B-139990, SEPTEMBER 24, 1959, 39 COMP. GEN. 217

B-139990, SEPTEMBER 24, 1959, 39 COMP. GEN. 217

MILITARY PERSONNEL - FLEET RESERVISTS - ACTIVE DUTY AFTER RETIREMENT - TRAINING DUTY THE PROVISION IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, WHICH EXCLUDED THE TWO MONTHS OF OBLIGATED ACTIVE DUTY IN EACH FOUR-YEAR PERIOD WHICH NAVY ENLISTED MEMBERS WERE REQUIRED TO PERFORM AFTER TRANSFER TO THE FLEET RESERVE OR MARINE CORPS RESERVE FOR THE PURPOSE OF RECOMPUTING RETAINER AND RETIRED PAY BASED ON ACTIVE SERVICE AFTER RETIREMENT OR TRANSFER, WAS EFFECTIVE UNTIL THE REPEAL OF SECTION 208 BY THE ACT OF AUGUST 10, 1956, SO THAT SUCH ACTIVE DUTY PERFORMED PRIOR TO AUGUST 10, 1956, IS NOT CREDITABLE TO INCREASE RETIRED PAY; HOWEVER, IN VIEW OF THE DEFINITION OF ACTIVE DUTY IN 10 U.S.C. 101 (22), AS INCLUDING "TRAINING DUTY" AND "ANNUAL TRAINING DUTY," SUCH TRAINING DUTY PERFORMED AFTER AUGUST 10, 1956, BY ENLISTED MEMBERS AFTER TRANSFER TO THE FLEET RESERVE OR MARINE CORPS RESERVE IS TO BE REGARDED AS ACTIVE DUTY FOR INCREASING RETAINER OR RETIRED PAY UNDER 10 U.S.C. 1402 (A).

TO THE SECRETARY OF DEFENSE, SEPTEMBER 24, 1959:

REFERENCE IS MADE TO LETTER OF JUNE 18, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION AS TO WHETHER ACTIVE DUTY, AS DEFINED IN SECTION 101 (22) OF TITLE 10, U.S. CODE, FOR TRAINING PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE MARINE CORPS RESERVE MAY BE CREDITED FOR THE PURPOSE OF INCREASING RETIRED PAY UNDER SECTION 1402 (A) OF TITLE 10 OF THE CODE. THE QUESTION IS SET FORTH IN COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

IS IT THE INTENT OF TITLE 10 U.S.C. SECTION 101 (22) THAT ACTIVE DUTY FOR TRAINING PERFORMED SUBSEQUENT TO RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE MARINE CORPS RESERVE BE CREDITED FOR THE PURPOSE OF INCREASING RETIRED PAY UNDER SECTION 1402 (A) OF TITLE 10 OF THE ODE?

THE REFERENCE TO THE MARINE CORPS RESERVE IN THE QUESTION SUBMITTED IS PRESUMED TO MEAN THE FLEET MARINE CORPS RESERVE.

THE NAVAL RESERVE ACT OF 1938 AND THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 994, 34 U.S.C. 854G, AUTHORIZED, UPON COMPLETION OF 20 YEARS OF ACTIVE SERVICE, THE TRANSFER OF ENLISTED MEMBERS OF THE NAVY TO THE FLEET RESERVE AND THE PLACEMENT OF ARMY MEMBERS ON THE RETIRED LIST, RESPECTIVELY, WITH RETAINER AND RETIRED PAY COMPUTED AS THERE PRESCRIBED, THAT IS, ON THE BASIS OF 2 1/2 PERCENT OF BASE AND LONGEVITY PAY TIMES THE NUMBER OF YEARS OF CREDITABLE ACTIVE SERVICE.

UNTIL THE COMPLETION OF 30 YEARS' TOTAL SERVICE, ACTIVE AND INACTIVE, SUCH MEMBERS WERE SUBJECT TO THE OBLIGATION TO PERFORM ADDITIONAL ACTIVE DUTY. UNDER SECTION 7 OF THE 1946 ACT, 10 U.S.C. 948A, ARMY MEMBERS WERE "SUBJECT TO PERFORM SUCH PERIODS OF ACTIVE DUTY AS MAY * * * BE PRESCRIBED BY LAW" AND SECTION 8 (A), 10 U.S.C. 986 (A), OF THAT ACT AUTHORIZED THE RECOMPUTATION OF RETIRED PAY UPON RELEASE FROM SUCH ACTIVE DUTY WITH CREDIT FOR SUCH ADDITIONAL ACTIVE SERVICE. SECTION 206 OF THE NAVAL RESERVE ACT REQUIRED MEMBERS OF THE FLEET RESERVE IN TIME OF PEACE "TO PERFORM NOT MORE THAN TWO MONTHS' ACTIVE DUTY IN EACH FOUR YEAR PERIOD.' SECTION 208 OF THE NAVAL RESERVE ACT, AS ADDED BY THE 1946 ACT, AUTHORIZED THE RECOMPUTATION OF RETAINER AND RETIRED PAY OF FLEET RESERVISTS AND FORMER FLEET RESERVISTS BASED ON ACTIVE SERVICE PERFORMED AFTER TRANSFER OR RETIREMENT "EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 206.'

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, AUTHORIZED MEMBERS OF THE FLEET RESERVE AND RETIRED MEMBERS OF THE NAVY TO RECEIVE INCREASES IN RETIRED PAY AND RETAINER PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE, AND TO THAT EXTENT SUPERSEDED THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT. SEE PAGE 1092 OF H.R. REPORT NO. 970, 84TH CONGRESS.

HOWEVER, SECTION 208 WAS NOT EXPRESSLY REPEALED BY THE CAREER COMPENSATION ACT. SINCE A STATUTE IS NOT DEEMED REPEALED OR AMENDED MERELY BY ENACTMENT OF ANOTHER STATUTE ON THE SAME SUBJECT, AND SINCE REPEALS BY IMPLICATION ARE NOT FAVORED, WHEN THERE ARE TWO ACTS ON THE SAME SUBJECT BOTH MUST BE GIVEN EFFECT IF POSSIBLE. ROSENBERG V. UNITED STATES, 346 U.S. 273; 34 COMP. GEN. 170, 172; 55 COL. L. REV. 1039. ACCORDINGLY, IT MUST BE HELD THAT FOR THE PURPOSE OF COMPUTING RETAINER AND RETIRED PAY THE PROVISION IN SECTION 208 EXCLUDING ACTIVE DUTY REQUIRED BY SECTION 206 REMAINED IN FULL FORCE AND EFFECT AFTER THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 UNTIL THAT SECTION WAS EXPRESSLY REPEALED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 675. HENCE, SUCH ACTIVE DUTY PERFORMED PRIOR TO AUGUST 10, 1956, IS NOT CREDITABLE FOR THE PURPOSE OF INCREASING RETIRED PAY. SECTION 516 OF THE CAREER COMPENSATION ACT WAS SUPERSEDED EFFECTIVE AUGUST 10, 1956, BY 10 U.S.C. 1402 (A).

CONCURRENTLY WITH THE REPEAL OF SECTION 208 OF THE NAVAL RESERVE ACT, THE ACT OF AUGUST 10, 1956, ENACTING INTO POSITIVE LAW TITLE 10, U.S. CODE, PROVIDED IN 10 U.S.C. 101 (22) THAT,

"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.

THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 RESPECTING TRANSFER OF MEMBERS OF THE NAVY TO THE FLEET RESERVE UPON COMPLETION OF 20 YEARS OF ACTIVE SERVICE AND RETIREMENT UPON COMPLETION OF 30 YEARS OF SERVICE WERE CODIFIED IN 10 U.S.C. 6330 AND 6331 BY THE ACT OF AUGUST 10, 1956, 70A STAT. 396, 397. SECTION 6330 (C) AUTHORIZES THE RECOMPUTATION OF RETAINER PAY UNDER SECTION 1402 TO REFLECT ACTIVE SERVICE AFTER TRANSFER. SECTION 1402 (A) PROVIDES FOR INCREASES IN RETAINER PAY FOR MEMBERS OF THE FLEET RESERVE AND FOR INCREASES IN RETIRED PAY FOR RETIRED MEMBERS OF THE NAVY ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER TRANSFER TO THE FLEET RESERVE OR AFTER RETIREMENT. SINCE THE DEFINITION OF "ACTIVE DUTY" CONTAINED IN 10 U.S.C. 101 (22) INCLUDES "FULL-TIME TRAINING DUTY" AND "ANNUAL TRAINING DUTY," AND SINCE SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 WAS REPEALED BY THE ACT OF AUGUST 10, 1956, WITHOUT REENACTING THE PROHIBITION THERE CONTAINED, SUCH TRAINING DUTY PERFORMED ON AND AFTER THAT DATE MUST BE REGARDED AS "ACTIVE DUTY" WITHIN THE MEANING OF 10 U.S.C. 1402 (A).

ATTENTION IS ALSO INVITED TO DECISIONS 36 COMP. GEN. 179, 37 COMP. GEN. 264, AND 38 COMP. GEN. 251 RELATING TO THE QUESTION OF WHETHER ACTIVE DUTY FOR TRAINING IS "ACTIVE SERVICE" WITHIN THE MEANING OF SECTION 203 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 234 (B), PROVIDING ADDITIONAL SPECIAL PAY TO CERTAIN MEDICAL AND DENTAL OFFICERS IN AMOUNTS DEPENDENT UPON THE NUMBER OF YEARS OF ACTIVE SERVICE AS PHYSICIANS AND DENTISTS. FOR THE REASONS THERE STATED WE CONCLUDED THAT ACTIVE DUTY FOR TRAINING PERFORMED PRIOR TO AUGUST 10, 1956, WAS NOT SUCH ACTIVE SERVICE BUT THAT ACTIVE DUTY FOR TRAINING PERFORMED AFTER AUGUST 9, 1956, IS ACTIVE SERVICE. ALSO, THE CREDITING OF TRAINING DUTY PERFORMED PRIOR TO AUGUST 10, 1956, AS ACTIVE DUTY IN COMPUTING THE SPECIAL PAY OF PHYSICIANS AND DENTISTS WOULD CONTRAVENE THE PROVISIONS OF SECTION 49 (F) OF THE ACT OF AUGUST 10, 1956, WHICH PROVIDES THAT ITS ENACTMENT DOES NOT INCREASE THE PAY OF ANY PERSON.

THE COMMITTEE ACTION DISCUSSION REFERS TO SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B), TO SECTION 3 (B) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, 37 U.S.C. 252 (F), AND TO H. REPORT NO. 970 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 7409 (ENACTED INTO PUBLIC LAW 1028, 84TH CONGRESS), AS POSSIBLY HAVING A BEARING ON THE QUESTION OF CREDITING ACTIVE DUTY FOR TRAINING AFTER TRANSFER OF THE FLEET RESERVE. SECTION 202 (B) OF THE CAREER COMPENSATION ACT RELATES TO INCREASES IN THE LONGEVITY PAY FACTOR IN THE COMPUTATION OF RETIRED PAY ON ACCOUNT OF INACTIVE RETIRED SERVICE. DOES NOT PROHIBIT INCREASES IN RETIRED PAY ON ACCOUNT OF ACTIVE SERVICE AFTER RETIREMENT; IN FACT, IT RECOGNIZES THAT ACTIVE SERVICE AFTER RETIREMENT INCREASES RETIRED PAY. THERE IS NOTHING IN THAT SECTION WHICH WOULD OPERATE TO PRECLUDE INCREASES IN RETIRED PAY ON ACCOUNT OF ACTIVE DUTY FOR TRAINING PERFORMED ON OR AFTER AUGUST 10, 1956. COMPARE 37 COMP. GEN. 264.

SECTION 3 (B) OF THE 1958 ACT RELATES TO THE PROBLEM OF WHETHER A MEMBER RECEIVING RETAINER OR RETIRED PAY WHO PERFORMS ACTIVE DUTY AFTER TRANSFER OR RETIREMENT SHOULD RECEIVE RETAINER OR RETIRED PAY AT THE PAY RATES IN EFFECT ON MAY 31, 1958, OR THOSE PROVIDED IN THE 1958 ACT. AS TO THE EFFECT OF THAT PROVISION ON SUCH ACTIVE SERVICE ON THE COMPUTATION OF RETIRED PAY, SEE DECISION OF JUNE 19, 1959, 38 COMP. GEN. 843. NOTHING IN THAT PROVISION OF LAW IN ANY WAY OPERATES TO PREVENT THE CREDITING OF ACTIVE DUTY FOR TRAINING IN THE RECOMPUTATION OF RETIRED PAY.

IN H. REPORT NO. 970, 84TH CONGRESS, TO ACCOMPANY THE BILL WHICH BECAME PUBLIC LAW 1028, IT WAS STATED THAT THE DEFINITION OF "ACTIVE DUTY" WAS BASED ON THE DEFINITION OF "ACTIVE FEDERAL SERVICE" IN THE SOURCE STATUTE, SINCE IT WAS BELIEVED TO BE CLOSER TO THE GENERAL USAGE THAN THE DEFINITION IN 50 U.S.C. 901 (B), WHICH EXCLUDES ACTIVE DUTY FOR TRAINING FROM THE GENERAL CONCEPT OF ACTIVE DUTY. THE REPORT ALSO INDICATES THAT THE SOURCE FOR THE DEFINITION IN 10 U.S.C. 101 (22) IS 10 U.S.C. 1036E (D) AND 34 U.S.C. 440M (D), THAT IS, SECTION 306 (D) OF TITLE III OF THE ACT OF JUNE 29, 1948, RELATING TO RETIREMENT OF MEMBERS OF THE RESERVES FOR ACTIVE AND INACTIVE MILITARY SERVICE. 10 U.S.C. 1331. THE FACT THAT THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22) MAY BE BASED ON TITLE III OF THE 1948 ACT DOES NOT IN ANY WAY RESTRICT THE SCOPE OF THE DEFINITION ADOPTED IN THE 1956 ACT SO AS TO PREVENT CONSIDERING ACTIVE DUTY FOR TRAINING AS ACTIVE DUTY WITHIN THE MEANING OF 10 U.S.C. 1402 (A).