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B-163501, JUNE 7, 1968, 47 COMP. GEN. 713

B-163501 Jun 07, 1968
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PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - RETIRED PAY - CONCURRENT PAYMENTS AN OFFICER OF THE PUBLIC HEALTH SERVICE WHO RECEIVES CREDIT FOR PRIOR SERVICE IN THE NAVY AND NAVAL RESERVE TO DETERMINE ELIGIBILITY FOR RETIREMENT UNDER 42 U.S.C. 212 (A) (3) AND TO COMPUTE HIS RETIRED PAY MAY NOT UPON REACHING 60 YEARS OF AGE HAVE THE SAME PERIOD OF NAVY AND NAVAL RESERVE SERVICE CONSIDERED IN DETERMINING ELIGIBILITY TO RETIRED PAY BENEFITS UNDER 10 U.S.C. 1331. 1968: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15. IS ENTITLED TO CONCURRENT PAYMENTS OF RETIRED PAY FROM THE UNITED STATES NAVY AND THE PUBLIC HEALTH SERVICE IN THE CIRCUMSTANCES DESCRIBED THEREIN. YOUR LETTER WAS FORWARDED HERE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY UNDER DATE OF FEBRUARY 6.

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B-163501, JUNE 7, 1968, 47 COMP. GEN. 713

PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - RETIRED PAY - CONCURRENT PAYMENTS AN OFFICER OF THE PUBLIC HEALTH SERVICE WHO RECEIVES CREDIT FOR PRIOR SERVICE IN THE NAVY AND NAVAL RESERVE TO DETERMINE ELIGIBILITY FOR RETIREMENT UNDER 42 U.S.C. 212 (A) (3) AND TO COMPUTE HIS RETIRED PAY MAY NOT UPON REACHING 60 YEARS OF AGE HAVE THE SAME PERIOD OF NAVY AND NAVAL RESERVE SERVICE CONSIDERED IN DETERMINING ELIGIBILITY TO RETIRED PAY BENEFITS UNDER 10 U.S.C. 1331, ABSENT SPECIFIC STATUTORY AUTHORITY. THE DUAL USE OF THE SERVICE CREDITS WOULD BE INCONSISTENT WITH THE PATTERN OF RETIREMENT LEGISLATION, AND NEITHER 10 U.S.C. 1336, AUTHORIZING THE CONSIDERATION OF SERVICE CREDITED FOR RETIREMENT PURPOSES IN DETERMINING ELIGIBILITY FOR THE BENEFITS ENUMERATED IN THE SECTION, NOR ANY OTHER LAW WOULD PERMIT THE DUAL USE OF THE NAVY AND NAVAL RESERVE SERVICE TO PROVIDE CONCURRENT PAYMENTS OF RETIRED PAY FROM THE NAVY AND PUBLIC HEALTH SERVICE.

TO COMMANDER D. G. SUNDBERG, DEPARTMENT OF THE NAVY, JUNE 7, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15, 1968, (XO:MTP:MLO, 7220/73872), REQUESTING AN ADVANCE DECISION AS TO WHETHER OR NOT FORMER COMMANDER ALFRED S. LAZARUS, UNITED STATES NAVAL RESERVE, 73872, IS ENTITLED TO CONCURRENT PAYMENTS OF RETIRED PAY FROM THE UNITED STATES NAVY AND THE PUBLIC HEALTH SERVICE IN THE CIRCUMSTANCES DESCRIBED THEREIN. YOUR LETTER WAS FORWARDED HERE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY UNDER DATE OF FEBRUARY 6, 1968, AND WAS ASSIGNED SUBMISSION NO. DO-N-987 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED IN YOUR LETTER AND ENCLOSURES THAT MR. LAZARUS WAS HONORABLY DISCHARGED FROM THE NAVAL RESERVE ON AUGUST 24, 1954, WITH 22 YEARS 2 MONTHS AND 16 DAYS "SATISFACTORY FEDERAL VICE.' IT IS STATED THAT AT THE TIME OF HIS DISCHARGE HE HAD MET THE SERVICE REQUIREMENTS FOR ENTITLEMENT TO RETIRED PAY AS PROVIDED IN 10 U.S.C. 1331 (A). HE HAD LESS THAN 9 YEARS OF EXTENDED ACTIVE DUTY IN THE NAVY AND THE NAVAL RESERVE.

FOLLOWING HIS SERVICE IN THE NAVY AND THE NAVAL RESERVE, MR. LAZARUS SERVED ON ACTIVE DUTY IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE FROM OCTOBER 1, 1954 THROUGH MARCH 31, 1966. AFTER 11 AND ONE HALF YEARS OF SERVICE, BY ORDERS DATED MARCH 18, 1966, HE WAS RETIRED EFFECTIVE APRIL 1, 1966, UNDER THE PROVISIONS OF "SECTION 211 (A) (3) PHS ACT" (42 U.S.C. 212 (A) (3) ( AUTHORIZING RETIREMENT AFTER 20 YEARS OF ACTIVE SERVICE. HIS RETIRED PAY WAS AUTHORIZED BY 42 U.S.C. 212 (A) (4) (A) AND WAS COMPUTED AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A DIRECTOR GRADE OFFICER WITH OVER 30 CUMULATIVE YEARS OF SERVICE. IT IS REPORTED THAT HE IS CURRENTLY IN RECEIPT OF SUCH RETIRED PAY. YOU STATE THAT FOR THE PURPOSE OF RETIREMENT ELIGIBILITY AND COMPUTATION OF RETIRED PAY FROM THE PUBLIC HEALTH SERVICE, MR. LAZARUS WAS CREDITED WITH HIS SERVICE IN THE NAVY AND THE NAVAL RESERVE.

YOU FURTHER STATE THAT UPON ATTAINING 60 YEARS OF AGE, MR. LAZARUS SUBMITTED HIS APPLICATION FOR RETIRED PAY BENEFITS FROM THE NAVY PURSUANT TO 10 U.S.C. 1331 AND THAT HE WAS AUTHORIZED RETIRED PAY UNDER THAT LAW EFFECTIVE NOVEMBER 1, 1967. YOU SAY THAT ENTITLEMENT TO SUCH RETIRED PAY IS BASED ON THE INCLUSION OF THE SAME SERVICE IN THE NAVY AND NAVAL RESERVE WHICH WAS USED TO DETERMINE HIS RETIREMENT ELIGIBILITY AND RATE OF RETIRED PAY FROM THE PUBLIC HEALTH SERVICE.

YOU ASK WHETHER OR NOT THE OFFICER IS ENTITLED TO RETIRED PAY FROM THE NAVY UNDER THE PROVISIONS OF 10 U.S.C. 1331 AND THE HOLDING IN OUR DECISION REPORTED AT 44 COMP. GEN. 235 IN ADDITION TO RETIRED PAY AS A PUBLIC HEALTH SERVICE OFFICER. IF OUR REPLY IS IN THE AFFIRMATIVE, YOU EXPRESS DOUBT AS TO WHETHER THE OFFICER MAY BE CREDITED WITH THE SAME NAVY AND NAVAL RESERVE SERVICE TOWARD HIS RETIREMENT ELIGIBILITY AND IN THE COMPUTATION OF HIS RETIRED PAY UNDER BOTH 10 U.S.C. 1331 AND 42 U.S.C. 212.

IN OUR DECISION OF OCTOBER 29, 1964, 44 COMP. GEN. 235, CITED IN YOUR LETTER, THE ISSUE PRESENTED WAS WHETHER ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MAY BE INCLUDED BY AN OFFICER OF THE NAVY IN DETERMINING ELIGIBILITY FOR RETIREMENT AND IN THE COMPUTATION OF RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 6323--- WHICH LAW AUTHORIZES THE RETIREMENT OF AN OFFICER OF THE NAVY OR THE MARINE CORPS AFTER COMPLETING MORE THAN 20 YEARS OF ACTIVE SERVICE AS THERE INDICATED. WE SAID THAT SINCE THE TERM "ARMED FORCES" AS DEFINED IN 10 U.S.C. 101 (4/--- AND THE OTHER STATUTORY PROVISIONS OF TITLE 10 THERE CITED--- DID NOT INCLUDE THE PUBLIC HEALTH SERVICE OR THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, AND SINCE THE TERM "UNIFORMED SERVICES" AS DEFINED IN 37 U.S.C. 101 (3) INCLUDES THE PUBLIC HEALTH SERVICE, IT WAS EVIDENT THAT CONGRESS WAS FULLY AWARE AND DID NOT INTEND THAT THE PUBLIC HEALTH SERVICE SHOULD BE CONSIDERED AS COMING WITHIN THE SCOPE OF THE TERM "ARMED FORCES" AS USED IN TITLE 10, U.S.C.

WE CONCLUDED THAT THE OFFICER THERE MENTIONED COULD NOT INCLUDE HIS ACTIVE SERVICE IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE TO ESTABLISH ELIGIBILITY FOR RETIREMENT AS AN OFFICER OF THE REGULAR NAVY UNDER THE PROVISIONS OF 10 U.S.C. 6323 (A) AND (B). WE DID SAY, HOWEVER, THAT BECAUSE OF THE PROVISIONS OF 10 U.S.C. 1405 (3), THE OFFICER'S COMMISSIONED SERVICE IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE MAY BE INCLUDED IN DETERMINING THE MULTIPLIER FACTOR PRESCRIBED IN 10 U.S.C. 6323 (E). THERE IS NOTHING IN THAT DECISION, HOWEVER, TO SUPPORT THE VIEW THAT CONCURRENT PAYMENT OF RETIRED PAY IS AUTHORIZED FROM THE NAVY AND THE PUBLIC HEALTH SERVICE IN THE SITUATION PRESENTED.

A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE IS CONSIDERED A MEMBER OF THE UNIFORMED SERVICES FOR BASIC PAY PURPOSES (37 U.S.C. 201 (A) ). SUCH AN OFFICER IS ENTITLED TO INCLUDE HIS ACTIVE SERVICE IN ANY OF THE UNIFORMED SERVICES (42 U.S.C. 212 (D) (1) ( TO ESTABLISH ELIGIBILITY FOR RETIREMENT FOR LENGTH OF SERVICE AS A PUBLIC HEALTH SERVICE OFFICER UNDER 42 U.S.C. 212 (A) (3).

CHAPTER 67, TITLE 10, U.S.C. (SECTIONS 1331-1337), AUTHORIZES PAYMENT OF RETIRED PAY FOR NON-REGULAR MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO OTHERWISE MEET THE AGE AND SERVICE REQUIREMENTS THERE MENTIONED. THE SAME PERIOD OF TIME THAT IS CREDITABLE AS SERVICE FOR RETIREMENT PURPOSES UNDER CHAPTER 67 OF TITLE 10 MAY ALSO BE CREDITABLE, WITHIN SPECIFIC STATUTORY PROVISIONS, IN DETERMINING ELIGIBILITY FOR CERTAIN OTHER RETIREMENT BENEFITS. SECTION 1336, TITLE 10, U.S. CODE, PROVIDES:

NO PERIOD OF SERVICE INCLUDED WHOLLY OR PARTLY IN DETERMINING A PERSON'S RIGHT TO, OR THE AMOUNT OF, RETIRED PAY UNDER THIS CHAPTER MAY BE EXCLUDED IN DETERMINING HIS ELIGIBILITY FOR ANY ANNUITY, PENSION, OR OLD-AGE BENEFIT, UNDER ANY OTHER LAW, ON ACCOUNT OF CIVILIAN EMPLOYMENT BY THE UNITED STATES OR OTHERWISE, OR IN DETERMINING THE AMOUNT PAYABLE UNDER THAT LAW, IF THAT SERVICE IS OTHERWISE PROPERLY CREDITED UNDER IT.

THE QUOTED PROVISION (SECTION 305) WAS ADDED TO THE HOUSE BILL DURING THE COURSE OF THE HEARINGS BEFORE THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, DATED MAY 20 AND 27, AND JUNE 8, 1948, ON H.R. 2744--- WHICH BECAME THE ACT OF JUNE 29, 1948--- AND THE PURPOSE FOR SUCH AMENDMENT WAS EXPLAINED BY THE CHAIRMAN ON PAGE 76 OF THOSE HEARINGS AS FOLLOWS:

THE PURPOSE OF THAT AMENDMENT IS TO MAKE SURE THAT A FEDERAL EMPLOYEE WHO HAS WORKED AS A CIVILIAN ALL OF HIS LIFE, AND STARTS TO RETIRE AT AGE 60, AND WHO MIGHT SIMULTANEOUSLY ALSO QUALIFY FOR A RESERVE RETIREMENT, WOULD BE ENTITLED TO BOTH HIS CIVILIAN AND RESERVE RETIREMENT. THUS IT WILL BE SEEN THAT THE PURPOSE OF SECTION 1336 WAS TO MAKE SURE THAT RECEIPT OF RETIREMENT PAY UNDER CHAPTER 67 IN NO WAY INTERFERRED WITH PAYMENT OF THE OTHER BENEFITS MENTIONED IN THAT SECTION.

WHILE ON ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE, MR. LAZARUS WAS ENTITLED TO PAY AND ALLOWANCES AS PROVIDED FOR OTHER MEMBERS OF THE UNIFORMED SERVICE (SEE TITLE 37, U.S. CODE, AND 42 U.S.C. 210 (A) ( AND IT APPEARS THAT WHEN HE RETIRED FROM THAT SERVICE HE USED HIS NAVAL SERVICE NOT ONLY TO ESTABLISH HIS ELIGIBILITY FOR RETIREMENT BUT ALSO IN COMPUTING HIS RETIRED PAY. TO PERMIT MR. LAZARUS TO USE HIS NAVAL SERVICE AGAIN IN DETERMINING ELIGIBILITY FOR RETIREMENT UNDER CHAPTER 67 WOULD BE ENTIRELY INCONSISTENT WITH THE PATTERN OF RETIREMENT LEGISLATION. NEITHER SECTION 1336 NOR ANY OTHER LAW OF WHICH WE ARE AWARE WOULD PERMIT HIM TO USE HIS NAVAL SERVICE FOR SUCH A DUAL PURPOSE.

IT IS OUR VIEW THAT IN THE ABSENCE OF A STATUTE EXPRESSLY AUTHORIZING THE CREDITING OF THE SAME PERIOD OF MILITARY SERVICE FOR PURPOSES OF DETERMINING ELIGIBILITY FOR RETIREMENT PAY UNDER BOTH 10 U.S.C. 1331 AND 42 U.S.C. 212 (COMPARE 5 U.S.C. 8332 (C) (, THERE WOULD BE NO BASIS FOR CREDITING MR. LAZARUS WITH HIS NAVY AND NAVAL RESERVE SERVICE SO AS TO ENTITLE HIM TO RETIRED PAY UNDER 10 U.S.C. 1331 WHEN THE SAME SERVICE HAS ALREADY BEEN CREDITED TO HIM IN DETERMINING HIS RIGHT TO THE RETIRED PAY WHICH HE IS RECEIVING AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE. THE FIRST QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE AND FOR THAT REASON NO ANSWER IS REQUIRED TO THE OTHER QUESTIONS.

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