B-146367, AUGUST 24, 1961, 41 COMP. GEN. 141

B-146367, AUGUST 24, 1961, 41 COMP. GEN. 141

PAY - SERVICE CREDITS - INACTIVE TIME - AVIATION CADETS IN VIEW OF THE SPECIFIC AUTHORITY FOR REGARDING ACTIVE SERVICE AS AN APPOINTIVE AVIATION CADET AS COMMISSIONED SERVICE FOR COMPUTATION OF INCREASES IN PAY FOR LENGTH OF SERVICE OF OFFICERS OF THE UNIFORMED SERVICE UNDER THE LAWS IN EFFECT PRIOR TO SEPTEMBER 30, 1949--- THE DAY BEFORE THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- AND THE ABSENCE OF ANY PROVISION FOR CREDITING INACTIVE SERVICE AS AN APPOINTIVE AVIATION CADET, SUCH INACTIVE CADET SERVICE MAY NOT BE CREDITED FOR LONGEVITY PAY PURPOSES UNDER SECTION 202 (A) (6) OF THE 1949 ACT WHICH PROVIDED THAT ALL SERVICE CREDITABLE UNDER LAWS IN EFFECT ON THE DATE OF THE CAREER COMPENSATION ACT OF 1949 WAS AUTHORIZED TO BE CREDITED FOR LONGEVITY PAY PURPOSES.

TO MAJOR B. H. SNYDER, UNITED STATES MARINE CORPS, AUGUST 24, 1961:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 20, 1961, FORWARDED TO THIS OFFICE BY THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION REGARDING THE CREDITABILITY OF INACTIVE SERVICE AS AN APPOINTIVE AVIATION CADET FOR LONGEVITY PURPOSES IN THE COMPUTATION OF BASIC PAY OF A COMMISSIONED OFFICER.

YOUR REQUEST FOR DECISION, WHICH HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. DO-MC-588, QUESTIONS THE LEGALITY OF CREDITING COLONEL WILLIAM E. CLASEN, 106232, USMC, WITH INACTIVE APPOINTIVE SERVICE AS AN AVIATION CADET FOR THE PERIOD AUGUST 2 TO AUGUST 27, 1939, IN THE COMPUTATION OF HIS BASIC PAY. DOUBT IN THE MATTER IS SAID TO EXIST BECAUSE PARAGRAPH 1044013-2, NAVY COMPTROLLER MANUAL, PROVIDES THAT ONLY ACTIVE SERVICE IN THE APPOINTIVE GRADE OF AVIATION CADET MAY BE COUNTED AS SERVICE FOR BASIC PAY PURPOSES. ATTACHMENTS ACCOMPANYING YOUR SUBMISSION DISCLOSE THAT THE PAY ENTRY BASE DATE OF COLONEL CLASEN WAS CORRECTED TO JUNE 15, 1939, FROM JULY 11, 1939, AS A RESULT OF THE CREDITING OF HIS INACTIVE APPOINTED AVIATION CADET SERVICE. THE COPY OF STATEMENT OF SERVICE FOR PURPOSE OF PAY OF COLONEL CLASEN ATTACHED TO YOUR SUBMISSION SHOWS HE HAD INACTIVE ENLISTED SERVICE FROM JUNE 15 TO AUGUST 1, 1939; INACTIVE AVIATION CADET SERVICE FROM AUGUST 2 TO AUGUST 27, 1939; ACTIVE AVIATION CADET SERVICE FROM AUGUST 28, 1939, TO MAY 5, 1940; AND ACTIVE COMMISSIONED SERVICE FROM MAY 6, 1940, TO AUGUST 13, 1943. THE COUNTING OF SERVICE AS AN APPOINTIVE AVIATION CADET FOR PAY PURPOSES HAS BEEN THE SUBJECT OF TWO DECISIONS OF THIS OFFICE, 31 COMP. GEN. 610; 32 ID. 473, AND IT IS INDICATED THAT THE DETERMINATION OF JUNE 15, 1939, AS THE PROPER PAY ENTRY BASE DATE FOR COLONEL CLASEN WAS BASED ON OUR DECISION OF MAY 22, 1952 (31 COMP. GEN. 610).

APPOINTED AVIATION CADET SERVICE MAY BE CREDITED BY COMMISSIONED OFFICERS FOR LONGEVITY PAY PURPOSES ONLY TO THE EXTENT AUTHORIZED BY SPECIFIC PROVISION OF LAW. IN OUR DECISION OF MAY 22, 1952, WE RECOGNIZED THAT THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND MARINE CORPS RESERVE WAS CREATED BY THE ACT OF APRIL 15, 1935, 49 STAT. 156, WHICH PROVIDED FOR THE APPOINTMENT OF AVIATION CADETS BY THE SECRETARY OF THE NAVY AND WHICH FIXED THE PAY, ALLOWANCES, AND EMOLUMENTS OF THAT GRADE, BUT MADE NO PROVISION FOR THE COUNTING OF SERVICE IN THAT GRADE FOR LONGEVITY PAY PURPOSES. WE ALSO CITED SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1166, 1177, 34 U.S.C. 853 (E) (1946 USED.), PRESCRIBING THE PAY TO WHICH MEMBERS OF THE NAVAL RESERVE, GENERALLY, SHALL BE ENTITLED AND QUOTED THE PROVISION THAT "* * * AVIATION CADETS SHALL RECEIVE THE PAY AND ALLOWANCES AND OTHER EMOLUMENTS PROVIDED FOR THEM BY THE ACT OF APRIL 15, 1935, 49 STAT. 157, 34 U.S.C. 861A (1934 USED., SUPP. II): PROVIDED, 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 * * *.'

THE DECISION OF MAY 22, 1952, REFERS, ALSO, TO SECTION 14 OF THE NAVAL AVIATION CADET ACT OF 1942, 56 STAT. 739, 34 U.S.C. 850M (1952 USED.), WHICH PROVIDED THAT ACTIVE SERVICE OF AVIATION CADETS PREVIOUSLY APPOINTED BY THE SECRETARY OF THE NAVY, AS DISTINGUISHED FROM AVIATION CADETS ENLISTED PURSUANT TO THAT ACT,"* * * SHALL BE CONSIDERED AS COMMISSIONED SERVICE FOR THE PURPOSE OF COMPUTING INCREASES IN PAY OF COMMISSIONED OFFICERS ON ACCOUNT OF LENGTH OF SERVICE.' WHEN THAT ACT WAS PASSED, SECTION 1 OF THE ACT OF JUNE 16, 1942, 56 STAT. 359, 37 U.S.C. 101 (1946 USED.), PROVIDED THAT REGULAR OFFICERS WERE ENTITLED TO PRESCRIBED INCREASES IN PAY ON ACCOUNT OF PREVIOUS ACTIVE COMMISSIONED SERVICE. SEE ALSO SECTION 1, THE ACT OF JUNE 10, 1922, 42 STAT. 625, CONTAINING SIMILAR PROVISIONS. IT THUS SEEMS APPARENT THAT IT WAS THE INTENTION OF BOTH SECTION 7 OF THE NAVAL RESERVE ACT OF 1938 AND SECTION 14 OF THE NAVAL AVIATION CADET ACT OF 1942, MENTIONED ABOVE, TO PERMIT ACTIVE SERVICE AS AN APPOINTIVE AVIATION CADET TO BE COUNTED FOR LONGEVITY PAY PURPOSES.

SECTION 1 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AMENDED SECTION 1 OF THE ACT OF JUNE 16, 1942, TO PROVIDE FOR THE COUNTING BY OFFICERS OF "FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS" IN THE SEVERAL ORGANIZATIONS MENTIONED. SEE ALSO SECTION 3A OF THE ACT OF JUNE 16, 1942, AS ADDED BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AS AMENDED BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, 37 U.S.C. 103A (1946 USED.). THOSE WERE THE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, THE DAY BEFORE THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT AND, HENCE, SERVICE PROPERLY CREDITABLE UNDER THOSE PROVISIONS MAY BE CREDITED UNDER SECTION 202 (A) (6) OF THAT ACT, 63 STAT. 807, 808, 37 U.S.C. 233 (A) (6), WHICH PROVIDES FOR THE COUNTING OF ALL SERVICE WHICH, UNDER ANY PROVISION OF LAW IN EFFECT ON THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT, WAS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY.

SINCE THE LAW SPECIFICALLY PROVIDES THAT ACTIVE SERVICE AS AN AVIATION CADET SHALL BE CONSIDERED TO BE COMMISSIONED SERVICE FOR COMPUTING INCREASES IN PAY FOR LENGTH OF SERVICE AND SINCE NO OTHER PROVISION HAS BEEN FOUND WHICH WOULD AUTHORIZE THE COUNTING OF INACTIVE SERVICE IN THAT STATUS BY COLONEL CLASEN, IT IS CONCLUDED THAT SUCH INACTIVE SERVICE MAY NOT BE USED TO INCREASE HIS PAY. NO MENTION IS MADE IN THE DECISIONS CITED BY YOU OF THE CREDITABILITY OF INACTIVE SERVICE AS AN APPOINTIVE AVIATION CADET FOR LONGEVITY PAY PURPOSES AND THOSE DECISIONS MAY NOT BE CONSIDERED AS AUTHORITY FOR GIVING CREDIT FOR SUCH SERVICE.