B-150780, JUNE 7, 1963, 42 COMP. GEN. 669

B-150780, JUNE 7, 1963, 42 COMP. GEN. 669

PAY - SERVICE CREDITS - CADET, MIDSHIPMAN, ETC. - NON-ACADEMY SERVICE PERIODS OF MIDSHIPMAN SERVICE IN THE "NON-NAVAL ACADEMY" CATEGORY PERFORMED BY NAVAL OFFICERS UNDER THE ACT OF AUGUST 13, 1946, WHEN THEY RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES PROVIDED FOR MIDSHIPMEN AT THE NAVAL ACADEMY, ARE NOT REQUIRED TO BE CONSIDERED SUBJECT TO THE RESTRICTIONS IMPOSED UPON MIDSHIPMAN SERVICE AT THE NAVAL ACADEMY BY 10 U.S.C. 6116 OR THE TRAINING SERVICE CREDIT RESTRICTIONS IN 10 U.S.C. 6323, MERELY BECAUSE THEY ARE RECEIVING PAY AND ALLOWANCES SIMILAR TO MIDSHIPMEN AT THE NAVAL ACADEMY, THEREFORE, SUCH ACTIVE DUTY "NON-NAVAL ACADEMY" SERVICE MAY BE CREDITED TOWARD THE 20-YEAR ACTIVE SERVICE REQUIREMENT FOR RETIREMENT UNDER 10 U.S.C. 6323; HOWEVER, THE PERIODS WHICH THE MEMBERS AS MIDSHIPMEN ARE IN RECEIPT OF RETAINER PAY MUST BE CONSIDERED INACTIVE DUTY AND AS SUCH ARE NOT CREDITABLE FOR RETIREMENT PURPOSES.

TO THE SECRETARY OF THE NAVY, JUNE 7, 1963:

REFERENCE IS MADE TO LETTER OF FEBRUARY 1, 1963, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), REQUESTING A DECISION AS TO WHETHER THERE WOULD BE ANY BASIS TO QUESTION ENTITLEMENT TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 6323, TITLE 10, U.S. CODE, WHICH AUTHORIZES THE RETIREMENT OF AN OFFICER OF THE NAVY AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, IF THE EXCLUSION OF MIDSHIPMAN SERVICE OF THE "NON-NAVAL ACADEMY" CATEGORY FROM COMPUTATION WOULD LEAVE LESS THAN 20 YEARS OF ACTIVE SERVICE. IN THAT LETTER REFERENCE IS MADE TO THE FACT THAT SERVICE AS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY IS NOT CREDITABLE AS ACTIVE SERVICE IN THE CASE OF ANY OFFICER OF THE NAVY APPLYING FOR RETIREMENT UNDER SECTION 6323, BECAUSE SECTION 6116 OF TITLE 10 DENIES THIS CREDIT FOR ANY PURPOSE IF SUCH OFFICER WAS APPOINTED AS A MIDSHIPMAN AFTER MARCH 4, 1913, AND ALSO TO THE FACT THAT THE RESTRICTIONS IMPOSED BY SECTION 6116 ARE NOT, BY ITS LITERAL TERMS, APPLICABLE TO MIDSHIPMAN SERVICE OF THE "NON-NAVAL ACADEMY" CATEGORY. THE REQUEST FOR DECISION HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. SS-N-690.

THE FOLLOWING FACTUAL SITUATION IS CITED AS ILLUSTRATIVE:

AN OFFICER, NOW SERVING ON ACTIVE DUTY IN THE NAVY, ORIGINALLY ENTERED THE NAVAL SERVICE AS AN ENLISTED MAN, RESERVIST. UNDER THE AUTHORITY OF THE ACT OF APRIL 13, 1948 (AUGUST 13, 1946), PUBLIC LAW 79-729, 60 STAT. 1058, HE WAS APPOINTED A MIDSHIPMAN IN THE U.S. NAVY, AND UNDER CONTRACT SO SERVED ON ACTIVE DUTY FOR THE PERIOD AUGUST 25, 1948 THROUGH AUGUST 24, 1950. THROUGHOUT THIS PERIOD, HE HAD NO STATUS OTHER THAN MIDSHIPMAN, HAVING BEEN DISCHARGED AS A RESERVIST FOR THE CONVENIENCE OF THE GOVERNMENT IN ORDER TO ACCEPT HIS APPOINTMENT. ON AUGUST 25, 1950, HE ACCEPTED AN APPOINTMENT AS ENSIGN AND HAS SERVED CONTINUOUSLY AS A REGULAR OFFICER EVER SINCE. THIS OFFICER FLEW 15 COMBAT MISSIONS OVER KOREA AS A MIDSHIPMAN.

IT IS STATED IN THE LETTER OF THE ASSISTANT SECRETARY THAT THE MIDSHIPMAN SERVICE IS NOT CREDITABLE FOR THE PURPOSE OF COMPUTING BASIC PAY UNDER SECTION 205, TITLE 37, U.S. CODE, AND THAT SECTION 971 OF TITLE 10 IMPOSES RESTRICTIONS, NOT BY LITERAL TERMS APPLICABLE, TO THE EFFECT THAT A PERIOD OF SERVICE UNDER AN ENLISTMENT OR PERIOD OF OBLIGATED SERVICE WHILE ALSO SERVING AS A MIDSHIPMAN AT THE U.S. NAVAL ACADEMY OR IN THE NAVAL RESERVE, UNDER AN APPOINTMENT ACCEPTED AFTER JUNE 25, 1956, MAY NOT BE COUNTED IN COMPUTING, FOR ANY PURPOSE, THE LENGTH OF SERVICE OF AN OFFICER.

IT IS FURTHER STATED IN THE LETTER OF THE ASSISTANT SECRETARY THAT THE SAME SERVICE PERFORMED AS A MEMBER IN ANY ENLISTED OR OFFICER GRADE COULD BE REGARDED UNQUESTIONABLY AS PART OF THE 20 YEARS OF ACTIVE SERVICE, THE COMPLETION OF WHICH IS A REQUISITE TO RETIREMENT UNDER SECTION 6323 OF TITLE 10, BUT, BECAUSE SUCH SERVICE WAS PERFORMED AS A MIDSHIPMAN, ALTHOUGH NOT AS A MIDSHIPMAN OF THE U.S. NAVAL ACADEMY, AND BECAUSE OF THE TREND OF THE STATUTORY RESTRICTIONS MENTIONED ABOVE AND THE POSSIBILITY OF OTHER RESTRICTIONS, IT IS NOT CLEAR THAT IT MAY BE PROPERLY CREDITABLE. THE LETTER OF THE ASSISTANT SECRETARY THEN CONCLUDES WITH THE FOLLOWING QUESTION:

ACCORDINGLY, IN THE CASE OF THE FUTURE RETIREMENT OF THIS OFFICER UNDER SECTION 6323, OR IN ANY SIMILAR CASE INVOLVING NON-NAVAL ACADEMY MIDSHIPMAN SERVICE TO WHICH SECTION 971 IS NOT APPLICABLE, WOULD THERE BE ANY BASIS TO QUESTION ENTITLEMENT TO RETIRED PAY IF THE EXCLUSION OF MIDSHIPMAN TIME FROM COMPUTATION WOULD LEAVE LESS THAN 20 YEARS OF ACTIVE SERVICE?

SECTION 6323 OF TITLE 10, U.S. CODE, PROVIDES PERTINENTLY AS FOLLOWS:

(A) AN OFFICER OF THE NAVY OR THE MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE, OF WHICH AT LEAST 10 YEARS WAS SERVICE AS A COMMISSIONED OFFICER, MAY, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED ON THE FIRST DAY OF ANY MONTH DESIGNATED BY THE PRESIDENT.

(B) FOR THE PURPOSES OF THIS SECTION---

(1) AN OFFICER'S YEARS OF ACTIVE SERVICE ARE COMPUTED BY ADDING ALL HIS ACTIVE SERVICE IN THE ARMED FORCES * * *.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, 34 U.S.C. 410B (1952 ED.), FROM WHICH THIS PART OF SECTION 6323 WAS DERIVED, PROVIDED THAT THE 20 YEARS OF ACTIVE SERVICE SHOULD INCLUDE "ACTIVE DUTY FOR TRAINING.' A NOTE TO SECTION 6323 STATES THAT THE WORDS "INCLUDING ACTIVE DUTY FOR TRAINING" WERE OMITTED THEREFROM BECAUSE THE TERM "ACTIVE DUTY" IS DEFINED IN TITLE 10 AS INCLUDING TRAINING DUTY. "ACTIVE SERVICE" AND "ACTIVE DUTY" ARE DEFINED IN SECTION 101, TITLE 10, U.S. CODE, AS FOLLOWS:

(22) "ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.

(24) "ACTIVE SERVICE" MEANS SERVICE ON ACTIVE DUTY.

THE ACT OF AUGUST 13, 1946 (PUBLIC LAW 729, 79TH CONGRESS), CH. 962, 60 STAT. 1057, 34 U.S.C. 1020 (1952 ED.), PROVIDED FOR THE ESTABLISHMENT OF A PROGRAM FOR THE TRAINING OF OFFICER CANDIDATES FOR THE NAVAL SERVICE, WHICH WAS TO BE ADMINISTERED BY THE SECRETARY OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND WITH SUCH REGULATIONS AS THE PRESIDENT MIGHT PRESCRIBE. PARAGRAPH (A) OF SECTION 3 OF THAT ACT, 34 U.S.C. 1020B (A) (1952 ED.), WHICH CONTAINED THE PROVISIONS RELATING TO THE SURFACE COMPONENT OF THE NEW OFFICER CANDIDATE PROGRAM, PROVIDED THAT MEMBERS OF THE NAVAL RESERVE OFFICERS' TRAINING CORPS MIGHT BE APPOINTED MIDSHIPMEN IN THE NAVAL RESERVE, INSTEAD OF APPRENTICE SEAMEN IN THE NAVAL RESERVE AS WAS DONE BEFORE THE ENACTMENT OF THAT ACT. SECTION 4 OF THE ACT, 34 U.S.C. 1020C (1952 ED.), PROVIDED THAT MIDSHIPMEN SO APPOINTED, WHILE CONTINUING IN SUCH STATUS,SHOULD, EXCEPT WHILE ON ACTIVE DUTY, RECEIVE RETAINER PAY AT THE RATE OF $600 PER YEAR ($50 PER MONTH), FOR A PERIOD NOT EXCEEDING FOUR ACADEMIC YEARS. SECTION 6 OF THE ACT, 34 U.S.C. 1020E (A), PROVIDED THAT MIDSHIPMEN APPOINTED UNDER PARAGRAPH (A) OF SECTION 3 MIGHT BE COMMISSIONED AS ENSIGNS IN THE REGULAR NAVY OR AS SECOND LIEUTENANTS IN THE REGULAR MARINE CORPS, FOLLOWING THE SATISFACTORY COMPLETION OF ALL THE ACADEMIC AND NAVAL SCIENCE REQUIREMENTS OF THE ESTABLISHED FOUR YEAR NAVAL RESERVE OFFICERS' TRAINING CORPS COURSE. APPEARS FROM THE LEGISLATIVE HISTORY OF THE ACT THAT IT WAS CONTEMPLATED THAT SUCH MIDSHIPMEN WOULD BE ON ACTIVE DUTY WHEN SENT TO TRAINING DURING THE SUMMER AND THAT THEY WOULD RECEIVE ACTIVE DUTY PAY WHILE SO TRAINING. THE REGULATIONS SPECIFIED THAT REGULAR NAVAL RESERVE OFFICERS' TRAINING CORPS STUDENTS WHILE ON ACTIVE DUTY WERE ENTITLED TO THE SAME RATE OF PAY AS PRESCRIBED FOR MIDSHIPMEN AT THE NAVAL ACADEMY. SEE 34 CFR (1947 SUPP.) 12.702 (A) (1), AND 32 CFR (1949 ED.) 711.702 (A) (1).

IT APPEARS THAT THE AVIATION COMPONENT OF THE NEW OFFICER CANDIDATE PROGRAM PROVIDED FOR IN THE AUGUST 13, 1946 ACT WAS DESIGNED TO REPLACE THE COLLEGE TRAINING PROGRAM (V-5) AND THE AVIATION CADET TRAINING PROGRAM, WHICH WERE TO BE CONTINUED ONLY UNTIL THEY COULD BE ENTIRELY REPLACED BY THE NEW PROGRAM. UNDER THIS NEW PROGRAM, AS PROVIDED IN PARAGRAPH (B) OF SECTION 3 OF THE AUGUST 13, 1946 ACT, 34 U.S.C. 1020B (B), A NAVAL AVIATION OFFICER CANDIDATE WHO HAD COMPLETED LESS THAN TWO SCHOLASTIC YEARS' WORK IN AN ACCREDITED COLLEGE OR UNIVERSITY WAS TO BE ENLISTED AS AN APPRENTICE SEAMAN IN THE NAVAL RESERVE, AND, UNTIL THE COMPLETION OF TWO SCHOLASTIC YEARS OF WORK WAS, EXCEPT WHILE ON ACTIVE DUTY, TO RECEIVE AS TOTAL COMPENSATION RETAINER PAY OF $50 PER MONTH. SUCH PERSONS, UPON THE COMPLETION OF TWO SCHOLASTIC YEARS OF WORK, WERE TO BE APPOINTED MIDSHIPMEN IN THE REGULAR NAVY AND ORDERED TO DUTY FOR FLIGHT TRAINING, AND OTHER PERSONS WHO HAD OTHERWISE SATISFACTORILY COMPLETED TWO SCHOLASTIC YEARS OF WORK IN AN ACCREDITED COLLEGE OR UNIVERSITY, OR THE EQUIVALENT THEREOF, WERE, UPON ENROLLMENT TO BE APPOINTED MIDSHIPMEN IN THE NAVY AND ORDERED TO DUTY FOR FLIGHT TRAINING. IN SECTION 4 IT WAS PROVIDED THAT WHILE IN FLIGHT TRAINING OR ON OTHER FLIGHT DUTY MIDSHIPMEN APPOINTED UNDER PARAGRAPH (B) OF SECTION 3 SHOULD BE ENTITLED TO THE PAY AND ALLOWANCES PROVIDED BY LAW FOR MIDSHIPMEN UNDER INSTRUCTION AT THE NAVAL ACADEMY ($65 PER MONTH AND $0.85 RATION PER DAY) AND TO THE SAME PERCENTAGE INCREASES (50 PERCENT) OF THEIR PAY PROVIDED BY LAW FOR OFFICERS OF THE NAVY ASSIGNED TO DUTY INVOLVING FLYING. PROVISION WAS ALSO MADE IN SECTION 4 FOR THE ISSUE AT GOVERNMENT EXPENSE, INCIDENT TO SUCH SERVICE, OF NECESSARY UNIFORMS AND EQUIPMENT AS DIRECTED BY THE SECRETARY OF THE NAVY. SEE GENERALLY, OUR DECISION OF SEPTEMBER 4, 1946, B-60149, COPY HEREWITH.

AS TO THOSE MEMBERS WHO WERE APPOINTED MIDSHIPMEN IN THE NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 3, IT IS OUR VIEW THAT THOSE PERIODS FOR WHICH THEY WERE ENTITLED TO RECEIVE ACTIVE DUTY PAY PROPERLY MAY BE CONSIDERED AS PERIODS OF ACTIVE SERVICE IN THE ARMED FORCES WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 6323, BUT THAT THOSE PERIODS WHILE SUCH MEMBERS WERE IN RECEIPT OF RETAINER PAY WERE PERIODS OF INACTIVE DUTY WITHIN THE MEANING OF THOSE STATUTORY PROVISIONS. COMPARE 27 COMP. GEN. 596. WE FIND NO REASON FOR EXTENDING TO THE SERVICE PERFORMED BY SUCH MIDSHIPMEN ANY RESTRICTIONS SUCH AS THOSE IMPOSED BY THE PROVISIONS OF 10 U.S.C. 6116 ON SERVICE PERFORMED BY MIDSHIPMEN AT THE NAVAL ACADEMY. NOR DO WE FIND ANY REASON FOR CONCLUDING THAT, IN THE COMPUTATION OF ACTIVE SERVICE IN THE ARMED FORCES FOR THE PURPOSE OF RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 6323, SUCH MEMBERS SHOULD BE DENIED CREDIT FOR ACTIVE DUTY PERFORMED IN THE CIRCUMSTANCES MENTIONED MERELY BECAUSE OF THE FACT THAT THEY WERE TO RECEIVE WHILE ON ACTIVE DUTY THE SAME PAY AND ALLOWANCES AS THOSE PROVIDED BY LAW FOR MIDSHIPMEN UNDER INSTRUCTION AT THE NAVAL ACADEMY. THE PROVISIONS OF 10 U.S.C. 971 ARE, OF COURSE, FOR APPLICATION WHEN THE CIRCUMSTANCES ARE AS THERE SPECIFIED.

IN THE SPECIFIC CASE REFERRED TO IN THE LETTER OF FEBRUARY 1, 1963, WE FIND NO REASON WHY THE OFFICER MENTIONED SHOULD NOT COUNT HIS SERVICE AS A MIDSHIPMAN FROM AUGUST 25, 1948, THROUGH AUGUST 24, 1950, AS CREDITABLE ACTIVE SERVICE IN THE ARMED FORCES WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 6323. YOUR QUESTION IS ANSWERED ACCORDINGLY.