B-167647, NOVEMBER 25, 1969, 49 COMP. GEN. 356

B-167647, NOVEMBER 25, 1969, 49 COMP. GEN. 356

PAY -- SERVICE CREDITS -- CADET, MIDSHIPMAN, ETC. -- SERVICE SCHOOLS ALTHOUGH THE UNITED STATES MERCHANT MARINE CADET SCHOOL AT SAN MATEO, CALIFORNIA, IS NOT A "SERVICE SCHOOL" WITHIN THE MEANING OF 10 U.S.C. 1333(2) AND, THEREFORE, ATTENDANCE AT THE SCHOOL AS A CADET-MIDSHIPMAN, MMR, USNR, FROM AUGUST 1943 UNTIL APRIL 1945 MAY NOT BE CREDITED IN COMPUTING YEARS OF SERVICE UPON RETIREMENT UNDER 10 U.S.C. CHAPTER 67, RELATING TO RETIRED PAY FOR NON-REGULAR SERVICE, THE PERIOD IS ALLOWABLE AS "SERVICE, OTHER THAN ACTIVE SERVICE, IN A RESERVE COMPONENT" UNDER 10 U.S.C. 1333(4), AND IS ALSO CREDITABLE SERVICE FOR MULTIPLIER PURPOSES FOR OFFICERS RETIRING WITH 20 YEARS' SERVICE PURSUANT TO 10 U.S.C. 6323, OR FOR ANY OF THE PURPOSES OF ANY FORMULA OR OTHER LAW ENUMERATED IN 10 U.S.C. 1405, WHICH SECTION GROUP S THE LAWS IN ONE CATEGORY AND SPECIFICALLY INCLUDES IN CLAUSE 4, SERVICE CREDITABLE UNDER 10 U.S.C. 1333.

TO THE SECRETARY OF DEFENSE, NOVEMBER 25, 1969:

FURTHER REFERENCE IS MADE TO LETTER DATED AUGUST 5, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) FORWARDING A COPY OF COMMITTEE ACTION NO. 433 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND PRESENTING FOR DECISION THE FOLLOWING THREE QUESTIONS:

1. DOES FULL TIME ATTENDANCE AT THE U.S. MERCHANT MARINE CADET BASIC SCHOOL, SAN MATEO, CALIFORNIA, AS MIDSHIPMAN, MERCHANT MARINE RESERVE, U.S. NAVAL RESERVE, FROM AUGUST 1943 UNTIL APRIL 1945, CONSTITUTE ATTENDANCE AT A "PRESCRIBED COURSE OF INSTRUCTION AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY CONCERNED," WITHIN THE MEANING OF 10 U.S.C. 1333(2) FOR THE PURPOSE OF DETERMINING YEARS OF SERVICE FOR MULTIPLIER IN THE CASE OF AN OFFICER RETIRING UNDER CHAPTER 67, (10) U.S. CODE?

2. WOULD SUCH A PERIOD OF ATTENDANCE FOR THE SAME PURPOSE BE PROPERLY ALLOWABLE AS "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE," WITHIN THE MEANING OF 10 U.S.C. 1333(4)?

3. IN THE EVENT OF AN AFFIRMATIVE ANSWER TO EITHER OR BOTH OF THE ABOVE QUESTIONS, COULD SUCH SERVICE BE CONSIDERED PROPERLY ALLOWABLE FOR MULTIPLIER UNDER 10 U.S.C. 1405(4) IN THE CASE OF AN OFFICER RETIRING UNDER 10 U.S.C. 6323, OR FOR ANY OF THE PURPOSES OF ANY FORMULA OR OTHER LAW ENUMERATED IN 10 U.S.C. 1405?

THE DISCUSSION ATTACHED TO THE SUBMISSION MAKES REFERENCE TO COMMITTEE ACTION NO. 237 WHICH WAS CONSIDERED IN OUR DECISION 38 COMP. GEN. 797 (1959), AND POINTS OUT THAT IN JUNE 1941 THE SECRETARY OF THE NAVY, PURSUANT TO THE NAVAL RESERVE ACT OF 1938, ESTABLISHED THE CLASSIFICATION OF MIDSHIPMAN, MERCHANT MARINE RESERVE; THAT IN AUGUST 1942, ALL CADETS, MERCHANT MARINE RESERVE, WERE APPOINTED AS MIDSHIPMEN, MERCHANT MARINE RESERVE, AND ALL CADETS THEREAFTER IN THE U.S. MERCHANT MARINE CADET CORPS AND STATE MARITIME ACADEMIES WERE APPOINTED MIDSHIPMEN, MERCHANT MARINE RESERVE, INSTEAD OF CADETS, IN ORDER TO INSURE THAT CADETS TRAINED AT GOVERNMENT EXPENSE FOR SERVICE AT SEA WOULD BE REQUIRED TO SERVE IN THE MERCHANT MARINE OR ON ACTIVE DUTY IN THE NAVY.

THE CASE INVOLVED IN THE PRESENT SUBMISSION IS THAT OF AN INDIVIDUAL WHO, IN THE STATUS OF A CADET-MIDSHIPMAN, MERCHANT MARINE RESERVE, USNR, ATTENDED THE CADET BASIC SCHOOL AT SAN MATEO, CALIFORNIA. IT APPEARS THAT HE ACCEPTED AN APPOINTMENT AS A MIDSHIPMAN, MMR, USNR, IN ORDER TO BE PERMITTED TO ATTEND THAT SCHOOL, AND THAT HE HAD NO OTHER MILITARY STATUS.

THE FIRST TWO QUESTIONS PRESENTED RELATE TO THE MULTIPLIER FACTOR IN FORMULA NO. 3, 10 U.S.C. 1401, TO BE USED IN THE COMPUTATION OF RETIRED PAY AUTHORIZED IN CHAPTER 67 (SECTIONS 1331-1337), TITLE 10, U.S.C. UNDER THIS FORMULA, THE RETIRED PAY OF THE PERSON CONCERNED IS COMPUTED BY MULTIPLYING THE MONTHLY BASIC PAY OF THE HIGHEST GRADE HELD SATISFACTORILY BY HIM IN THE ARMY FORCES BY THE PRODUCT OF 2 1/2 PERCENT TIMES THE NUMBER OF YEARS CREDITABLE TO HIM UNDER 10 U.S.C. 1333. A PERSON'S YEARS OF CREDITABLE SERVICE ARE DETERMINED BY ADDING THE SERVICE SPECIFIED IN SECTION 1333 INCLUDING--

(2) HIS DAYS OF FULL-TIME SERVICE *** WHILE ATTENDING A PRESCRIBED COURSE OF INSTRUCTION AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY CONCERNED:

(4) 50 DAYS FOR EACH YEAR BEFORE JULY 1, 1949, AND PROPORTIONATELY FOR EACH FRACTION OF A YEAR, OF SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE, IN THE ARMY OR AIR FORCE WITHOUT COMPONENT, OR IN ANY OTHER CATEGORY COVERED BY SECTION 1332(A)(1) OF THIS TITLE EXCEPT A REGULAR COMPONENT; AND BY DIVIDING THE SUM OF THAT ADDITION BY 360.

THE FIRST QUESTION IS, IN EFFECT, WHETHER THE U.S. MERCHANT MARINE CADET BASIC SCHOOL, SAN MATEO, IS A SCHOOL DESIGNATED AS A SERVICE SCHOOL WITHIN THE MEANING OF SECTION 1333(2).

TITLE 46, CODE OF FEDERAL REGULATIONS, CUMULATIVE SUPPLEMENT, CHAPTER III, PART 310, AND THE 1943-1945 SUPPLEMENTS THERETO, GOVERNED THE APPOINTMENT AND TRAINING OF ENROLLEES IN THE MERCHANT MARINE, INCLUDING CADETS IN THE U.S. MERCHANT MARINE CADET CORPS WHO ATTENDED THE DIFFERENT ACADEMIES AND SCHOOLS THERE MENTIONED, INCLUDING THE MERCHANT MARINE CADET BASIC SCHOOL AT SAN MATEO. NOWHERE IN SUCH REGULATIONS IS A CADET BASIC SCHOOL, OR THE U.S. MERCHANT MARINE ACADEMY, REFERRED TO AS A "SERVICE SCHOOL." NO PROVISION OF LAW OR REGULATION ISSUED BY THE SECRETARY OF A DEPARTMENT CONCERNED HAS BEEN FOUND WHICH DEFINED A SCHOOL SUCH AS THAT HERE INVOLVED AS A "SERVICE SCHOOL" WITHIN THE MEANING OF 10 U.S.C. 1333(2) AND, HENCE, IT MUST BE CONCLUDED THAT A PERIOD OF ATTENDANCE AT SUCH SCHOOL MAY NOT BE CREDITED IN COMPUTING YEARS OF SERVICE UNDER SECTION 1333(2). THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

IN 47 COMP. GEN. 221 (1967), IT WAS HELD THAT ACTIVE SERVICE PERFORMED AS A MIDSHIPMAN IN A "NON-ACADEMY" STATUS PROPERLY MAY BE INCLUDED IN ESTABLISHING THE MULTIPLIER FACTOR UNDER FORMULA NO. 3, 10 U.S.C. 1401, IN COMPUTING CHAPTER 67 RETIRED PAY. IT WAS ALSO CONCLUDED THAT INACTIVE SERVICE AS A RESERVE MIDSHIPMAN CONSTITUTES "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT OF AN ARMED FORCE," WITHIN THE MEANING OF THAT PHRASE CONTAINED IN CLAUSE 4, SECTION 1333. THE SECOND QUESTION NOW PRESENTED IS WHETHER A PERIOD OF ATTENDANCE AT THE U.S. MARINE CADET SCHOOL, SAN MATEO, IS "SERVICE (OTHER THAN ACTIVE SERVICE)" WITHIN THE MEANING OF THAT CLAUSE 4.

WHILE OUR DECISION IN 47 COMP. GEN. 221 RELATED TO MIDSHIPMAN SERVICE UNDER THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1057, THE CREDITING OF THE MEMBER'S SERVICE IN THAT CASE WAS HELD TO BE AUTHORIZED BECAUSE OF HIS STATUS AS A MEMBER OF THE NAVAL RESERVE. THE MERCHANT MARINE RESERVE WAS MADE A PART OF THE NAVAL RESERVE BY SECTIONS 1 AND 318 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1185, SECTION 318 PROVIDING THAT "THE MERCHANT MARINE RESERVE SHALL BE COMPOSED OF THOSE MEMBERS OF THE NAVAL RESERVE WHO *** ." IT APPEARS FROM SUCH PROVISIONS THAT WHILE ATTENDING THE SCHOOL AT SAN MATEO A MEMBER OF THE MERCHANT MARINE RESERVE IS ALSO A MEMBER OF THE NAVAL RESERVE. THUS, IN THE ABSENCE OF A STATUTE BARRING THE CREDITING OF SUCH SERVICE, A CADET-MIDSHIPMAN, MMR, USNR, ATTENDING THE MERCHANT MARINE CADET BASIC SCHOOL, FROM 1943 TO 1945, MAY BE GIVEN CREDIT UNDER 10 U.S.C. 1333(4) FOR SUCH SERVICE AS "SERVICE (OTHER THAN ACTIVE SERVICE) IN A RESERVE COMPONENT *** ." THE SECOND QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO THE THIRD QUESTION, INVOLVING THE CREDITING OF SUCH SERVICE FOR MULTIPLIER PURPOSES FOR RETIREMENTS UNDER 10 U.S.C. 6323 OR FOR ANY OF THE PURPOSES OF ANY FORMULA OR OTHER LAW ENUMERATED IN 10 U.S.C. 1405, SECTION 1405 PROVIDES THAT FOR THE PURPOSES SPECIFIED THEREIN THE YEARS OF SERVICE OF A MEMBER OF THE ARMED FORCES ARE COMPUTED BY ADDING THE SERVICE MENTIONED IN CLAUSES (1), (2), (3), AND

(4) THE YEARS OF SERVICE, NOT INCLUDED IN CLAUSE (1), (2), OR (3), WITH WHICH HE WOULD BE ENTITLED TO BE CREDITED UNDER SECTION 1333 OF THIS TITLE, IF HE WERE ENTITLED TO RETIRED PAY UNDER SECTION 1331 OF THIS TITLE.

SINCE ALL THE LAWS ENUMERATED IN 1405 (INCLUDING 10 U.S.C. 6323) ARE GROUPED IN ONE CATEGORY AND THE COUNTING OF SERVICE CREDITABLE UNDER ALL PARTS OF 10 U.S.C. 1333 IS SPECIFICALLY INCLUDED IN CLAUSE 4 OF SECTION 1405, THE THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE.