B-78163, JULY 26, 1948, 28 COMP. GEN. 57

B-78163: Jul 26, 1948

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HELD A COMMISSION IN THE NAVAL RESERVE FORCE UNDER WHICH HE DID NOT PERFORM ANY ACTIVE DUTY IS NOT ENTITLED. TO HAVE HIS RETIRED PAY COMPUTED. WHO WILL REACH THE STATUTORY RETIREMENT AGE FOR COAST GUARD OFFICERS ON JULY 31. THE PARTICULAR CIRCUMSTANCES SURROUNDING THE OFFICER'S SERVICE IN THE NAVAL RESERVE FORCE ARE SET FORTH IN YOUR LETTER. NAVY OFFICERS ADVISED AND DIRECTED HIM TO CONTINUE HIS SERVICE AS A LICENSED OFFICER IN THE MERCHANT MARINE ON THE GROUND THAT SUCH DUTY WAS ESSENTIAL IN THE WAR EFFORT AND. HE WAS NOT ORDERED TO ACTIVE DUTY. A PHOTOSTATIC COPY OF WHICH IS ATTACHED. IS PREDICATED UPON SERVICE IN THE NAVAL RESERVE FORCE FOR A TOTAL OF FOUR YEARS. IS ENTITLED " AN ACT TO INTEGRATE CERTAIN PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AND THE BUREAU OF CUSTOMS INTO THE REGULAR COAST GUARD.

B-78163, JULY 26, 1948, 28 COMP. GEN. 57

PAY- RETIRED - SERVICE CREDITS - INACTIVE SERVICE A COAST GUARD OFFICER WHO, PRIOR TO NOVEMBER 12, 1918, HELD A COMMISSION IN THE NAVAL RESERVE FORCE UNDER WHICH HE DID NOT PERFORM ANY ACTIVE DUTY IS NOT ENTITLED, UPON RETIREMENT, TO HAVE HIS RETIRED PAY COMPUTED, BY REASON OF HAVING HELD SUCH A COMMISSION, AT 75 PERCENT OF HIS ACTIVE-DUTY PAY AS AUTHORIZED BY THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 FOR OFFICERS WHO "SERVED" IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. A FORMER EMPLOYEE OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION, DEPARTMENT OF COMMERCE, COMMISSIONED AS A PERMANENT OFFICER IN THE COAST GUARD UNDER SECTION 3 (6) OF THE ACT OF JULY 23, 1947, MAY NOT COUNT PERIODS OF INACTIVE SERVICE IN THE NAVAL RESERVE FORCE DURING WHICH HE DID NOT RENDER CIVILIAN SERVICE TOWARD THE FIFTEEN YEARS' SERVICE IN THE FEDERAL GOVERNMENT, CIVIL OR MILITARY, WHICH, UNDER SECTION 12 OF SAID ACT, WOULD ENTITLE HIM TO RECEIVE RETIRED PAY BASED ON 75 PERCENT OF HIS ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JULY 26, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 1, 1948, WITH ENCLOSURE, REQUESTING DECISION AS TO WHETHER INACTIVE SERVICE IN THE NAVAL RESERVE FORCE OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, MAY BE CONSIDERED AS (1) "MILITARY" SERVICE WITHIN THE CONTEMPLATION OF SECTION 12 OF THE ACT OF JULY 23, 1947, 61 STAT. 413, OR (2) SERVICE IN THE "MILITARY OR NAVAL FORCES OF THE UNITED STATES" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, IN DETERMINING THE RETIRED PAY RIGHTS OF A FORMER CIVILIAN EMPLOYEE OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION OF THE U.S. COAST GUARD PURSUANT TO SECTION 3 (6) OF THE ACT OF JULY 23, 1947, 61 STAT. 410, AND WHO WILL REACH THE STATUTORY RETIREMENT AGE FOR COAST GUARD OFFICERS ON JULY 31, 1948.

THE PARTICULAR CIRCUMSTANCES SURROUNDING THE OFFICER'S SERVICE IN THE NAVAL RESERVE FORCE ARE SET FORTH IN YOUR LETTER, AS FOLLOWS:

THE OFFICER IN QUESTION ACCEPTED APPOINTMENT AND EXECUTED OATH OF OFFICE, AS PROVISIONAL LIEUTENANT, U.S. NAVAL RESERVE FORCE (INACTIVE) ON AUGUST 13, 1917. COMMANDER SMITH STATES THAT, AFTER ACCEPTANCE OF THIS APPOINTMENT, NAVY OFFICERS ADVISED AND DIRECTED HIM TO CONTINUE HIS SERVICE AS A LICENSED OFFICER IN THE MERCHANT MARINE ON THE GROUND THAT SUCH DUTY WAS ESSENTIAL IN THE WAR EFFORT AND, IN THAT RESPECT, COMPARABLE WITH ACTIVE SERVICE AS AN OFFICER OF THE NAVY. COMMANDER SMITH FURTHER STATES THAT, AS A CONSEQUENCE, HE WAS NOT ORDERED TO ACTIVE DUTY, AND THAT HE CONTINUED IN HIS EMPLOYMENT AS A MASTER OF MERCHANT VESSELS THROUGHOUT WORLD WAR I. HOWEVER, THE HONORABLE DISCHARGE ISSUED TO COMMANDER SMITH, A PHOTOSTATIC COPY OF WHICH IS ATTACHED, IS PREDICATED UPON SERVICE IN THE NAVAL RESERVE FORCE FOR A TOTAL OF FOUR YEARS.

THE SAID ACT OF JULY 23, 1947, 61 STAT. 409, IS ENTITLED " AN ACT TO INTEGRATE CERTAIN PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION AND THE BUREAU OF CUSTOMS INTO THE REGULAR COAST GUARD, TO ESTABLISH THE PERMANENT COMMISSIONED PERSONNEL STRENGTH OF THE COAST GUARD, AND FOR OTHER PURPOSES.' SECTION 3 OF THE SAID ACT, 61 STAT. 410, PROVIDES, IN PART, AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED TO APPOINT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, PERMANENT COMMISSIONED OFFICERS IN THE COAST GUARD IN RANKS APPROPRIATE TO THEIR QUALIFICATIONS, EXPERIENCE, AND LENGTH OF SERVICE, AS THE NEEDS OF THE COAST GUARD MAY REQUIRE AND AS ARE FOUND BY THE SECRETARY OF THE TREASURY, AS THE RESULT OF SUCH EXAMINATIONS AS HE MAY DEEM NECESSARY, TO BE MENTALLY, MORALLY, PROFESSIONALLY, AND PHYSICALLY QUALIFIED, FROM AMONG THE FOLLOWING CATEGORIES:

(6)PERSONNEL OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION OF THE DEPARTMENT OF COMMERCE, AND THE BUREAU OF CUSTOMS OF THE TREASURY DEPARTMENT, WHO WERE TRANSFERRED FROM THOSE BUREAUS TO THE COAST GUARD BY EXECUTIVE ORDER 9083, DATED FEBRUARY 28, 1942 (7 F.R. 1609), AND BY REORGANIZATION PLAN NUMBERED 3, EFFECTIVE JULY 16, 1946, (11 F.R. 7875), AND WHO ON MARCH 1, 1942, HELD THE CIVIL-SERVICE RATING OF CAF-9 OR P-3, OR ABOVE.

SECTIONS 11 AND 12 OF THE SAID ACT OF JULY 23, 1947, 61 STAT. 412, 413, PROVIDE AS FOLLOWS:

SEC. 11. IN COMPUTING LENGTH OF SERVICE FOR PURPOSES OF RETIREMENT OF A PERSON DESCRIBED IN CATEGORY (6) OF SECTION 3, CATEGORY (7) OF SECTION 5, OR CATEGORY (5) OF SECTION 6 WHO IS COMMISSIONED, APPOINTED, OR ENLISTED PURSUANT TO THE PROVISIONS OF THIS ACT, THERE SHALL BE INCLUDED, IN ADDITION TO ALL SERVICE NOW OR HEREAFTER CREDITABLE BY LAW, ALL SERVICE AS A CIVILIAN EMPLOYEE OF THE UNITED STATES WITHIN THE PURVIEW OF THE ACT OF MAY 22, 1920, AS AMENDED (5 U.S.C. 691 AND THE FOLLOWING), SUCH SERVICE TO BE CLASSIFIED AS COMMISSIONED, WARRANT, OR ENLISTED DEPENDING UPON WHICH STATUS THE PERSON ASSUMES UPON HIS ENTRY INTO THE REGULAR COAST GUARD. SERVICE COVERING THE SAME PERIOD SHALL NOT BE COUNTED MORE THAN ONCE.

SEC. 12. ANY PERSON DESCRIBED IN CATEGORY (6) OF SECTION 3, CATEGORY (7) OF SECTION 5, OR CATEGORY (5) OF SECTION 6 WHO IS COMMISSIONED, APPOINTED, OR ENLISTED PURSUANT TO THE PROVISIONS OF THIS ACT SHALL NOT BE ENTITLED TO ANY RETIREMENT OF CIVILIAN PERSONNEL OF THE FEDERAL GOVERNMENT, BUT SHALL BE ENTITLED UPON CLAIM THEREFOR TO A RETURN OF THE TOTAL CONTRIBUTIONS MADE BY HIM TO THE RETIREMENT FUND WITH INTEREST THEREON AND, IN ADDITION, TO ELIGIBILITY FOR RETIREMENT BENEFITS PROVIDED BY LAW FOR MEMBERS OF THE REGULAR COAST GUARD, HE SHALL, IF HIS TOTAL SERVICE IN THE FEDERAL GOVERNMENT, CIVIL PLUS MILITARY, IS FIFTEEN YEARS OR OVER, BE ENTITLED, UPON REACHING THE STATUTORY RETIREMENT AGE FOR MILITARY PERSONNEL OF THE REGULAR COAST GUARD, TO RETIREMENT PAY AMOUNTING TO 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF SUCH RETIREMENT; AND, IN THE ADMINISTRATION OF APPLICABLE LAWS FOR PHYSICAL DISABILITY RETIREMENT, A DISABILITY SHALL BE DEEMED TO HAVE BEEN INCURRED INCIDENT TO COAST GUARD SERVICE IF THE CAUSE OF SUCH DISABILITY IS NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR MISCONDUCT. ( ITALICS SUPPLIED.)

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, REFERRED TO IN YOUR LETTER, IS AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

IT IS STATED THAT THE INDIVIDUAL HERE INVOLVED, DAVID T. SMITH, A FORMER CIVILIAN EMPLOYEE OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION OF THE DEPARTMENT OF COMMERCE, WAS APPOINTED A COMMANDER IN THE U.S. COAST GUARD ON JANUARY 30, 1948, PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 3 (6) OF THE ACT OF JULY 23, 1947, SUPRA, AND IT IS UNDERSTOOD THAT HE WILL HAVE COMPLETED APPROXIMATELY 14 YEARS-, 7 MONTHS-, AND 10 DAYS' TOTAL ACTIVE SERVICE IN THE FEDERAL GOVERNMENT, CIVILIAN PLUS MILITARY, ON JULY 31, 1948, WHEN HE WILL BECOME ELIGIBLE FOR RETIREMENT FOR AGE UNDER THE PROVISIONS OF SECTION 9 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, AS AMENDED, 34 U.S.C. 41OD (MADE APPLICABLE TO THE COAST GUARD BY SECTION 10 OF THE ACT, 60 STAT. 29), WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 9. WHEN ANY OFFICER OF THE REGULAR NAVY OR MARINE CORPS SERVING IN A RANK BELOW THAT OF FLEET ADMIRAL HAS ATTAINED THE AGE OF SIXTY-TWO YEARS, HE SHALL BE PLACED UPON THE RETIRED LIST BY THE PRESIDENT WITH THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY AND WITH 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 HIS PAY WHILE ON ACTIVE DUTY, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY: PROVIDED, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS OF SERVICE BY WHICH THE RATE OF 2 1/2 PERCENTUM IS MULTIPLIED * * *.

IT IS UNDERSTOOD FURTHER THAT THE OFFICER'S CIVILIAN SERVICE IN THE FEDERAL GOVERNMENT CONSISTS OF APPROXIMATELY 3 YEARS' AND 1 MONTH'S SERVICE AS A MASTER OF MERCHANT VESSELS OF THE U.S. SHIPPING BOARD EMERGENCY FLEET CORPORATION DURING CERTAIN INTERVALS BETWEEN MAY 31, 1918, AND APRIL 12, 1923 (SEE OP. ATTY. GEN. 363), AND 6 YEARS-, 4 MONTHS-, AND 10 DAYS' SERVICE AS AN EMPLOYEE OF THE BUREAU OF MARINE INSPECTION AND NAVIGATION DURING THE PERIOD JANUARY 21, 1937, TO MAY 30, 1943, AND THAT ON JULY 31, 1948, HE WILL HAVE COMPLETED 5 YEARS' AND 2 MONTHS' ACTIVE MILITARY SERVICE AT THE TIME OF RETIREMENT, HE WILL NOT BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS SET FORTH IN SECTION 12 OF THE ACT OF JULY 23, 1947, SUPRA--- THAT IS, 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT--- UNLESS IT BE CONCLUDED THAT HIS INACTIVE SERVICE IN THE NAVAL RESERVE FORCE FROM 1917 TO 1921 IS "SERVICE IN THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF THE SAID SECTION 12, AND HE WILL NOT BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AS 75 PERCENTUM OF HIS ACTIVE-DUTY PAY UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, UNLESS, BY REASON OF HIS INACTIVE NAVAL RESERVE FORCE SERVICE, HE MAY BE REGARDED AS HAVING "SERVED" AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, WITHIN THE MEANING OF THE SAID FOURTH PARAGRAPH.

THE WORD "SERVED" OR "SERVE" IN ITS GENERALLY ACCEPTED SENSE MEANS TO WORK FOR; TO LABOR IN BEHALF OF; TO EXERT ONESELF CONTINUOUSLY OR STATEDLY FOR; TO DO SERVICE FOR; TO BE IN THE EMPLOYMENT OF; TO RENDER MILITARY OR NAVAL SERVICE; TO FIGHT FOR. IN THE PRESENT CASE THE OFFICER ADMITTEDLY CONTINUED IN HIS CIVILIAN EMPLOYMENT AND SERVED AS A LICENSED OFFICER IN THE MERCHANT MARINE PRIOR TO NOVEMBER 12, 1918, AND DURING THE ENTIRE FOUR -YEAR PERIOD (1917-1921) HE HELD A COMMISSION IN THE NAVAL RESERVE FORCE. HE WAS NOT CALLED TO ACTIVE DUTY AS AN OFFICER OF THE NAVAL RESERVE FORCE AND DID NOT PERFORM ANY ACTIVE DUTY AS A MEMBER OF SUCH FORCE PRIOR TO NOVEMBER 12, 1918. THE PROVISION IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, EXTENDING CERTAIN RETIRED PAY BENEFITS TO PERSONS WHO "SERVED" ON ACTIVE DUTY AS MEMBERS OF THE MILITARY AND NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, CONSISTENTLY HAS BEEN CONSIDERED AS HAVING REFERENCE ONLY TO THOSE PERSONS WHO ACTUALLY SERVED ON ACTIVE DUTY AS MEMBERS OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918. THAT PROVISION WAS ENACTED FOR THE BENEFIT OF PERSONS WHO ACTUALLY SERVED ON ACTIVE DUTY AS MEMBERS OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WAS INTENDED TO BESTOW UPON PERSONS WHO SERVED ON ACTIVE DUTY DURING WORLD WAR I ADDITIONAL RETIRED PAY BENEFITS NOT EXTENDED TO OFFICERS OF THE ARMED FORCES GENERALLY. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF SUCH PROVISIONS WHICH REMOTELY INDICATES IT WAS EVER CONTEMPLATED THAT INACTIVE SERVICE IN THE NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, WOULD ENTITLE AN OFFICER OF THE ARMED FORCES, UPON RETIREMENT, TO RECEIVE THE RETIRED PAY BENEFITS AUTHORIZED FOR PERSONS WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918. IT SEEMS CLEAR THAT IF THE CONGRESS HAD INTENDED TO BESTOW SUCH SUBSTANTIAL RETIRED PAY BENEFITS UPON OFFICERS WHO MERELY HELD COMMISSIONS IN THE VARIOUS RESERVE FORCES PRIOR TO NOVEMBER 12, 1918, BUT PERFORMED NO ACTIVE DUTY UNDER SUCH COMMISSIONS, IT WOULD HAVE DONE SO BY INCLUDING THEREIN AN EXPRESS PROVISION SIMILAR TO THAT CONTAINED IN SECTION 3A OF THE SAID 1942 ACT, AS AMENDED, WHICH AUTHORIZES, IN COMPUTING SERVICE FOR PAY PURPOSES OF PERSONNEL OF THE ARMED FORCES, THE CREDITING OF "FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT," OR IN THE RESERVE COMPONENTS AS SPECIFIED. THEREFORE, IN THE ABSENCE OF AN EXPRESS PROVISION ENTITLING OFFICERS WHO HELD COMMISSIONS IN THE NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, IT MUST BE CONCLUDED THAT INACTIVE SERVICE IN THE NAVAL RESERVE FORCE PRIOR TO NOVEMBER 12, 1918, DOES NOT ENTITLE COMMANDER SMITH TO HAVE HIS RETIRED PAY COMPUTED ON SUCH BASIS.

A PERSON APPOINTED IN THE COAST GUARD PURSUANT TO SECTION 3 (6) OF THE ACT OF JULY 23, 1947, SUPRA, IS ENTITLED UNDER SECTION 12 OF THAT ACT TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS PROVIDED THEREIN IF "HIS TOTAL SERVICE IN THE FEDERAL GOVERNMENT, CIVIL PLUS MILITARY" IS 15 YEARS OR MORE. WHILE THE SAID SECTION 12 DOES NOT EXPRESSLY PROVIDE THAT THE 15 YEARS' SERVICE SHALL BE ACTIVE SERVICE, IT SEEMS REASONABLY CLEAR THAT THE SAID SECTION CONTEMPLATES THE INCLUSION OF ONLY ACTIVE CIVIL AND MILITARY SERVICE. PRESUMABLY, IT WOULD NOT BE QUESTIONED THAT "SERVICE IN THE FEDERAL GOVERNMENT" IN A CIVILIAN CAPACITY MUST BE ACTIVE SERVICE, BUT, APPARENTLY, IT IS THE VIEW THAT "SERVICE IN THE FEDERAL GOVERNMENT" IN A MILITARY CAPACITY SHOULD BE REGARDED AS INCLUDING INACTIVE MILITARY SERVICE SINCE SUCH INACTIVE SERVICE IS AUTHORIZED TO BE INCLUDED IN THE COMPUTATION OF THE RETIRED PAY OF MILITARY PERSONNEL UNDER SOME PROVISIONS OF LAW. ASSUMING THAT A DISTINCTION PROPERLY COULD BE DRAWN BETWEEN CIVIL AND MILITARY SERVICE, SUCH VIEW OVERLOOKS THE GENERALLY ACCEPTED PROPOSITION THAT INACTIVE MILITARY SERVICE MAY BE INCLUDED IN THE COMPUTATION OF AN OFFICER'S RETIRED PAY ONLY WHEN SUCH INCLUSION IS EXPRESSLY AUTHORIZED BY STATUTE. IN THAT CONNECTION, SECTION 9 OF THE ACT OF FEBRUARY 21, 1946, REFERRED TO IN YOUR LETTER, AUTHORIZES AN OFFICER OF THE REGULAR ARMY, MARINE CORPS OR COAST GUARD (BELOW THE RANK OF FLEET ADMIRAL) WHO HAS ATTAINED THE AGE OF 62 YEARS TO BE PLACED ON THE RETIRED LIST WITH 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 HIS PAY WHILE ON ACTIVE DUTY," NOT TO EXCEED 75 PERCENTUM OF SUCH ACTIVE DUTY PAY. UNDER EXISTING LAW, THE NUMBER OF YEARS AN OFFICER HELD A COMMISSION, ETC., IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OR IN THE RESERVE COMPONENTS SPECIFIED THEREIN, MAY BE INCLUDED IN THE COMPUTATION OF LONGEVITY PAY, AND, THEREFORE, BY VIRTUE OF THE EXPRESS PROVISIONS OF THE SAID SECTION 9, IN COMPUTING THE RETIRED PAY OF OFFICERS RETIRED THEREUNDER, ACTIVE AND INACTIVE MILITARY SERVICE IS INCLUDED IN DETERMINING THE NUMBER OF YEARS BY WHICH THE FIXED PERCENTAGE RATE IS MULTIPLIED.

ALTHOUGH THE SAID SECTION 9 OF THE ACT OF FEBRUARY 21, 1946, AS WELL AS CERTAIN OTHER STATUTES, NOW EXPRESSLY AUTHORIZE THE INCLUSION OF INACTIVE MILITARY SERVICE IN DETERMINING, FOR RETIRED PAY PURPOSES, THE NUMBER OF YEARS BY WHICH THE FIXED PERCENTAGE RATE IS TO BE MULTIPLIED, IT DOES NOT FOLLOW THAT INACTIVE SERVICE ALSO MAY BE INCLUDED IN DETERMINING WHETHER AN OFFICER APPOINTED IN THE COAST GUARD PURSUANT TO SECTION 3 (6) OF THE ACT OF JULY 23, 1947, HAS COMPLETED 15 YEARS' ,SERVICE IN THE FEDERAL GOVERNMENT, CIVIL PLUS MILITARY," SO AS TO ENTITLE HIM TO THE BENEFITS OF SECTION 12 OF THAT ACT. BEFORE SUCH AN OFFICER, ELIGIBLE FOR RETIREMENT FOR AGE, CAN QUALIFY FOR THE LIBERAL RETIRED PAY BENEFITS PROVIDED IN THE SAID SECTION 12, HE MUST HAVE COMPLETED 15 YEARS' ,SERVICE," CIVIL PLUS MILITARY. HERETOFORE, WHERE STATUTES HAVE REQUIRED A PERSON TO COMPLETE A SPECIFIED NUMBER OF YEARS OF "SERVICE" (OR "ACTIVE SERVICE") BEFORE HE CAN QUALIFY FOR RETIREMENT AND THE RETIRED PAY BENEFITS AUTHORIZED THEREIN, SUCH STATUTES GENERALLY HAVE BEEN REGARDED AS RESTRICTED TO PERSONS WHO HAVE COMPLETED THE REQUIRED NUMBER OF YEARS OF ACTIVE SERVICE. CONCLUDE THAT INACTIVE MILITARY SERVICE MAY BE INCLUDED IN DETERMINING WHETHER AN OFFICER APPOINTED IN THE COAST GUARD PURSUANT TO SECTION 3 (6) OF THE 1947 ACT HAS COMPLETED 15 YEARS' CIVIL PLUS MILITARY SERVICE WOULD RESULT IN THE ANOMALY THAT AN OFFICER APPOINTED IN THE COAST GUARD PURSUANT TO THE SAID SECTION 3 (6) , WHO REACHED THE STATUTORY RETIREMENT AGE AND COMPLETED 15 YEARS' ACTIVE AND INACTIVE SERVICE (THAT IS, A COMBINATION OF 15 YEARS' CIVILIAN SERVICE, ACTIVE MILITARY SERVICE AND INACTIVE MILITARY SERVICE) WOULD RECEIVE, UPON RETIREMENT, 75 PERCENTUM OF HIS ACTIVE-DUTY PAY, WHEREAS OTHER OFFICERS OF THE COAST GUARD (AND NAVY) RETIRED FOR AGE, WHO WERE NOT APPOINTED THEREIN PURSUANT TO THE SAID SECTION 3 (6) AND WHO ALSO HAVE COMPLETED 15 YEARS' ACTIVE AND INACTIVE MILITARY SERVICE ARE ENTITLED, UNDER SECTION 9 OF THE ACT OF FEBRUARY 21, 1946, TO ONLY 37 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT. IT IS RECOGNIZED, OF COURSE, THAT THE CONGRESS, IN ENACTING SECTION 12 OF THE 1947 ACT, EXTENDED PREFERENTIAL TREATMENT (NOT EXTENDED TO OTHER OFFICERS OF THE ARMED FORCES) IN THE MATTER OF COMPUTING THE RETIRED PAY OF THE PARTICULAR GROUP OF OFFICERS DESCRIBED THEREIN. HOWEVER, IF THE CONGRESS HAD INTENDED TO BESTOW THE ADDITIONAL BENEFIT OF PERMITTING THE PARTICULAR GROUP OF OFFICERS APPOINTED IN THE COAST GUARD PURSUANT TO SECTION 3 (6) OF THE 1947 ACT, TO COUNT INACTIVE MILITARY SERVICE IN DETERMINING WHETHER THEY HAVE COMPLETED 15 YEARS' SERVICE, UNDOUBTEDLY IT WOULD HAVE EXPRESSED SUCH INTENT IN CLEAR AND UNMISTAKABLE LANGUAGE. ACCORDINGLY, IT MUST BE CONCLUDED THAT INACTIVE SERVICE IN THE NAVAL RESERVE FORCE MAY NOT BE REGARDED AS "MILITARY" SERVICE WITHIN THE CONTEMPLATION OF SECTION 12 OF THE ACT OF JULY 23, 1947.