B-94651, APRIL 26, 1951, 30 COMP. GEN. 415

B-94651, APRIL 26, 1951, 30 COMP. GEN. 415

PAY - RETIRED - SERVICE CREDITS - CONSTRUCTIVE SERVICE THE CONSTRUCTIVE SERVICE AUTHORIZED TO BE CREDITED FOR PAY PURPOSES TO NAVY OFFICERS BY SECTION 13 OF THE ACT OF MARCH 3, 1899, AS AMENDED, PROVIDING THAT ALL 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, IS NOT "ACTIVE SERVICE" AS DEFINED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AND MAY NOT BE CREDITED AS ACTIVE SERVICE FOR THE PURPOSE OF COMPUTING RETIRED PAY OF AN OFFICER UNDER THE ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 26, 1951:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1951, WITH ENCLOSURE, RELATIVE TO THE RETIRED PAY RIGHTS OF LIEUTENANT COMMANDER FRANK G. KUTZ, UNITED STATES NAVY, RETIRED, WHEREIN YOU REQUEST DECISION AS TO WHETHER THE CONSTRUCTIVE SERVICE AUTHORIZED BY SECTION 13 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, AS AMENDED, 34 U.S.C. 880, MAY BE CREDITED AS ACTIVE SERVICE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING RETIRED PAY UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 829.

THE SAID SECTION 13 OF THE ACT OF MARCH 3, 1899, AS AMENDED, IS IN PERTINENT PART AS FOLLOWS:

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: PROVIDED, THAT THIS SHALL NOT APPLY TO ANY PERSON ENTERING THE NAVY FROM AND AFTER MARCH 4, 1913.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, PROVIDES, IN PERTINENT PART AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER * * * AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: PROVIDED, THAT FOR THE PURPOSE OF THE COMPENSATION OF (B) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR: PROVIDED FURTHER, THAT IN NO CASE SHALL RETIRED PAY * * * EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED: PROVIDED FURTHER, THAT FOR THE PURPOSE OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES, OR AS A NURSE, OR AS A CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, OR AS A RESERVE NURSE SUBSEQUENT TO FEBRUARY 2, 1901, OR AS A CONTRACT SURGEON, OR AS A CONTRACT DENTAL SURGEON, OR AS AN ACTING DENTAL SURGEON, OR AS A VETERINARIAN IN THE QUARTERMASTER DEPARTMENT, CAVALRY, OR FIELD ARTILLERY, OR AS AN ARMY FIELD CLERK OR AS A FIELD CLERK, ARMY QUARTERMASTER CORPS, WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW, INCLUDING PARTICIPATION IN EXERCISES OR PERFORMANCE OF DUTIES PROVIDED FOR BY SECTIONS 5, 81, 92, 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND IN THE CASE OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, THAT SERVICE WHICH IS CREDITABLE PURSUANT TO PART (3) OF SECTION 412 OF THIS ACT * * *.

THE SAID SECTION 511 IS APPLICABLE TO ALL "MEMBERS OF THE UNIFORMED SERVICES HERETOFORE (PRIOR TO OCTOBER 1, 1949) RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY" AND BY THE TERMS OF THE SECTION ANY SUCH MEMBERS ARE ENTITLED ONLY TO THOSE RETIRED PAY BENEFITS UNDER THE CAREER COMPENSATION ACT WHICH ARE EXPRESSLY AUTHORIZED FOR THEM BY THAT SECTION. AS WILL BE NOTED, ONLY ACTIVE SERVICE MAY BE COUNTED FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING RETIRED PAY UNDER SECTION 511 AND THE TERM "ACTIVE SERVICE" IS EXPRESSLY DEFINED THEREIN. THE CONSTRUCTIVE SERVICE AUTHORIZED TO BE CREDITED BY SECTION 13 OF THE ACT OF MARCH 3, 1899, SUPRA, IS NOT INCLUDED IN SUCH DEFINITION AND, HENCE, SUCH CONSTRUCTIVE SERVICE MAY NOT BE CONSIDERED AS ACTIVE SERVICE FOR THE PURPOSES OF SECTION 511. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.