B-98693, DECEMBER 5, 1950, 30 COMP. GEN. 228

B-98693: Dec 5, 1950

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PAY - SERVICE CREDITS - SERVICE IN A CADET STATUS AFTER GRADUATION FROM ACADEMY NOTWITHSTANDING THAT MEMBERS OF THE COAST GUARD ACADEMY GRADUATING CLASS OF 1927 WERE PERMANENTLY DETACHED FROM THE ACADEMY ON THE DAY OF GRADUATION. THE DATE THE MEMBERS OF THAT CLASS WERE COMMISSIONED IN THE COAST GUARD. IT IS STATED THAT THE CADETS OF THE COAST GUARD ACADEMY CLASS OF 1927 WHO ORDINARILY WOULD HAVE BEEN GRADUATED IN JUNE 1927 AND THEN IMMEDIATELY COMMISSIONER WERE. WHILE FOR ADMINISTRATIVE REASONS THE MEMBERS OF THE SAID CLASS OF 1927 WERE NOT COMMISSIONED ENSIGNS IN THE COAST GUARD UNTIL MARCH 8. IT IS FURTHER STATED THAT THEY WERE PERMANENTLY DETACHED FROM THE COAST GUARD ACADEMY ON THE DAY OF THEIR GRADUATION AND ORDERED TO REPORT TO THEIR ASSIGNED UNITS AND THAT WHILE SO ASSIGNED ALTHOUGH CONTINUING IN THEIR "ACTUAL CADET STATUS" THEY WERE GIVEN DUTIES NORMALLY PERFORMED BY COMMISSIONED OFFICERS AND WERE AUTHORIZED TO WEAR THE UNIFORM OF AN ENSIGN.

B-98693, DECEMBER 5, 1950, 30 COMP. GEN. 228

PAY - SERVICE CREDITS - SERVICE IN A CADET STATUS AFTER GRADUATION FROM ACADEMY NOTWITHSTANDING THAT MEMBERS OF THE COAST GUARD ACADEMY GRADUATING CLASS OF 1927 WERE PERMANENTLY DETACHED FROM THE ACADEMY ON THE DAY OF GRADUATION, GIVEN DUTIES NORMALLY PERFORMED BY COMMISSIONED OFFICERS, AND AUTHORIZED TO WEAR THE UNIFORM OF AN ENSIGN, SUCH MEMBERS, HAVING BEEN CONTINUED IN THEIR CADET STATUS FOR ADMINISTRATIVE REASONS PENDING RECEIPT OF THEIR COMMISSIONS, DID NOT ACQUIRE A DE FACTO STATUS AS ENSIGNS SO AS TO INCLUDE SUCH CADET SERVICE UNDER SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949 IN THE COMPUTATION OF THEIR CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, DECEMBER 5, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 6, 1950, REQUESTING DECISION AS TO WHETHER THE PERIOD OF TIME INTERVENING BETWEEN DATE OF GRADUATION OF THE COAST GUARD ACADEMY CLASS OF 1927, VIZ, JANUARY 28, 1927, AND THE DATE THE MEMBERS OF THAT CLASS WERE COMMISSIONED IN THE COAST GUARD, MARCH 8, 1927, MAY, FOR THE REASONS SET FORTH IN YOUR COMMUNICATION, BE CONSTRUED AS "DE FACTO" COMMISSIONED SERVICE SO AS TO COME WITHIN THE SCOPE OF SECTION 202 (A) (1) OF THE CAREER COMPENSATION ACT OF 1949.

IT IS STATED THAT THE CADETS OF THE COAST GUARD ACADEMY CLASS OF 1927 WHO ORDINARILY WOULD HAVE BEEN GRADUATED IN JUNE 1927 AND THEN IMMEDIATELY COMMISSIONER WERE, INSTEAD, GRADUATED ON JANUARY 28, 1927, BECAUSE OF THE NEED FOR OFFICERS ON VESSELS ENGAGED IN ENFORCING THE PROHIBITION AND ANTI -SMUGGLING LAWS. WHILE FOR ADMINISTRATIVE REASONS THE MEMBERS OF THE SAID CLASS OF 1927 WERE NOT COMMISSIONED ENSIGNS IN THE COAST GUARD UNTIL MARCH 8, 1927, IT IS FURTHER STATED THAT THEY WERE PERMANENTLY DETACHED FROM THE COAST GUARD ACADEMY ON THE DAY OF THEIR GRADUATION AND ORDERED TO REPORT TO THEIR ASSIGNED UNITS AND THAT WHILE SO ASSIGNED ALTHOUGH CONTINUING IN THEIR "ACTUAL CADET STATUS" THEY WERE GIVEN DUTIES NORMALLY PERFORMED BY COMMISSIONED OFFICERS AND WERE AUTHORIZED TO WEAR THE UNIFORM OF AN ENSIGN.

IT APPEARS THAT THE COMMANDANT, UNITED STATES COAST GUARD, HAS RECEIVED A COMMUNICATION FROM A MEMBER OF THE COAST GUARD ACADEMY CLASS OF 1927, WHO IS NOW A COMMISSIONED OFFICER IN THE COAST GUARD ON ACTIVE DUTY, TO THE EFFECT THAT THE PERIOD OF TIME ELAPSING FROM THE DATE OF HIS GRADUATION, JANUARY 28, 1927, UNTIL THE DATE HE WAS COMMISSIONED ENSIGN ON MARCH 8, 1927, SHOULD BE CONSIDERED AS "DE FACTO" COMMISSIONED SERVICE. THE SAID COMMISSIONED OFFICER FURTHER CONTENDS THAT THE RESTRICTIVE PROVISIONS OF SECTION 2A, TITLE 14, U.S. CODE, 1946 USED., AND OF ARTICLE 102 (2) OF THE CURRENT EDITION OF PAY AND SUPPLY INSTRUCTIONS, U.S. COAST GUARD, QUOTED IN PERTINENT PART IN YOUR LETTER, WHICH PRECLUDE COUNTING OF SERVICE AS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY OR SERVICE AT THE U.S. MILITARY ACADEMY OR U.S. COAST GUARD ACADEMY "IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES OF ANY COMMISSIONED OFFICER, CHIEF WARRANT OR WARRANT OFFICER," ARE AIMED AT EXCLUDING CADET SERVICE ONLY WHERE SUCH CADET SERVICE WAS PERFORMED AT THE PARTICULAR ACADEMY.

AN OFFICER "DE FACTO" IS ONE WHO PERFORMS THE DUTIES OF AN OFFICE WITH APPARENT RIGHT AND UNDER COLOR OF AN APPOINTMENT AND CLAIM OF TITLE TO SUCH OFFICE. THAT IS, WHERE THERE IS AN OFFICE TO BE FILLED, AND ONE ACTING UNDER COLOR OF AUTHORITY FILLS SAID OFFICE AND DISCHARGES ITS DUTIES, HIS ACTIONS ARE THOSE OF AN OFFICE "DE FACTO.' MCDOWELL V. UNITED STATES, 159 U.S. 596; CF. 19 COMP. DEC. 747-752. IT IS NOT ASSERTED, NOR IS IT EVEN SUGGESTED, THAT ANY OF THE SAID MEMBERS OF THE COAST GUARD ACADEMY GRADUATING CLASS OF 1927, DURING THE PERIOD OF ENSIGN OR ACTUALLY SERVED UNDER COLOR OF AN APPOINTMENT TO THE OFFICE OF ENSIGN OTHERWISE REGULAR UPON ITS FACE AND PURPORTING TO HAVE BEEN MADE BY THE PRESIDENT. SEE SECTION 6, TITLE 14, U.S.C.A., 1927. HENCE, NOTWITHSTANDING THE NATURE OF THEIR ASSIGNED DUTIES OR THE TYPE OF UNIFORM THEY WERE ALLOWED TO WEAR, SINCE THE MEMBERS OF THE COAST GUARD ACADEMY GRADUATING CLASS OF 1927 IN FACT SERVED IN THE STATUS OF CADETS, THEY DID NOT ACQUIRE A "DE FACTO" STATUS OF ENSIGN. YOUR QUESTION IN THAT RESPECT IS, THEREFORE, ANSWERED IN THE NEGATIVE.

IT IS SUGGESTED, HOWEVER, THAT THE RESTRICTIVE PROVISIONS OF LAW AND REGULATIONS ABOVE REFERRED TO AND QUOTED IN YOUR LETTER, EXCLUDING SERVICE AS A CADET AT THE MILITARY OR COAST GUARD ACADEMIES AND SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY FROM COMPUTATION FOR LENGTH OF SERVICE, ARE LIMITED TO THE TIME ACTUALLY SPENT AT SAID ACADEMIES AND, THEREFORE, ARE NOT FOR APPLICATION AND DO NOT PROHIBIT COUNTING THE SERVICE PERFORMED BY THE MEMBERS OF THE 1927 CLASS DURING THE PERIOD THEY SERVED AS CADETS AWAY FROM THE COAST GUARD ACADEMY FROM JANUARY 28, 1927, TO MARCH 7, 1927, INCLUSIVE. AS "MEMBERS" OF THE "UNIFORMED SERVICES"--- SEE SUBSECTIONS (A) AND (B). SECTION 102 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (A) AND (B), 1946 USED. SUPP. III--- COMMISSIONED OFFICERS OF THE COAST GUARD ON ACTIVE DUTY WHO WERE MEMBERS OF THE COAST GUARD ACADEMY GRADUATING CLASS OF 1927 ARE NOW SUBJECT, IN THE COMPUTATION OF THEIR CUMULATIVE YEARS OF SERVICE FOR PAY PURPOSES, TO THE FOLLOWING PROVISIONS OF THE SAID CAREER COMPENSATION ACT, 63 STAT. 807, 808:

SEC. 202 (A) SUBJECT TO THE PROVISIONS OF SUBSECTIONS (B), (C), AND (D) OF THIS SECTION, IN COMPUTING THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED BY MEMBERS OF THE UNIFORMED SERVICES FOR DETERMINING THE AMOUNT OF BASIC PAY THEY ARE ENTITLED TO RECEIVE UPON COMPLETION OF SUCH YEARS OF SERVICE, SUCH MEMBERS SHALL BE CREDITED WITH---

(1) FULL TIME FOR ALL PERIODS OF ACTIVE SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, AND ENLISTED PERSON IN ANY REGULAR OR RESERVE COMPONENT OF ANY OF THE UNIFORMED SERVICES; AND

(2) FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS COMMISSIONED OFFICERS, COMMISSIONED WARRANT OFFICERS, WARRANT OFFICERS, ARMY FIELD CLERKS, OR FLIGHT OFFICERS, IN ANY OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES, OR IN THE REGULAR ARMY RESERVE, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE ORGANIZED RESERVE CORPS, OR IN THE OFFICERS' RESERVE CORPS, OR IN THE ENLISTED RESERVE CORPS, OR IN THE MEDICAL RESERVE CORPS, OR IN THE MEDICAL RESERVE CORPS OF THE NAVY, OR IN THE DENTAL RESERVE CORPS OF THE NAVY, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, OR IN THE NAVAL RESERVE, OR IN THE AIR NATIONAL GUARD, OR IN THE AIR NATIONAL GUARD OF THE UNITED STATES, OR IN THE AIR FORCE RESERVE, OR IN THE OFFICERS' SECTION OF THE AIR FORCE RESERVE, OR IN THE ENLISTED SECTION OF THE AIR FORCE RESERVE, OR IN THE AIR CORPS RESERVE, OR IN THE ARMY OF THE UNITED STATES WITHOUT SPECIFICATION OF ANY COMPONENT THEREOF, OR IN THE AIR FORCE OF THE UNITED STATES WITHOUT SPECIFICATION OF ANY COMPONENT THEREOF, OR IN THE MARINE CORPS RESERVE FORCE, OR IN THE MARINE CORPS RESERVE, OR IN THE COAST GUARD RESERVE, OR IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY; AND

(3) FOR COMMISSIONED OFFICERS IN SERVICE ON JUNE 30, 1922, ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME; AND

(4) FULL TIME FOR ALL PERIODS DURING WHICH THEY HELD APPOINTMENTS AS NURSES, RESERVE NURSES, OR COMMISSIONED OFFICERS IN THE ARMY NURSE CORPS, THE NAVY NURSE CORPS, THE NURSE CORPS OF THE PUBLIC HEALTH SERVICE, OR THE RESERVE COMPONENTS THEREOF; AND

(5) FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE DECK OFFICERS OR JUNIOR ENGINEERS IN THE COAST AND GEODETIC SURVEY; AND

(6) ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.

PARAGRAPHS (1) AND (2) OF SUBSECTION (A), SUPRA, 63 STAT. 807, 808, SPECIFICALLY ENUMERATE THE ORGANIZATIONS IN WHICH PRIOR SERVICE AS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, OR AS AN ENLISTED PERSON MAY BE CREDITED IN THE COMPUTATION OF THE CUMULATIVE YEARS OF SERVICE. THE SAID PROVISIONS OF LAW DO NOT DESIGNATE, EXPRESSLY OR BY IMPLICATION, SERVICE AS A MIDSHIPMAN OR AS A CADET, WHICH SERVICE, WHETHER PERFORMED AT OR AWAY FROM THE MILITARY, NAVAL, OR COAST GUARD ACADEMIES, IS NOT SERVICE IN THE CAPACITY OF A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, ARMY FIELD CLERK, FLIGHT OFFICER, OR AS AN ENLISTED PERSON. SEE UNITED STATES V. NOCE, 268 U.S. 613. COMPARE 27 COMP. DEC. 289; ALSO 30 COMP. GEN. 31. HENCE, CADET OR MIDSHIPMAN SERVICE MAY NOT BE INCLUDED IN THE COMPUTATION OF CREDITABLE SERVICE UNDER THE ABOVE-QUOTED PROVISIONS OF LAW. FOR THE SAME REASONS, CADET OR MIDSHIPMAN SERVICE WAS NOT PROPERLY CREDITABLE UNDER THE PROVISIONS OF SECTIONS 1 AND 3A OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED (SECTIONS 101 AND 103A, TITLE 37, U.S. CODE, 1946 USED.), OR UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 627, 37 U.S.C. 4, 1934 USED. SEE 22 COMP. GEN. 987 AND 29 ID. 331. IT FOLLOWS THAT SUCH CADET SERVICE MAY NOT BE INCLUDED OR COUNTED BY THE MEMBERS OF SAID CLASS OF 1927 IN THE COMPUTATION OF THEIR BASIC PAY, NOTWITHSTANDING THAT IT MAY HAVE BEEN PERFORMED AFTER GRADUATION AND AWAY FROM THE ACADEMY, PENDING THE RECEIPT OF THEIR COMMISSIONS AS ENSIGNS.