B-89557, NOVEMBER 9, 1949, 29 COMP. GEN. 220

B-89557: Nov 9, 1949

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THE QUESTIONS ON WHICH DECISION IS REQUESTED ARE AS FOLLOWS: (1) ARE THE ABOVE-QUOTED PROVISIONS OF LAW. 1948? (2) ARE SUCH PROVISIONS OF LAW FOR APPLICATION IN DETERMINING ELIGIBILITY FOR RETIREMENT AND RETIRED PAY FOR MEMBERS OF RESERVE COMPONENTS UNDER TITLE III OF THE SAID ACT OF JUNE 29. IT WILL BE NOTED THAT DOUBLE TIME FOR THE SERVICE IN QUESTION MAY BE CREDITED ONLY " IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT.'. THE LENGTH OF SERVICE REFERRED TO IN SECTION 203 (E) OF THE 1948 ACT IS REQUIRED NOT FOR THE PURPOSE OF QUALIFYING FOR RETIREMENT BUT FOR THE PURPOSE OF QUALIFYING FOR THE BENEFITS GRANTED THEREBY TO PERSONNEL ALREADY RETIRED. THE FIRST QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

B-89557, NOVEMBER 9, 1949, 29 COMP. GEN. 220

PAY - RETIRED - DOUBLE-TIME SERVICE CREDITS CREDIT FOR DOUBLE THE TIME SERVED IN CERTAIN FOREIGN AREAS PRIOR TO AUGUST 24, 1912, WHICH UNDER 10 U.S.C. 956 MAY BE COUNTED IN COMPUTING THE LENGTH OF SERVICE NECESSARY FOR RETIREMENT, MAY NOT BE COUNTED TOWARD THE 30 YEARS' SERVICE NECESSARY TO QUALIFY ENLISTED MEN TO RECEIVE THE RETIRED PAY OF THE HIGHEST TEMPORARY GRADE HELD BETWEEN SEPTEMBER 9, 1940, AND JUNE 30, 1946, AS AUTHORIZED BY SECTION 203 (E) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. SATISFACTORY FEDERAL SERVICE FOR THE PERIOD SPECIFIED IN SECTION 302 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 QUALIFIES CERTAIN MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS OF THE ARMED SERVICES NOT FOR RETIREMENT BUT FOR RETIRED PAY, SO THAT CREDIT FOR DOUBLE THE TIME SERVED IN FOREIGN AREAS PRIOR TO AUGUST 24, 1912, WHICH UNDER 10 U.S. CODE 956 MAY BE COUNTED IN COMPUTING THE LENGTH OF SERVICE NECESSARY FOR RETIREMENT, MAY NOT BE COUNTED TO ESTABLISH THE ELIGIBILITY OF PERSONS OTHERWISE WITHIN THE PURVIEW OF SAID SECTION 302 (A) TO THE RETIRED PAY AUTHORIZED THEREBY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, NOVEMBER 9, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 27, 1949, WHEREIN YOU PRESENT FOR DECISION TWO QUESTIONS REGARDING THE APPLICATION OF THE PROVISIONS OF LAW RELATING TO THE CREDITING OF CERTAIN FOREIGN SERVICE IN THE ARMY AS DOUBLE TIME, IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT OF SOLDIERS, CODIFIED UNDER SECTION 956 OF TITLE 10, U.S.C. WHICH READS AS FOLLOWS:

IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT, CREDIT SHALL BE GIVEN TO SOLDIERS FOR DOUBLE THE TIME OF THEIR ACTUAL SERVICE IN CHINA, PUERTO RICO, CUBA, THE PHILIPPINE ISLANDS, THE ISLAND OF GUAM, ALASKA, AND PANAMA, BUT DOUBLE CREDIT SHALL NOT BE GIVEN FOR SERVICE RENDERED SUBSEQUENT TO APRIL 23, 1904, IN PUERTO RICO OR THE TERRITORY OF HAWAII, NOR SHALL CREDIT FOR DOUBLE TIME FOR FOREIGN SERVICE BE GIVEN TO THOSE WHO ENLISTED AFTER AUGUST 24, 1912: PROVIDED, THAT NOTHING HEREIN SHALL BE SO CONSTRUED AS TO FORFEIT CREDIT FOR DOUBLE TIME ACCRUED PRIOR TO AUGUST 24, 1912.

THE QUESTIONS ON WHICH DECISION IS REQUESTED ARE AS FOLLOWS:

(1) ARE THE ABOVE-QUOTED PROVISIONS OF LAW, RELATIVE TO COUNTING CERTAIN FOREIGN SERVICE IN THE ARMY AS DOUBLE TIME IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT OF SOLDIERS, FOR APPLICATION IN DETERMINING THE DATE OF COMPLETION OF THIRTY YEARS OF SERVICE UNDER SECTION 203 (E) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, PUBLIC LAW 810, APPROVED JUNE 29, 1948?

(2) ARE SUCH PROVISIONS OF LAW FOR APPLICATION IN DETERMINING ELIGIBILITY FOR RETIREMENT AND RETIRED PAY FOR MEMBERS OF RESERVE COMPONENTS UNDER TITLE III OF THE SAID ACT OF JUNE 29, 1948?

THE SAID SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1086, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

EACH ENLISTED MAN OF THE REGULAR ARMY * * * HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL UPON THE COMPLETION OF THIRTY YEARS OF SERVICE, TO INCLUDE THE SUM OF HIS ACTIVE SERVICE AND HIS SERVICE ON THE RETIRED LIST, BE ADVANCED TO THE HIGHEST TEMPORARY COMMISSION, WARRANT, OR ENLISTED GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW FOR HIS LENGTH OF SERVICE AT THE TIME OF RETIREMENT BUT BASED UPON SUCH HIGHER TEMPORARY RANK OR GRADE * * *.

IT WILL BE NOTED THAT DOUBLE TIME FOR THE SERVICE IN QUESTION MAY BE CREDITED ONLY " IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT.' THE LENGTH OF SERVICE REFERRED TO IN SECTION 203 (E) OF THE 1948 ACT IS REQUIRED NOT FOR THE PURPOSE OF QUALIFYING FOR RETIREMENT BUT FOR THE PURPOSE OF QUALIFYING FOR THE BENEFITS GRANTED THEREBY TO PERSONNEL ALREADY RETIRED, AND, HENCE, THERE WOULD BE NO OCCASION TO APPLY THE DOUBLE-TIME CREDIT IN ITS COMPUTATION, SINCE TO DO SO WOULD OPERATE TO GIVE DOUBLE-TIME CREDIT FOR THE PURPOSE OF INCREASING RETIRED PAY. THAT RESULT WOULD NOT BE WITHIN THE PURVIEW OF THE LAWS AUTHORIZING SUCH CREDIT. CF. 6 COMP. GEN. 709. ACCORDINGLY, THE FIRST QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

SIMILAR CONSIDERATIONS ENTER INTO THE DETERMINATION OF THE SECOND QUESTION. SUBSECTION (A) OF SECTION 302, TITLE III, OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087, PROVIDES THAT MEMBERS OR FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY, AIR FORCE, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE, AS DEFINED IN THAT SECTION, SHALL, IF CERTAIN CONDITIONS BE MET, BE GRANTED "RETIRED PAY," AND WHILE SECTION 301 THEREOF, 62 STAT. 1087, AMONG OTHER THINGS, MAKES PROVISIONS FOR PLACING THE NAMES OF CERTAIN OF SUCH PERSONS THUS GRANTED RETIRED PAY-- BUT NOT INCLUDING ENLISTED MEMBERS OF THE RESERVE COMPONENTS OF THE ARMY--- ON RETIRED LISTS AUTHORIZED TO BE ESTABLISHED PURSUANT THERETO, BASICALLY THE STATUTE PROVIDES A RIGHT TO "RETIRED PAY" IN THE NATURE OF A PENSION, RATHER THAN A RIGHT TO RETIREMENT IN THE USUAL SENSE, OR WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 956, SUPRA. THAT IS, THE LENGTH OF SERVICE REFERRED TO IN SUBSECTION (A) OF SECTION 302 OF THE SAID 1948 ACT IS REQUIRED NOT FOR THE PURPOSE OF QUALIFYING FOR RETIREMENT BUT FOR THE PURPOSE OF QUALIFYING FOR SO-CALLED "RETIRED PAY" IN THE NATURE OF A PENSION. SEE DECISION OF MARCH 14, 1949, 28 COMP. GEN. 510, HOLDING THAT PERSONS NEED NOT BE MEMBERS OF RESERVE COMPONENTS WHEN REACHING THE AGE OF 60 YEARS TO QUALIFY FOR SUCH RETIRED PAY. ON SUCH BASIS, THE SECOND QUESTION PRESENTED ALSO IS ANSWERED IN THE NEGATIVE. SEE, ALSO, 23 COMP. GEN. 102, AND ID. 284, 286. CF. 22 COMP. GEN. 664, 671.