B-88939, FEBRUARY 17, 1950, 29 COMP. GEN. 331

B-88939, FEBRUARY 17, 1950, 29 COMP. GEN. 331

PAY - SERVICE CREDITS - CREDIT FOR MIDSHIPMAN OR CADET SERVICE MIDSHIPMAN OR CADET SERVICE IN THE ARMY, NAVY, AND COAST GUARD ACADEMIES CONSTITUTES "ACTIVE FEDERAL SERVICE" WHICH MAY BE ADDED TO THE SERVICE SPECIFICALLY ENUMERATED IN SECTIONS 8 AND 9 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, IN COMPUTING LENGTH OF SERVICE FOR LONGEVITY PAY PURPOSES OF ENLISTED MEN; BUT OFFICERS, INCLUDING WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS, ARE PRECLUDED BY THE ACT OF MARCH 4, 1913, FROM COUNTING SUCH SERVICE IN COMPUTING LENGTH OF SERVICE FOR ANY PURPOSE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 17, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 30, 1949, FORWARDING A LETTER FROM THE DEPUTY AND ASSISTANT CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED JULY 12, 1949, AND REQUESTING DECISION ON THE QUESTIONS SET FORTH THEREIN, WHICH ARE RESTATED IN YOUR LETTER AS FOLLOWS:

(1) MAY SERVICE AS A MIDSHIPMAN OR A CADET AT THE RESPECTIVE ACADEMIES OF THE ARMY, NAVY, OR COAST GUARD BE COUNTED FOR PAY PURPOSES ON AND AFTER JUNE 15, 1942, BY ENLISTED MEN OF THE REGULAR NAVY UNDER SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942?

(2) DOES THE RESTRICTIVE PROVISION IN THE ACT OF MARCH 4, 1913 (37 STAT. 891), AS AMENDED, THAT SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY OR AS A CADET AT THE MILITARY ACADEMY MAY NOT BE COUNTED FOR ANY PURPOSE BY ANY OFFICER OF THE NAVY OR MARINE CORPS APPOINTED AS MIDSHIPMAN OR CADET AFTER MARCH 4, 1913, APPLY TO WARRANT OR COMMISSIONED WARRANT OFFICERS OR ONLY TO THOSE OFFICERS OF THE REGULAR NAVY COMMISSIONED IN THE RANK OF ENSIGN OR ABOVE?

(3) IF THE RESTRICTIVE PROVISIONS OF THE ACT OF MARCH 4, 1913, SUPRA, ARE NOT APPLICABLE TO WARRANT AND COMMISSIONED WARRANT OFFICERS, IS SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY OR AS A CADET AT THE MILITARY ACADEMY OR COAST GUARD ACADEMY CONSIDERED AS "ACTIVE FEDERAL SERVICE" IN THE NAVY OR ARMY WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942?

SECTIONS 8 AND 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 362, 363, AS AMENDED, 37 U.S.C. 108, 109, PROVIDED THAT FOR LONGEVITY PAY PURPOSES COMMISSIONED WARRANT OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE NAVY MAY COUNT "ACTIVE FEDERAL SERVICE" IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE, OR RESERVE COMPONENTS THEREOF, AND SERVICE IN THE ACTIVE NATIONAL GUARD, THE ENLISTED RESERVE CORPS OF THE ARMY, OFFICERS RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE. IN ADDITION, SUCH PERSONNEL WERE ENTITLED UNDER SECTION 3A OF THE ACT, AS AMENDED, 37 U.S.C. 103A, TO CREDIT FOR FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD COMMISSIONS AS OFFICERS, OR APPOINTMENTS AS WARRANT OFFICERS, OR ARMY FIELD CLERKS, OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT, OR IN THE VARIOUS SERVICES THEREIN AFTER SPECIFICALLY ENUMERATED, WHICH ENUMERATION DOES NOT INCLUDE THE SERVICE ACADEMIES.

IT IS WELL ESTABLISHED THAT SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY OR AS A CADET AT THE MILITARY ACADEMY IS SERVICE IN THE NAVY OR ARMY, SINCE SUCH ACADEMIES ARE INTEGRAL PARTS OF THOSE SERVICES. UNITED STATES V. MORTON, 112 U.S. 1; UNITED STATES V. BAKER, 125 U.S. 646; UNITED STATES V. WATSON, 130 U.S. 80. CADET SERVICE AT THE COAST GUARD ACADEMY SIMILARLY SHOULD BE CONSIDERED AS SERVICE IN THE COAST GUARD. BEING ACTUAL SERVICE IN THOSE FEDERAL MILITARY SERVICES, IT WOULD APPEAR PROPER TO CONSIDER THAT PERIODS OF SERVICE AS MIDSHIPMEN OR CADETS IN THOSE INSTITUTIONS WOULD INVOLVE THE PERFORMANCE OF "ACTIVE FEDERAL SERVICE" WITHIN THE MEANING AND INTENT OF THAT PHRASE AS USED IN SECTIONS 8 AND 9 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND THAT PERSONNEL ENTITLED TO THE INCLUSION OF "ACTIVE FEDERAL SERVICE" IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THAT ACT IN THE COMPUTATION OF LONGEVITY PAY, UNLESS OTHERWISE RESTRICTED, WOULD BE ENTITLED TO INCLUDE FOR THAT PURPOSE ALL PERIODS WHILE SERVING AS MIDSHIPMEN AT THE NAVAL ACADEMY OR AS CADETS AT THE MILITARY ACADEMY OR COAST GUARD ACADEMY.

PRIOR TO MARCH 4, 1913, OFFICERS OF THE NAVY WHO HAD SERVED AS MIDSHIPMEN AT THE NAVAL ACADEMY OR AS CADETS AT THE MILITARY ACADEMY WERE ENTITLED TO COUNT SUCH SERVICE FOR LONGEVITY PAY PURPOSES, AND UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, OFFICERS, INCLUDING WARRANT OFFICERS, APPOINTED TO THE NAVY FROM CIVIL LIFE WERE GIVEN A CONSTRUCTIVE CREDIT OF FIVE YEARS' SERVICE TO EQUALIZE THEIR COMPENSATION WITH THAT OF OFFICERS OF LIKE GRADE RECEIVING THE ADDITIONAL LONGEVITY CREDITS BY REASON OF CADET OR MIDSHIPMAN SERVICE. THE ACT OF MARCH 4, 1913, 37 STAT. 891, PROVIDED AS FOLLOWS WITH REFERENCE TO SUCH SERVICE CREDITS PREVIOUSLY AUTHORIZED:

HEREAFTER THE SERVICE OF A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, OR THAT OF A CADET AT THE UNITED STATES MILITARY ACADEMY, WHO MAY HEREAFTER BE APPOINTED TO THE UNITED STATES NAVAL ACADEMY, OR TO THE UNITED STATES MILITARY ACADEMY, SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER IN THE NAVY OR IN THE MARINE CORPS.

THAT SO MUCH OF AN ACT * * * APPROVED MARCH THIRD, EIGHTEEN HUNDRED AND NINETY-NINE, WHICH READS AS FOLLOWS: "AND THAT ALL OFFICERS, INCLUDING WARRANT OFFICERS, WHO HAVE BEEN OR MAY BE APPOINTED TO THE NAVY FROM CIVIL LIFE SHALL, ON THE DATE OF APPOINTMENT, BE CREDITED FOR COMPUTING THEIR PAY, WITH FIVE YEARS' SERVICE," SHALL NOT APPLY TO ANY PERSON ENTERING THE NAVY FROM AND AFTER THE PASSAGE OF THIS ACT * * *.

WHILE THE TERM "OFFICER" IN THE FOREGOING PROVISION RELATING TO SERVICE CREDITS FOR CADET AND MIDSHIPMAN SERVICE IS NOT OTHERWISE QUALIFIED, ITS MEANING AND SCOPE ARE MADE CLEAR BY THE PROVISIONS IMMEDIATELY FOLLOWING IT, WHICH PROVISIONS ARE DESIGNED TO MAINTAIN EQUALITY BETWEEN OFFICERS WITH ACADEMY SERVICE AND THOSE ENTERING FROM CIVIL LIFE. THESE PROVISIONS DENIED TO OFFICERS,"INCLUDING WARRANT OFFICERS," THEREAFTER ENTERING THE NAVY THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN THE 1899 ACT, THUS INDICATING AN INTENTION THAT OFFICERS OF LIKE GRADE--- I.E., OFFICERS, INCLUDING WARRANT OFFICERS--- WERE TO BE DENIED CREDIT FOR MIDSHIPMAN OR CADET SERVICE IN COMPUTING, FOR ANY PURPOSE, THEIR LENGTH OF SERVICE.

IN VIEW OF THE FOREGOING, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE, SERVICE AS MIDSHIPMEN OR CADETS AT THE RESPECTIVE ACADEMIES OF THE ARMY, NAVY, AND COAST GUARD BEING CONSIDERED "ACTIVE FEDERAL SERVICE" IN THOSE SERVICES WITHIN THE CONTEMPLATION OF SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. CF. A-69538, MARCH 18, 1936.

WITH RESPECT TO YOUR SECOND QUESTION, IT MUST BE CONSIDERED, IN VIEW OF WHAT HAS BEEN STATED ABOVE, THAT THE RESTRICTIVE PROVISION OF THE ACT OF MARCH 4, 1913, SUPRA, PRECLUDING THE COUNTING BY OFFICERS OF MIDSHIPMAN SERVICE AT THE NAVAL ACADEMY OR CADET SERVICE AT THE MILITARY ACADEMY, APPLIES TO WARRANT OFFICERS AND COMMISSIONED WARRANT OFFICERS AS WELL AS TO COMMISSIONED OFFICERS OF THE NAVY. IN THAT CONNECTION IT WILL BE NOTED THAT SUCH RESTRICTIVE PROVISION REFERS ONLY TO THE SERVICE OF MIDSHIPMEN AT THE NAVAL ACADEMY AND OF CADETS OF THE MILITARY ACADEMY, AND APPARENTLY LEGISLATION HAS NOT SUBSEQUENTLY BEEN ENACTED TO EXPRESSLY PROVIDE SIMILAR RESTRICTION WITH RESPECT TO CADET SERVICE AT THE COAST GUARD ACADEMY. HOWEVER, CONSIDERING THE FACT THAT THE SERVICE OF CADETS APPOINTED TO THE COAST GUARD ACADEMY IS SIMILAR TO THAT OF MIDSHIPMEN AT THE NAVAL ACADEMY AND CADETS AT THE MILITARY ACADEMY IN THAT IT INVOLVES THE RECEIPT BY THE APPOINTEE OF SCHOOLING IN A GOVERNMENTAL INSTITUTION AS TRAINING FOR COMMISSIONED SERVICE AND, THEREFORE, IS SERVICE OF THE SPECIFIC NATURE CONTEMPLATED IN THE RESTRICTIVE PROVISIONS OF THE 1913 ACT, IT PROPERLY MAY NOT BE CONCLUDED THAT AUTHORITY EXISTS FOR THE GRANTING OF CREDIT FOR CADET SERVICE AT THE COAST GUARD ACADEMY TO OFFICERS WHO ARE DENIED CREDIT FOR SERVICE AT THE NAVAL ACADEMY AND MILITARY ACADEMY. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

IN VIEW OF THE ANSWER TO THE SECOND QUESTION, NO ANSWER TO YOUR THIRD QUESTION APPEARS REQUIRED.