B-129286, NOVEMBER 2, 1956, 36 COMP. GEN. 369

B-129286, NOVEMBER 2, 1956, 36 COMP. GEN. 369

PUBLIC HEALTH SERVICE COMMISSIONED PERSONNEL - CIVIL SERVICE RETIREMENT ENTITLEMENT TO MILITARY TRAVEL AND TRANSPORTATION RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE WHO ARE RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT AND RECEIVE ANNUITIES, AS DISTINGUISHED FROM RETIRED PAY FOR PAST MILITARY SERVICE, ARE NOT REGARDED AS OFFICERS WITH RETIRED PAY TO BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON RETIREMENT.

TO THE SECRETARY OF THE NAVY, NOVEMBER 2, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 15, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) STATING THAT A QUESTION HAS ARISEN AS TO WHETHER MEMBERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE RETIRED UPON REACHING THE AGE OF 64 YEARS AND RECEIVE "RETIRED PAY" UNDER THE CIVIL SERVICE RETIREMENT ACT, 41 STAT. 614, AS AMENDED, 5 U.S.C. 691, ARE "RETIRED WITH PAY" WITHIN THE MEANING OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF AUGUST 11, 1955, 69 STAT. 691, AND THUS ELIGIBLE TO SELECT THEIR HOMES FOR THE PURPOSE OF RECEIVING TRAVEL AND TRANSPORTATION ALLOWANCES.

SECTION 1 OF THE LATTER ACT, 37 U.S.C. 253 (A), AMENDED SECTION 303 (A) OF THE CAREER COMPENSATION ACT BY INSERTING THE FOLLOWING SENTENCE IMMEDIATELY AFTER THE FIRST SENTENCE THEREOF:

UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO---

(1) IS RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST; OR

(2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN NINETY DAYS); MAY SELECT HIS HOME FOR THE PURPOSE OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SUBSECTION.

DECISION IS REQUESTED WHETHER THE TERM "RETIRED WITH PAY" AS USED IN THE STATUTE AND IN PORTIONS OF THE JOINT TRAVEL REGULATIONS MUST BE CONSTRUED AS MEANING "RETIREMENT BY A SERVICE WITH RETIRED PAY FROM THAT SERVICE.'

IT HAS BEEN HELD THAT DESCRIPTIVE TERMS SUCH AS "PENSION" AND "RETIRED PAY" USED IN LEGISLATION CONCERNING THE ARMED FORCES ARE TECHNICAL TERMS WHICH RELATE TO BENEFITS FOR PAST MILITARY SERVICE. 20 COMP. GEN. 313; 30 ID. 155. IN CONSONANCE WITH THE MEANING SO ASCRIBED TO SUCH TERMS, SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACT OF FEBRUARY 28, 1948, 62 STAT. 48, 50, 5 U.S.C. 707, WHICH EXCLUDES FROM THE AGGREGATE PERIOD OF SERVICE FORMING THE BASIS FOR CALCULATING THE AMOUNT OF ANY "ANNUITY" PROVIDED IN THE ACT CERTAIN PERIODS OF SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES AS TO WHICH A CIVILIAN OFFICER OR EMPLOYEE IS ELIGIBLE FOR OR RECEIVES RETIRED PAY, CONCLUDES WITH THE PROVISION THAT NOTHING IN THE ACT SHALL BE CONSTRUED SO "AS TO AFFECT" IN ANY MANNER AN OFFICER'S OR EMPLOYEE'S RIGHT TO "RETIRED PAY, PENSION, OR COMPENSATION" IN ADDITION TO THE "ANNUITY HEREIN PROVIDED.'

SECTIONS 211 (B), 42 U.S.C. 212 (B), AND (F), 42 U.S.C. 212 (F), OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, 58 STAT. 679, 688, REDESIGNATED (A) AND (E) BY THE ACT OF OCTOBER 12, 1949, 63 STAT. 835, 42 U.S.C. 212 (A) AND (E), PROVIDE, IN EFFECT, THAT COMMISSIONED OFFICERS OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE SHALL, UPON REACHING 64 YEARS OF AGE, BE RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT AS CIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES. HENCE, SUCH MEMBERS ARE NOT RETIRED AS OFFICERS "RETIRED WITH PAY," BUT AS ANNUITANTS, AND THEREAFTER RECEIVE AN ,ANNUITY," AS DISTINGUISHED FROM "RETIRED PAY," NOT AS A BENEFIT FOR PAST MILITARY SERVICE, BUT BECAUSE OF THEIR PARTICIPATION IN THE CIVIL-SERVICE RETIREMENT SYSTEM. A RIGHT TO TRANSPORTATION AND TRAVEL ALLOWANCES TO A SELECTED HOME DOES NOT ACCRUE IN THE CASE OF AN OFFICER OR EMPLOYEE RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT. IF FOLLOWS THAT A MEMBER OF THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE WOULD NOT APPEAR TO BE ELIGIBLE UPON RETIREMENT WITH AN ANNUITY UNDER ..END :