B-58738, SEPTEMBER 18, 1946, 26 COMP. GEN. 203

B-58738, SEPTEMBER 18, 1946, 26 COMP. GEN. 203

RETIREMENT - COAST GUARD OFFICERS - SERVICE CREDIT FOR CIVILIAN LIGHTHOUSE SERVICE PRIOR CIVILIAN SERVICE OF FORMER LIGHTHOUSE SERVICE PERSONNEL WHO WERE COMMISSIONED IN THE LINE OF THE COAST GUARD PURSUANT TO THE ACT OF AUGUST 5, 1939, WHICH CIVILIAN SERVICE WAS AUTHORIZED TO BE INCLUDED IN COMPUTING "LENGTH OF SERVICE" FOR RETIREMENT IN THE COAST GUARD UNDER SECTION 6 OF SAID ACT, MAY NOT BE REGARDED AS "ACTIVE COMMISSIONED SERVICE" WITHIN THE CONTEMPLATION OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, AUTHORIZING THE RETIREMENT OF COAST GUARD OFFICERS AFTER 20 YEARS OF ACTIVE SERVICE, AT LEAST TEN OF WHICH ARE ACTIVE COMMISSIONED SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, SEPTEMBER 18, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 13, 1946, REQUESTING DECISION AS TO WHETHER EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE, COMMISSIONED AS OFFICERS IN THE LINE OF THE COAST GUARD UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF AUGUST 5, 1939, 53 STAT. 1216, MAY, FOR THE PURPOSES OF RETIREMENT UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, PUBLIC LAW 305, 60 STAT. 27, COUNT AS ACTIVE COMMISSIONED SERVICE, THE TIME DURING WHICH THEY HELD CIVILIAN POSITIONS IN SUCH FORMER LIGHTHOUSE SERVICE. IT IS UNDERSTOOD SUCH PRIOR SERVICE WAS SERVICE IN POSITIONS WHICH MET THE CONDITIONS PRESCRIBED IN THE SAID SECTION 1 OF THE ACT OF AUGUST 5, 1939, FOR THEIR BEING COMMISSIONED IN THE LINE OF THE COAST GUARD.

SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, PROVIDES:

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE. ( ITALICS SUPPLIED.)

THIS PROVISION IS MADE APPLICABLE TO THE COAST GUARD BY SECTION 10 OF THE ACT, 60 STAT. 29.

THE SAID ACT OF AUGUST 5, 1939, 53 STAT. 1216, 1217, PROVIDES IN PART:

(SEC. 1.) THAT THE PRESIDENT IS HEREBY AUTHORIZED TO COMMISSION, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IN THE LINE OF THE COAST GUARD IN GRADES APPROPRIATE TO THEIR QUALIFICATIONS, EXPERIENCE, AND LENGTHS OF SERVICE, AS DETERMINED BY THE SECRETARY OF THE TREASURY (HEREINAFTER REFERRED TO AS THE "SECRETARY"), SUCH PERSONNEL OF THE LIGHTHOUSE SERVICE AS, ON JUNE 30, 1939, WERE SERVING IN GRADES 1 TO 8, INCLUSIVE, OF THE PROFESSIONAL AND SCIENTIFIC SERVICE AS DEFINED IN THE CLASSIFICATION ACT OF 1923, AS AMENDED ( U.S.C., 1934 EDITION, SUPP. IV, TITLE 5, SEC. 673), AND WHO, ON THAT DATE, MET THE REQUIREMENTS FOR RETIREMENT (EXCEPT THOSE RELATING TO AGE AND PERIOD OF SERVICE) OF SECTION 6 OF THE ACT APPROVED JUNE 20, 1918 (40 STAT. 608), AS AMENDED AND SUPPLEMENTED ( U.S.C. TITLE 33, SEC. 763): PROVIDED, THAT NO PERSON SHALL BE COMMISSIONED UNDER THE PROVISIONS OF THIS SECTION WHO DOES NOT POSSESS SUCH MENTAL, MORAL, PROFESSIONAL, AND PHYSICAL QUALIFICATIONS AS MAY BE PRESCRIBED BY THE SECRETARY.

SEC. 6. IN COMPUTING LENGTH OF SERVICE, FOR THE PURPOSE OF RETIREMENT IN THE COAST GUARD, OF ANY PERSON COMMISSIONED, APPOINTED, OR ENLISTED UNDER THE PROVISIONS OF THIS ACT, THERE SHALL BE INCLUDED ALL SERVICE COMPUTABLE FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED.

SEC. 7. NO PERSON COMMISSIONED, APPOINTED, OR ENLISTED IN THE COAST GUARD PURSUANT TO THIS ACT SHALL SUFFER ANY REDUCTION IN THE TOTAL OF THE ANNUAL COMPENSATION AND ALLOWANCES WHICH HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT. UPON HIS RETIREMENT FROM ACTIVE DUTY IN THE COAST GUARD, THE RETIRED PAY OF ANY PERSON SO COMMISSIONED, APPOINTED, OR ENLISTED, SHALL NOT BE LESS THAN AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED, SUBSTITUTING, HOWEVER, FOR PURPOSES OF SUCH COMPUTATION, THE ANNUAL COMPENSATION WHICH HE WAS RECEIVING ON THE DATE OF HIS COMMISSION, APPOINTMENT, OR ENLISTMENT IN THE COAST GUARD FOR THE AVERAGE ANNUAL PAY RECEIVED BY HIM FOR THE LAST FIVE YEARS OF SERVICE.

WHILE SECTION 6 OF THE ACT OF AUGUST 5, 1939, SUPRA, AUTHORIZES CERTAIN CIVILIAN SERVICE IN THE FORMER LIGHTHOUSE SERVICE TO BE COUNTED IN COMPUTING "LENGTH OF SERVICE" FOR RETIREMENT IN THE COAST GUARD FOR EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE WHO WERE COMMISSIONED IN THE LINE OF THE COAST GUARD PURSUANT TO SUCH ACT, IT DOES NOT PURPORT TO AUTHORIZE SUCH CIVILIAN SERVICE TO BE COUNTED AS "COMMISSIONED SERVICE.' CF. DECISION OF JUNE 5, 1942, B-26209, TO YOU. THE TERM ,COMMISSIONED SERVICE" IS A TECHNICAL TERM WITH A WELL KNOWN TECHNICAL MEANING, AND IT LONG HAS BEEN DISTINGUISHED FROM THE MORE GENERAL TERM "SERVICE" IN THAT THE FORMER EMBRACES ONLY SERVICE UNDER A COMMISSION FROM THE PRESIDENT OR UNDER AN APPOINTMENT AFTER NOMINATION BY THE PRESIDENT CONFIRMED BY THE SENATE. SEE UNITED STATES V. LENSON, 278 U.S. 60; BABBITT V. UNITED STATES, 16 C.1CLS. 202, 205. THIS DISTINCTION APPEARS TO HAVE BEEN RECOGNIZED AND EMPHASIZED BY THE DRAFTERS OF THE LANGUAGE CONTAINED IN SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, QUOTED ABOVE, THE INTENTION BEING TO LIMIT STRICTLY THE BENEFITS GRANTED BY THAT SECTION OF THE ACT TO OFFICERS WHO, IN FACT, HAD COMPLETED AT LEAST TEN YEARS OF ACTIVE "COMMISSIONED SERVICE.' CF. BABBITT V. UNITED STATES, SUPRA.

IN THE HEARINGS BEFORE THE SENATE COMMITTEE ON NAVAL AFFAIRS ON S. 1405, THE BILL WHICH BECAME THE SAID ACT OF FEBRUARY 21, 1946, THE PROVISION HERE UNDER CONSIDERATION WAS DISCUSSED (SEE PAGE 2, ET SEQ., OF THE REPORT OF THE HEARINGS HELD ON NOVEMBER 6, 1945) AND IT WAS POINTED OUT, AND STRESSED, THAT REGARDLESS OF THE TOTAL "OVER-ALL SERVICE" OF AN OFFICER, HE WOULD NOT GET THE BENEFITS OF SUCH PROVISION UNLESS AND UNTIL HE HAD COMPLETED AT LEAST TEN YEARS OF ACTIVE COMMISSIONED SERVICE. ALSO, SEE REPORT NO. 158 ON THE HEARINGS ON SUCH BILL BEFORE THE HOUSE OF REPRESENTATIVES, COMMITTEE ON NAVAL AFFAIRS, PAGE 2237.

IN VIEW OF THE ABOVE AND THE JUDICIAL PRECEDENTS AS TO WHAT CONSTITUTES COMMISSIONED SERVICE, IT SEEMS CLEAR THAT PRIOR SERVICE AS A CIVILIAN EMPLOYEE IN THE FORMER LIGHTHOUSE SERVICE IS NOT ,ACTIVE COMMISSIONED SERVICE" WITHIN CONTEMPLATION OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946. ACCORDINGLY, THE QUESTION PRESENTED IN YOUR LETTER IS ANSWERED IN THE NEGATIVE.