B-100137, OCTOBER 19, 1951, 31 COMP. GEN. 145

B-100137, OCTOBER 19, 1951, 31 COMP. GEN. 145

PAY - SERVICE CREDITS - CREDIT FOR CADET OR MIDSHIPMAN SERVICE UNDER SECTION 303 (I) OF THE ACT OF JUNE 29, 1948, AS AMPLIFIED BY SECTION 306 (D), PROVIDING FOR THE COUNTING OF ALL PERIODS OF "ACTIVE FEDERAL SERVICE" IN COMPUTING THE RETIRED PAY OF A MEMBER OF THE UNIFORMED SERVICES ELIGIBLE FOR RETIREMENT UNDER SECTION 302, NAVAL CADET OR MIDSHIPMAN SERVICE AT THE NAVAL ACADEMY EITHER BEFORE OR AFTER MARCH 4, 1913, MAY NOT BE CONSIDERED "ACTIVE FEDERAL SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 306 (D) OF SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO H. J. ELSON, OCTOBER 19, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1951, CONCERNING THAT PART OF DECISION OF JULY 26, 1951, B-100137, TO YOU, WHICH INDICATES THAT YOU ARE NOT ENTITLED TO CREDIT FOR NAVAL CADET (MIDSHIPMAN) SERVICE AT THE NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IN THE COMPUTATION OF YOUR RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1087.

WHILE YOU APPEAR TO CONCEDE THAT SUCH NAVAL CADET SERVICE PROPERLY MAY NOT BE INCLUDED AS ,SATISFACTORY FEDERAL SERVICE" UNDER SECTION 302 OF THE ACT IN DETERMINING WHETHER A MEMBER HAS COMPLETED 20 OR MORE YEARS OF SUCH SATISFACTORY SERVICE, IT APPARENTLY IS YOUR VIEW THAT SUCH SERVICE MAY BE COUNTED AS "ACTIVE FEDERAL SERVICE" IN THE COMPUTATION OF RETIRED PAY UNDER SECTION 303 OF THE SAID ACT.

SECTION 302 (A) OF THE ACT PROVIDES, 62 STAT. 1087, IN PERTINENT PART, AS FOLLOWS:

ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933, THE UNITED STATES NAVY INCLUDING THE RESERVE COMPONENTS THEREOF, THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, OR THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, OR THE UNITED STATES COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF, AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY: PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIREMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES PERFORMED ON OR PRIOR TO JULY 26, 1949 * * * PROVIDED FURTHER, THAT NO PERSON WHO WAS A MEMBER OF A RESERVE COMPONENT ON OR BEFORE AUGUST 15, 1945, SHALL BE ELIGIBLE FOR RETIREMENT BENEFITS UNDER THIS TITLE UNLESS HE PERFORMED ACTIVE FEDERAL SERVICE DURING ANY PORTION OF EITHER OF THE TWO PERIODS BEGINNING APRIL 6, 1917, AND ENDING NOVEMBER 11, 1918, AND BEGINNING SEPTEMBER 9, 1940, AND ENDING DECEMBER 31, 1946.

SECTION 303 OF THE ACT PROVIDES, 62 STAT. 1088, IN PERTINENT PART, AS FOLLOWS:

ANY PERSON GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL RECEIVE SUCH PAY AT AN ANNUAL RATE EQUAL TO 2 1/2 PERCENTUM OF THE ACTIVE DUTY ANNUAL BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING, AT THE TIME GRANTED SUCH PAY, ON ACTIVE DUTY IN THE HIGHEST GRADE, TEMPORARY OR PERMANENT, SATISFACTORILY HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS AND ANY FRACTION THEREOF (ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR) WHICH SHALL CONSIST OF THE SUM OF THE FOLLOWING:

(I) ALL PERIODS OF ACTIVE FEDERAL SERVICE;

(II) ONE DAY FOR EACH POINT CREDITED PURSUANT TO SUBPARAGRAPHS (2) AND (3) OF SUBSECTION (B) OF SECTION 302 OF THIS ACT, BUT NO MORE THAN SIXTY DAYS SHALL BE CREDITED ON THE BASIS IN ANY ONE YEAR FOR THE PURPOSES OF THIS SECTION:

SECTION 306, 62 STAT. 1089, 1090, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

FOR THE PURPOSES OF THIS TITLE---

(A) * * *

(D) THE TERM "ACTIVE FEDERAL SERVICE" SHALL INCLUDE ALL PERIODS OF ANNUAL TRAINING DUTY AND ALL PRESCRIBED PERIODS OF ATTENDANCE AT SUCH SERVICE SCHOOLS AS HAVE BEEN, OR MAY BE DESIGNATED, AS SUCH BY THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE AIR FORCE FOR THEIR RESPECTIVE SERVICES, OR BY LAW, OR ANY OTHER PERIOD OF TIME WHEN ORDERED TO ACTIVE DUTY UNDER COMPONENT FEDERAL ORDERS.

IN DETERMINING A PERSON'S ELIGIBILITY FOR RETIREMENT UNDER THE SAID SECTION 302, THE 20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE MUST HAVE BEEN PERFORMED "IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON" IN ANY OF THE SERVICES MENTIONED THEREIN. APPLYING THE RULE OF STATUTORY CONSTRUCTION EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, IT MUST BE CONCLUDED THAT SINCE SERVICE AS A CADET OR MIDSHIPMAN IS NOT EXPRESSLY INCLUDED IN THE SAID SECTION 302, SUCH SERVICE IS TO BE EXCLUDED IN DETERMINING WHETHER A PERSON HAS COMPLETED 20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE. IN THAT CONNECTION, SEE NAVY DEPARTMENT COURT MARTIAL ORDER NO. 3-1950, MARCH, 1950, PAGE 69. ON THE OTHER HAND, IN THE COMPUTATION OF RETIRED PAY OF A MEMBER WHO IS OTHERWISE ELIGIBLE FOR RETIRED PAY UNDER SECTION 302, ALL PERIODS OF "ACTIVE FEDERAL SERVICE" ARE AUTHORIZED UNDER SECTION 303 TO BE INCLUDED IN SUCH COMPUTATION. THE TERM "ACTIVE FEDERAL SERVICE" IS DEFINED IN SECTION 306 (D), SUPRA, AS INCLUDING (1) ALL PERIODS OF ANNUAL TRAINING DUTY; (2) ALL PRESCRIBED PERIODS OF ATTENDANCE AT SUCH SERVICE SCHOOLS AS HAVE BEEN DESIGNATED AS SUCH BY THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE AIR FORCE FOR THEIR RESPECTIVE SERVICES, OR BY LAW, AND (3) ANY OTHER PERIOD OF TIME WHEN ORDERED TO ACTIVE DUTY UNDER COMPETENT FEDERAL ORDERS. IT SEEMS REASONABLY CLEAR THAT CATEGORY (1) HAS REFERENCE TO PERIODS OF ANNUAL TRAINING DUTY PERFORMED UNDER COMPETENT ORDERS BY MEMBERS OF THE NAVAL RESERVE, OFFICERS' RESERVE CORPS, NATIONAL GUARD, ETC. AND CATEGORY (2) APPEARS TO HAVE REFERENCE TO SERVICE SCHOOLS SUCH AS THOSE REFERRED TO IN CERTAIN PARAGRAPHS OF SECTIONS 2, 3, 4 AND 5 OF CHAPTER 1, PART D, BUREAU OF NAVAL PERSONNEL MANUAL, AND SECTION 99 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, 32 U.S.C. 65, RATHER THAN THE UNITED STATES MILITARY ACADEMY AND THE UNITED STATES NAVAL ACADEMY. IN THAT CONNECTION, IT WILL BE NOTED THAT SECTION 99 OF THE NATIONAL DEFENSE ACT AS AMENDED, AUTHORIZES A LIMITED NUMBER OF OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE NATIONAL GUARD TO ATTEND AND PURSUE A REGULAR COURSE OF STUDY AT "ANY MILITARY SERVICE SCHOOL OF THE UNITED STATES, EXCEPT THE UNITED STATES MILITARY ACADEMY.' THE THIRD AND LAST CATEGORY INCLUDES MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES (AND POSSIBLY RETIRED MEMBERS) WHO ARE ORDERED TO ACTIVE DUTY UNDER COMPETENT ORDERS. HOWEVER, MIDSHIPMEN AT THE NAVAL ACADEMY ARE NOT "ORDERED TO ACTIVE DUTY" AS THAT TERM IS GENERALLY UNDERSTOOD IN STATUTES RELATING TO MILITARY AND NAVAL PERSONNEL. HENCE, IT WOULD APPEAR THAT SERVICE AS A NAVAL CADET OR MIDSHIPMAN AT THE NAVAL ACADEMY IS NOT INCLUDED WITHIN THE TERM "ACTIVE FEDERAL SERVICE" AS USED IN SECTION 306 (D) OF THE ACT. THAT SUCH IS THE CORRECT VIEW APPEARS TO HAVE BEEN RECOGNIZED BY REPRESENTATIVES OF THE DEPARTMENT OF THE NAVY WHILE TESTIFYING BEFORE THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON A BILL WHICH FORMED THE BASIS FOR THE CAREER COMPENSATION ACT OF 1949. IN THAT CONNECTION, IT WILL BE NOTED THAT SECTION 412 OF THE CAREER COMPENSATION ACT, 63 STAT. 824, DEFINES "ACTIVE SERVICE" FOR THE RETIREMENT PAY PURPOSES OF TITLE IV OF THE SAID ACT AS INCLUDING, INTER-ALIA:

(2) FOR MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES, OTHER THAN COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, AND FOR FORMER MEMBERS REFERRED TO IN SECTION 411 (2) THAT SERVICE WHICH IS EQUAL TO THE NUMBER OF YEARS WHICH WOULD BE USED BY SUCH MEMBERS OR FORMER MEMBERS AS A MULTIPLIER IN THE COMPUTATION OF THEIR RETIRED PAY PURSUANT TO SECTION 303 OF THE ACT OF JUNE 29, 1948 (CH. 708, 62 STAT. 1088) * * *.

IN THE HEARINGS ON H.R. 2553, A PREDECESSOR BILL TO H.R. 5007 WHICH BECAME THE CAREER COMPENSATION ACT OF 1949, THE FOLLOWING STATEMENTS WERE MADE WITH REGARD TO PROVISIONS SUBSTANTIALLY IDENTICAL WITH THE ABOVE- QUOTED PROVISIONS OF SECTION 412 OF THE 1949 ACT:

MR. COLE. THIS DOES NOT INCLUDE SERVICE WHILE AT THE ACADEMIES?

COMMANDER MARTINEAU. NO, SIR.

MR. COLE. FOR THE PURPOSE OF RETIREMENT.

COMMANDER MARTINEAU, FOR NO PURPOSE.

MR. COLE. BUT IN THE OTHER TITLES OF THE BILL SERVICE AT THE ACADEMIES HAS BEEN CONSIDERED FOR PURPOSES OF PAY?

COMMANDER MARTINEAU. NO, SIR.

MR. BLANDFORD. IT HAS BEEN STRICKEN OUT OF THIS BILL.

MR. COLE. I WAS NOT AWARE OF THAT. THAT REMOVES A THORN THAT HAS BEEN IN MY MIND FOR SOME TIME. I REALIZE THAT THAT IS GOOD JUDGMENT.

MR. KILDAY. THAT IS OUT. IT GOT TOO COMPLICATED.

MR. COLE. GOOD.

IN VIEW OF THE FOREGOING, IT SEEMS REASONABLY CLEAR THAT NAVAL CADET OR MIDSHIPMAN SERVICE AT THE NAVAL ACADEMY EITHER BEFORE OR AFTER MARCH 4, 1913, PROPERLY MAY NOT BE CONSIDERED "ACTIVE FEDERAL SERVICE" WITHIN THE MEANING OF SECTION 303 (I) AS AMPLIFIED BY SECTION 306 (D) OF THE ACT OF JUNE 29, 1948, SUPRA.

WITH RESPECT TO YOUR CONTENTION THAT YOU MAY BE ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1183, 34 U.S.C. 855I, IT WILL BE NOTED THAT TO BE ELIGIBLE FOR RETIRED PAY UNDER THE SAID SECTION 310 A MEMBER MUST HAVE COMPLETED A TOTAL OF NOT LESS THAN THIRTY YEARS' ACTIVE SERVICE IN THE ARMY, NAVY, ETC., OR HAVE HAD NOT LESS THAN TWENTY YEARS' OF SUCH ACTIVE SERVICE, THE LAST TEN YEARS OF WHICH MUST HAVE BEEN PERFORMED DURING THE ELEVEN YEARS IMMEDIATELY PRECEDING HIS TRANSFER TO THE HONORARY RETIRED LIST OF THE NAVAL RESERVE. THE RECORDS BEFORE THIS OFFICE INDICATE THAT YOU FAILED TO QUALIFY FOR RETIRED PAY UNDER THE SAID SECTION 310, HAVING COMPLETED LESS THAN TWENTY YEARS' ACTIVE SERVICE.