B-154238, AUGUST 7, 1964, 44 COMP. GEN. 61

B-154238, AUGUST 7, 1964, 44 COMP. GEN. 61

PAY - SERVICE CREDITS - RESERVES - REGULAR ARMY RESERVE. PAY - SERVICE CREDITS - RESERVES - REGULAR ARMY RESERVE THE FACT THAT THE REGULAR ARMY RESERVE IS NOT LISTED AMONG THE ORGANIZATIONS IN SECTION 306 (C) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT REHABILITATION ACT OF 1948, FOR CREDITABLE SERVICE FOR RETIREMENT UNDER TITLE III OF THE 1948 ACT, SERVICE IN THE REGULAR ARMY RESERVE AFTER JUNE 30, 1949, MAY NOT BE CREDITED FOR THE PURPOSE OF QUALIFYING MEMBERS OF THE UNIFORMED SERVICES FOR TITLE III RETIRED PAY UNDER SECTION 302 (B) OF THE 1948 ACT. SERVICE PRIOR TO JULY 1, 1949, IN THE REGULAR ARMY RESERVE, WHICH IS NOT ONE OF THE ORGANIZATIONS INCLUDED NOR EXCLUDED FOR CREDITABLE SERVICE PURPOSES IN SUBSECTIONS (C) OR (E) OF SECTION 306 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED, FOR QUALIFYING MEMBERS OF THE UNIFORMED SERVICES FOR RETIRED PAY UNDER 10 U.S.C. 1331-1337, MAY BE CREDITED AS RESERVE SERVICE FOR ELIGIBILITY FOR RETIREMENT PAY UNDER TITLE III OF THE 1948 ACT IN VIEW OF A CONGRESSIONAL INTENT WHICH INDICATES THAT THE PHRASE "EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949," IN SECTION 302 (C) WAS NOT INTENDED TO BE LIMITED OR RESTRICTED TO THE ORGANIZATIONS LISTED IN SUBSECTION 306/C).

COMPTROLLER CAMPBELL TO THE SECRETARY OF DEFENSE, AUGUST 7, 1964:

REFERENCE IS MADE TO LETTER OF MAY 15, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION WHETHER SERVICE IN THE REGULAR ARMY RESERVE IS CREDITABLE FOR THE PURPOSE OF QUALIFYING FOR RETIRED PAY UNDER CHAPTER 67, TITLE 10, U.S.C. (SECTIONS 1331-1337). THE PROBLEM IS DISCUSSED IN DETAIL IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 342 RECEIVED WITH THAT LETTER.

SECTIONS 27, 29, 30, 31 AND 32 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, CH. 134, 39 STAT. 185-188, ESTABLISHED AND PROVIDED FOR THE REGULAR ARMY RESERVE AND BY SECTION 1 OF THAT ACT, 39 STAT. 166, THE REGULAR ARMY RESERVE WAS DENOTED AS A COMPONENT OF THE REGULAR ARMY. ON JUNE 4, 1920, THE REGULAR ARMY RESERVE WAS ABOLISHED "* * * AND ALL MEMBERS THEREOF SHALL BE DISCHARGED FROM THE OBLIGATIONS UNDER WHICH THEY ARE NOW SERVING.' SEE SECTION 30, ACT OF JUNE 4, 1920, CH. 227, 41 STAT. 775. 1938, BY ACT OF APRIL 25, 1938, CH. 171, 52 STAT. 221, 222, CONGRESS REESTABLISHED THE REGULAR ARMY RESERVE "* * * AS A PART OF THE REGULAR ARMY.' THE PROVISIONS OF THE 1938 ACT REMAINED IN FULL FORCE AND EFFECT, EXCEPT FOR MINOR AMENDMENTS MADE IN SECTION 523/A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 836, UNTIL JUNE 28, 1950, WITH RESPECT TO PERSONNEL OF THE ARMY (SEE SECTION 401 OF THE ACT OF JUNE 28, 1950, CH. 383, 64 STAT. 270-271) AND UNTIL SEPTEMBER 19, 1951, WITH RESPECT TO PERSONNEL OF THE AIR FORCE (SEE SECTION 401 OF THE ACT OF SEPTEMBER 19, 1951, CH. 407, 65 STAT. 333).

IT HAS BEEN STATED THAT THE REGULAR ARMY RESERVE, ALTHOUGH A RESERVE OF THE REGULAR ARMY, IS ALSO A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES. SEE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. AT PAGE 367. HENCE, SERVICE IN THE REGULAR ARMY RESERVE GENERALLY AND UNLESS EXCEPTED BY SOME PROVISION OF LAW FOR A SPECIFIED PURPOSE IS CREDITABLE FEDERAL SERVICE.

CHAPTER 67, TITLE 10, U.S.C. WAS ENACTED IN THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 102-104, TO RECODIFY THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIRMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087-1091, AS AMENDED, WHICH HAS BEEN DESCRIBED (SEE DECISION OF APRIL 26, 1950, 29 COMP. GEN. 424, 426) AS A "SPECIAL LAW PROVIDING FOR RETIREMENT PAY FOR A PARTICULAR CLASS OF MEMBERS OR FORMER MEMBERS OF THE ARMED SERVICES WHOSE STATUS IS SUCH THAT THEY WOULD NOT OTHERWISE BE ENTITLED TO ANY MILITARY OR NAVAL RETIREMENT BENEFITS.' STATED IN THE DECISION OF APRIL 26, 1950, THERE WAS ESTABLISHED FOR PARTICULAR MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES A RETIREMENT PAY SYSTEM ENTIRELY SEPARATE AND DISTINCT FROM THAT PROVIDED FOR MEMBERS OF THE UNIFORMED SERVICES GENERALLY, AND, CONSEQUENTLY ENTITLEMENT TO RETIREMENT PAY BENEFITS UNDER TITLE III OF THE 1948 LAW ARISES ONLY UPON MEETING THE SPECIFIC REQUIREMENTS OF AGE AND SERVICE AS THEREIN SET FORTH.

THOSE PROVISIONS OF THE 1948 ACT, AS AMENDED BY THE ACT OF SEPTEMBER 7, 1949, CH. 547, 63 STAT. 693, AND THE ACT OF JULY 12, 1952, CH. 698, 66 STAT. 590, WHICH ARE DEEMED TO BE PERTINENT TO THE ISSUE RAISED IN THE LETTER OF MAY 15, 1964, ARE AS FOLLOWS:

SEC. 302. (A) ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION OF THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF * * * AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY: PROVIDED, THAT FOR THE PURPOSES OF THIS SECTION THE LAST EIGHT YEARS OF QUALIFYING SERVICE FOR RETIRMENT UNDER THIS TITLE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT: PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SUBSECTION, SIMULTANEOUS SERVICE AS A MEMBER OF A RESERVE COMPONENT AND AS A MEMBER OF THE REGULAR ARMY, NAVY, AIR FORCE, OR MARINE CORPS, SHALL NOT BE DEEMED TO BE SERVICE IN RESERVE COMPONENT; PROVIDED FURTHER, THAT NO PERSON WHO WAS A MEMBER OF A RESERVE COMPONENT ON OR BEFORE AUGUST 15, 1945, SHALL BE ELIGIBLE FOR RETIREMENT BENEFITS UNDER THIS TITLE UNLESS HE PERFORMED ACTIVE FEDERAL SERVICE DURING ANY PORTION OF EITHER OF THE TWO PERIODS BEGINNING APRIL 6, 1917, AND ENDING NOVEMBER 11, 1918, AND BEGINNING SEPTEMBER 9, 1940, AND ENDING DECEMBER 31, 1946.

(B) SUBSEQUENT TO JULY 1, 1949, A YEAR OF SATISFACTORY FEDERAL SERVICE, FOR THE PURPOSES OF THIS SECTION ONLY, SHALL CONSIST OF ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF FITY POINTS, WHICH POINTS SHALL BE CREDITED ON THE FOLLOWING BASIS:

(1) ONE POINT FOR EACH DAY OF ACTIVE FEDERAL SERVICE;

(2) ONE POINT FOR EACH DRILL OR PERIOD OF EQUIVALENT INSTRUCTION * * *;

(3) FIFTEEN POINTS FOR MEMBERSHIP IN A RESERVE COMPONENT FOR EACH YEAR OF FEDERAL SERVICE OTHER THAN ACTIVE FEDERAL SERVICE.

(C) EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, SHALL BE DEEMED TO BE A YEAR OF SATISFACTORY FEDERAL SERVICE FOR THE PURPOSES OF THIS SECTION, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) OF SECTION 306 OF THIS ACT.

SEC. 306. FOR THE PURPOSES OF THIS TITLE---

(A) THE TERM "FEDERAL SERVICE" SHALL BE DEEMED TO INCLUDE ALL ACTIVE FEDERAL SERVICE AND ALL SERVICE IN A RESERVE COMPONENT OTHER THAN ACTIVE FEDERAL SERVICE, OR BOTH, EXCEPT AS PROVIDED IN (E) AND (F) BELOW.

(C) SERVICE IN A RESERVE COMPONENT, AS USED IN THIS TITLE, SHALL CONSIST OF SERVICE IN THE FOLLOWING ORGANIZATIONS, AND SHALL BE DEEMED TO BE FEDERAL SERVICE FOR THE PURPOSES OF THIS TITLE.

THE "ORGANIZATIONS" ABOVE REFERRED TO ARE ENUMERATED IN THE 16 CLAUSES WHICH FORM THE REMAINING PORTION OF SUBSECTION (C). AS POINTED OUT IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 342, THE REGULAR ARMY RESERVE IS NOT AMONG THE ORGANIZATIONS LISTED IN CLAUSES (1) TO (16) OF SECTION 306 (C) FOR WHICH SERVICE IS AUTHORIZED TO BE CREDITED, NOR IS REGULAR ARMY RESERVE LISTED IN SUBSECTION (E) OF SECTION 306, QUOTED BELOW, AMONG THE ORGANIZATIONS WHICH ARE EXCLUDED FROM THE CATEGORIES OF CREDITABLE FEDERAL SERVICE.

SECTION 306 FURTHER PROVIDES:

(E) WITH RESPECT TO PERSONNEL OF THE ARMY OR THE AIR FORCE, SERVICE IN THE INACTIVE NATIONAL GUARD OR AIR NATIONAL GUARD, IN A NONFEDERALLY RECOGNIZED STATUS IN THE NATIONAL GUARD OR AIR NATIONAL GUARD, OR IN AN INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS OR AN INACTIVE OFFICERS' SECTION OF THE AIR FORCE RESERVE SHALL NOT BE DEEMED TO BE FEDERAL SERVICE.

ASIDE FROM THE RESTRICTION IMPOSED BY SECTION 305 OF THE 1948 ACT,62 STAT. 1089, WHICH IS NOT INVOLVED HERE, ELIGIBILITY FOR TITLE III RETIRMENT PAY DEPENDS ON FOUR BASIC FACTORS BUT ONLY TWO OF THOSE ARE HERE MATERIAL, NAMELY, (1) THE PERFORMANCE OF 20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE AS DEFINED IN SECTION 302 (NOW COVERED BY 10 U.S.C. 1332), AND (2) THE LAST 8 YEARS OF QUALIFYING SERVICE MUST HAVE BEEN SERVICE AS A MEMBER OF A RESERVE COMPONENT. SATISFACTORY FEDERAL SERVICE IS DEFINED IN SUBSECTION (B) OF SECTION 302 FOR THE PERIOD BEGINNING JULY 1, 1949, AND IN SUBSECTION (C) OF SECTION 302 AS TO THE PERIOD PRECEDING JULY 1, 1949.

SUBSECTION (B) OF SECTION 302, AS AMENDED, PROVIDES THAT EFFECTIVE JULY 1, 1949, ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF 50 POINTS ON THE BASIS THEREIN PRESCRIBED (WHICH MAY INCLUDE 15 POINTS FOR MEMBERSHIP IN A RESERVE COMPONENT FOR EACH YEAR OF FEDERAL SERVICE OTHER THAN ACTIVE FEDERAL SERVICE) CONSTITUTES A YEAR OF SATISFACTORY FEDERAL SERVICE FOR THE PURPOSES OF SECTION 302. IN SECTION 306 (C) IT IS PROVIDED THAT SERVICE IN A RESERVE COMPONENT AS USED IN TITLE III OF THE 1948 LAW (WHICH, OF COURSE, INCLUDES SECTION 302 (B) OF THE ACT) "SHALL CONSIST OF SERVICE" IN THE ORGANIZATIONS THEREIN LISTED IN CLAUSES 1 TO 16. SERVICE IN ANY ORGANIZATION NOT THEREIN LISTED IS NOT CREDITABLE SERVICE. THE REGULAR ARMY RESERVE IS NOT LISTED AMONG THE ORGANIZATIONS THEREIN SET FORTH AND, THEREFORE, THERE IS CONSIDERABLE DOUBT THAT SERVICE IN THE REGULAR ARMY RESERVE AFTER JUNE 30, 1949, IS AUTHORIZED TO BE CREDITED FOR THE PURPOSE OF QUALIFYING FOR TITLE III RETIRED PAY UNDER THE PROVISIONS OF SECTION 302 OF THE 1948 ACT.

A DIFFERENT RESULT SEEMS INDICATED, HOWEVER, UNDER SECTION 302 (C) OF THE 1948 LAW WHICH PROVIDES THAT EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, IS TO BE DEEMED A YEAR OF SATISFACTORY FEDERAL SERVICE FOR PURPOSES OF SECTION 302 "SUBJECT TO THE PROVISIONS OF SUBSECTION (E) OF SECTION 306" OF THAT ACT. SUBSECTION (C) OF SECTION 302 BY MAKING EXPRESS REFERENCE TO SUBSECTION (E) OF SECTION 306, SPECIFICALLY EXCLUDES THE INACTIVE SERVICE MENTIONED IN THE LATTER SUBSECTION. IT WILL BE NOTED IN THIS CONNECTION THAT SECTION 302 (C) MAKES REFERENCE ONLY TO THE PROVISIONS OF SECTION 306 (E), THEREBY EXCLUDING THE INACTIVE SERVICE THEREIN SET FORTH BUT MAKES NO SIMILAR REFERENCE TO ANY OF THE OTHER SUBSECTIONS OF SECTION 306. CONSEQUENTLY, THE SPECIFIC REFERENCE IN SECTION 302 (C) TO SUBSECTION (E) OF SECTION 306 SEEMS TO SHOW THAT THE LEGISLATORS DEFINITELY HAD THE PROVISIONS OF SECTION 306 IN MIND WHEN DRAFTING SECTION 302 AND THAT BY EXPRESSLY ENUMERATING ONLY SUBSECTION (E) OF SECTION 306 IT WAS INTENDED TO REMOVE SECTION 302 (C) FROM WITHIN THE SCOPE AND PURVIEW OF THE OTHER SUBSECTIONS OF SECTION 306. COMPARE B- 115877, JANUARY 11, 1954. HENCE, IT IS NOT UNTENABLE TO VIEW THE PHRASE "EACH YEAR OF SERVICE AS A MEMBER OF A RESERVE COMPONENT" CONTAINED IN SECTION 302 (C) AS NOT LIMITED OR RESTRICTED TO THE ORGANIZATIONS LISTED IN CLAUSES (1) TO (16), INCLUSIVE, IN SECTION 306 (C).

WHEN SUCH ANALYSIS OF SECTIONS 302 AND 306 IS VIEWED IN THE LIGHT OF THE LANGUAGE CHANGES MADE WHEN THE LAW WAS CODIFIED IN 10 U.S.C. 1331 1337, AND CONSIDERING THE EXPRESSED INTENT THAT THE CODIFICATION WAS NOT INTENDED TO MAKE ANY SUBSTANTIVE CHANGE IN THE LAW, IT SEEMS REASONABLY CLEAR THAT REGULAR ARMY RESERVE SERVICE PRIOR TO JULY 1, 1949, WAS INTENDED TO BE CREDITED AS RESERVE SERVICE FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIRED PAY UNDER TITLE III OF THE 1948 ACT, AS CODIFIED AND REENACTED IN 10 U.S.C. 1331-1337. IT MAY BE NOTED THAT UNDER 10 U.S.C. 1332 (A) ALL SERVICE "IN THE ARMED FORCES" PRIOR TO JULY 1, 1949 (EXCEPT AS PROVIDED IN SUBSECTION (B) (, IS CREDITABLE FOR THAT PURPOSE. THE SERVICE WHICH IS EXCEPTED IN SUBSECTION (B) (10 U.S.C. 1332/B) ( DOES NOT INCLUDE SERVICE IN THE REGULAR ARMY RESERVE.

IT IS OUR CONCLUSION, THEREFORE, THAT SERVICE IN THE REGULAR ARMY RESERVE PRIOR TO JULY 1, 1949, IS CREDITABLE SERVICE FOR THE PURPOSE OF ESTABLISHING ELIGIBILITY FOR TITLE III RETIREMENT PAY UNDER SECTION 302 OF THE 1948 LAW.