE MEANING OF THE PROVISION OF THE 1916 ACT, SUPRA, THEN IT SEEMS ENTIRELY APPROPRIATE TO APPLY THE REASONING OF THE SUPREME COURT IN THE HENDEE CASE AND TO CONCLUDE THAT A MIDSHIPMAN AT THE NAVAL ACADEMY IS COMPREHENDED BY THE LANGUAGE "OFFICER OR ENLISTED MAN IN ANY BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES" AS USED IN THE SAID PROVISION. IN ITS BROAD SENSE THE TERM ,MILITARY SERVICE" UNDOUBTEDLY INCLUDES THE NAVAL SERVICE. SEE UNITED STATES V. DUNN, 120 U.S. 249, 252; STOCKER V. UNITED STATES, 39 C.1CLS. 300, 306; UNITED STATES V. MCDONALD, 265 F. 754, 61; IN RE OPINION TO THE GOVERNOR ( R.I.-- - 1918), 102 A. 913; MACLEAN V. BRODIGAN, 172 P. 375, 77; 36 AM. JUR. 192, 196, 208, 209; 31 OP. ATTY. GEN. 445; 24 COMP. DEC. 765; A-18094, APRIL 22, 1927. THAT THE TERM WAS USED IN SUCH BROAD SENSE IN THE PROVISION HERE IN QUESTION IS INDICATED BY ITS CONTEXT IN THAT PROVISION AND BY OTHER PROVISIONS OF THE SAME ACT, PARTICULARLY THE PROVISIONS REFERRED TO IN THE ENDORSEMENT QUOTED ABOVE.

NOTHING HAS BEEN FOUND WHICH WOULD INDICATE THAT THE PROVISION OF SECTION 4 OF THE 1925 ACT, DISCUSSED ABOVE, SHOULD BE CONSIDERED AS EFFECTING A MATERIAL CHANGE FROM THE CORRESPONDING PROVISION IN THE 1916 ACT OR THAT THE CHANGED LANGUAGE SHOULD BE CONSIDERED AS EVIDENCING AN INTENTION TO MATERIALLY BROADEN THE SCOPE OF THE STATUTORY PROHIBITION. ON THE CONTRARY, IT WOULD APPEAR THAT THE PROVISION IN THE 1925 ACT WAS INTENDED AS A RESTATEMENT, IN SOMEWHAT CLEARER LANGUAGE, OF THE PROVISION IN THE 1916 ACT WHICH IT SUPERSEDED AND THAT BOTH PROVISIONS WERE INTENDED TO ACCOMPLISH SUBSTANTIALLY THE SAME PURPOSE. CLEARLY THERE IS NO SUCH DIFFERENCE IN THE LANGUAGE OF THE TWO PROVISIONS AS TO JUSTIFY A HOLDING THAT PRIOR TO FEBRUARY 28, 1925, A MEMBER OF THE NAVAL RESERVE FORCE COULD RETAIN SUCH MEMBERSHIP AFTER BECOMING A MEMBER OF THE REGULAR NAVY BUT THAT SINCE FEBRUARY 28, 1925, SUCH CONCURRENT MEMBERSHIP IN THE NAVAL RESERVE AND THE REGULAR NAVY IS PROHIBITED. ACCORDINGLY, ANSWERING YOUR SECOND QUESTION, UPON LIEUTENANT COMMANDER HALL'S APPOINTMENT AS A MIDSHIPMAN AT THE NAVAL ACADEMY HE CEASED TO BE A MEMBER OF THE NAVAL RESERVE FORCE AND HENCE HE MAY NOT COUNT FOR PAY PURPOSES ANY SERVICE AS A MEMBER OF THE NAVAL RESERVE FORCE DURING THE PERIOD WHEN HE WAS A MIDSHIPMAN AT THE NAVAL ACADEMY. IN VIEW OF THE ANSWER TO YOUR SECOND QUESTION, NO ANSWER TO YOUR THIRD QUESTION IS NECESSARY. HOWEVER, IN THAT CONNECTION, SEE DECISION OF DECEMBER 16, 1946, TO THE SECRETARY OF THE TREASURY, B 60127, 26 COMP. GEN. 417.