B-61946, DECEMBER 2, 1946, 26 COMP. GEN. 387

B-61946: Dec 2, 1946

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THE LENGTH OF SERVICE OF NAVY OFFICERS IS NOT APPLICABLE. MAY COUNT MIDSHIPMAN SERVICE IN ORDER TO DETERMINE WHETHER "MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY" HAVE BEEN COMPLETED WITHIN THE MEANING OF THE VOLUNTARY RETIREMENT PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21. THE LETTER FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL IS. THE CHIEF OF NAVAL PERSONNEL IS IN RECEIPT OF SEVERAL REQUESTS FOR VOLUNTARY RETIREMENT IN THE CASES OF OFFICERS OF THE NAVAL RESERVE WHO HAVE SERVED 4 YEARS AT THE NAVAL ACADEMY UNDER APPOINTMENTS ENTERED INTO PRIOR TO 4 MARCH 1913. HAVE NOW COMPLETED A TOTAL OF OVER SIXTEEN BUT LESS THAN TWENTY YEARS OF ACTIVE COMMISSIONED SERVICE IN THE NAVY AND NAVAL RESERVE.

B-61946, DECEMBER 2, 1946, 26 COMP. GEN. 387

RETIREMENT - NAVY OFFICERS - SERVICE CREDITS - MIDSHIPMAN SERVICE NAVAL RESERVE OFFICERS, FORMERLY OFFICERS OF THE REGULAR NAVY, WHO HAD SERVED AS MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY UNDER APPOINTMENTS MADE PRIOR TO MARCH 4, 1913, SO THAT THE PROHIBITION IN THE ACT OF MARCH 4, 1913, AGAINST THE COUNTING OF MIDSHIPMAN SERVICE IN COMPUTING FOR ANY PURPOSE, THE LENGTH OF SERVICE OF NAVY OFFICERS IS NOT APPLICABLE, MAY COUNT MIDSHIPMAN SERVICE IN ORDER TO DETERMINE WHETHER "MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY" HAVE BEEN COMPLETED WITHIN THE MEANING OF THE VOLUNTARY RETIREMENT PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 2, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 18, 1946, FORWARDING A LETTER DATED OCTOBER 28, 1946, FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL, AND REQUESTING A DECISION ON THE SPECIFIC QUESTIONS SET FORTH IN PARAGRAPHS 10 (A) AND 10 (B) THEREOF, RELATIVE TO THE VOLUNTARY RETIREMENT OF CERTAIN OFFICERS OF THE NAVAL RESERVE.

THE LETTER FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL IS, IN PART, AS FOLLOWS: SUBJECT: VOLUNTARY RETIREMENT OF AN OFFICER OF THE NAVAL RESERVE-

COUNTING TIME SERVED AS A MIDSHIPMAN TOWARD. REF: (A) BUPERS LTR. PERS- 3252-ELH/PRS OF 6 AUG. 1946.

(B) PUBLIC LAW 305--- 79TH CONGRESS.

(C) ACT OF 4 MAR. 1913 (37 STAT. 819) AS AMENDED (34 U.S.C.

230).

(D) PAR. 54101-2 (D), BU S AND A MANUAL.

(E) 24 COMP. GEN. 854 OF 26 MAY 1945.

(F) 21 COMP. GEN. 319 OF 13 OCT. 1941.

(G) LINE PERSONNEL ACT OF 23 JUNE 1938, SEC. 12 (D) AND

12 (I) (52 STAT. 949-950; 34 U.S.C. 404 (D) AND 404 (I) ).

(H) CMO 7, 1938, 68 OF 19 OCT. 1938.

(I) JAG:II:WJG:MH OO--- GROW, HAROLD B. P19-2 OF 16 OCT.

1946. ENCL: (A) COPY OF REFERENCE (I).

1. THE CHIEF OF NAVAL PERSONNEL IS IN RECEIPT OF SEVERAL REQUESTS FOR VOLUNTARY RETIREMENT IN THE CASES OF OFFICERS OF THE NAVAL RESERVE WHO HAVE SERVED 4 YEARS AT THE NAVAL ACADEMY UNDER APPOINTMENTS ENTERED INTO PRIOR TO 4 MARCH 1913, RESIGNED SUBSEQUENT TO COMPLETION OF VARIOUS PERIODS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER OF THE NAVY, SUBSEQUENTLY PERFORMED VARIOUS PERIODS OF ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE NAVAL RESERVE, AND HAVE NOW COMPLETED A TOTAL OF OVER SIXTEEN BUT LESS THAN TWENTY YEARS OF ACTIVE COMMISSIONED SERVICE IN THE NAVY AND NAVAL RESERVE, EXCLUSIVE OF TIME SPENT AS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY.

2. SECTIONS 6 AND 7 OF REFERENCE (B) PROVIDE IN PART, RESPECTIVELY, AS FOLLOWS:

"WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.

"/A) EACH OFFICER RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL BE PLACED ON THE RETIRED LIST WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY. * * * OFFICERS RETIRED PURSUANT TO THE FOREGOING SECTIONS OF THIS ACT SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY WITH LONGEVITY CREDIT OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY. * * *"

3. REFERENCE (C) PROVIDES:

"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.'

4. UNDER THE PROVISIONS OF REFERENCE (D), TIME SPENT AT THE NAVAL ACADEMY AS A MIDSHIPMAN MAY NOT BE COUNTED FOR LONGEVITY UNLESS IT COULD LEGALLY HAVE BEEN SO COUNTED ON 30 JUNE 1922, AND THE OFFICER CONCERNED REMAINED ON CONTINUOUS ACTIVE DUTY FROM THAT DATE UNTIL THE DATE OF RETIREMENT.

5. REFERENCE (E) PROVIDES:

"AN OFFICER COMMISSIONED IN THE NAVAL RESERVE AFTER HAVING RESIGNED HIS COMMISSION IN THE REGULAR NAVY IS NOT ENTITLED TO COUNT SERVICE AS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY * * * FOR PURPOSE OF PAY AS A RESERVE OFFICER UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, EVEN THOUGH--- HAVING BEEN AN OFFICER IN SERVICE ON JUNE 30, 1922, ENTITLED TO COUNT MIDSHIPMAN SERVICE--- SUCH SERVICE HAD BEEN INCLUDED IN THE COMPUTATION OF HIS PAY AS A REGULAR NAVY OFFICER UNDER THE ACT OF JUNE 10, 1922.'

6. REFERENCE (F) DISALLOWS CREDIT FOR SERVICE AT THE MILITARY OR NAVAL ACADEMY AS A MIDSHIPMAN AS "SERVICE IN ANY CAPACITY PRIOR TO NOVEMBER 12, 1918" COUNTING TOWARD RETIREMENT.

7. SECTION 12 (D) OF REFERENCE (G) PROVIDES IN PART:

"CAPTAINS, COMMANDERS, AND LIEUTENANT COMMANDERS PROMOTED TO THOSE GRADES BY REASON OF ADJUDGMENT AS FITTED FOR PROMOTION, AND RECOMMENDED * * * FOR RETENTION ON THE ACTIVE LIST, MAY BE CONTINUED ON THE ACTIVE LIST OF THE LINE OF THE NAVY UNTIL THEY SHALL HAVE COMPLETED THIRTY, TWENTY-EIGHT, AND TWENTY-SIX YEARS, RESPECTIVELY, OF COMMISSIONED SERVICE (WITH WHICH COMMISSIONED SERVICE SHALL BE INCLUDED SERVICE AS A COMMISSIONED WARRANT OFFICER, ACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE FORCE, SERVICE AS A MIDSHIPMAN AFTER GRADUATION FROM THE NAVAL ACADEMY, AND SERVICE UNDER A TEMPORARY COMMISSION IN THE NAVY). * * *"

EXAMINATION OF REFERENCE (G) REVEALS THAT AT THE TIME OF ENACTMENT OF THIS ACT (1938) ALL THE OFFICERS IN THE ABOVE QUOTED CATEGORY WERE ELIGIBLE TO INCLUDE TIME SERVED AS A MIDSHIPMAN AT THE NAVAL ACADEMY FOR PAY AND LONGEVITY, SINCE WITH THE MINIMUM REQUIRED SERVICE PERIOD OF 26 YEARS FOR RETIREMENT, GRADUATION FROM THE NAVAL ACADEMY WOULD HAVE OCCURRED IN 1912. IT WOULD APPEAR, THEREFORE, THAT THE CLEAR INTENT OF THIS LAW WOULD BE TO PRECLUDE COUNTING NAVAL ACADEMY TIME IN QUESTION TOWARD RETIREMENT WHETHER OR NOT IT MAY LEGALLY HAVE BEEN SO COUNTED FOR LONGEVITY AND PAY PURPOSES.

8. IN REFERENCE (H), IT WAS HELD, IN PERTINENT SUBSTANCE, THAT SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY ENTERED INTO PRIOR TO 4 MARCH 1913 DID CONSTITUTE SERVICE TOWARD RETIREMENT WITHIN THE MEANING OF SECTION 12 (I) OF REFERENCE (G). THIS OPINION WOULD APPEAR TO BE IN CONFLICT WITH PARAGRAPHS 6 AND 7 HEREOF, AND INSOFAR AS THE QUESTION OF PAY IS INVOLVED, WITH PARAGRAPH 5 HEREOF.

9. IN REFERENCE (A) AN OPINION WAS REQUESTED OF THE OFFICE OF THE JUDGE ADVOCATE GENERAL AS TO WHETHER AN OFFICER WHOSE CASE FALLS WITHIN THE CATEGORY EXPRESSED IN PARAGRAPH 1 HEREOF WAS ELIGIBLE FOR RETIREMENT. REPLY, REFERENCE (I), IT WAS HELD THAT THE OFFICER IN QUESTION COULD COUNT HIS MIDSHIPMAN SERVICE TOWARD RETIREMENT, BUT NO ATTEMPT WAS MADE TO DETERMINE WHETHER HE COULD COUNT IT FOR THE PURPOSE OF COMPUTING HIS PAY ON THE RETIRED LIST.

10. IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT A DECISION OF THE COMPTROLLER GENERAL BE OBTAINED IN THE FOLLOWING QUESTIONS:

(A) A CAPTAIN, U.S. NAVAL RESERVE, HAS PERFORMED SERVICE AS FOLLOWS:

MIDSHIPMAN, USN, 7 JUN 1908-7 JUN 1912, 4 YRS 10 MOS 10 DAYS.

OFFICER, USN, 8 JUN 1912-31 DEC 1926, 14 YRS 6 MOS 23 DAYS.

OFFICER, USNR

COMMISSIONED AND ENTERED ACTIVE DUTY, 1 MAR 1942-1 OCT 1946,

4 YRS 7 MOS 10 DAYS.

TOTAL SERVICE FOR PAY, 19 YRS 1 MOS 23 DAYS.

IF SUCH OFFICER IS PLACED ON THE RETIRED LIST IN ACCORDANCE WITH REFERENCE (I) AND SECTION 6 OF REFERENCE (B), IS HE ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER PROVISIONS OF SECTION 7 (A) OF REFERENCE (B) AS 47 1/2 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 18 YEARS' SERVICE ($226.42/?

(B) A CAPTAIN, U.S. NAVAL RESERVE, HAS PERFORMED SERVICE AS FOLLOWS:

MIDSHIPMAN, USN, 7 JUN 1908-7 JUN 1912, 4 YRS 10 MOS 10 DAYS.

OFFICER, USN, 8 JUNE 1912-31 DEC 1926, 14 YRS 6 MOS 23 DAYS.

OFFICER, USNR ( INACTIVE), 1 JAN 1927-28 FEB 1942, 15 YRS 1

MOS 27 DAYS.

OFFICER, USNR ( ACTIVE), 1 MAR 1942-1 OCT 1946, 4 YRS 7 MOS O

DAYS. TOTAL SERVICE FOR PAY, 30 YRS 10 MOS 10 DAYS.

IF SUCH OFFICER IS PLACED ON THE RETIRED LIST IN ACCORDANCE WITH REFERENCE (I) AND SECTION 6 OF REFERENCE (B), IS HE ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER PROVISIONS OF SECTION 7 (A) OF REFERENCE (B) AS 75 PERCENT OF THE PAY OF A CAPTAIN WITH 30 YEARS' SERVICE ($412.50/?

YOUR SUBMISSION APPEARS TO RECOGNIZE THAT UNDER THE DECISION OF MAY 26, 1945, 24 COMP. GEN. 854, AND THE PROVISIONS OF SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946 ( PUBLIC LAW 305), 60 STAT. 27, THE OFFICERS IN QUESTION ARE NOT ENTITLED TO COUNT THEIR SERVICE AS MIDSHIPMEN IN COMPUTING EITHER THEIR ACTIVE DUTY PAY OR THEIR RETIRED PAY. HENCE, BASICALLY THE ANSWERS TO BOTH OF YOUR QUESTIONS DEPEND ON WHETHER OR NOT THE OFFICERS INVOLVED MAY COUNT THEIR SERVICE AS MIDSHIPMEN FOR THE PURPOSE OF DETERMINING WHETHER THEY HAVE COMPLETED "MORE THAN TWENTY YEARS OF ACTIVE SERVICE" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, QUOTED ABOVE IN PARAGRAPH 2 OF THE LETTER OF THE DEPUTY CHIEF OF NAVAL PERSONNEL

THE DECISION OF OCTOBER 13, 1941, 21 COMP. GEN. 319, HELD AS FOLLOWS (QUOTING FROM THE YLLABUS):

ARMY OFFICERS WHOSE ONLY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS CADET SERVICE IN THE MILITARY 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 24, 1912, AGAINST COUNTING ACADEMY SERVICE "IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.'

THAT DECISION DID NOT PURPORT TO HOLD THAT SERVICE AS A CADET AT THE MILITARY ACADEMY OR AS A MIDSHIPMAN AT THE NAVAL ACADEMY COULD NOT BE COUNTED BY AN ARMY OFFICER, FOR THE PURPOSES OF THE RETIREMENT PROVISIONS THERE INVOLVED, IF SUCH SERVICE WAS PERFORMED UNDER AN APPOINTMENT AS CADET OR MIDSHIPMAN MADE PRIOR TO THE ACT OF AUGUST 24, 1912, 37 STAT. 594 --- WHICH ACT CONTAINS PROVISIONS RELATIVE TO ARMY OFFICERS SIMILAR TO THOSE CONTAINED IN THE ACT OF MARCH 4, 1913, 37 STAT. 891 (QUOTED ABOVE IN PARAGRAPH 3 OF THE LETTER OF THE DEPUTY CHIEF OF NAVAL PERSONNEL), RELATING TO NAVY OFFICERS. SINCE THE OFFICERS INVOLVED IN YOUR QUESTION BOTH PERFORMED THEIR FOUR YEARS' SERVICE AS MIDSHIPMEN AT THE NAVAL ACADEMY UNDER APPOINTMENTS MADE PRIOR TO MARCH 4, 1913, THE PROHIBITION CONTAINED IN THE ACT OF MARCH 4, 1913, SUPRA, IS NOT APPLICABLE TO THEIR CASES.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, AUTHORIZES THE VOLUNTARY RETIREMENT OF ANY NAVAL OFFICER ( REGULAR NAVY OR NAVAL RESERVE) WHO "HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE.' UNDER THE SAID SECTION IT SEEMS CLEAR THAT AN OFFICER WHO HAS HAD AT LEAST TEN YEARS' ACTIVE COMMISSIONED SERVICE AS A REGULAR AND/OR A RESERVIST MAY COUNT ACTIVE SERVICE--- OTHER THAN ACTIVE COMMISSIONED SERVICE--- REGULAR OR RESERVE, IN ANY OF THE SPECIFIED BRANCHES OF THE SERVICE TO MAKE UP THE REMAINDER OF THE REQUIRED TERM OF TWENTY YEARS' SERVICE, PROVIDED, OF COURSE, THAT NO OTHER STATUTORY PROVISION BARS THE INCLUSION OF THE PARTICULAR SERVICE SOUGHT TO BE COUNTED. IT IS WELL SETTLED THAT A MIDSHIPMAN AT THE NAVAL ACADEMY IS A MEMBER OF THE NAVY AND, SUBJECT TO THE CONDITIONS OF THE ACT OF MARCH 4, 1913, AND DECISIONS WHICH HAVE CONSTRUED THAT ACT, SERVICE AS A MIDSHIPMAN AT THE ACADEMY IS "ACTIVE SERVICE IN THE NAVY.' SEE DECISION OF DECEMBER 15, 1925, A-11546. SINCE THE OFFICERS HERE INVOLVED WERE APPOINTED TO THE NAVAL ACADEMY, AND COMPLETED THEIR SERVICE THERE, PRIOR TO MARCH 4, 1913, THE SAID ACT, BY ITS TERMS, DOES NOT PROHIBIT THE COUNTING OF THEIR SERVICE AS MIDSHIPMEN. THEREFORE, IT IS CONCLUDED THAT AS TO EACH OF THE SAID OFFICERS HIS SERVICE AS A MIDSHIPMAN MAY BE COUNTED FOR THE PURPOSE OF DETERMINING WHETHER HE HAS "MORE THAN TWENTY YEARS OF ACTIVE SERVICE" WITHIN THE MEANING OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SUPRA.

ACCORDINGLY, BOTH OF YOUR QUESTIONS, AS PRESENTED IN PARAGRAPHS 10 (A) AND 10 (B) OF THE ABOVE QUOTED LETTER, ARE ANSWERED IN THE AFFIRMATIVE, IT BEING ASSUMED THAT IT HAS BEEN DETERMINED, OR THAT IT WILL BE DETERMINED, IN ACCORDANCE WITH SECTION 7 (A) OF THE ACT OF FEBRUARY 21, 1946, SUPRA, THAT THE PERFORMANCE OF DUTY IN THE RANK OF CAPTAIN BY THE OFFICERS IN QUESTION HAS BEEN SATISFACTORY.