B-122988, APRIL 15, 1955, 34 COMP. GEN. 520

B-122988, APRIL 15, 1955, 34 COMP. GEN. 520

PAY - RETIRED - RESERVES - SERVICE CREDITS UNDER ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 THE PHRASE "ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR" USED IN SECTION 303 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 HAS REFERENCE ONLY TO THE CONVERSION OF SERVICE TO TERMS OF YEARS FOR THE PURPOSE OF COMPUTING THE RETIRED PAY OF MEMBERS OR FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES AND NOT TO THE MAXIMUM POINTS CREDITABLE IN ANY ONE YEAR. IN COMPUTING FEDERAL SERVICE CREDIT AT THE RATE OF 50 POINTS A YEAR FOR RESERVISTS PRIOR TO JULY 1, 1949, UNDER SECTION 303 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, THERE MUST BE DEDUCTED FROM ANY YEAR THE TOTAL NUMBER OF DAYS OF ACTIVE SERVICE. IN COMPUTING SERVICE CREDIT AT THE RATE OF 15 POINTS FOR MEMBERSHIP IN AN ACTIVE RESERVE COMPONENT AFTER JUNE 30, 1949, UNDER SECTION 303 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, THERE MUST BE DEDUCTED THE NUMBER OF DAYS OF ACTIVE FEDERAL SERVICE IN ORDER TO DETERMINE WHAT PORTION OF THE 15 POINTS MAY BE CREDITED IN EACH YEAR. IN COMPUTING THE FEDERAL SERVICE CREDIT FOR MEMBERS OF RESERVE COMPONENTS, UNDER SECTION 303 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CREDIT MAY BE ALLOWED SUBSEQUENT TO JUNE 30, 1949, FOR POINTS EARNED FOR EACH DRILL OR PERIOD OF EQUIVALENT INSTRUCTION UP TO THE MAXIMUM PROVIDED BY LAW WITHOUT AFFECTING MEMBERSHIP CREDIT FOR DAYS ON WHICH SUCH DRILLS OR EQUIVALENT INSTRUCTION OCCURS. IN COMPUTING CREDIT FOR MEMBERSHIP FOR FRACTIONS OF YEARS IN RESERVE COMPONENTS, UNDER SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, THE YEAR DENOMINATOR SHOULD BE BASED ON 365 DAYS IN COMMON YEARS, AND 366 DAYS IN LEAP YEARS, AND WHEN MEMBERSHIP CREDIT IS COMPUTED INDIVIDUALLY EACH YEAR, A FRACTIONAL CREDIT OF ONE-HALF OR MORE SHALL BE CONSIDERED AS ONE POINT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 15, 1955:

LETTER OF FEBRUARY 14, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE REQUESTS DECISION ON THE FOLLOWING QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 112 OF THE MILITARY PAY AND ALLOWANCES COMMITTEE, DEPARTMENT OF DEFENSE.

1. IN THE COMPUTATION OF RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 303 OF THE ACT OF 29 JUNE 1948, 62 STAT. 1088, AS AMENDED, IS 360 THE MAXIMUM NUMBER OF POINTS INCLUDING ALL POINTS FOR ACTIVE AND INACTIVE FEDERAL SERVICE WHICH MAY BE CREDITED TO ANY INDIVIDUAL IN ANY ONE YEAR, OR DOES THE PHRASE IN SECTION 303 "ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR" HAVE REFERENCE ONLY TO THE CONVERSION OF SERVICE TO TERMS OF YEARS?

THE CONCLUSION REACHED IN DECISION TO THE SECRETARY OF THE NAVY DATED OCTOBER 11, 1949, B-88372, 29 COMP. GEN. 175, THAT 360 DAYS OF ACTIVE FEDERAL SERVICE ARE CONSIDERED TO BE A FULL YEAR'S SERVICE FOR THE PURPOSE OF COMPUTING RETIRED PAY UNDER SECTION 303 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1088, REFERRED ONLY TO THE CONVERSION OF SERVICE INTO TERMS OF YEARS, AND NOT TO THE MAXIMUM NUMBER OF POINTS CREDITABLE IN ANY ONE YEAR. THAT CONCLUSION WAS BASED ON THE PORTION OF THE LEGISLATIVE HISTORY OF THE ACT (CONTAINED IN REPORT NO. 1543, SENATE COMMITTEE ON ARMED SERVICES, JUNE 8, 1948) QUOTED AT THE TOP OF PAGE 177 OF THE DECISION. THE STATEMENT WAS MADE IN SUCH REPORT THAT ALL POINTS EARNED IN A YEAR OF SATISFACTORY FEDERAL SERVICE ARE CONVERTED INTO DAYS AND THE RESULT SO OBTAINED IS DIVIDED BY 360 DAYS TO ARRIVE AT THE NUMBER OF YEARS CREDITABLE FOR RETIREMENT PURPOSES. SINCE NOTHING WAS SAID AS TO THE MAXIMUM NUMBER OF POINTS WHICH MAY BE CREDITED TO AN INDIVIDUAL IN ANY ONE YEAR AND THE FIGURE 360 IS USED IN THAT REPORT AND IN THE STATUTE ONLY IN CONNECTION WITH THE CONVERSION OF DAYS OF SERVICE INTO YEARS CREDITABLE FOR COMPUTING RETIRED PAY, CLEARLY THE PHRASE IN SECTION 303 "ON THE BASIS OF THREE HUNDRED AND SIXTY DAYS PER YEAR" HAS REFERENCE ONLY TO THE CONVERSION OF SERVICE INTO TERMS OF YEARS. COMPUTATION ON THAT BASIS WAS ACCEPTED BY THE COURT OF CLAIMS IN THE CASE OF PRICE V. UNITED STATES, 121 C.1CLS. 664. SEE REPORT TO THE CLERK OF THE COURT DATED DECEMBER 11, 1951, B 96142.

2. IN THE COMPUTATION OF RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 303 OF THE ACT OF 29 JUNE 1948, AS AMENDED, SUPRA, MAY AN INDIVIDUAL, IF OTHERWISE ENTITLED, BE CREDITED WITH:

A. 50 DAYS FOR EACH YEAR OF FEDERAL SERVICE AS A MEMBER OF AN ACTIVE RESERVE COMPONENT PRIOR TO 1 JULY 1949, WITHOUT ANY DEDUCTION THEREFROM FOR PERIODS OF ACTIVE FEDERAL SERVICE, PROVIDED THE TOTAL DAYS CREDITED FOR ANY GIVEN YEAR DO NOT EXCEED 360 OR 365 DAYS, OR 366 IN LEAP YEARS, DEPENDING ON THE ANSWER TO QUESTION ONE?

B. 15 DAYS FOR EACH YEAR OF FEDERAL SERVICE AS A MEMBER OF AN ACTIVE RESERVE COMPONENT SUBSEQUENT TO 30 JUNE 1949, WITHOUT ANY DEDUCTION THEREFROM FOR PERIODS OF ACTIVE FEDERAL SERVICE, PROVIDED THE TOTAL DAYS CREDITED FOR ANY GIVEN YEAR DO NOT EXCEED 360 OR 365 DAYS, OR 366 IN LEAP YEARS, DEPENDING ON THE ANSWER TO QUESTION ONE?

C. THE NUMBER OF DAYS EARNED FOR EACH DRILL OR PERIOD OF EQUIVALENT INSTRUCTION UP TO THE MAXIMUM PROVIDED UNDER THE LAW, SUBSEQUENT TO 30 JUNE 1949, WITHOUT ANY DEDUCTION THEREFROM FOR PERIODS OF ACTIVE FEDERAL SERVICE, PROVIDED THE TOTAL DAYS CREDITED FOR ANY GIVEN YEAR DO NOT EXCEED 360 OR 365 DAYS, OR 366 IN LEAP YEARS, DEPENDING ON THE ANSWER TO QUESTION ONE?

A. THE SECOND PROVISO OF SECTION 303 OF THE 1948 ACT, AS AMENDED, 10 U.S.C. 1036B, AUTHORIZES THE CREDITING WITH 50 DAYS FOR EACH YEAR OF FEDERAL SERVICE "OTHER THAN ACTIVE FEDERAL SERVICE.' SUCH PROVISION CLEARLY INDICATES THAT DOUBLE CREDIT MAY NOT BE ALLOWED FOR THE SAME PERIOD OF SERVICE AND THAT DAYS OF ACTIVE DUTY MAY NOT BE INCLUDED IN THE TOTAL NUMBER OF DAYS OF SERVICE AS A MEMBER OF AN ACTIVE RESERVE COMPONENT PRIOR TO JULY 1, 1949, FOR THE PURPOSE OF COMPUTING THE NUMBER OF YEARS OF SERVICE FOR WHICH 50 DAYS MAY BE CREDITED. SEE COMPUTATION IN THE REPORT TO THE COURT OF CLAIMS IN THE PRICE CASE AND COMPARE 28 COMP. GEN. 321,325.

B. THE SAME CONCLUSION APPEARS REQUIRED AS TO THE 15 DAYS' CREDIT FOR EACH YEAR OF SERVICE AS A MEMBER OF AN ACTIVE RESERVE COMPONENT AFTER JUNE 30, 1949, SINCE SECTION 302 (B) (3) OF THE 1948 ACT, AS AMENDED--- APPLICABLE HERE UNDER SECTION 303 (II/--- PROVIDES FOR CREDIT ON THAT BASIS FOR EACH YEAR OF FEDERAL SERVICE "OTHER THAN ACTIVE FEDERAL SERVICE.' HENCE, IT IS REQUIRED THAT IN EACH YEAR OF FEDERAL SERVICE AFTER JUNE 30, 1949, THERE BE DEDUCTED THE NUMBER OF DAYS OF ACTIVE FEDERAL SERVICE IN ORDER TO DETERMINE WHAT PORTION OF THE 15 DAYS MAY BE CREDITED IN SUCH YEAR FOR SERVICE IN AN ACTIVE RESERVE COMPONENT.

C. SINCE ACTIVE DUTY DRILLS OR PERIODS OF EQUIVALENT INSTRUCTION ARE NOT PERFORMED ON THE SAME DAYS, THERE IS NO POSSIBILITY OF DOUBLE CREDIT BEING GIVEN FOR SUCH SERVICE. HENCE CREDIT MAY BE ALLOWED FOR DAYS EARNED FOR EACH DRILL OR PERIOD OF EQUIVALENT INSTRUCTION UP TO THE MAXIMUM PROVIDED BY LAW, SUBSEQUENT TO JUNE 30, 1949, WITHOUT ANY DEDUCTION FOR PERIODS OF ACTIVE FEDERAL SERVICE.

3. IF THE ANSWER TO ANY PART OF QUESTION TWO IS IN THE NEGATIVE, IS 360 OR 365 DAYS, OR 366 IN THE CASE OF LEAP YEARS, CONSIDERED THE NUMBER OF DAYS IN A YEAR FOR COMPUTING DEDUCTIONS AS SPECIFIED IN SAID QUESTION?

THE ANSWER TO THIS QUESTION IS INDICATED BY THE ANSWER TO QUESTION 1. COMMON YEARS, 365 DAYS ARE CONSIDERED TO BE THE NUMBER OF DAYS IN A YEAR FOR COMPUTING THE DEDUCTIONS. IN LEAP YEARS 366 DAYS ARE COUNTED. TO THE EXTENT THAT ANY PRIOR ACTION MAY HAVE INDICATED ANY DIFFERENT METHOD OF COMPUTATION, SUCH PRACTICE WILL NO LONGER BE FOLLOWED. IN PRACTICAL EFFECT THE DIFFERENCE, IF ANY, IS NEGLIGIBLE. HENCE THE ANSWER TO QUESTION 3 WILL NOT BE APPLIED AS REQUIRING THE RECOMPUTATION OF THE MEMBERSHIP CREDIT IN ANY CASE WHERE SUCH CREDIT WAS PRORATED ON THE BASIS OF A 360-DAY YEAR. WHERE THE MEMBERSHIP CREDIT IS COMPUTED INDIVIDUALLY EACH YEAR, A FRACTIONAL CREDIT OF ONE HALF OR MORE SHOULD BE CONSIDERED AS ONE POINT.

4. IF THE ANSWER TO QUESTION 2B AND C ARE BOTH IN THE NEGATIVE, MAY AN INDIVIDUAL, IF OTHERWISE ENTITLED, BE CREDITED WITH THE MAXIMUM DAYS (60), AUTHORIZED BY THE ACT FOR MEMBERSHIP IN A RESERVE COMPONENT PLUS PARTICIPATION IN DRILLS OR PERIODS OF EQUIVALENT INSTRUCTION, MULTIPLIED BY A FRACTION REPRESENTING THE RELATION THAT THE NUMBER OF DAYS OF ACTIVE SERVICE BEARS TO 360, 365, OR 366, DEPENDING UPON THE ANSWER TO QUESTION 3, OR MUST THE DAYS CREDITED FOR MEMBERSHIP, AND THE DAYS CREDITED FOR DRILLS AND EQUIVALENT INSTRUCTION BE REDUCED SEPARATELY BY THE FRACTION DETERMINED?

THE AFFIRMATIVE ANSWER TO QUESTION 2C MAKES A REPLY TO QUESTION 4 UNNECESSARY.