B-128875, SEP. 7, 1956

B-128875, SEP. 7, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 2, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), REQUESTING A DECISION AS TO THE PROPER INTERPRETATION OF SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, AS AMENDED, 34 U.S.C. 1020H (A), AND SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, 34 U.S.C. 853E-1, AS SUCH STATUTORY PROVISIONS RELATE TO THE CLAIM OF LIEUTENANT (JG) GEORGE G. SCHNITZER, USNR, RETIRED.

SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, PROVIDES AS FOLLOWS:

"ANY MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ENTITLED TO DRAW A PENSION, RETAINER PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES BY VIRTUE OF PRIOR MILITARY SERVICE, MAY ELECT, WITH REFERENCE TO PERIODS OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, DRILL, TRAINING, INSTRUCTION, OR OTHER DUTY FOR WHICH THEY MAY BE ENTITLED TO RECEIVE COMPENSATION PURSUANT TO ANY PROVISIONS OF LAW TO RECEIVE EITHER (1) THE COMPENSATION FOR SUCH DUTY, WHICH, WHEN AUTHORIZED BY LAW, SHALL INCLUDE TRAVEL OR OTHER EXPENSES INCIDENT THERETO, AND SUBSISTENCE AND QUARTERS, OR COMMUTATION THEREOF, OR (2) THE PENSION, RETAINER PAY, DISABILITY ALLOWANCE, DISABILITY COMPENSATION OR RETIRED PAY, BUT NOT BOTH; AND UNLESS THEY SPECIFICALLY WAIVE OR RELINQUISH THE LATTER, THEY SHALL NOT RECEIVE THE FORMER FOR THE PERIODS OF SUCH DUTY:PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING THE ENLISTMENT OR APPOINTMENT IN THE NAVAL RESERVE OR THE MARINE CORPS RESERVE OF ANY PERSON WHO MAY BE ENTITLED TO DRAW ANY SUCH PENSION, DISABILITY ALLOWANCE OR DISABILITY COMPENSATION.'

THE ACT OF AUGUST 13, 1946, ESTABLISHED A NAVAL AND MARINE CORPS OFFICER CANDIDATE TRAINING PROGRAM WHICH INVOLVES, AMONG OTHER THINGS, THE ENROLLMENT, SCHOLASTIC EDUCATION AND TRAINING OF CERTAIN QUALIFIED PERSONS AS NAVAL AVIATION OFFICER CANDIDATES. SECTION 6 (A/2 OF THAT ACT PROVIDES THAT UPON SATISFACTORY COMPLETION OF THE PRESCRIBED FLIGHT TRAINING AND FLIGHT DUTY, SUCH PERSONS MAY BE COMMISSIONED AS ENSIGNS IN THE LINE OF THE NAVY. SECTION 9 (A) PROVIDES FOR THE TERMINATION OF SUCH COMMISSIONS WHEN THE PERSONS CONCERNED DO NOT APPLY FOR RETENTION IN THE REGULAR SERVICE WITHIN THE TIME PRESCRIBED, OR WHEN APPLICATION IS MADE, BUT THE OFFICER IS NOT SELECTED FOR RETENTION. UPON TERMINATION OF SUCH A COMMISSION, THE PERSON CONCERNED MAY THEN ACCEPT APPOINTMENT TO COMMISSIONED RANK IN THE NAVAL OR MARINE CORPS RESERVE AND IF HE DOES SO HE MAY BE PAID "RETAINER PAY" AT THE RATE OF $100 PER MONTH (BUT NOT TO EXCEED A TOTAL OF $2,000) PLUS EXPENSES OF TUITION, FEES, BOOKS, AND LABORATORY EXPENSES,"WHILE (AS) AN OFFICER OF THE NAVAL OR MARINE CORPS RESERVE, HE PURSUES FULL-TIME INSTRUCTION IN AN ACCREDITED COLLEGE OR IVERSITY.'

IT IS STATED THAT WHILE LIEUTENANT SCHNITZER WAS PARTICIPATING IN THE EDUCATIONAL PROGRAM HE WAS ORDERED TO ACTIVE DUTY, AND APPARENTLY HE PERFORMED ACTIVE DUTY IN THE KOREAN CONFLICT FOR TWO YEARS. UPON HIS RETURN TO THE UNITED STATES HE WAS ORDERED TO THE NAVAL AIR STATION AT CORPUS CHRISTI, TEXAS, AS A FLIGHT INSTRUCTOR. HE THERE RECEIVED AN INJURY WHICH RESULTED IN HIS RETIREMENT. HE NOW WISHES TO CONTINUE HIS EDUCATION UNDER SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, AS AMENDED, BUT IT APPEARS THAT THE BUREAU OF NAVAL PERSONNEL HAS DENIED HIS CLAIM FOR BENEFITS UNDER THAT ACT, PRESUMABLY BECAUSE OF THE VIEW THAT HE MAY NOT RECEIVE SUCH BENEFITS WHILE HE IS IN RECEIPT OF DISABILITY RETIRED PAY.

IT IS CLEAR THAT HE WILL NOT BE PERFORMING EITHER ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, DRILLS OR TRAINING WHILE ATTENDING AN ACCREDITED COLLEGE OR UNIVERSITY AND THE ACT OF AUGUST 2, 1946, AS AMENDED, FURNISHES NO BAR TO PAYMENT OF THE BENEFITS OF THE ACT OF AUGUST 13, 1946, AS AMENDED, IN ADDITION TO HIS PHYSICAL DISABILITY RETIRED PAY, UNLESS ATTENDANCE AT SUCH COLLEGE OR UNIVERSITY MAY BE REGARDED AS "INSTRUCTION, OR OTHER DUTY" WITHIN THE MEANING OF THE ACT OF AUGUST 2, 1946, AS AMENDED.

THE PURPOSE OF THE ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067, AMENDING THE ACT OF AUGUST 2, 1946, AS STATED BY THE SENATE COMMITTEE ON ARMED FORCES, 81ST CONGRESS, 1ST SESSION, IN REPORT NO. 508, TO ACCOMPANY S. 1507, IS TO PERMIT THE WAIVER OF PENSION OR DISABILITY BENEFITS BY FORMER PERSONNEL OF THE MILITARY SERVICES FOR THE PURPOSE OF SERVING IN THE RESERVE COMPONENTS OF THE RESPECTIVE SERVICES. THERE IS NOTHING IN THE ACT OF AUGUST 13, 1946, AS AMENDED, WHICH IN ANY WAY REQUIRES AN OFFICER, WHOSE COMMISSION IN THE REGULAR NAVY IS TERMINATED UNDER SECTION 9 OF THAT ACT AND WHO ACCEPTS AN APPOINTMENT TO A COMMISSIONED RANK IN THE NAVAL RESERVE, TO ATTEND A COLLEGE OR UNIVERSITY. THE GOVERNMENT MERELY PROVIDES CERTAIN BENEFITS FOR HIM IF HE DESIRES TO COMPLETE HIS EDUCATION UNDER THE AUSPICES OF THE NAVY. THE DUTIES REQUIRED OF AN OFFICER UNDER THAT ACT ARE ALL COMPLETED WHEN HE IS COMMISSIONED AND SERVES UNTIL SUCH COMMISSION IS TERMINATED. ATTENDANCE AT A COLLEGE OR UNIVERSITY AFTER ACCEPTANCE OF AN APPOINTMENT IN THE NAVAL RESERVE IS NOT, IN ITSELF, SERVICE IN THE NAVAL RESERVE, AS THE TERM "SERVICE" IS ORDINARILY UNDERSTOOD. IT IS STATED ON PAGE 7, REPORT NO. 2105, COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 4526, THE COMPANION BILL TO S. 2304, WHICH WAS ENACTED INTO LAW AS THE ACT OF AUGUST 13, 1946, THAT:

"* * * SINCE AVIATORS UNDER THE PROPOSED PROGRAM WOULD ENTER FLIGHT TRAINING UPON COMPLETION OF 2 YEARS OF COLLEGE, IT IS ASSUMED THAT THEIR EDUCATION WOULD BE INTERRUPTED. BECAUSE THE COLLEGE TRAINING OF AVIATION CANDIDATES MUST BE CUT SHORT DUE TO THE NEEDS OF THE SERVICE IT IS FELT THAT AN OBLIGATION ON THE PART OF THE GOVERNMENT ARISES TO PROVIDE THE MEANS TO ALLOW THESE PERSONS TO COMPLETE THEIR COLLEGE WORK. THE FOREGOING PLAN IS SUBSTITUTED FOR THE LUMP-SUM PAYMENTS MADE TO OTHER OFFICERS RELEASED FROM ACTIVE DUTY IN ORDER TO FURNISH AN INCENTIVE TO SUCH OFFICERS TO CONTINUE THEIR COLLEGE EDUCATION.'

IN CONNECTION WITH THE STATEMENT THAT THE BENEFITS OF SECTION 9 (A) WERE SUBSTITUTED FOR THE LUMP-SUM PAYMENTS MADE TO OTHER AVIATION OFFICERS RELEASED FROM ACTIVE DUTY, THERE ARE FOR CONSIDERATION OUR DECISIONS PUBLISHED IN 33 COMP. GEN. 489 AND 23 COMP. GEN. 376. IN THOSE DECISIONS WE HELD THAT SUCH LUMP-SUM PAYMENTS MAY BE MADE UNDER SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, 10 U.S.C. 300 (A), AND UNDER SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 738, TO RESERVE OFFICERS UPON RELEASE FROM ACTIVE SERVICE BY REASON OF RETIREMENT BASED ON YEARS OF SERVICE, OR BASED ON PHYSICAL DISABILITY. AND IN DECISION OF JANUARY 4, 1952, 31 COMP. GEN. 249, WE HELD THAT THE "RETAINER PAY" GRANTED UNDER SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, IS NOT RETAINER PAY WITHIN THE PURVIEW OF THAT TERM AS USED IN THE ABOVE-QUOTED SECTION 10, OF THE ACT OF AUGUST 2, 1946, AS AMENDED.

INSOFAR AS THE NAVAL RESERVE AND MARINE CORPS RESERVE ARE CONCERNED, S. 2670, 80TH CONGRESS, THE ORIGINAL BILL TO AMEND SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS PASSED BY THE SENATE, MADE NO REFERENCE TO "DRILL, TRAINING, INSTRUCTION, OR OTHER DUTY.' APPARENTLY, THAT LANGUAGE WAS INCLUDED IN S. 1507, 81ST CONGRESS--- LATER ENACTED INTO LAW AS THE AMENDATORY ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067--- AS A RESULT OF OUR SUGGESTION IN A LETTER TO THE DIRECTOR, BUREAU OF THE BUDGET, DATED AUGUST 31, 1948, B-59501, B 71447, THAT S. 2670 NEEDED CLARIFICATION, SINCE IT MADE NO REFERENCE TO COMPENSATION FOR MEMBERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES AS PROVIDED FOR IN SECTION 14 (C) OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY SECTION 3 OF THE ACT OF MARCH 25, 1948, 62 STAT. 88. NOTHING HAS BEEN FOUND WHICH INDICATES THAT IN ENACTING THE ACT OF SEPTEMBER 27, 1950, THE CONGRESS INTENDED TO INCLUDE THE BENEFITS OF SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, WITHIN THE PURVIEW OF SUCH LEGISLATION.

IN THE CIRCUMSTANCES, IT IS CONCLUDED THAT ATTENDANCE AT A COLLEGE OR UNIVERSITY UNDER SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, AS AMENDED, IS NOT "INSTRUCTION, OR OTHER DUTY" WITHIN THE MEANING OF THE ACT OF AUGUST 2, 1946, AS AMENDED, AND THAT THE LATTER ACT DOES NOT REQUIRE THAT THE BENEFITS OF SECTION 9 (A) BE WITHHELD FROM LIEUTENANT SCHNITZER, WHILE HE IS IN RECEIPT OF DISABILITY RETIRED PAY, IF HE IS OTHERWISE ENTITLED TO SUCH BENEFITS.