B-136678, JULY 23, 1958, 38 COMP. GEN. 68

B-136678, JULY 23, 1958, 38 COMP. GEN. 68

MILITARY PERSONNEL - OFFICERS QUALIFYING FOR INCREASED PAY ON ACCOUNT OF ENLISTED SERVICE - ACTIVE ENLISTED SERVICE - DUAL STATUS THE INCLUSION OF ACTIVE DUTY FOR TRAINING IN THE DEFINITIONS OF "ACTIVE DUTY" AND "ACTIVE SERVICE" IN 10 U.S.C. 101 JUSTIFIES THE CREDITING OF ENLISTED TRAINING DUTY IN THE COMPUTATION OF SERVICE TO ENTITLE OFFICERS WHO HAVE OVER FOUR YEARS' ACTIVE SERVICE AS ENLISTED MEMBERS TO THE INCREASED RATES OF PAY PROVIDED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PUBLIC LAW 85-422, EFFECTIVE JUNE 1, 1958. ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS WHO CONTINUE TO SERVE UNDER ENLISTMENT CONTRACTS WHEN TEMPORARILY APPOINTED TO OFFICER STATUS BUT WHO ARE PAID AS OFFICERS AND RECEIVE CREDIT FOR ACTIVE SERVICE AS OFFICERS HAVE AN INACTIVE ENLISTED STATUS WHICH PRECLUDES THE CREDITING OF SUCH ENLISTED SERVICE IN THE COMPUTATION OF ACTIVE ENLISTED SERVICE TO ENTITLE OFFICERS WHO HAVE OVER FOUR YEARS' ACTIVE ENLISTED SERVICE TO THE INCREASED RATES OF PAY PROVIDED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PUBLIC LAW 85-422, EFFECTIVE JUNE 1, 1958. IN THE COMPUTATION OF ENLISTED SERVICE TO ENTITLE OFFICERS WHO HAVE OVER FOUR YEARS' ACTIVE SERVICE AS ENLISTED MEMBERS TO THE INCREASED RATES OF PAY PROVIDED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PUBLIC LAW 85-422, ACTIVE SERVICE AS A NAVAL AVIATION CADET IN THE NAVAL RESERVE OR THE MARINE CORPS RESERVE PRIOR TO THE NAVAL AVIATION CADET ACT OF 1942, WHICH ESTABLISHED THE SPECIAL ENLISTED GRADE OF AVIATION CADET, MAY NOT BE INCLUDED AS ENLISTED SERVICE. MEMBERS OF THE UNIFORMED SERVICE WHO HAD A DUAL ENLISTED AND AVIATION CADET STATUS PRIOR TO THE NAVAL AVIATION CADET ACT OF 1942 MAY NOT HAVE AVIATION CADET SERVICE CREDITED AS ACTIVE ENLISTED SERVICE FOR COMPUTATION OF SERVICE FOR ENTITLEMENT TO THE INCREASED RATES OF PAY PROVIDED IN SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PUBLIC LAW 85-422. ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO HAVE DUAL STATUS AS TEMPORARY OFFICERS AND AS PERMANENT ENLISTED MEMBERS OR A DUAL STATUS AS MEMBERS OF A SERVICE ACADEMY AND AS ENLISTED MEMBERS MAY HAVE THE INACTIVE ENLISTED SERVICE CREDITED IN THE COMPUTATION OF CUMULATIVE YEARS OF ENLISTED SERVICE FOR BASIC PAY PURPOSES UNDER SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY PUBLIC LAW 85 422, EFFECTIVE JUNE 1, 1958.

TO THE SECRETARY OF DEFENSE, JULY 23, 1958:

REFERENCE IS MADE TO LETTER OF JUNE 27, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON SEVERAL QUESTIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 219, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE FIRST QUESTION IS AS FOLLOWS:

1. MAY AN OFFICER IN PAY GRADE 10-1 THROUGH 10-3 INCLUDE THE FOLLOWING SERVICE IN COMPUTATION OF OVER 4 YEARS ACTIVE SERVICE AS AN ENLISTED MEMBER SO AS TO ENTITLE HIM TO THE RATES OF PAY IN THE SEPARATE TABLE AUTHORIZED BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949 AS AMENDED EFFECTIVE 1 JUNE 1958:

A. ACTIVE DUTY FOR TRAINING AS AN ENLISTED MEMBER?

B. ACTIVE SERVICE IN A DUAL STATUS IN THE NAVY OR MARINE CORPS (TEMPORARY OFFICER--- PERMANENT ENLISTED?)

C. ACTIVE SERVICE AS AN AVIATION CADET PRIOR TO 4 AUGUST 1942?

D. ACTIVE SERVICE IN A DUAL STATUS (AVIATION CADET--- ENLISTED) PRIOR TO 4 AUGUST 1942?

SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 1 (1) OF PUBLIC LAW 85-422, APPROVED MAY 20, 1958, 72 STAT. 122, 123, 37 U.S.C. 232 (A), PROVIDES A SPECIAL TABLE OF BASIC RATES FOR " COMMISSIONED OFFICERS WHO HAVE BEEN CREDITED WITH OVER 4 YEARS' ACTIVE SERVICE AS AN ENLISTED MEMBER.'

AS POINTED OUT IN COMMITTEE ACTION NO. 219, IT WAS STATED AT PAGE 15 OF SENATE REPORT NO. 1472, APRIL 25, 1958, TO ACCOMPANY H.R. 11470, WHICH BECAME PUBLIC LAW 85-422, THAT:

THE PRINCIPAL PURPOSE OF THE SPECIAL RATES WAS TO RECOGNIZE ENLISTED MEMBERS WITH SUBSTANTIAL ACTIVE ENLISTED SERVICE WHO QUALIFIED FOR APPOINTMENT AS COMMISSIONED OFFICERS AFTER A NUMBER OF YEARS IN AN ACTIVE ENLISTED STATUS. IN THE NAVY, 10 YEARS OF ACTIVE ENLISTED SERVICE AS AN ENLISTED MAN OR WARRANT OFFICER IS REQUIRED FOR APPOINTMENT AS A LIMITED DUTY OFFICER. * * *

ALSO, AS POINTED OUT IN COMMITTEE ACTION NO. 219, THE REQUIREMENT FOR 10 YEARS OF ACTIVE ENLISTED SERVICE FOR ELIGIBILITY FOR APPOINTMENT AS LIMITED DUTY OFFICER IN THE NAVY IS SET FORTH IN 10 U.S.C. 5589 (C), AS FOLLOWS:

TO BE ELIGIBLE FOR AN APPOINTMENT UNDER THIS SECTION A MEMBER MUST HAVE COMPLETED AT LEAST 10 YEARS OF ACTIVE NAVAL SERVICE, EXCLUDING ACTIVE DUTY FOR TRAINING IN A RESERVE COMPONENT.

THE FOREGOING REPORT AND STATUTE, WHEN READ TOGETHER, MIGHT POSSIBLY BE CONSIDERED AS INDICATIVE OF AN INTENT THAT ACTIVE DUTY FOR TRAINING SHOULD BE EXCLUDED IN COMPUTING ACTIVE SERVICE UNDER SECTION 201 (A), AS AMENDED, AND WE HAVE HELD THAT UNDER THE PROVISIONS OF CERTAIN EARLIER STATUTES, ACTIVE DUTY FOR TRAINING IS NOT ACTIVE DUTY. SEE A 8221, MARCH 16, 1925, CITING 9 MS COMP. GEN. 1499, MAY 19, 1922, A.D. 6739; A-91834, MARCH 17, 1938; B-731, FEBRUARY 24, 1939; B-2473, APRIL 7, 1939. HOWEVER, 10 U.S.C. 101 NOW PROVIDES AS FOLLOWS:

DEFINITIONS

IN ADDITION TO THE DEFINITIONS IN SECTIONS 1-5 OF TITLE 1, THE FOLLOWING DEFINITIONS APPLY IN THIS TITLE:

(22) "ACTIVE DUTY" MEANS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.

(24) "ACTIVE SERVICE" MEANS SERVICE ON ACTIVE DUTY.

WHILE THE ABOVE DEFINITIONS DO NOT, IN TERMS, APPLY TO THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, OR AMENDMENTS THERETO, THEY DO FURNISH THE LATEST LEGISLATIVE EXPRESSION WHICH WE HAVE FOUND IN THE NATURE OF WIDELY APPLICABLE DEFINITIONS OF ACTIVE DUTY AND ACTIVE SERVICE. IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION REQUIRING THAT THE TERM "ACTIVE SERVICE" AS USED IN THE TABLE HERE INVOLVED BE GIVEN A MORE RESTRICTED MEANING, WE BELIEVE THE CONCLUSION JUSTIFIED THAT SUCH TERM SHOULD BE GIVEN THE SAME MEANING AS THAT EXPRESSED IN 10 U.S.C. 101. COMPARE B-18627, AUGUST 16, 1941.

ACCORDINGLY, QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE.

IN CONNECTION WITH QUESTION 1 (B), IT IS STATED IN COMMITTEE ACTION NO. 219 THAT ENLISTED MEMBERS OF THE NAVY AND MARINE CORPS CONTINUE TO SERVE UNDER THEIR ENLISTMENT CONTRACTS WHEN TEMPORARILY APPOINTED TO OFFICER STATUS, REFERENCE BEING MADE TO 10 U.S.C. 5596 AND 5597, AUTHORIZING TEMPORARY APPOINTMENTS OF NAVY AND MARINE CORPS WARRANT OFFICERS AND ENLISTED MEN IN COMMISSIONED AND WARRANT GRADES AND PROVIDING, IN 5596 (F) AND 5597 (H), THAT:

TEMPORARY APPOINTMENTS UNDER THIS SECTION DO NOT CHANGE THE PERMANENT, PROBATIONARY, OR ACTING STATUS OF MEMBERS SO APPOINTED, PREJUDICE THEM IN REGARD TO PROMOTION OR APPOINTMENT, OR ABRIDGE THEIR RIGHTS OR BENEFITS.

AN ENLISTED MAN ON ACTIVE DUTY AS A TEMPORARY OFFICER IS PAID AS AN OFFICER AND HAS THE DUTIES AND RANK OF AN OFFICER. WE CANNOT AGREE THAT HE IS THEN PERFORMING ACTIVE SERVICE AS AN ENLISTED MEMBER WITHIN THE MEANING OF THE STATUTORY LANGUAGE HERE INVOLVED. SINCE HE IS ENTITLED TO CREDIT FOR ACTIVE SERVICE AS AN OFFICER IT SEEMS APPARENT THAT HE SHOULD NOT ALSO BE CREDITED WITH ACTIVE SERVICE AS AN ENLISTED MAN. IT SEEMS TO US THAT HE THEN HAS AN INACTIVE ENLISTED STATUS SOMEWHAT COMPARABLE TO THE STATUS OF A RESERVE OFFICER NOT ON DUTY. IN OUR VIEW THE REFUSAL OF SUCH DUAL CREDITING IS NOT AN ABRIDGMENT OF ANY RIGHTS OR BENEFITS WITHIN THE MEANING AND INTENT OF THE STATUTE.

ACCORDINGLY, QUESTION 1 (B) IS ANSWERED IN THE NEGATIVE.

IT IS UNDERSTOOD THAT QUESTIONS 1 (C) AND 1 (D) PERTAIN TO NAVAL AVIATION CADETS. IN CONNECTION WITH THESE QUESTIONS, COMMITTEE ACTION NO. 219 REFERS TO SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 1177, 34 U.S.C. 853E-1, PROVIDING THAT "FOR THE PURPOSES OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE, ACTIVE SERVICE IN THE GRADE OF AVIATION CADET SHALL BE CONSIDERED AS COMMISSIONED SERVICE" AND TO SECTION 2 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 737, 34 U.S.C. 850A, PROVIDING THAT "THERE SHALL BE IN THE NAVAL RESERVE AND MARINE CORPS RESERVE THE SPECIAL ENLISTED GRADE OF AVIATION CADET.'

SECTION 1 OF THE ACT OF APRIL 15, 1935, 49 STAT. 156, PROVIDED, IN PERTINENT PART:

THAT THE GRADE OF AVIATION CADET IS HEREBY CREATED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE. AVIATION CADETS SHALL BE APPOINTED BY THE SECRETARY OF THE NAVY FROM MALE CITIZENS OF THE UNITED STATES UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE * * *.

SECTION 4 OF THAT ACT PROVIDED THAT AVIATION CADETS "SHALL TAKE PRECEDENCE NEXT BEFORE WARRANT OFFICERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE.'

ARTICLE H-5301, CHANGE 10, BUREAU OF NAVIGATION MANUAL, 1925, PROVIDED THAT:

AVIATION CADETS ARE APPOINTED FROM ENLISTED MEN OF THE NAVAL RESERVE, THE NAVY OR MARINE CORPS, WHO HAVE SUCCESSFULLY COMPLETED THE ELIMINATION COURSE OF FLIGHT TRAINING AND HAVE BEEN FOUND PHYSICALLY AND PSYCHOLOGICALLY QUALIFIED FOR FURTHER FLIGHT TRAINING.

SECTION 2 OF THE ACT OF JUNE 13, 1939, 53 STAT. 819, PROVIDED THAT:

AVIATION CADETS MAY, IF QUALIFIED AFTER COMPLETION OF TRAINING, BE COMMISSIONED ENSIGNS IN THE NAVAL RESERVE OR SECOND LIEUTENANTS IN THE MARINE CORPS RESERVE.

WE HAVE FOUND NO PROVISION OF LAW PRIOR TO AUGUST 4, 1942, WHICH WOULD AUTHORIZE THE CREDITING OF AVIATION CADET SERVICE IN THE NAVAL RESERVE OR IN THE MARINE CORPS RESERVE AS ENLISTED SERVICE.

ACCORDINGLY, QUESTION 1 (C) IS ANSWERED IN THE NEGATIVE.

BY ANALOGY TO THE ANSWER TO QUESTION 1 (B), QUESTION 1 (D) ALSO IS ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION IS AS FOLLOWS:

2. MAY AN ENLISTED MEMBER INCLUDE THE FOLLOWING SERVICE IN COMPUTING CUMULATIVE YEARS OF ENLISTED SERVICE CREDITABLE IN THE COMPUTATION OF HIS BASIC PAY WITHIN THE MEANING OF SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949 AS AMENDED EFFECTIVE 1 JUNE 1958:

A. SERVICE IN A DUAL STATUS (TEMPORARY OFFICER--- PERMANENT ENLISTED?)

B. SERVICE IN A DUAL STATUS (MEMBER OF A SERVICE ACADEMY--- ENLISTED?)

SECTION 1 (3) OF PUBLIC LAW 85-422, 72 STAT. 124, AMENDS SECTION 201 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 232 (C), BY ADDING TWO SENTENCES AT THE END THEREOF. THE FIRST OF SUCH SENTENCES IS AS FOLLOWS:

HOWEVER, EXCEPT AS PROVIDED IN SECTION 209 OF THIS TITLE, AN ENLISTED MEMBER MAY NOT BE PLACED IN PAY GRADE E-8 OR E-9 UNTIL HE HAS COMPLETED AT LEAST EIGHT YEARS OR TEN YEARS, RESPECTIVELY, OF CUMULATIVE YEARS OF ENLISTED SERVICE CREDITABLE IN THE COMPUTATION OF HIS BASIC PAY. * * *

SECTION 209, 37 U.S.C. 240, PERTAINS TO THE PAYMENT OF PROFICIENCY PAY AND IS NOT FOR CONSIDERATION HERE.

UNLIKE SECTION 1 (1) OF PUBLIC LAW 85-422, SUPRA, WHICH REQUIRES "ACTIVE SERVICE AS AN ENLISTED MEMBER" SECTION 1 (3) REQUIRES "ENLISTED SERVICE CREDITABLE IN THE COMPUTATION OF HIS BASIC PAY.' A MAN WHO HAD EIGHT YEARS OF INACTIVE ENLISTED SERVICE WITH NO SERVICE IN ANY OTHER STATUS WOULD BE ENTITLED TO EIGHT YEARS' CREDIT FOR BASIC PAY PURPOSES. WE SEE NO REASON WHY A MAN WHO WAS IN AN INACTIVE STATUS AS AN ENLISTED MAN (COMPARE THE ANSWER TO QUESTION 1 (B) ( SHOULD BE PENALIZED BECAUSE WHILE HE HAD THAT STATUS HE SERVED ON ACTIVE DUTY AS AN OFFICER.

ACCORDINGLY, QUESTION 2 (A) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 (B), ALSO, IS ANSWERED IN THE AFFIRMATIVE. COMPARE 25 COMP. GEN. 655 AND CASES THEREIN CITED; ALSO COMPARE 32 COMP. GEN. 548.