B-155459, NOVEMBER 9, 1964, 44 COMP. GEN. 277

PAY - SERVICE CREDITS - ACTIVE DUTY AFTER TERMINATION OF MILITARY STATUS THE ACTIVE MILITARY DUTY PERFORMED IN GOOD FAITH IN A DE FACTO STATUS THAT IS NOT PROHIBITED BY LAW IS CREDITABLE SERVICE FOR BASIC AND RETIRED PAY PURPOSES AND FOR DETERMINING RETIREMENT ELIGIBILITY IN ALL CASES SIMILAR TO THAT OF AN AIR FORCE OFFICER WHO HAVING BEEN INADVERTENTLY RETAINED ON ACTIVE DUTY FOR APPROXIMATELY 6 MONTHS AFTER HE SHOULD HAVE BEEN RELEASED FROM THE TEMPORARY APPOINTMENT HE HELD UNDER SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, WHEN THE UNDERLYING RESERVE APPOINTMENT ON WHICH HIS TEMPORARY APPOINTMENT WAS BASED WAS TERMINATED IS CONSIDERED TO HAVE RENDERED SERVICE NOT PROHIBITED BY LAW IN GOOD FAITH AND IN A DE FACTO STATUS AND, THEREFORE, ENTITLED TO COUNT THE SERVICE PERFORMED AFTER THE EXPIRATION OF HIS COMMISSION IN COMPUTING CUMULATIVE YEARS OF SERVICE FOR ACTIVE DUTY PAY AND RETIRED PAY PURPOSES, AND FOR DETERMINING ELIGIBILITY TO BE RETIRED WITH PAY UNDER LAWS AUTHORIZING RETIREMENT FOR LENGTH OF SERVICE.

TO THE SECRETARY OF DEFENSE, NOVEMBER 9, 1964:

REFERENCE IS MADE TO LETTER OF OCTOBER 21, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER AN OFFICER WHO WAS INADVERTENTLY RETAINED ON ACTIVE DUTY AFTER HIS COMMISSION EXPIRED IS ENTITLED TO COUNT FOR ACTIVE DUTY PAY AND RETIREMENT PURPOSES THE PERIOD OF APPROXIMATELY 6 MONTHS THAT HE REMAINED ON ACTIVE DUTY FOLLOWING THE EXPIRATION OF HIS APPOINTMENT. COMMITTEE ACTION NO. 351 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE CONTAINS A DISCUSSION RELATING TO THE PROBLEM.

THE COMMITTEE ACTION STATES THAT THE QUESTIONS INVOLVED ARE AS FOLLOWS:

IS AN OFFICER WHO WAS KEPT ON ACTIVE DUTY THROUGH ERROR AFTER HIS COMMISSION EXPIRED, ENTITLED TO COUNT AS CREDITABLE SERVICE FOR BASIC PAY PURPOSES THE TIME SO SERVED DURING WHICH HE DID NOT HOLD A VALID COMMISSION?

MAY SUCH TIME BE PROPERLY REGARDED AS ACTIVE SERVICE FOR RETIREMENT PURPOSES?

IT IS STATED THAT A SITUATION SUCH AS THAT CONTEMPLATED IN THE QUESTIONS IS PRESENTED IN THE FOLLOWING ACTUAL EXAMPLE. AN OFFICER SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES WAS TENDERED A 5-YEAR TERM APPOINTMENT UNDER SECTION 37, NATIONAL DEFENSE ACT, AS AMENDED (10 U.S.C. 351, ET SEQ., 1946 ED.), AS A CAPTAIN, AIR FORCE RESERVE, WHICH HE ACCEPTED ON MARCH 4, 1948. THAT APPOINTMENT WAS EXTENDED TO APRIL 1, 1953, THROUGH THE OPERATION OF SECTION 1 (C) OF THE EMERGENCY POWERS CONTINUATION ACT OF JULY 3, 1952, CH. 570, 66 STAT. 333, 10 U.S.C. 506D NOTE (1952 ED.), AND EXECUTIVE ORDER NO. 10397, DATED SEPTEMBER 25, 1952. AT THE TIME HIS RESERVE APPOINTMENT TERMINATED THE OFFICER ALSO HELD A TEMPORARY APPOINTMENT UNDER SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 907, 10 U.S.C. 506D (C) (1952 ED.), WHICH APPOINTMENT IS ALSO CONSIDERED TO HAVE TERMINATED ON APRIL 1, 1953, SINCE IT WAS BASED ON THE UNDERLYING RESERVE APPOINTMENT. SINCE HE HAD REFUSED TO ACCEPT AN INDEFINITE TERM RESERVE APPOINTMENT, HE SHOULD HAVE BEEN RELEASED FROM ACTIVE DUTY PRIOR TO APRIL 2, 1953. HOWEVER, HE WAS NOT RELEASED FROM ACTIVE DUTY UNTIL SEPTEMBER 20, 1953. IT IS STATED THAT HE IS REGARDED AS HAVING BEEN A DE FACTO OFFICER FROM APRIL 2 TO SEPTEMBER 20, 1953. HE NOW HOLDS A COMMISSION IN THE AIR NATIONAL GUARD.

IN DECISION OF MARCH 19, 1953, 32 COMP. GEN. 397, WE CONSIDERED THE CASES OF TWO PERSONS WHO HAD SERVED IN THE MARINE CORPS RESERVE. IN ONE CASE AN ALIEN SERVED ON ACTIVE DUTY AS A MEMBER OF THE MARINE CORPS RESERVE FOR MORE THAN 3 YEARS FROM MAY 1943 TO JANUARY 1946. HE FIRST ENLISTED IN THE REGULAR MARINE CORPS IN NOVEMBER 1946 AND SERVED CONTINUOUSLY ON ACTIVE DUTY THROUGH SUCCESSIVE REENLISTMENTS IN THE REGULAR MARINE CORPS. AT THE TIME OF HIS SERVICE IN THE MARINE CORPS RESERVE THE LAW PROVIDED THAT THE MARINE CORPS RESERVE SHOULD BE COMPOSED OF "MALE CITIZENS OF THE UNITED STATES," BUT THERE APPARENTLY WAS NO STATUTORY BAR AT THAT TIME TO ENLISTMENT OF ALIENSIN THE REGULAR MARINE CORPS. WE THERE SAID THAT THE ENLISTMENT OF AN ALIEN IN THE MARINE CORPS RESERVE WAS IN EFFECT PROHIBITED BY LAW, AND THAT HIS SITUATION WAS COMPARABLE TO THAT OF A PERSON WHO HAD ENLISTED IN THE NATIONAL GUARD BEFORE REACHING THE MINIMUM AGE AUTHORIZED BY LAW FOR SUCH ENLISTMENTS, IN WHICH CASE WE HAD HELD IN DECISION OF APRIL 6, 1944, 23 COMP. GEN. 755, THAT HE COULD COUNT FOR LONGEVITY PAY PURPOSES ONLY THAT PORTION OF HIS NATIONAL GUARD SERVICE WHICH WAS SUBSEQUENT TO HIS REACHING THE AUTHORIZED STATUTORY AGE FOR ENLISTMENT. ACCORDINGLY, IN THE DECISION OF MARCH 19, 1953, WE CONCLUDED THAT, IRRESPECTIVE OF WHETHER THE ALIEN "* * * MAY BE VIEWED AS HAVING SERVED IN A DE FACTO STATUS, IT MAY NOT BE CONCLUDED THAT THE CONGRESS INTENDED TO AUTHORIZE CREDIT AND INCREASED PAY FOR SERVICE PROHIBITED BY LAW. THAT IS, THE LAW MAY NOT BE APPLIED AS INTENDING TO REWARD THAT WHICH THE LAW PROHIBITS.' WE ACCORDINGLY HELD THAT THE ENLISTED MEMBER OF THE REGULAR MARINE CORPS THERE CONCERNED IS NOT ENTITLED "TO INCLUDE THE LEGALLY PROHIBITED SERVICE IN THE MARINE CORPS RESERVE" IN THE COMPUTATION OF HIS LENGTH OF SERVICE FOR BASIC PAY PURPOSES.

IN THE SECOND CASE AN AMERICAN CITIZEN, WHO ENLISTED IN THE MARINE CORPS RESERVE ON JUNE 23, 1948, WAS DISCHARGED THEREFROM ON JUNE 22, 1950, WITHOUT HAVING SERVED ON ACTIVE DUTY. NOTWITHSTANDING SUCH DISCHARGE, HOWEVER, HE COMPLIED WITH ORDERS ASSIGNING HIM TO ACTIVE DUTY EFFECTIVE JULY 24, 1950, AND REMAINED ON SUCH ACTIVE DUTY UNTIL HIS RELEASE THEREFROM ON MARCH 30, 1952, AFTER IT WAS DISCOVERED THAT HE HAD BEEN DISCHARGED IN JUNE 1950. HAVING ENLISTED IN THE REGULAR MARINE CORPS ON APRIL 1, 1952, THE QUESTION PRESENTED WAS WHETHER HE WAS ENTITLED TO COUNT SUCH ACTIVE SERVICE IN THE COMPUTATION OF HIS ACTIVE DUTY PAY.

NOTING THAT IN BENNETT V. UNITED STATES, 19 CT.CL. 379 (1884), AND PALEN V. UNITED STATES, 19 CT.CL. 389 (1884), THE COURT OF CLAIMS INDICATED THAT STATUTORY PROVISIONS FOR INCREASES IN PAY FOR LENGTH OF SERVICE (LONGEVITY PAY) INTEND A REWARD FOR LONG-CONTINUED ACTUAL ACTIVE SERVICE AND THAT IT MATTERS NOT WHETHER THE SERVICE WAS PERFORMED IN A DE JURE OR DE FACTO STATUS, AND SINCE IT APPEARED THAT THE SERVICE OF THE MEMBER INVOLVED IN THE DECISION OF MARCH 19, 1953, FROM JULY 1950 TO MARCH 1952 WAS PERFORMED IN GOOD FAITH IN THE BELIEF BY HIM AND HIS SUPERIOR OFFICERS THAT HE LEGALLY WAS OBLIGATED TO RENDER SUCH SERVICE, WHICH WAS NOT PROHIBITED BY LAW AND WAS RENDERED IN A DE FACTO ENLISTED STATUS, WE CONCLUDED THAT HE WAS ENTITLED IN THE COMPUTATION OF HIS CUMULATIVE YEARS OF SERVICE FOR INCREASES IN ACTIVE DUTY PAY ON ACCOUNT OF LENGTH OF SERVICE TO INCLUDE THE PERIOD OF HIS SERVICE FROM JULY 1950 TO MARCH 1952 IN A DE FACTO STATUS IN THE MARINE CORPS RESERVE.

UNDER THE CIRCUMSTANCES INDICATED ABOVE, IT APPEARS THAT THE OFFICER WHOSE SERVICE IS DESCRIBED IN THE COMMITTEE ACTION PERFORMED ACTIVE DUTY FROM APRIL 2 THROUGH SEPTEMBER 20, 1953, IN A DE FACTO STATUS AND THAT SUCH SERVICE WAS NOT OTHERWISE PROHIBITED BY LAW. ACCORDINGLY, HE MAY COUNT SUCH SERVICE IN COMPUTING THE CUMULATIVE YEARS OF SERVICE FOR ACTIVE DUTY PAY AND RETIRED PAY PURPOSES, AND THERE IS NOT APPARENT ANY REASON WHY SUCH SERVICE SHOULD NOT ALSO BE CREDITABLE IN COMPUTING THE YEARS OF SERVICE IN DETERMINING ELIGIBILITY TO BE RETIRED WITH PAY UNDER LAWS AUTHORIZING RETIREMENT FOR LENGTH OF SERVICE. BOTH QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE WITH RESPECT TO THIS AND SIMILAR CASES IF THE SERVICE WAS RENDERED IN GOOD FAITH IN A DE FACTO STATUS AND WAS NOT IN EFFECT PROHIBITED BY LAW.