B-53413, MARCH 6, 1946, 25 COMP. GEN. 631

B-53413, MARCH 6, 1946, 25 COMP. GEN. 631

RETIREMENT - CIVILIAN - SERVICE CREDITS FOR ACTIVE SERVICE IN ARMED FORCES PRIOR TO TERMINATION OF RESERVE STATUS IN THE CASE OF AN ARMY RESERVE OFFICER WHO WAS RELIEVED FROM ACTIVE DUTY BUT CONTINUED IN AN INACTIVE STATUS AS A MEMBER OF THE OFFICERS' RESERVE CORPS, IT WOULD APPEAR THAT THE REQUIREMENTS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, WITH RESPECT TO COUNTING ,PERIODS OF HONORABLE SERVICE" IN THE ARMED FORCES FOR CIVILIAN RETIREMENT PURPOSES, HAVE BEEN MET WHEN THE PARTICULAR PERIOD OF ACTIVE MILITARY SERVICE SOUGHT TO BE CREDITED HAS BEEN TERMINATED UNDER HONORABLE CONDITIONS AND THAT THE COUNTING THEREOF NEED NOT BE POSTPONED UNTIL THERE HAS BEEN AN ABSOLUTE TERMINATION OF ALL SERVICE UNDER THE RESERVE COMMISSION. IT WOULD APPEAR THAT THE CONDITIONS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, WITH RESPECT TO COUNTING "PERIODS OF HONORABLE SERVICE" IN THE ARMED FORCES FOR CIVILIAN RETIREMENT PURPOSES, WOULD BE SATISFIED UPON SUBMISSION OF A CERTIFICATE FROM THE PROPER MILITARY OR NAVAL AUTHORITY TO THE EFFECT THAT THE PERIOD OF ACTIVE DUTY IN A RESERVE COMPONENT OF THE ARMED FORCES FOR WHICH CREDIT TOWARDS CIVILIAN RETIREMENT IS SOUGHT HAS BEEN TERMINATED UNDER HONORABLE CONDITIONS, REGARDLESS OF WHETHER THERE HAS BEEN AN ABSOLUTE TERMINATION OF THE EMPLOYEE'S STATUS AS A MEMBER OF A RESERVE COMPONENT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 6, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 18, 1945, FILE CSD 48001, AS FOLLOWS:

THE COMMISSION WOULD APPRECIATE A DECISION FROM YOU INVOLVING THE APPLICABILITY OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468, TO TWO CASES NOW PENDING BEFORE IT.

SECTION 5 OF THE ACT READS:

" SUBJECT TO THE PROVISIONS OF SECTION 9 HEREOF, THE AGGREGATE PERIOD OF SERVICE WHICH FORMS THE BASIS FOR CALCULATING THE AMOUNT OF ANY BENEFIT PROVIDED IN THIS ACT SHALL BE COMPUTED FROM THE DATE OF ORIGINAL EMPLOYMENT, WHETHER AS A CLASSIFIED OR AN UNCLASSIFIED EMPLOYEE IN THE CIVIL SERVICE OF THE UNITED STATES, OR IN THE SERVICE OF THE DISTRICT OF COLUMBIA, INCLUDING PERIODS OF SERVICE AT DIFFERENT TIMES AND IN ONE OR MORE DEPARTMENTS, BRANCHES, OR INDEPENDENT OFFICES, OR THE LEGISLATIVE BRANCH OF THE GOVERNMENT, AND ALSO PERIODS OF SERVICE PERFORMED OVERSEAS UNDER AUTHORITY OF THE UNITED STATES, AND PERIODS OF HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES; * *

SECTION 9 OF THE SAID ACT PERMITS FULL CREDIT FOR PRIOR SERVICE DURING WHICH RETIREMENT DEDUCTIONS WERE NOT MADE, UPON THE PAYMENT OF THE APPLICABLE PERCENTAGE DEDUCTION.

AT THE TIME OF THE ENACTMENT OF THE ACT OF MAY 22, 1920, JURISDICTION OF ITS ADMINISTRATION WAS VESTED IN THE DEPARTMENT OF THE INTERIOR WHICH ADMINISTERED IT THROUGH ITS BUREAU OF PENSIONS. IN THE CASE OF CYRUS GRAY, DECIDED DECEMBER 27, 1920 (21 P. AND R. 75), THE INTERIOR DEPARTMENT HELD THAT "HONORABLE SERVICE MENTIONED IN THE RETIREMENT ACT CANNOT BE ONE THAT IS TERMINATED OTHER THAN HONORABLY.' THE FACTS BRIEFLY ARE THAT GRAY SERVED FOR A PERIOD DURING THE CIVIL WAR AS AN ENLISTED MAN AND RECEIVED AN HONORABLE DISCHARGE FOR PROMOTION. HE ELECTED TO RECEIVE A PENSION BASED ON THIS SERVICE; HENCE, IT WAS NOT ALLOWABLE FOR CIVIL SERVICE RETIREMENT BENEFITS. AFTER GRAY'S HONORABLE DISCHARGE FROM HIS SERVICE AS AN ENLISTED MAN, HE WAS COMMISSIONED AS AN OFFICER IN THE REGULAR ARMY, SERVING CONTINUOUSLY AS SUCH FROM 1867 TO 1887 WHEN HE WAS COURT MARTIALED AND EXPELLED FROM THE ARMY. THE INTERIOR DEPARTMENT REFUSED TO CREDIT GRAY FOR RETIREMENT BENEFITS THE PERIOD OF HIS CONTINUOUS SERVICE AS A COMMISSIONED OFFICER FROM WHICH HE WAS DISHONORABLY DISCHARGED. THE DECISION HAS BEEN FOLLOWED BY THE COMMISSION TO DATE.

THE ADMINISTRATOR OF VETERANS' AFFAIRS IN A DECISION OF SEPTEMBER 26, 1931, ARRIVED AT A SIMILAR CONCLUSION. THE APPLICANT IN QUESTION ENLISTED IN THE UNITED STATES NAVY ON MARCH 20, 1923, AND WAS ISSUED AN UNDESIRABLE DISCHARGE, NOVEMBER 11, 1927, BECAUSE OF CONVICTION BY THE CIVIL AUTHORITIES OF PORTSMOUTH, NEW HAMPSHIRE, OF ILLEGAL POSSESSION AND SALE OF INTOXICATING LIQUOR, AND THE QUESTION WAS RAISED AS TO WHETHER SUCH NAVAL SERVICE COULD BE CREDITED FOR ANNUITABLE PURPOSES TOWARD HIS CIVIL SERVICE RETIREMENT. GENERAL HINES HELD THAT NAVAL SERVICE OF THE APPLICANT RESULTING IN HIS BEING DISCHARGED AS "UNDESIRABLE" CANNOT BE CONSIDERED AS HAVING BEEN "HONORABLE SERVICE" WITHIN THE MEANING OF THE CIVIL SERVICE RETIREMENT ACT, AND SUCH SERVICE SHOULD NOT BE CREDITED FOR ANNUITABLE PURPOSES. HE ALSO MADE REFERENCE TO THE CASE OF OTTO COLLENG ( CURRENT SERIES P.D. 102) WHEREIN IT WAS HELD THAT IN CREDITING HONORABLE SERVICE FOR RETIREMENT, COGNIZANCE SHOULD BE TAKEN OF THE RECORDS OF THE WAR AND NAVY DEPARTMENTS AND THE CHARACTER OF THE DISCHARGE GIVEN THE PERSON UPON THE TERMINATION OF THE SERVICE FOR WHICH CREDIT IS CLAIMED AS INDICATING WHETHER OR NOT THE MILITARY OR NAVAL SERVICE WAS HONORABLE.

THE FIRST CASE BEFORE THE COMMISSION IS THAT OF MAJOR ELGIN SMITH WHO AFTER HAVING SERVED IN THE FEDERAL SERVICE FOR MORE THAN 30 YEARS APPLIED FOR OPTIONAL RETIREMENT. THE RECORDS OF THE WAR DEPARTMENT DISCLOSE THE FOLLOWING MILITARY SERVICE FOR MAJOR SMITH AS A COMMISSIONED RESERVE OFFICER:

APPOINTED CAPTAIN, FINANCE DEPARTMENT RESERVE, SEPTEMBER 28, 1922; ACCEPTED OCTOBER 2, 1922; ASSIGNED SERIAL NUMBER 10-163486; REAPPOINTED SEPTEMBER 28, 1927; ACCEPTED SEPTEMBER 28, 1927; REAPPOINTED SEPTEMBER 28, 1932; ACCEPTED SEPTEMBER 28, 1932; PROMOTED TO MAJOR, FINANCE DEPARTMENT RESERVE, FEBRUARY 6, 1936; ACCEPTED FEBRUARY 14, 1936; REAPPOINTED FEBRUARY 6, 1941; ACCEPTED FEBRUARY 6, 1941; AND IS NOW A MAJOR, FINANCE DEPARTMENT RESERVE ( INACTIVE).

ACCORDING TO SECTION 37 OF THE ACT OF JUNE 15, 1933, 48 STAT. 154, APPOINTMENTS IN THE OFFICERS' RESERVE CORPS ARE FOR A PERIOD OF FIVE YEARS, BUT APPOINTMENTS IN FORCE AT THE OUTBREAK OF WAR CONTINUE IN FORCE UNTIL SIX MONTHS AFTER ITS TERMINATION. MAJOR SMITH'S APPOINTMENT WILL, THEREFORE, NOT TERMINATE UNTIL 1946 OR WHEN THE PRESIDENT DECLARES THE EMERGENCY ENDED.

THE SECOND CASE IS THAT OF MR. LOUIS R. DOUGLASS, AN EMPLOYEE OF THE INTERIOR DEPARTMENT, WHO EXECUTED AN APPLICATION FOR SERVICE CREDIT UNDER THE TERMS OF SECTION 9 OF THE ACT ON AUGUST 31, 1942, WHEREIN HE INDICATED PRIOR MILITARY SERVICE. THE WAR DEPARTMENT WAS REQUESTED ON FEBRUARY 2, 1943 TO FURNISH A REPORT COVERING MR. DOUGLASS' SERVICE CLAIMED WITH THE UNITED STATES ARMY. THE FOLLOWING VERIFICATION WAS MADE BY THE WAR DEPARTMENT IN ITS FIRST ENDORSEMENT DATED MARCH 22, 1943:

1. THE RECORDS OF THIS OFFICE SHOW THAT LOUIS REA DOUGLASS WAS A COMMISSIONED OFFICER IN THE UNITED STATES ARMY, FROM MAY 18, 1917 TO JUNE 14, 1919.

2. HE WAS APPOINTED CAPTAIN, CORPS OF ENGINEERS RESERVE, JULY 24, 1923; ACCEPTED JULY 30, 923; ASSIGNED SERIAL NUMBER 10-18175; PROMOTED TO MAJOR, FIELD ARTILLERY RESERVE; ACCEPTED JANUARY 15, 1932; PROMOTED TO LIEUTENANT COLONEL, FIELD ARTILLERY RESERVE, JANUARY 25, 1938; ACCEPTED FEBRUARY 3, 1938; TRANSFERRED TO INACTIVE RESERVE, MAY 9, 1942, BY REASON OF PHYSICAL DISQUALIFICATION; AND IS NOW A LIEUTENANT COLONEL, INACTIVE RESERVE.

3. HE HAD THE FOLLOWING TOURS OF ACTIVE DUTY; FROM AUGUST 1, 1924 TO AUGUST 15, 1924; MARCH 14, 1925 TO JUNE 18, 1925; FEBRUARY 16, 1930 TO MARCH 1, 1930; AUGUST 12, 1934 TO JUNE 25, 1934; AUGUST 1, 1937 TO AUGUST 14, 1937; AND FROM AUGUST 7, 1938 TO AUGUST 20, 1938.

MR. DOUGLASS WAS INFORMED ON FEBRUARY 23, 1944, THAT IN ORDER TO PURCHASE CREDIT FOR MILITARY SERVICE, THERE MUST BE AN ABSOLUTE TERMINATION UNDER HONORABLE CONDITIONS, AND SINCE THE RECORDS SHOW HE IS IN AN INACTIVE STATUS BY REASON OF PHYSICAL DISQUALIFICATION, AND THERE HAS BEEN NO TERMINATION OF HIS APPOINTMENT UNDER HONORABLE CONDITIONS, HE CANNOT RECEIVE CREDIT AT THIS TIME FOR HIS MILITARY SERVICE.

ONE VIEW IN THE COMMISSION IS THAT MILITARY SERVICE IS NOT ALLOWABLE IN CALCULATING THE ANNUITY RATE UNTIL IT TERMINATES UNDER HONORABLE CONDITIONS, AND THEREFORE, RESERVE OFFICERS IN AN INACTIVE STATUS CANNOT RECEIVE CREDIT FOR THEIR MILITARY SERVICE UNTIL THEY ARE GIVEN AN HONORABLE DISCHARGE. ANOTHER VIEW IN THE COMMISSION IS THAT WHEN AN EMPLOYEE SEEKS RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT, HE IS ENTITLED AT THE TIME OF FILING AN APPLICATION FOR RETIREMENT TO HAVE ALL CREDITABLE CIVILIAN SERVICE AND HONORABLE MILITARY SERVICE COMPUTED. THE BASIS FOR THIS CONTENTION IS THAT IT IS POSSIBLE TO SEGREGATE ALL HONORABLE SERVICE UP TO THE DATE OF RETIREMENT FROM FUTURE SERVICE WHICH MAY RESULT IN AN INACTIVE RESERVE OFFICER RECEIVING A DISHONORABLE DISCHARGE.

THE QUESTION ON WHICH WE WOULD APPRECIATE A DECISION FROM YOU IS WHETHER THE ACTIVE MILITARY SERVICE OF A RESERVE OFFICER IN AN INACTIVE STATUS PRIOR TO DISCHARGE MAY BE CREDITED UNDER THE CIVIL SERVICE RETIREMENT ACT EITHER AT THE TIME OF APPLICATION FOR RETIREMENT, OR UPON APPLICATION FOR SERVICE CREDIT.

JURISDICTION OVER THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468, AS AMENDED, IS VESTED IN THE CIVIL SERVICE COMMISSION. HENCE, I SHALL NOT ATTEMPT TO RENDER AN AUTHORITATIVE DECISION UPON THE MATTER PRESENTED BUT AM PLEASED TO EXPRESS, IN RESPONSE TO YOUR LETTER, MY VIEWS WITH RESPECT THERETO. SEE 19 COMP. GEN. 352; 18 ID. 955.

IT WILL BE NOTED THAT SECTION 5 OF THE SAID CIVIL SERVICE RETIREMENT ACT, 46 STAT. 472, QUOTED IN PART IN YOUR LETTER, PROVIDES THAT, IN COMPUTING SERVICE CREDITS FOR RETIREMENT PURPOSES, THERE SHALL BE INCLUDED INTER ALIA,"PERIODS OF HONORABLE SERVICE" IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES. UNDER THE AMENDMENT OF OCTOBER 14, 1940, 54 STAT. 1116, TO SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT, MILITARY OR NAVAL SERVICE FORMING THE BASIS FOR RETIRED PAY OR NON-SERVICE -CONNECTED DISABILITY PENSION IS EXCLUDED FROM THE COMPUTATION OF SERVICE FOR CIVILIAN RETIREMENT. FURTHER, IT IS UNDERSTOOD THAT IN THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT ACT, IT CONSISTENTLY HAS BEEN HELD THAT ACTIVE MILITARY OR NAVAL DUTY, ONLY, MAY BE COUNTED FOR RETIREMENT PURPOSES.

GENERALLY, ENLISTMENTS IN THE ARMED FORCES ARE FOR SPECIFIC TERMS OF YEARS AND, WHILE THE PERIODS OF ENLISTMENT HAVE VARIED AT DIFFERENT TIMES FROM 1 TO 6 YEARS ACCORDING TO THE PARTICULAR SERVICE INVOLVED, EACH ENLISTMENT PERIOD HAS BEEN CONSIDERED A SEPARATE ENTITY SO FAR AS CONCERNS THE CHARACTER OF THE SERVICE RENDERED THEREUNDER. THAT IS TO SAY, A DISHONORABLE DISCHARGE FROM ONE ENLISTMENT DOES NOT AFFECT THE CHARACTER OF SERVICE RENDERED UNDER PRIOR ENLISTMENTS. LIKEWISE, COMMISSIONS IN THE OFFICERS' RESERVE CORPS OF THE ARMY, EXCEPT IN TIME OF WAR OR NATIONAL EMERGENCY, ARE FOR DEFINITE PERIODS OF 5 YEARS. SEE SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 48 STAT. 154. HENCE, IT WILL BE SEEN THAT, GENERALLY, WITH RESPECT TO ENLISTED MEN OF THE ARMED FORCES AND MEMBERS OF THE OFFICERS' RESERVE CORPS, EACH PERIOD OF ENLISTMENT OR PERIOD DURING WHICH A COMMISSION IS HELD IN THE RESERVE CORPS IS SUSCEPTIBLE OF SEGREGATION FROM OTHER LIKE PERIODS AND, IF OTHERWISE PROPERLY FOR INCLUSION IN COMPUTING SERVICE FOR CIVILIAN RETIREMENT PURPOSES, MAY BE INCLUDED WITHOUT REGARD TO THE CHARACTER OF SERVICE UNDER OTHER ENLISTMENTS OR COMMISSIONS.

HOWEVER, AS MENTIONED IN YOUR LETTER, ENLISTMENTS AND COMMISSIONS ENTERED INTO, OR IN FORCE, DURING THE WAR PERIOD AUTOMATICALLY WERE EXTENDED FOR THE DURATION OF THE EMERGENCY AND, SINCE THE EMERGENCY HAS NOT BEEN DECLARED AS ENDED, THERE ARISES THE QUESTION WHETHER A RESERVE OFFICER RELIEVED FROM ACTIVE DUTY BUT CONTINUED IN HIS STATUS AS A MEMBER OF THE OFFICERS' RESERVE CORPS, PROPERLY MAY BE CREDITED WITH SUCH ACTIVE DUTY FOR CIVILIAN RETIREMENT PURPOSES, INASMUCH AS HIS PRESENT COMMISSION HAS NOT EXPIRED. THE DIFFICULTY IN SUCH CASES APPARENTLY ARISES BY REASON OF THE LONG-STANDING RULE ESTABLISHED BY THE PREDECESSORS OF THE CIVIL SERVICE COMMISSION IN JURISDICTION OVER THE CIVIL SERVICE RETIREMENT ACT THAT, AS A PREREQUISITE TO COUNTING MILITARY OR NAVAL SERVICE FOR CIVILIAN RETIREMENT PURPOSES, THERE MUST BE AN ABSOLUTE TERMINATION OF SUCH SERVICE UNDER HONORABLE CONDITIONS.

SECTION 5 OF THE SAID RETIREMENT ACT AUTHORIZES THE COUNTING OF "PERIODS OF HONORABLE SERVICE" IN THE ARMED FORCES. WHILE IT IS TRUE THAT THE TYPE OF DISCHARGE GIVEN UPON TERMINATION OF SUCH SERVICE DETERMINES THE CHARACTER OF THAT SERVICE, IT DOES NOT NECESSARILY FOLLOW THAT BEFORE MILITARY OR NAVAL SERVICE MAY BE CONSIDERED "HONORABLE" THERE MUST BE AN ABSOLUTE TERMINATION THEREOF. ON THE CONTRARY, IN THE ABSENCE OF ANY INDICATION OTHERWISE, SERVICE IN THE ARMED FORCES, PRIMA FACIE, IS HONORABLE, AND IT IS ONLY WHERE SUBSEQUENT EVENTS WARRANT THE ISSUANCE OF A DISCHARGE OR DISMISSAL FROM THE SERVICE UNDER OTHER THAN HONORABLE CONDITIONS THAT PRIOR HONORABLE SERVICE IS AFFECTED.

IN THE LIGHT OF THE ABOVE, IT IS MY VIEW THAT THE RULE HERETOFORE APPLIED WITH RESPECT TO THE COUNTING OF MILITARY OR NAVAL SERVICE UNDER THE PROVISIONS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT IS NOT IN CONSONANCE WITH THE SPIRIT OR INTENT OF THE SAID SECTION. SINCE ACTIVE SERVICE, ONLY, IN THE ARMED FORCES MAY BE COUNTED, IT REASONABLY APPEARS THAT THE REQUIREMENTS OF THE STATUTE HAVE BEEN MET WHEN THE PERIOD OF ACTIVE DUTY HAS BEEN TERMINATED UNDER HONORABLE CONDITIONS AND THE COUNTING THEREOF IS NOT REQUIRED TO BE POSTPONED UNTIL ALL SERVICE UNDER A RESERVE COMMISSION HAS BEEN COMPLETED. OTHERWISE, IT IS POSSIBLE THAT THE BENEFITS OF SECTION 5 WILL BE DENIED MANY PERSONS OTHERWISE ENTITLED THERETO, SINCE, IF, BECAUSE OF THE CONTINUATION OF THE EMERGENCY, CREDITING OF ACTIVE MILITARY OR NAVAL SERVICE IS POSTPONED FOR SEVERAL YEARS, THEIR SUBSEQUENT CIVILIAN SERVICE IN THE MEANTIME--- IN CONJUNCTION WITH PRIOR CIVILIAN SERVICE--- MIGHT BE SUFFICIENT TO PERMIT THEIR RETIREMENT WITHOUT REGARD TO THEIR ACTIVE MILITARY OR NAVAL DUTY. FURTHERMORE, COMMISSIONS IN THE NAVAL RESERVE, AND MARINE CORPS RESERVE--- UNLIKE COMMISSIONS IN THE OFFICERS' RESERVE CORPS--- ARE NOT LIMITED TO ANY PARTICULAR NUMBER OF YEARS AND IN THE ABSENCE OF ANY AFFIRMATIVE ACTION TO THE CONTRARY REMAIN IN EFFECT INDEFINITELY. CONSEQUENTLY, WHILE IT WOULD SEEM THAT UNDER THE RULE MENTIONED IN YOUR LETTER, ACTIVE SERVICE IN PRIOR ENLISTMENTS OR UNDER PRIOR COMMISSIONS IN THE OFFICERS' RESERVE CORPS COULD BE COUNTED FOR CIVILIAN RETIREMENT PURPOSES, THERE APPEARS NO BASIS UNDER THE SAID RULE UPON WHICH ANY ACTIVE COMMISSIONED SERVICE IN THE NAVAL RESERVE COULD BE COUNTED IN THE ABSENCE OF A DISCHARGE OR RESIGNATION THEREFROM. I AM OF THE OPINION THAT THE CONDITIONS OF THE STATUTE REASONABLY WILL HAVE BEEN SATISFIED UPON THE SUBMISSION OF A CERTIFICATE FROM THE PROPER MILITARY OR NAVAL AUTHORITY TO THE EFFECT THAT THE PERIOD OF ACTIVE DUTY FOR WHICH CREDIT TOWARDS CIVILIAN RETIREMENT IS SOUGHT HAS BEEN TERMINATED UNDER HONORABLE CONDITIONS--- REGARDLESS OF THE FACT THAT THERE HAS BEEN NO ABSOLUTE TERMINATION OF THE EMPLOYEE'S STATUS AS A MEMBER OF THE RESERVE FORCES.