B-150780, APR. 21, 1964

B-150780, APR. 21, 1964

TO LIEUTENANT COMMANDER VICTOR HUGO WIEGAND, USNR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1964, REFERRING TO OUR DECISION OF JUNE 7, 1963, B-150780, 42 COMP. GEN. - , WHERE WE STATED THAT, AS TO THOSE MEMBERS WHO WERE APPOINTED MIDSHIPMEN IN THE NAVAL RESERVE UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1058, IT IS OUR VIEW THAT THOSE PERIODS FOR WHICH THEY WERE ENTITLED TO RECEIVE ACTIVE DUTY PAY (INCLUDING PERIODS WHEN SENT TO TRAINING DURING THE SUMMER) PROPERLY MAY BE CONSIDERED AS PERIODS OF ACTIVE SERVICE IN THE ARMED FORCES FOR THE PURPOSE OF RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 6323. YOU REQUEST THAT THE DECISION BE REVIEWED TO INCLUDE ,ADJUSTMENT OF THE PAY ENTRY BASE DATES," AND YOU REFER TO ARTICLE 1301.1 (B) OF U.S. NAVY REGULATIONS, 1948, WHERE IT IS STATED THAT "MIDSHIPMEN ARE, BY LAW, OFFICERS IN A QUALIFIED SENSE AND ARE CLASSED AS BEING OF THE LINE.'

THE DECISION OF JUNE 7, 1963, WAS RENDERED TO THE SECRETARY OF THE NAVY IN RESPONSE TO A REQUEST OF FEBRUARY 1, 1963. SUCH A DECISION RENDERED TO THE HEAD OF A DEPARTMENT ON A SUBMISSION PURSUANT TO LAW PROPERLY MAY NOT BE RECONSIDERED AT YOUR REQUEST. SEE 16 COMP. GEN. 927, 929. WE ARE ENCLOSING FOR YOUR INFORMATION, HOWEVER, A COPY OF THE DECISION IN QUESTION; A COPY OF OUR DECISION OF FEBRUARY 23, 1961, B-144276, 40 COMP. GEN. 473; A COPY OF OUR DECISION OF APRIL 22, 1959, B-138442, AND A COPY OF OUR DECISION OF NOVEMBER 15, 1963, B-138442, SUSTAINING THE DECISION OF APRIL 22, 1959. YOU WILL NOTE THAT IN THE DECISION OF APRIL 22, 1959, WE STATED THAT WHILE MIDSHIPMEN MAY BE CONSIDERED NAVY OFFICERS FOR CERTAIN PURPOSES, THEY ARE NEITHER COMMISSIONED OFFICERS NOR ENLISTED MEN, AND, THEREFORE, SERVICE AS A NAVAL RESERVE MIDSHIPMAN IS NOT CREDITABLE IN DETERMINING LENGTH OF SERVICE FOR BASIC PAY PURPOSES.

ALTHOUGH THE PERTINENT STATUTORY PROVISIONS RELATING TO SERVICE CREDITABLE IN COMPUTATION OF BASIC PAY ARE NOW CONTAINED IN 37 U.S.C. 205 (A), SUCH PROVISIONS WERE DERIVED, WITHOUT SUBSTANTIVE CHANGE, FROM SUBSECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 807. IN SENATE REPORT NO. 733, ON H.R. 5007, 81ST CONGRESS, 1ST SESSION (WHICH BECAME THE CAREER COMPENSATION ACT OF 1949), ON PAGE 17, THE SENATE COMMITTEE ON ARMED SERVICES, REFERRING TO SECTION 202 (A), STATED:

"SERVICE AS CADETS OR MIDSHIPMEN IS NOT CREDITABLE UNDER THE TERMS OF THIS SUBSECTION, AND PROPOSALS TO AMEND THE BILL SO AS TO COUNT SUCH SERVICE WERE REJECTED BY THE COMMITTEE AFTER DUE CONSIDERATION OF THE FACTORS INVOLVED.'

WE TRUST THAT THIS INFORMATION WILL BE SUFFICIENT TO EXPLAIN WHY WE HAVE HELD THAT NO SERVICE AS A MIDSHIPMAN, UNITED STATES NAVAL RESERVE, APPOINTED UNDER THE 1946 ACT, IS CREDITABLE IN DETERMINING LENGTH OF SERVICE FOR BASIC PAY PURPOSES.