B-160093, DECEMBER 23, 1966, 46 COMP. GEN. 590

B-160093, DECEMBER 23, 1966, 46 COMP. GEN. 590

PAY - RETIRED - SERVICES PRIOR TO NOVEMBER 12, 1918 - ELIGIBILITY TO RATE PRESCRIBED - SERVICES AS RESERVE NURSE AN OFFICER RETIRED FROM THE ARMY NURSE CORPS UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, HAVING SERVED AS A RESERVE NURSE PRIOR TO NOVEMBER 12, 1918 IS ENTITLED TO THE COMPUTATION OF HER RETIRED PAY ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THE BENEFITS OF THE ACTS OF 1935 AND 1942 EXTENDING TO PERSONNEL WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, IRRESPECTIVE OF THE TYPE OF SERVICE PERFORMED. THEREFORE, THE OFFICER WHO UPON RETIREMENT WAS ENTITLED TO 75 PERCENT OF HER ACTIVE DUTY PAY PURSUANT TO THE 1942 ACT, MAY BE PAID, EFFECTIVE JUNE 30, 1950, DATE OF RETIREMENT, THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT 75 PERCENT AND THE 70 PERCENT SHE RECEIVED, SUBJECT TO 31 U.S.C. 237, THE 10-YEAR BARING STATUTE. PAY - RETIRED - SERVICES PRIOR TO NOVEMBER 12, 1918 - ELIGIBILITY TO RATE PRESCRIBED - SERVICES AS RESERVE NURSE WHETHER RETIRED UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, OR ANY OTHER ACT, A MEMBER OF THE ARMY NURSE CORPS WHO SERVED AS A RESERVE NURSE PRIOR TO NOVEMBER 12, 1918, IS ENTITLED TO THE COMPUTATION OF HER RETIRED PAY AT 75 PERCENT OF HER ACTIVE DUTY PAY AT THE TIME OF RETIREMENT ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. PAY - RETIRED - SERVICES PRIOR TO NOVEMBER 12, 1918 - COMPUTATION ON BASIS OF HIGHEST TEMPORARY RANK A MEMBER OF THE ARMY NURSE CORPS WHO SERVED AS A RESERVE NURSE PRIOR TO NOVEMBER 12, 1918, AND IS ELIGIBLE TO HAVE HER RETIRED PAY COMPUTED AT 75 PERCENT OF HER ACTIVE DUTY PAY UNDER THE FOURTH PARAGRAPH OF SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, IS ENTITLED TO THE COMPUTATION OF HER RETIRED PAY ON THE BASIS OF THE HIGHEST TEMPORARY RANK THAT SHE HELD AT THE TIME OF RETIREMENT, OR TO WHICH SHE WAS SUBSEQUENTLY ADVANCED ON THE RETIRED LIST.

TO COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, DECEMBER 23, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1966 (FILE REF: FINCS-E HUHNER, MYRTLE C. N42, RETIRED), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF THE ATTACHED VOUCHER IN THE AMOUNT OF $3,812.67 IN FAVOR OF MYRTLE HUHNER, ARMY NURSE CORPS, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT 75 PERCENT AND 70 PERCENT OF HER ACTIVE DUTY PAY AT THE TIME OF RETIREMENT, PLUS LEGISLATIVE INCREASES, FOR THE PERIOD JUNE 14, 1956, THROUGH JUNE 30, 1966. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE OFFICE OF THE CHIEF OF FINANCE ON SEPTEMBER 16, 1966, AND HAS BEEN ASSIGNED D.O. NO. A 926 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS SHOWN THAT BY SPECIAL ORDERS NO. 115 DATED JUNE 14, 1950, MAJOR HUHNER, UPON HER OWN APPLICATION, WAS RETIRED FROM ACTIVE SERVICE IN THE GRADE OF MAJOR EFFECTIVE JUNE 30, 1950, UNDER THE AUTHORITY OF SECTION 5 OF THE ACT OF JULY 31, 1935, CH. 422, 49 STAT. 507, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, CH. 344, 54 STAT. 379, AND SECTION 108 OF THE ACT OF APRIL 16, 1947, CH. 38, 61 STAT. 44. YOU SAY THAT THE OFFICER IS CREDITED WITH 27 YEARS 10 MONTHS AND 16 DAYS' ACTUAL ACTIVE SERVICE, AND 31 YEARS, 8 MONTHS AND 26 DAYS' SERVICE FOR BASIC PAY PURPOSES. YOU FURTHER SAY THAT THE OFFICER'S RETIRED PAY IS COMPUTED UNDER THE RATES PRESCRIBED IN SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 805, 37 U.S.C. 232 (1958 ED.), AS AMENDED, AND THAT THE SUBMITTED VOUCHER REPRESENTS ADJUSTMENT WITHIN THE 10-YEAR STATUTE OF LIMITATIONS PROVIDED IN THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 237.

ON THE BASIS OF THE APPLICABLE PROVISIONS OF LAW AND CERTAIN COMPTROLLER GENERAL DECISIONS CITED IN YOUR SUBMISSION, YOU EXPRESS THE VIEW THAT THERE APPEARS TO BE SUFFICIENT AUTHORITY FOR THE CONCLUSION THAT SERVICE AS A RESERVE NURSE OF THE ARMY NURSE CORPS PRIOR TO NOVEMBER 12, 1918, MAY BE REGARDED AS SERVICE AS "A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED TES," WITHIN THE MEANING OF EITHER SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, OR THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368. HOWEVER, IN THE LIGHT OF THE CONCLUSIONS REACHED IN 26 COMP. GEN. 932, 28 ID. 22, AND 31 ID. 293, YOU EXPRESS DOUBT IN THE MATTER AND YOU ASK WHETHER:

A. MAJOR HUHNER IS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF HER ACTIVE DUTY PAY AT THE TIME OF RETIREMENT BY VIRTUE OF EITHER ONE OR BOTH OF THESE PROVISIONS OF LAW;

B. AN OFFICER WITH SIMILAR SERVICE, EXCEPT THAT SHE WAS NOT ELIGIBLE FOR RETIREMENT UNDER THE 1935 ACT, WOULD BE ENTITLED TO THE BENEFITS OF THE SAID PARAGRAPH 4;

C. AN OFFICER ELIGIBLE UNDER EITHER A. OR B. ABOVE WOULD BE ENTITLED TO HAVE SUCH BENEFITS COMPUTED ON HER HIGHEST TEMPORARY RANK.

THE CONCLUSIONS REACHED IN 26 COMP. GEN. 932 AND 28 ID. 22, ARE NOT VIEWED AS APPLICABLE TO THE CIRCUMSTANCES SURROUNDING MAJOR HUHNER'S CASE. SEE 30 COMP. GEN. 15 WHICH OVERRULED THOSE DECISIONS TO THE EXTENT THERE INDICATED. ALSO, THE CONCLUSION REACHED IN 31 COMP. GEN. 293 IS NOT FOR APPLICATION, SINCE THE OFFICER THERE INVOLVED RETIRED AS A MEMBER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND HENCE WAS NOT ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. MAJOR HUHNER RETIRED AS AN OFFICER OF THE REGULAR ARMY NURSE CORPS AND IS ENTITLED TO THE BENEFITS OF THE 1942 ACT IF SHE IS OTHERWISE QUALIFIED.

SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, CITED IN THE RETIREMENT ORDERS OF JUNE 14, 1950, PROVIDED, IN PERTINENT PART, THAT AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WITH NOT LESS THAN 20 OR MORE THAN 30 YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES MAY, UPON HIS (OR HER) OWN APPLICATION, BE RETIRED WITH ANNUAL PAY EQUAL TO 2-1/2 PER CENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITED FOR LONGEVITY PAY PURPOSES, NOT TO EXCEED 75 PER CENTUM OF SUCH ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY. THE LAW FURTHER PROVIDED (QUOTING FROM 10 U.S.C. 971B (1952 ED.)

* * * THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PER CENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT UNLESS ENTITLED TO RETIRED PAY OF A HIGHER GRADE AS HEREINAFTER PROVIDED * * *.

ALSO CITED IN THE OFFICER'S RETIREMENT ORDERS IN SECTION 108 OF THE ARMY- NAVY NURSES ACT OF 1947, 61 STAT. 44, 10 U.S.C. 166G (1952 ED.), WHICH PROVIDED IN PERTINENT PART, THAT AN OFFICER ON THE ACTIVE LIST OF THE ARMY NURSE CORPS, AFTER 20 YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES, MAY UPON HER REQUEST, AT THE DISCRETION OF THE SECRETARY OF THE ARMY, BE RETIRED WITH RETIRED PAY EQUAL TO 2-1/2 PER CENTUM OF THE BASE AND LONGEVITY PAY SHE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF SUCH ACTIVE FEDERAL SERVICE. UNDER SECTION 109 OF THE 1947 ACT, 10 U.S.C. 166H (1952 ED.), ALL LAWS APPLICABLE TO MALE COMMISSIONED OFFICERS OF THE REGULAR ARMY WERE MADE APPLICABLE IN LIKE CASES TO FEMALE COMMISSIONED OFFICERS APPOINTED IN THE REGULAR ARMY UNDER THAT ACT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED. FOR THE PURPOSE OF DETERMINING CREDITABLE SERVICE AT THE TIME OF APPOINTMENT UNDER THE 1947 ACT, IT IS NOTED THAT THE LAW RECOGNIZED ACTIVE FEDERAL SERVICE IN THE STATUS OF A "RESERVE NURSE" FOR SUCH PURPOSES (SEE SECTION 105 (A) 10 U.S.C. 166D (A) (1952 ED.)

A RETIRED OFFICER WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHO IS OTHERWISE ENTITLED TO RETIRED PAY IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, AS AMENDED, 37 U.S.C. 115 (1958 ED.) WHICH PROVIDES AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE BE 75 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

THERE IS FOR NOTING THAT THE PROVISO IN SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 BOTH EXTEND THEIR BENEFITS TO PERSONNEL WHO SERVED "IN ANY CAPACITY" AS A MEMBER OF THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918. THE LAW MAKES NO DISTINCTION AS TO THE TYPE OF SERVICE REQUIRED, MERELY THAT SUCH SERVICE WAS PERFORMED. HENCE, THE QUESTION ARISES WHETHER THE SERVICE PERFORMED BY MAJOR HUHNER PRIOR TO NOVEMBER 12, 1918, IN HER STATUS AS A RESERVE NURSE IN THE ARMY NURSE CORPS MAY BE REGARDED AS SERVICE "IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF THE ABOVE QUOTED PROVISO IN SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT.

THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY WAS ESTABLISHED BY SECTION 19 OF THE ACT OF FEBRUARY 2, 1901, CH. 192, 31 STAT. 753, WHICH PROVIDED, AMONG OTHER THINGS, THAT ,RESERVE NURSES MAY BE ASSIGNED TO ACTIVE DUTY WHEN THE EMERGENCY OF THE SERVICE DEMANDS.' THEREAFTER, BY THE ACT OF JULY 9, 1918, CH. 143, 40 STAT. 879, 10 U.S.C. 161 (1946 ED.), THE NURSE CORPS (FEMALE) OF THE MEDICAL DEPARTMENT OF THE ARMY BECAME KNOWN AS THE ARMY NURSE CORPS. IT ALSO INCLUDED "RESERVE NURSES.' IN DISCUSSING THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, WE SAID IN 28 COMP. GEN. 531 AT PAGE 534, THAT WHILE MEMBERS OF THE ARMY NURSE CORPS WERE APPOINTED (RATHER THAN COMMISSIONED OR ENLISTED) IN THE ARMY NURSE CORPS DURING THE PERIOD THERE INVOLVED, SECTION 15 EXTENDS ITS BENEFITS TO PERSONNEL WHO SERVED "IN ANY CAPACITY" AND IT GENERALLY HAS BEEN CONSIDERED THAT SUCH PERSONNEL HAD A MILITARY STATUS AS DISTINGUISHED FROM A CIVIL STATUS. IT WAS CONCLUDED IN THAT CASE THAT THE OFFICER THERE MENTIONED WAS ENTITLED TO THE BENFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT.

IN THE LIGHT OF THE FOREGOING, MAJOR HUHNER, BY REASON OF HER SERVICE IN THE ARMY NURSE CORPS AS A RESERVE NURSE PRIOR TO NOVEMBER 12, 1918, MAY BE REGARDED AS HAVING SERVED "IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," WITHIN THE MEANING OF THE PROVISO IN SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, SO AS TO ENTITLE HER TO 75 PERCENT OF HER ACTIVE DUTY PAY FROM THE DATE OF RETIREMENT, LIMITED OF COURSE, TO THE 10-YEAR LIMITATION PERIOD PROVIDED IN 31 U.S.C. 237. ACCORDINGLY, THE OFFICER'S RETIRED PAY MAY BE ADJUSTED ON THAT BASIS AND PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.

IT APPEARS THAT BUT FOR MAJOR HUHNER'S ENTITLEMENT TO HAVE HER RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 5 OF THE 1935 ACT, AS AMENDED, SHE WOULD BE ENTITLED TO HAVE SUCH PAY COMPUTED AT 75 PERCENT OF HER ACTIVE DUTY PAY AT THE TIME OF RETIREMENT UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. QUESTIONS A AND B ARE ANSWERED ACCORDINGLY.

QUESTION C IS ANSWERED IN THE AFFIRMATIVE IF THE OFFICER WAS SERVING ON ACTIVE DUTY IN SUCH TEMPORARY RANK AT THE TIME OF RETIREMENT OR IF SHE WAS LATER ADVANCED ON THE RETIRED LIST TO THAT GRADE UNDER APPLICABLE PROVISIONS OF LAW. SEE 30 COMP. GEN. 15, AND COMPARE FIELD V. UNITED STATES, 141 CT. CL. 312 (1958).